Expert Columns

Employment Law

Employee Straining Company's Human Resources Can Be Terminated

By Sid Steinberg |

Sometimes an employer just reaches a breaking point with an employee and the combination of marginal performance, disruptive behavior and being an overall strain on resources leads to termination. A striking example of this explanation as a legitimate basis to end an individual's employment is the recent case of DiFrancesco v. A-G Administrators, No. 13-4284, 2014 U.S. Dist. LEXIS 124263 (E.D. Pa. Sept. 4, 2014) (Quinones Alejandro, J.).

Phila. Amendment Requires Accommodations for Nursing Mothers

By Megan E. Grossman and John M. Borelli |

On Sept. 3, Philadelphia Mayor Michael A. Nutter signed legislation that amends Philadelphia's Fair Practices Ordinance, Phila. Code Section 9-1100 et seq., which applies to any employer with one or more employees, exclusive of parents, a spouse, life partner or children, to make it an unlawful employment practice for the employer to fail to reasonably accommodate an employee's need to express breast milk. The reasonable accommodations include providing unpaid break time or permitting an employee to utilize paid break time, mealtime, or both, to pump breast milk. Further, the new law requires that an employer provide a private and sanitary space, which is not a bathroom, where an employee can express breast milk provided the requirements do not pose an undue hardship on the employer.

Sid Steinberg

NLRB: Calling Employer Vulgarity OK in Context of Complaint

By Sid Steinberg |

Usually, an employee who tells a co-worker that his boss is an "asshole" can expect to be collecting unemployment compensation benefits shortly thereafter. But, depending upon the context and the medium, such a comment, even made by a non-union employee, may be "protected concerted activity," and therefore entitled to legal protection, after the National Labor Relations Board's recent decision in Triple Play Sports Bar and Grille, 361 NLRB No. 31 (Aug. 22, 2014).

Jeffrey Campolongo

IRS Scrutinizing Settlement Payments in Employment Disputes

By Jeffrey Campolongo |

Those who have experience settling employment disputes know that one of the thorniest issues to arise after agreeing to the principal terms of a settlement involves how to describe the payment in the settlement agreement. The all-important corollary to that issue is how the payment should be taxed, if at all.

James W. Cushing

Justices Carve Out Religious Exemption From the ACA

By James W. Cushing |

In recent weeks, the news has been dominated with stories on the significant U.S. Supreme Court case Burwell v. Hobby Lobby Stores, 573 U.S. ____ (2014), which laid out, at least in part, how the Religious Freedom Restoration Act of 1993 (RFRA) interacts with the Affordable Care Act of 2010 (ACA, also known as Obamacare) in the context of the mandatory contraception coverage.

Sid Steinberg

Vague Reference to Injury Enough to Trigger ADA/FMLA Issues

By Sid Steinberg |

The baseball adage that "a tie always goes to the runner" has a legal equivalent in a court looking at a summary judgment record in a light most favorable to the non-moving party—which is almost always the former employee in employment litigation. This standard seems particularly apt in the recent decision of Munoz v. Nutrisystem, No. 13-4416, 2014 U.S. Dist. LEXIS 104465 (E.D. Pa. July 30, 2014), where a former employee's vague references to the reason for a leave were sufficient (at least in part) to support claims under both the Americans with Disabilities Act and the Family and Medical Leave Act.

Jeffrey Campolongo

Does Your Company's Attendance Policy Violate the ADA?

By Jeffrey Campolongo |

When is an employer's "inflexible" attendance policy really just a sham to discriminate against disabled workers? That is the million-dollar question. Or, at least it was the question raised in two recent cases under the Americans with Disabilities Act (ADA).

multi-ethnic team

The Role of Diverse and Women Attorneys in Employment Law

By Maria L.H. Lewis and DeMaris E. Trapp |

Law firms have not often been leaders in diversity initiatives, but instead have taken cues from their clients. Overall, many top law firms struggle to recruit and retain diverse attorneys across their various practice areas, including employment law. Employment lawyers are particularly sensitive to diversity and gender issues, given that these issues occupy a large space in this area of law. The intentional use of diverse and women employment attorneys to tackle minority- and gender-specific issues has the potential to add value to client service and advocacy, but it can likewise foster unintended consequences. While there are no easy or straightforward solutions, these issues continue to warrant thoughtful consideration as the legal profession and the clients it serves continue to grow more diverse.

Sex Harassment

Importance of Timely Complaint of Sexual Harassment

By Sid Steinberg |

Judy Cacciola raised a genuine issue of material fact as to whether she was sexually harassed by her supervisor during her employment with Work 'N Gear. Moreover, she complained about being subjected to sexual harassment and was subsequently terminated. Nevertheless, because Cacciola's complaint was about behavior that was neither severe nor pervasive (i.e., she complained about behavior other than that which the court found to be harassing as a matter of law), Work 'N Gear was granted summary judgment on Cacciola's harassment and retaliation claims. The case of Cacciola v. Work 'N Gear, No. 13-381 (E.D. Pa. May 29, 2014) (Restrepo, J.), illustrates the importance of an employer following its harassment policy to preserve the Faragher-Ellerth affirmative defense and, from the employee's perspective, emphasizes the importance of promptly notifying the employer when allegedly harassing behavior occurs.

James W. Cushing

Priest Finds No Redemption in Phila. Court of Common Pleas

By James W. Cushing |

Church and state have always had a give-and-take relationship and that relationship was put to the test again in the April 15 opinion issued by Philadelphia Court of Common Pleas Judge Lisa M. Rau in the recent case Warnick v. All Saints Episcopal Church, Court of Common Pleas, Philadelphia County, Case No.: 111201539, 714 EDA 2014.

Jeffrey Campolongo

Is Your Arrest Record Preventing You From Getting a Job?

By Jeffrey Campolongo |

The expression "crime doesn't pay" has never been truer than it is today. In fact, for those who have been arrested, even when never convicted, it is probably more accurate to say that "being arrested could cost you for life." The cost for those who come into contact with the criminal justice system, both those convicted and those not convicted, results from the criminal record created by the arrest and the subsequent involvement with the criminal justice system. Oftentimes, this information can blemish the individual for life and lead to significant adverse collateral consequences that expand an individual's involvement and/or punishment well beyond that which was originally contemplated by the criminal justice system.

Sid Steinberg

Technology Leads to Telecommuting as Reasonable Accommodation

By Sid Steinberg |

I attended a conference last week at which the general counsel of the U.S. Equal Employment Opportunity Commission, David Lopez, proclaimed that the recent U.S. Court of Appeals for the Sixth Circuit decision, EEOC v. Ford Motor, ___ F.3d ___ (6th Cir. Apr. 22, 2014), was in the commission's "zeitgeist." I believe what Lopez meant was the decision was, to the commission, an important recognition that telecommuting could be a reasonable accommodation under the Americans with Disabilities Act, based upon changes in how employees perform their jobs in the year 2014. The decision will, at a minimum, force both employers and courts to give more careful consideration to employee requests to work at home as a possible accommodation to a disability.

David J. Walton and Jason A. Cabrera

Employers Need to Review Severance Agreements

By David J. Walton and Jason A. Cabrera |

Severance and separation agreements between employers and departing employees are a standard device in labor and employment law, providing companies with some certainty against future legal claims and former employees with extra salary or benefits or both. But over the last few years, the Equal Employment Opportunity Commission has taken aggressive action against severance agreements that may restrict the rights of former employees to file charges of discrimination with the agency.

Consideration of Applicant's Arrest May Violate Pa. Act

By Sid Steinberg |

Employers in Pennsylvania must be careful in how they use information received on an applicant's criminal background check. In the recent case of Hoffman v. Palace Entertainment, No. 12-cv-06165 (E.D. Pa. Mar. 25, 2014), the employer, Dutch Wonderland, was accused of using information regarding the plaintiff's 10-year-old arrest to deny her a position as a security officer.

Jeffrey Campolongo

Summary Judgment Can't Shield Employer in Discrimination Case

By Jeffrey Campolongo |

Motions for summary judgment in federal court are oftentimes one of the most over-utilized tools in employment discrimination litigation.

Displaced Phila. Workers Protected Under Little-Known Law

By Jeffrey Campolongo |

The best-kept secret for Philadelphia employees in the hotel, building-management and health care fields is a local law that went into effect in June 2000 known as the Philadelphia Displaced Contract Workers Ordinance (DCWO).

'It's Not My Fault' Argument Fails to Establish Discrimination

By Sid Steinberg |

"It is not my fault that I didn't do a good job." How many times have employers or their counsel heard this explanation for an employee's poor performance?

The Legal Landscape of LGBT Rights in the Courtroom

By Jeffrey Campolongo |

The LGBT movement has sometimes been described as this generation's civil rights movement. As societal norms continue to shape the social landscape, so too do the opinions of the courts when it comes to issues affecting the LGBT community.

Workers' Compensation Release Too Narrow to Waive ADA Claim

By Sid Steinberg |

The relationship between workers' compensation law and potential claims under the Americans with Disabilities Act seemed as though it was the topic of every third column in this space for years.

U.S. Supreme Court Analyzes Definition of 'Supervisor'

By James W. Cushing |

The U.S. Supreme Court, in the matter of Vance v. Ball State University, 133 S.Ct. 2434 (2013), has weighed in on who qualifies as a supervisor of employees in order to assess liability for workplace harassment.

Court Refuses to Order New Trial in Discrimination Case

By Sid Steinberg |

Because the overwhelming majority of employment discrimination cases either settle or are resolved on motions, trials and post-trial appellate decisions are infrequent, to the point of rarity.

Why Employers Shouldn't Ignore Workplace Bullying

By Debra S. Friedman |

Many associate bullying with kids and schools. Much less attention is paid to workplace bullying. As a result, many employers don't see the need to take a proactive stance against workplace bullying.

Criteria Outlined for Awarding Attorney Fees Under ADA

By Jeffrey Campolongo |

Without question, one of the topics civil rights lawyers like to discuss (and argue over) most is the issue of attorney fees. After all, getting paid for the work we do is typically the icing on the cake to celebrate a victory for our clients.

Failure to Follow Directions Dooms FMLA Claim Against Drexel

By Sid Steinberg |

"I didn't get the mail" or "I didn't read the materials provided" are almost always the legal equivalents of "the dog ate my homework."

When Is Application of 'Sham Affidavit' Doctrine a Sham?

By Jeffrey Campolongo |

One of the more difficult issues a district court judge faces is whether to apply something known as the "sham affidavit" doctrine when reviewing a summary judgment motion under Federal Rule 56.

Conducting Background Checks on Contingent Workers

By Jennifer R. Russell and Douglas K. Rosenblum |

Employers have an obligation to exercise due diligence in determining not only who they hire, but also who they allow on their premises to perform work.

Wearing 'Ten Commandments' Badge Violates Title VII

By Sid Steinberg |

Claims of religious discrimination in violation of Title VII are often difficult for employers to defend against because of the Supreme Court's finding that it is "not within the judicial ken" to determine the validity of an employee's religious belief.

Inconsistent Reasons for Termination Defeat Summary Judgment

By Sid Steinberg |

An employee's termination routinely goes through a well-established process. The termination decision is made by the employee's manager. It is then reviewed by a more senior manager either internally or through a grievance-like process.

Time to Abolish Summary Judgment in Employment Law Cases?

By Jeffrey Campolongo |

One of the benefits of this column is that for the last five years, once a month, I get to review, analyze and (sometimes) critique a recent employment law decision. Reviewing court decisions and case summaries affords me the opportunity to wrestle with logic and reason and apply it to real-life scenarios.

Supreme Court Answers the Question of Who Qualifies as a Supervisor

By Lori Armstrong Halber and Rick Grimaldi |

Last month, our article, "Questions Raised Regarding Who Qualifies as a Supervisor," appeared in the Labor and Employment Law Supplement to The Legal. Recently, in a week filled with big decisions, the U.S. Supreme Court answered those questions in Vance v. Ball State University, Docket No. 11-556, by adopting a narrow and generally employer-friendly definition of "supervisor" for vicarious liability under Title VII.

Alternate Theory for Motive Does Not Establish Pretext

By Sid Steinberg |

Most employers would likely agree that an employee who openly discusses looking for another job places his or her current employment in grave jeopardy.

Leaving the Door Open to Departing Employees

By Debra S. Friedman |

Remember that group of employees laid off a few months ago? One has applied for a new job opening and was not rehired. Now that employee is claiming that the company has engaged in unlawful, discriminatory action in failing to rehire her. This scenario is all too real. Indeed, Gonzalez v. Molded Acoustical Products of Easton, 118 FEP Cases 877 (E.D. Pa. 2013), a recent case out of the U.S. District Court for the Eastern District of Pennsylvania, should remind employers of the risk exposure associated with hiring for positions that were previously impacted by reductions-in-force.

Unpaid Movie Production Interns Strike Back With Suit

By Jeffrey Campolongo |

Black Swan and 500 Days of Summer are both known as good movies, and the unpaid interns working for the production company probably have some good memories of their involvement.

Peril of Losing Benefits While Vacationing Unemployed

By James W. Cushing |

When one loses one's job, being unemployed certainly can free up some time to take a trip or visit people that one otherwise would not have the time to do due to employment constraints. Taking such trips, however, may have the unintended, and perhaps unexpected, consequence of having one's unemployment benefits discontinued, as happened in the recent New Jersey case of Vialet v. Board of Review, Superior Court of New Jersey, Case No. A-1226-11T2.

Child-Care Comments Support Gender Discrimination Claim

By Sid Steinberg |

While Title VII's coverage is broad, courts have repeatedly held that it does not prevent "child care" discrimination.

Detrimental Impact of Proposed Discovery Limits on Employees

By Jeffrey Campolongo |

Fewer depositions, reduced number of interrogatories, less requests for admissions and a proportionality requirement in discovery. This could be the new face of discovery under proposed rule changes to the Federal Rules of Civil Procedure.

'Inexcusable and Offensive' Behavior Not Harassing as a Matter of Law

By Sid Steinberg |

Three female sales representatives working for the same manager at Eli Lilly & Co. brought suit against the company for sexual harassment and other types of discrimination.

Deafness as a Disability: A Discussion of the ADAAA Principles

By Jeffrey Campolongo |

In 2008, Congress undertook a task that was over 20 years in the making. The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was supposed to signal a new way for federal courts, judges, lawyers and litigants to evaluate disability claims.

Partial Deafness Found to Not Be a Disability Under the ADAAA

By Sid Steinberg |

There is a perception that since the passage of the Americans with Disabilities Act Amendments Act in 2008 and the issuance of the U.S. Equal Employment Opportunity Commission's guidelines in 2011, virtually any physical or mental condition will rise to the level of an actionable disability.

Dispute Over Resignation Leads to Reversal of Summary Judgment for Employer

By Sid Steinberg |

Employers often believe that having a troubled or troubling employee resign from employment is a panacea to avoid litigation. As such, employers often propose that, instead of terminating an employee or providing him or her corrective action, they will simply ask the employee to resign. This only works, however, if there is absolute certainty that the employee will "take the bait" and actually resign. If the employee balks, the employer has created an additional layer of problems for itself.

Court Cautions Not 'Cheapening' Fee Petition for Prevailing Plaintiffs

By Jeffrey Campolongo |

I recently had the pleasure of reading an opinion from the Eastern District of Pennsylvania refusing to "cheapen" an attorney's fee petition, citing the successful plaintiff's award as an "essential part of enforcement of our civil rights laws."

Employer Investigations Need Not Be Worthy of 'Sherlock Holmes'

By Sid Steinberg |

Cases decided by the U.S. District Court for the Northern District of Alabama are rarely the subject of this column. But the recent case of Jernigan v. Dollar General, vividly illustrates a core concept of discrimination law that has often been applied by courts in the Third Circuit.

Can an Employer's Mandatory Flu Vaccine Policy Violate an Employee's Rights?

By Jeffrey Campolongo |

From all accounts, this has been a particularly troublesome flu season. The debate lingers on whether to have the flu shot; not have the flu shot, and so it goes. For those of us who do not work in the health care profession, the decision on whether or not to get vaccinated for the flu rarely impacts our job security.

Terminations for Harassing Facebook Postings Violate NLRA

By Sid Steinberg |

Although this column usually focuses on recent employment discrimination cases, employers and their counsel should be equally aware of recent decisions of the National Labor Relations Board that could impact workplace decisions.

A Year-End Look at Employment Law From a National Perspective

By Jeffrey Campolongo |

Employment law has seen some significant developments over the past year, and based upon the U.S. Supreme Court's current docket, we can anticipate some interesting decisions and developments in the upcoming year.

Compliance Challenges: Off-the-Clock Claims Under the FLSA

By Andrea M. Kirshenbaum |

In complying with their obligations under federal and state wage-and-hour laws to pay employees for all hours worked, employers rightly and understandably crave certainty in the guidance provided to them by courts and administrative agencies.

Court Finds Enforcement of Union Contract Not Discriminatory

By Sid Steinberg |

It is often recognized that an employee opposing summary judgment must do more than say "not so" and that successfully opposing such a motion requires more than just peripheral disputes as to the core decision.

Circuits Split on Considering Prior Settlement Offers in Attorney Fees

By Jeffrey Campolongo |

In 2009, this column reported on the U.S. Court of Appeals for the Third Circuit's use of a rejected settlement offer as a means of reducing an attorney's fee award to the prevailing party.

Dismissal Affirmed as Sanction for False Documents and Testimony

By Sid Steinberg |

Falsifying documents in litigation is, of course, strictly prohibited and subject to sanctions. In the recent case of Amfosakyi v. Frito Lay, No. 12-2037 (Sept. 7, 2012), the U.S. Court of Appeals for the Third Circuit affirmed dismissal as a sanction for such improper conduct and also noted that untruthful testimony could be handled in the same manner.

Employment Law in the Upcoming Supreme Court Term

By Jeffrey Campolongo |

On Monday, the U.S. Supreme Court begins its new term, and is currently scheduled to hear arguments on three notable employment law cases over the coming months.

Noncompetes Supported by 'Intending to Be Legally Bound' Phrase?

By Michael J. Torchia |

You receive an email from one of your business clients asking you to call. It seems their current sales force has no employment contracts and they want you to draft employment agreements, including a noncompete, to stop them from leaving to work for their competition across the county.

Employee Medical Conditions Without Request for Accommodation

By Jeffrey Campolongo |

What are the responsibilities of an employer when an employee announces a medical condition but does not specifically ask for an accommodation?

Student Replacing Teacher Does Not Violate Title VII

By Sid Steinberg |

In a case that may remind old film buffs of the plot of All About Eve, in the recent case of Glover-Daniels v. 1526 Lombard Street SNF Operations, No. 2-11-cv-5519 (E.D. Pa. July 16, 2012), the student replaced the teacher. But in the 2012 employment law version, the teacher is not a Broadway star but the human resources manager for a nursing home and, when she is replaced by her "student," rather than seek other theater roles she sues for discrimination.

Third Circuit Provides Guidance on Joint Employer Liability

By Andrea M. Kirshenbaum |

On June 28, the U.S. Court of Appeals for the Third Circuit provided guidance as to what test should be applied to assess potential joint employer liability under the Fair Labor Standards Act.

What the Decision in Arizona v. United States Means for Employers

By Jeffrey Campolongo |

On June 25, the U.S. Supreme Court found that multiple portions of an Arizona immigration law, commonly referred to as SB 1070 or the "Support Our Law Enforcement and Safe Neighborhoods Act," were pre-empted by federal law in the case of Arizona v. United States , 567 U.S. ___ (2012) (June 25, 2012). The most widely publicized portion of the law pertains to checking immigration status during police stops, but an important provision that left many in Arizona in the midst of a potential new employment scheme was a provision making it a misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor," punishable by a $2,500 fine and up to six months in jail.

France Repeals Sexual Harassment Law for Being Too Vague

By Jeffrey Campolongo |

The children's lyrical rhyme "I see London, I see France ... " has taken on a whole new meaning.

Use of Dated Bases for Termination Upheld in Age Bias Case

By Sid Steinberg |

When counseling employers about the risks of terminating an employee, the adage "use it or lose it" often comes to mind.

Contested Leave of Absence Is Reasonable Accommodation

By Sid Steinberg |

Under the Americans with Disabilities Act, an employer is only required to provide a reasonable accommodation, not the accommodation preferred by the employee.

Franchisors Beware: Update on Rising Liability Issues

By James B. Shrimp |

The constant concern for employers is what next trend in litigation or what next decision by a court could lead to widespread litigation for which employers may not have prepared.

Banning Smokers May Harm Your Company's Health

By Michael D. Homans |

Companies have been attracting a lot of headlines lately by adopting new policies that prohibit the hiring of smokers. Proponents of these policies recite a number of benefits for the organization and the workforce, including promoting employee health, lowering health insurance costs and improving employee productivity.

Coming of Age: Further Development of the ADEA

By James W. Cushing |

The recent matter of Marcus v. PQ Corp. has seen the latest development in the application of the Age Discrimination in Employment Act since the U.S. Supreme Court's decision in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009).

EEOC Rules That Title VII Applies to Gender Identity Claims

By Jeffrey Campolongo |

A former male police officer applied for and was offered a job with a federal government agency, which was then rescinded days after the agency was informed the job applicant was transitioning to female.

Department of Labor Publishes Proposed FMLA Regulations

By Sid Steinberg |

Fifteen years after the Family and Medical Leave Act was enacted, the Department of Labor is in the final stage of comprehensively revising its regulations interpreting the act.

3rd Circuit Clarifies Notice Requirement Under the FMLA

By Sid Steinberg |

An employee's notice that he might need a future medical leave of absence was found sufficient to trigger the employee's rights under the Family and Medical Leave Act (FMLA) in a recent decision by the 3rd U.S. Circuit Court of Appeals in Sarnowski v. Airbrook Limousine Inc.

Individual Arbitration Agreement Applied to Class Actions

By Sid Steinberg |

The recent decision of the U.S. Court of Appeals for the Third Circuit in Quilloin v. Tenet Healthsystem, No. 11-1393, 2012 U.S. App. 5353 (3d Cir. March 14, 2012), comes at the intersection of the proliferation of wage-and-hour claims under the Fair Labor Standards Act and the continued use of arbitration agreements for individual employees.

Keeping Criminal Background Checks in Check

By Jeffrey Campolongo |

It is no secret that many employers commonly ask about criminal background information during employment application processes, and doing so is not in itself illegal. The effect of screening out those with criminal or even arrest records, however, has been shown to be disproportionately discriminatory toward African-Americans and Latinos. Under Title VII of the Civil Rights Act of 1964, it is unlawful to exclude individuals from employment because of their race or national origin. By requesting criminal background information, employers are at risk of unlawfully discriminating against minorities, even if that is not their intention.

Supreme Court Issues Two Employment Law Rulings

By Sid Steinberg |

The U.S. Supreme Court has a busy employment law docket this term, with at least six important cases to be decided before the court recesses in late June.

3rd Circuit Applies Burlington Northern
Retaliation Standard

By Sid Steinberg |

The extent to which the U.S. Supreme Court's Burlington Northern v. White decision has changed the law of retaliation claims under Title VII is apparent in the 3rd U.S. Circuit Court of Appeals' recent decision in Moore v. City of Philadelphia.

The New Employment Laws in Town: GINA AND MHPAEA

By Carolyn M. Plump And Christine V. Bonavita |

On May 21, 2008, former President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008, or GINA, into law.

New ADA Amendments Put Damper on New Year Celebration for Employers

By Todd Alan Ewan And Carolyn M. Plump |

While many will be gathering to watch the ball drop on New Year's Eve, employers are likely to be waiting for the other shoe to drop given the recent amendments to the Americans with Disabilities Act.

6th Circuit Approves Employer Closely Managing FMLA Intermediate Leave

By Sid Steinberg |

Managing employees on intermittent leave under the Family and Medical Leave Act, and determining the eligibility and duration of intermittent leave, are certainly among the most vexing issues facing employers under any of the federal employment laws.

Surveillance and Other Responses to Intermittent Leave Under the FMLA

By Paul D. Snitzer |

The Family and Medical Leave Act grants the right to be absent from work on an "intermittent" basis, that is, leave taken in separate periods of time because of a single illness, rather than one continuous period of time, to eligible employees.

3rd Circuit Dishes Out Pay Cut to Successful Attorney

By Jeffrey Campolongo |

The economy is in such a downturn that even the courts are dishing out pay cuts for attorneys. Attorneys who make some or all of their living off of the hope that a contingency fee agreement amounts to some pecuniary award have been handed the additional fear and financial uncertainty that a decision to reject a settlement offer could result in the court throwing it back in the attorney's face in the form of a fee reduction. Apparently, prevailing at trial no longer means you will get paid a reasonable sum for winning.

U.S. High Court Recognizes Title VII Third-Party Retaliation Claim

By Sid Steinberg |

In Thompson v. North American Stainless LP, the U.S. Supreme Court recognized, for the first time, a cause of action for "third-party retaliation" under Title VII of the Civil Rights Act of 1964.

Court Rules That Social Norms Do Not Impact Title VII Claims

By Sid Steinberg |

In a case of first impression, a Caucasian reporter for the local Fox29 News successfully stated a claim of race discrimination after he was terminated for having used what is commonly referred to as "the n-word."

Ten Lessons From 30 Years Working in the Legal Profession

By Michael P. Maslanka |

I celebrated my 30th anniversary as a lawyer in 2011. Here are 10 things I have learned over the years.

Refusal to Rescind Resignation Not Adverse Employment Action

By Sid Steinberg |

An "adverse employment action" under any of the federal employment laws can take many forms.

Employee Background Checks: A Word to the Wary on Responding

By Todd Alan Ewan And Carolyn M. Plump |

Employers are often confronted with calls or requests for information regarding individuals whom the employer previously employed. Many employers will only provide limited information regarding the former employee. When a company whose main purpose is to conduct background checks contacts a former employer, however, some employers treat that contact differently. The question is, should they?

Employers' Cost-Cutting Measures in Strained Economic Times

By Daniel J. McGravey And Pamela G. Cochenour |

The subprime mortgage crisis and related nationwide economic difficulties have caused some companies to review ways to minimize the financial impact on their bottom line.

NLRB Update - The Legacy of Former Chairman Liebman

By Andrew J. Rolfes and Jeffrey L. Braff |

Under the leadership of former Chairman Wilma Liebman, the National Labor Relations Board charted a distinctly pro-labor course and generated considerable controversy.

Employment Law Fixes That Should Be on This Year's Agenda

By Vianei Lopez Robinson |

The new year has arrived, and savvy in-house counsel are updating company policy manuals and checking employment law compliance. Here are six workplace fixes that counsel should make sure are on the list for 2012.

Negative Evaluation Not 'Adverse Action' in Employment Context

By Sid Steinberg |

The recent decision in Raffaele v. Potter reinforces that "unfairness" does not necessarily amount to a violation of the anti-discrimination laws.

How to Control Vendors in the Age of HR Outsourcing

By Mary Dollarhide and Haley Morrison |

The Brookings Institution recently published a study on drones — the flying computers used to conduct surveillance and arm-chair warfare, so that pilots are never put at risk. Of increasing concern, according to the study, is the possibility of drones "going rogue," either through mishandled technology or retasking by enemies. The prospect of "drones gone wild" and potentially wreaking havoc on U.S. soil suggests that "low-cost," remotely piloted alternatives may be risky.

Intermittent FMLA Leave Denied Following Adoption of Child

By Sid Steinberg |

The contours and bases for an employee's intermittent leave under the Family and Medical Leave Act remain vexing for employers and challenging for their counsel.

Trouble on the Horizon: Changes to Pa. Unemployment Compensation Law

By James W. Cushing |

On June 17, Pennsylvania Gov. Tom Corbett signed into law the legislature's latest modifications to Pennsylvania Unemployment Compensation Law. The changes described below will take effect on Jan. 1, 2012.

District Court Addresses 'Adverse Employment Action'

By Sid Steinberg |

In its Sept. 30 opinion in Mitchell v. MG Industries, the U.S. District Court for the Eastern District of Pennsylvania addressed two frequently raised issues.

Deputy's Right to Privacy Determined to Outweigh Gov't Interest

By Jeffrey Campolongo |

When is filming your female subordinate while in various states of undress a constitutional violation? That was the issue the 3rd U.S. Circuit Court of Appeals grappled with in its Oct. 12 opinion in Doe v. Luzerne County.

Court Affirms $187.6 Mil. Verdict Against Wal-Mart for Missed Breaks

By Jeffrey Campolongo |

The Superior Court of Pennsylvania upheld a class action award of $187.6 million against Wal-Mart and Sam's Club in favor of 187,000 hourly employees employed by the companies in Pennsylvania between 1998 and 2006.

Court Says Accommodation Efforts Must Be in Good Faith

By Sid Steinberg |

One of the principal effects of the Americans With Disabilities Amendments Act will be to place greater emphasis on the determination of whether an employee seeking an accommodation is "otherwise qualified" for his or her position.

When Legal Sense Doesn't Convey Practical Sense

By Michael P. Maslanka |

In the "Alice in Wonderland" world of employment law, one of the hard parts of an in-house lawyer's job is telling an internal client that something that makes zero practical sense makes complete legal sense.

ABA Opinions Clarify Ethical Obligations in E-Mail Interception

By Jeffrey Campolongo |

One of the "trending" topics in employment law circles and blogs revolves around employees communicating by e-mail with their lawyers while on the clock and the extent to which such communications may be privileged.

Interactive Process Critical to ADA Accommodation Case

By Sid Steinberg |

As cases under the amended Americans with Disabilities Act begin to reach the courts, less emphasis will be placed on whether an employee is "disabled" and a greater emphasis will be placed on the questions of whether an employee is a "qualified individual."

Internal Review Does Not Relieve Employer of 'Cat's Paw' Liability

By Jeffrey Campolongo |

Applying the recent U.S. Supreme Court precedent from Staub v. Proctor Hospital, a unanimous 3rd U.S. Circuit Court of Appeals decision determined that an internal and supposedly independent disciplinary review of an employee does not necessarily protect the employer from liability for a supervisor's unlawful discrimination. This is commonly known as the "cat's paw" theory of liability.

Walking a Fine Line:

By Daniel J. McGravey and Amy C. Lachowicz |

The increased use of text messaging and e-mail by employees has risen dramatically, with no end in sight. In the workplace, text messages and e-mails may be sent by employees using employer-issued computers, BlackBerrys and cell phones. But what happens when an employee uses these employer-issued devices for personal messages? Does an employer have any right to access and read those messages? When does an employer cross over the line between controlling the use of employer-issued electronic devices and the privacy rights of its employees?

Court Won't Enforce Restrictive Covenant Despite Work in Same Industry

By Sid Steinberg |

While many employers continue to include restrictive covenants in their employment contracts, courts in Pennsylvania and those applying Pennsylvania law continue to be reluctant to enforce such covenants without a clear showing that the precise terms of the contract have been breached and without a clear showing of harm to the employer.

3rd Circuit Addresses Family and Medical Leave Act Issues

By Sid Steinberg |

The Family and Medical Leave Act continues to present vexing issues for employers and their counsel.

'Enemy of 40 is 30, not 50,' U.S. Supreme Court Rules

By Sid Steinberg |

I recently attended an employment law seminar at which a judge on the Eastern District bench observed that the participants should pay particular attention to age discrimination claims because the Age Discrimination in Employment Act is the only statute that would cover everyone in the room, sooner or later.

3rd Circuit: Working 'Comp Time' Counts Toward FMLA Eligibility

By Jeffrey Campolongo |

The 3rd U.S. Circuit Court of Appeals recently rendered a decision explaining when an employee is eligible for leave under the Family and Medical Leave Act, when an FMLA retaliation claim can be brought and when the "association" prong of the Americans with Disabilities Act applies.

Employee Substance Abuse: A Disability Under New Version of the ADA?

By Joseph H. Blum and Christine C. McGuigan |

Equal Employment Opportunity Commission regulations, which took effect May 24, have been implemented at Congress' direction to make it easier for employees to prove they have a "disability" and are entitled to protection under the Americans with Disabilities Act (ADA), as amended, effective Jan. 1, 2009.

Finding Lack of Employer Injury, Judge Rejects 'Key Employee' Exemption

By Sid Steinberg |

The scenario is familiar to management counsel and their clients: An employee is on the brink of termination when he or she calls in with a doctor's note triggering leave under the Family and Medical Leave Act.