Labor and Employment Law

Identifying legal solutions that work

FMG's Labor and Employment Law Section attorneys are nationally recognized and have defended employment claims in more than 45 states for all types of public and private employers.

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Reach & Depth

FMG’s Labor and Employment Law Section attorneys are nationally recognized and have defended employment claims in more than 45 states for all types of public and private employers. We provide employers with practical and sound preventative advice. Our attorneys help clients develop policies and practices that reduce the risk of future litigation. FMG lawyers develop cost-effective legal solutions that meet business objectives and protect the rights and best interests of employers.

FMG attorneys represent all types of private and public employers in cases concerning Title VII (race, sex, religion, color and national origin), ADEA, ADA, FMLA, constitutional violations, sexual harassment, wage-hour violations and wrongful discharge. We serve as national and regional panel counsel and coordinating counsel for a number of the nation’s largest providers of Employment Practices Liability Insurance (EPLI), Directors and Officers (D&O), Miscellaneous Professional Liability (MPL) and Public Officials/Professional Liability (PO/PL) Insurance.

Successes

Attorneys Brad Adler and Michael Hill obtained a defense verdict for a Fortune 500 company client in an arbitration alleging failure to accommodate and retaliation under the Americans with Disabilities Act. The plaintiff, a former sales manager with the company, first alleged the company failed to accommodate his disabilities by refusing to transfer him to a different work location. The plaintiff also alleged the company terminated his employment in retaliation for his having requested a reasonable accommodation. The arbitrator ruled in favor of our client, holding that any accommodation the plaintiff requested was not reasonable and that the plaintiff failed to establish a causal connection between his alleged request for accommodation and termination of employment. The arbitrator thus ruled in favor of the company on all claims.

An Eastern District of Pennsylvania judge has ruled that Tyson Foods, Inc. (“Tyson”) is immune from liability for claims asserted by the family of a supervisor at a Philadelphia meatpacking plant who died of complications from COVID-19. The claims were dismissed as the Pennsylvania Workers’ Compensation Act (“PWCA”) is the exclusive remedy for job-related injuries. Although the Plaintiff argued only one entity could be immune under the PWCA, the court disagreed finding that Tyson, as a parent company exercising workplace control, was also immune from liability. Plaintiff alleged the meatpacking plant at which her deceased husband worked, was “owned, supervised, and controlled” by Tyson although he had been employed by Original Philly Holdings. She further claimed that Tyson’s COVID-19 safety measures were inadequate resulting in her husband’s exposure to COVID-19 and related death. She claimed Tyson could not be considered an employer under the PWCA because the Act only allows for one entity to be deemed an “employer” under the Act.

The Court rejected Plaintiff’s contention noting that Pennsylvania courts have explicitly held that an employee may have more than one employer for purposes of the Act. The critical issue for purposes of immunity is whether the entity has the right to control and direct the method and manner of work employees perform. Plaintiff’s allegations demonstrated that Tyson met the definition of employer for purposes of the Act. Specifically, the Plaintiff alleged Tyson “owned, operated, managed, and otherwise controlled” the meatpacking plant and “sell[s] meat products under the brand name Original Philly Cheesesteak.” The Plaintiff further contended that it was Tyson’s own failure to implement adequate safety precautions which resulted in her husband’s illness, and ultimately, death. Under the circumstances, the exclusivity provision of the Act mandated dismissal with prejudice of the tort claims asserted against Tyson.

Paul Piantino and the Aviation Practice Team secured a big win on summary judgment in New York Supreme Court in Erie County this past November. The case centers around the “duty to warn” and liability with respect to snow removal, a topic FMG has a great deal of expertise in.

Plaintiff was an employee of a private aircraft charter which leased certain sectors from Defendant Airport as part of its business activities. During a snowstorm at the Airport, Plaintiff was allegedly severely injured when she slipped and fell on ice. Plaintiff alleged that she was assisting in the removal of an airplane that had gone off the runway due to snowy and icy conditions. The aircraft left the runway on to a grassy area and had to be towed out. Plaintiff herself was assisting in towing the aircraft out at the time of her injury.

Plaintiff maintained that Defendant acted negligently in creating and allowing a dangerous condition and failing to display proper warning notices so that the pilot would be aware of the end of the runway in snowy conditions. In addition, Plaintiff brought a New York Labor law claim arguing Defendant had a general obligation to protect the health and safety of all employees operating in the area of the Airport. FMG represented the Airport Authority who operated the Airport.

Defendant was able to demonstrate that it was not required to erect a warning sign and the lack thereof was not a significant factor in causing the injuries that resulted to Plaintiff. Additionally, Defendant relied on the “snow in progress” doctrine. Specifically, while a storm was in progress, Defendant had no obligation to plow, sand or otherwise clean the area. Defendant did, however, choose to plow the area to make it possible for the grounded plane to be removed. As such, Defendant Airport had a duty to “not exacerbate or create a dangerous condition.” (Wheeler, 31 A.D.3d at 993) In the Court’s view, Defendant did not- they simply plowed the area to assist in the plane’s removal.

Additionally, it was ascertained that Defendant had neither actual nor constructive notice of the alleged icy conditions as this condition was allegedly present for less than one hour prior to the incident, and further, no complaints were received during that time. Lastly, it was determined that Plaintiff’s labor law claim was meritless because Plaintiff was not considered an employee of Defendant, and as such, Defendant did not have a duty to warn Plaintiff of “potentially dangerous machinery, equipment, and devices” (N.Y. Lab Law §200(2) (McKinney))

This is a notable case under New York law that touches on several vital and recurrent themes in tort law, especially as we head into the winter season. This case provides guidance when defending snow removal and “duty to warn” cases for FMG’s Tort and Catastrophic Loss Practice Section.

If you would like a copy of the Supreme Court’s opinion, please contact Paul Piantino at [email protected] or any attorney at the Newark office.

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