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).
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.
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."
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.
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).
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.
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).
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.
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.
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.
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.).
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.
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).
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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."
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?
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.
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.
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.
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.
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.
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.
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.