Ameriprise Prevails Against Former Advisor

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A Financial Industry Regulatory Authority (FINRA) arbitration panel recently decided that a former Ameriprise broker had to pay Ameriprise $675,000 after a customer complaint against the firm settled. The customer was awarded $675,000 in the settlement, and Ameriprise then filed the third-party arbitration claim against its former broker to recover the funds. The broker is alleged to have misappropriated the client’s investment funds.

According to records maintained by FINRA, Ameriprise accused the broker of violating several company policies related to maintaining a beneficiary relationship with a client, complaint handling, comingling of funds, and conducting business with a foreign client.

A spokeswoman for Ameriprise has stated that the company is pleased with FINRA’s decision to hold its former broker accountable for the violations. After being dismissed from Ameriprise, the broker went to another global firm, but is no longer employed there. She has been named in another Finra arbitration, where several individuals claimed she advised them to purchase a failing business for her own personal gain, and illegally borrowed and comingled funds. The plaintiffs in the pending arbitration are seeking $1 million in damages.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in FINRA Arbitrations

To learn more about how we can help with your business or commercial arbitration, contact the Philadelphia FINRA lawyers at Sidkoff, Pincus & Green, P.C. today. Our offices are conveniently located in Philadelphia, and we represent clients in Pennsylvania and New Jersey. Call us today at 215-574-0600 or contact us online.

 

 

Court Ruling on Employee Abuse of FMLA Leave

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Recently, the Third Circuit Court of Appeals ruled that an employer’s honest belief that an employee misused their rights under the Family and Medical Leave Act (FMLA) was sufficient to defeat the employee’s claim for retaliation. This holds true even if it turns out that the employer was mistaken, and that the employee was not misusing their rights under the FMLA. Pennsylvania is within the jurisdiction of the Third Circuit Court of Appeals.

In Capps v. Mondelez Global, LLC, the employer, Mondelez, had an FMLA policy in place. The policy made clear that any employee who fraudulently misused FMLA time would be subject to discipline and possible termination. The company also had an additional policy that provided discipline if an employee was found to have engaged in dishonest acts. One of Mondelez’s employees, Frederick Capps, was experiencing bouts of severe pain following a bilateral hip replacement that he underwent in 2003. Mondelez provided him with intermittent leave under the FMLA during these bouts of pain.

One day in 2013, Capps took the day off alleging it was for pain related to his medical condition. Later that evening, he went to a bar and was arrested for a DWI while driving home. Although he was scheduled to work the next day, he called out complaining of pain related to his hip surgery. Capps’s employer learned of his arrest in the newspaper, and discovered that he fraudulently requested FMLA for the day after his arrest and on subsequent court dates; the absences were not related to his medical condition. As a result, his employment was terminated.

Termination Retaliation

Mr. Capps sued his employer for allegedly retaliating against him for taking FMLA leave. The District Court and Third Circuit Court of Appeals both ruled in favor of Mondelez Global, LLC on grounds that it acted on an honest belief that Capps had been abusing FMLA leave. Although the Court ultimately found that he had not established a prima facie case of retaliation, it noted that Mondelez had established a legitimate, nondiscriminatory reason for terminating Capps, stating that he violated the company’s Dishonestly Policy. Because the employer acted in good faith, the Court ruled in its favor, concluding that even if the employer’s belief turned out to be untrue, it still would have prevailed because it had established that it acted in good faith.

This is consistent with the Third Circuit Court of Appeals’ rulings in other discrimination claims, such as age-discrimination and Title VII cases, whereby an employer’s legitimate, nondiscriminatory reason for termination will not be defeated by a plaintiff demonstrating that the belief was ultimately incorrect.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Employment and Business Matters

The statutes, regulations, and case law that govern the employer-employee relationship are constantly evolving. If you have questions about a legal situation, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. today to schedule a confidential consultation. We can be reached at 215-574-0600 or by submitting a convenient online contact form.

Pennsylvania Supreme Court Rules Proving Dishonest Purpose or Motive is Not Necessary to Prevail on Bad Faith Insurance Claims

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In a recent landmark decision, the Pennsylvania Supreme Court recognized that insurance policyholders do not need to demonstrate an insurance company’s dishonest purpose or motive to prevail on bad faith claims against their providers.

In Rancosky v. Washington National Insurance Company, No. 28 WAP 2016, 2017 WL 4296351 (Pa. 2017), the plaintiffs were husband and wife, Matthew and LeAnn Rancosky, who purchased a “cancer insurance policy” for Mrs. Rancosky as a supplement to her primary employer-based health insurance. To pay for this policy, Mrs. Rancosky’s employer automatically deducted bi-weekly payments from her paycheck. Most importantly, her policy contained a waiver-of-premium provision which excused premium payments if she became disabled due to cancer. During Mrs. Rancosky’s employment, she was diagnosed with ovarian cancer. She subsequently aimed to invoke the policy provision when she could no longer work due to disability resulting from her disease. After submitting a physician’s statement and waiver-of-premiums forms, Mrs. Rancosky believed her premiums had been waived and ceased making payments. Defendant later conducted a policy audit two years later and, upon discovery of the plaintiff’s ceased payments, deemed her policy to have lapsed. They subsequently denied her claim for further benefits. Mrs. Rancosky sought reconsideration of their decision alleging inconsistent filings and erroneous information stated by her physician.

Upon the provider’s denial of her request for reconsideration, Plaintiffs brought suit against Defendant for breach of contract and bad faith under the Pennsylvania bad faith statute, 42 Pa.C.S.§8371. To prevail on a claim under this statute in Pennsylvania, the policy holder must satisfy a two-part test, presenting clear and convincing evidence that: (1) that the insurer did not have a reasonable basis for denying benefits under the policy; and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis. The court in Rancosky ultimately ratified this test in its verdict, and ruled that policyholders no longer need to demonstrate an insurer’s motive of self-interest or ill-will to prevail on a bad faith claim. The court stated that this requirement creates an unduly high threshold for policyholders to meet and expanded the reach of the statute to provide greater opportunity for policyholders to prevail on their claims.

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

Eastern District of Pennsylvania Rules Against Plaintiff’s Claim that Arbitration Clause is Unconscionable

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In Curtis v. Cintas Corporation, Plaintiff was terminated by her employer and she asserted claims for racial discrimination and retaliation.  229 F.Supp.3d 312, 315 (E.D. Pa. 2017).  Although Plaintiff sought to litigate her case in court, Defendant moved to dismiss her claims, and in the alternative, stay proceedings pending arbitration, as Defendant claimed that Plaintiff’s employment agreement contained an arbitration clause. In response, Plaintiff asserted that the arbitration agreement was unconscionable and therefore, invalid and unenforceable.

Under Pennsylvania law, to prove a claim of unconscionability, a plaintiff must prove that the contract was both substantively and procedurally unconscionable. Substantive unconscionability occurs when the contractual terms are unreasonable or grossly favorable to one side, which the disfavored party does not assent to.  In this case, Plaintiff asserted that Defendant is inherently favored because the employer pays the costs for arbitration.  However, the Eastern District Court of Pennsylvania pointed to case law stating that limiting costs to one party does not support a finding of substantive unconscionability. Procedural unconscionability pertains to the process in which an agreement is reached, but the form of the agreement is unclear.  Here, Plaintiff claimed that the agreement was procedurally unconscionable because she signed only on the last page, and that page did not contain an arbitration clause.  However, the Court explained that there is no requirement in Pennsylvania to affix a signature to each section or page of an agreement to manifest an in intent to be bound by the terms.

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

Third Circuit Says Employees Should Be Paid for Rest Breaks

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The Third Circuit Court of Appeals has recently held that under the Fair Labor Standards Act (FLSA), employers must compensate employees for breaks less than 20 minutes, even if they are not performing any work during their break time.

In the case presented to the Court, the employer was a company that produced business publications that were sold by sales representatives over the phone. The representatives were able to take breaks whenever they wanted to, and for any length of time. Their employer did not require them to remain on the premises during their break time. However, whenever these employees were logged off their computer for longer than a minute and a half, they were not paid.

The United States Department of Labor sued the company under a federal regulation that states break periods between five and 20 minutes are customarily paid, and must be counted as hours worked. The trial court concluded that the employer violated the FLSA, and the employer appealed, arguing that a different regulation governed its practices. According to the employer, these breaks were off duty, when employees were completely relieved of duty. The off-duty regulation specifically defines these periods as times when an employee is completely relieved of duty such that they can use the time effectively for their own purposes. The regulation describes this as a fact specific inquiry. The employer argued that since employees were free to leave for as long as they wanted, with no obligation to return to work, even brief breaks did not need to be compensated under the off-duty regulation.

The Third Circuit employed a common canon of construction; where there are two regulations arguably on point, the more specific regulation is controlling. Here, because the off-duty regulation was more generic than the rule governing break policies, it was not controlling. The Court characterized this as a bright line rule, providing that employers must pay employees for any rest breaks lasting 20 minutes or less. At the time of the Third Circuit’s ruling, no other Circuit Court had ruled on this question.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Rights of Employees

At Sidkoff, Pincus & Green P.C., we advocate for our clients in all types of FLSA and unpaid overtime claims. To schedule a confidential consultation, call us today at 215-574-0600 or contact us online. Our Philadelphia employment lawyers are ready to discuss your case today.

Third Circuit Defines “Willfulness” Under FLSA

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The Third Circuit Court of Appeals recently issued a precedential opinion regarding “willful” violations of the Fair Labor Standards Act (FLSA).   There is a two-year statute of limitations under the FLSA unless the violations are deemed willful, in which case there is a three- year statute of limitations.

Plaintiffs in this case were a class of part-time Lackawanna County employees who worked in two separate part-time positions. According to the Court, Lackawanna County failed to aggregate the hours of the employees for purposes of calculating overtime.    The lawsuit asserts that Lackawanna County became aware that it was violating the FLSA in 2011, and several months later, it began aggregating the hours of the employees in calculating overtime pay. During the trial, the county admitted to violating the FLSA, but argued that the violation was not willful.    The trial court determined that the defendants’ poor time keeping records amounted to willful violations of the FLSA.

The Third Circuit disagreed and reasoned that there was no evidence that Lackawanna County was specifically aware of the FLSA rule it was violating. It opined that a plaintiff must show evidence of the employer’s awareness of a violation of the FLSA overtime mandate. The Court contrasted a case of clear willful violation, wherein an employer deliberately misclassified employees for nine years, and another case where a family failed to pay its nanny minimum wage.  Here, Lackawanna County addressed the problem within a year of learning it was violating the FLSA. The Court noted that it was likely a bureaucratic failure, and not a deliberate violation.

Philadelphia Overtime Dispute Lawyers at Sidkoff, Pincus & Green Litigate FLSA Claims

At Sidkoff, Pincus & Green, we routinely represent plaintiffs in overtime and wage dispute matters. To schedule a consultation with a Philadelphia overtime dispute lawyer, call us today at 215-574-0600 or contact us online.

Court Rules that Accommodations for Indefinite Leave are Not Reasonable

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An Appellate Court in Connecticut recently ruled that a reasonable accommodation for medical leave does not require employers to wait indefinitely for an employee’s medical condition to resolve itself. In the case of Thomson v. Department of Social Services, the plaintiff informed her employer that she would be taking a leave of absence from her work, but did not provide her employer with a time frame for her return. She also did not respond to her employer’s subsequent attempts to reach out to her in order to determine when she planned to return.

According to the Court, this employee essentially asked her employer to hold her position open for her indefinitely while she attempted to recover. The Court, relying on federal laws, found that this was not a reasonable accommodation request. The plaintiff, according to the Court, could not establish a prima facie case of discrimination on these facts.

The employee informed her supervisor that she would be taking “over thirty days” leave depending on whether the lung condition resolved itself. And during a deposition, she confirmed that she did not know how long she was going to be out of work to recover from her health condition.

At the time she left her employment to take leave, the employee filled out a number of forms for her employer. The information she listed on these forms was incoherent and confusing. Her employer even reached out to her by certified mail for additional information, and did not receive a response. When the time came that she was required to submit further information and did not, her employer terminated her. The Court upheld the termination, because the accommodation that she requested was deemed unreasonable.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Clients in Employment Disputes

If you are in need of a Philadelphia employment lawyer, contact Sidkoff, Pincus & Green. To learn more about how our dedicated team of trial attorneys can help you, call 215-574-0600 or contact us online.

Pennsylvania Supreme Court Holds Employer Liable

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Whistleblower Case Brought by Employee

The Pennsylvania Supreme Court recognizes that an employee who brings a claim against his employer under the Pennsylvania Whistleblower Law can hold his employer liable where the employee’s good-faith report of wrongdoing resulted in a retaliatory demotion.

In O’Rourke v. Commonwealth, 566 Pa. 161 (2001), the appellant O’Rourke was employed by the appellee, Pennsylvania Department of Corrections (“Department”). During his employment, O’Rourke became aware of a scheme where thousands of pounds of meat products were being stolen from the culinary department. In response, O’Rourke filed a report regarding this activity of wrongdoing and charged various workers and supervisors with theft and mismanagement. Shortly after transmitting his report, O’Rourke began experiencing a hostile working environment and was demoted from his position at the Department.

The Court ruled that the Department failed to prove that its actions occurred for reasons separate from O’Rourke’s report of wrongdoing, and failed to rebut O’Rourke’s prima facie case. Therefore, O’Rourke was entitled to compensation pursuant to the state’s whistleblower law.

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

E.D.P.A. Overrules Motion to Dismiss

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Claims Plaintiff Alleged Sufficient Facts Demonstrating Pervasive Sexual Harassment

A claim for sexual harassment can be established by proving a hostile or abusive work environment. To prove such a claim, a plaintiff must establish: “(1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability[, where an employer is liable for an employee’s negligent actions or omissions that occur during the course of the employee’s employment].” Hawk v. Americold Logistics, LLC, 2003 U.S. Dist. LEXIS 3445, at *12 (E.D. Pa. 2003).

The trial judge considers the totality of the circumstances when considering a sexual harassment claim. The judge will consider factors such as, the frequency of the harassment, its severity, whether it is physically threatening or humiliating, whether it unreasonably interferes with employee’s work performance, and its effect on the employee’s psychological well-being. For instance, in Hawk, the judge took into consideration that the harassment occurred every day in the form of unwelcome phone calls to the employee, that the harassment was severe by being physically grabbed and shoved against a wall, the employee was humiliated in the sense that she was followed by the harasser around the workplace and was constantly interrupted when conversing with other men co-workers by the harasser, and the employee was emotionally distraught when discussing her harasser during an interview with her employer. The Pennsylvania Eastern District Court found that a jury could “certainly” find that the employee was harassed and that it would detrimentally affect a reasonable person in the same position, denying a motion to dismiss.

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

Separate Companies can be Joint Employer

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For Purposes of Title VII and §1981 Claims

The Eastern District of Pennsylvania denied a Motion to Dismiss because Plaintiff had pled sufficient facts to show that Defendant companies could be “joint employer[s]” or a “single employer.” Anderson v. Finley Catering Co., 218 F. Supp. 3d 417, 423 (E.D. PA. 2016).

Plaintiff alleges “race discrimination, retaliation, and hostile work environment claims against both Defendants pursuant to Title VII and § 1981.” In Anderson, Plaintiff was the only African American male who worked full time as a cook in Defendants’ catering business. Plaintiff alleges in his Complaint that the management at the catering business made racial jokes and remarks about Plaintiff and gave Plaintiff more undesirable work than they did to other employees who were not African American. After Plaintiff complained to the management about the racial discrimination, some people from the management “called Plaintiff a “snitch” and warned him that he needed to watch what he said.” Following Plaintiff’s complaint, management cut Plaintiff’s hours from 40 to 3 hours per week. After Plaintiff filed for unemployment compensation benefits, management demoted Plaintiff from his position as a cook to dishwasher. Further, following this demotion, management failed to place Plaintiff on a work schedule.

The Court denied dismissal of the case. Defendants argued that the case should be dismissed because Plaintiff’s employer was Union Trust and there was not “sufficient facts” to make the claim that Finely Catering was “liable under either a “joint employer” or “single employer” theory.”  The Court held that the Plaintiff has pled “sufficient facts” at this step in proceedings that “Finley Catering and Union Trust are both owned by Steve Finley, share common management and operations, and have centralized control of labor relations and common financial controls.” Therefore, the Court can “reasonabl[y] infer” that the companies are “either joint employers or a single employer.”

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