Proposed Changes to the Minimum Required Salary for Pennsylvania White-Collar Overtime Exemptions

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On June 23, 2018, the Pennsylvania Department of Labor and Industry (“DLI”) proposed major rule changes to the Pennsylvania Minimum Wage Act (“PMWA”). The PWMA is the state version of the Fair Labor and Standards Act (“FLSA”), which creates minimum wage and overtime rules for employers.

The most significant proposed change involves the minimum salary level pertaining to the white-collar exemption. For an employer to avoid paying overtime to salaried employees, the employee must meet both the “Duties Test” and the minimum salary level. As it currently stands, the FLSA requires salary employees under the white-collar exemption to be paid at least $455 per week or $23,660 annually. The proposed regulation to the PMWA would change this minimum salary level to: $610 per week or $31,720 annually effective on the date the final rule is published in the Pennsylvania Bulletin; $766 per week or $39,832 annually effective one year after the publication of the final rule; and $921 per week or $47,892 annually effective one year later.

In addition to the proposed changes to the minimum required salary, the DLI also proposed changes to the “Duties Test”, which explains what job duties an employee must perform to qualify under the white-collar exemptions. However, the proposed rule changes do not mirror the FLSA regulations when it comes to the test and will presumedly create confusion for employers trying to comply with both the FLSA and PMWA. For example, certain exemptions such as the computer professional or highly compensated employee exemptions are recognized under the FLSA but not under the proposed change to the PMWA.

The DLI states within the proposal that these changes are needed to more closely align with federal regulations, and because the minimum salary levels in Pennsylvania have not been updated in 40 years and fail to keep pace with economic growth.

Philadelphia overtime dispute lawyers of Sidkoff, Pincus & Green are highly skilled business and employment litigators with experience representing employees with overtime claims under the Fair Labor Standards Act. Call 215-574-0600 today or submit an online contact form to arrange a consultation.  Our office is located in Philadelphia, Pennsylvania and we represent clients throughout the Philadelphia and South Jersey regions.

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PA District Court Holds that Employer Had Legitimate Nondiscriminatory Reason for Termination in Age Discrimination Case

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In Terrell v. Main Line Health, Inc., Civil Action No. 17-3102, 2018 WL 2462005 (E.D. Pa. June 1, 2018) Plaintiff, an employee at Defendant’s Hospital for thirty-five years, was terminated from her position as operating room secretary. Plaintiff alleges that her employer terminated her because of her age. Defendant countered and argued that Plaintiff was terminated for a legitimate, nondiscriminatory reason. Specifically, Defendant alleged that Plaintiff accessed information regarding a co-worker in violation of Defendant’s polices relating to patient privacy and in violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Plaintiff filed a complaint against Defendants with the Equal Opportunity Employment Commission (“EEOC”) and the Pennsylvania Human Rights Commission (“PHRC”). Defendants ultimately moved for summary judgment.

To succeed on an age discrimination claim based on disparate impact, a plaintiff must demonstrate that age “was the ‘but-for’ cause of the employer’s adverse decision.” In age discrimination cases, it is not sufficient to simply show that age was “a motivating factor” in the adverse employment action. Rather, a plaintiff must demonstrate that age was a determinative factor or “the ‘but for’ cause of the employers adverse decision.” Age discrimination may be established by direct or indirect evidence. Regardless of the method of proof, “the plaintiff retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse actions. To establish a prima facie case of discrimination in ADEA cases, the plaintiff must show (1) that the plaintiff was forty years of age or older; (2) that the defendant took an adverse employment action against the plaintiff; (3) that the plaintiff was qualified for the position in question; and (4) that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Plaintiff successfully established a prima facie case of age discrimination.

Accordingly, the burden shifted to Defendant to produce a legitimate nondiscriminatory reason for termination. Defendant then produced the evidence that Plaintiff twice accessed information regarding a co-worker in violation of Defendant’s polices relating to patient privacy and in violation of the HIPAA. Therefore, the burden went back to Plaintiff to establish the proffered reason was merely pretext.

Plaintiff did not challenge the allegation that she accessed information regarding co-workers. Rather, she argued that a factfinder could disbelieve Defendants’ articulated legitimate reason for terminating her because her “two business-related data accesses absolutely do not fall into the categories of conduct required for termination.” The Court ultimately ruled that Plaintiff failed to raise a triable issue of fact as to whether the proffered reason for her termination were pre-textual and that Defendants were entitled to summary judgment.

For more information, call our employment discrimination lawyers in Philadelphia at the Law Offices of Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

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Eastern District of Pennsylvania Rules in Favor of Store Owner in Slip and Fall Case

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In Harrell v. Pathmark, the Eastern District of Pennsylvania ruled that a store owner was not negligent in slip and fall. 2015 U.S. Dist., LEXIS 23154* (E.D. Pa. 2015). The plaintiff in this matter, Ms. Harrell, was severely injured when she slipped on a wet floor in the Philadelphia Pathmark Store.

Under Pennsylvania law, in order for a store owner to be held liable in a slip and fall action, the owner must have known about, or by the exercise of reasonable care would have discovered, a condition that involved an unreasonable risk of harm. This standard requires the plaintiff to prove that the owner either played a role in creating the dangerous condition or that the owner had actual or constructive notice of the harmful condition.

Constructive notice must be determined on a case-by-case basis because it is drawn from “the existence of facts and circumstances that a party had a duty to take notice of.” The relevant factors courts consider when determining constructive notice include: the nature of the dangerous condition; its location on the premises; its cause (or likely cause); the opportunity of the defendant to remedy the condition; and most importantly, the time elapsing between when the dangerous condition arose and when the accident occurred.” The amount of time plays such a critical role in determining notice because if the dangerous condition only existed for a very short time before the incident then, even by the exercise of reasonable care, the owner would not discover the hazardous condition.

The Court determined that Ms. Harrell was not able to provide any evidence of how the water got onto the floor, how long the water had been on the floor, or if Pathmark employees had any knowledge of the water. Furthermore, the fact that Pathmark did not follow a set cleaning or inspection schedule did not provide the sufficient evidence of constructive notice. Therefore, due to the lack of evidence presented, the Court concluded that Pathmark did not have constructive notice of the hazardous condition, and thus, was not liable for her injuries.

For more information, please call our Philadelphia business lawyers at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

PA Superior Court Analyzes Extent of Limited Immunity for Physicians under the MHPA

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On July 2, 2018 the Superior Court of Pennsylvania provided clarification to the extent of limited immunity provided to health care providers who treat mentally ill patients under the Mental Health Procedures Act (“MHPA”). Dean v. Bowling Green-Brandywine, 2018 PA Super 196 (Pa. Super. 2018). The MHPA was designed to provide limited civil and criminal immunity to “individuals and institutions providing treatment to the mentally ill.” Under the MHPA a physician providing treatment to a mentally ill person may only be found liable if they committed “gross negligence.” The claim against Bowling Green Brandywine Treatment Center (“Brandywine”) was brought by the parents of a patient who voluntarily admitted himself for treatment to deal with addiction to painkillers. Within ten days of being admitted the patient was found unresponsive on the floor of his room suffering from cardiac arrhythmia. After being transported to an emergency care facility the patient died. The parents’ medical experts opined that Brandywine committed gross negligence by failing to provide adequate care that would have made Brandywine aware that the patient was at considerable risk for cardiac arrest due to the medications in his system. The trial court held that all the doctors involved had limited immunity under the MHPA and granted a nonsuit against all defendants.

On appeal the parents argued that their son’s drug addiction was not dispositive by itself as to whether he suffered from mental illness, to which the court agreed. The court then went on to analyze whether care provided by Brandywine could be deemed to fall under the MHPA. The Superior Court found that for the first several days of treatment the patient was not classified as a mentally ill patient. However, two days prior to the patient’s death he had been seen for psychiatric care at Brandywine wherein a physician identified him as suffering from mood disorders and prescribed him medication. Consequently, even if the doctors were negligent by failing to identify the cardiac arrest risk, they were still protected by limited immunity as such error was not grossly negligent and the patient was deemed mentally ill.

For more information, call our Philadelphia business lawyers in Philadelphia and South Jersey at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Eastern District Court Rules that Uber Drivers are Not Employees under the FLSA

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On April 11, 2018, the United States District Court for the Eastern District of Pennsylvania found that Drivers working for Uber Technologies Inc.’s car service failed to show that they are employees. Razak v. Uber Technologies, Inc., 2018 U.S. Dist. LEXIS 61230, 2018 WL 1744467 (E.D. Pa., April 11, 2018). Plaintiffs filed claims against Uber Technologies Inc. (“Uber”) for violations of the federal and state minimum wage and overtime requirements. They claimed that Uber violated the Fair Labor Standards Act (FLSA), the Pennsylvania Minimum Wage Act (PMWA), and Pennsylvania Wage Payment and Collection Law (WPCL). The Court held that the Plaintiffs did not qualify as “employees” under either the state or federal statutes and granted Uber’s motion for summary judgment.

The Court found that the Plaintiffs did not bring sufficient evidence to support their burden of showing that they were “employees” as required by the FLSA. To determine whether Plaintiffs were employees, the Court assessed the facts under the Donovan factors which are: “(1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; (2) the alleged employee’s opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer’s business.” The Court’s analysis was based on the totality of the circumstances, and no one factor was dispositive in the classification of a worker as an employee or an independent contractor.

The Court found that the only factors weighing in Plaintiffs favor were the fourth “special skills” factor and the sixth “integral part factor.” However, considering the elements in totality, the Donovan factors strongly favored Plaintiffs classification as independent contractors rather than employees given their ability to create their own schedules, choose where they want to work, and that they had the freedom to attend to personal matters while not in service. Therefore, the Plaintiffs were unable to meet their necessary burden, and the Court ruled in favor of Uber in granting its Motion for Summary Judgment.

For more information, call our Philadelphia employment lawyers for Fair Labor Standards Act in Philadelphia and South Jersey at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Eastern District of Pennsylvania Rules Against Plaintiff’s Tortious Interference in Prospective Contractual Relation Claim

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In UniStrip Technologies, LLC v. LifeScan, Inc. and LifeScan Scotland, Ltd. the Eastern District of Pennsylvania determined that Plaintiff had not met its burden of proof for its claim of tortious interference with prospective contractual relation. 153 F.Supp.3d 728 (E.D. Pa. 2015). The necessary elements of a cause of action for tortious interference with prospective contractual relations are as follows: (1) The existence of a prospective between the complainant and a third party; (2) purposeful action on the part of the defendant to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual damage as a result of defendant’s conduct.

The Court found that UniStrip failed to establish the first prong of this four-factor test. The first requirement of there being a prospective contractual relationship can be satisfied by demonstration of “something more than mere hope” that a contract will be formed. UniStrip was unable to convince the Court that there was a reasonable probability that a contract would arise.  UniStrip’s claim rested on the argument that it would have engaged in contractual relations with numerous buyers but for LifeScan’s contracts with them threatening to revoke rebates and discounts if they purchased UniStrip products. UniStrip argued that LifeScan’s conduct was without any business justification and caused significant financial harm by discouraging potential buyers from doing business with UniStrip. The Court held that UniStrip could not identify a “specific business relationships suffering as a result of defendant’s interference” and thus dismissed UniStrip’s claim.

For more information, call the Philadelphia business lawyers at The Law Office of Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

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Third Circuit Splits from Other Circuit Courts in Age Discrimination Suit

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On January 10, 2017, the Third Circuit ruled in favor of a group of fired employees (“Employees”) over age 50 in an age discrimination suit under the Age Discrimination in Employment Act (“ADEA”).  Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 2017). The Employees sued Pittsburgh Glass Works LLC (“Employer”) claiming that a layoff of 100 workers disproportionately affected employees who were 50 and over. The lower court refused to allow evidence from Employees relating to the disparate impact of a subgroup of those 50 and over because it did not establish any discriminatory effect on the entire class of workers, those 40 and over, and thus was counterproductive to a claim under the ADEA. The Third Circuit reversed the lower court’s ruling and found in favor of Employees thus splitting from other circuit courts, which have found that disparate treatment of employees within the protected class is not a viable claim under the ADEA.

The Third Circuit reversed the lower court’s decision because it viewed the practical implications of the case differently, and, more importantly, it had a different interpretation of the text of the ADEA. First, the Court interpreted the ADEA as prohibiting discrimination based on an employee’s age, not on the employee being a member of the protected class of people aged 40 or older. This finding is contrary to the other circuit courts which focused on the ADEA’s protection of a protected class of people aged 40 or older, not the protection of variably aged individuals within that protected class. Second, the Third Circuit found that preventing the protection of individuals within the protected class merely due to policy reasons, such as employer liability, is equivalent to trying to amend the ADEA. Further, the Court asserted that its opinion reflects the desires of Congress as clearly stated in the text of the ADEA to protect those aged 40 and older from age discrimination by employers.

For more information, call our employment discrimination lawyers in Philadelphia at The Law Offices of Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Third Circuit Holds Computer Manufacturer Could Not Pierce Corporate Veil of Insolvent Corporate Buyer

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In Clientron Corp. v. Devon IT, Inc., 2018 WL 3293212 (3rd Cir. 2018), the Third Circuit Court of Appeals found that Appellant failed to establish under Pennsylvania law that shareholders were alter ego of Appellee and thus Appellant was not entitled to pierce Appellee’s corporate veil as reparations for a business tort. In addition, the Court held that the corporate veil could not be pierced as a discovery sanction against one shareholder to hold him personally liable for part of the judgment.

Appellant, a computer component manufacturer brought action against an insolvent Pennsylvania corporation seeking to enforce a $6.5 million arbitration award obtained in Taiwan pursuant to the Pennsylvania Uniform Foreign Money Judgment Recognition Act (“UFMJRA”). The District Court for the Eastern District of Pennsylvania declined to pierce the corporate veil to hold shareholders jointly liable thereby erasing the $6.5 million award obtained by manufacturer. The manufacturer appealed.

Although Pennsylvania law recognizes a strong presumption against piercing the corporate veil, factors weighing in favor include: “failure to observe corporate formalities, non-payment of dividends, insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant shareholder, non-functioning of other officers or directors, absence of corporate records, and the fact that the corporation is merely a façade for the operations of the dominant stockholder or stockholders.”

Appellant attempted to show that shareholders use of credit cards for personal use, loans from Appellee to individual shareholders, and money transfers to personal accounts of shareholders’ other companies amounted to a lack of adhering to corporate formalities. The Court found, however, that the evidence was insufficient because “lack of formalities in a closely-held corporation does not often have as much consequence as where other corporations are involved”. Therefore, the Court held that Appellants evidence was insufficient to overcome Pennsylvania’s strong presumption against piercing the corporate veil.

The Philadelphia business lawyers at The Law Offices of Sidkoff, Pincus & Green represent clients is all areas of business law. Contact us online or call us at 215-574-0600.

PA Court Denies Unemployment Compensation for Claimant who Engaged in Disqualifying Willful Misconduct

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On July 12, 2018 the Commonwealth Court of Pennsylvania affirmed a decision by the Unemployment Compensation Board of Review (“Board”) denying benefits to a claimant who had been terminated from his job after engaging in hostile, abusive, and violent conduct towards a co-worker. Allen v. Unemployment Comp. Bd. of Review, No. 1460 C.D. 2017, 2018 WL 3383382, at *1 (Pa. Commw. Ct. July 12, 2018). Claimant had been terminated from his position as a quality control technician after he proceeded to instigate a confrontation with a supervisor, attempted to induce the supervisor into a physical altercation while mentioning a weapon, followed his supervisor in his vehicle, and directed highly derogatory and offensive language at his supervisor. The supervisor, who also used derogatory language toward Claimant, repeatedly sought to avoid a physical confrontation with Claimant. When the supervisor reported the incident to the human resources office of their employer, Claimant attending a meeting wherein he provided his account of the incident and was subsequently terminated. The supervisor was not terminated by the employer.

Claimant appealed from the denial of benefits by the Board arguing that his employer did not treat both parties uniformly and did not fairly investigate the incident. Disparate treatment of employees by an employer is an affirmative defense by which an employee may still be eligible for unemployment benefits. The Court found that there was substantial evidence in the form of voicemails and text messages from Claimant to his supervisor demonstrating hostility and attempts to engage in violent and threatening conduct. Further the Court affirmed the discretionary ability of the Board to identify the credibility of the accounts by the parties involved in an incident. The Court held that the employer did in fact treat both Claimant and supervisor equally in spite of the supervisor not being terminated. Although both parties engaged in abusive language towards one another, the Court found that the Board did not err in finding Claimant’s conduct threatening and indicative of an attempt to engage in physical violence. Precedent in Pennsylvania has established that simply because one party has been terminated for willful misconduct while other involved parties have not been terminated for the same or similar misconduct is not sufficient to establish disparate treatment. Therefore, Claimant’s conduct was found to have been willful misconduct which disqualified him from being eligible for unemployment compensation benefits.

For more information, contact the Philadelphia employment lawyers at The Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Supreme Court of Pennsylvania Severs Flat Deduction from the Pennsylvania Revenue Code

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In Nextel Commc’n of the Mid-Atl. Inc. v. Commonwealth, 171 A.3d 682 (Pa. 2017), the Supreme Court of Pennsylvania held that the Net-Loss-Carryover Provision (“NLC”) in the revenue code was prohibited as applied to corporate taxpayer by the Uniformity Clause but severing the $3 million dollar flat dedication from the provision was the appropriate consequence. In 2007, when the case began, the Pennsylvania Revenue Code provided that “a corporation could carry over losses as deductions equal to the greater of 12.5% of the corporations taxable income or $3 million. As a result, a business that had a net income less than $3 million was paying no corporate income tax while larger businesses were paying hefty corporate income taxes. Because the NLC was structured to assess a corporation’s tax liability on the basis of the value of a corporation’s taxable income, in operation, the NLC enabled the majority of corporations with taxable income (98.8% of eligible companies) to avoid paying any taxes at all in 2007.

The Court determined that the NLC was unconstitutional as written because of its inclusion of the $3 million flat deduction, the Court saw three available options: “(1) sever the flat $3 million deduction from the remainder of the NLC; (2) sever both the $3 million and 12.5% deduction caps and allow corporations to claim an unlimited net loss—the remedy chosen by the Commonwealth Court majority; or (3) strike down the entire NLC and, thus, disallow any net loss carryover.” Out of the three options available, the Court determined that severing the $3 million flat deduction from the NLC was the best option. Therefore, small corporations will not be able to deduct carried-forward operating losses from their taxable income.

For more information, please call our Philadelphia business lawyers at the Law Office of Sidkoff Pincus & Green at 215-574-0600 or contact us online.

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