Enforceability of Non-Compete Covenants in PA

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Employers often require new employees to sign agreements containing a non-compete covenant, which prevents an employee from working for or with a competitor within certain geographic bounds and for a certain amount of time after their employment with the company ends.

In Pennsylvania, such covenants are disfavored, but may still be enforceable when the restrictions imposed by the covenant are considered to be reasonably necessary for the protection of the employer, and are reasonably limited in duration and geographic reach. A non-compete covenant that is overly broad, in duration or geographic reach is considered unreasonable, and will typically be unenforceable. Unreasonableness is an affirmative defense which a defendant bears the burden of proving. See Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007).

Courts must balance the employer’s legitimate business interest(s), the individual’s right to work, the public’s right to unrestrained competition, and the right to contract when determining enforceability of a non-compete covenant. See, WMI Group, Inc. v. Fox, 2015 Pa. Super. 25, 109 A.3d 740 (2015).

The determination of reasonableness, including duration and geography, depends largely on the specific facts and circumstances of each case. Generally, “legitimate business interests” include trade secrets, confidential information, good will, and unique or extraordinary skills. Victaulic, 499 F.3d at 235. A reasonable, enforceable covenant must be narrowly tailored to protect these interests so as not to favor the employer or the employee.

Philadelphia Non-Compete Lawyers of Sidkoff, Pincus & Green P.C. Advise on Drafting and Enforcing Non-Compete Agreements

Philadelphia non-compete lawyers at Sidkoff, Pincus & Green P.C. protect employees’ right to work. For assistance in any type of employment law matter, call 215-574-0600 to schedule a consultation in our Philadelphia office, where we represent clients in Pennsylvania and New Jersey, or contact us online.

Pennsylvania Court Upholds PHRC Ruling in Favor of Employee Who Alleged Religious Discrimination and Retaliation After Complaining About Bible Quotes on Paychecks

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In Brown Transport Corp. v. Com., Pennsylvania Human Relations Com’n, Brown petitioned the Court of Common Pleas to review an order of the Pennsylvania Human Relations Commission (“PHRC”) that granted relief to a former employee, Stephen Soffer, who asserted claims of religious discrimination, retaliation, harassment, and failure to accommodate. 578 A.2d 555, 559 (Pa. Comm. 1990). This religious discrimination included bible verses on Soffer’s paycheck and religious articles printed in the company newspaper. Soffer complained about the checks and the articles to management, but they refused to either remove the bible verse stamps on the checks or remove the religious content from the company newspaper.. At one point a manager at Brown told the Soffer that he should be grateful to be getting a paycheck at all. Id. at 556. After complaining multiple times Soffer was fired despite stellar performance reviews.  Id. at 559. The PHRC ultimately found in favor of Soffer, noting his impeccable record two months prior to his termination.  Id. at 561.

Brown petitioned the Court to overrule the PHRC based on the following: 1) the PHRC should not have permitted Soffer to add a claim under Section 5(d) of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(d), for retaliatory discharge; 2) that the PHRC’s findings of fact concerning Soffer’s allegations were unsupported by substantial evidence; 3) the PHRC erred in its application of law to the facts by concluding that Brown committed acts of retaliation and harassment against Soffer; and 4) Soffer was precluded by limitations in  in Section 959(f) of the PHRA, 43 P.S. § 959(f), from recovering any sums in the nature of either punitive or compensatory damages.

The Court ruled that Section 12(a) of the PHRA provides that provisions under the PHRA may be construed liberally, and the PHRC properly construed Soffer’s complaint to sufficiently allege discharge. Second, the Court found that Soffer provided sufficient evidence to support his allegations, and upheld the PHRC’s decision that Brown’s witnesses were non-credible as to why Soffer was fired. Third, the Court ruled that the PHRC’s findings were consistent with the evidence such that it did not err in its application of the law to the facts when ruling that Brown committed acts of retaliation and harassment against Soffer. Lastly, the Court relied on Consumer Motor Mart v. Pennsylvania Human Relations Commission, 529 A.2d 571 (Pa. Comm. 1987) to support the PHRC’s award of punitive and compensatory damages.

Philadelphia Employment Lawyers of Sidkoff, Pincus & Green P.C. Represent Clients in Employment Discrimination Matters

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys are knowledgeable in all matters related to employment discrimination. To schedule a consultation with a Philadelphia employment lawyer, call 215-574-0600 today or contact us online.

A Single Word can Create Liability for Hostile Work Environment

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It has long been the case that a single slur or offensive comment is not enough in order to prevail on a hostile work environment claim. However, this is no longer the case after the Third Circuit’s recent decision in Castleberry v. STI Grp., No. 16-3131, 2017 WL 2990160, at *3 (3d Cir. July 14, 2017). On appeal, the Third Circuit overturned the Middle District’s ruling.  In doing so, the Court explained that the “plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers…Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred).” Id. at 4.  Under these facts, the Third Circuit held that a single offensive slur creates severe conduct that could make a hostile work environment; reversing the long history of prior courts in Pennsylvania, New Jersey, and Delaware that require the conduct to be regular. This new standard is a win for future plaintiffs alleging a hostile work environment because it will now be easier to succeed on their claims.

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C., handle cases involving workplace discrimination. Call 215-574-0600 or contact us online to arrange a consultation in our Philadelphia office, where we represent clients in Pennsylvania and New Jersey.

Philadelphia Sues Wells Fargo Over Predatory Lending Practices

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On May 15, 2017, Philadelphia sued Wells Fargo for alleged predatory lending in violation of the Fair Housing Act of 1968. The lawsuit comes two weeks after the Supreme Court ruled that cities can sue banks that possibly could have targeted minorities with bad loans. The city’s lawsuit, filed in the U.S. district Court in Philadelphia, says Wells Fargo purposefully pitched high-risk loans to black and Latino borrowers, though they were eligible to apply for better loans. The lawsuit says Wells Fargo was aware of this imbalance, and even encouraged employees to take advantage of it.

The claims are similar to those made by the city of Miami, which the U.S. Supreme Court ruled earlier this month that Miami could proceed with its lawsuits against banks for targeting minority customers. Like Philadelphia’s lawsuits, Miami alleged that banks unfairly targeted minority borrowers with bad loans. Then after the financial crisis, these customers, and even entire communities, saw unequal rates of foreclosure. Miami claimed that the discriminatory lending by Bank of America and Wells Fargo, caused undue financial harm on the city, increased segregation, and lowered property values. The Supreme Court’s decision was important because this is the first time a city representing entire communities has sued under the FHA. Miami’s case has returned to a federal appeals court in Atlanta, which will decide how much proof Miami needs to show in order to demonstrate the banks knowingly discriminated against communities. That decision, too will likely set precedent for other cities, as Los Angeles, Oakland, Baltimore, and Memphis have all filed similar lawsuits.

In its lawsuit, Philadelphia said an analysis found that more than 23 percent of loans to minority customers were high-risk or high-cost, while only 7.6 percent of white customers were given similar terms. Philadelphia has asked Wells Fargo to end these practices, and is seeking monetary damages from lost taxes, lowered property values, and compensation for increased segregation.

Philadelphia Commercial Lawyers of Sidkoff, Pincus & Green P.C. Defend Against Predatory Lending Practices

Attorneys at Sidkoff, Pincus & Green P.C. represent those affected by predatory lending practices. To schedule a consultation with an experienced Philadelphia commercial lawyer, call 215-574-0600 today or contact us online. From our Center City Philadelphia office, we represent clients throughout Pennsylvania and South Jersey.

Trademarks and the First Amendment

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Recently, the United States Supreme Court ruled that trademarks are protected by the Free Speech Clause of the First Amendment. Many wonder what this means for holders of trademarks, or prospective trademark applicants. The United States government cannot reject a proposed trademark on grounds that the viewpoint it expresses is distasteful or offensive. According to the Supreme Court, this would amount to government censorship of free speech. No viewpoint can be discriminated against, according to the Court.

The Federal Government enacted the Lanham Act to encourage commerce and create a uniform standard. The relevant provision is the “disparagement clause,” which has heretofore barred trademarks that defame individuals, institutions, or beliefs.

The recent precedential case is known as Matal v. Tam. The facts underlying the case are as follows. The lead singer of a band known as “The Slants,” sought to trademark the band’s name, but his application was rejected by the United States Patent and Trademark Office (USPTO). The Office determined that the band’s name was derogatory toward Asians and offensive. As such, the USPTO determined that the band was not entitled to receive the government sanctioned benefit of trademark protection.  The Supreme Court disagreed and held that trademark registration cannot be denied by discriminating based on viewpoints.  While the government may discriminate based on viewpoint when it comes to its own speech, trademarks are private speech and the public expression of ideas may not be prohibited because the ideas themselves are offensive to some of their hearers.

Philadelphia Trademark Lawyers at Sidkoff, Pincus & Green Represent Clients in Intellectual Property Litigation

At Sidkoff, Pincus & Green, our legal team provides services to businesses and individuals in trademark disputes and other intellectual property matters. To schedule a confidential consultation, call us today at 215-574-0600. With offices conveniently located in Philadelphia, our Philadelphia trademark lawyers represent clients throughout Pennsylvania and New Jersey.

Tortious Interference as applied by Pennsylvania Courts

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“One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Pa. 1978).

This duty of non-interference applies whether or not there is a contract with a third party See Restatement (Second) of Torts, § 766, Comment (b) (1979)( “there is a general duty not to interfere intentionally with another’s reasonable business expectancies of trade with third persons, whether or not they are secured by contract…). This duty also applies to contracts that are terminable at will. Restatement (Second) of Torts, § 766, Comment (g) (1979).  “Under Pennsylvania law, to succeed on a claim for tortious interference with existing or prospective business relationships, a party must show:

(1) The existence of a contractual or prospective contractual or economic relationship between the plaintiff and a third party

(2) Purposeful action by the defendant, specifically intended to harm an existing relationship or intended to prevent a prospective relation from occurring

(3) The absence of privilege or justification on the part of the defendant

(4) Legal damage to the plaintiff as a result of the defendant’s conduct and

(5) For prospective contracts, a reasonable likelihood that the relationship would have occurred but for the defendant’s interference.”

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys handle many types of legal matters, including those involving tortious interference. To discuss your case with a Philadelphia business lawyer, call 215-574-0600 today or contact us online.

Supreme Court Of Pennsylvania Rules That Summary Judgement Is Not Warranted Where Plaintiff Did Not Destroy Evidence As A Result Of Negligence Or Bad Faith

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In Schroeder v. Commonwealth, the Supreme Court of Pennsylvania determined whether a product liability defendant and a non-product liability defendant are entitled to summary judgment when the plaintiff failed to preserve a defectively-designed product. 710 A.2d 23, 24 (Pa. 1998). In Schroeder, plaintiff represented the state of the decedent, who died when his truck caught fire after the decedent lost control of the truck.   Following the accident, the decedent’s insurer sold the truck’s remains to a scrapper, who took the remains to a salvage yard after plaintiff signed title over to the insurer.  The plaintiff requested the salvage yard not sell or destroy the truck until examination. However, the salvage yard sold many of the truck’s parts.  The plaintiff filed suit against the truck’s manufacturer and seller alleging it was defective. Plaintiff also sued the DOT alleging it negligently maintained the highway, which caused decedent to lose control of his truck. The defendants moved for, and the trial court granted, summary judgment on the ground the truck had been spoiled. The Commonwealth Court affirmed, finding the plaintiff was vested with absolute responsibility to preserve evidence and failed to do so, warranting summary judgment.

Applying previously stated methods to the case, the Pennsylvania Supreme Court reversed the Commonwealth Court, determining that the product liability defendants, the seller and manufacturer, were not entitled to summary judgment. As to fault, the first factor for spoliation, the court found that no evidence in the summary judgment motions supported the plaintiff’s transfer to the salvage yard was negligent or in bad faith, particularly given the plaintiff’s requests not to sell or destroy the truck. Additionally, the court found the second and third factors also did not necessitate summary judgment in the case.  The court determined that because the plaintiff claimed product liability based on a design defect common to all similar trucks, the prejudice to the defendants/appellees was not great as they could inspect other trucks for the alleged defect.  Accordingly, the court noted a lesser sanction, like a jury instruction on the spoliation, was warranted.

Additionally, the court determined that DOT also was not entitled to summary judgment based on spoliation.  The court reiterated that summary judgment was not warranted due to plaintiff’s fault.  Further, examining the second factor, the court noted DOT suffered less prejudice from spoliation of evidence than the products liability defendants, as claims against DOT related to the condition of the roads rather than the truck.  Finally, in consideration of the third factor, the court found that a lessor sanction such as a jury instruction on the spoliation would be proper.

Philadelphia Business Lawyers of Sidkoff, Pincus & Green P.C. Advise Clients Seeking Summary Judgement

At Sidkoff, Pincus & Green P.C., our Pennsylvania and South Jersey business lawyers offer experienced guidance for a variety of legal matters. We will work tirelessly to achieve the best possible outcome for you case. To schedule a consultation in our Philadelphia office, call 215-574-0600 today or contact us online.

Definition and Determination of Spoliation of Evidence under PA Law

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Definition and Punishments

‘Spoliation of evidence’ is the non-preservation or significant alteration of evidence for pending or future litigation.  When a party to a suit has been charged with spoliating evidence in that suit (sometimes called ‘first-party spoliation’) . . . trial courts [may] exercise their discretion to impose a range of sanction against the spoliator.” Additionally, sanctions for spoliation arise from “the common sense observation that a party who has noticed that evidence is relatable to litigation and who proceeds to destroy said evidence, is more likely to have been threatened by that evidence, than a party in the same position who does not destroy the evidence.

In other words, Pennsylvania courts recognize that a potential remedy for spoliation is allowing the jury to draw an “adverse inference” against the spoliating party.

In federal court, “spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, he duty to preserve the evidence was reasonably foreseeable to the party.” As to sanctions in federal county, the District Court for the Eastern District of Pennsylvania has noted that spoliation ‘may give rise to sanctions which include: dismissal of a claim or granting a judgment in favor of a prejudiced part; suppression of evidence; an averse inference, referred to as the spoliation inference; fines; and attorney’s fees and costs.”

The Test for Determining Spoliation and its Severity

To make such a determination, the court must balance three factors:  “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. In evaluating the first prong, the fault of the party altering or destroying evidence, courts must consider both “the extent of the offending party’s duty or responsibility to preserve the relevant evidence, and the presence of absence of bad faith.”

Philadelphia Local Counsel at Sidkoff, Pincus & Green P.C. Advocate for Those Affected by Spoliation of Evidence

At Sidkoff, Pincus & Green P.C., we handle many types of legal matters, including spoliation of evidence. Call 215-574-0600 today or contact us online for local legal counsel in Pennsylvania and New Jersey.

Trump’s Labor Department Wants Salary Level to Determine Overtime Eligibility

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Recently, the Labor Department filed a brief in federal court challenging whether the Obama administration had the right to double the threshold for the maximum pay a worker can receive and still qualify for overtime. Employees who earn less than the threshold maximum salary are eligible for time-and-a-half. The Obama administration fought to double the maximum salary threshold from $24,000 to around $47,000. This would have meant that those earning less than $47,000 would be eligible for time-and-a-half if they work more than 40 hours a week. This would have resulted in four million more Americans being eligible for overtime pay.

However, last year, a federal court blocked the Obama administration’s rule. Now Trump’s Labor Department has said that it wants salary levels to count in deciding who is eligible for overtime, but it continues to hold off on the maximum pay workers can earn and still qualify for overtime. The Department expressly asked the court not to address the specific salary level set by the 2016 final rule. The Trump administration only requested a ruling on whether the department has statutory authority to set a salary level at all.

Some critics have argued that anything lower than the $47,000 suggested by Obama would adversely affect minority workers. When the Obama administration issued the rule in May of 2016, the Labor Department said that it would go a long way toward ensuring that every worker is compensated for their hard work. Supporters argue that many employees do not even realize that they are eligible for overtime pay.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Advocate for Victims of Unpaid Overtime 

Certain employees who work more than 40 hours a week are eligible for time-and-a-half. If you have only been paid regular wages for overtime hours, you may be entitled to additional compensation. To discuss your case with a skilled Philadelphia employment lawyer at Sidkoff, Pincus & Green, call us today at 215-574-0600 or contact us online.

Protections for Transgendered Employees

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Recently, a federal court judge ruled that a transgendered woman could proceed with a lawsuit for employment discrimination under the Americans With Disabilities Act (ADA). As the law currently stands, transgendered individuals are excluded from protection under the ADA. However, the rights and protections afforded to the transgender community are rapidly expanding at the federal, state, and local levels. This recent decision confirms that, as the District Court judge allowed the case to proceed under a new theory, that gender dysphoria can limit an individual’s major life activities, such as reproduction and social interaction.

The plaintiff, Kate Lynn Blatt, is the first transgendered individual to file a lawsuit under the ADA. She has alleged that her former employer, Cabela’s, a retailer of outdoor equipment located in Hamburg, Pennsylvania, forbid her from using the women’s bathroom and required her to wear a name tag displaying her male birth name. Blatt also alleges her co-workers referred to her as “he/she,” “freak,” “ladyboy,” and asked her questions about her genitals. Eventually, her employment terminated when her employer alleged that she threatened a co-worker’s child at work. Blatt denies this occurred. She subsequently sued Cabela’s alleging that she was mistreated and fired based on her gender-identity-related disability, or gender dysphoria.

Gender dysphoria is a condition where the person feels like their psychological identity differs from their biological gender. The American Psychiatric Association (APA) does not classify transgender as a disorder, however, gender dysphoria is a type of anxiety that may require psychological medication and treatment.

Cabela’s filed a motion to dismiss on grounds that the ADA expresses excludes gender identity disorder as a disability. The court denied Cabela’s motion, leaning on Blatt’s citation to the legislative history of the act as intended to protect historically and politically marginalized individuals based on an immutable characteristic.

The District Court judge sidestepped the issue as to whether the ADA was constitutional, based on the doctrine of constitutional avoidance. He determined that the case could proceed on grounds that the law should be broadly construed to give individuals with disabilities recourse to pursue claims against their employers for discrimination.

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

The laws surrounding LGBTQ rights and protections is rapidly evolving. Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. stay up to date on the most recent developments for LGBTQ rights in the employment litigation context. If you suspect that you have been discriminated against based on your sexual identity or other characteristic, call us today at 215-574-0600 or contact us online. We can help you determine whether you have a viable claim and advise you on how you should proceed.