Posts Tagged ‘Employment and Labor Law Attorney’

EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

by HDlawblog Posted: Thursday, 3/3/2016

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

Construction Law Newsletter January 2016

by HDlawblog Posted: Friday, 1/29/2016

What’s Happening Now . . .

       5%

  • Unemployment rate for December 2015.
  • Construction gained 45,000 jobs in December; a third straight month of job gains.
  • 263,000 construction jobs were gained in 2015.

Source: U.S. BLS, News Release: The Employment Situation – December 2015 (Jan. 8, 2016).

 

So You Want to Litigate – What Happens Next?

Going into a lawsuit, it is important to understand the process. Some clients think that once a lawsuit is filed, it is only a matter of time—perhaps days, or weeks—before the claim is resolved.

That happens sometimes. But not always.

Lawsuits generally have three phases: Pleadings; Discovery; and Trial. Each phase is distinct, but the timing of Pleadings and Discovery sometimes overlap.

In the Pleadings phase, the parties file written statements setting forth their narratives of the case. Each side files with the court a signed statement setting forth the facts upon which they claim to be entitled to a remedy (or defense).

In the Discovery phase of the lawsuit, parties develop the evidence to support their case. Parties can send written questions (interrogatories) and may request documents to be produced. Parties can also depose witnesses. While objections can be lodged to the discovery requests, parties should know that, generally, any documents, including emails, letters of correspondence, internal communications, and notes are likely to be discoverable and will be produced in the lawsuit. Communications between client and attorney, however, are confidential and privileged.

Once the parties have gathered sufficient evidence, the case is listed for trial. Leading up to trial, parties will identify the exhibits they intend to use and the witnesses they intend to call. The attorneys will write briefs setting forth summaries of their client’s positions. At trial, the parties use the written discovery responses, deposition transcripts, and documents to argue their case to the judge or jury. Cases usually take at least one year to resolve, and they often take several years

During each phase of the suit, there are natural points for settlement discussions. It is common to raise settlement negotiation after the close of Pleadings, or after an important deposition. Sometimes, an upcoming, expensive aspect of the lawsuit—such as a motion, or trial itself—will cause parties to negotiate a settlement in order to avoid the expense of the upcoming task.

As a general rule of thumb, settlements are most efficient early. The purpose of settlement is to avoid the costs of litigation and to limit the exposure to a potentially bad verdict. If the lawsuit has already been litigated through Pleadings and Discovery, many of the litigation costs have already been incurred; thus, settling the matter at that point cannot avoid the costs. When a lawsuit is pending, it is important to seek legal advice immediately to determine the best legal arguments and proper management of the case.

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.

Employment          Construction           Business

2306 Columbia Ave. | Lancaster, PA 17603

T: 717.291.2236 | www.h-dlaw.com

 

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Posted in Construction, Litigation | Comments Off on Construction Law Newsletter January 2016

The Color Purple: An Award Winning Film; A Scary NLRB Decision

by HDlawblog Posted: Wednesday, 1/7/2015

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.

 

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Posted in Labor & Employment, NLRB, NLRB, Social Media | Comments Off on The Color Purple: An Award Winning Film; A Scary NLRB Decision

Spankasauras and the Land of the Hostile Work Environment

by HDlawblog Posted: Friday, 8/9/2013

 

The Eastern District Court of Pennsylvania recently held that a white female detective with the Philadelphia Police Department plausibly alleged that the city subjected her to a hostile work environment based upon the cumulative effect of alleged harassing conduct that included, among other things, a lieutenant calling her a “spankasauras” and “gabbygail.” 

Alone, such isolated or sporadic incidents would not support a claim of hostile work environment harassment, but the court found that such events viewed in conjunction could be deemed to create a humiliating and hostile work environment.  In the matter of Salvato v. Smith, the plaintiff alleged that in addition to being called names, she was treated differently than her male and black female coworkers in that the plaintiff was constantly questioned about her whereabouts, denied training opportunities, was not allowed to take personal calls from her child’s school, had her log-in times scrutinized, was denied requests for a steady shift, had her sick-leave scrutinized, received a warning letter in her personnel file, and was denied a transfer.   Moreover, much of the activity occurred after the plaintiff filed a grievance with the Fraternal Order of Police and a complaint with the EEO unit for discrimination. 

Although it remains to be seen how this case will play out, this case serves as a reminder to employers to be mindful of how supervisors treat employees after a grievance is filed.

This article is authored by attorney Kimberly J. Overbaugh and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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The High Cost of Forgetting to Provide Employees with COBRA Notice

by HDlawblog Posted: Friday, 7/26/2013

Forgetting to provide employees with notice of their right to elect COBRA health care continuation coverage under an Employee Retirement Income Security Act governed group health insurance plan, within the 44 day statutory notice period for doing so, may be a costly mistake for employers.  In Fama v. Design Assistance Corp, the Third Circuit held that a former employee, who resigned from a company, was entitled to $2,930 in statutory damages after her former employer was 293 days late in providing the former employee with notice of her right to continued health care coverage.   In so holding, the court said that COBRA penalties of $10 a day are appropriate where an employer does not exhibit bad faith and an employee incurred medical expenses during the lapse in coverage.

  This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Merely Undergoing IVF Treatment Does Not Insulate Employee from Termination

by HDlawblog Posted: Friday, 7/5/2013

A New York waitress who was fired shortly after telling her managers that she started in-vitro fertilization did not establish sex discrimination claims because she failed to show that the stated reason for her discharge, which the company claimed was her poor performance, was pretextual.

In the case of Govori v. Goat Fifty LLC, the Second Circuit rejected the waitress’s contention that the close timing between her revelation that she was undergoing IVF treatment and her discharge was enough to rebut the restaurant’s legitimate nondiscriminatory reason for firing her.  The restaurant claimed that the waitress had a history of poor performance that culminated when she allegedly yelled at a customer on her last day of work.  Additionally, the waitress’s managers were already well aware that the waitress wished to become pregnant and was contemplating IVF before she announced that she had started IVF treatment.  In fact, her managers allegedly supported the waitress in her desire to become pregnant.  Thus, the court concluded that the waitress’s announcement that she was starting treatment was at most “her commencement of but one more step toward her previously announced but still uncertain goal of conceiving a child.”

Although the waitress alleged that her manager told her that she had chosen a different “path” during the telephone call in which the manager terminated the waitress, and that the different “path” referred to the “mommy track” or “mommy path,” the court found that the use of the word “path” could not plausibly be construed as a reference to the “mommy track”.  Rather the court reasoned that the comment about choosing another path was the sort of comment a friend might plausibly use as an attempt to soften the blow of firing an employee with whom she was close.

Because the court found that the waitress failed to refute that her poor performance was the cause of her termination, the court declined to address whether the Pregnancy Discrimination Act (“PDA”) covers employees who allegedly are fired for undergoing IVF treatment.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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School District in Hot Water for Following State Law that Had Disparate Impact

by HDlawblog Posted: Monday, 4/29/2013

The recent case of Waldon v. Cincinnati Public Schools, before the Southern District of Ohio, exemplifies the frustration many employers might be feeling over the use of criminal background checks.  For those not in the know, criminal background checks spawn a host of issues.  For example, if you don’t use the checks, will you be sued for negligent hiring?; or if you use the criminal background checks will you be sued for discrimination? It’s enough to make your head spin, and as evidenced below, bright-line rules regarding the use of criminal background checks, simply don’t work.

In the case of Waldon, the Ohio legislature amended a state law to require criminal background checks of all current public school employees, including those not responsible for the care, custody, or control of children and to terminate any employee convicted of any of a certain crimes, no matter how far in the past the crime may have occurred and no matter how little the crime related to the present readiness of the particular employee to provide services safely and with excellence.

In seemingly earnest compliance with the state law, the Cincinnati Public Schools terminated ten employees with criminal convictions based on the state law mandate.  Nine of the ten employees were African American.  Two of the fired employees, Waldon and Britton, sued the school district alleging that the state law had a racially discriminatory impact on African Americans in violation of  Title VII of the 1964 Civil Rights Act and Ohio state law.

Undoubtedly, the broad language of the state law that mandated the termination of employees (even those who had no contact with children) for certain convictions no matter how far in the past and regardless of how the crime related to the employee’s ability to perform his/or her job, would produce absurd results.  And it did.  For example, Walton, one of the terminated employees, had been found guilty of felonious assault in 1977 and incarcerated for two years before the school district’s civil service office wrote in support of his parole and offered him employment in 1980.  For nearly 30 years Waldon worked without incident for the school district before he was terminated from his position as a systems monitor based on his decades old conviction.  Moreover, during his tenure with the school district, he never had contact with children.  Britton, the other plaintiff, was convicted in 1983 for acting as a go-between in the purchase and sale of $5 worth of marijuana.  Despite this conviction, she had worked for the school district as an instructional assistant for 18 years without incident before she was terminated based on her decades old and relatively minor conviction.

In Waldon, the court found that the plaintiffs presented sufficient facts to support their disparate impact claims under Title VII and Ohio state law because the state law disproportionately affected African Americans.  Moreover, the school district failed to demonstrate a business necessity for following the state law requiring the discharge of employees of convicted of certain crimes.

Although the school district argued that the court should dismiss the complaint because the school district merely followed state law in firing Waldon and Britton, in a harsh statement for employers, the court stated that compliance with state law is no defense because a violation is a violation.  A state law cannot trump the purpose of Title VII.

In the Waldon case, it mattered little that the school district was just following the state law and did not intend to discriminate because intent is irrelevant in disparate impact cases where the courts look at whether facially neutral employment practices have a disproportionately negative effect on a certain protected group that cannot be justified by “business necessity.”  In this case, the school district could not show that the plaintiffs posed an obvious risk to school children based on their past convictions and therefore could not establish a “business necessity.”

The court unsympathetically concluded that once the school district saw that nine of the ten employees being fired were African American, it was not compelled to follow the state law because Title VII trumps state mandates, and that the school district should have raised questions with the state board of education regarding the disparity.

This is a harsh case for employers because the court makes it clear that employers cannot blindly rely on state law mandates regarding the use of criminal background checks.  Rather, employers must evaluate whether seemingly neutral state law mandates have a discriminatory impact.  The employment and labor law attorneys at Harmon & Davies, P.C. are here to navigate employers through these sometimes treacherous waters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Pennsylvania Jury Finds in Favor of Plaintiff in Pregnancy Discrimination Case

by HDlawblog Posted: Monday, 4/22/2013

In the matter of Blake v. Purolite Corp. et al., the plaintiff filed a pregnancy discrimination case in the United State District Court for the Eastern District of Pennsylvania wherein she alleged that she was terminated because of her pregnancy in violation of her rights under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, and the Pennsylvania Human Relations Act.   After a four day trial, the jury found that the plaintiff’s pregnancy was a determinative factor in the defendant’s decision to terminate her employment and returned a verdict in her favor.  Specifically, the jury awarded the plaintiff compensatory damages in the amount of $25,000.00 and punitive damages in the amount of $125,000.  Additionally, the Court later issued a memorandum stating that the plaintiff was also entitled to $11,098.12 in back pay.

Pregnancy discrimination cases appear to be on the rise.  The attorneys at Harmon & Davies are here to assist employers with pregnancy discrimination charges.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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