Category: Employment Law

Philadelphia Employment Lawyers: EEOC Guides Employers Dealing with Leave and the ADA

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The Equal Employment Opportunity Commission (EEOC) issued a statement on May 9, 2016 to help guide employers in situations regarding Employer-Provided Leave and the Americans with Disabilities Act (ADA).

The EEOC’s statement was meant largely to clarify when and how leave is to be provided in cases of an employee’s disability under the ADA.

As a general note, employees that request leave under an existing policy within the company should have the same access to leave as all other employees. Even when an employee has used up any paid days of leave or if the employer does not have an existing leave policy, an employee may still be entitled to receive leave as a reasonable accommodation, as long as the leave does not create an undue hardship for the employer.

One of the key points the statement explains is that communication is key once leave is requested by an employee. The EEOC calls this the “interactive process”, which allows the employer to obtain information relative to granting leave that is not covered under an existing leave program. Even after the leave has been granted, communication is still very important to determine return dates and conditions upon return for the employee.

You can access the statement from the EEOC here.

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

Philadelphia Employment Lawyers: Employment Protections to Medical Marijuana in Pennsylvania

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On May 17, 2016, the new Medical Marijuana Act (MMA) took effect, making Pennsylvania the 24th state to legalize medical marijuana, and contains several significant employment related provisions. The Act states that “no employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location of privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” (Emphasis added). Furthermore, the Act states that it does not require an employer to make any accommodation of the use of medical marijuana on the premises of any place of employment. Employers can still discipline employees who are under the influence of medical marijuana at the workplace when the employee’s conduct falls below the standard of care normally accepted for that position. These employment provisions raise questions on how courts will determine what “falling below the standard of care” for that position.

Employers who adhere to a zero tolerance policy and/or an anti-discrimination policy may need to modify them accordingly. The Act strictly limits the list of medical conditions in which medical marijuana is legally permissible, and smoking medical marijuana is still prohibited; the drug can only be dispensed as pills, oil, creams, liquids, and forms that can be vaporized.

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

 

 

 

 

Philadelphia Employment Lawyers: Wal-Mart Retaliation Case

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Third Circuit Affirms Award of Attorneys’ Fees in Wal-Mart Retaliation Case

A plaintiff does not have to prevail on all of his claims in order to be awarded attorneys’ fees. In Boles v. Wal-Mart Stores, Inc., the Third Circuit affirmed an award of attorneys’ fees to a plaintiff who succeeded on only one of his claims. No. 15-3128, 2016 WL 2990406 (3d Cir. May 24, 2016). Barry Boles was an employee of Wal-Mart who took unpaid medical leave for several months. Id. at *1. Upon being cleared by his doctor, Boles received a termination letter dated one day after he attempted to come back to work. Id. at *2.

Boles filed a complaint against Wal-Mart alleging retaliation and failure to accommodate based on Wal-Mart’s refusal to grant extended leave in violation of New Jersey’s Law Against Discrimination. Id. Boles’ retaliation claim was successful and the District Court granted his motion for attorneys’ fees and costs. Id. On appeal, Wal-Mart argued that the award of attorneys’ fees should be reduced because Boles only succeeded on one of his claims. Id. at *4. The Third Circuit affirmed the awards of attorneys’ fees because Boles’ claims revolved around the same events, witnesses, and facts, and the work of his attorneys’ could not be separated out by claim. Id. It also affirmed the award because Boles achieved overall success due to being awarded back pay, emotional distress damages, and punitive damages. Id.

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

Philadelphia Business Lawyers: Arbitration Decision

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Arbitration Decision from 7th Circuit Leaves Split Among Appellate Courts

In a recent decision, the U.S. 7th Circuit Court of Appeals ruled that a health care software company was in violation of the National Labor Relations Act (NLRA) when it required its employees to waive their rights to pursue wage-and-hour claims in class actions. In the case, Lewis v. Epic Systems Corp., Lewis brought a claim in federal court against his employer, Epic Systems, asserting they had violated the Fair Labor Standards Act (FLSA) by depriving him and a few fellow employees of overtime pay. No. 15-2997, 2016 WL 3029464 (7th Cir. May 26, 2016). Epic Systems moved to dismiss the claim and compel individual arbitration, in light of an arbitration clause requiring groups of employees to bring any wage-and-hour claims against the company only through individual arbitration and prohibiting collective arbitration or class action. Id.  Lewis claimed the arbitration clause was unenforceable because it violated Section 7 of the NLRA, which states that “employees shall have the right to… engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Epic Systems contended that the clause was enforceable under the Federal Arbitration Act (FAA). Id. Both the district court and the 7th Circuit agreed with Lewis. Id.

This decision directly opposes a decision from the 5th Circuit, leaving a split among the appellate courts and increasing the possibility that the Supreme Court will take up the issue. In 2013, the 5th Circuit overturned a National Labor Relations Board decision in D.R. Horton, Inc. v. N.L.R.B., and allowed employers to have these mandatory individual arbitration agreements under the FAA. 737 F.3d 344 (5th Cir. 2013). This split in decisions will leave a lot of uncertainty, and possibly more lawsuits, for employers not in those circuits who have or want to enforce arbitration agreements and class-action waivers.

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

Philadelphia Employment Lawyers: Filing Period for Constructive Discharge

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Filing Period Begins to Run at the Time of Resignation

On May 23, 2016, the Supreme Court decided that for a former employee to bring a constructive discharge claim, the filing period to do so begins once the employee gives his/her resignation notice. In Green v. Brennan, No. 14-613, 2016 WL 2945236 (U.S. May 23, 2016), the plaintiff applied for a promotion, but did not receive the position after being with the USPS since 1983. Id. at *3. Soon after the denial, the plaintiff filed a complaint alleging he was denied the promotion because of his race. Id. After the complaint, the plaintiff alleged he was receiving retaliatory treatment from his supervisors, and even accused of delaying the mail, a criminal offense. Id. The plaintiff was investigated for this criminal offense by the Postal Service’s Office of the Inspector General, and ultimately signed an agreement with the USPO. Id. That agreement gave the plaintiff the choice between retiring early or moving to a new location over 100 miles away for a much lower salary, and in return the USPO would not pursue criminal charges. Id. After deciding to resign, the plaintiff contacted an Equal Employment Opportunity counselor to report his complaint 41 days after handing in his resignation paperwork, but 96 days after signing the agreement to resign. Id.

Title VII required a federal employee to consult an EEO counselor within 45 days of the matter alleged to be discriminatory, and this case would then turn based on when the filing time period begins. The Court held that the 45-day clock for a federal employee’s constructive discharge claim begins running once the employee resigns, and more specifically in this case would begin when the employee gave the postal Service his notice of resignation. Id. at *1. The Court came to this conclusion after explaining there must first be a “complete and present cause of action”, and until the employee resigns, there is not a “complete and present cause of action” for constructive discharge. Id.

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

Philadelphia Employment Lawyers: FLSA Salary Threshold Raised

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Beginning December 1, 2016, approximately 4 million Americans will qualify for overtime pay under new rules from the U.S. Department of Labor under the Fair Labor Standards Act (“FLSA”). Currently, the “white collar” exemption under FLSA for overtime pay requires that employees: (1) be paid on a salary basis, receiving a predetermined and fixed salary that is not subject to reduction because of variations in the quality or quantity of work performed (“salary basis test”); (2) be paid more than a specified salary threshold of $23,660, or $455 a week (“salary level test”); and (3) primarily perform certain executive, administrative, or professional duties as specified in DOL regulations (“duties test”). Now, rule changes influenced by the Obama administration are altering part (2) to increase the salary threshold to $47,476 or $913 a week, but are leaving parts (1) and (3) undisturbed.

The threshold will be automatically updated every three years to keep salaries in line with inflation. Starting in 2020, the threshold will be increased to match the 40th percentile of full-time salaried workers in the lowest-wage Census area, which in this case is currently the South. The Department of Labor estimates that in 2020, the salary threshold will increase to approximately $51,000 a year.

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

Philadelphia Employment Lawyers: Richmond Unpaid Overtime Lawsuit

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Recently, 134 employees at Richmond, Virginia’s Department of Social Services have alleged that they were improperly denied overtime wages during the three years prior to June 2015. Richmond’s Mayor, Dwight C. Jones has asked the City Council to approve a $2.7 million settlement to resolve the lawsuit.

In their lawsuit, the government employees assert that they regularly worked more than 40 hours a week without overtime pay that they were entitled to receive under the Fair Labor Standards Act. Allegedly, they had excessive caseloads that required them to work during lunch, and also at home in the evenings and on weekends. They maintain that their managers told them that they needed to do whatever it took to get their jobs done. Their salaried positions were supposed to be scheduled for only 40 hours per week.

Even if the Richmond City Council approves the settlement, it is not clear how much money each of the effected employees would receive. As with most unpaid overtime lawsuits, some of the money would cover back wages, and some would cover penalties or damages, but it is not clear at this time how the award would be allocated.

Other similar lawsuits have plagued municipalities in the Richmond area. In 2012, Henrico County paid out $3.5 million to police officers who alleged that the county manipulated the way hours were recorded to avoid having to pay overtime. And in 2011, Richmond paid its own Police Department seven million dollars in a lawsuit over unpaid overtime.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Pursue Maximum Compensation for Employees Denied Overtime Pay

Unfortunately, unpaid overtime lawsuits are very common. Often, employers will manipulate time sheets or work schedules in order to avoid paying employees the time-and-a-half wages they are rightfully owed. If you suspect that your employer has wrongfully denied you overtime pay, Philadelphia employment lawyers at Sidkoff, Pincus & Green can help. To schedule a consultation, call us at 215-574-0600 or contact us online today. With offices located in Philadelphia, we fight for workers throughout Pennsylvania and South Jersey.

Philadelphia Employment Lawyers: Uber’s Proposed Class-Action Settlement

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A settlement is pending in the highly publicized Uber class-action lawsuit over whether the ride-sharing company has wrongly classified employees as independent contractors to avoid costs. The settlement is awaiting approval by a San Francisco federal judge and faces opposition from drivers and other parties who would be indirectly affected by the settlement.

Under the terms of the provisional settlement, Uber drivers would be awarded a $100 million payout. This number could be anywhere from $12 or upwards of several thousand dollars depending on how many miles driven for the company.

In addition, the deal contains a number of non-monetary provisions, such as an agreement to change the policy regarding driver termination, provision of an appeals process for terminated drivers, and an agreement that the company will notify drivers that they do not automatically receive tips from fares. Under the terms of the settlement, drivers will also be permitted to solicit tips. Also, the company has agreed to help the drivers form a union-like association. The settlement has many contingencies, for example, $16 million of the payout is dependent on the company’s future valuation increasing by 150 percent.

But the specific provision that has many concerned is a “sunset clause,” which would allow the non-monetary provisions of the deal to expire in two years unless Uber elects to keep them in place longer. This clause would allow Uber to simply back out of the deal if the proposed changes prove too costly or unwieldy for the company.

Uber drivers have also expressed concern that the settlement does not resolve the issue of whether the law requires that drivers be classified as employees. A settlement would give them little certainty about what the market for on-demand driving will offer in the future.

Another concern has been raised in a related class-action case against Uber where drivers have challenged the company’s use of credit reports during driver background checks. If accepted, the settlement would prohibit drivers from being able to continue participating in their case depending on their credit.

Uber has requested to omit details from the settlement that would allow drivers to evaluate the deal and give informed consent to the settlement, citing trade secrets that would damage the company if made public. In a similar lawsuit filed against Lyft, Uber’s chief competitor, a Federal District Court judge denied the company’s request to keep similar information secret. It is unclear if Uber’s request will result in the same outcome.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Provide Effective Representation in Class Action Lawsuits

The experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green represent individuals in class action lawsuits against companies and organizations of all sizes. Class action lawsuits often start with just one person stepping forward. If you suspect that you may have a class action lawsuit, call us at 215-574-0600 or contact us online today. With offices conveniently located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.

Philadelphia Employment Lawyers: Increased Overtime Eligibility

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Yesterday, the Obama administration announced it was extending eligibility for millions more employees to receive overtime pay. This has been in an effort to improve the treatment of workers that has garnered a lot of criticism from several business groups. The new regulation, which is to be issued by the Labor Department today, states that those workers who earn a salary less than $47,476 a year are required to receive time-and-a-half of overtime every time they work more than 40 hours in a given week. In 2004, a regulation had been set establishing the threshold at $23,660.

There are many theories on how these new regulations will work out as they come into effect on December 1, 2016. Some believe many workers will receive more pay when they work overtime, but project overtime will lessen. Others believe workers will be given salary increases that are above the cutoff so they will not have to be paid overtime. A third theory is that companies will hire more employees so current employees do not have to work overtime and be paid as such.

Vice President Joseph R. Biden Jr. has said the new rules touch a core issue for President Obama: having the middle class treated fairly. Additionally, the new rule protects those who financially fall below what is considered middle class. Biden also noted that more than 60 percent of workers were eligible for overtime pay in 1975, whereas today, only seven percent are eligible for the same benefits.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Advocate on Behalf of Workers Denied Overtime Pay

If you qualify for overtime pay but have been denied the time-and-a-half you are owed, our team of Philadelphia employment lawyers will help you file a wage and hour dispute claim. At Sidkoff, Pincus & Green, we are dedicated to fighting for the rights and interests of workers and can help seek compensation and damages for those who are owed. Contact us online or call 215-574-0100 today to find out how we can help. With offices in Philadelphia, we serve clients throughout Pennsylvania and South Jersey.

Philadelphia Employment Lawyers: Twitter Employee Seeks to Challenge Non-Solicitation Provision

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A former female Twitter Inc. engineer, recently sued the social media company for gender bias, claiming that she was denied promotions and forced out of the company because she is a woman. A state judge in San Francisco has tentatively ruled that the ex-employee cannot expand her case to also challenge a contract provision that bars employees leaving the company from recruiting their colleagues. The judge found that these two issues are too disparate to be pursued in the same lawsuit. However, the judge said that the plaintiff may be able to pursue her gender claim as a class action lawsuit, including all female engineers working for Twitter.

By prohibiting the plaintiff in this case from joining the non-solicitation claim, Twitter and other Silicon Valley tech companies are dodging a bullet. According to a law professor at the University of San Diego, these clauses are common in the tech industry, but many question whether they are enforceable in California. The top companies are all vying for key players in a relatively small talent pool. At this point, it is unclear how far these companies can go to prevent the poaching of talent.

This case initially only sought to bring Twitter to justice on the gender bias issues. However, the plaintiff alleges that Twitter threatened her and a former colleague identified as a sympathetic witness with legal action for violating non-solicitation agreements in their contracts. Both now work at the venture capital firm Sutter Hill Ventures.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green Handle All Employment-Related Matters

If you have suffered adverse employment action and suspect that your employer may have had a discriminatory intent, we can help. The experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green are dedicated to getting justice for victims of discrimination. To discuss your case, call us at 215-574-0100 or contact us online today. With offices located in Philadelphia, we represent clients throughout Pennsylvania and South Jersey.