Employment Law

Independent Contractor Misclassification: Factors to Consider

By Joseph E. Vaughan 
and Thomas R. Bond |

In our first article, we discussed the growing trend of the misclassification of employees as independent contractors. The U.S. Department of Labor has recognized this trend as one of the most serious problems facing affected workers, employers and the entire economy. The Department of Labor points out—on its website—that the employment relationship between workers and the businesses receiving the benefit of their labor has fissured apart as companies have contracted out, or otherwise shared activities to be performed by other businesses.

How Many Employees Do You Have (for Purposes of the FLSA)?

By Stephen A. Antonelli |

Earlier this summer, our firm reminded you about major changes that take effect on Dec. 1, 2016, when the salary threshold required for employees to qualify for the executive, professional, or administrative exemptions allowed by the Fair Labor Standards Act (FLSA) is doubled. While certainly significant, the updated overtime regulations were not unexpected as the salary threshold has not been increased since 2004.

Employers Beware: Use of Background Checks in the Hiring Process

By Joseph c. Rudolf 
and Jason M. Saruya |

Background checks in the employment context have increasingly come under fire. In April, an applicant for a bus driver position filed a class action lawsuit against Southeastern Pennsylvania Transportation Authority (SEPTA) after he was disqualified due to a 20-year-old drug conviction.

Sid Steinberg

Criticism of an Employee Is Not Necessarily 'Hostile'

By Sid Steinberg |

Employees will often complain that their workplace is "hostile" because their supervisor is critical of their work performance. But, of course, there is a difference between a "critical" work ­environment and a legally actionable ­"hostile" environment.

Jeffrey Campolongo

Court Says No To Withholding Taxes on FMLA Settlement

By Jeffrey Campolongo |

Congratulations! You have somehow managed to convince a very reticent employer and their all-powerful counsel to finally settle that difficult Family and Medical Leave Act (FMLA) case with you. The only thing left to do is to get paid, right? Guess again. Until the parties can agree on how the settlement payment should be reported to the IRS, the settlement will remain in payment purgatory. There can be a "sticking point" in these situations if a plaintiff is paid by W-2, because the defendant is obligated to deduct applicable taxes, withholdings for Social Security and Medicare and its employer tax, whereas a plaintiff paid by Form 1099-MISC is responsible for all of these taxes.

Independent Contractor Misclassification: A Rising Tide

By Joseph E. Vaughan 
and Thomas R. Bond |

The U.S. Department of Labor has recognized the misclassification of employees as independent contractors as one of the most serious problems facing affected workers, employers and the entire economy.

Sid Steinberg

The FMLA Does Not Require a Warm Welcome Back to Work

By Sid Steinberg |

Must an employer engage in ­pleasantries and avoid critique of an employee's pre-Family and Medical Leave Act leave work performance when an employee returns to work after an FMLA leave?

Time Clock

New Overtime Rules—Not the Holiday Present Employers Were Hoping For

By Brian J. Hoffman |

The Department of Labor's new overtime regulations become effective in December 2016, just in time for the holiday season. Suffice it to say, this will be viewed as "coal in the stocking" for many U.S. employers.

Dave Dambreville

OSHA's Confidentiality Provisions May Not Preclude Consultant Depositions

By Daivy P. Dambreville |

In an effort to comply with the regulations established by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA), employers can request from the agency a voluntary inspection to determine whether they are in compliance.

Sid Steinberg

Magic Words Not Necessary for Leave to Be Covered by FMLA

By Sid Steinberg |

In Raimondi v. Wyoming County, 2016 U.S. Dist. LEXIS 67653 (M.D. Pa. May 24, 2016), the court deconstructed an employer's mishandling of an ­employee's request for leave and in doing so provides employers with insightful, step-by-step guidance on how to handle requests for leave when evaluating whether such requests qualify under the Family and Medical Leave Act (FMLA) and the act is not specifically mentioned by the employee.

Handicapped sign at entrance to a business..photo by Jason Doiy.12-2-09.050-2009

EEOC Guidance on Leave as an Accommodation Answers ADA Questions

By Jeffrey Campolongo
And Lorrie McKinley |

For those familiar with this column, it comes as no surprise that the most predominant topic over the years has been the Americans With Disabilities Act (ADA). It really has become our favorite topic to write about. In fact, our very first article in The Legal in 2009 was titled "Ushering in a New Era under the ADA Amendments Act."

Sid Steinberg

Additional Consideration and Presumption of At-Will Employment

By Sid Steinberg |

Pennsylvania is, of course, a state with a strong presumption that employment is "at-will." At-will employees can be terminated for any reason or no reason at all. One of the few exceptions to at-will employment is where an employee can demonstrate "additional consideration" beyond the services for which he or she was hired. In Wakeley v. M.J. Brunner, 2016 Pa. Super. LEXIS 227 (Pa. Super. Ct. 2016), the Pennsylvania Superior Court affirmed the lower court's judgment for the defendant on the plaintiff's breach of contract claims, ­although the employee's relocation and house purchase were sufficient additional consideration to overcome the at-will ­employment presumption.

Jeffrey Campolongo

C&R Agreements May Waive Subsequent Employment Law Claims

By Jeffrey Campolongo |

As is often the case in the practice of law, the simplest of details can have the hugest impact on the outcome. Take for example, the recent case from the Eastern District of Pennsylvania of Zuber v. Boscov's, No. 15-3874 (E.D. Pa., Apr. 7, 2016). What was believed to be a rather benign settlement and release of a workers' compensation claim turned out to be a complete bar to a subsequent claim brought in federal court under the Family and Medical Leave Act (FMLA).

Sid Steinberg

How Analogous Must Comparator Be to Be Deemed Similarly Situated

By Sid Steinberg |

In Peake v. Pennsylvania State Police, No. 15-2669, 2016 U.S. App. LEXIS 4712 (3d Cir. Mar. 15, 2016), the U.S. Court of Appeals for the Third Circuit provided helpful guidance on the factors to consider when determining whether individuals are similarly situated.

Circuit Courts Clarify Whether Interns Are FLSA 'Employees'

By Jeffrey W. Rubin |

Courts have seen an uptick in recent years of FLSA lawsuits from an unexpected source: unpaid interns. Interns have filed numerous lawsuits claiming that they are "employees" within the meaning of the FLSA, and thus subject to its minimum wage and overtime protections.

Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit walks the halls of Congress on March 17, 2016.

Evaluating Employment Law Decisions of US Justice Nominee Garland

By Jeffrey Campolongo |

There is a sentiment in the ­employment law community, particularly those who practice on the employee side, that federal courts have grown increasingly hostile to employee rights cases. The empirical data compiled over the last three decades seems to support this sentiment. Plaintiffs who bring employment discrimination claims in federal court are far less likely to prevail than plaintiffs in non-employment cases. According to a 2009 Harvard Law and Policy Review article titled "Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?" since 1979, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent). For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent). With respect to appeals, employees succeeded only 9 percent of the time, while employers won 41 percent of appeals.

Sid Steinberg

Regular On-site Attendance an Essential Function of Lawyer's Job?

By Sid Steinberg |

There are always questions about whether regular and predictable attendance is an essential function of a job under the Americans with Disabilities Act. In Fischer v. Pepper Hamilton, No. 15-02413, 2016 U.S. Dist. Lexis 10603 (E.D. Pa. Jan. 29, 2016), the U.S. District Court for the Eastern District of Pennsylvania found that regular on-site attendance may not be essential for a project attorney hired by a law firm. The parties have since filed a joint motion to dismiss the case, putting an end to a trial that was scheduled to begin last week.

Terminated Employees Can Inspect Records Under Personnel Files Act

By Jeffrey Campolongo |

Every now and then an employment law decision will come down the pike that seems to come out of left field, leaving those of us who comment on these things to really scratch our heads.

Employees Must Be Paid for Short Workday Breaks, Court Finds

By Sid Steinberg |

You may be reading this article on a "break" during your workday. To the extent that you are paid by the hour (and not just billing by the hour), the Fair Labor Standards Act and its regulations govern whether you are to be paid for that break.

Sid Steinberg

MLB Strikes Out Seeking Minor-League Wage-and-Hour Suit Dismissal

By Sid Steinberg |

The average Major League Baseball salary in 2015 was $4.2 million. Assuming that major-league players work (generously) 10 hours per day, six days per week for nine months (February through October), they earn, on average, $1,795 per hour—well in excess of the $7.25 per hour minimum wage prescribed by the Fair Labor Standards Act.

James W. Cushing

Coordinating Unemployment Compensation With Severance Packages

By James W. Cushing |

When one applies for unemployment compensation, it is important to coordinate said application based on when one's severance package expires and whether one is still within one's base year, which is the length of time preceding an application for unemployment compensation. The base year and one's income earned over that period of time determine the calculations of the amount of one's unemployment compensation benefits.

Jeffrey Campolongo

Differing Definitions of Disability Under ADAAA and PHRA

By Jeffrey Campolongo |

As many employment lawyers are now well aware, determining what is and what is not a "disability" under the applicable laws can be a litigation minefield. With the enactment of the ADA Amendments Act (ADAAA) on Jan. 1, 2009, there were supposed to be sweeping changes to the way the Americans with Disabilities Act (ADA) was being interpreted. The new law expanded the definition of "disability" in response to the restricted view given to it by the U.S. Supreme Court and other federal courts, which were interpreting the definition too narrowly.

Sid Steinberg

Reliance on Third-Party Background Check Consistent With FCRA

By Sid Steinberg |

While most companies check an applicant's background before hiring, cases under the Fair Credit Reporting Act (FCRA), which apply when a third party conducts the check for the prospective employer, are rare. Ramos v. Genesis Healthcare LLC, No. 15-52 (E.D. Pa. Oct. 1, 2015) (Kearney, J.), provides guidance to employers as to how reports under the FCRA can be used.

Jeffrey Campolongo

Same Evidence Used to Reject Bias Claim, Support Retaliation Claim

By Jeffrey Campolongo |

The (over)use of the summary judgment process in employment discrimination cases has been heartily scrutinized over the years.

gavel

Arb Agreement Enforced Despite Employee Never Having Read It

By Sid Steinberg |

For employers and their counsel, agreements whereby employees are required to arbitrate any possible employment claim are either adored or despised. There is very little room for gray. In the broadest sense, employers who favor such agreements do so because it saves on litigation costs—along with the possibility that a plaintiff may be less sympathetic to an arbitrator than he or she would be to a jury. From the employee's perspective, arbitration brings matters to finality more quickly than does litigation and an employee with a weaker case may benefit from an arbitrator's tendency to "split the difference" rather than render a decision wholly in favor of one side.

Time Clock

A Summer of Potential Discontent for Employers

By B.J. Hoffman |

Employers may look back at the summer of 2015 and recall it with distaste, as the U.S. Department of Labor released significant proposed rules and interpretations that would serve to substantially increase employers’ overtime obligations and compliance burdens for workforces.

Jeffrey Campolongo

Employees With Duty to Report Bias Protected From Retaliation

By Jeffrey Campolongo |

A recent decision from the U.S. Court of Appeals for the Fourth Circuit reminded this writer that you could still learn something new about the law every day. Even in an area that you are a supposed expert. This time, it was a decision regarding the so-called "manager rule," a principle applied in some circuits in the context of retaliation claims under the Fair Labor Standards Act (FLSA). The rule had been extended to retaliation claims under Title VII. For managers, human resources professionals and the like, in order to engage in protected activity and garner protection from retaliation, the rule required the employee to "step outside his or her role of representing the company."

Sid Steinberg

Deference Given to Employer's Business Decisions in Bias Case

By Sid Steinberg |

There are few more settled tenets in employment discrimination law than that the court does not sit as a "super-personnel department that re-examines the employer's business decisions."

Jeffrey Campolongo

Analysis of Counsel Fee Awards in Two Cases With Same Attorney

By Jeffrey Campolongo |

Attorney fees. There are few things in the practice of law that are as sacrosanct as payment for the professional guidance we provide to our clients, whether the matter is a billion-dollar complex acquisition by a multinational conglomerate or drafting a simple will. As lawyers we tend to be very self-aware, perhaps even sensitive, when it comes to being paid what we deem a reasonable amount for our time and attention to our craft. For those of us who practice in the employment law world where there is a statutory fee-shifting provision, we tend to be even more in tune to legal issues affecting how we are paid. That is why two recent decisions from the Eastern District of Pennsylvania issued merely a day apart have prompted some curious head-scratching by practitioners.

Sid Steinberg

District Court Refuses to Disrupt Employer's Hiring Decision

By Sid Steinberg |

Discrimination claims based upon an employer's failure to promote or hire remain among the more difficult claims for employees.

Jeffrey Campolongo

Justices Revive Religious Accommodation Case Against Abercrombie & Fitch

By Jeffrey Campolongo |

The U.S. Supreme Court recently addressed a case regarding a Muslim woman's right to have her religious practices accommodated under Title VII of the Civil Rights Act of 1964. In a much anticipated, and in many ways, surprising decision, the high court decided the hiring practices of the popular retail clothing company Abercrombie & Fitch violated Title VII. The case, EEOC v. Abercrombie & Fitch Stores, No. 14-86, was decided June 1. Unfortunately, this is not the first time Abercrombie's employment and hiring practices made headlines.

Sid Steinberg

Managing Employee's Intermittent Leave Under the FMLA

By Sid Steinberg |

Intermittent leave under the Family and Medical Leave Act continues to bedevil employers in implementing leave management measures balanced with maintaining workforce productivity. When intermittent FMLA is combined with the so-called "hidden disabilities" such as migraines, fibromyalgia or asthma, employers are often hard-pressed to manage their workforce in compliance with the various statutes that come into play. This difficult balance was recently addressed by the U.S. District Court for the Eastern District of Pennsylvania in Brady v. United Refrigeration, No. 13-6008 (E.D. Pa. June 3, 2015) (Robreno, J.).

Jeffrey Campolongo

When Employee's FMLA Leave Is Over, the ADA Kicks In

By Jeffrey Campolongo |

Having just returned from speaking at the Pennsylvania Bar Institute's 21st annual Employment Law Institute, the No. 1 question on the mind of employers was how to deal with an employee's request for leave under the Americans with Disabilities Act once the employee's Family and Medical Leave Act leave has expired. The answer, like most reasonable accommodation issues, is it depends. Courts throughout the country have consistently held that unpaid leave is a form of reasonable accommodation. Unpaid leave may be an appropriate reasonable accommodation when an individual expects to return to work after getting treatment for a disability, recovering from an illness, or taking some other action in connection with his or her disability.

Time Clock

Phila. Sick Time Ordinance Adds to Employers' Woes

By B.J. Hoffman |

In February, Philadelphia became the 17th major U.S. city to enact a mandatory paid sick time ordinance. The ordinance, effective May 13, requires most employers to provide paid sick leave time to workers inside the city's borders.

Signing a contract

Noncompete Controversy Taking Shape in Pa. Supreme Court

By Jeffrey Campolongo and William T. Wilson |

It appears that things are starting to heat up in the world of noncompete clauses in employment agreements. Apparently, the Pennsylvania Supreme Court kicked off a firestorm of arguments when it decided to grant review of the Superior Court's decision in Socko v. Mid-Atlantic Systems of CPA, 2014 PA Super 103, 99 A.3d 928, appeal granted, 105 A.3d 659 (Pa. 2014).

Sid Steinberg

Certain Conduct Doesn't Qualify as Adverse Employment Action

By Sid Steinberg |

Last week, the U.S. District Court for the Eastern District of Pennsylvania held in Rosati v. Colello, No. 14-2402, 2015 U.S. Dist. LEXIS 44069 (E.D. Pa. Apr. 2, 2015), that a former employee cannot meet his or her burden of showing a prima facie case of gender discrimination, hostile work environment, or retaliation under Title VII of the Civil Rights Act of 1964 when the alleged "adverse employment actions" were isolated and not severe and pervasive enough to alter the compensation, terms, conditions, or privileges of his or her employment.

gavel

Physical Assault of Harasser Doesn't Bar Retaliation Claim

By Sid Steinberg |

In addressing a matter of first impression in this circuit, the U.S. District Court for the Eastern District of Pennsylvania held in Speed v. WES Health System, No. 14-0286, 2015 U.S. Dist. LEXIS 23818 (E.D. Pa. Feb. 26, 2015), that an employee does not "forfeit her retaliation rights under [Title VII of the Civil Rights Act of 1964] for physically defending herself against a sexual advance after an employer fails to take corrective measures about a hostile work environment."

Courts Work to Protect Employees From Harassing Discovery Tactics

By Jeffrey Campolongo |

Do plaintiffs in employment cases have a legitimate privacy interest in information regarding their subsequent employment? Nowadays, most courts say yes. An increasing number of courts have frowned on the employer's practice of subpoenaing employment records from a plaintiff's subsequent (or in some cases, current) employer.

Sid Steinberg

Court: Alleged Retaliatory Conduct to Be Viewed 'as a Whole'

By Sid Steinberg |

When analyzing whether an employee has plausibly stated a claim under federal and state anti-retaliation laws, it is not enough to look at the actions of the employee and the employer individually, but rather, courts will analyze the entirety of the circumstances surrounding the parties' actions. The U.S. District Court for the Eastern District of Pennsylvania provided a recent example of this principle in Leblanc v. Hill School, No. 14-1674, 2015 U.S. Dist. LEXIS 2981 (E.D. Pa. Jan. 12, 2015).

Use of Implicit Bias Evidence to Prove Discrimination

By Jeffrey Campolongo |

Are you or your co-workers guilty of "unconscious discrimination"? Is your manager or supervisor guilty of "implicit bias" in the workplace? These terms and others like it are used in social science to describe the inherent nature of stereotyping that takes place in everyone. The issue courts are being confronted with on a more frequent basis revolves around whether evidence of this type of stereotyping can form the basis for liability under anti-discrimination laws.

Sid Steinberg

Employee Constructively Discharged After Co-worker's Demotion

By Sid Steinberg |

Even in a tight job market, employees resign regularly based on real or perceived problems at work. When they resign and then sue, they have an added degree of difficulty in establishing that they were "constructively discharged"—that is, that the conditions under which they were working were "so intolerable that a reasonable person would have had no choice but to resign." The flip side to this standard is the well-settled law that employees are not being encouraged to resolve workplace situations with "the simple expedient of quitting." The most recent case where this standard was discussed and applied by a court in the Eastern District of Pennsylvania was Heppard v. EDSI Solutions, No. 13-6124, 2014 U.S. Dist. LEXIS 175989 (E.D. Pa. Dec. 19, 2014).

Time Clock

Decision Shows Differences Between Federal, Pa. Wage Laws

By Frank P. Trapani and Peter J. Kreher |

In Integrity Staffing Solutions v. Busk, --- U.S. --- (Dec. 9, 2014), the U.S. Supreme Court held that federal law does not require employers to compensate employees for time they spend waiting to undergo and undergoing antitheft security screenings in the workplace. This article describes the court's analysis and explains why the result likely would be different under Pennsylvania law.

Sid Steinberg

Third Circuit Addresses 'Severe and Pervasive' Workplace Behavior

By Sid Steinberg |

How "severe" an offensive workplace must be to rise to the level of actionable harassment is an ongoing balancing act by courts in the Third Circuit. While the language courts use is well-known, and comes from U.S. Supreme Court cases, the application of that language is often the subject of nuanced interpretation. The U.S. Court of Appeals for the Third Circuit's recent decision in Greer v. Mondelez Global, No. 12-3820, 2014 U.S. App. LEXIS 20529 (3d Cir. Oct. 22, 2014), is the latest case to keep the "severity" bar at a high level for individuals claiming that they have been harassed in the workplace.

Jeffrey Campolongo

Mixed Results on Collateral Estoppel in the Eastern District

By Jeffrey Campolongo |

There may be a controversy brewing in the Eastern District of Pennsylvania. The issue stems from a recent decision regarding the preclusive effect of administrative proceedings from the Unemployment Compensation Board of Review (UCBR) in a subsequent federal court discrimination lawsuit alleging similar facts. The results are two starkly different interpretations of a longstanding Pennsylvania Supreme Court precedent by members of the same court.

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.

Delaware Proposes Legislation to Eliminate Employment at Will

By Jeffrey Campolongo and Jennie Maura McLaughlin |

The Delaware legislature has introduced a bill to require "just cause" for terminating an employee, which represents a significant departure from employment law practice in every other state but Montana.

Accused of Harassment, Fired Employee States Viable Bias Claim

By Sid Steinberg |

When an employer is faced with an allegation of sexual harassment in the workplace, it is inevitable that one "side" of the story will be credited over the other. This decision needs to be made in the moment, as the employer works to take the "effective remedial action" as promptly as possible.

Justices Agree to Hear Bias Case, 'Ministerial Exception' Issue

By Jeffrey Campolongo and Jennie Maura McLaughlin |

As a general matter, courts try to stay out of employment discrimination cases filed against religious organizations. Originally, Title VII of the Civil Rights Act of 1964 shielded religious organizations from religious discrimination claims by employees.

Workplace Social Media a Fast-Moving Area of the Law, Panelists Say

By Albert Barsocchini |

Considering the popularity of Facebook and its ilk, it's abundantly clear that companies need a granular understanding of how employees are using social media in business and personally.

Recent Developments in Family and Medical Leave Act Case Law

By Michael P. Maslanka |

The Family and Medical Leave Act continues to bedevil corporate counsel. The idea is a good one: providing 12 weeks of unpaid leave for employees who find themselves or their close family members incapacitated. But implementing a worthwhile idea is an entirely different matter than legislating it. Let's look at whether 2010 brought clarity or confusion.

Bill Addresses Independent Contractor Misclassification

By Richard J. Reibstein, Lisa B. Petkun and Andrew J. Rudolph |

On April 22, a bill was introduced in Congress to make misclassification of employees as independent contractors a federal labor law violation. The Employee Misclassification Prevention Act, or EMPA, would also impose record-keeping and notice obligations upon companies and subject them to hefty penalties for noncompliance with the proposed new law.

U.S. Supreme Court Says a Complaint Is a 'Complaint'

By Jeffrey Campolongo and Jennie Maura McLaughlin |

According to the U.S. Supreme Court, a complaint is a "complaint" whether made orally or in writing. An opinion authored by Justice Stephen Breyer, Kasten v. Saint-Gobain Performance Plastics Corp., addressed the issue of whether the Fair Labor Standards Act (FLSA) protects employees from retaliation for making oral complaints.

Preparing for a Visit From 'Mr. OSHA': Response Protocols for Employers

By W. Stephen Cockerham |

My friend Tom was working a construction job one summer when an Occupational Safety & Health Administration compliance officer pulled up at the worksite. A co-worker remarked, "Mr. OSHA's here? Hey, Tom, I know that dude. He came to the last job I worked."

'Cat's Paw' Liability Affirmed by the U.S. Supreme Court

By Sid Steinberg |

In the U.S. Supreme Court's March 1 decision in Staub v. Proctor Hospital, the court addressed the liability of an employer under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) when a non-decisionmaker allegedly harbors anti-military animus and influences an unbiased supervisor, which ultimately results in an employee's termination.

Are Employers Discriminating Against Unemployed Job Applicants?

By Jeffrey Campolongo And Jennie Maura McLaughlin |

Are employers unlawfully discriminating against job applicants who are unemployed? The Equal Employment Opportunity Commission, or EEOC, is making an inquiry into this issue, in particular into whether those in protected classes are being subject to disparate treatment by employers not considering job applicants who are not currently working.

Tweet This: Social Networking May Count in EDD

By By Adam Hurwitz and Alon Israely |

Employees' use of social-networking sites is challenging corporate legal departments when they have to engage in electronic discovery preservation and collections — and when they seek to monitor and control corporate communications.

Who Is the Decision Maker in Employment Cases?

By Sid Steinberg |

In employment litigation, who made the call on a decision to terminate can be a critical element in a case, since the 3rd U.S. Circuit Court of Appeals has held that discriminatory remarks by non-decision makers will be given little if any weight.

New Federal Overtime Regulations in Effect

By Shannon Farmer |

Pennsylvania, like several other states, has its own overtime law that is unaffected by the changes in the federal rules. Thus, Pennsylvania overtime may become a trap for the unwary, leading to significant liability for unpaid overtime.

A Look at Proposed New Overtime Regulations

By Sid Steinberg |

Every administration since Jimmy Carter's has made some effort to implement revisions to the Fair Labor Standards Act's overtime requirements, which have remained essentially unchanged for more than a quarter of a century. To give an example of how outdated the regulations are, an employee can be classified as an executive employee and be denied overtime if he or she earns $8,060 per year, which is more than $2,000 below the current minimum wage of $10,700 per year.

The Minimizing Consequences of the H-1b Cap

By Suzanne B. Seltzer |

The H-1b nonimmigrant visa category is perhaps the most frequently used method for U.S. employers to hire foreign nationals on a temporary basis.

Loss of Post-Firing Work Does Not Preclude Back Pay

By Sid Steinberg |

There is a saying in golf that you drive for show and putt for dough. In employment litigation, a similar dynamic is at work: Liability gets the headlines, but damages pays the bills.

Are Accommodations Due Employees 'Regarded as' Disabled?

By Sid Steinberg |

In Williams v. Philadelphia Housing Authority, a panel of the 3rd U.S. Circuit Court of Appeals has finally addressed squarely the question of whether an employee who is regarded as disabled under the Americans with Disabilities Act is entitled to an accommodation as a matter of law. While recognizing that the situation may lead to bizarre results, the court held that the act requires such accommodations to be made.

Damages Severely Limited in ADA Retaliation Case

By Sid Steinberg |

Every now and then, a decision comes along where attorneys on one side of the bar or the other collectively scratch their heads and say, Why didn't I think of that?

Duty to Disabled Employees and Applicants Under the ADA

By Adam Long |

The 3rd U.S. Circuit Court of Appeals recently held that under the Americans with Disabilities Act, employers have a duty to reasonably accommodate employees and applicants who they erroneously regard as disabled, even if the individual is not actually disabled.

OSHA Returns to Viability as Source of Public Policy

By Sid Steinberg |

Prior to the Pennsylvania Supreme Court's decision in McLaughlin v. Gastrointestinal Specialists Inc., Pennsylvania state courts and courts applying Pennsylvania law had consistently found that the Federal OSHA law, with its anti-retaliation provisions, could form the basis for a wrongful discharge claim in violation of Pennsylvania public policy.

Weingarten Continues to Affect Rights in Non-Union Workplaces

By Sid Steinberg |

A few years ago, I referred to the decision of the National Labor Relations Board in Epilepsy Foundation of Northeast Ohio as the final stop on a six-year rollercoaster in which the board alternately recognized and removed NLRB v. J. Weingarten rights in the non-union workplace.

No Protection From Retaliation for Baseless Discrimination Claim

By Sid Steinberg |

Ask a defense attorney what the toughest type of case is, and most will say retaliation.

Protecting the Job Front for Those Protecting the Home Front

By Jessika M. A. Rovell |

One point two million. That is the number of citizen soldiers serving in the reserves and National Guard. Of those 1.2 million, 400,000 have been mobilized since Sept. 11, 2001.

EEOC Oral Notice Of Right To Sue May Be Valid

By Kevin I. Lovitz |

In Ebbert v. DaimlerChrysler, the 3rd U.S. Circuit Court of Appeals ruled that an employee's right to sue in a disability employment discrimination case could be triggered by oral, rather than written, notice, provided that the employer could demonstrate that a claimant received sufficient oral notice of rights from the EEOC. This is an important decision because when the notice is oral, it triggers a short, 90-day period to file suit.

Pay Attention to Details Where the FLSA Is Concerned

By Sid Steinberg |

As anyone who has worked with the Fair Labor Standards Act is aware, the devil is in the details. Employers and their counsel need to understand precisely how the Department of Labor applies its regulations in order to determine whether overtime is correctly being denied or paid.

ADA Can Trump FMLA on Independent Exams

By Sid Steinberg |

When returning an employee to work following a leave under the Family and Medical Leave Act, employers and their counsel advising them are often caught between the FMLA's prohibition on independent return to work examinations and the possible need for such an examination for a requested accommodation under the Americans with Disabilities Act. The 3rd U.S. Circuit Court of Appeals recently addressed this conundrum in Conroy v. Township of Lower Merion, (3rd Cir. Aug. 8, 2003).

Business of Law on Trial in EEOC v. Sidley Austin

By Sid Steinberg |

Last month, the Equal Employment Opportunity Commission brought suit against the Chicago-based law firm of Sidley Austin Brown & Wood on behalf of 31 former partners who were either demoted or forced to leave during a restructuring in 1999. The commission claims that the former partners were discriminated against on the basis of their age. The preliminary battle of the EEOC's investigation has been going on for years, but the litigants have now stepped into the ring for the main event.

'Disparate Impact' May Result in Less Than It Appears

By Sid Steinberg |

In Smith v. City of Jackson, the U.S. Supreme Court made it possible for plaintiffs to win a claim for age discrimination where an otherwise neutral policy disproportionately hurts older workers.

3rd Circuit: Blood Cleansing a Major Life Activity

By Sid Steinberg |

In a case of first impression nationwide, the 3rd U.S. Circuit Court of Appeals recently held that blood cleansing by an employee with end-stage renal disease is a major life activity under the Americans with Disabilities Act. While the specific holding will obviously have limited impact beyond the specific facts of the case, the court's reasoning seems to expand the boundaries of the ADA.

Finding Fraud: Know the Warning Signs and Avoid the Problem

By Kyle Anne Midkiff |

Fraud makes headlines every day. Mega-companies like Adelphia, Enron, Global Crossing, Tyco and WorldCom have reported fraud on its grandest scale.

Does Favoritism Create a Hostile Work Environment?

By Mike McKee |

Soon after transferring to a job at Chowchilla, Calif.'s Valley State Prison for Women in 1995, Edna Miller learned that moving up in rank could come at a high price.

EEOC Charge Must Identify Type of Discrimination to Support Legal Action

By Sid Steinberg |

When negotiating a settlement agreement, it is often a dangerous proposition to schedule a date for the prospective or current plaintiff's employment to end beyond the date of the agreement.

Ambiguity Renders Age Discrimination Release Invalid

By Sid Steinberg |

It is referred to as drafting the release. But often the term drafting could be replaced by the word-processing phrase blocking and moving. As such, the language of one release looks similar to the language of another. This tends to be true for both end-of-employment and end-of-litigation releases.

Questions Which Should Never Be Asked in Job Applications

By Judith Sullivan |

We all know by now, you can't discriminate in the workplace. What many of us don't know, however, is what that means in the day-to-day operation of our businesses. A good place to start is the development and implementation of employment policies and practices that minimize the risk of workplace and employee litigation.

Personality Test Violates Americans With Disabilities Act

By Sid Steinberg |

Years ago, when the legendary football coach George Allen coached the Washington Redskins, there was a story that he interviewed a college football player in order to decide whether he should be drafted. During the interview, Allen asked the player what he would do if a fly were bothering him during the interview.

Court Applies Cleveland v. Policy Management to ADA Claim

By Sid Steinberg |

Although the Supreme Court addressed the tension between an ADA claim and a Social Security claim a few years ago in Cleveland v. Policy Management Sys. Corp., issues remain as to how inconsistencies are considered by the courts. The recent case of Mendez v. Pilgrim's Pride Corp. highlights the difficulty an employee receiving Social Security benefits can face when seeking relief under the ADA.

Federal Court Applies State Rules to Toll ADA Limitations Period

By Sid Steinberg |

Ever since the Pennsylvania Supreme Court found that the Pennsylvania Human Relations Act did not allow for the recovery of punitive damages or for a jury trial, employment law practitioners in the state have had little use for Pennsylvania state courts or state civil procedure.

EEOC Issues Regulations on Genetic Information

By Jeffrey Campolongo and Jennie Maura McLaughlin |

On Nov. 9, the Equal Employment Opportunity Commission published its final regulations implementing the Genetic Information Nondiscrimination Act of 2008.

Back Pay as Equitable Remedy
May Have Impact on Employment Suits

By Sid Steinberg |

In a decision that could have a far-reaching impact on the way in which employment discrimination cases are litigated in the 3rd U.S. Circuit Court of Appeals, the court recently held that back pay is an equitable remedy under Title VII to be decided by the judge, rather than the jury.

Time for Filing Complaints
After EEOC Notice Questioned

By Sid Steinberg |

Every employment law practitioner knows that a federal discrimination lawsuit needs to be filed ninety days after receipt of the EEOC's notice of right to sue. And most of us know that three days are added for mailing/receipt under the Federal Rules of Civil Procedure, making a complaint filed with 93 days of the notice's date timely. But a recent decision of the USDC for the Eastern District of Pennsylvania had called those extra three days into question based upon a 2001 amendment to the federal rules.

Discrimination Suit Possible
Even With Less Than Four Employees

By Kevin I. Lovitz |

In a decision that significantly advances the rights of employees, the Superior Court recently decided that an employee could sue her former employer for discrimination even though the employer employed less than four workers - a jurisdictional prerequisite under Pennsylvania discrimination law.

Falsified Leave Request Leads
To Dismissal of FMLA Action

By Sid Steinberg |

I wrote last year about the case of Dillion v. Maryland Nat'l Capital Park and Planning Commission, where an employer was deeply skeptical of an employee's request for Family Medical Leave Act (FMLA) leave for a trip to Jamaica.

3rd Circuit Finds Cause of Action
in Retaliatory Harassment

By Sid Steinberg |

In a case of first impression, the 3rd U.S. Circuit Court of Appeals has recognized a cause of action for retaliatory harassment consistent with the other types of long-recognized harassment under Title VII.

Request for Disability Leave Insufficient
To Support 'Disability' Finding

By Sid Steinberg |

If an employee's physician writes that the employee cannot work due to a permanent disability, this would seem to be a sufficient basis for the employer to remove the employee from the workplace.

Gaining Medical Examinations
for Employees Under the ADA

By Sid Steinberg |

Medical examinations under the Americans with Disabilities Act are not often the subject of litigation. Yet, for employers, the decision as to when, and under what circumstances, an employee can be examined will be an issue often faced.

3rd Circuit Rules Long-Standing Animosity Defeats Retaliation Claim

By Sid Steinberg |

Evidence of long-standing animosity between an employee and her supervisor can serve to defeat a claim of retaliation for having engaged in protected activity.

3rd Circuit Addresses Disparate
Impact Issues in Employment Case

By Sid Steinberg |

The overwhelming majority of discrimination cases allege that an individual was treated differently by an employer because of his or her protected characteristic.

3rd Circuit Emphasizes
Fact-Sensitive Nature
of ADA Claims

By Sid Steinberg |

Correctly accommodating employees with limitations under the Americans with Disabilities Act has never been simple. The ADA requires an extensive interactive process in determining if, and how, a position can be modified to allow an employee to continue in the workplace.

7th Circuit Defines 'Target Area'
Of Sexual Harassment

By Sid Steinberg |

Since the U.S. Supreme Court defined a cause of action for sexual harassment as a violation of Title VII, courts and practitioners have sought the line to be drawn between merely offensive conduct and conduct that crosses the line into impinging a worker's right to be an environment free from discriminatory intimidation, ridicule and insult.

Friends Set May Have Been
Unfriendly, but Not Harassing

By Sid Steinberg |

The old adage is that you may enjoy sausage, but would not want to see it made. The same, apparently, goes for the Hollywood creative process, at least as it relates to the creation of the show Friends. You may enjoy Joey, Monica and the rest, but at least one of the show's former production assistants found the creative environment sexually harassing and sued for damages under California's Fair Employment and Housing Act.

Ledbetter Decision Likely to Result
In Earlier Charge Filings

By Sid Steinberg |

In Ledbetter v. Good Year Tire & Rubber Co. Inc., the U.S. Supreme Court extended to "pay-setting decisions" its previous line of cases holding that the time for filing a charge of employment discrimination begins when the discriminatory act occurs.

Contours of Punitive Damages Are Ambiguously Defined

By Jonathan Meyers |

When employers are faced with employment discrimination and harassment lawsuits, they are often scared stiff at the prospect of having to pay hefty punitive damages awards to former employees.

¿Because I Said So¿ Defeats
ADA Motion for Summary Judgment

By Sid Steinberg |

We are all familiar with the age-old explanation ¿Because I said so,¿ which, when uttered by our parents or as a parent, ends the debate absent any additional supporting evidence.

¿Because I Said So¿ Defeats
ADA Motion for Summary Judgment

By Sid Steinberg |

We are all familiar with the age-old explanation ¿Because I said so,¿ which, when uttered by our parents or as a parent, ends the debate absent any additional supporting evidence.

Employee Must Compete for Position as Reasonable Accommodation

By Sid Steinberg |

Under the Americans With Disabilities Act, it is well settled that "reassignment" to an open and available position must be considered as a possible "reasonable accommodation."

Employers, Beware: Supreme Court
Decision Changes the Playing Field

By Russell Adler |

Thanks to a recent ruling by the U.S. Supreme Court, a gray area relating to retaliation claims in the workplace is a bit clearer. This ruling has far reaching implications for employers concerned about avoiding costly anti-retaliation litigation.

Agreements to Arbitrate Employment Disputes: Salley v. Option One

By Andrea M. Kirshenbaum |

With the hope of decreasing litigation costs and avoiding the prospect of large jury awards, many employers have considered whether to require employees to arbitrate all disputes in relation to the employee's employment, whether by agreement, unilateral policy or on the employment application.

Certain Bonuses Not Due
For Family Medical Leave Act

By Sid Steinberg |

The Family Medical Leave Act requires that employees taking leave under the act are to be treated in the same manner as if they had remained in the workplace. In a recent case of first impression, the 3rd U.S. Circuit Court of Appeals held that certain types of bonuses may be prorated for the period during which an employee is on FMLA leave.

Eastern District Judge
Invalidates Waiver of FMLA Claim

By Sid Steinberg |

It is often observed that settlement agreements are a substantial part of any employment lawyer¿s practice. For employers¿ counsel and their clients, severance agreements for departing employees are often an equally large part of the practice.

Court Declines to Increase ADEA Award for Negative Tax Consequences

By Sid Steinberg |

The concept of "negative tax consequences" was first recognized in the Eastern District of Pennsylvania in the 2000 decision O'Neill v. Sears, Roebuck and Co.

The Effect of Mandatory Arbitration on Class Actions

By James D. Jordan |

When the U.S. Supreme Court builds a decisional wall around a subject, it usually does so a brick at a time, forcing attorneys to squint and strain, and sometimes squirm, as they attempt to envision the ultimate dimensions of the structure.

'Don't Talk About Religion or Politics' May Apply to Workplace

By Deborah Weinstein and Robert J. Haurin |

With midterm elections a week away, employers are asking us how to handle talk about politics at work. Too much valuable work time is being spent discussing politics, grandstanding for an employee's favorite political candidate and urging others to go to a political rally for a candidate.

3rd Circuit Limits Reach of Ledbetter Fair Pay Act

By Jeffrey Campolongo and Jennie Maura McLaughlin |

The 3rd U.S. Circuit Court of Appeals has taken its first step toward limiting the reach of the Lilly Ledbetter Fair Pay Act of 2009 (FPA). Earlier this month, the 3rd Circuit rendered a decision in Noel v. The Boeing Co. in which it disagreed with the plaintiff-employee's position that a "failure to promote" claim can arise under the FPA.

Court: Pregnant Employee With Work Restrictions Not Discriminated Against

By Sid Steinberg |

Pregnant employees and women returning to the workplace after giving birth often present unique challenges for employers. Although the Family and Medical Leave Act and the Pregnancy Discrimination Act set parameters for the treatment of pregnant and returning employees, there are still issues that go beyond these statutes.

Peek-A-Boo, I See You

By Madeline S. Baio |

The issue of whether employers may review or monitor private e-mails, Web histories and other electronic communications of employees on company-issued computers, cell phones, pagers and the like has been the subject of much debate.

Fair Pay Act Limitations Period Doesn't Apply to Failure to Promote Claim

By Sid Steinberg |

The Lilly Ledbetter Fair Pay Act was passed in 2009 to reverse the effect of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., which applied Title VII's 180/300-day limitations period to claims brought for discriminatory wage disparity.

Dodd-Frank Act Offers Key Protections to Whistleblowers

By David E. Schwartz |

The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on July 21, has ushered in a sweeping overhaul of the financial services industry.

11th Circuit Tosses Race Bias Case Over Use of Word 'Boy' -- Again

By Jeffrey Campolongo and Jennie Maura McLaughlin |

In its 2006 opinion in Ash v. Tyson Foods Inc., the U.S. Supreme Court found two errors of law in the 11th Circuit's opinion that was then under review. In doing so, the Supreme Court made some significant statements about the standard for finding pretext in employment discrimination claims, and whether calling an African-American man "boy" can be racially offensive.

Referral to Employee Assistance Program Does Not Support ADA Claim

By Sid Steinberg |

One of the recent trends in employment relations is the availability of "employee assistance programs." Employers generally use these programs either as coaching for difficult employees, as a resource or as a diagnostic tool for employees who are suspected of having psychiatric or psychological issues.

7th Circuit: Racial Preferences Can't Determine Work Assignments

By Jeffrey Campolongo and Jennie Maura McLaughlin |

Brenda Chaney, a certified nursing assistant, claims in a lawsuit that she was restricted from helping a patient in need because her employer enforced a racial preference policy that prevented Chaney from helping the patient because of the color of her skin.

Federal Court Dismisses Proposed Overtime Class Action

By Sid Steinberg |

A recent trend in employment law is the proliferation of litigation under the Fair Labor Standards Act. Pennsylvania appears to be one of the central battle grounds for FLSA litigation, with the recent lawsuits involving overtime payments in the health care industry, among others.

3rd Circuit: ADA May Require Accommodation of Commuting Difficulty

By Sid Steinberg |

Courts continue to address, and employers and employees continue to struggle with, the scope of the interactive process under the Americans with Disabilities Act, and the extent of an employer's responsibility to provide an accommodation to an employee with a disability.

The Future of Wage-and-Hour Class Actions Under the FLSA

By Garry Mathiason And Mark Thierman |

In 1938, General Motors Corp. started mass-producing diesel engines, E.I. du Pont de Nemours and Co. began producing nylon fibers and most Americans worked in fixed brick-and-mortar worksites.

N.J. Medical Marijuana Law May Create Challenges for Employers

By Christine V. Bonavita |

Local employers will soon have to confront issues that are likely to arise in the workplace when employees who legally use marijuana for medicinal purposes report to work.

Panel Revives Clerk's Suit Alleging Discrimination Over 'Tomboyish' Look

By Jeffrey Campolongo And Jennie Mara McLaughlin |

Brenna Lewis is an Iowa woman who describes her appearance as "slightly more masculine." Lewis prefers to wear loose-fitting clothing, including men's button-down shirts and slacks. She avoids makeup and wears her hair short. At times, Lewis has been mistaken for a male and referred to as "tomboyish." One of her supervisors allegedly characterized Lewis' look as "an Ellen DeGeneres kind of look."

N.J. Justices: E-mails to Attorney From Work Computer Privileged

By Jeffrey Campolongo And Jennie Maura McLaughlin |

Does an employee have a right to privacy when communicating with her attorney while using her employer's computer? That was the question the New Jersey Supreme Court recently grappled with in Stengart v. Loving Care Agency Inc.

10 Tips for Avoiding Liability in Conducting Evaluations

By Maxine Neuhauser |

Performance appraisals have become an annual rite: Human Resources requires them; employees expect them; and supervisors hate doing them. In an employer's perfect world, managers would be free to evaluate employees' performances without fear of second-guessing by attorneys; judges would never make "business judgments"; and juries would routinely uphold an employer's assessment, giving little credence to an employee's disagreement.

From the Playground to the Workplace: Identifying and Removing the Bully

By Christine V. Bonavita |

If you thought that bullies only exist on the playground, think again. The individual who was once the grade school bully may have found a similar role at work. The conduct in the workplace, however, may be less obvious than the bully's behavior on the playground.

Disparate Impact Discrimination Case Not Time-Barred, Justices Rule

By Jeffrey Campolongo And Jennie Maura McLaughlin |

On May 24, the Supreme Court unanimously held that a claimant may bring an employment discrimination claim against the application of an employment practice even if the institution of that practice is beyond the statute of limitations.

Pending High Court Case Could Have Consequences for E-Discovery

By Farrah Pepper And Jeffrey D. Coren |

While stories of "sexting" and cheating husbands are common fare in tabloid magazines, such salacious facts are a relative rarity in U.S. Supreme Court cases.

Employers Should Eye Telecommuting's Benefits, Pitfalls

By Christine V. Bonavita |

At one time, companies that offered their employees the opportunity to work from home were considered progressive or "cutting edge." More recently, however, telecommuting has become the norm in many workplaces as a response to an increased need of American workers to have more flexibility with their work schedules.

Class Action Settlement May Finally Be Paid to Black Farmers

By Jeffrey Campolongo |

For almost two decades, African-American farmers have contended that the U.S. government was violating their civil rights by discriminating against them on the basis of race.

Limited Discovery of Facebook Posts Allowed in Harassment Case

By Sid Steinberg |

It is a fair bet that many of those reading The Legal have neither a Facebook page nor a MySpace account -- although when our children reach a certain age, they can certainly tell us about them.

3rd Circuit: 'One-Sided' Agreement Waives Employer's Arbitration Right

By Jeffrey Campolongo |

On June 15, the 3rd U.S. Circuit Court of Appeals sent a strong message to employers utilizing arbitration agreements.

Failed Drug Test Results in 'Regarded as' Claim Under ADA

By Sid Steinberg |

Since the amendments to the Americans with Disabilities Act have consistently been held not to apply retroactively, cases under the pre-amendment ADA continue to work their way through the courts.

Complaint to Apparent Authority Found Sufficient in Harassment Suit

By Sid Steinberg |

In cases where one employee is accused of harassing a co-worker, a critical question is whether the employer "knew or reasonably should have known" about the behavior, so that it can be judged on whether "prompt and effective remedial action" was taken. It is self-evident that an employer cannot take action to stop harassment if it does not know that the behavior is occurring.

3rd Circuit Considers Impact of High Court Decision on ADEA Claims

By Sid Steinberg |

There is no question that the U.S. Supreme Court's recent decision in Gross v. FBL Financial Serv. will have a significant impact on claims brought under the Age Discrimination in Employment Act.

Navigating the Maze of Offers of Judgment in Fee-Shifting Cases

By Ian W. Siminoff |

The offer of judgment rule is designed to promote the early settlement of disputes. It does so by discouraging the rejection of reasonable settlement offers, by shifting litigation costs and attorney fees to parties who refuse reasonable offers to settle.

Attorney Fees Under EAJA Subject to Govt. Offset, Justices Rule

By Jeffrey Campolongo and Jennie Maura McLaughlin |

The Equal Access to Justice Act, or EAJA, provides that "a court shall award to a prevailing party … fees and other expenses … in any civil action … brought by or against the United States … unless the court finds that the position of the United States was substantially justified." (See 28 U.S.C. § 2412(d).)

GINA Compliance Shields Employees From Genetic Bias

By Jeffrey A. Snyder |

In addition to sex, race and a dozen other categories, employers must now comply with another equal opportunity law: GINA, short for Genetic Information Non-Discrimination Act of 2008.

Sex-Based Profanity, Even if Directed at Others, Can Create Hostile Workplace

By Jeffrey Campolongo |

For years, courts have grappled with what type of conduct constitutes a hostile work environment.

Can the Computer Fraud and Abuse Act Help Protect Your Business Data?

By Carolyn M. Plump |

The economic issues facing many companies have resulted in large numbers of employee terminations and resignations.

When Employees Go Bad

By Seth L. Laver |

Employers beware! On occasion, your employees may do bad things. Unfortunately, despite no apparent warning signs, it is the employer who may be on the hook for the wrongful acts of its employees.

Escalated Pleading Standard Applied to Employment Discrimination Claim

By Sid Steinberg |

With the 3rd U.S. Circuit Court of Appeals' decision in Fowler v. UPMC Shadyside , it is clear that the previously on-life-support motion to dismiss under Rule 12(b)(6) is now alive and well.

Making Labor Management Partnerships Work Effectively

By Daniel P. O'Meara And Adam J. Taliaferro |

In today's challenging economic times, employers are looking for ways to streamline their operations and get the most out of their employees. One way unionized employers are seeking to improve their operations is by creating labor management partnerships.

It's a Brave New World: How Businesses Should Address New Technology in the Workplace

By Carolyn M. Plump |

With the exponential growth in electronic communications and computer networking, employers have more to deal with these days than just the economy as they try to keep abreast of advances in technology.

How the National Labor Relations Act Affects Non-union Employees

By Deborah Weinstein And Robert J. Haurin |

For the last year, we have been bombarded with articles and information about the potential impact of the proposed Employee Free Choice Act, an amendment to the National Labor Relations Act.

Sizing Up Judge Sotomayor's Employment Law Decisions

By Jeffrey Campolongo |

In response to President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, the National Employment Lawyers Association, or NELA, issued a press release on May 27, expressing its support of her nomination, citing her "rich background, sharp and independent mind, [and] her record of excellence and integrity."

Ricci v. DeStefano: A Troublesome Burden for Employers

By Michael J. Davey |

On June 29, the U.S. Supreme Court, in a 5-4 ruling, decided the much-anticipated discrimination case of Ricci v. DeStefano, and held that Title VII prohibits an employer from engaging in intentional discriminatory practices for the purpose of avoiding or remedying an unintentional disparate impact, unless the employer has a "strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action" being complained of.

Impact of Ricci on Private Employers Questioned

By Sid Steinberg |

Much has been made of the U.S. Supreme Court's decision last month in Ricci v. DeStefano — the New Haven firefighters case. While the political implications of the decision are still being sorted out, employment lawyers have begun to consider the case's legal impact. Some commentators have decried the end of "disparate impact" as a viable theory of discrimination law. In reality, the practical implications of the decision appear to be far less dramatic.

Web 2.0 and the Potential Employment Law Pitfalls

By Jonathan S. Goodgold |

Most people have heard of the term Web 2.0, or the interactive, user-generated content and social networking Web sites that comprise that term, i.e., Facebook, LinkedIn, Twitter, MySpace, blogs, etc.

Gross Decision May Result in More Older Workers Being Fired

By Jeffrey Campolongo |

Last week, the U.S. Supreme Court made it a whole lot harder for victims of age discrimination to get relief under the Age Discrimination in Employment Act of 1967, or ADEA.

The Time Is Right to Prepare for Workplace Emergencies

By Carolyn M. Plump |

It seems it is always something — terrorist attacks, drug-resistant staph infections, SARS, hurricanes, salmonella, floods or swine flu. For employers, pandemics, natural catastrophes and human-made disasters raise significant safety and health issues as well as operational challenges due to employee absences, changes in patterns of commerce and interrupted supply and delivery schedules.

Courts Take the Lead in the Race to the ENDA

By David Woolf |

Many employment law watchers believed that the arrival of the Obama administration would bring with it the passage of the Employment Non-Discrimination Act.

3rd Circuit Provides Damages Guidance in Employment Cases

By Sid Steinberg |

In golf, the adage is, "You drive for show and putt for dough." In employment litigation, the attorneys largely try "liability for show and damages for dough." In this light, the 3rd U.S. Circuit Court of Appeals' recent opinion in Donlin v. Phillips Lighting North America Corp. may be one of the most important practical decisions issued by the court this year, as it includes a detailed discussion of the requirements for establishing damages in the form of back pay and front pay under Title VII.

High Court Ready to Issue New Guidance on Employer Race-Based Actions

By Ryan J. Fleming |

Last week, the U.S. Supreme Court heard oral argument in a race discrimination matter that could significantly affect employers' efforts to comply with the anti-discrimination provisions of Title VII, and to avoid liability under the Equal Protection Clause of the U.S. Constitution.

Justices Allow Mandatory Arbitration of ADEA Claims

By Jeffrey Campolongo |

In what experts predict will be another obstacle, for now, for employee rights, the U.S. Supreme Court in a 5-4 decision in 14 Penn Plaza LLC v. Pyett held that, where a collective bargaining agreement clearly and unmistakably assigns statutory discrimination claims to arbitration, the employee in the bargaining unit forgoes the right to proceed with a claim in court.

Tough Economic Times Bring Increased Fraud Risk

By Paul Zikmund |

Suppose a local equipment distributor, hit hard by the recession, is forced to close its doors. Employees are given notice of layoffs, and the process of selling off inventory begins. Things start disappearing, however, including one of the trucks in the company's fleet.

Privilege of Attorney-Client Report Memorandum Questioned

By Sid Steinberg |

Along with billable hours and post-it notes, memos to clients are staples of an attorney's life.

Ledbetter Fair Pay Act Restores Protection From Pay Discrimination

By Jeffrey Campolongo |

The extent of the allegedly discriminatory pay was not even known to Ledbetter until during the course of discovery when she learned that male co-workers with less experience and seniority than her were making much more than she was, and that she was being paid approximately 20 percent less than the lowest paid male employee.

U.S. Supreme Court Decides Retaliation Case

By Carolyn M. Plump |

On Jan. 26, the U.S. Supreme Court decided Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. The issue the court reviewed was whether the protection from retaliation provided by Title VII of the Civil Rights Act of 1964 extends to an employee who speaks out about discrimination in response to questioning during an employer's internal investigation.

Ushering in a New Era Under the ADA Amendments Act

By Jeffrey Campolongo |

As most employment lawyers know, the passage of the Americans with Disabilities Act, or ADA, in 1990 dramatically changed the way employers did business, and guaranteed opportunities to hundreds of thousands of disabled employees.

Retroactive Application of ADAAA: Is Silence Golden for Employers?

By Anthony B. Haller and Harrison Lee |

On Sept. 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008, or ADAAA, into law. It moved swiftly through Congress after receiving unanimous approval in the Senate and by voice vote by the House of Representatives.

After-Discovered Evidence Admissible in UC Appeals

By Leo Strupczewski |

An employer appealing a decision of the Pennsylvania Unemployment Compensation Board of Review can change its reason for firing an employee if it later finds evidence that the employee committed criminal acts against the employer, an en banc Commonwealth Court panel ruled.

'Unclear' Accommodation Request Enough to Trigger ADA

By Sid Steinberg |

One of the most difficult practical issues employers and their counsel face is determining when an employee has requested an accommodation under the Americans with Disabilities Act so as to trigger the interactive process. This issue was recently addressed by the U.S. District Court for the Eastern District of Pennsylvania in Boice v. SEPTA.

Same-Race Harassment Found Viable Under Section 1983

By Sid Steinberg |

It may be a common belief that members of one race or gender would not discriminate against members of the same group. A decision from the U.S. District Court for the Eastern District of Pennsylvania, however, reinforces that the law is not so clear-cut.

FMLA Claims: Hours Worked Actually Do Matter

By Todd Alan Ewan And Carolyn M. Plump |

In a 3rd U.S. Circuit Court of Appeals case, Sinacole v. iGate Capital, the court made it clear that the language of the Family and Medical Leave Act would have control over potentially conflicting regulatory language that could be interpreted to expand the coverage provided by Congress. The 3rd Circuit also made it clear that FMLA interference claims are only available to those who initially have the right to FMLA protections.

3rd Circuit: Part-Time Employee Not Eligible for FMLA Leave

By Sid Steinberg |

The 3rd U.S. Circuit Court of Appeals held that a part-time employee who did not work 1,250 hours in the year before giving birth was not eligible for leave under the Family and Medical Leave Act. The issue was one of first impression for the court but is consistent with the holding of other circuit courts across the country.

Family-Friendly Workplace Act: Will It Be Time for Compensatory Time?

By Todd Alan Ewan And Carolyn M. Plump |

On May 13, Rep. Cathy McMorris Rodgers (R-Wash.) introduced the Family-Friendly Workplace Act (H.R. 6025). After its introduction, the bill was referred to the House Committee on Education and Labor where it now awaits consideration.

Caregiver Discrimination Not Actionable Under Title VII

By Sid Steinberg |

There has been a fair amount of discussion about the rights of parents or caregivers in the workplace. A recent decision from the U.S. District Court for the District of Maine reaffirms that Title VII does not prohibit discrimination based on an employee's parental obligations but only provides protection if an employer treats caregivers differently according to sexual stereotypes.

When Settling Lawsuits, Should Employers Withhold Taxes?

By Todd Alan Ewan and Carolyn M. Plump |

At times and for a variety of reasons, employers will opt to settle employment discrimination suits. Perhaps it is the fear of what a jury may do, perhaps it is just to "put the case to bed" or perhaps it is the result of the classic cost-benefit analysis. Whatever the reason, the case will be settled and money will be paid to the individual employee plaintiff.

Abortion Covered by Pregnancy Discrimination Act

By Sid Steinberg |

A woman who has had an abortion is protected from discrimination under the Pregnancy Discrimination Act, according to a recent decision by the 3rd U.S. Circuit Court of Appeals in Doe v. C.A.R.S. Protection Plus Inc. The ruling is the first time the court had addressed this issue specifically.

The USERRA Obligations of Returning Veterans' Employers

By Todd Alan Ewan and Carolyn M. Plump |

A question many employers will be asking in the months and years to come is: "What obligations do companies have to members of the armed services returning from war or military training?"

Discrimination Claim Extends to Employee's Personal Relationship

By Todd Alan Ewan and Carolyn M. Plump |

On April 1, the 2nd U.S. Circuit Court of Appeals joined the 5th, 6th and 11th Circuits in holding that an "employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race." Depending on one's view of the analysis utilized by these courts, this type of cause of action may seem obvious. To many employers, however, it is not.

3rd Circuit Addresses Requirements of Mandatory Arbitration

By Sid Steinberg |

As the costs of employment litigation continue rising, employers continue to look to alternative dispute resolution processes to gain control over potential lawsuits. In Zimmer v. CooperNeff Advisors Inc., the 3rd U.S. Circuit Court of Appeals recently addressed the enforcement of a contractual arbitration provision in the face of challenges based upon unconscionability and waiver.

To Blog or Not to Blog: The Question Is, 'What Should Employers Do?'

By Todd Alan Ewan and Carolyn M. Plump |

Initially, blogging was limited to a relatively small group of individuals and companies in the technology community but, as the statistics below demonstrate, this rapidly growing form of communication has entered mainstream corporate America.

The Emperor Has No Gym Clothes: Why Corporate Wellness Programs are Bad Investments

By Todd Alan Ewan and Carolyn M. Plump |

Wellness programs are the latest fashion experiment among companies in the ongoing battle to fight the inflation in health care costs and increase productivity in the workplace.

Attorney Allegedly Fired for Being 'Too Much of a Lawyer'

By Sid Steinberg |

The recent case of Pina v. Henkel Corporation, 2008 Westlaw 819901 (E.D. Pa. March 26, 2008), raises the question of whether a company's chief legal officer can be terminated for being "too much of a lawyer."

Family Responsibilities Discrimination: Does It Really Exist?

By Anthony B. Haller and Kari Knight Stevens |

Employees have always had to balance family and work responsibilities. However, with the rise in dual income households, the need for this balance is greater than ever.

Military Service Issues Under the FMLA Are a New Frontier

By Todd Alan Ewan and Carolyn M. Plump |

On Jan. 28, President George W. Bush signed H.R. 4986, the National Defense Authorization Act of 2008, into law. What does the NDAA have to do with the Family and Medical Leave Act?

Workplace Discrimination: Hitting the 'Maternal Wall'

By John Pacenti |

You've heard about the glass ceiling. Welcome to the maternal wall. Some labor attorneys in Florida say a lot of women are walking into their offices saying they are victims of workplace discrimination in family care-giving matters.

How to Have a Fun Office Party Without Crossing the Line

By Janice G. Dubler Special to the Legal |

It's probably about time for your holiday office party. Whether you are an employer or an employee, this should be a fun time of year. But, as one court pointed out: At the risk of playing the Grinch . we note that office Christmas parties . seem to be fertile ground for unwanted sexual overtures that lead to Title VII complaints.

Employers Need to Be Aware
Of the Legal Risks of Telecommuting

By Daniel J. McCoy ALM |

Much has been written in recent years about the benefits and pitfalls associated with employee telecommuting arrangements.

Reading Employee's E-Mail Allowed, 3rd Circuit Rules

By Sidney Steinberg |

Although many, if not most, large companies monitor the e-mail and Internet use of their employees, there still tends to be certain squeamishness on the part of employers in actually using the information.

Circuits Split Over Contingency Fee Taxation

By SIDNEY STEINBERG |

We call ourselves litigators, but, let's face it: What we really are are settlers. Settlements are the staple of our profession.