Pennsylvania Employee Terminated for Legitimate Reasons Despite Claims of Hostile Work Environment and Retaliation

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On February 13, 2018, a jury found in favor of a defendant employer against a plaintiff alleging hostile work environment and retaliation. In Johnson v. Keystone Quality Transp. Co., Johnson, a former employee of Keystone working as a paratransit van driver, alleged hostile work environment and retaliation after she was terminated. No. 2:16-cv-06603-GJP. Johnson alleged claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. (“Title VII”) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951, et. seq. (“PHRA”).

According to the Complaint, while working at Keystone, Johnson’s supervisor began sexually harassing and assaulting her, including sending inappropriate pictures of himself and groping her more than once. Once Johnson reported the harassment, the supervisor was terminated by Keystone for his actions. However, about a week later, Plaintiff was suspended and ultimately fired. In her suit, Johnson alleged she was terminated in retaliation for reporting the harassment.

Keystone successfully rebutted Johnson’s claims by proving that Johnson’s suspension was a result of taking the wrong vehicle and preventing the use of another vehicle as she had the set of car keys on her. Keystone argued that after the suspension was over, Johnson was not terminated, but rather she abandoned her job, as she failed to come back to work. Weighing the facts of the case, a jury determined there was no sexual harassment or retaliation by Keystone against Johnson.

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

Sixth Circuit Rules Discrimination Against Transgender/LGBTQ Employees Violates Title VII

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transgender/lgbtq discrimination

On Wednesday, March 6, 2018, the Sixth Circuit Court of Appeals held that discrimination against transgender/LGBTQ employees is discrimination based on sex, a violation of Title VII of the Civil Rights Act of 1964. In Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., the employee, born biologically male, worked as a funeral director for a corporation that operates Michigan funeral homes. 2018 WL 1177669, at *1 (C.A.6 (Mich.), 2018). The employee was terminated soon after informing the owner of the funeral home that she planned to transition and would represent herself as a woman. After receiving the employee’s complaint, the EEOC investigated the allegations of sex discrimination and learned in addition that the funeral home had in place a discriminatory clothing policy, providing males with clothing adhering with the dress codes, while woman received no such benefit. The EEOC filed suit on behalf of the employee, alleging violations of Title VII based on the termination of the employee and the discriminatory clothing policy.

The Sixth Circuit ultimately found in favor of the EEOC on the unlawful discrimination claim, holding that firing an employee “because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.” Furthermore, the Court determined that the funeral home could not use the Religious Freedom Restoration Act as a defense because there would be no substantial burden to their religious exercise by continuing to employ the individual.

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

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Pennsylvania Property Case Heads to the Supreme Court

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On March 5, 2018, the Supreme Court of the United States granted a Petition for Writ of Certiori to review Knick v. Scott Township, a Pennsylvania case addressing the procedure a property owner whose land was taken by the government under the 5th Amendment must follow prior to filing in federal court, and determine whether it should reconsider its holding in Willamson County Regional Planning Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). In Williamson, the Supreme Court ruled that a property owner filing a claim against the government for taking property without just compensation cannot file a case in federal court until he or she has first gotten a “final decision” from the appropriate state or local regulatory agency and has “exhausted” all possible remedies in state court.

In Knick, Plaintiff Rose Mary Knick lives on 90 acres of land in rural Pennsylvania. In 2012, the town in which Knick’s property is located passed an ordinance requiring all owners of cemeteries to provide public access to those sites during daylight hours. The town alleged that this ordinance applied to a private cemetery it contended was on Knick’s land. Although Knick sued the township in state court, the court declined to rule because the town had withdrawn its notice of violation and agreed not to enforce the ordinance against her. Knick next appealed in federal court, but the Middle District of Pennsylvania dismissed her claims for failure to exhaust all of her remedies in state court. On appeal, the 3rd Circuit ruled in favor of the Township.

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

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Third Circuit Holds that Employee’s Anti-Vaccination Beliefs were not Religious

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The United States Court of Appeals for the Third Circuit recently affirmed the opinion of the District Court that a medical center employee’s anti-vaccination beliefs were not religious in nature. The employee had been terminated for refusing to be vaccinated against the flu and claimed that his termination constituted religious discrimination. His case was dismissed by the District Court. The Court found that although his beliefs were sincere, they were not religious in nature and not protected by Title VII.  This determination was affirmed by the Third Circuit.

Title VII of the Civil Rights Act of 1964

Under Title VII, it is unlawful to terminate an employee because of their religion as all adverse employment action based on a person’s religious affiliation is prohibited by the Act. Under the statute, religion encompasses belief, unless an employer can show that they are unable to reasonably accommodate their observance without undue hardship.

The legal standard, with respect to the employee’s personally held beliefs, is whether they addressed the fundamental questions having to do with deep and imponderable matters, and whether they are comprehensive in nature and accompanied by certain formal and external signs. When discussing his own beliefs, the employee in this case stated that one should not harm their own body, that he believed the flu vaccine did more harm than good, and that bowing to the medical center’s policy would violate his conscience as to what he believed was right and wrong. Because his beliefs did not meet the threshold set by the standard, the Court ultimately found that his beliefs were not religious. The Court noted that anti-vaccination beliefs could be part of a broader religious faith, in which case, refusal might be protected.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Victims of Religious Discrimination

If you suspect that you have suffered an adverse employment action because of your religious beliefs, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. may be able help. To discuss your case, call us today at 215-574-0600 or contact us online. Our legal team handles all types of employment related litigation.

Court Rules Massage Therapy can be Covered by Workers’ Compensation

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Many workers who have been injured on the job could benefit from massage therapy, depending on the nature of their condition. Passive modalities like massage therapy can save insurance companies extensive costs associated with more invasive treatment. However, many carriers view massages as an unnecessary luxury and not a proper medical treatment. Recently, the Commonwealth Court ruled that massage therapy can be covered under certain conditions.

Massage therapy has been shown to promote healing by stretching damaged tissues, reducing inflammation, and breaking down muscle adhesions. These can aid in the healing process. In the State of Pennsylvania, massage therapy has not been recognized as a covered medical treatment.

Schriver v. Workers’ Compensation Appeal Board

However, in late 2017, the Court provided a roadmap as to how injured workers could be reimbursed for expenses accrued for massage therapy.   In the case of Schriver v. Workers’ Compensation Appeal Board, an employee injured his back while working at the Department of Transportation.  The injury occurred nearly 40 years ago, in 1978. Since the accident, he had been receiving treatment from a general practitioner and a chiropractor.  The chiropractor referred the patient to massage therapy sessions once a month, priced at $60 per session, which the claimant paid himself.

Eventually, the injured worker sought reimbursement for the massage therapy, which was denied. He subsequently filed a petition, which culminated in two hearings.  A judge ultimately directed the employer to reimburse the claimant, but the Workers’ Compensation Appeal Board reversed the decision, and the claimant appealed to the Commonwealth Court.

He argued to the Court that his treatment was related to the work injury, and his licensed chiropractor had referred him for the treatment. The act mandates payment for services by a health care provider. This term has been defined to include individuals licensed by the commonwealth to provide health care services, or their agents.

Moran v. Workers’ Compensation Appeal Board

The court then ran through an extensive analysis of case law to illuminate the issue. In one prior case, the Court held that vocational experts are not licensed, therefore referrals to those practitioners should not be reimbursed by the employer. Another case set forth that massages should not be reimbursed when performed by an unlicensed masseur, even with a prescription. However, in the case of Moran v. Workers’ Compensation Appeal Board, the court ruled that massages could be covered when performed by a licensed nurse, as they are considered a health care provider under the terms of the act.

In Pennsylvania, the legislature passed the Massage Therapy Law in 2008.  This law provided licensure for massage therapists, but specifically states that a license does not automatically render treatment reimbursable under the Workers’ Compensation Act. In the case at bar, the claimant’s massage therapy was directed by his chiropractor, and the masseur was licensed.  On these grounds, the Commonwealth Court found that the employer was liable for reimbursing the injured employee.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Handle all Types of Employment-Related Claims and Appeals

The experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. are available to answer questions about your case. To learn more about how we can help, call us today at 215-574-0600 or contact us online. Our offices are centrally located in Philadelphia, and we serve clients throughout Pennsylvania and New Jersey.

Court Dismisses False Claims Against CVS

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The Third Circuit Court of Appeals has affirmed the decision to dismiss a whistleblower action against CVS Caremark. The Court found that the evidence was insufficient to prove that CVS knew Medicare Part D sponsors were intentionally submitting false information about costs to Medicare and Medicaid.

Anthony R. Spay is a former pharmacist who co-founded a company that audits pharmacies. In the whistleblower action, Spay alleged that Medicare Part D sponsors intentionally submitted false information about costs to the government during the reconciliation process. Specifically, Spay says these sponsors populated prescriber ID records with falsified IDs, which they claimed were used to replace ID data that was entered in error.  According to Spay, as a result of these falsified submissions, the government paid these sponsors more than they were entitled to.

A panel of three appellate judges ruled that the government was aware of the industry practice of using falsified IDs, yet paid the claims and never sought repayment from CVS Caremark. According to Third Circuit Judge Theodore McKee’s opinion, CVS could not be held liable for making false claims because Medicare and Medicaid were aware of the practice. Medicare Part D sponsors are companies that sell prescription plans and enter into subcontracts with pharmacies like CVS.

The Court’s decision was expressly informed by the government knowledge inference doctrine. Pursuant to this doctrine, if the government knows about the alleged misconduct, then it is already aware of the false claims and does not need assistance from private whistleblowers to identify them.  Although the Court affirmed the dismissal of the case, it disagreed with the trial court on its interpretation of that doctrine as applied to the facts at bar. The Third Circuit itself discussed the issue in depth in 1999, stating in Cantekin v. University of Pittsburgh that if the government was aware of the alleged false claims yet took no action, then any private suit was likely motivated by the sizable damages award promised to whistleblowers under the law.

However, the Third Circuit found that the doctrine was inapplicable here because CVS was unaware that the government knew about the false claims. The Court found that there was no evidence of tacit approval from the government to CVS Caremark of the stopgap industry practice.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Provide Confidential Consultations to Whistleblowers

If you have knowledge of false claims being submitted to the government, schedule a consultation with the Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. today. Our legal team represents clients in qui tam actions and whistleblower claims under the False Claims Act in Pennsylvania and New Jersey. Call us today at 215-574-0600 or contact us online to schedule a confidential consultation.

Hearst Corporation in Unpaid Intern Lawsuit

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Approximately five years after interns filed a lawsuit against Hearst Corporation, the Second Circuit Court of Appeals has ruled that the company did not systematically exploit interns by having them perform entry-level work without pay. The interns claimed that Hearst Corp. violated federal and state law when it declined to pay thousands of interns.

Internship vs Entry-Level

The lead plaintiff, Xuedan Wang, alleged that 3,000 interns at Hearst’s numerous publications, including Elle, Marie Claire, Cosmopolitan, and Seventeen magazines, were exploited in violation of the Fair Labor Standards Act (FLSA) and New York state laws. The FLSA and state laws set forth specific requirements for internships, which distinguish them from entry-level jobs. To be exempt from the minimum wage requirements, employers must ensure that internships benefit the interns, among other things.

According to Second Circuit Judge Dennis Jacobs, the question before the Court was whether Hearst Corp. offers bona fide for-credit internships, or whether it relied on student labor to avoid compensating entry-level employees. The key case that speaks to the legal standard is Glatt v. Fox Searchlight Pictures Inc. In this case, the Court considered whether the intern or their employer was the primary beneficiary of the relationship. If the employer is the primary beneficiary, it cannot be deemed an internship, and is subject to the minimum wage requirements set forth under the Fair Labor Standards Act.

In the Hearst Corp. case, Judge Jacobs found that Hearst made it clear to the interns that they would not be paid, and that the internships provided training similar to those provided in an educational environment. The students were also told that the internships were tied to a formal education program.

Distinguishing the Difference

The plaintiffs argued that internships should not include menial and repetitive tasks, with little supervision or guidance.  These, according to the plaintiffs, were tasks more likened to employment than an educational internship. However, the Judge found that many useful internships are designed to correct the impression that work is just as rewarding and fulfilling as school. Repeating administrative and organizational tasks, she ruled, can provide useful skills such as how to be more organized and focused in a professional setting. Plaintiffs can still appeal this ongoing ruling to the United States Supreme Court.

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Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C., we handle all types of employment litigation, including claims that an employer has violated the Fair Labor Standards Act, or local laws, by failing to pay overtime, meet minimum wage requirements, and more. To learn more about how we can help you and to schedule a confidential consultation, call us today at 215-574-0600 or contact us online. We represent clients in employment litigation in Pennsylvania and New Jersey.

Star Trek and Dr. Seuss Mashup Copyright Suit

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ComicMix is currently embroiled in copyright and trademark litigation with Dr. Seuss Enterprises stemming from a crowd-funded book project called Oh, The Places You’ll Boldly Go! The project originated on the crowd-funding website Kickstarter. ComicMix intended to create a mashup of Dr. Seuss and Star Trek, and raised thousands of dollars to fund the project.

The lawsuit was filed at the end of 2016, and a federal court judge has recently ruled that the suit can proceed. Earlier, a U.S. District Court Judge had dismissed the trademark claims, allowing only the copyright claims to proceed. The claims were subsequently amended and are proceeding along with an additional claim for unfair competition.

This case, according to the District Court Judge, addresses an important and timely question about the new mashup culture, wherein two unique and independent creative concepts are mashed together. Courts are struggling to decide how this culture squares with the legal doctrine of nominative fair use. This doctrine allows for the use of another’s trademark for purposes such as commentary, criticism, comparative advertising, or parody. The legal standards for what constitutes fair use was articulated in 1992 after a number of newspapers used toll numbers to conduct polls on the popular band, The New Kids on the Block.

In trying to figure out whether ComicMix’s project constitutes nominative fair use, the Court considered whether the product is readily identifiable without the use of the trademark, and whether ComicMix falsely suggested that the project was sponsored by Dr. Seuss Enterprises. The trademark at issue was the title used and the font style.

The question still pending as the litigation proceeds is whether the use of the title, which the original use has sold over 650 million copies, was more than reasonably necessary. The most pressing issue in the case is that the mash-up used the exact same font as the Dr. Seuss original, even imitating exactly the unique shape of the original exclamation point. Because ComicMix was unable to establish fair use, the litigation was allowed to proceed to jury.

The licensing program of Dr. Seuss Enterprises currently allows other authors to publish books based off of its existing books and use of its characters. However, it does not have a licensing program that addresses the mash-up market. The company has stated if it decides to license mash-ups, it would be based on a new licensing program, not similar to or derived from its existing one.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in All Types of Intellectual Property Claims

To schedule a consultation with the Philadelphia trademark lawyers at Sidkoff, Pincus & Green P.C., call us today at 215-574-0600 or contact us online. We represent clients throughout Pennsylvania and New Jersey in all types of business litigation, including fair use, trademark, copyright, contract, tortious interference, and unfair competition claims.

ACLU Settles Cases Against City of Philadelphia

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The Pennsylvania Chapter of the American Civil Liberties Union (ACLU) has settled two lawsuits against the city of Philadelphia filed by activists who claimed police retaliated against them for filming them in public. The City agreed to pay plaintiffs a combined settlement of $250,000, including attorney fees.

One of the litigants was a member of a police watchdog group. She alleged that she was pinned against a pillar by an officer just after filming his arrest of a protester in 2012 at a demonstration against fracking held outside the Philadelphia Convention Center. The other litigant was a student at Temple University. He alleged that a police officer saw him photographing police breaking up a house party across the street, and asked him if he liked taking photos of grown men. He was then taken into custody after refusing to leave. The police confiscated his cell phone and cited him for obstructing a public passageway. The charges were eventually dismissed because the police officer did not report to testify in court.

According to the ACLU, these two lawsuits were part of a series of five suits filed against the city for similar retaliatory police conduct. The cases settled several months after a federal appellate court ruled that recording police in public is a first amendment right. The ACLU believes the ubiquity of smartphones is one of the best tools for police accountability. Since 2012, the City of Philadelphia has had a policy that establishes very clear guidelines for allowing the public to record officers while they are engaging in their official duties. The policy was instituted after the federal Department of Justice (DOJ) weighed in on the issue, five years before the Third Circuit Court of Appeals recognized recording officers was a first amendment right. The policy prohibits officer retaliation against activities that are protected by the First Amendment.

The Third Circuit Judge acknowledged that we ask much of our police, yet as public officials engaging in public duties, the First Amendment requires them to allow being recorded in the interest of transparency. The Court noted that these recordings would often benefit the officers themselves. There are limits to when recording can be done, according to the Court’s opinion, in other words, the right is not absolute. If a recording interferes with an ongoing investigation or exposes a confidential informant, it is severely restricted or banned altogether.

Philadelphia Civil Rights Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in All Types of Civil Rights Violations

Philadelphia civil rights lawyers at Sidkoff, Pincus & Green P.C. regularly appear in both federal and state courts. We are familiar with the local rules of Pennsylvania and South Jersey courts, including discovery rules, pleadings procedures, brief timelines and formatting, trial practice, motion practice, settlement negotiations, and more. For more information, or to schedule a confidential consultation, call us at 215-574-0600 or contact us online today.

Court Defines Supervisor Under Title VII

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The United States Court of Appeals for the Third Circuit recently issued a precedential opinion interpreting what it means to be a supervisor in a hostile work environment case. The Court found that a supervisor is someone who controls a sizeable amount of the hours employees work, and/or someone who determines whether employees will be assigned work.

Moody v. Atlantic City Board of Education

Employee Michelle Moody was hired by the Atlantic City Board of Education (BOE) to serve as a substitute custodian in 2011. Moody alleged that she was unhappy with the unsteady nature of her employment, as she was only gainfully employed when the primary custodian could not work. She wanted to work more hours and raised her concerns with a member of the BOE, who suggested that she speak to the custodial foremen of different districts. The BOE member told her that these foremen were responsible for delegating authority to select which substitute custodian would fill in at schools in their respective districts.

Moody then contacted 10 foremen from different school districts, including one named Maurice Marshall. Marshall allegedly began harassing Moody immediately after she started work. According to the Court’s opinion, he allegedly suggested that he would give her more work if she performed sexual favors for him. After a litany of disturbing incidents, including explicit text messages, unwanted sexual contact, and unwanted visits to her home, Moody succumbed to Marshall’s unwanted advances. Although she never received more work hours, after reporting Marshall, her work hours steadily declined.

Determining the Meaning of Supervisor

Moody filed a claim in the District of New Jersey, which was ultimately dismissed on grounds that Marshall was not her supervisor, and that she suffered no tangible adverse employment action. The Third Circuit reversed that decision after an extensive review of Marshall’s role in assigning work to other employees. The Court examined a U.S. Supreme Court precedent that interpreted the term of supervisor. Ultimately, the Third Circuit determined that Marshall had the power to decide whether Moody worked at all and had authority to set her hours, falling under the Supreme Court’s definition of a supervisor. The court also found that during the times Moody was chosen to fill in at Marshall’s school, he was her immediate supervisor.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Handle All Types of Sexual Harassment and Discrimination Employment Claims

If you have suffered adverse employment action due to sexual harassment or discrimination, you may be entitled to compensation. To arrange a consultation with one of our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C., call us today at 215-574-0600, or contact us online.