Category: Employment Law

Pennsylvania Supreme Court Upholds Non-Economic Damages for Whistleblower Claims

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Recently, the Pennsylvania Supreme Court held that wrongfully terminated whistleblowers can recover non-economic damages. Bailets v. Pa. Tpk. Comm’n., 2018 Pa. LEXIS 1498 (2018). Bailets centered around a whistleblower claim made by a manager of the Pennsylvania Turnpike Commission (PTC) alleging that they fired him in retaliation for reporting wrongdoings and waste to his supervisors. The lower court found in Plaintiff’s favor and awarded economic and noneconomic damages totaling over $3 million. The Pennsylvania Supreme Court affirmed the lower court’s decision and award of economic and non-economic damages.

This issue centered on whether the term “actual damages” in Section 125 of the Whistleblower Law should be narrowly or broadly interpreted to include non-economic damages. PTC argued that actual damages refer solely to economic damages because allowance of non-economic damages would be analogous to punitive damages. PTC also argued that exceptions to the Commonwealth’s immunity should be narrowly interpreted and thus non-economic damages should not be read into “actual damages.” The employee argued that actual damages include non-economic damages because the law’s purpose is remedial and serves to compel government compliance to the law. In addition, the employee argued that there is a long precedent in Pennsylvania that actual damages are equivalent to economic and non-economic damages. Furthermore, the employee argues that not awarding non-economic damages “would undermine the very purpose of the law to protect and encourage employee reporters of waste and wrongdoing.”

The Court approached this as an issue of statutory interpretation and held that the law must be liberally construed to allow non-economic damages, thus fulfilling the remedial purpose of the Whistleblower Law. Furthermore, the Court found that reading “actual damages” as solely economic damages would be superfluous considering the statute’s inclusion of different types of economic damages under the allowed types of recovery. The Court agreed with the employee that Pennsylvania’s precedence historically supports the finding that actual damages includes non-economic damages. The Court stressed that the state must allow recovery for non-economic harms such as humiliation, embarrassment, and mental anguish in order to make Plaintiff whole.. Going forward, Bailets is significant in that it will open the door for more claims under the Whistleblower Law and allow for a greater recovery for successful claimants.

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

Former Manager Fails to Show That Her Former Employer’s Reasons for Termination Were Based on Any Discriminatory Motive

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The Superior Court of Pennsylvania in Ferraro v. Temple University held that Plaintiff failed to show that the legitimate reasons for employee’s termination were pretext for any discriminatory motive. 185 A.3d 396 (Pa. Super. 2018). Plaintiff worked as a manager of patient accounting and was fired at the age of sixty-two for violating another, much younger, employee’s FMLA rights and issuing the same employee an improper citation.

In order to succeed under a claim for age discrimination, Plaintiff had to establish: (1) she belonged to a protected class (at least 40 years old); (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) suffered dismissal under circumstances giving rise to an inference of discrimination. Plaintiff argues that the younger employee was given preferential treatment and that she was terminated because of her age. The Court agreed that Plaintiff had established the four elements for age discrimination, but nonetheless ruled in favor of Temple because Plaintiff failed to establish that Temple had terminated her due to her age and not for any other legitimate reason such as her leaving work early to care for her young child. Plaintiff, although the trial court did not find Temple’s reasons credible, did not prove the termination was done in a discriminatory manner.

For more information, call our employment lawyers in Philadelphia at 215-574-0600 or contact us online. The legal team at the Law Offices of Sidkoff, Pincus & Green represents clients in Pennsylvania and New Jersey.

  Category: Age Discrimination, Employment Law, FMLA
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Employee Loses Prima Facie Case of Retaliation But May Continue His Defamation Case Against Former Employer

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On March 20, 2018, Plaintiff Haabiyl Mims filed a Complaint alleging retaliatory discharge under the Fair Labor Standards Act of 1938 (FLSA § 15 (a)(3)), Defamation and Defamation Per Se, and Wrongful Termination by Defendants New Age Protection Inc. and Tamisha Thorogood Haabiyl Mims v. New Age Protection, Inc., Civ. Action No. 18-CV-1185, 2018 WL 5829340 (E.D. Pa. 2018). After 5 years working at his former employer, Defendant New Age Protection, Inc., a security corporation, Mims was terminated in March 2017. The given reason was that it appeared as if Mims falsified his timesheet to get paid for time he did not work. This termination was made 8 months after Mims received thousands of dollars in back taxes when New Age was investigated by the Department of Labor. Mims then brought suit, alleging retaliation by his former company.

The Court reviewed the Fair Labor Standards Act (FLSA) to see if Mim’s termination was lawful. In Pennsylvania, courts looks at three necessary elements to establish a prima facie case of retaliation under the FLSA, “(1) the plaintiff engaged in protected activity, (2) the employer took an adverse employment action against him, and (3) there was a causal link between the plaintiff’s protected action and the employer’s adverse action.” Scholly v. JMK Plastering, Inc., No. 07–4998, 2008 WL 2579729, at *3 (E.D. Pa. June 25, 2008) (citing Preobrazhenskaya v. Mercy Hall Infirmary, 2003 WL 21877711 (3d Cir. 2003) (citation omitted)). Mims insisted that his former manager and employer knew of his participation in the DOL investigation and fired him because of it. The Court looked at the Mims’ Complaint and saw that he had no proof that his company or manager knew he took part in the investigation. The Court pointed out that even if his employer knew the eight month gap is too far between to establish a clear connection timewise. The Court also focused on the two promotions that Mims received during his time at the company so they concluded there was no animosity at all. Thus, the Court found that Mims termination did not violate the FLSA.

The Court then moved onto Mims’ allegation of defamation. In Pennsylvania, a A plaintiff must establish: (1) The defamatory character of the communication. (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its defamatory meaning. (5) The understanding by the recipient of it as intended to be applied to the plaintiff. A statement is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from association or dealing with him.”

The Court looked at one of the emails that seemed to impute that Mims engaged in criminal and/or improper conduct punishable by either imprisonment or judicial sanction to all employees of the company. The company tried to defend itself by asserting that the email was sent out to only certain privileged people at the company who needed to know that Mims was terminated and why. The Court ruled that the issue was too contentious to decide without further evidence and allowed Mims to amend his Complaint regarding the defamation claim.

At the Law Office of Sidkoff, Pincus & Green, 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.

Supreme Court Ruling States That ADEA Applies to Public Employers with Less Than 20 Employees

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A new unanimous ruling by the United States Supreme Court in Mount Lemmon Fire District v. Guido states that all public employers in every state must now comply with the Age Discrimination in Employment Act (ADEA), regardless of how many or how few individuals the organization employs.

Prior to 1974, the ADEA only applied to private employers, which meant that employees of public entities were not protected by law against age discrimination. In 1974, Congress amended the ADEA to include a wider range of employers. Specifically, Congress modified the definition of “employer” to include public employers that had twenty or more employees. However, since the amendment was made, courts interpreted the definition in ways that prevented certain states and political subdivisions from being subject to the ADEA.

In Mount Lemmon, two seasoned fire fighters from Mount Lemmon, Arizona were terminated after budget cuts. The two firefighters claimed that they were discriminated against due to their age, and that the fire department was in violation of the ADEA.  The Equal Employment Opportunity Commission (EEOC) agreed, but the federal district court found in favor of the fire department, because it was a public employer with fewer than 20 employees.

The 9th Circuit Court of Appeals reversed the ruling, stating that the language of the ADEA created a distinction between a “person” employer, who must have at least twenty employees, and a public employer, to whom the 20 employee threshold does not apply. Other circuit courts likewise found the language ambiguous. The Supreme Court granted a review of the case due to the circuit split.

The key issue in the case had to do with the phrase “also means” in the definition clause, and whether it added new categories of employers, or simply clarified the employees mentioned in the clause. The firefighters argued that the wording added new categories of employees, while the Fire District claimed that the language clarified the term “person” to include any organized group of persons, which includes state and local employers.

The Supreme Court found that the phrase, “also means” is additive in nature. As a result, state and political subdivisions are considered an additional category of employers, and thus do not need to satisfy the 20 employee threshold.

Philadelphia Employment Lawyers at the Law Office of Sidkoff, Pincus & Green P.C. Represent Clients in Age Discrimination Cases

Philadelphia employment lawyers at the Law Office of Sidkoff, Pincus & Green P.C. protect employees who have been discriminated against due to their age. To set up a confidential consultation, call us today at 215-574-0600 or contact us online. Our offices are located in Philadelphia, where we represent clients in Pennsylvania and New Jersey.

Google Sued for Age Discrimination

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More than 200 Google employees have filed a class action lawsuit against the tech giant. They claim the company violated the Age Discrimination in Employment Act by hiring younger candidates over older, equally qualified individuals. Each of the plaintiffs involved in the lawsuit is 40 years of age or older, which they claim was the reason why they were not hired. Google agreed to pay an undisclosed amount to each of the plaintiffs, but the parties have not yet settled on the non-monetary component of the settlement.

The lawsuit, which was originally filed in 2015, alleged that if an older worker applied for the same position as a similarly qualified younger worker, Google was less likely to hire the older worker based on age. In fact, one plaintiff claimed that she was told to include her graduation date on her resume so that the Google recruiter could determine her approximate age. This is a violation of federal law. According to Google employees, there is also a widely known internal code word, known as “Googleyness,” that is used to describe young employees. Google agreed that the term exists, but that it refers to other factors, like the ability to accept constructive feedback and the ability to be a team player.

Google went on to defend itself by saying that its company handbook addresses age discrimination and the fact that it is against the law to withhold employment to an individual based on age. However, the Court case was more interested in the company’s employment track record than what is written in Google’s handbook.

In addition, the Department of Labor found incidences of “extreme” age discrimination at Google after it conducted its own investigation. This may have been a factor in Google’s decision to settle.

Any employee who feels that he or she has been discriminated against based on age, gender, religion, sexual orientation, or any other protected class is urged to contact a reputable employment lawyer. The law protects victims of age discrimination and all other forms of employment discrimination.

Philadelphia Employment Lawyers at the Law Office of Sidkoff, Pincus & Green P.C. Represent Clients in Age Discrimination Cases

If you or someone you know has been discriminated against at work because of your age, you are urged to contact the Philadelphia employment lawyers at the Law Office of Sidkoff, Pincus & Green P.C. To schedule a consultation, call us at 215-574-0600 or contact us online today. Our offices are conveniently located in Philadelphia, where we serve clients throughout Southeastern Pennsylvania and South Jersey.

EDPA Finds No Breach of Contract or Bad Faith by Company that Raised Monthly Electricity Rates Following First Month “Teaser” Rate

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In Silvis v. Ambit Energy L.P, the Court held that Plaintiff failed to rebut Defendant’s showing that there was no genuine dispute as to any material fact and awarded summary judgment in favor of Defendant. Silvis v. Ambit Energy L.P, 170 F.Supp.3d 754, 759 (E.D. Pa. 2016). Plaintiff contracted with Defendant to supply electricity based on variable rate plan under which she paid a “teaser” rate for the first month and thereon, the rate fluctuated. Plaintiff asserted that Defendant enticed her to switch her supplier. Plaintiff became quickly disappointed after the “teaser” rate expired because her bill would swell during certain months. Ultimately, Plaintiff field a class action alleging breach of contract. Specifically, that Defendant breached its agreements with Plaintiff and the Proposed Class members by charging rates that did not meet contractual obligations.

Under Pennsylvania law, a breach of contract claim includes the following elements: “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Because there was no express provision in the contract requiring Defendant to provide a competitive rate, Plaintiff failed to allege a breach of an express contractual provision. Plaintiff also contended that Defendant breached the implied covenant of good faith and fair dealing by exercising its rate-adjusting discretion in bad faith. The Court explained that, while there is no separate cause of action for breach of the implied covenant of good faith and fair dealing, the Courts instead utilize the good faith duty as an interpretive tool to determine the expectations in the context of a breach of contract claim. Plaintiff did not prevail on this claim because she did not proffer any legitimate evidence of bad faith and in order to survive a motion for summary judgment, Plaintiff must show there is a genuine dispute as to a material fact. Thus, Defendant was awarded summary judgment.

Philadelphia contract lawyers at the Law Office of 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.

  Category: Breach of Contract, Employment Law
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Middle District of Pennsylvania Rules Employees Do Not Qualify for Motor Carrier Act Exemption to the FLSA

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In Mazzarella v. Fast Rig Support, LLC, the Middle District of Pennsylvania held that truck drivers who primarily transported water from various fracking sites within Pennsylvania did not qualify under the Motor Carrier Act exemption to the FLSA.  823 F.3d 786 (M.D. Pa. 2016). Plaintiffs claimed that they often worked in excess of forty hours, but only received overtime when they exceeded forty-five hours in a single week.  Under the FLSA, employees are entitled to 150% of their hourly wage for any hours worked above forty. There are various exceptions to this overtime requirement including employees “to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service.” These exemptions, including the one at issue, must be construed narrowly against the employer, thus the defendant bears the burden of establishing “plainly and unmistakably” that the employees fall within this exemption.

The Motor Carrier Act exemption required Defendant to show that the drivers’ transportation of water was part of a continuous stream of interstate travel. When analyzing this issue, courts refer to various factors including the following: (1) whether and to what extent a product pauses in a warehouse or other location during transportation before reaching its final destination; (2) whether the product is altered in any way during its transport; (3) the employer’s intent concerning the delivery of the product at the time the transportation commences; and (4) whether the employer’s business involves an integrated system of interstate shipments.”

In an attempt to satisfy these factors, Defendant presented a DOT certificate, which authorized the drivers to engage in interstate commerce, an online article stating that most fracking water is trucked out of Pennsylvania into Ohio, and lastly, a spreadsheet indicating that certain shipments of water were tracked and bound for specific destinations in Pennsylvania. The Court found that none of this evidence “plainly and unmistakably” established that the employees were engaged in interstate commerce, and thus rejected Defendant’s argument and refused to apply the Motor Carrier Act exemption.

For more information, call our Philadelphia employment lawyers for Fair Labor Standards Act in Philadelphia and South Jersey at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

  Category: Employment Law, FLSA
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Pennsylvania District Court Holds that Plaintiff was Exempt from Overtime Compensation Under the PMWA

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In Baum v. Astrazeneca LP, the Western District of Pennsylvania held that the plaintiff was employed in a purely administrative capacity and thus exempt from overtime compensation. 372 Fed. Appx. 246 (W.D. Pa. 2010). Plaintiff, a former pharmaceutical sales representative for AstraZeneca, filed for unpaid overtime wages under the PMWA. Plaintiff worked as a pharmaceutical sales specialist assigned to promote and visit with surrounding physicians. During these visits, Plaintiff would provide meals, promote the newest products, and address other medical areas all in an attempt to sell AstraZenenca products. In total, Plaintiff regularly worked sixty to seventy hours a week, travelling, setting up the meals, and promoting these products. Plaintiff brought a claim under the PMWA for unpaid overtime compensation for the hours in excess of forty that she worked.

The PMWA provides an exemption from overtime compensation to an employee who is “employed in a bona fide administrative capacity.” This exemption requires the following: “(1) a salaried compensation is at least $250 per week, exclusive of board, lodging or other facilities; (2) the employee’s primary duty consists of the performance of office or nonmanual work directly related to the management policies or general operation of his/her employer or the customers of the employer; and (3) primary duty requires the exercise of discretion and independent judgment.”

The Court held that the Plaintiff satisfied all three factors of this administrative capacity test and therefore was exempt from overtime compensation. Plaintiff earned more than $250 a week, her primary duty was nonmanual work related to the general operation of AstraZenaca, and since she spent most of her workday unsupervised and had discretion in how she set up the promotions and events, the third prong was satisfied. Therefore, the Court held in favor of AstraZeneca and rejected Plaintiff’s claim for overtime compensation.

If you have been denied overtime wages, the experienced Philadelphia employment lawyers at the Law Office Of Sidkoff, Pincus & Green will fight to get you the compensation you deserve. To schedule a consultation, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we serve clients throughout Southeastern Pennsylvania and South Jersey.

Pennsylvania District Court Denies Plaintiff’s Motion for Summary Judgment Regarding Claim for Unpaid Overtime for Time Spent Taking Protective Equipment On and Off

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In Tyger v. Precision Drilling Corp., Rodney Tyger, an employee of Precision Drilling Corp., brought a suit under the Fair Labor Standards Act (“FLSA”) seeking compensation for the amount of time it took to put on, and take off, personal protective equipment as well as compensation for the time it took to walk from the personal protective equipment changing area to the post-shift safety meeting location. Tyger v. Precision Drilling Corp., 308 F.Supp. 3d 831 (M.D. Pa. 2018). Precision Drilling Corp. argued that Tyger was not entitled to compensation for putting on and taking off personal protective equipment, or for the time it takes to walk between the area designated for putting on and taking off personal protective equipment and the post-shift safety meeting locations. Conversely, Tyger argued that Precision Drilling Corp. willfully violated the FLSA which entitled him to compensation.

In its argument, Precision Drilling Corp. cited to the Portal-to-Portal Act, which created two exceptions to the FLSA’s mandated compensation. The exception includes, “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform….”Id. at 841. The Supreme Court of the United States has weighed in on what constitutes “principal activity or activities” which are excluded from the Portal-to-Portal Act exception to the FLSA’s manded compensation as, “all activities which are an ‘integral and indispensable part of the principal activities.’” Id. (citing Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (U.S. 2014)).  Therefore, “an activity is integral and indispensable to the principal activity that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Id. at 841.

The Court analyzed whether putting on and taking off personal protective equipment was an “integral and indispensable” aspect of employment. The Court found that when dealing with hazardous chemicals, employees of Precision Drilling Corp. put on and took off personal protective equipment while on the clock. The Court denied Tyger’s Motion for Summary Judgment claiming an issue of material fact existed as to how toxic the oil-based mud, a biproduct of oil and gas drilling, was to the employees and whether it necessitated putting on and taking off personal protective equipment.

For more information, call our Philadelphia employment lawyers for Fair Labor Standards Act in Philadelphia and South Jersey at the Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

  Category: Employment Law, FLSA, Wage and Hour Disputes
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Pennsylvania District Court Grants Motion to Dismiss in Favor of Defendant in FLSA and PMWA Wage Violation Claim

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In Matthews v. BioTelemetry, Inc., the Court found that the facts of the case did not create a plausible inference that Plaintiff was “based in Pennsylvania”, as is required for the application of the Pennsylvania Minimum Wage Act (“PMWA”). Matthews v. BioTelemetry, Inc., Civil Action No. 18-561, 2018 WL 3648228 (E.D. Pa. 2018). Plaintiff, a Virginia resident, began working for Defendant in 2011. Plaintiff initially worked as a Cardiac Specialist in Defendant’s Norfolk, Virginia office but was ultimately promoted to Remote Holter Technician in 2017. Although Plaintiff worked in the Norfolk office, Defendant’s principal place of business was in Malvern, PA. In this role, Plaintiff generally worked a total of 47.5 hours per week and occasionally on weekends. For wage purposes, Defendant classified Remote Techs, Plaintiff’s position, as “not eligible to receive overtime pay” while In-Person Techs were entitled to overtime wages. Plaintiff filed a complaint alleging violations of both the Fair Labor Standards Act (“FLSA”) and the PMWA for unlawfully failing to pay overtime compensation. Defendant moved to dismiss Plaintiff’s PMWA claim.

Defendant contends that Plaintiff was not an employee under the PMWA and specifically argues that independent contractors are distinct from employees and are not entitled to overtime compensation under the PMWA. In addition, Defendant stated that Plaintiff was not “based in Pennsylvania” for purposes of the statute. In deciding whether an individual is “based in Pennsylvania”, the Court employed a five-factor test derived from the Wage Payment and Collection Law (“WPCL”) which includes examination of: (a) employer’s headquarters; (b) employee’s physical presence; (c) extent of employees contact with Pennsylvania employer; (d) employee’s residence; and (e) employees ability to bring his claim in another forum. Plaintiff made only a few allegations which would enable plausible inference that Plaintiff was based in Pennsylvania for purposes of the PMWA. First, Plaintiff pointed to the agreement he entered into when taking the Remote Tech position which said Pennsylvania law was governing. Second, Plaintiff said he was supervised by the Malvern, PA office. Third, Plaintiff had to report to the Malvern, PA office on occasion. Lastly, Plaintiff had to respond to e-mails that originated from the Malvern, PA office. The Court found that the allegations did not create a plausible inference that Plaintiff was based in Pennsylvania for purposes of the PMWA and thus, granted Defendant’s Motion to Dismiss.

Philadelphia employment lawyers at the Law Office of 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.