Category: Employment Law

Third Circuit Affirms Denial of Injunction Blocking Transgender Bathroom Policy

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The Third Circuit Court of Appeals affirmed the denial of a preliminary injunction that would prohibit a school district from continuing its practice of allowing transgender students to use the bathroom and locker rooms of the sex by which they identify. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018). The claim was brought by parents of several cisgender students who claimed that such policy of the Boyertown Area School District violated their Fourteenth Amendment right to privacy, their right to access to educational opportunities, programs, and benefits, and their Pennsylvania common law right to privacy preventing intrusion while using bathrooms and locker rooms. Doe by & through Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d 324 (E.D. Pa. 2017), aff’d, No. 17-3113, 2018 WL 2355999 (3d Cir. May 24, 2018). The policy had been implemented since the beginning of the 2016-17 academic year, the plaintiffs sought the school district return to the prior policy requiring students to use any private facilities associated with their biological sex assigned at birth.

After reviewing the testimony of the students whose parents brought the complaint, testimony from a transgender student at the Boyertown Area Senior High School, and testimony from Dr. Scott Leibowitz, an expert in gender dysphoria and gender identity issues in children and adolescents, the trial court denied the motion for preliminary injunction. The court concluded that the plaintiff students “did not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” Much of the emphasis by the court was predicated on the fact that the plaintiffs, if they were uncomfortable sharing private facilities under the policy, could have used private stalls or an alternative facility like the nurse’s office.

The plaintiffs failed to meet the “particularly heavy burden” of showing they were entitled to the preliminary injunction as they did not seek a return to the status quo but a change in a policy that stood for a year.  Further the plaintiffs had not sufficiently shown that they were likely to suffer “irreparable injury” if the injunction was not issued as the policy had been around for almost a year when they filed their complaint. The Third Circuit affirmed the denial of the preliminary injunction “for the reasons that the Court explained in its exceptionally well reasoned Opinion”. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018).

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

Third Circuit Court Adopts “Honest Belief” Defense in FMLA Case

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When an employer reasonably believes an employee may be misusing FMLA leave, evidence of why the employer came to that “honest belief” can serve as a defense to a retaliation claim under the FMLA. See Capps v. Mondelez Global, LLC, 847 F.3d 144, 152 (C.A.3 (Pa.) 2017).

In the above-mentioned case, the employer fired an employee after it believed he intentionally misused intermittent FMLA leave.  After enduring bilateral hip replacement in 2003, the employee developed arthritis that would cause severe pain, sometimes lasting for days or weeks at a time. This condition required the employee to request intermittent FMLA leave to cover any time he could not work and continued to be recertified for leave every six months. In early February of 2013, on a day the employee requested off due to his condition, he was arrested for DUI. After spending the night in jail the employee also requested leave the next day. The employee never reported this arrest to the employer and subsequently began requesting leave multiple times after that for his condition. About a year later, when a HR manager became aware of the employee’s DUI conviction, the employer investigated and noticed on certain days of requested leave the employee had corresponding court dates.

The employee ultimately was terminated for misusing FMLA leave and violating a company policy on dishonest acts. On appeal, the employee argued the employer was mistaken in their belief to fire him and instead it retaliated against him for taking intermittent FMLA leave. The Third Circuit affirmed the lower court’s decision to grant summary judgment on behalf of the employer, finding the employer had an “honest belief’ of the employee’s misuse of intermittent FMLA leave.

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

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Supreme Court to Rule on Legality of “Fair-Share Fees”

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On February 26th, the Supreme Court heard arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 851 F.3d 746 (7th Cir. 2017). Although the Court will not circulate a decision until summer of 2018, commentators are speculating that Janus will succeed in overturning the precedent set in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court allowed a public employer to require its non-union member employees to pay a fee because they benefitted from the unions collective bargaining agreement with the employer. The fees were not permitted to cover any political funding whatsoever, only the proportionate costs incurred during contracting.

In this case, Mark Janus, a public employee, is challenging an Illinois state law that requires non-union members to pay a “fair share” fee to the union that negotiated on the non-members’ behalf. The “fair share” fee was enacted to cover a proportionate share of the costs the union accrued in negotiating the contract. The fee combats against “free-riding”, whereby a non-union member enjoys the benefits of the contractual work performed by a union without having to pay a fee for those benefits. Janus contends that the fee violates his First Amendment rights because the fees are a form of compelled speech and association which should be reviewed under heightened scrutiny.

The Supreme Court’s ruling could prove costly for unions in America. Invalidating the “fair share” fee could drastically reduce union funding and membership.

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

Overtime and the Fluctuating Workweek Method

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Calculating Overtime Using the Fluctuating Workweek Method Does Not Violate the Pennsylvania Minimum Wage Act

The Pennsylvania Superior Court recently resolved a case regarding the method of calculating overtime compensation under the Pennsylvania Minimum Wage Act (PMWA). In Chevalier v. Gen. Nutrition Centers, Inc., 177 A.3d 280 (Pa. Super. Ct. 2017) employees filed a class action against General Nutritional Centers (GNC) for unpaid overtime, specifically that GNC’s method of calculating overtime violated the PMWA. The PMWA provides that employees must be paid overtime at not less than 1½ times their regular rate for every hour worked over 40 in a workweek.

GNC calculated overtime compensation using the fluctuating workweek method (FWW). The FWW determines an employee’s “regular rate” of compensation for the workweek by dividing each employee’s pay by the number of hours the employee worked during the workweek. Therefore, employees’ regular rates fluctuated each week. GNC then paid employees at one-half of their regular rate for each hour of overtime worked. The employees argued that, (1) an employee’s regular rate should have been calculated using a fixed 40-hour workweek, not the fluctuating workweek method, and (2) the overtime pay should have been 1½ times their regular rate for each hour of overtime instead of one-half their regular rate

The Superior Court found that using the FWW to calculate an employee’s regular rate did not violate the PMWA, however, paying overtime of only one-half the regular rate did violate the PMWA. In support of the FWW not violating the PMWA the court mentioned that the Pennsylvania Generally Assembly borrowed the term “regular rate” from the Fair Labor Standards Act, which permitted the FWW method of calculation when the PMWA was enacted. In support of paying overtime of one-half the regular rate violating the PMWA the court cited a Pennsylvania regulation requiring employers to pay employees not less than 1½ times their regular rate of pay for all hours exceeding the 40 hours threshold. In conclusion, the FWW is permissible under the PMWA, however overtime must still be paid at 1½ times the employee’s regular rate.

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

Pennsylvania Employee Terminated for Legitimate Reasons Despite Claims of Hostile Work Environment and Retaliation

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On February 13, 2018, a jury found in favor of a defendant employer against a plaintiff alleging hostile work environment and retaliation. In Johnson v. Keystone Quality Transp. Co., Johnson, a former employee of Keystone working as a paratransit van driver, alleged hostile work environment and retaliation after she was terminated. No. 2:16-cv-06603-GJP. Johnson alleged claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. (“Title VII”) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951, et. seq. (“PHRA”).

According to the Complaint, while working at Keystone, Johnson’s supervisor began sexually harassing and assaulting her, including sending inappropriate pictures of himself and groping her more than once. Once Johnson reported the harassment, the supervisor was terminated by Keystone for his actions. However, about a week later, Plaintiff was suspended and ultimately fired. In her suit, Johnson alleged she was terminated in retaliation for reporting the harassment.

Keystone successfully rebutted Johnson’s claims by proving that Johnson’s suspension was a result of taking the wrong vehicle and preventing the use of another vehicle as she had the set of car keys on her. Keystone argued that after the suspension was over, Johnson was not terminated, but rather she abandoned her job, as she failed to come back to work. Weighing the facts of the case, a jury determined there was no sexual harassment or retaliation by Keystone against Johnson.

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

Sixth Circuit Rules Discrimination Against Transgender/LGBTQ Employees Violates Title VII

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transgender/lgbtq discrimination

On Wednesday, March 6, 2018, the Sixth Circuit Court of Appeals held that discrimination against transgender/LGBTQ employees is discrimination based on sex, a violation of Title VII of the Civil Rights Act of 1964. In Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., the employee, born biologically male, worked as a funeral director for a corporation that operates Michigan funeral homes. 2018 WL 1177669, at *1 (C.A.6 (Mich.), 2018). The employee was terminated soon after informing the owner of the funeral home that she planned to transition and would represent herself as a woman. After receiving the employee’s complaint, the EEOC investigated the allegations of sex discrimination and learned in addition that the funeral home had in place a discriminatory clothing policy, providing males with clothing adhering with the dress codes, while woman received no such benefit. The EEOC filed suit on behalf of the employee, alleging violations of Title VII based on the termination of the employee and the discriminatory clothing policy.

The Sixth Circuit ultimately found in favor of the EEOC on the unlawful discrimination claim, holding that firing an employee “because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.” Furthermore, the Court determined that the funeral home could not use the Religious Freedom Restoration Act as a defense because there would be no substantial burden to their religious exercise by continuing to employ the individual.

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

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Court Defines Supervisor Under Title VII

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The United States Court of Appeals for the Third Circuit recently issued a precedential opinion interpreting what it means to be a supervisor in a hostile work environment case. The Court found that a supervisor is someone who controls a sizeable amount of the hours employees work, and/or someone who determines whether employees will be assigned work.

Moody v. Atlantic City Board of Education

Employee Michelle Moody was hired by the Atlantic City Board of Education (BOE) to serve as a substitute custodian in 2011. Moody alleged that she was unhappy with the unsteady nature of her employment, as she was only gainfully employed when the primary custodian could not work. She wanted to work more hours and raised her concerns with a member of the BOE, who suggested that she speak to the custodial foremen of different districts. The BOE member told her that these foremen were responsible for delegating authority to select which substitute custodian would fill in at schools in their respective districts.

Moody then contacted 10 foremen from different school districts, including one named Maurice Marshall. Marshall allegedly began harassing Moody immediately after she started work. According to the Court’s opinion, he allegedly suggested that he would give her more work if she performed sexual favors for him. After a litany of disturbing incidents, including explicit text messages, unwanted sexual contact, and unwanted visits to her home, Moody succumbed to Marshall’s unwanted advances. Although she never received more work hours, after reporting Marshall, her work hours steadily declined.

Determining the Meaning of Supervisor

Moody filed a claim in the District of New Jersey, which was ultimately dismissed on grounds that Marshall was not her supervisor, and that she suffered no tangible adverse employment action. The Third Circuit reversed that decision after an extensive review of Marshall’s role in assigning work to other employees. The Court examined a U.S. Supreme Court precedent that interpreted the term of supervisor. Ultimately, the Third Circuit determined that Marshall had the power to decide whether Moody worked at all and had authority to set her hours, falling under the Supreme Court’s definition of a supervisor. The court also found that during the times Moody was chosen to fill in at Marshall’s school, he was her immediate supervisor.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Handle All Types of Sexual Harassment and Discrimination Employment Claims

If you have suffered adverse employment action due to sexual harassment or discrimination, you may be entitled to compensation. To arrange a consultation with one of our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C., 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.

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.

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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.