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.

Philadelphia Employment Discrimination Lawyers: Statue of Limitations

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N.J. High Court Holds Statute of Limitations for Discrimination Claims Cannot Be Shortened by Contract

Despite the court’s general recognition of a private right to contract, in June 2016, the New Jersey Supreme Court ruled that a provision of a contract shortening the two-year limitations period for bringing a claim under the Law Against Discrimination (“LAD”) was unconscionable.

In Rodriguez v. Raymours Furniture Co., Inc., 2016 WL 3263896 (N.J. June 15, 2016), Plaintiff

Sergio Rodriguez applied for a job with the Defendant Raymours Furniture Company. The employment application he signed contained a provision that stated, “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.” Rodriguez, a native of Argentina and not proficient in English, claimed he did not understand what he was signing, nor did he understand the terms “waive” or “statute of limitations.”

When Rodriguez was laid off from his job, he filed a complaint alleging employment discrimination. The complaint was filed before the two-year limitations period, but after the six-month period stated in the contract. The lower courts found the terms in the application to be clear, concise and not contrary to public policy, and enforced the contract. However, the New Jersey Supreme Court reversed the lower court decision, rendering the contract unconscionable. The Court determined that enforcing these kinds of provisions would undermine the integrity of the LAD statute, effectively eliminating claims, and might compel an attorney to file a premature LAD action. The Supreme Court felt their decision was in the interest of public policy, and would further the “public imperative of eradicating discrimination.”

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

Philadelphia Employment Lawyers: Return from FMLA and Retaliation

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Discourteous “Welcome Back” by Employers after Employee’s Return from FMLA Leave Does Not Constitute Retaliation

An employer is not required to give an employee returning from FMLA leave a courteous welcome back. In Checa v. Drexel Univ., plaintiff Debra Checa took FMLA leave following surgery and the death of her mother. CV 16-108, 2016 WL 3548517, at *1 (E.D. Pa. June 28, 2016). Upon returning to work at Drexel University College of Medicine, Checa had a meeting with two of her coworkers regarding her transition back to work and her failure to complete certain tasks before she took leave.  After being criticized for her performance prior to taking leave and not being offered condolences for the passing of her mother, Checa stood up in the meeting and said she quit and then later emailed a Doctor at the college and again reiterated her intention to quit. Checa then attempted to retract her resignation the next morning but the College refused to accept it.

Following the College’s refusal to accept the retraction of her resignation, Checa brought an FMLA retaliation claim against the College. To prevail on a FMLA retaliation claim, the plaintiff must prove that (1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights. Id. Checa argued that both the “first day back” meeting and Drexel’s refusal to allow her to rescind her resignation the next day qualify as adverse employment actions.

The Court held that the “first day back” meeting did not qualify as an adverse employment action for several reasons. First, the meeting did not alter her terms or conditions of employment nor did attending this meeting significantly impact her ability to work or advance in her career. Checa also did not suffer a change in job title with less prestige, a suspension of pay, or a change in work schedule. Lastly, the Court held that the employer’s refusal to accept Checa’s rescinded resignation is not an adverse employment action because they were under no contractual or statutory to do so nor was there a constructive discharge in this instance.  Thus, the Court granted Drexel’s motion for summary judgment.

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

Philadelphia Business Lawyers: Copyright Infringement Lawsuit

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The Supreme Court recently weighed in on certain copyright infringement issues that have long been unsettled in American law. First, the Court ruled that the resale of foreign-manufactured books in the United States does not violate the “first-sale” provision. In a second related lawsuit, the Court found that the award of attorneys’ fees to the reseller was appropriate. The case, Kirtsaeng v. John Wiley & Sons, Inc., has important implications for intellectual property litigants, because it clearly sets forth the factors courts must consider in determining whether to award attorneys’ fees to a prevailing party.

The case arose when Kirtsaeng instructed family and friends living in Thailand to purchase copies of John Wiley & Sons’ books and ship them back to him in the United States. The books were priced substantially less in Thailand than in the U.S., so Kirtsaeng resold them for a profit. Wiley then sued him for copyright infringement.

The lawsuit alleged that Kirtsaeng infringed Wiley’s right to exclusive distribution under Section 106(3) of the Copyright Act. Kirtsaeng claimed that his purchases and resales were protected under the “first-sale” provision. Wiley’s rebuttal that the provision does not apply to books manufactured abroad was not accepted by the Court, who ruled in favor of Kirtsaeng.

In a second round of litigation arising out of the same set of facts, Kirtsaeng argued that he was entitled to attorneys’ fees under the Copyright Act’s discretionary fee shifting provision, which allows a court to award reasonable attorneys’ fees to a prevailing party. Author of the opinion, Justice Kagan, stated that payment of attorneys’ fees is important to uphold the intent behind the copyright act, which aims to enrich the general public through access to creative works.

Kagan stated that the reasonableness of the losing party’s position should be taken into account in awarding attorneys’ fees, along with other so-called “Fogerty factors,” including:

  • The frivolousness of the losing party’s position.
  • The losing party’s motivation for bringing the suit.
  • Objective unreasonableness of the losing party’s claim.
  • The need in particular circumstances to advance considerations of compensation and deference.

This decision is important for any intellectual property litigant for many reasons, one being that it can help inform a decision whether to settle and for how much. For example, if a litigant’s claim is weak, knowing that going to trial could result in having to pay attorneys’ fees should serve to encourage settlement.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Have Extensive Experience in All Aspects of Business Litigation

Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. have extensive experience in all types of business tort litigation, including complex copyright infringement matters. With offices conveniently located in Philadelphia, we represent businesses throughout Pennsylvania and South Jersey. To schedule a consultation, call us at 215-574-0600 or contact us online today.

OSHA Fines Epic Health Services $98K After Investigation of Sexual Assault

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In February of 2016, an employee filed a complaint with the Occupational Safety and Health Administration (OSHA) after being sexually assaulted by a home care client. The health care worker was employed by AndVenture, which does business as Epic Health Services, and is one of the largest providers of pediatric home health and therapy services for medically frail and chronically ill children.

Prior to OSHA’s investigation, Epic Health had received numerous prior complaints of sexual and physical assaults by employees while working. OSHA found that Epic Health willfully violated regulations involving workplace violence and that Epic Health had no system for reporting threats or incidents of violence. In addition to the citation, Epic Health must also pay a $98,000 fine for the hazards employees encountered while on the job.

Epic Health has fifteen business days from receipt of the citations and proposed fine to comply, request a conference with OSHA’s area director, or contest the findings before the Occupational Safety and Health Review Commission.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Advocate for Victims of Work-Related Sexual Assault

If you believe your employer is in violation of the law or your company’s code of ethics, call us immediately. Schedule a consultation by submitting an online contact form or calling 215-574-0600 to discuss your case with one of our Philadelphia employment lawyers at Sidkoff, Pincus & Green.