Category: Employment Law

Employees Cannot Bypass Title VII

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The Third Circuit is the most recent court to hold that employees cannot pursue Section 1983 claims for claims that also arise under Title VII of the Civil Rights Act.  Under Section 1983, a Plaintiff can proceed directly to court without going through the pre-lawsuit requirements of Title VII and the Americans with Disability Act (ADA).

The Third Circuit is the most recent of eight circuits to have considered whether employees could bypass Title VII and bring a claim against their employer for discrimination under Section 1983 instead.  Each of the eight circuits (including the Third Circuit) that have weighed in has concluded that plaintiff-employees cannot bypass Title VII.  This was a case of first impression in the Third Circuit.

In this case, the plaintiff, Cheryl Williams, filed a lawsuit against her former employer, the Pennsylvania Human Relations Commission (PHRC), and two of her former supervisor’s in their individual capacities as “state actors.”  She alleged that she was discriminated against on the basis of her race and disability.  Williams exhausted all her administrative remedies prior to filing suit.  Because there is no individual liability provision under either Title VII or the Americans with Disabilities Act (ADA), she relied solely upon Section 1983 to attach her two supervisors in the suit.

The Western District of Pennsylvania granted Summary Judgment to her former employer, PHRC, finding that Title VII and the ADA do not create an individually enforceable right under Section 1983.  On appeal to the Third Circuit, the Court affirmed the entry of Summary Judgment in favor of PHRC.  The Court explained that Section 1983 contains no administrative scheme like Title VII and the ADA, which include filing deadlines and limited liability for individual state actors.

According to the Court, by allowing Title VII or ADA claims to be filed as Section 1983 claims would thwart the carefully crafted administrative scheme enacted by Congress, and throw a backdoor open to our federal courts when the front door has been purposefully fortified.  In other words, plaintiffs cannot bypass Title VII to avoid administrative remedies under other provisions.

In short, plaintiffs who seek to recover for workplace discrimination must abide by the full administrative process outlined in Title VII and the ADA.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Actions Filed Under Title VII and the ADA

To learn more about how the Philadelphia employment lawyers at Sidkoff, Pincus & Green can help, call us today at 215-574-0600 or contact us online.  We represent clients in all types of business litigation matters and employment related matters.

Wrongful Termination In Violation Of Public Policy Needs Particularity

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In Spyridakis v. Riesling Group, Inc., 2009 WL 3209478 (E.D. Pa. 2009), the plaintiff-employee brought a claim for wrongful termination on the basis of defendant-employer’s alleged violations of public policy, specifically the right to free speech and to petition government under the U.S. and Pennsylvania constitutions. Additionally, Spyridakis claimed that federal and state labor, employment, and tax laws were also violated. Spyridakis alleged that Riesling Group terminated her for “inquiring with the Bureau about whether defendant properly treated her employment as that of an independent contractor” and the defendant evaded federal and state laws by “classifying workers as independent contractors, but treating them as employees.”

The U.S. District Court for the Eastern District of Pennsylvania dismissed Spyridakis’ wrongful termination claim because of her failure to identify a particular statute, or other source of public policy, that proscribes such conduct. The court explained that under Pennsylvania law, a plaintiff, under these circumstances, must point to specific violations of federal or state law to the extent they embody public policy, and show that they have been violated. The court further explained that Pennsylvania law limits claims of constitutional violations of public policy to incidents involving state actors (and here, the employer was not a state actor).

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

Racial Discrimination Claim Dismissed

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Failure to Exhaust Administrative Remedies

The District Court will dismiss claims of racial discrimination if a plaintiff has failed to exhaust all administrative remedies. In Jones v. Thomas Jefferson Univ. Hosp., the Plaintiff was Khalia Jones, an African American woman who worked for Defendant Thomas Jefferson University Hospital. No. CIV.A. 13-4316, 2015 WL 505491, at *1 (E.D. Pa. Feb. 6, 2015). Jones requested accommodations at work to avoid endoscopy procedures that had radiation due to her pregnancy. Jones’ supervisors had provided these accommodations for white technicians when they were pregnant. The supervisors rejected Jones’ requests and later, terminated her, reasoning that she did not perform her job, “misrepresent[ed] information” to the supervisor, and “walk[ed] [away] from the job.”

Jones failed to exhaust all of the administrative remedies because she neglected to allege racial discrimination in her complaint to the Equal Employment Opportunity Commission and the Pennsylvania Human Rights Commission before bringing this lawsuit. The only allegation alleged in Jones’ EEOC and PA HRC complaint was based on sex discrimination – that Jones’ employer discriminated against her because of her pregnancy by rejecting her requests for accommodations. Due to Jones’ failure to raise claims of racial discrimination at the EEOC level, the District Court dismissed the claims of racial discrimination.

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

Third Circuit Defines “Willful” FLSA Violation

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The issue of whether an employer “willfully” violated the Fair Labor and Standards Act (“FLSA”) by failing to pay overtime wages is important because a willful violation allows a plaintiff to recover an additional year of lost wages. See 29 U.S.C. § 255(a). The question of what a willful violation is appeared recently in a Third Circuit Court decision in Souryavong v. Lackawanna Cty., No. 15-3895, 2017 WL 4159604 (3d Cir. Sept. 20, 2017). The issue in Souryavong arose because Lackawanna County failed to properly aggregate hours worked of county employees, who held two different part-time jobs, resulting in a failure to pay overtime. There was testimony on behalf of the county which said they were generally “aware” of their obligations under the FLSA, and there was also an e-mail from another county official that recognized this error in tracking time of these employees and the county took measures to address and fix the issue.

In order to find the county liable for a willful violation, the county must have known its conduct was prohibited, or “showed reckless disregard for the matter.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). Acting only “unreasonably” is insufficient—some degree of actual awareness is necessary. The Third Circuit determined that willful violations of the FLSA require a more specific awareness of the legal issue than was present in this case. The Court further explained that the county lacked a level of egregiousness, which had been found in other willful violations in sister courts. Weighing these factors together, the Court determined there was no “willful” violation of the FLSA by the county.

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

DOL Exempt Employee Salary Rule Invalidated by Judge

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The latest development in the controversy surrounding the Final Rule, issued by the Department of Labor (DOL) that changed the salary threshold concerning which workers are eligible for overtime, is a final judgement that invalidates the rule entirely.

The Final Rule was one of the last major actions of the Obama administration and raised the salary threshold for exemption from overtime pay from $23,660 to $47,476. Before the changes could go into effect on December 1, 2016, a lawsuit filed in a Texas federal district court won a preliminary injunction against the rule, effectively blocking it. The case known now as Nevada v. U.S. Department of Labor began as two separate lawsuits. In both cases, the plaintiffs argued that the DOL had overstepped its authority by doubling the threshold of the salary test, thereby giving it too much weight and detracting from the value of the Fair Labor Standards Act (FLSA) duties test.

Judge Amos Mazzant combined the two lawsuits into one and granted the preliminary injunction. The DOL appealed his decision on December 1, 2016. Because of the election, everything was essentially on hold during the changeover in administrations. Employers and employees waited in limbo to see how the Trump administration would proceed with the issue.

On August 31, 2017, Judge Mazzant issued a final Opinion and Order in the case granting summary judgement to the plaintiffs. He declared the Rule invalid and unenforceable, stating that we would not be where we are today if the salary level had been adjusted for inflation rather than doubled by the DOL Rule. He agreed that certain salary tests are appropriate, but found that Congress was unambiguous in creating overtime exemptions based on duties and not specific salary levels.

Despite the final judgement by Mazzant, the status of the case is still in question because of the active appeal of his first injunction. The DOL has the option to appeal this ruling, but it is more likely that it will revise the rule and come up with its own update of the salary test. Last year when the Final Rule was first announced, some employers went ahead and raised managers salaries in order to avoid paying them overtime, starting December 1. Other companies waited to take action and it seems they will continue to wait for complete clarity on the issue of overtime.

Philadelphia Employment Lawyers for Fair Labor Standards Act at Sidkoff, Pincus & Green P.C. Provide Counsel on Wage and Hour Disputes

With all the current uncertainty about overtime pay, you may wonder if you are being paid fairly. The Philadelphia wage dispute lawyers at Sidkoff, Pincus & Green P.C. offer counsel for all of your legal employment needs. Call 215-574-0600 today to schedule a consultation about your case, or contact us online. From our offices in Philadelphia, we serve clients locally and throughout Pennsylvania and New Jersey.

Adequate Notice to an Employer to Receive Workers’ Compensation

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Under sections 311 and 312 of the Workers’ Compensation Act, when an injury occurs, an employee has 120 days from the day the injury occurred or from when the injured person had notice that the injury was work-related, to notify the employer of the injury to satisfy “employer knowledge”. 77 P.S. § 632.

In the case Gentex Corp. v. W.C.A.B. (Morack), the plaintiff developed injuries from repetitive lifting of helmets and sowing helmets together every day for over 30 years. 23 A.3d 528, 530-33 (Pa. 2013). Eventually, the plaintiff experienced swelling in her hands and legs, with pain so severe that she needed to take time off of work. The same day, she went to her doctor who informed her that the injury was from the constant, repetitive movements she made to complete her tasks at work. The Supreme Court of Pennsylvania held that the plaintiff’s voice messages to her employer’s phone, noting she has “work related problems,” were enough notice to satisfy the requirement. The court held that even an imperfect notice can satisfy Section 312, especially if the plaintiff admits that his or her notice was imperfect. Because of this ruling, Pennsylvania courts must look at all of the circumstances surrounding notice, because adequate notice is a fact-intensive inquiry that need not be perfect to suffice as adequate.

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. handle cases involving Workers’ Compensation in Pennsylvania. Call 215-574-0600 today or contact us online to schedule a consultation in our Philadelphia office. We represent clients in Pennsylvania and New Jersey.

Workers’ Compensation and Illegal Immigrants

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Under Pennsylvania law, illegal immigrants can apply for Workers’ Compensation if they are injured while working. See, Reinforced Earth Co. v. W.C.A.B. (Astudillo), 810 A.2d 99 (Pa. 2002). In Reinforced Earth, the plaintiff was a maintenance helper and assisted with cutting and welding iron and climbing scaffolds and ladders while lifting steel beams. Id. at 101.  While working, he was struck in the head, neck and back with a steel beam and diagnosed with a concussion, mild head injury and back strain and sprain. Id. Even though he was an illegal immigrant, the court held that he was allowed to receive Workers’ Compensation because the purpose of the law is to protect those who need protection, including those individuals here illegally. Id. at 105. Additionally, the court found that not allowing the plaintiff to receive Workers’ Compensation would reward companies for not inquiring as to a worker’s legal status before hiring. Id. at n. 8.

However, there is a limit to the compensation an injured illegal immigrant worker is allowed to receive. Mora v. W.C.A.B. (DDP Contracting Co., Inc, and Penn National Insurance), 845 A.2d 950, 952 (Commw. Pa. 2004). In Mora, the court held that when an illegal immigrant is able to go back to any type of work, his or her workers’ compensation can be suspended. Id. Mora went from working full-time and earning $800.00 a week to working only part-time and earning only $140.00 a week. Id. The court reasoned that there was a large price gap in the paychecks because the plaintiff was illegal, not because of injuries on the job, and therefore stopped workers’ compensation. Id.

At Sidkoff, Pincus & Green P.C., our Pennsylvania and New Jersey attorneys handle many types of legal matters, including immigrant discrimination. To arrange a consultation with a knowledgeable employment lawyer in Philadelphia, call 215-574-0600 or contact us online.

Pennsylvania Court Upholds PHRC Ruling in Favor of Employee Who Alleged Religious Discrimination and Retaliation After Complaining About Bible Quotes on Paychecks

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In Brown Transport Corp. v. Com., Pennsylvania Human Relations Com’n, Brown petitioned the Court of Common Pleas to review an order of the Pennsylvania Human Relations Commission (“PHRC”) that granted relief to a former employee, Stephen Soffer, who asserted claims of religious discrimination, retaliation, harassment, and failure to accommodate. 578 A.2d 555, 559 (Pa. Comm. 1990). This religious discrimination included bible verses on Soffer’s paycheck and religious articles printed in the company newspaper. Soffer complained about the checks and the articles to management, but they refused to either remove the bible verse stamps on the checks or remove the religious content from the company newspaper.. At one point a manager at Brown told the Soffer that he should be grateful to be getting a paycheck at all. Id. at 556. After complaining multiple times Soffer was fired despite stellar performance reviews.  Id. at 559. The PHRC ultimately found in favor of Soffer, noting his impeccable record two months prior to his termination.  Id. at 561.

Brown petitioned the Court to overrule the PHRC based on the following: 1) the PHRC should not have permitted Soffer to add a claim under Section 5(d) of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(d), for retaliatory discharge; 2) that the PHRC’s findings of fact concerning Soffer’s allegations were unsupported by substantial evidence; 3) the PHRC erred in its application of law to the facts by concluding that Brown committed acts of retaliation and harassment against Soffer; and 4) Soffer was precluded by limitations in  in Section 959(f) of the PHRA, 43 P.S. § 959(f), from recovering any sums in the nature of either punitive or compensatory damages.

The Court ruled that Section 12(a) of the PHRA provides that provisions under the PHRA may be construed liberally, and the PHRC properly construed Soffer’s complaint to sufficiently allege discharge. Second, the Court found that Soffer provided sufficient evidence to support his allegations, and upheld the PHRC’s decision that Brown’s witnesses were non-credible as to why Soffer was fired. Third, the Court ruled that the PHRC’s findings were consistent with the evidence such that it did not err in its application of the law to the facts when ruling that Brown committed acts of retaliation and harassment against Soffer. Lastly, the Court relied on Consumer Motor Mart v. Pennsylvania Human Relations Commission, 529 A.2d 571 (Pa. Comm. 1987) to support the PHRC’s award of punitive and compensatory damages.

Philadelphia Employment Lawyers of Sidkoff, Pincus & Green P.C. Represent Clients in Employment Discrimination Matters

At Sidkoff, Pincus & Green P.C., 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.

A Single Word can Create Liability for Hostile Work Environment

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It has long been the case that a single slur or offensive comment is not enough in order to prevail on a hostile work environment claim. However, this is no longer the case after the Third Circuit’s recent decision in Castleberry v. STI Grp., No. 16-3131, 2017 WL 2990160, at *3 (3d Cir. July 14, 2017). On appeal, the Third Circuit overturned the Middle District’s ruling.  In doing so, the Court explained that the “plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers…Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred).” Id. at 4.  Under these facts, the Third Circuit held that a single offensive slur creates severe conduct that could make a hostile work environment; reversing the long history of prior courts in Pennsylvania, New Jersey, and Delaware that require the conduct to be regular. This new standard is a win for future plaintiffs alleging a hostile work environment because it will now be easier to succeed on their claims.

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C., handle cases involving workplace discrimination. Call 215-574-0600 or contact us online to arrange a consultation in our Philadelphia office, where we represent clients in Pennsylvania and New Jersey.

Trump’s Labor Department Wants Salary Level to Determine Overtime Eligibility

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Recently, the Labor Department filed a brief in federal court challenging whether the Obama administration had the right to double the threshold for the maximum pay a worker can receive and still qualify for overtime. Employees who earn less than the threshold maximum salary are eligible for time-and-a-half. The Obama administration fought to double the maximum salary threshold from $24,000 to around $47,000. This would have meant that those earning less than $47,000 would be eligible for time-and-a-half if they work more than 40 hours a week. This would have resulted in four million more Americans being eligible for overtime pay.

However, last year, a federal court blocked the Obama administration’s rule. Now Trump’s Labor Department has said that it wants salary levels to count in deciding who is eligible for overtime, but it continues to hold off on the maximum pay workers can earn and still qualify for overtime. The Department expressly asked the court not to address the specific salary level set by the 2016 final rule. The Trump administration only requested a ruling on whether the department has statutory authority to set a salary level at all.

Some critics have argued that anything lower than the $47,000 suggested by Obama would adversely affect minority workers. When the Obama administration issued the rule in May of 2016, the Labor Department said that it would go a long way toward ensuring that every worker is compensated for their hard work. Supporters argue that many employees do not even realize that they are eligible for overtime pay.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Advocate for Victims of Unpaid Overtime 

Certain employees who work more than 40 hours a week are eligible for time-and-a-half. If you have only been paid regular wages for overtime hours, you may be entitled to additional compensation. To discuss your case with a skilled Philadelphia employment lawyer at Sidkoff, Pincus & Green, call us today at 215-574-0600 or contact us online.