Category: Employment Law

EDPA Dismisses Disability Discrimination Claim

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Failure to Exhaust Administrative Remedies

The Eastern District of Pennsylvania recently dismissed Plaintiff’s claim for disability discrimination and claim for retaliation because she failed to exhaust her administrative remedies. McIntosh v. White Horse Vill., Inc., 176 F. Supp. 3d 480 (E.D. Pa. 2016).

Plaintiff alleged religious discrimination, racial discrimination, disability discrimination, and retaliation in her Amended Complaint. In McIntosh, Plaintiff worked as a Licensed Practical Nurse (“LPN”) at a retirement home. Full time LPNs are supposed to work on Sundays. She requested an accommodation to be excused from working on Sundays because she wanted to participate in religious services on those days. She was provided this accommodation. Later, she requested and received an FMLA leave for her surgery. Upon returning from her leave, she requested an accommodation to be excused from working on Sundays. The new Director of Nursing denied this request. Plaintiff alleges that she had to step down from her full time position as an LPN to per diem to be able to attend services on Sundays. In Plaintiff’s Amended Complaint that she filed with the Equal Employment Opportunity Commission (EEOC), she alleged religious discrimination and retaliation, race discrimination and retaliation, violations of the FMLA, violations of the ADA, and violations of the PHRA. Defendant moved to dismiss Plaintiff’s counts under the ADA and PHRA, on the basis that those claims were not procedurally exhausted.

The Court dismissed the claims for disability discrimination and retaliation because the Plaintiff failed to exhaust administrative remedies. The Court reasoned that Plaintiff failed to claim disability discrimination in her Charge to the EEOC. Further, she did not have anything in her Charge to the EEOC that would lead the Court to infer that she was alleging a disability discrimination.

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

NJ Court Holds Employer’s Insurance Did Not Cover Sexual Harassment Claims

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The Federal District Court for the District of New Jersey recently issued an opinion addressing whether an employer’s insurance policy provides coverage for allegations of sexual harassment against an employee.  U.S. Magistrate Judge Cathy Waldor issued an unpublished decision agreeing with defendant Lloyd’s of London that the policy it had underwritten did not cover an ambulance service’s employee’s sexual harassment lawsuit.

The Insurance Policy

Aaron Ambulance’s main insurance policy contained a clause that excluded from professional liability coverage allegations of sexual misconduct, sexual abuse, and child abuse.  It also excluded claims brought by one insured employee against another for discrimination.  However, Aaron Ambulance had purchased a coverage extension, such that claims arising out of sexual misconduct, sexual abuse, and child abuse would be covered, as long as the sublimit of coverage threshold was met.  The policy extension was memorialized in an endorsement.  The terms of the extension were also subject to the condition that the endorsement did not change any other terms or conditions of the policy.

The Claim

An employee of Aaron Ambulance filed a suit against her employer, alleging that she was sexually harassed and abused while employed by Aaron.  Underwriters at Lloyd’s denied coverage to Aaron for the lawsuit, on grounds that the extension of coverage for sexual misconduct did not insure claims filed by employees—it only covered claims of sexual misconduct filed by patients.  Aaron Ambulance claimed that the policy gave rise to a reasonable expectation that the extension would cover employment-related sexual harassment claims.

The Decision

The court ultimately sided with the Underwriters, Lloyd’s of London.  The judge found that the endorsement did not extend to employment practices coverage (claims filed by employees), and was restricted to professional liability (claims filed by patients).  The Court described the alternate reading as generous interpretation, and used a “plain reading” approach in conjunction with references to other exclusions in the policy (excluding claims brought by employees for discrimination).  In other words, the main policy specifically excluded employee claims of sexual harassment, and the coverage extension simply allowed coverage for claims of harassment filed by patients—that is why the two passages (the main form and the extension) were not inconsistent with one another.  On this basis the Court found that Aaron Ambulance could have held no reasonable expectation that the policy extended to cover sexual harassment claims filed by employees.

Philadelphia Sexual Harassment Lawyers at Sidkoff, Pincus & Green P.C. Handle Sexual Harassment Claims

At Sidkoff, Pincus & Green, we represent individuals in all types of employment related disputes and litigation, including claims for sexual harassment. To learn more about how our sexual harassment lawyers in Philadelphia can help you, call us today at 215-574-0600 or contact us online.

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.

Best-Interest Contract Provision from DOL Fiduciary Rule

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The Best Interest Contract, sometimes referred to as BIC, is part of the Labor Department’s fiduciary rule. The Trump Administration has mandated a request for information to guide the Department of Labor (DOL) in its review of the rule to either change it, or eliminate it all together. Last week, in a lawsuit over the regulation, the DOL filed documents stating that it would be seeking an 18-month delay in the implementation of the remaining parts of the fiduciary rule. This 18-month waiting period will give federal agencies, such as the Securities and Exchange Commission (“SEC”), a chance to weigh in. 

What is the BIC provision? 

A BIC is a legally binding agreement that allows stockbrokers to earn variable compensation on products that they sell to retirement investors so long as they act in the investors’ best interests. The BIC provision allows investors to file class-action lawsuits over violations of this rule. Lobbyists want to have the rule modified or stricken.

The 18-month delay period will allow agencies, such as the SEC, plenty of time to undo the contract. Critics of the rule say that it is too complicated and that it raises liability costs. At this point, the only thing that is clear is that agencies will continue working on drafting the rule for at least a few years. The SEC has already put out a request for comment on fiduciary duty. The DOL’s request for information also indicates that lawmakers may add specific exemptions to the rule for the sale of certain retirement investment products, such as clean shares.

By delaying the rule’s finalization that the DOL wants to collaborate with the SEC, Finra, and state insurance regulators, it is a very difficult and complex issue. According to many commentators, there is no end in sight.  This can be extremely frustrating to those who work in compliance. It is impossible to advise clients how to comply with regulations when they are hanging in limbo.

Philadelphia FINRA Lawyers at Sidkoff, Pincus & Green P.C. Represent Clients in Class Action Lawsuits

The Philadelphia FINRA lawyers at Sidkoff, Pincus & Green P.C. stay up to date on the latest changes in state and federal business law so that we can advise our clients with an eye to the future. Our trial lawyers represent clients in all types of FINRA lawsuits. To learn more about how we can help, call us today at 215-574-0600 or contact us online today.

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.