Third Circuit Court Adopts “Honest Belief” Defense in FMLA Case

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When an employer reasonably believes an employee may be misusing FMLA leave, evidence of why the employer came to that “honest belief” can serve as a defense to a retaliation claim under the FMLA. See Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (C.A.3 (Pa.) 2017).

In the above-mentioned case, the employer fired an employee after it believed he intentionally misused intermittent FMLA leave.  After enduring bilateral hip replacement in 2003, the employee developed arthritis that would cause severe pain, sometimes lasting for days or weeks at a time. This condition required the employee to request intermittent FMLA leave to cover any time he could not work and continued to be recertified for leave every six months. In early February of 2013, on a day the employee requested off due to his condition, he was arrested for DUI. After spending the night in jail the employee also requested leave the next day. The employee never reported this arrest to the employer and subsequently began requesting leave multiple times after that for his condition. About a year later, when a HR manager became aware of the employee’s DUI conviction, the employer investigated and noticed on certain days of requested leave the employee had corresponding court dates.

The employee ultimately was terminated for misusing FMLA leave and violating a company policy on dishonest acts. On appeal, the employee argued the employer was mistaken in their belief to fire him and instead it retaliated against him for taking intermittent FMLA leave. The Third Circuit affirmed the lower court’s decision to grant summary judgment on behalf of the employer, finding the employer had an “honest belief’ of the employee’s misuse of intermittent FMLA leave.

For more information, call our employment lawyers in Philadelphia at 215-574-0600 or contact us online. The legal team at Sidkoff, Pincus & Green represents clients in Pennsylvania and New Jersey.

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Supreme Court to Rule on Legality of “Fair-Share Fees”

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On February 26th, the Supreme Court heard arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 851 F.3d 746 (7th Cir. 2017). Although the Court will not circulate a decision until summer of 2018, commentators are speculating that Janus will succeed in overturning the precedent set in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court allowed a public employer to require its non-union member employees to pay a fee because they benefitted from the unions collective bargaining agreement with the employer. The fees were not permitted to cover any political funding whatsoever, only the proportionate costs incurred during contracting.

In this case, Mark Janus, a public employee, is challenging an Illinois state law that requires non-union members to pay a “fair share” fee to the union that negotiated on the non-members’ behalf. The “fair share” fee was enacted to cover a proportionate share of the costs the union accrued in negotiating the contract. The fee combats against “free-riding”, whereby a non-union member enjoys the benefits of the contractual work performed by a union without having to pay a fee for those benefits. Janus contends that the fee violates his First Amendment rights because the fees are a form of compelled speech and association which should be reviewed under heightened scrutiny.

The Supreme Court’s ruling could prove costly for unions in America. Invalidating the “fair share” fee could drastically reduce union funding and membership.

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

Philadelphia Court Refuses to Enforce Arbitration Provision

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On April 3, 2017, the Philadelphia Court of Common Pleas refused to uphold an arbitration provision in a Responsible Person Agreement (“RPA”) signed by a nursing home resident’s daughter, but not signed by the resident herself. Clementson v. Evangelical Manor, Civil Action No. 160601775 (C.P. Philadelphia 2017). On September 17, 2014, Plaintiff, Elsie Clementson, was a resident of Defendant Evangelical Manor’s nursing home when she suffered a serious fall, resulting in a tibia fracture. When Plaintiff was admitted to the nursing home in 2012, Plaintiff’s daughter signed an RPA, which stated that the person signing the agreement may be “the Guardian, the Agent under a Power of Attorney, or any person authorized by the Resident to serve as Resident’s Responsible Person.” The RPA also contained a mandatory arbitration provision. At the time the RPA was signed, Plaintiff’s daughter did not have power of attorney over her mother, nor was she authorized by her mother to serve as her mother’s “Responsible Person.”

Plaintiff filed her Complaint on June 17, 2016. On November 3, 2016, Defendant filed a Petition to Compel Arbitration. On December 19, 2016, the Court denied Defendant’s Petition, which it timely appealed. On appeal, the Court upheld the decision to deny Defendant’s Petition, as Pennsylvania law does not allow an agent, by his own words, to invest himself with apparent authority, as such authority has to derive from the action of the principal, not the agent. The Court ruled that Defendant failed to provide any evidence that Plaintiff was present at the time that her daughter signed the RPA, or that her daughter could sign for her. Defendant also failed to offer any evidence of actions taken by Plaintiff that would create an agency relationship.

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

Overtime and the Fluctuating Workweek Method

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fluctuating workweek

Calculating Overtime Using the Fluctuating Workweek Method Does Not Violate the Pennsylvania Minimum Wage Act

The Pennsylvania Superior Court recently resolved a case regarding the method of calculating overtime compensation under the Pennsylvania Minimum Wage Act (PMWA). In Chevalier v. Gen. Nutrition Centers, Inc., 177 A.3d 280 (Pa. Super. Ct. 2017) employees filed a class action against General Nutritional Centers (GNC) for unpaid overtime, specifically that GNC’s method of calculating overtime violated the PMWA. The PMWA provides that employees must be paid overtime at not less than 1½ times their regular rate for every hour worked over 40 in a workweek.

GNC calculated overtime compensation using the fluctuating workweek method (FWW). The FWW determines an employee’s “regular rate” of compensation for the workweek by dividing each employee’s pay by the number of hours the employee worked during the workweek. Therefore, employees’ regular rates fluctuated each week. GNC then paid employees at one-half of their regular rate for each hour of overtime worked. The employees argued that, (1) an employee’s regular rate should have been calculated using a fixed 40-hour workweek, not the fluctuating workweek method, and (2) the overtime pay should have been 1½ times their regular rate for each hour of overtime instead of one-half their regular rate

The Superior Court found that using the FWW to calculate an employee’s regular rate did not violate the PMWA, however, paying overtime of only one-half the regular rate did violate the PMWA. In support of the FWW not violating the PMWA the court mentioned that the Pennsylvania Generally Assembly borrowed the term “regular rate” from the Fair Labor Standards Act, which permitted the FWW method of calculation when the PMWA was enacted. In support of paying overtime of one-half the regular rate violating the PMWA the court cited a Pennsylvania regulation requiring employers to pay employees not less than 1½ times their regular rate of pay for all hours exceeding the 40 hours threshold. In conclusion, the FWW is permissible under the PMWA, however overtime must still be paid at 1½ times the employee’s regular rate.

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

Pennsylvania Supreme Court Rules Discharged Predecessor Law Firm Can Collect Fees from Succeeding Firm in Wrongful Death Action

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The Pennsylvania Supreme Court recently ruled that predecessor law firms who are discharged by a client can recover damages in quantum meruit from a successor law firm that takes over the case. In Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247 (Pa. 2016), the case involved a dispute between two law firms about attorney’s fees earned in a wrongful death litigation settlement. Plaintiff, Meyer, Darragh, Buckler, Bebenek & Eck law firm, (“Meyer”) brought a breach of contract and quantum meruit action against Defendant, Law Firm of Malone Middleman (“Middleman”).

In the case, an attorney named William Weiler, Jr. formally represented the Eazor estate in March 2005. Later that year, Weiler became associated with Meyer, and entered into a written employment agreement acknowledging that “any and all legal work performed by him will be deemed work on behalf of the firm.” Weiler brought to the firm the Eazor estate litigation, and along with other Meyer attorneys and staff, worked on the case over the course of 19 months. 2 years later, Weiler resigned from Meyer and agreed Meyer would receive two-thirds of attorney’s fees arising from the Eazor estate litigation. Weiler then subsequently became affiliated with Middleman. The Eazor estate discharged Meyer, and entered into a contingency fee agreement with Middleman without addressing payment or protection of attorney’s fees to Meyer. Middleman ultimately obtained settlement for the Eazor estate. Meyer filed this action claiming entitlement to two-thirds of attorney’s fees.

The court ruled that Meyer could not recover under a breach of contract claim because Middleman, as the successor firm, was not bound by the predecessor firm’s employment agreement with Weiler. However, Meyer was not deprived of its right to recover under quantum meruit the proper amount for the services which they had rendered for the litigation.

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

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.