Category: Employment Law

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.

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.