Category: Employment

Are Rideshare Drivers Eligible for Unemployment?

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On July 24th, the Pennsylvania Supreme Court ruled that a rideshare driver was legally entitled to unemployment benefits, even though he was previously disqualified because he was considered self-employed. In a groundbreaking opinion, the Court held that because Uber controlled and directed the performance and services of a driver-for-hire, he was not establishing an independent business and therefore could not be considered self-employed. This case marks one of the few instances in which a higher court has closely examined the employer-employee relationship between a rideshare driver and the rideshare company.

Facts in the Case

Donald Lowman lost his job as a behavioral health specialist during the summer of 2015. While his application for unemployment compensation was pending, he signed a services agreement with Uber. He began using Uber on July 1, 2015, and thereafter earned between $15 and $22 per hour, bringing in approximately $350 per week. As required by Pennsylvania’s unemployment laws, he reported his earnings to the Unemployment Compensation Service Center. On August 17, 2015, the service center issued a Notice of Determination finding that Lowman’s driving rendered him ineligible for continued benefits because he was considered self-employed.

Lowman appealed the decision and was again denied benefits. He subsequently filed a petition for review in the Commonwealth Court in 2016. The Court reversed the previous decision, concluding that Lowman was not self-employed. The case moved on, eventually reaching the Pennsylvania Supreme Court, which issued the final ruling.

The Court Examines the Definition of Self-Employment

An amendment added to Pennsylvania’s unemployment laws in 1959 states that an employee shall be ineligible for compensation for any week in which he is engaged in self-employment. In Lowman v. Unemployment Compensation Board of Review, the Court closely scrutinized the relationship that Uber had with its drivers to determine whether they were independent contractors. The wording of the opinion focused on the issue of control. Although Mr. Lowman used his own car and cellphone, and was responsible for his own maintenance, the Court found that he did not have control over his work for the following reasons:

  • Uber established the rates that drivers charged
  • Uber tracked the movements of its drivers using GPS technology
  • Uber closely monitored the work of its drivers

In essence, Uber controls its drivers much like a manager exerts control over employees in an office.

Partial Victory for Gig Workers

The Court’s ruling set the stage for further advancement for the rights of gig workers in Pennsylvania. Although it does not automatically make them eligible for unemployment, it does open the door for appeals if they are denied benefits. The ruling did not address larger issues, such as whether Uber drivers should be classified as full-fledged employees entitled to health insurance, Workers’ Compensation, minimum wage, overtime, and paid sick leave. However, this decision marks a turning point when viewed in context with other legal decisions, such as California’s recent law that made it more difficult for rideshare companies to classify their drivers as independent contractors.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Continually Monitor Legal Cases Addressing Employer-Employee Relationships

Terminated workers who attempt to make ends meet by driving for rideshare companies may not know that this could disqualify them for unemployment benefits. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. continually monitor the evolving legal landscape of employment law to provide skilled counsel to workers and businesses. If you have an employment question, call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Is a Company’s Best Defense the Employee Handbook?

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Every business that maintains an office and team of employees exposes itself to the risk of harassment lawsuits, discrimination claims, and much more. When these claims do arise in the employment context, one of the most important pieces of evidence will be the employee handbook, should one exist. Even if a handbook already exists, they can quickly become outdated based on evolving law.

The employee handbook should be part of every employee’s onboarding process. New hires should be instructed to read the handbook and sign a document stating they have read and understand everything contained therein. Management should answer questions about handbook policies, but the handbook will speak for itself if there is a concern in the office.

How Does an Employee Handbook Handle Investigations?

The employee handbook should list every policy the company has from sick leave to office parties, travel expenses, and lunch breaks. In addition, a large portion of the handbook should explain what happens if misconduct is reported in the office. The handbook should explain that all incidents of harassment should be reported to an immediate supervisor and include that all reports are investigated regardless of merit.

Supervisors should have a handbook that tells them how to open an investigation, investigate claims, and/or report the claims to human resources. The company should investigate any claims of harassment, collect evidence, conduct interviews, and reach a well-documented conclusion.

Why Does it Matter?

If a company is sued by an employee who experienced harassment, management can point to the employee handbook since the company has laid out all the guidelines it uses to manage these cases. Employees who were terminated because of harassment claims should know they will be investigated and employees who do not report harassment are technically in violation of company policy. Management and employees must refer to the handbook for guidance. If a company does not have an established policy for workplace harassment, it can be sued easily because its employees do not know what to do if harassment occurs.

If management is not certain how to word the employee handbook, they may want a Philadelphia employment lawyer to review the document on their behalf. The company may also want the lawyer to craft a verification document that all employees must sign after reviewing any policies, such as a separate sexual harassment policy, fiduciary duties policy, and/or a drug use policy.

To be safe, management should review these documents every year with their staff. The company’s diligence ensures that employees know what is expected of them, and management can point to employees’ yearly reviews if a complaint is filed.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Navigate Issues Related To Employee Handbooks For Both Employers And Employees

If you would like to find out more about employee handbooks or have a potential lawsuit against your employer involving an employee handbook, reach out to our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. For an initial consultation, contact us online or call 215-574-0600 for assistance. We will review your case and discuss the next potential steps. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Landmark Supreme Court Ruling Prohibits Discrimination Against LGBTQ Workers

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Discrimination LGBTQ

On June 15, 2020, the U.S. Supreme Court issued a landmark ruling declaring that Title VII of the Civil Rights Act of 1964 unequivocally applies to homosexual and transgender workers. Although about half of the states in the U.S. have laws protecting the rights of LGBTQ citizens in the workplace, this historic decision clarifies that discrimination on the basis of sexual orientation is prohibited nationwide. Title VII of the Civil Rights Act of 1964 protects workers against discrimination during any phase of the employment process, including recruiting, hiring, training, assigning tasks, compensation, promotion, and firing.

According to the Williams Institute of the UCLA School of Law, more than eight million Americans in the workforce identity as LGBTQ, and nearly four million of them live in states that lack laws to protect them from workplace discrimination.

In writing the 6-3 opinion, Justice Neil Gorsuch noted that sex plays a necessary role in the decision, which is exactly what Title VII forbids. In Title VII of the Civil Rights Act of 1964, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.

Cases Considered by the Court

 The Supreme Court ruling considered several cases brought to the U.S. Court of Appeals for the Eleventh Circuit where employers admitted to firing employees because they were homosexual or transgender. These cases included:

  • Bostock v. Clayton, County, Georgia: Gerald Bostock worked as a child welfare advocate. Under his leadership, the county won national awards for its accomplishments. After Mr. Bostock began participating in a gay recreational softball league, he was fired for conduct “unbecoming” to a county employee.
  • Altitude Express, Inc. v. Zarda: Donald Zarda was employed by Altitude Express for several seasons as a skydiving instructor. He was fired several days after mentioning at work that he was gay.
  • G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission: Aimee Stephens worked at Harris Funeral Homes Inc. in Michigan. While undergoing treatment for depression, he was diagnosed with gender dysphoria and began exploring the prospect of transitioning. After six years of service with the funeral home, Stephens wrote a letter to management explaining that she planned to live and work full-time as a woman. She was subsequently fired.

Each employee filed a lawsuit alleging unlawful discrimination on the basis of sex under Title VII. The employers in each of these cases did not attempt to deny that they fired these employees for being gay or transgender. Rather, they contended that Title VII does not apply to discrimination on the basis of being homosexual or transgender. Also, the employers argued that the legislators who drafted Title VII would not have expected the law to prohibit discrimination against homosexual or transgender persons.

In response, Justice Gorsuch wrote that while those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result, Title VII has been expanded in the past to protect the rights of pregnant employees or men subjected to harassment at work. Therefore, Title VII can be interpreted so as to protect the rights of LGBTQ employees.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Defend the Rights of LGBTQ Workers

The Supreme Court has made it illegal to discriminate against LGBTQ employees in the workplace. If you or someone you know endured discrimination at work during any phase of employment, contact the experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We will defend your rights to the fullest extent of the law. Call us at 215-574-0600 or fill out our contact form to schedule an initial consultation. We represent workers throughout Pennsylvania and New Jersey from our Philadelphia office.

Philadelphia Employers Banned from Requesting Salary History from Applicants

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According to a recent federal appeals court ruling, employers in Philadelphia may no longer request salary history information from job applicants. The U.S. Court of Appeals for the Third Circuit partially reversed a lower court’s 2018 decision that allowed employers to ask about salary history but prohibited them from using the information to determine an employee’s new salary.

In 2017, the Greater Philadelphia Chamber of Commerce sued the city, arguing that the Philadelphia law violated the employer’s First Amendment rights. Mayor Jim Kenney, and others who supported the law, said that the practice of requesting a salary history perpetuates the cycle of discrimination resulting in women with lower salaries than men. In fact, studies show that women make only 80 cents for every dollar that a man earns, despite the fact that women make up close to 50 percent of the workforce and are the sole or co-breadwinner in half of families in this country who have children. For women of color, this gap is even higher. They are hopeful that this recent ruling will put an end to that cycle.

Law Expected to be Enforced Soon

It is unclear when city officials will begin enforcing the new law, but it will likely be soon, as they have been given the green light to do so. The law will be enforced by the Philadelphia Commission on Human Relations, and employers who violate the law may face steep fines and litigation. The Chamber of Commerce claims that the law makes it more difficult for companies to determine what a competitive salary offer should be, particularly in such a tight labor market. Although the Chamber can petition the U.S. Supreme Court to review the decision, it is unlikely that it will be overturned.

According to the Philadelphia Commission on Human Relations, Philadelphia has implemented a number of work-protection legislation in recent years. This latest law is about equality and protecting people’s rights. People have argued that the law will not solve the problem of wage inequality, said a former city councilman, but there is no way to know that unless the law is given a chance.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Assist Clients with Employment Issues

 If a prospective employer requested to see your salary history during the interview process, this is a violation of your rights. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have a proven track record in reaching successful outcomes for clients who have a range of employment issues, including those related to fair compensation. To schedule an initial consultation, call us today at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

What is the Department of Labor’s Final Rule on Joint Employer Status?

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In an effort to avoid liability issues, the U.S. Department of Labor (“DOL”) recently updated its joint labor employment status under the Fair Labor Standards Act (“FLSA”). The DOL published its Final Rule in the Federal Register on January 16, 2020, and it was expected to be effective on March 6th. Prior to the ruling, the tests used by the circuit courts to determine joint employer status were inconsistent and confusing, and they often resulted in increased litigation costs for employers. The Final Rule is considered a positive development for employees and the business community.

Highlights of the Final Rule

The FLSA states that an employee of one company may be considered a joint employee of a second company, depending on how much control the employer of the second business has over the employee’s work. As a result, the joint employer may be held jointly liable for minimum wage or overtime payments to non-exempt workers. The Final Rule uses a four-factor balancing test to determine joint employer status in situations in which another employer benefits from an employee’s work. To determine whether a second company is a joint employer, the DOL will consider the following factors:

  • The employer hires or fires the employee
  • The employer is responsible for supervising and controlling the employee’s work schedule or conditions of employment to a substantial degree
  • The employer determines the rate and method of payment
  • The employer is responsible for maintaining the worker’s employment records

The Final Rule states that joint employer status will not be based on one single factor, and the weight given to one of these factors will depend on the specific scenario. In addition, the extent to which an employee depends on a potential joint employer financially will not determine joint employer status unless other factors are involved as well. According to the DOL, the following are factors that are not relevant to determine FLSA joint employer status:

  • The potential joint employer is operating as a franchisor or using a similar business model;
  • The potential joint employer is in compliance with all legal, health, and safety obligations;
  • The potential joint employer’s contractual agreements with the employer require quality control standards to ensure consistent quality of the work, brand, or business reputation; or
  • The potential joint employer provides the employer with an employee handbook, allowing the employer to operate a “store within a store” arrangement, offering an association health plan or retirement plan, jointly participating in an apprenticeship program, or other similar business practices.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Assist Clients with Employment Status Issues

The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have a proven track record of litigating all areas of employment law. Our skilled legal team has a thorough understanding of the Final Rule and the impact it has on joint employer status. To schedule an initial consultation with one of our highly experienced employment lawyers, do not hesitate to call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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Expansion of Paycheck Protection Program Offers Help for Small Businesses

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The Paycheck Protection Program (“PPP”) initially set aside nearly $350 billion in government-backed forgivable loans to help small businesses stay afloat during the COVID-19 pandemic. The loans were made available to small businesses in operation on February 15, 2020 with fewer than 500 employees. In addition, 501(c)(3) non-profits with fewer than 500 workers and other types of organizations are also eligible. To apply, businesses must work through a bank with which they have a relationship and the bank must be a lender approved by the Small Business Administration (“SBA”).

Studies suggest that 80 percent of small businesses in America missed out on the first round of funding because the money was quickly depleted. At least $310 billion in additional funding has now been approved. However, small businesses still face hurdles in applying for the loans, as well as providing proof that they are spending it within prescribed guidelines for the loans to be forgiven.

Small Businesses Face Challenges in Obtaining PPP Loans

Some of the difficulties faced by small businesses applying for the first round of PPP loans include the following:

  • Many banks were overwhelmed by the initial demand
  • Larger banks tended to take care of their biggest clients first
  • Many small businesses did not have a prior relationship with a lending bank

In addition to allocating the additional $310 billion for PPP loans, a significant portion of that money has been set aside for smaller banks, including community-based lenders and credit unions. The goal is to reach smaller businesses, however, many of them still lack a relationship with a lender. One option is to work with a law firm that can facilitate a relationship.

Meeting PPP Loan Requirements

Some businesses applied for a loan but have not yet received the money. If you are a small business waiting for a PPP loan, do not submit a second application if you already applied. If you applied for a loan and received the money, you must meet the following requirements in order for the money to turn into a grant:

  • You must spend all of the money within eight weeks of depositing it into your business bank account
  • You must allocate 75 percent of the money to cover payroll costs
  • The money cannot be used retroactively to pay past debts

If you cannot meet these and other requirements, you will have to pay the money back within two years at one percent interest. Unfortunately, some small businesses are having difficulty meeting the 75 percent threshold because their workers chose to go on unemployment. Businesses are allowed to give their workers raises or bonuses simply to qualify for the 75 percent payroll threshold, as long as each worker makes less than $100,000 on an annualized basis.

In addition to PPP loans, the SBA also administers the Economic Injury Disaster Loan (EIDL) program. Businesses with 500 or less employees may be eligible if they can show that they were affected by a disaster, such as the COVID-19 pandemic. However, EIDL loans are not forgivable.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Small Businesses During the Pandemic

If you are a small business owner impacted by the COVID-19 pandemic and are seeking a loan, the Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. offer trusted legal guidance to help you pursue the best possible course of action. Contact us for an initial consultation by filling out our online form or call us at 215-574-0600. We assist clients throughout Pennsylvania and New Jersey from our office in Philadelphia.

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Employers Cannot Use Salary History to Justify Lower Pay for Women

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The Ninth Circuit Court of Appeals heard a case from Fresno County, California regarding lower pay for women during an en banc session. The Court concluded in February 2020 that lower pay for women cannot be justified based on their previous pay.

How May Employers Determine Employee Pay?

Under the Equal Pay Act, employers are only allowed to determine employee pay based on four factors:

  • An established seniority system
  • An established merit system
  • A system that measures salary based on quantity or quality
  • Any factor other than sex

Fresno County Schools had a seniority system and a merit system. However, the Court determined the county applied that system improperly under the Equal Pay Act.

What was the Decision?

The Ninth Circuit Court determined that previous pay from a different job cannot fall under the last catch-all “factor other than sex” because the factor’s must be job-related. The case involved a math consultant with the school system who inadvertently discovered she was making less than her male colleagues. The school system used her previous salary, added five percent, and placed her on the corresponding section of the pay scale. She received an extra $600 for her master’s degree, but her salary was calculated based on an entirely different job.

How Does the Ruling Apply to Your Business?

The Ninth Circuit Court noted that other federal courts have come to inconsistent rulings. Regardless, this case has value wherever your employer is located. As a result, employers must be careful that if there is any pay discrepancy between employees, it’s based on job-related reasons.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Represent Employers and Employees Concerned About Equal Pay

Our Philadelphia business and employment lawyers at Sidkoff, Pincus & Green P.C. will work with you on any equal pay case. Contact us online or call us at 215-574-0600 for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and South Jersey.

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Philadelphia Expands Its Paid Sick Leave Law to Fight COVID-19 Layoffs/Terminations

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Philadelphia’s paid sick leave law, which was enacted five years ago, requires employers with at least 10 employees to provide one hour of paid sick leave for every 40 hours worked, up to 40 hours per year (or five days).

On March 16, 2020, Philadelphia decided to expand this law to include workers who may be affected by the COVID-19 health crisis. The main highlight of the city’s expansion of its paid sick leave law requires employers to pay out any accrued sick leave time when employees are terminated or laid off. This means any employee who was terminated or laid off on March 16th or anytime after is entitled to receive their accrued paid sick time. The city has already made it known that financial hardship is not a valid reason to break the law.

If you believe your employer has violated this law, the first step is to file a complaint with the city, who will then initiate an investigation. Unfortunately, this investigation could take weeks, or even months, as the number of employees who are terminated increase as a result of the COVID-19 novel coronavirus pandemic. Once the city completes its investigation and reaches a final decision or 180 days passes from the filing of the complaint with no final decision by the city, then an individual will have the right to file a lawsuit against the employer.

If you were terminated as a result of the COVID-19 novel coronavirus pandemic and not paid your accrued paid sick time, please contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. as soon as possible. Our skilled legal team will protect your rights and secure the financial compensation you deserve. To schedule an initial consultation, call us today at 215-574-0600 or contact us online.

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FMLA and COVID-19

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With all the uncertainties stemming from COVID-19, it is essential for employers to understand their rights and the rights of their employees under federal laws such as the Family Medical Leave Act (FMLA). Making informed decisions now can help to mitigate possible issues later.

Under the FMLA, eligible employees who are sick or who are taking care of a sick family member may be entitled to take up to 12 weeks of unpaid job-protected leave. Does this include employees suffering from COVID-19 and their family members? What about those employees seeking to stay home pursuant to the FMLA in order to avoid getting COVID-19 or those who need to stay home with children dismissed from school?

While businesses want to help do their part in supporting our communities during this time, the attorneys at Sidkoff, Pincus & Green, P.C., understand the tough questions posed by COVID-19 and are here to guide businesses through these uncertain times. Allow us the help you navigate the law so that your business can make informed decisions and respond appropriately.

Our experienced employment attorneys are available to help employers act immediately in a manner that complies with federal, state and municipal laws.

Do not hesitate to contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. Fill out our online form or call us at 215-574-0600. Located in Philadelphia, we provide skilled counsel to clients throughout Pennsylvania and New Jersey.

Employers Face Legal Questions During Coronavirus Outbreak

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Thousands of employers in the Philadelphia area have been severely impacted by government restrictions imposed to curb the spread of the Coronavirus (COVID-19). Some large corporations, such as Amazon, are offering paid sick leave to employees diagnosed or quarantined with COVID-19. Other businesses have been forced to close temporarily. Workers are being sent home and employers are left with unprecedented legal questions, including the following:

  • Am I responsible for sending sick workers home?
  • Do my employees have the right to work from home or take off from work if they are concerned about exposure to COVID-19?
  • Am I obligated to offer extended sick leave to employees who have been quarantined?
  • Does the Americans with Disabilities Act provide protections to workers diagnosed with COVID-19?

Our experienced employment attorneys are available to help employers act immediately in a manner that complies with federal, state and municipal laws.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Answer Your Legal Questions Regarding the Coronavirus

Many employers in the Philadelphia area are experiencing unanticipated impacts from the spread of COVID-19. If you have any legal questions regarding your responsibilities as an employer with respect to temporary sick leave, termination, contractual matters, or other issues, do not hesitate to contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. Fill out our online form or call us at 215-574-0600. Located in Philadelphia, we provide skilled counsel to clients throughout Pennsylvania and New Jersey.

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