Philadelphia Employment Lawyers: Discrimination Claims Dismissed for not Meeting Filing Requirements

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In a recent Third Circuit opinion, the Court ruled that Susan Vangjeli, a former municipal library guard at the Philadelphia Free Library did not properly raise her discrimination claims as required by law. Vangjeli made claims for discrimination, retaliation, and harassment, based on her gender, in violation of Title VII.

 

Vangjeli initiated against the City of Philadelphia and Free Library of Philadelphia suit after observing two male employees receive promotions to full-time jobs, while she continued to be a seasonal employee. The City of Philadelphia and Free Library of Philadelphia moved to dismiss the claim, which was granted by the Trial Court and ultimately upheld by the Third Circuit as well. The court noted numerous deficiencies with appellant’s complaint most notably that she failed to exhaust her administrative remedies before proceeding with the Courts. When complaining of unlawful employment practices, one must first file with the Equal Employment Opportunity Commission (EEOC) within 180 days, or file with a state agency within 300 days. Here, Vangjeli failed to file in proper time by waiting more than one year to file with the EEOC.

For more information on discrimination and retaliation claims call the Philadelphia Employment Lawyers at Sidkoff, Pincus & Green at  215-574-0600 or contact us online.

Philadelphia Employment Lawyers discuss the Growing Problem of Classifying Employees as Independent Contractors

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Employers continue to face legal trouble over whether some of their employees are independent contractors. From an employer’s perspective, this is an important issue with financial consequences. If a worker is an independent contractor, the employer does not bear the costs that they would with other employees. For instance, the employer is not required to pay minimum wage or their share of social security. Recent examples of employees bearing their own costs as independent contractors include FedEx drivers buying or leasing their own vans and Uber drivers paying for their own vehicles, gas and other expenses.

 

There does not appear to be an end to this issue as workers continue to contest their classification as independent contractors throughout the country. In 2015, FedEx settled an independent contractor mislabeling case for $228 million. Uber also faced an independent contractor mislabeling suit and settled for $100 million with 450,000 drivers in Massachusetts and California. Uber continues to have legal issues with the misclassification of drivers throughout the country as a putative class action of drivers from the remaining 48 states was filed in Illinois Federal Court.

 

While companies like Uber and FedEx are facing these ongoing legal battles, the Department of Labor attempted to resolve the issue. In July of 2015, the DOL provided some guidance to help employers determine whether a worker is an independent contractor or an employee. According to the Department of Labor, the factors to be considered are:

 

  • The extent to which the work performed is an integral part of the employer’s business.
  • The worker’s opportunity for profit or loss depending on his or her managerial skills.
  • The extent of the relevant investments of the employer and workers.
  • Whether the work performed requires special skills and initiative.
  • The permanency of the relationship.
  • The degree of control exercised or retained by the employer.

While these factors are useful in determining whether a worker is an employee or an independent contractor, the DOL rejects a mechanical approach and no single factor is determinative. This issue continues to be very much unsettled and a resolution in the future can have important consequences on both employers and employees with regard to overtime, insurance and taxes.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green represent clients in matters of employment law. For more information call  215-574-0600 or contact us online.

Philadelphia Business Lawyers: New Jersey Cops Settle Whistleblower Case for $400,000

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In 2011, then-Detective Sergeant John A. Hamilton and then-Captain Douglas F. Carmen filed suit against the Linwood Police Department in New Jersey, alleging that Chief Jim Baker’s behavior created a hostile and retaliatory work environment. Among many allegations, the lawsuit claims Chief Baker asked the two officers to lie about police protection that was afforded to a woman who was later stabbed to death. The allegations also claim Chief Baker influenced one of the officers to make a deal that would favor Chief Baker and hurt other officers, as well as Chief Baker taking away the two officers’ chance to work overtime despite having a contractual right to overtime pay.

 

Many of these instances that disparaged the reputations of both officers occurred over phone conversations that were recorded. The ex-Detective Sergeant Hamilton was also passed over for a less qualified candidate for the position of Chief when Baker retired (ex-Detective Sergeant Hamilton did become chief in March of 2015 when Baker retired). Ultimately, the suit was settled against the city for $400,000.

For more information about whistleblower claims, call Philadelphia business lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

Philadelphia Business Litigation Lawyers: NJ Superior Court Reverses $18M Verdict in Accutane Litigation

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In July, the New Jersey Superior Court, Appellate Division overturned an $18M jury verdict against Defendant Hoffmann-La Roche Inc., the manufacturer of Accutane, a popular drug for severe cystic acne. Rossitto v. Hoffman-LaRoche Inc., 2016 N.J. Super. Unpub. 2016 WL 3943335 (N.J. App. Div. Jul. 22, 2016). Plaintiffs were Accutane users who claimed that they developed ulcerative colitis, a chronic disease of the large intestine after using the product for years and that the manufacturer failed to adequately warn about the risk of developing this condition.

 

The Appellate Court overturned the verdict and ordered a new trial after the trial court allowed Plaintiffs’ counsel to admit into evidence a change to the drug’s warning label in 2000, after Plaintiffs had stopped taking the drug, even after that evidence was initially barred earlier in the trial. The court found this mistake to be prejudicial to Defendant, because it fostered the belief that the labels previous to the 2000 label did not meet the proper standards. Furthermore, the trial court erred in restricting the number of defense expert witnesses to testify on general causation.

 

Roche has continued to win on appeal in Accutane cases. In 2014 and 2015, the Superior Court reversed a $25 million verdict and a $2.1 million verdict against the company, respectively, in similar cases. In 2010, the same court overturned a $10.5 million verdict against the company, sending the case back for retrial based on a separate evidentiary issue. Roche discontinued the sale of Accutane in 2009.  

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

Philadelphia Employment Lawyers: Casino EEOC Claims Settlement

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Colorado casino-hotel, Reserve Casino Hotel, has agreed to pay $250,000 to four women to settle allegations that the casino refused to rehire them on the basis of their age, gender or both, when the casino was sold in 2011.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the casino in September 2015 on behalf of four women, who ranged in age from 58 to 63. The women were employed as slot machine attendants or cocktail servers. The casino was then known as the Fortune Valley Hotel and Casino, but then was sold in bankruptcy, emerging as Reserve Casino Hotel. Three of the women were long-time slot machine attendants when they were not rehired in the transfer. They were 60, 62, and 58 years old at the time they were terminated. The fourth woman, started working as a food server in November 2005, and later became a cocktail waitress. She was 63 when she was denied rehire, and the oldest cocktail server applicant.

Older Women Are at Risk for Discrimination

According to the complaint, prior to the sale of the casino, managers photographed floor operations employees, then later used the photos to screen out older and less attractive employees. Then, it allegedly rehired approximately 95 percent of the workforce, screening out the five percent who were older and less attractive. The EEOC has gone on the record to emphasize that older women may be facing more prevalent and acute employment discrimination than those in other subcategories of the workforce, including younger men and women and older men.

The owners of Reserve Casino Hotel signed a 3.5-year consent decree, whereby the four women will share in the $250,000 settlement award. The EEOC will determine how the award is to be split between the four women. The consent decree also mandates that the owners revise their anti-discrimination policies, making a strong and clear commitment to preventing age-based discrimination and retaliation. They also must provide annual training, and education on subconscious stereotypes.

The EEOC sued the owners of Reserve Casino Hotel under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. The women had come forward, spurring the agency to conduct an investigation that lead to a finding that there was a significant lack of hiring of female applicants age 40 or older. The specific allegations included in the complaint were sex discrimination, age discrimination and “sex plus age” discrimination.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green, P.C. Represent Individuals with EEOC Claims

If you suspect that you have suffered from employment discrimination, Philadelphia employment lawyers at Sidkoff, Pincus & Green can help you recover maximum compensation and hold the responsible parties accountable. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey. Call us at 215-574-0600 or contact us online today.

Philadelphia Business Lawyers: Third Circuit Revives Defamation Suit Involving Philadelphia Firefighter

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The U.S. Court of Appeals for the Third Circuit decided on July 26, 2016 to revive a firefighter’s defamation and false light claim against the New York Daily News after rehearing the claim on June 21. The claim involved a Philadelphia firefighter, Francis Cheney, whose photograph appeared with an article in January about a sex scandal involving Philadelphia firefighters and a paramedic.

The Third Circuit originally affirmed a dismissal of the suit because Cheney could not show that the allegedly defamatory material could reasonably be understood as referring to him, as the article never mentions his name and the photograph was just a stock photograph. However, in reviving the claim, the Court stated that a reasonable reader could, in fact, conclude that the text could be “of and concerning” him. One of the Court’s reasons was that the picture was placed directly next to the text, and it was the only picture of a firefighter that ran along with the story. Furthermore, many firefighters were implicated in the story, but Cheney’s name is the only one that appeared in print, despite the fact that he was not involved in the scandal. These circumstances together could lead a reasonable reader to believe Cheney was involved in the scandal.

The attorneys for Cheney will now continue to litigate the case.

The Philadelphia business lawyers at Sidkoff, Pincus and Green represent clients in defamation and disparagement claims.  For more information call 215-574-0600 or contact us online.

Philadelphia Business Lawyers: How Should FMLA Settlement Amounts Be Reported to the IRS?

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In Gunter v. Cambridge-Lee Industries, LLC, Vincent Gunter alleged that his rights under the FMLA were violated by his employer.  CV 14-2925, 2016 WL 3762992, at *1 (E.D. Pa. July 14, 2016). The two parties ultimately were able to reach a settlement. However, the parties were unable to agree on how the settlement proceeds should be reported to the Internal Revenue Service.

Gunter’s position was that the proceeds of the settlement were not wages and were not subject to withholding or reporting to the IRS on Form W-2 but instead should be reported to the IRS on Form 1099. The Defendant employer contended that the proceeds of the settlement did constitute wages that must be reported to the IRS on form W-2 subject to the withholding of taxes and other payroll charges. However, there was no binding Third Circuit precedent with regard to this particular issue.

In deciding this issue, the Court found two cases be persuasive. In Churchill v. Star Enters, the Court found that the relevant regulations and the FMLA statute specifically required the performance of services in order for the payment to constitute wages for withholding purposes. 3 F. Supp.2d 622 (E.D. Pa. 1998). As a result, the Court held that no withholding of the judgment was mandated under either federal or state law. In Carr v. Fresenius Med. Care, the Court found that recovery under the FMLA “does not constitute back pay but an amount of damages equal to the sum of various components, including, but not limited to, lost wages.”  2006 U.S. Dist LEXIS 29627, at *7-8, 2006 WL 1339970. Following this reasoning of these two cases, the Grunter Court held that an award, and in this case a settlement, does not constitute wages for Plaintiff that are subject to the withholding of taxes.

Philadelphia Employment Lawyers: Employers have Privilege when Providing References about Former Employee

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On June 28, 2016, the Third Circuit ruled in favor of employers who sought a conditional privilege when providing employee references to other employers. In Bentlejewski v. Werner Enterprises Inc., No. 15-2870, 2016 WL 3523303, at *1 (3d Cir. June 28, 2016), Defendant sent Plaintiff’s prior accident and driving report to two prospective employers. In the report, there were four “preventable” minor accidents noted, which prevented Plaintiff’s employment at the two trucking companies. Plaintiff then filed suit, alleging those driving reports contained “false and misleading” information, which prevented him from obtaining employment.
The Court recognized that employers have a conditional privilege to provide prospective employers with honest references concerning a former employee. In order to show an employer abused this privilege, a former employee must show the employer knowingly provided false information. It is not enough that an employer simply provided false information.

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

 

Philadelphia Employment Lawyers: Appeal in Overtime Pay Dispute

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The United States Court of Appeals for the Seventh Circuit in Chicago handed down a surprising verdict recently when it ruled that the Epic Systems Corporation headquartered in Wisconsin was in violation of the 1935 National Labor Relations Act (NLRA) that protects the rights of employees to unionize or bring collective action against their employer. According to the Court’s decision, Epic Systems violated the NLRA by requiring employees to sign an arbitration clause that mandated they rely solely on arbitration to settle wage and hour disputes.

Epic Systems is a medical software company that sent out an email in 2014 that required employees to agree to internal mediation for all wage and hour disputes, ultimately denying them their right to bring collective action against the company. Epic Systems stated in the agreement that the employee’s decision to acknowledge receipt of the email and continue employment with the company indicated that they agreed to the arbitration agreement. When an employee of the company later filed a suit in federal court against Epic Systems for denied overtime wages, the company referred to a previous U.S. Supreme Court decision that allowed a group of credit card companies the right to use arbitration as a means to resolve internal conflict.

In 2013, the United States Court of Appeals in Louisiana upheld a 2011 Supreme Court decision that ruled the Federal Arbitration Act of 1925 gave employers the right to use arbitration to settle claims against the employer. The recent verdict handed down by the Chicago Court of Appeals is in direct opposition to this decision, clearly stating that the National Labor Relations Act of 1935 overrules the 1925 Federal Arbitration Act. This dispute could mean the U.S. Supreme Court will have to revisit the issue if Epic Systems decides to appeal the Chicago Court of Appeals decision.

As more and more employers include arbitration agreements in their employment contracts, many have argued that the practice has the potential to conceal unfair labor practices. In a survey conducted by The New York Times, many employees reported that they “give up” on bringing disputes to their employers when they are prohibited from doing so collectively. Without the power of numbers and the evidence that they bring to support claims, many believe they do not stand a chance of a fair resolution.

Epic Systems Corporation has 90 days to appeal the Chicago decision. As of yet, the company has not indicated that they will pursue bringing the issue to the United States Supreme Court.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Use Experience and Knowledge for Successful Litigation

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have been serving clients throughout Pennsylvania for over 50 years. Our team of dedicated has a long history of successful outcomes in a vast array of varied employment law cases.

Call us today at 215-574-0600, or contact us online to see how we can help you with your employment legal issues. Our offices are conveniently located in Center City Philadelphia, allowing us to serve clients throughout Southeastern Pennsylvania and New Jersey.

Philadelphia Employment Lawyers: Termination Outside of Employment Contract

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Harrisburg Superintendent to Receive $2.4 Million Dollar Settlement after Termination without a Hearing

In 2009, a Harrisburg superintendent was terminated without a hearing, in violation of his employment contract. In Pennsylvania, employers may terminate non-contract employees, also known as at-will employees, for no cause. In Kohn v. School District of Harrisburg, 817 F. Supp. 2d 487 (2011), Gerald Kohn was a superintendent for the Harrisburg School District and had 16 months remaining on his employment contract when he was terminated.

In 2010, Kohn y filed a lawsuit against the Harrisburg School District for wrongful termination and Mayor Linda Thompson for conspiracy. In his Complaint, Kohn alleged that in her campaign for Mayor, Thomas promised to get rid of the current superintendent (Kohn) for his school district’s academic failings. After Linda Thompson was elected Mayor, Kohn was subsequently fired. After several years of litigation, the parties reached a settlement agreement in 2013 for $2.4 million dollars and Kohn dropped the conspiracy allegation against Thompson.

For more information or to discuss the details of your case, call Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.