Category: Employment Law

Philadelphia Business Lawyers: Arbitration Clauses Not Always Enforceable or Advisable

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Arbitration is an alternative to litigating in court and it may lead to a cheaper and more expedient result. It also may be favorable to both sides in certain situations, particularly when it concerns two equal parties with access to equivalent resources saving time and money for all concerned. However, arbitration is often a disadvantage when the playing field is not level,  and for that reason, it is a common tool used by big business against consumers and employees.

Recently the American multinational technology conglomerate, Cisco, tried to force a lawsuit by one of its employees into arbitration and lost in San Francisco Superior Court. An employee filed an age discrimination claim against Cisco. The company responded by stating that the employee had given up the right to sue when she signed her employment contract because it included a clause that said any disputes must be settled by binding arbitration. However, the clause about arbitration was buried within a form that was mainly about intellectual property claims – something every employee must sign in order to be able to work at Cisco.

Judge Harold Kahn ruled that in effect, Cisco had surprised the employee with the arbitration requirement by putting the language in one paragraph on page five of a seven page, single spaced document about proprietary information. Moreover, the language stated that the employee was also obligated to pay half the costs of any employment disputes that went to arbitration, which is against California regulations.

Arbitration is a Common Practice for Companies

Cisco is not the only company trying to use arbitration to its advantage. Wells Fargo is still recovering from the scandal that broke when the practice of opening multiple accounts in a customer’s name without their knowledge became public. Victims seeking justice were forced into binding arbitration by the bank. The original accounts had a clause about arbitration which the bank said also applied to any subsequent disputes. Due to the fact that most results of arbitration cases are not a matter of public record, the scale of the Wells Fargo scandal was kept under wraps for longer than it would have been in a court of law.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green, P.C. Defend Those Being Forced Into Arbitration

Consumers and employees need to be aware of arbitration clauses because they are extremely common. At Sidkoff, Pincus & Green, we have experience representing consumers and individuals in arbitration matters, and in court.

If you have a matter that is in arbitration, or you are concerned about signing a contract with an arbitration clause, please feel free to contact the Philadelphia business lawyers at Sidkoff, Pincus & Green, P.C.. Call us at 215-574-0600 to schedule an appointment or contact us online. We serve clients throughout Pennsylvania and New Jersey.

 

 

Philadelphia Employment Lawyers: Sexual Orientation Discrimination

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In a recent groundbreaking ruling, a Pennsylvania district court found that discrimination based on someone’s perceived sexual orientation falls under the protections of Title VII of the Civil Rights Act of 1964. The individual involved in the case was a homosexual man employed as a telemarketer by Scott Medical Health Center. The lawsuit alleged his manager made offensive and unwanted comments to him about his sexual orientation several times a week. He further claims that he was asked explicit questions and was exposed to homophobic slurs. The man claims he reported the conduct to the health center’s president, but no action was taken to stop the harassment. Ultimately, the man says that he was constructively discharged because the treatment he endured created a hostile work environment.

The defendants moved to dismiss the claim on the grounds that perceived sexual orientation was not protected under Title VII.  However, the court ruled against defendants, finding no meaningful difference existed between sexual orientation discrimination and discrimination because of sex. The court noted that sex stereotyping included assumptions about how a person’s sexuality should conform to their sex and gender. The court ultimately likened the plaintiff’s experience to that of a female employee who is told to dress more femininely, or wear make-up and jewelry in order to achieve promotion. The court cited recent decisions across the U.S. Courts that have increasingly been finding that sexual orientation is a Title VII protected trait. The court also drew from the Supreme Court opinion legalizing same-sex marriage.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Sexual Discrimination and Sexual Harassment Claims

If you have suffered an adverse employment action such as failure to hire, termination, or denial of a promotion on the grounds of your sexual orientation or because of your gender, you may have a valid discrimination claim. Philadelphia employment lawyers at Sidkoff, Pincus & Green will fight back against injustice. We seek maximum compensation for damages suffered as a result of discrimination. To learn more about how we can help you, call us at 215-574-0600 or contact us online today.

Philadelphia Employment Lawyers: Liability for Unpaid Construction Work

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The Pennsylvania Supreme Court recently issued a ruling that limits a contractor’s ability to sue for unpaid work under the Pennsylvania Contractor and Subcontractor Payment Act, referred to as CASPA. The Court held that contractors and subcontractors do not have a right to sue the agents of a property owner if they are not paid for work that they have performed.

In this case, Robert DeBolt, the majority shareholder of a development company, verbally requested that contractor Scungio Borst & Associates (SBA) perform additional work on an ongoing project. The additional work cost an estimated $2.6 million. After the developer failed to pay SBA, SBA sued the development company, another LLC property owner, and DeBolt for $1.5 million. At trial, SBA was awarded a $2 million judgment, to be paid by the property owner and development company. DeBolt, the company’s agent, was not held liable. The Superior Court and Supreme Court upheld the ruling.

Pursuant to the relevant provision of CASPA, the property owner is liable for breach of contract. SBA argued that CASPA defines “property owner” as including “agents of the owner acting within their authority.” But the court disagreed. Justice Debra Todd, on behalf of the court, said that this definition was ambiguous, and looked at the purpose and intent behind the statute to resolve the ambiguity.

The Court found that the overarching purpose of CASPA is to provide a remedy for contractors, but also to avoid some of the flaws inherent in traditional contract lawsuits. For example, without CASPA, a contractor may have to pay their own litigation, or wait until the project was completed before they could sue for payment on a theory of breach. Because an agent is not a party to the contract, SBA’s interpretation would expand a contractor’s right to payment too broadly.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Win Compensation for Workers Denied Overtime Pay

There is nothing more unsettling than the thought of putting in honest work and not getting paid for it. The Fair Labor Standards Act (FLSA) protects employees by requiring employers to pay both minimum wage and overtime pay. Some states have their own, more stringent overtime laws. If you work more than 40 hours a week, in most situations, you must be paid at least one and a half times your regular pay rate for that time. At Sidkoff, Pincus & Green, our experienced Philadelphia employment lawyers have extensive experience fighting for workers denied overtime pay. We are also experienced in fighting for employees who have been involved in breach of contract actions, such as contractors who are not paid for work performed pursuant to an agreement. To schedule a consultation, call us at 215-574-0600 or contact us online today.

Philadelphia Employment Lawyers: Employer’s Overtime Obligations

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The Third Circuit recently reversed a lower court’s decision in an overtime dispute under the federal Fair Labor Standards Act (FLSA) and determined that employees should be awarded overtime for their time spent putting on and taking off uniforms and providing “shift relief” reports before and after shifts.

The ruling involved the company Dupont in the case Smiley v. Dupont. The company argued that because it paid employees for two breaks and lunchtime during a 12-hour shift despite not being required to, that it was exempted from owing overtime for the amounts claimed by its employees.  The Dupont employees claimed to be owed overtime for time related to changing into their required uniform and while performing shift relief related duties.

The Third Circuit found that there was no language in the FLSA that allows for this type of “swap” or offset of the duty to pay employees overtime under the above-mentioned circumstances.

This Ruling Could Have Far-Reaching Effects for Employees

This win for employees has larger implications that will require employers to follow the FLSA more closely and could provide more opportunities for overtime pay.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Employees in Wage and Hour Disputes 

If you are entitled to overtime pay and were not paid, or your work conditions have changed, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600, or contact us online to discuss your rights.

Philadelphia Employment Lawyers: Evidence in Retaliation Claim

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Third Circuits Allows Use of Circumstantial Evidence to Prove Retaliation Claims

On June 27, 2016, the Third Circuit vacated and remanded a Western District of Pennsylvania grant of summary judgment for Defendant Postmaster General of the United States. The District Court concluded that Plaintiff Hillary Kacian failed to put forth sufficient evidence demonstrating that she was fired in retaliation for complaining to her supervisors about sexual harassment.

Hillary Kacian starting working as a letter carrier for the Johnstown Post Office in March 2008. Starting in 2010, Kacian began complaining of instances of sexual harassment from her coworkers, specifically her supervisor George LaRue. Some of the instances of sexual harassment included LaRue asking Kacian for a copy of a photograph of her in a bikini, LaRue making comments about her weight and physical appearance, and LaRue making sexual comments such as telling Kacian to “stay off her knees”. After a year of these comments, Kacian complained to the Union President Joseph Sarosi and another supervisor Jeff Hauser about the harassment, and specifically mentioned the things LaRue had said to her. Kacian testified that Sarosi told her they were going to speak to the Postmaster General, Michael Olsavsky about her claims.

Five days after Kacian made the complaint, she was terminated from her position at the Post Office. LaRue had filed a disciplinary action against her for a driving safety infraction and recommended her termination to the Postmaster, based solely on that incident. Testimony showed that this was not the type of action that supervisors often disciplined, much less terminated someone for; furthermore, deposition testimony showed that LaRue only recommended termination of three employees for much different reasons, included falsifying scans.

Kacian filed a complaint alleging sexual harassment with the Equal Employment Opportunity Commission, who issued her a notice of her right to file a civil action. After Kacian filed suit for retaliation, the District Court granted summary judgment, holding that Kacian could not establish that LaRue knew about the sexual harassment complaint, and that all evidence was speculation based on Sarosi’s testimony.

On appeal, the Third Circuit found that Kacian made a prima facie case of retaliation because she had an objectively reasonable belief the activity she opposed constituted unlawful discrimination under Title VII, and that there was sufficient evidence to raise an inference of a causal connection between the complaint and the termination. Postmaster General argued that there could be no inference of a causal connection, because both LaRue and Olsavsky testified they lacked knowledge of the complaint, and Kacian did not present direct evidence indicating otherwise. The Third Circuit stated that a lack of direct evidence establishing knowledge does not bar a retaliation claim, and that case law allows a plaintiff to establish knowledge through circumstantial evidence. In this case, temporal proximity, combined with circumstantial evidence such as LaRue’s termination recommendation history and the Post Office’s previous disciplining policies. 

Kacian v. Postmaster General of United States, 2016 WL 3509564 (3rd. Cir. 2016)

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

Philadelphia Employment Lawyers: Non-Solicitation Verdict Upheld

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Recently, a Pennsylvania appellate court upheld a $6.9 million verdict for an insurance brokerage firm that sued several former employees who violated their non-solicitation contracts. The employees allegedly tried to lure clients to a competing agency.

Things began when two executives at Balmer began considering launching a new Philadelphia office for competing firm Frank Crystal & Co. (“FCC”). Just one month after these discussions began, the Philadelphia FCC branch opened with three Balmer employees at the helm. The Balmer employees purportedly worked on transitioning to their new positions while on agency phones, computers, and time. One employee allegedly compiled a list of Balmer clients and other trade secrets. Ultimately, the Philadelphia branch of FCC solicited at least twenty-four Balmer clients. One of these clients had been with Balmer for over 25 years and was one of the agency’s biggest.

Balmer sued both FCC and the former employees, seeking damages for breach of fiduciary duty, tortious interference, unfair competition, conspiracy, and other violations. A Chester County judge awarded Balmer $2.4 million in compensatory damages and $4.5 million in punitive damages.

An Undeniable Breach in Contract

The defendants appealed to the Superior Court, urging that the punitive damages be struck, as there was no evidence of outrageous conduct. The court did not agree, finding ample evidence to support the punitive damages. Specifically, the court noted that FCC knew about the Balmer executives’ non-solicitation contracts, yet courted them anyway. Furthermore, the employees had provided FCC with privileged, protected information about Balmer clients.

The court relied on an earlier case wherein a radio station manager solicited members of his sales staff to join him in his move to a competing station. They also persuaded an advertising client to follow them to their new employer. Even though the two cases are distinguishable in that one deals with a covenant not to compete, and the other deals with non-solicitation contracts, the conduct was similar in both.

In ruling against FCC, the court found that when a company hires the entire marketing and sales staff from one agency, the sole purpose is clearly to induce clients of that agency to keep their accounts with with the sales force that is switching agencies. FCC Philadelphia earned approximately $300,000 its first year, all from Balmer Agency clients. The court upheld the punitive damage award.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Counsel on Non-Solicitation Contracts, Non-Compete Agreements

Whether you are trying to craft a solid employment contract, or whether you need an experienced, aggressive team of litigators to handle a claim of breach of contract, the highly regarded Philadelphia employment lawyers at Sidkoff, Pincus & Green are prepared. We take pride in developing successful relationships with our clients. Contact us online or call our offices at 215-574-0600 to speak with a Philadelphia business lawyer.

South Jersey Employment Lawyers: Refusing Flu Shot Results in Lawsuit

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The Equal Employment Opportunity Commission (EEOC) recently brought a lawsuit against a hospital in Erie, Pennsylvania for religious discrimination after it fired six employees based on their flu shot refusal due to religious beliefs.

In this case, the EEOC claims some employees were granted religious or medical exemptions from the flu shot, but that six employees were denied a religious exemption from the shot despite their requests. Nowadays, it is commonplace for healthcare facilities to mandate that all employees obtain a flu shot to minimize the spread of the flu in medical facilities.

Under Title VII of the Civil Rights Act of 1964, employees cannot be discriminated against based on a “sincerely held” religious belief, and the religion does not necessarily have to be a widely recognized or organized one. Under the law, the belief must only be “sincerely held” by the individual.

In this instance, the employees claimed that they belonged to a variety of Christian faiths, such as Russian Orthodox, Methodist, Independent Fundamentalist Baptist, and Christian Mysticism. The hospital’s main defense is that the employees did not provide adequate proof regarding their religious beliefs. The hospital’s policy requires certification by a clergy member regarding the religion prior to approving an exemption.

Religious Discrimination is Not Uncommon

The EEOC has brought other claims throughout the country when employees were wrongfully terminated over religious refusals to the flu vaccines in a healthcare setting. For example, the EEOC brought claims when employees have filed for exemptions after what it called “an arbitrary deadline” and also when an employee allegedly could not be understood when she wore a mask over her mouth in lieu of getting the flu shot.

In these types of religious discrimination cases, the employee must show a sincerely held belief and a religious reason as to why they refuse the flu shot. Additionally, the employees will need to demonstrate that they requested an accommodation or exemption from the flu shot prior to the discriminatory action or termination. The employee has to show that there is no undue hardship on the employer when it grants an accommodation, or in this case, an exemption from its requirement that all employees obtain seasonal flu shots each year.

South Jersey Employment Lawyers at Sidkoff, Pincus & Green, P.C. Represent Employees in Wrongful Termination Suits

If you or someone you know was discriminated against at work as a result of religious beliefs, or wrongfully terminated, call the South Jersey employment lawyers at Sidkoff, Pincus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Non-Solicitation Award

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Superior Court of Pennsylvania Upholds Non-Solicitation Agreement, Awards $6.9 Million in Damages 

On October 7, 2016 the Superior Court of Pennsylvania handed down a ruling upholding the legality of non-solicitation agreements and awarded millions of dollars in damages. In B.G. Balmer & Co. Inc. v. Frank Crystal & Company Inc., et al, 2016 PA Super 202 (Pa. Super. 2016). Plaintiff Balmer sued to former employees as well as their new employer, Frank Crystal. The former employees began planning to work for Frank Crystal six months prior to leaving Balmer. Although they had signed non-solicitation agreements with Balmer, the defendant employees worked with a recruiter during this time and gave up valuable information about Balmer, such as trade secrets and client lists. During their first year at Frank Crystal, the defendant employees generated revenue solely on former Balmer clients, and managed to bring Balmer’s largest client over to Frank Crystal. As a result of the defendant employees’ actions, Balmer lost its client base and had to be sold.

Balmer sued the former employees and Frank Crystal, alleging violation of their non-solicitation agreements, breach of fiduciary duty, tortious interference with contractual relations, unfair competition and other claims. The trial court ruled in Balmer’s favor for a majority of the claims, assessing $2.4 million in compensatory damages and $4.5 million in punitive damages. Defendants appealed the award of punitive damages, but the Pennsylvania Superior Court affirmed the lower court’s ruling and found their conduct egregious enough to warrant a large award.

For more information, call the Philadelphia employment lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Employment Lawyers | Uber Minimum Wage Complaint

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EDPA Denies Uber’s Motion to Dismiss Complaint for Failure to Pay Minimum Wage

On October 7, 2016, Judge Michael Baylson of the Eastern District of Pennsylvania denied Defendant Uber’s Motion to Dismiss a Complaint filed by Uber drivers suing Uber over its failure to pay minimum wage. Plaintiffs brought the Complaint on behalf of all Philadelphia UberBlack drivers. Razak v. Uber Techs., Inc., No. 16-573, 2016 U.S. Dist. LEXIS 139668 (E.D. Pa. Oct. 7, 2016)

The Court agreed with Plaintiffs that they were misidentified by Uber as independent contractors.  The Court ruled in favor of Plaintiffs by classifying them as employees under the FLSA, subjecting them to the Federal Minimum Wage standards.

Plaintiffs allege that Uber failed to pay them the minimum wage of $7.25 per hour, as required by the FLSA. In response, Uber claimed that Plaintiffs’ Complaint was insufficient because they failed to identify their pay rates and waged earned in a work week. Judge Baylson responded in his opinion that under the FLSA the employers are supposed to keep records of the work week information for employees. Judge Baylson further explained that while this was a close case because Plaintiffs did not specifically provide weeks where their wage fell below the Federal minimum wage, there was enough evidence to provide a reasonable inference to the court that Plaintiffs were not paid minimum wage. Specifically mentioned was the fact that Uber automatically deducts certain expenses each week regardless if the driver earned enough money to cover these expenses. Therefore, Uber’s Motion to Dismiss was denied and further proceedings will commence.

For more information, call the Philadelphia employment lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.

Philadelphia Business Lawyers: Qualified Immunity

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Teacher Denied Qualified Immunity After Allowing Child to Leave School With Stranger

A Philadelphia kindergarten teacher, Reginald Littlejohn, was denied qualified immunity in an action alleging that he violated the Fourteenth Amendment rights of a student. Littlejohn allowed the child to leave with a stranger and the stranger then sexually assaulted the child. The stranger was later identified as Christina Regusters. Littlejohn asked for Regusters’ identification as per district policy, however, no ID was produced, and Littlejohn allowed the child to leave with Regusters. Regusters was subsequently convicted and sentenced to 40 years to life for kidnapping and sexual assault. The parents of the child filed a civil suit against Littlejohn in his individual capacity. They did this under the state created danger theory exception to the Fourteenth Amendment’s general rule that the Due Process Clause imposes no liability on states to protect citizens from harm. The parents prevailed and Littlejohn appealed.

Judge Fuentes of the Third Circuit upheld the lower court’s decision that Littlejohn could be held liable to the student. Fuentes went on to explain that while qualified immunity is important for public officials, like teachers, to be shielded from civil cases, there are exceptions to this rule. Fuentes stated in his opinion, “Exposing a child to an obvious danger is the quintessential example of when qualified immunity should not shield a public official from suit” L.R. v. Sch. Dist. of Phila., No. 14-4640, 2016 U.S. App., 89 (3d Cir. 2016).

For more information, call the Philadelphia business lawyers at Sidkoff, Pinus & Green, P.C. today at 215-574-0600 or contact us online.