Category: Employment Law

PA Court Denies Unemployment Compensation for Claimant who Engaged in Disqualifying Willful Misconduct

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On July 12, 2018 the Commonwealth Court of Pennsylvania affirmed a decision by the Unemployment Compensation Board of Review (“Board”) denying benefits to a claimant who had been terminated from his job after engaging in hostile, abusive, and violent conduct towards a co-worker. Allen v. Unemployment Comp. Bd. of Review, No. 1460 C.D. 2017, 2018 WL 3383382, at *1 (Pa. Commw. Ct. July 12, 2018). Claimant had been terminated from his position as a quality control technician after he proceeded to instigate a confrontation with a supervisor, attempted to induce the supervisor into a physical altercation while mentioning a weapon, followed his supervisor in his vehicle, and directed highly derogatory and offensive language at his supervisor. The supervisor, who also used derogatory language toward Claimant, repeatedly sought to avoid a physical confrontation with Claimant. When the supervisor reported the incident to the human resources office of their employer, Claimant attending a meeting wherein he provided his account of the incident and was subsequently terminated. The supervisor was not terminated by the employer.

Claimant appealed from the denial of benefits by the Board arguing that his employer did not treat both parties uniformly and did not fairly investigate the incident. Disparate treatment of employees by an employer is an affirmative defense by which an employee may still be eligible for unemployment benefits. The Court found that there was substantial evidence in the form of voicemails and text messages from Claimant to his supervisor demonstrating hostility and attempts to engage in violent and threatening conduct. Further the Court affirmed the discretionary ability of the Board to identify the credibility of the accounts by the parties involved in an incident. The Court held that the employer did in fact treat both Claimant and supervisor equally in spite of the supervisor not being terminated. Although both parties engaged in abusive language towards one another, the Court found that the Board did not err in finding Claimant’s conduct threatening and indicative of an attempt to engage in physical violence. Precedent in Pennsylvania has established that simply because one party has been terminated for willful misconduct while other involved parties have not been terminated for the same or similar misconduct is not sufficient to establish disparate treatment. Therefore, Claimant’s conduct was found to have been willful misconduct which disqualified him from being eligible for unemployment compensation benefits.

For more information, contact the Philadelphia employment lawyers at The Law Office of Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Eastern District of PA Reinforces Elements of Racial Discrimination Claim against Employer

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The Eastern District of Pennsylvania maintained and emphasized the requisite elements to sustain a claim for racial discrimination by an employee against their former employer. Jordan v. Staffing Plus, Inc., No. CV 17-4020, 2018 WL 3046612, at *1 (E.D. Pa. June 20, 2018). Plaintiff Dominique Jordan (“Jordan”) brought a claim for racial discrimination under 42 U.S.C. § 1981 after he was terminated by his former employer Staffing Plus, Inc. At some point while still an employee of Staffing Plus, Jordan was arrested and faced charges that were later dropped. However after being arrested, several local news media outlets began reporting on the arrest. Jordan alleged that Staffing Plus made no investigation into the veracity of the allegations and proceeded to terminate his employment based on the news coverage. In his statement, Jordan claimed that he would not have been fired under similar circumstances if he were “pale skinned or Caucasi[a]n” and was terminated because he was “black.”

Staffing Plus filed a Motion for Summary Judgment. To sustain a claim for racial discrimination a party must plead facts to support the elements that (1) the plaintiff is a member of a racial minority (2) there was intent to discriminate on the basis of race by the defendant and (3) discrimination concerning one or more of the activities enumerated in the statute, which includes the right to make and enforce contracts. The Court granted Staffing Plus’s Motion for Summary Judgment because Jordan alleged no facts to support the second and third elements of a racial discrimination claim. The Court pointed to the complete lack of factual allegations regarding any pattern of racial derogatory statements or discriminatory comments made by Staffing Plus. Jordan did not allege that any other contractors of different races were treated more favorably after being arrested or being subjected to negative media coverage. The Court found that Jordan relied “solely on his own bare assertions” and courts have consistently held that “such bare assertions of subjective belief are insufficient to establish an inference of discrimination.” In civil rights cases a court is required to give a party an opportunity to amend their claim after dismissal, but because Plaintiff’s claim had already been dismissed and amended, the Court did not grant further leave to amend.

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

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Pennsylvania Superior Court Upholds Non-Solicitation Agreement Despite Employees Change in Employment Status

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The Pennsylvania Superior court upheld non-solicitation agreements between an employer and employees after their employment agreements expired and the employees continued to work at-will. Metalico Pittsburgh, Inc. v. Newman, 160 A.3d 205 (Pa. Sup. Ct. 2017). Appellees Douglas Newman and Ray Medred (“Employees”) were employed by scrap metal company Metalico Pittsburgh, Inc. (“Employer”) from 2011 to 2015. The Employees signed a three-year employment agreement that included a non-solicitation agreement in part barring employment with any known affiliates or suppliers of the employer. After the three-year period, the Employees remained at the company at-will with some modifications to their jobs compared to the employment agreements. The Employees stayed with the Employer for one year before leaving to work for a competitor, and the Employer filed suit against the Employees and their new employer. The lower court found in favor of the Employees by finding that there was a lack of consideration for the non-solicitation considering there were material changes to the terms of the employment agreements when the Employees started working at-will.

The Superior Court reversed and held that there was adequate consideration and thus enforced the non-solicitation agreements in favor of the Employer. Under Pennsylvania law, there is adequate consideration when a restrictive covenant, such as a non-solicitation agreement, is signed at the beginning of an employment contract. Although the Employees argued that the non-solicitation agreement had expired when they changed to at-will status, this Court found that the explicit terms of the agreements contradicted this assertion. The non-solicitation agreements applied for the full term of the employment, regardless of whether it was under the contract or at-will. Moreover, the contract specifically stated that the non-solicitation provisions survived termination of the contract. The agreements also stated that consideration for the agreements was fulfilled by the payment of compensation and benefits to the Employees. Ultimately, the Superior Court found that the lower court erred and that the non-solicitation agreements were in effect when the Employees resigned and that the agreements were supported by consideration even though the employment agreements had expired, and the Employees were at-will.

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

PA Court Maintains Limited “Coming and Going” Rule in Workers Compensation Claims

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On May 17, 2018 the Commonwealth Court of Pennsylvania declined to extend the “coming and going” rule to cover an electrical worker who sustained substantial injuries in a car accident while driving from home to a job site, despite sporadically receiving compensation for travel expenses. Kush v. Workers’ Comp. Appeal Bd. (Power Contracting Co.), No. 1688 C.D. 2017, 2018 WL 2246523, at *1 (Pa. Commw. Ct. May 17, 2018). The Claimant was employed by two separate corporations doing electrical work, and routinely traveled to different jobs for both employers on the same day. The truck Claimant drove was owned by one of his employer’s, Vantage, but the present claim was against the other employer Power Contracting Company (PCC). Claimant had been working almost exclusively on the same PCC job site for the month preceding the accident.

Claimant sought compensation for medical expenses from PCC for injuries suffered while driving to the same job site after he lost control when driving over an ice patch. The Workers’ Compensation Judge dismissed his claims on the grounds that the “coming and going” rule did not apply to Claimant as he was commuting to a fixed job location. The “coming and going” rule states that injuries sustained by an employee while traveling to and from their place of employment are outside the scope of employment and are generally not compensable. On appeal, Claimant argued that he fell under two exceptions to the “coming and going” rule: he had no fixed place of employment, and his employment agreement included time spent for transportation to and/or from work. On appeal both arguments were rejected by the Court.

The Court emphasized that exceptions for the “coming and going” rule have been narrowly construed and have been fact specific holdings. The Court said that while Claimant may have traveled to different job sites for PCC, for the weeks preceding the accident he had been working at the same site and he anticipated only working at the one site on the day of the accident. The court then found that travel was not included in Claimant’s contract with PCC as his other employer, Vantage, actually owned and provided the truck. PCC did not own or control the Claimant’s means of commute, and while PCC would pay for the gas used to travel to its sites, his wages did not include pay for travel. He was only paid for time spent traveling to pick up equipment for the job by PCC if the pick-up took place on the way to the job. Claimant was not paid for time spent driving home at the end of the day and there were no provisions in his contract covering travel. The Court affirmed the Workers’ Compensation Board’s finding and dismissed Claimant’s petition.

he experienced Philadelphia employment lawyers at the Law Office of Sidkoff, Pincus & Green P.C. are available to answer questions about your case. To learn more about how we can help, call us today at 215-574-0600 or contact us online. Our offices are centrally located in Philadelphia, and we serve clients throughout Pennsylvania and New Jersey.

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PA Court Continues Trend of Expanding the Definition of Work Premises

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On February 22, 2018 the Commonwealth Court of Pennsylvania affirmed the growing practice of expanding the boundaries of work premises in order to protect employees injured on the job. US Airways, Inc. v. Workers’ Comp. Appeal Bd. (Bockelman), 179 A.3d 1177, 1183 (Pa. Commw. Ct. 2018), reargument denied (Mar. 28, 2018). A Philadelphia flight attendant working for US Airways, Inc. suffered significant knee and leg injuries while attempting to move her suitcase onto the luggage racks of the shuttle bus that transports employees from a separate parking facility to the workplace of her employer. US Airways did not own, rent, or lease the shuttle buses, and did not require use of the shuttle or provide any directive at all to employees as to how employees should commute to work. The attendant brought a claim seeking compensation to cover the medical expenses for her injuries. The Workers’ Compensation Judge (WCJ) found that the employee was injured in the course and scope of her employment, US Airways appealed.

On appeal US Airways challenged the argument that the shuttle was part of the protected premises for employees. The Court emphasized that the term “premises” in the scope of the workplace was not limited solely to property actually owned or leased by the employer. The Court relied on precedent to establish that “premises includes reasonable means of access to the workplace” and that “means of access customarily used by employees” may be considered within the scope of employer’s premises. US Airways understood that employees who drove to work would almost always be required to park in the separate parking facility and use the shuttle system. The court found that the use of the shuttle system was “a necessary part of her employment.” Even if US Airways did not explicitly require its employees to use the shuttle, it was so integral, connected, and expected for employment that the WCJ did not err in concluding that the shuttle was required by nature of the employment. The Workers’ Compensation Appeal Board’s order was affirmed, and rearguement was denied on March 28, 2018.

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

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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.