Category: Employment Law

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.

Philadelphia Employment Lawyers: ADA Suit Against CVS

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The Third Circuit affirmed an order of the United States District Court for the Middle District of Pennsylvania, granting a summary judgment motion for CVS, the defendant in a disability discrimination case brought by the plaintiff, Nicole Moore. Nicole Moore v. CVS RX Services, Inc., No. 15-3836, (3d Cir. Sept. 8, 2016)

Moore was employed by CVS while pregnant. Unfortunately, she developed complications during her pregnancy that made it so she was not able to lift over her head or climb. CVS was unable to give her a job with these limitations, so the company allowed her to go on short-term disability. Moore returned to work after her child was born, but developed post-pregnancy complications. CVS’s Leave of Absence department approved a leave for a small period of time that was later extended to end up being a few months in total. When Moore sought to extend her leave even further, the Leave of Absence department asked her to provide proof or certification from a doctor that she was unable to work.

However, when Moore went to get the certification, her nurse practitioner cleared her for work, saying she could “fully perform her job and that she needed only intermittent leave for follow-up doctor appointments.” The department then rejected her continuous leave. When Moore did not show up for work after her extension was over, she was terminated. Moore filed a complaint for failure to accommodate her disability and disparate treatment.

The Third Circuit stated that to establish a case for failure to accommodate, the plaintiff has to show under the Americans with Disabilities Act that, “(1) plaintiff was disabled within meaning of statute; (2) plaintiff was a ‘qualified individual’; and (3) the employer knew plaintiff needed reasonable accommodation and failed to provide it”. The Court stated there was no genuine issue of material fact as to the second and third elements. The reasoning for this is that a qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Because Moore was unable to lift over or head or climb, she could not perform the basic functions of her job with accommodations, and therefore was not a qualified individual under the statute. Furthermore, CVS provided reasonable accommodation by giving her leave for 6 months; therefore, the third element was not met. The reasoning was similar for the dismissal of the disparate treatment claim, in that Moore needed to prove she was qualified for her job, and that she could perform the essential tasks of her job with accommodation, and she did not.

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

Philadelphia Wage and Hour Lawyers: EDPA Judge Disproves FLSA Overtime Settlement

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Under the Fair Labor Standards Act (“FLSA”), an FLSA claim brought in federal court may only be settled with supervision by the Department of Labor or approval by the District Court. Howard v. Philadelphia Housing Authority, Civil Action No. 15-44662 (E.D.P.A. 2016).

In Howard v. Philadelphia Housing Authority, Judge Eduardo C. Robreno denied a portion of a settlement agreement in an FLSA lawsuit because the release was overly broad. The specific provision at issue required Plaintiff to waive “any and all” claims that related to the termination, and was not limited solely to claims under FLSA or PA wage and hour laws. The Court recognized the language was too broad and extended to areas of law not raised in the lawsuit. If the language was approved, Plaintiff would have waived other rights that could arise from a wrongful termination that were not at issue in the initial lawsuit.

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

Philadelphia Employment Lawyers: Discrimination Claims Dismissed for not Meeting Filing Requirements

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In a recent Third Circuit opinion, the Court ruled that Susan Vangjeli, a former municipal library guard at the Philadelphia Free Library did not properly raise her discrimination claims as required by law. Vangjeli made claims for discrimination, retaliation, and harassment, based on her gender, in violation of Title VII.

 

Vangjeli initiated against the City of Philadelphia and Free Library of Philadelphia suit after observing two male employees receive promotions to full-time jobs, while she continued to be a seasonal employee. The City of Philadelphia and Free Library of Philadelphia moved to dismiss the claim, which was granted by the Trial Court and ultimately upheld by the Third Circuit as well. The court noted numerous deficiencies with appellant’s complaint most notably that she failed to exhaust her administrative remedies before proceeding with the Courts. When complaining of unlawful employment practices, one must first file with the Equal Employment Opportunity Commission (EEOC) within 180 days, or file with a state agency within 300 days. Here, Vangjeli failed to file in proper time by waiting more than one year to file with the EEOC.

For more information on discrimination and retaliation claims call the Philadelphia Employment Lawyers at Sidkoff, Pincus & Green at  215-574-0600 or contact us online.

Philadelphia Employment Lawyers discuss the Growing Problem of Classifying Employees as Independent Contractors

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Employers continue to face legal trouble over whether some of their employees are independent contractors. From an employer’s perspective, this is an important issue with financial consequences. If a worker is an independent contractor, the employer does not bear the costs that they would with other employees. For instance, the employer is not required to pay minimum wage or their share of social security. Recent examples of employees bearing their own costs as independent contractors include FedEx drivers buying or leasing their own vans and Uber drivers paying for their own vehicles, gas and other expenses.

 

There does not appear to be an end to this issue as workers continue to contest their classification as independent contractors throughout the country. In 2015, FedEx settled an independent contractor mislabeling case for $228 million. Uber also faced an independent contractor mislabeling suit and settled for $100 million with 450,000 drivers in Massachusetts and California. Uber continues to have legal issues with the misclassification of drivers throughout the country as a putative class action of drivers from the remaining 48 states was filed in Illinois Federal Court.

 

While companies like Uber and FedEx are facing these ongoing legal battles, the Department of Labor attempted to resolve the issue. In July of 2015, the DOL provided some guidance to help employers determine whether a worker is an independent contractor or an employee. According to the Department of Labor, the factors to be considered are:

 

  • The extent to which the work performed is an integral part of the employer’s business.
  • The worker’s opportunity for profit or loss depending on his or her managerial skills.
  • The extent of the relevant investments of the employer and workers.
  • Whether the work performed requires special skills and initiative.
  • The permanency of the relationship.
  • The degree of control exercised or retained by the employer.

While these factors are useful in determining whether a worker is an employee or an independent contractor, the DOL rejects a mechanical approach and no single factor is determinative. This issue continues to be very much unsettled and a resolution in the future can have important consequences on both employers and employees with regard to overtime, insurance and taxes.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green represent clients in matters of employment law. For more information call  215-574-0600 or contact us online.

Philadelphia Employment Lawyers: Casino EEOC Claims Settlement

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Colorado casino-hotel, Reserve Casino Hotel, has agreed to pay $250,000 to four women to settle allegations that the casino refused to rehire them on the basis of their age, gender or both, when the casino was sold in 2011.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the casino in September 2015 on behalf of four women, who ranged in age from 58 to 63. The women were employed as slot machine attendants or cocktail servers. The casino was then known as the Fortune Valley Hotel and Casino, but then was sold in bankruptcy, emerging as Reserve Casino Hotel. Three of the women were long-time slot machine attendants when they were not rehired in the transfer. They were 60, 62, and 58 years old at the time they were terminated. The fourth woman, started working as a food server in November 2005, and later became a cocktail waitress. She was 63 when she was denied rehire, and the oldest cocktail server applicant.

Older Women Are at Risk for Discrimination

According to the complaint, prior to the sale of the casino, managers photographed floor operations employees, then later used the photos to screen out older and less attractive employees. Then, it allegedly rehired approximately 95 percent of the workforce, screening out the five percent who were older and less attractive. The EEOC has gone on the record to emphasize that older women may be facing more prevalent and acute employment discrimination than those in other subcategories of the workforce, including younger men and women and older men.

The owners of Reserve Casino Hotel signed a 3.5-year consent decree, whereby the four women will share in the $250,000 settlement award. The EEOC will determine how the award is to be split between the four women. The consent decree also mandates that the owners revise their anti-discrimination policies, making a strong and clear commitment to preventing age-based discrimination and retaliation. They also must provide annual training, and education on subconscious stereotypes.

The EEOC sued the owners of Reserve Casino Hotel under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. The women had come forward, spurring the agency to conduct an investigation that lead to a finding that there was a significant lack of hiring of female applicants age 40 or older. The specific allegations included in the complaint were sex discrimination, age discrimination and “sex plus age” discrimination.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green, P.C. Represent Individuals with EEOC Claims

If you suspect that you have suffered from employment discrimination, Philadelphia employment lawyers at Sidkoff, Pincus & Green can help you recover maximum compensation and hold the responsible parties accountable. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey. Call us at 215-574-0600 or contact us online today.

Philadelphia Business Lawyers: How Should FMLA Settlement Amounts Be Reported to the IRS?

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In Gunter v. Cambridge-Lee Industries, LLC, Vincent Gunter alleged that his rights under the FMLA were violated by his employer.  CV 14-2925, 2016 WL 3762992, at *1 (E.D. Pa. July 14, 2016). The two parties ultimately were able to reach a settlement. However, the parties were unable to agree on how the settlement proceeds should be reported to the Internal Revenue Service.

Gunter’s position was that the proceeds of the settlement were not wages and were not subject to withholding or reporting to the IRS on Form W-2 but instead should be reported to the IRS on Form 1099. The Defendant employer contended that the proceeds of the settlement did constitute wages that must be reported to the IRS on form W-2 subject to the withholding of taxes and other payroll charges. However, there was no binding Third Circuit precedent with regard to this particular issue.

In deciding this issue, the Court found two cases be persuasive. In Churchill v. Star Enters, the Court found that the relevant regulations and the FMLA statute specifically required the performance of services in order for the payment to constitute wages for withholding purposes. 3 F. Supp.2d 622 (E.D. Pa. 1998). As a result, the Court held that no withholding of the judgment was mandated under either federal or state law. In Carr v. Fresenius Med. Care, the Court found that recovery under the FMLA “does not constitute back pay but an amount of damages equal to the sum of various components, including, but not limited to, lost wages.”  2006 U.S. Dist LEXIS 29627, at *7-8, 2006 WL 1339970. Following this reasoning of these two cases, the Grunter Court held that an award, and in this case a settlement, does not constitute wages for Plaintiff that are subject to the withholding of taxes.

Philadelphia Employment Lawyers: Employers have Privilege when Providing References about Former Employee

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On June 28, 2016, the Third Circuit ruled in favor of employers who sought a conditional privilege when providing employee references to other employers. In Bentlejewski v. Werner Enterprises Inc., No. 15-2870, 2016 WL 3523303, at *1 (3d Cir. June 28, 2016), Defendant sent Plaintiff’s prior accident and driving report to two prospective employers. In the report, there were four “preventable” minor accidents noted, which prevented Plaintiff’s employment at the two trucking companies. Plaintiff then filed suit, alleging those driving reports contained “false and misleading” information, which prevented him from obtaining employment.
The Court recognized that employers have a conditional privilege to provide prospective employers with honest references concerning a former employee. In order to show an employer abused this privilege, a former employee must show the employer knowingly provided false information. It is not enough that an employer simply provided false information.

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

 

Philadelphia Employment Lawyers: Appeal in Overtime Pay Dispute

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The United States Court of Appeals for the Seventh Circuit in Chicago handed down a surprising verdict recently when it ruled that the Epic Systems Corporation headquartered in Wisconsin was in violation of the 1935 National Labor Relations Act (NLRA) that protects the rights of employees to unionize or bring collective action against their employer. According to the Court’s decision, Epic Systems violated the NLRA by requiring employees to sign an arbitration clause that mandated they rely solely on arbitration to settle wage and hour disputes.

Epic Systems is a medical software company that sent out an email in 2014 that required employees to agree to internal mediation for all wage and hour disputes, ultimately denying them their right to bring collective action against the company. Epic Systems stated in the agreement that the employee’s decision to acknowledge receipt of the email and continue employment with the company indicated that they agreed to the arbitration agreement. When an employee of the company later filed a suit in federal court against Epic Systems for denied overtime wages, the company referred to a previous U.S. Supreme Court decision that allowed a group of credit card companies the right to use arbitration as a means to resolve internal conflict.

In 2013, the United States Court of Appeals in Louisiana upheld a 2011 Supreme Court decision that ruled the Federal Arbitration Act of 1925 gave employers the right to use arbitration to settle claims against the employer. The recent verdict handed down by the Chicago Court of Appeals is in direct opposition to this decision, clearly stating that the National Labor Relations Act of 1935 overrules the 1925 Federal Arbitration Act. This dispute could mean the U.S. Supreme Court will have to revisit the issue if Epic Systems decides to appeal the Chicago Court of Appeals decision.

As more and more employers include arbitration agreements in their employment contracts, many have argued that the practice has the potential to conceal unfair labor practices. In a survey conducted by The New York Times, many employees reported that they “give up” on bringing disputes to their employers when they are prohibited from doing so collectively. Without the power of numbers and the evidence that they bring to support claims, many believe they do not stand a chance of a fair resolution.

Epic Systems Corporation has 90 days to appeal the Chicago decision. As of yet, the company has not indicated that they will pursue bringing the issue to the United States Supreme Court.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Use Experience and Knowledge for Successful Litigation

Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have been serving clients throughout Pennsylvania for over 50 years. Our team of dedicated has a long history of successful outcomes in a vast array of varied employment law cases.

Call us today at 215-574-0600, or contact us online to see how we can help you with your employment legal issues. Our offices are conveniently located in Center City Philadelphia, allowing us to serve clients throughout Southeastern Pennsylvania and New Jersey.