Category: Employment Law

Philadelphia Employment Lawyers: Philadelphia Passes Wage Equity Bill

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In an effort to close the wage gap between men and women, Philadelphia Mayor Jim Kenney recently signed a bill preventing employers from asking applicants about their salary history. The Wage Equity Bill makes Philadelphia the first major American city to ban employers from asking candidates what they were paid at previous jobs. Companies in violation of the new ordinance face fines of up to $2,000.

The bill, first introduced in September 2016, is designed to eliminate the income disparity between men and women. According to a 2015 United States Census Bureau report, women make 79 cents for every dollar that men make. This discrepancy exists regardless of experience, education, or industry. The Pew Research Center also reports that as of 2015, women earn 83% of men’s hourly wages.

The rationale behind the bill is that if women are paid less than what they deserve at beginning of their careers, and potential employers base their salary on previous jobs, they will never catch up to their male counterparts. Though similar legislation already exists in Massachusetts, Philadelphia is the first major city to ban salary inquiries. New York State and Pennsylvania are also considering passing wage equity bills.

The City Council passed the bill with a unanimous vote, but it is already experiencing some pushback from one of the city’s largest employers – Comcast. The media giant, with headquarters in Center City Philadelphia, has already vowed to challenge the ban in court on grounds that it violates employers’ free speech. The Greater Philadelphia Chamber of Commerce also opposes the bill, saying it gives the perception that the city is “anti-business,” and discourages new employers from setting up shop in Philadelphia.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Clients in Wage Disputes

The team of Philadelphia employment lawyers at Sidkoff, Pincus & Green understands the complexities of employment law matters. Our attorneys represent employees in all aspects of employment law, including wage disputes. Call our Center City Philadelphia offices today at 215-574-0600 or contact us online to schedule a consultation with one of our attorneys.

We serve clients throughout the Greater Philadelphia area including Delaware County, Montgomery County, Philadelphia County, and the towns of Bala Cynwyd, Merion Station, Wynnewood, Darby, Narberth, Upper Darby, Sharon Hill, Cheltenham, Clifton Heights, Folcroft, Lansdowne, Drexel Hill, Elkins Park, Havertown, Glenolden, Ardmore, Gladwyne, Wyncote, Norwood, Holmes and Haverford, as well as New Jersey.

Philadelphia Wage Dispute Lawyers: Third Circuit Rules That Overtime Class Action Cannot Proceed In Arbitration

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Recently, the Third Circuit weighed in on the issue of whether it is up to courts or arbitrators to decide if a class action lawsuit should be adjudicated in court, or in an arbitral forum. This case also dealt with the issue of whether an employment agreement that is silent on the issue of class arbitration permits employees to proceed on a class-wide basis on that basis. In Opalinski v. Robert Half International, the 3rd Circuit sided against the plaintiffs who wished to proceed on a class wide basis in arbitration. The case involved employees of the placement firm, Robert Half.

The plaintiffs were two former staffing managers at Robert Half in New Jersey. The men claim that they were improperly classified as exempt from overtime pay, and wrongfully denied such pay in violation of the Fair Labor Standards Act (FLSA). The defense argued that when the men signed their employment contracts, they waived their right to resolve employment disputes in court. Their contracts provided that such disputes must be submitted to arbitration. However, their contracts were silent in regards to class wide arbitration. The two men brought an action on behalf of themselves and other putative class members who were denied overtime pay.

Shortly after filing the claim, a United States Dihttps://overtimestrict Court judge granted the defendant’s motion to compel arbitration of the employees’ individual claims. However, the district court determined that the arbitral forum had jurisdiction to decide whether class wide arbitration was permissible.  The arbitrator found that such claims could proceed on a class basis in arbitration – and when the defendant sought to overturn this ruling in district court, the trial court sided with the plaintiffs.  Subsequently, the defendant appealed this ruling and the 3rd Circuit reversed and remanded, finding that the decision lies with the courts. The United States Supreme Court then declined to hear the case on appeal. After the case was remanded, the district court granted Robert Half’s motion to dismiss, finding that parties cannot be compelled to submit to class wide arbitration unless there is a contractual basis for concluding such.

The plaintiffs appealed this decision yet again, and the 3rd Circuit recently ruled against them, finding it had already “explicitly decided,” in a precedential opinion in this same case, that the question of arbitrability of class claims is for the court, not the arbitrator, to decide.

Philadelphia Wage Dispute Lawyers at Sidkoff, Pincus & Green Represent Clients in All Types of Wage Dispute Cases

At Sidkoff, Pincus & Green, we routinely handle FLSA claims involving unpaid overtime. Our respected Philadelphia wage dispute lawyers are prepared to answer whatever questions you may have. To schedule a confidential consultation, call us today at 215-574-0600 or contact us online.

 

 

 

Philadelphia Employment Lawyers Discuss the Pennsylvania Commissioned Sales Representative Act

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The Pennsylvania Commissioned Sales Representative Act, 43 Pa. Stat. § 1471 et seq. (“PCSRA”) provides statutory remedies for certain sales representatives when they are not paid timely commissions. Under the PCSRA, a “principal shall pay a sales representative all commissions due at the time of termination within 14 days after termination” and “all commissions that become due after termination within 14 days of the date such commissions become due.” 43 Pa. Stat. §§ 1473–74. If a principal “willfully” violates these provisions, then the sales representative may bring a civil action to collect all unpaid commissions plus exemplary damages and attorneys’ fees. Id. § 1475. The Act thus governs the payment of commissions owed by a “principal” to a “sales representative,” and a defendant can only be liable if the plaintiff is a “sales representative” as that term is used in the Act.

A key factor in determining whether you have a claim under the PCSRA is to understand how the law defines the terms “sales representative” and “principal”.

The PCSRA defines the term “sales representative” as follows:

“Sales representative.” A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.

Id. § 1471.

Thus, a “sales representative” is someone who solicits wholesale orders from “retailers” rather than “consumers.”

A “principal” is defined by the PCSRA as any person who does all of the following:

(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.

(2) Utilizes sales representatives to solicit orders for such product.

(3) Compensates sales representatives, in whole or in part, by commission.

Id.

Finally, a sales representative should be cautioned against bringing a meritless claim against a principal under the PCSRA.  If judgment is entered for the principal and the court determines that the action was brought frivolously, then the principal will be awarded attorneys’ fees and costs. Id. § 1475.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Represent Sales Commissioned Representatives in Claims to Recover Unpaid Commissions

If you are owed unpaid commissions, you may have a valid claim under the Pennsylvania Commissioned Sales Representative Act, among other potential causes of action. Philadelphia employment lawyers at Sidkoff, Pincus & Green will seek maximum compensation for your damages. To learn more about how we may be able to help you, call us at 215-574-0600 or contact us online today.

Philadelphia Business Lawyers: Communications Decency Act

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State Law Claims Such as Defamation and Negligence Barred under the Communications Decency Act

Under the Communications Decency Act 47 U.S.C.A. § 230 (“CDA”), a party is immune to state law claims relating to information published on the Internet such as defamation, misappropriation of likeness, breach of contract, and negligence. § 230 of the CDA states that no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

For example, these provisions bar state law claims against interactive computer services for publishing content obtained from another information content provider. Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 293 (D.N.H. 2008). The intent of this provision is to preclude courts from entertaining claims that would place a computer service provider in a publisher’s role. Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003). The Eastern District of Pennsylvania ruled that the CDA provides immunity to similar claims like misappropriation of the right of publicity, defamation, and negligence. Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d, 242 F. App’x 833 (3d Cir. 2007) citing (Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir.) (§ 230 affords immunity from suit on claims of invasion of privacy, misappropriation of the right of publicity, defamation, and negligence)).

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

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.