Philadelphia Employment Lawyers: Sexual Orientation Discrimination

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In a recent groundbreaking ruling, a Pennsylvania district court found that discrimination based on someone’s perceived sexual orientation falls under the protections of Title VII of the Civil Rights Act of 1964. The individual involved in the case was a homosexual man employed as a telemarketer by Scott Medical Health Center. The lawsuit alleged his manager made offensive and unwanted comments to him about his sexual orientation several times a week. He further claims that he was asked explicit questions and was exposed to homophobic slurs. The man claims he reported the conduct to the health center’s president, but no action was taken to stop the harassment. Ultimately, the man says that he was constructively discharged because the treatment he endured created a hostile work environment.

The defendants moved to dismiss the claim on the grounds that perceived sexual orientation was not protected under Title VII.  However, the court ruled against defendants, finding no meaningful difference existed between sexual orientation discrimination and discrimination because of sex. The court noted that sex stereotyping included assumptions about how a person’s sexuality should conform to their sex and gender. The court ultimately likened the plaintiff’s experience to that of a female employee who is told to dress more femininely, or wear make-up and jewelry in order to achieve promotion. The court cited recent decisions across the U.S. Courts that have increasingly been finding that sexual orientation is a Title VII protected trait. The court also drew from the Supreme Court opinion legalizing same-sex marriage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Sexual Discrimination and Sexual Harassment Claims

If you have suffered an adverse employment action such as failure to hire, termination, or denial of a promotion on the grounds of your sexual orientation or because of your gender, you may have a valid discrimination claim. Philadelphia employment lawyers at Sidkoff, Pincus & Green will fight back against injustice. We seek maximum compensation for damages suffered as a result of discrimination. To learn more about how we can help you, call us at 215-574-0600 or contact us online today.

Philadelphia Whistleblower Lawyers: The False Claims Act 

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The False Claims Act is a federal law that holds people and companies liable for defrauding government programs. Pursuant to this Act, private citizens can sue those that commit fraud against the government. These cases are referred to as “qui tam” cases, because they are brought under the qui tam provision of the False Claims Act. The Act provides for treble (triple) damages, and provides whistleblowers with awards of 15 to 30 percent of the money recovered. The Department of Justice (DOJ) recently announced that 2016 was the third highest recovery year in the history of the False Claims Act.

The DOJ issued a press release stating that they obtained close to $5 billion in settlements and judgments for cases where persons or companies defrauded the federal government in 2016. More than 50 percent of these recoveries were brought under the qui tam provisions of the False Claims Act. The whistleblowers recovered a staggering $519 million in 2016 alone.

Most of the money recovered in 2016 came from the health care industry. The next common sector where recoveries were made was the financial sector, largely relating to housing and mortgage fraud. Procurement fraud, fraud associated with federal education funds, and customs fraud followed close behind.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green P.C. Counsel Clients About Whistleblower Protections

Whistleblowers may be entitled to confidentiality and protection against employer retaliation. The highly-experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green can advise you of your rights, and help you determine whether you are eligible for compensation under the qui tam provisions of the False Claims Act or under other state and federal laws. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Award for Penn State Whistleblower

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Michael McQueary, a former Penn State University assistant football coach, was recently awarded an additional $5 million by a Pennsylvania judge.  Judge Thomas Gavin of Centre County, Pennsylvania found that McQueary met the state law definition of a whistleblower.  He further found that Penn State wrongfully terminated his employment in retaliation for the whistleblowing.  The court ordered that McQueary be compensated for lost wages, reputational damage, and humiliation.  Significantly, the judge stated that had Penn State publicly recognized McQueary for stepping forward, it would have helped reduce the public shame the school caused him by firing him.

During the eight seasons he served as an assistant coach at Penn State, McQueary coached wide receivers for head coach Joe Paterno.  In 2001, he allegedly witnessed retired assistant coach Sandusky sexually assaulting a young boy.  This was ten years before the scandal was brought to light and Sandusky was charged.  In 2012, Sandusky was found guilty of molesting 10 boys.  He was sentenced to 30 to 60 years in prison.

McQueary also claimed in his lawsuit that former Penn State President Graham Spanier defamed him during a 2011 public statement.  The jury awarded McQueary $7.3 million in compensatory and punitive damages as a result of the defamation and misrepresentation.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green Fight for Employees Who Stand Up to Injustice

Under the law, a whistleblower may be a person who exposes illegal or wrongful activity.  In order to encourage people to step forward to report such activity, there are certain protections in place for whistleblowers under the law.  If you suspect that your employer has retaliated against you for reporting illegal or wrongful activity, you may be entitled to compensation under the Pennsylvania Whistleblower Law or other relevant statutes.  To discuss your situation with one of the experienced Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Business Lawyers: Uber Arbitration Appeal

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When patrons of Uber’s ridesharing service open the Uber app, they are taken to a registration screen that advises them that by using the app, they are consenting to Uber’s terms of service. These terms can be accessed by a hyperlink. One of these terms binds users to arbitration. After some of Uber’s customers filed an antitrust lawsuit against the company, Uber tried to hold them to the arbitration clause. But Federal District Court Judge Jed Rakoff looked at Uber’s registration screen and determined that it did not do a good enough job of ensuring that customers knew what they were signing. Specifically, Rakoff found that Uber did not give its customers fair warning that by using their service, they agree to waive their right to sue Uber in court.

This recent Uber arbitration appeal is part of a trend in litigation, whereby consumers are questioning the validity of their “consent” to hidden terms and conditions on their mobile phone screens. Generally, for consent to be valid, consumers must actively click on a button that says, “I agree,” or something similar. This is referred to as a clickwrap contract. Courts in some circuits are reluctant to honor any other type of agreements.

The Age of the Internet Waiver

In his ruling, Judge Rakoff noted that the right to a jury trial has been one of the most precious and fundamental rights afforded to citizens. Yet, in the world of the Internet, consumers are all deemed to have regularly waived this right on a daily basis and given up our access to courts altogether. He emphasized that many people are unaware of these conditions, and even if they are, they have no real ability to negotiate.

Uber appealed Judge Rakoff’s ruling to the 2nd U.S. Circuit Court of Appeals. Judge Rakoff agreed to stay the underlying antitrust class action until the 2nd Circuit weighs in on the validity of consumer consent to Uber’s arbitration clause. If the 2nd Circuit Court reverses Judge Rakoff’s decision, the antitrust class action will proceed to arbitration.

There has been some criticism to Judge Rakoff’s opinion. The Internet Association warned that his opinion unsettled existing case law. Members of the Internet Association include some of the largest online retailers in the United States. They also claim that consumers have become accustomed to this type of mobile contracting (with hyperlinked terms of service), and know what to expect.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Counsel Clients on All Aspects of Arbitration

Philadelphia business lawyers at Sidkoff, Pincus & Green have experience litigating and counseling clients in all facets of arbitration. From defending arbitration clauses, to challenging arbitration clauses in class action lawsuits on behalf of consumers, we have extensive experience with all aspects of business litigation. We also routinely litigate arbitrations and have a track record of achieving our clients’ goals. To schedule a consultation, call us at 215-574-0600 or contact us online today.

 

 

Philadelphia Whistleblower Lawyers: Enforcement Action Leads to $3.5M Award

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A whistleblower was recently awarded approximately $3.5 million by the Securities and Exchange Commission (SEC) for shining a light on wrongdoing that led to a successful enforcement action. According to the SEC – which did not name the whistleblower nor identify the wrongdoer – tips from whistleblowers have led to the recovery of $874 million in financial remedies since the SEC whistleblower program was created in 2012.

Many Americans remain unaware of the financial incentives available to conscientious employees who report their employer’s fraudulent behavior. Whistleblower protection extends to any worker who alerts government regulators to a variety of wrongdoing, including violations of the False Claims Act, the Clean Air Act, the Dodd-Frank Act, the Occupational Safety and Health Act, and many other federal statutes. A whistleblower is granted complete confidentiality by the government when the information disclosed leads to a successful enforcement action. Moreover, if monetary sanctions issued against a wrongdoer exceed $1 million, a whistleblower is entitled to an award ranging between 10 percent and 30 percent of the sanction.

Proceeding as a Whistleblower in Pennsylvania

Whistleblowers must proceed with caution and limit discussions of their concerns with coworkers. Instead, if an employee has a good faith belief that their employer has defrauded the government or consumers, they should first seek counsel from a lawyer who will ensure that whistleblower protections are in place before regulators are contacted. An employer who suspects that a member of their workforce is in talks with the SEC or other government officials may attempt to short-circuit an investigation by taking retaliatory action against a whistleblower. Fortunately, pursuant to the federal Whistleblower Protection Program, when a whistleblower’s actions lead to an enforcement action, the whistleblower is entitled to reinstatement to their previous position in addition to the aforementioned monetary award.

Philadelphia Whistleblower Lawyers at Sidkoff, Pincus & Green, P.C. Offer Reliable, Trustworthy Representation

Philadelphia whistleblower lawyers at Sidkoff, Pincus & Green P.C. understand the concerns of conscientious employees in their effort to shed light on wrongdoing by an employer. If you or a loved one has information relating to a potential whistleblower claim, call 215-574-0600 or contact us online to learn more about how we can help. At our Philadelphia offices, we proudly serve whistleblower clients throughout Southeastern Pennsylvania as well as South Jersey.

Philadelphia Business Lawyers: Pennsylvania Revenge Porn Law

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In 2014, Pennsylvania joined 25 other states in passing what is commonly known as a “revenge porn” law. 18 Pa.C.S.A. § 3131. The new law prohibits unlawful dissemination of intimate images which depict a current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct with the intent to harass, annoy or alarm that individual.

The law makes it a crime for anyone to post explicit photos of a former partner online or send them to others without that partner’s consent. Violators could be sentenced to a year in prison and fined $5,000 if the victim is an adult, or five years in prison with a $10,000 penalty if the victim is a minor.

Difference between Invasion of Privacy Law and Revenge Porn Law

Pennsylvania already has an Invasion of Privacy Law which makes it a crime for someone to take nude photos of another individual without that individual’s consent. 18 Pa.C.S.A. § 7507.1. First time offenders of this law could be sentenced to a year in jail and a $2,500 fine.

The difference between the Invasion of Privacy Law already on the books and Pennsylvania’s new Revenge Porn Law is that in the case of revenge porn, a partner had given consent for the photographs to be taken of him or her. However, the Revenge Porn law is designed to curb the release of intimate photographs that, despite being taken with a partner’s consent, were ultimately disseminated to others, such as through email, or posted on the Internet, without that partner’s consent.

Opportunities for Civil Recourse

Victims of revenge porn searching for compensation may be able to find it through the civil legal system, but may face some challenges in doing so. If a victim does not know who released the photo, or a website is protecting the identity of an uploader, it will be difficult to name a defendant in a lawsuit. Victims of revenge porn will also have trouble pursing a claim against websites upon where the photo is published, because under federal law, internet publishers or websites are not liable for content posted by third-party users; therefore, a website cannot be held liable for a photo or video posted by a user. However, a website that urges users to submit the type of content the victim’s claim involves can sometimes deemed as engaging in the content as a co-developer or editor, and therefore open them up to potential liability.

While there are challenges, there are ways for a victim to obtain redress. One possible avenue is a claim for copyright infringement. The Digital Millennium Copyright Act (DMCA) permits victims of revenge porn to file a report for copyright infringement when they see that their photo is being distributed online, and leads to the issuing of a “takedown notice” to an internet service provider or hosting company. This notice expedites the removal of a photo from a website. A lawsuit for copyright infringement can also provide the opportunity to collect damages. However, there is a limitation with this avenue of recourse in that the copyright belongs to the person who took the photo; therefore, a victim who had a photo taken of them is not the copyright holder and will not be able to pursue this claim unless he or she can obtain copyright ownership.

Other causes of civil action include intentional infliction of emotional distress, private disclosure of public facts, intrusion upon seclusion and identity theft.

For more information, call Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Prompt Payment Law Decision

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Prompt Payment Law Does Not Always Mandate Bad Faith Awards

In an important decision regarding public contracts, The Supreme Court of Pennsylvania reversed a Commonwealth decision automatically awarding attorney fees and a one percent penalty to contractors whose payments were breached in bad faith. The city of Allentown, Pennsylvania (Allentown) contracted A. Scott Enterprises (Scott) to complete a paving project.

After contaminated soil was discovered at the job site, the project was delayed. Allentown and Scott could not come to an agreement over the additional fees incurred because of the project’s delay and the contaminated soil. Scott then filed suit to recover losses on the delayed project. They were awarded $927,299. The jury found that the city breached its contract and acted in bad faith by refusing to pay Scott for the delays and damaged contract.

Though Scott received damages, they were not awarded attorney fees, the monthly one percent penalty, or interest. Scott then took the case to the Commonwealth Court which held that when the jury found that Allentown acted in bad faith, fees and penalties were mandated by law.

Allentown took the case to the Pennsylvania Supreme Court, arguing that the use of “may” in the Prompt Payment Law indicates that the award of attorney fees and penalties is subject to review on a case by case basis. That said, in most cases, public owners found to act in bad faith are required to pay public contractor’s attorney fees and penalties.

Does This Ruling Permit Exceptions?

Allentown has to take the case to trial court, where they may still be required to pay Scott penalties. The Supreme Court decision simply opened the door for exceptions to the rule.

Only in rare cases, very good reasons will exempt owners from paying out those awards. The Procurement Code will most likely prevail in most cases, requiring owners to pay their contractors on time and as agreed upon.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Tackle Tough Business Litigation

Philadelphia business lawyers at Sidkoff, Pincus & Green represent clients in a variety of business disputes. We handle cases involving OSHA investigations, wrongful termination, discrimination, overtime pay disputes, trademark infringement, business torts, and FTC cases. Call our Center City Philadelphia offices at 215-574-0600 or complete our online contact form to discuss your case.

Philadelphia Employment Lawyers: Liability for Unpaid Construction Work

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The Pennsylvania Supreme Court recently issued a ruling that limits a contractor’s ability to sue for unpaid work under the Pennsylvania Contractor and Subcontractor Payment Act, referred to as CASPA. The Court held that contractors and subcontractors do not have a right to sue the agents of a property owner if they are not paid for work that they have performed.

In this case, Robert DeBolt, the majority shareholder of a development company, verbally requested that contractor Scungio Borst & Associates (SBA) perform additional work on an ongoing project. The additional work cost an estimated $2.6 million. After the developer failed to pay SBA, SBA sued the development company, another LLC property owner, and DeBolt for $1.5 million. At trial, SBA was awarded a $2 million judgment, to be paid by the property owner and development company. DeBolt, the company’s agent, was not held liable. The Superior Court and Supreme Court upheld the ruling.

Pursuant to the relevant provision of CASPA, the property owner is liable for breach of contract. SBA argued that CASPA defines “property owner” as including “agents of the owner acting within their authority.” But the court disagreed. Justice Debra Todd, on behalf of the court, said that this definition was ambiguous, and looked at the purpose and intent behind the statute to resolve the ambiguity.

The Court found that the overarching purpose of CASPA is to provide a remedy for contractors, but also to avoid some of the flaws inherent in traditional contract lawsuits. For example, without CASPA, a contractor may have to pay their own litigation, or wait until the project was completed before they could sue for payment on a theory of breach. Because an agent is not a party to the contract, SBA’s interpretation would expand a contractor’s right to payment too broadly.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Win Compensation for Workers Denied Overtime Pay

There is nothing more unsettling than the thought of putting in honest work and not getting paid for it. The Fair Labor Standards Act (FLSA) protects employees by requiring employers to pay both minimum wage and overtime pay. Some states have their own, more stringent overtime laws. If you work more than 40 hours a week, in most situations, you must be paid at least one and a half times your regular pay rate for that time. At Sidkoff, Pincus & Green, our experienced Philadelphia employment lawyers have extensive experience fighting for workers denied overtime pay. We are also experienced in fighting for employees who have been involved in breach of contract actions, such as contractors who are not paid for work performed pursuant to an agreement. To schedule a consultation, call us at 215-574-0600 or contact us online today.

Philadelphia Employment Lawyers: Employer’s Overtime Obligations

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The Third Circuit recently reversed a lower court’s decision in an overtime dispute under the federal Fair Labor Standards Act (FLSA) and determined that employees should be awarded overtime for their time spent putting on and taking off uniforms and providing “shift relief” reports before and after shifts.

The ruling involved the company Dupont in the case Smiley v. Dupont. The company argued that because it paid employees for two breaks and lunchtime during a 12-hour shift despite not being required to, that it was exempted from owing overtime for the amounts claimed by its employees.  The Dupont employees claimed to be owed overtime for time related to changing into their required uniform and while performing shift relief related duties.

The Third Circuit found that there was no language in the FLSA that allows for this type of “swap” or offset of the duty to pay employees overtime under the above-mentioned circumstances.

This Ruling Could Have Far-Reaching Effects for Employees

This win for employees has larger implications that will require employers to follow the FLSA more closely and could provide more opportunities for overtime pay.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Wage and Hour Disputes 

If you are entitled to overtime pay and were not paid, or your work conditions have changed, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600, or contact us online to discuss your rights.

Philadelphia Employment Lawyers: Evidence in Retaliation Claim

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Third Circuits Allows Use of Circumstantial Evidence to Prove Retaliation Claims

On June 27, 2016, the Third Circuit vacated and remanded a Western District of Pennsylvania grant of summary judgment for Defendant Postmaster General of the United States. The District Court concluded that Plaintiff Hillary Kacian failed to put forth sufficient evidence demonstrating that she was fired in retaliation for complaining to her supervisors about sexual harassment.

Hillary Kacian starting working as a letter carrier for the Johnstown Post Office in March 2008. Starting in 2010, Kacian began complaining of instances of sexual harassment from her coworkers, specifically her supervisor George LaRue. Some of the instances of sexual harassment included LaRue asking Kacian for a copy of a photograph of her in a bikini, LaRue making comments about her weight and physical appearance, and LaRue making sexual comments such as telling Kacian to “stay off her knees”. After a year of these comments, Kacian complained to the Union President Joseph Sarosi and another supervisor Jeff Hauser about the harassment, and specifically mentioned the things LaRue had said to her. Kacian testified that Sarosi told her they were going to speak to the Postmaster General, Michael Olsavsky about her claims.

Five days after Kacian made the complaint, she was terminated from her position at the Post Office. LaRue had filed a disciplinary action against her for a driving safety infraction and recommended her termination to the Postmaster, based solely on that incident. Testimony showed that this was not the type of action that supervisors often disciplined, much less terminated someone for; furthermore, deposition testimony showed that LaRue only recommended termination of three employees for much different reasons, included falsifying scans.

Kacian filed a complaint alleging sexual harassment with the Equal Employment Opportunity Commission, who issued her a notice of her right to file a civil action. After Kacian filed suit for retaliation, the District Court granted summary judgment, holding that Kacian could not establish that LaRue knew about the sexual harassment complaint, and that all evidence was speculation based on Sarosi’s testimony.

On appeal, the Third Circuit found that Kacian made a prima facie case of retaliation because she had an objectively reasonable belief the activity she opposed constituted unlawful discrimination under Title VII, and that there was sufficient evidence to raise an inference of a causal connection between the complaint and the termination. Postmaster General argued that there could be no inference of a causal connection, because both LaRue and Olsavsky testified they lacked knowledge of the complaint, and Kacian did not present direct evidence indicating otherwise. The Third Circuit stated that a lack of direct evidence establishing knowledge does not bar a retaliation claim, and that case law allows a plaintiff to establish knowledge through circumstantial evidence. In this case, temporal proximity, combined with circumstantial evidence such as LaRue’s termination recommendation history and the Post Office’s previous disciplining policies. 

Kacian v. Postmaster General of United States, 2016 WL 3509564 (3rd. Cir. 2016)

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