Posts Tagged ‘Employment Attorney’

Construction Law Newsletter January 2016

What’s Happening Now . . .


  • 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.

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

EEOC Tests its Guidance on Use of Criminal Records

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher 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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Posted in Labor & Employment | Comments Off on EEOC Tests its Guidance on Use of Criminal Records

In the disability discrimination case of Buffington v. PEC Mgmt. II LLP, the U.S. District Court for the Western District of Pennsylvania had to decide whether reasonable minds could differ over whether a former Burger King manager was fired for violating a company rule or for taking too much time off to care for her teenage son who was battling a cancer relapse.   The former manager alleged that Burger King fired her for tending to her sick son, but that the company used her violation of a company policy as a pretext for the firing, which firing was in violation of the American with Disabilities Act and the Pennsylvania Human Relations Act.

How did we arrive at this mess?  Well, the former manager had been employed by Burger King for seven years with no written or oral warnings regarding her performance, but then she violated a company policy by sending an employee out to pick up product from another Burger King that the manager’s Burger King had run out of.  At that time, the former manager was the only manager on duty and the employee that she choose to pick up the product drove his own car to the nearby Burger King.  Unfortunately, the employee got into an accident while running the errand.  Yikes!  I guess you can’t always have it your way.

Anyway, the accident resulted in the former manager’s firing.  Burger King’s corporate policy forbid nonmanager employees from driving for restaurant business.  The company claimed that this violation of the corporate policy coupled with the former manager’s allegedly declining, but undocumented performance, was was grounds for termination.  The former manager disagreed and claimed that the company just used her violation of the policy as an excuse to fire her because she had been tending to her sick son.  In fact, the former manager alleged that the rule prohibiting nonmanager employees from driving for restaurant business was never enforced and that it was common practice for managers to send staff on errands to other restaurants.  The former manager also presented evidence that other mananagers outside of her protected class (i.e. employees who were not caring for sick children)had violated the policy, but were not fired.  If true, these allegations create a problem for Burger King.

It gets worse.  The former manager alleges that her supervisor met with her before her firing and that during this meeting the former manager’s supervisor commented that the restaurant needed “someone whose head is there 100 percent,” and said that now the former manager could spend more time with her son.  Ouch.  For the employer’s sake, let’s hope this isn’t true.

Based upon the above facts, following her termination, the former manager sued Burger King.  Burger King claimed that the manager was fired because her performance had been steadily declining and the violation of the company policy was the straw that broke the camel’s back.

Nonetheless, in denying Burger King’s motion for summary judgment, the Court found that the former manager sufficiently raised questions of genuine material fact regarding Burger King’s true motivation for firing the manager.  If the true reason for the termination of the manager was the manager spending time with her son, then a jury might find that Burger King relied on unfounded stereotypes or assumptions about the type of care the manager would need to give to her son in the future.

Employers’ Takeaway: 

First, enforce policies uniformly and consistently.  The former manager claimed that other managers outside of her protected class violated the vehicle policy without being fired.  Although this is merely an allegation, it serves as a reminder of the importance of uniform policy enforcement.

Second, keep good records of employee performance. Burger King claims that the manager’s performance had been declining.  If this was the case, Burger King should have kept a better record of her allegedly declining performance in the form of warnings and written evaluations.

Third, ensure that supervisors receive anti-discrimination training.  If the supervisor truly made the comments that the manager alleges she made, such comments were inappropriate.  Supervisor training might have helped to avoid such unwanted comments.

The attorneys at Harmon & Davies are here to advise employers on policy enforcement issues, performance evaluations, and supervisor training.

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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Posted in Disability Discrimination, Labor & Employment | No Comments »

By way of disclaimer, I am a graduate of the Unionville-Chadds Ford School District, which in my biased opinion is an excellent public school.  In fact, U.S. News and World Report ranks Unionville High School the  10th best public high school in Pennsylvania and the 507th best public high school in the nation, out of approximately 22,000 schools, which places it roughly in the top 2% of public schools.  Yet, despite its prestige the Unionville-Chadds Ford School District was recently sued by one of its employees for alleged discrimination under the Age Discrimination in Employment Act (“ADEA”). 

Summarily, a paraprofessional at the school in her late 50s alleged that she was disciplined for reprimanding students while a significantly younger 30 something-year-old employee who similarly reprimanded the same group of students was praised for her actions.  Additionally, the employee alleged that the school’s principal (also a 30 something-year-old) made allegedly discriminatory comments about the employee having a “senior moment.” 

The outcome of the case remains to be seen, but the school district suffered a loss earlier this month when the Eastern District of Pennsylvania denied its motion to dismiss becaues the court found that the employee plausibly alleged age discrimination.  Interestingly, it appears that it was the employee who first used the term “senior moment” when explaining to the principal why she couldn’t remember something.  When the principal, in turn, commented on the employee’s self-proclaimed senior moment, the employee complained that the principal’s statements were offensive and that he needed to be careful about commenting about a person’s mental capacity or ability.  It’s a lesson how in the employment law context the saying “what’s good for the goose, is good for the gander” does not necessarily ring true.  In other words, if an employee blames their age as the reason for their mistake, supervisors should be trained to steer clear of those traps. 

Another challenge that the school district faces is overcoming what looks like disparate treatment of employees who disciplined students under allegedly similar circumstances.  Here, the senior employee was disciplined for her actions while the 30 something-year-old employee was praised for taking allegedly similar action.  If the only distinguishing factor was the age of the employee, this case might not go well for the school district.  This is why employers need to administer discipline on a uniform basis. 

As a member of the Unionville High School class of 2000, I wish my school district the best of luck in defending this case, but then again, we are talking about a school district where an Indian remains the high school mascot. 

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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Posted in Age Discrimination, Labor & Employment | No Comments »

Earlier this year, during the NFL’s scouting combine, an NFL team employee allegedly asked three prospective players about their sexual orientation.  Allegedly, one prospective player was asked whether he had a girlfriend, was married, or liked girls.  Toss a yellow flag on the field.  Parlaying employment law into football lingo, the penalties as follows:  illegal formation (of a quesiton); neutral zone infraction, unsportmanlike conduct, taunting, a palpably unfair act, and encroachment.

Such questions are likely to violate state and local laws that prohibit discrimination, based on sexual orientation, in hiring and employment.  For example, the New York State Human Rights Law makes it unlawful for employers to discriminate against or refuse to hire any individual because of sexual orientation and also prohibits employers form making any inquiry in connection with the prospective employment about an individual’s sexual orientation.  In fact, at least 20 of the NFL’s 32 teams are located in jurisdictions that similarly prohibit sexual orientation discrimination in hiring and employment.

Interestingly, the NFL’s 2011 collective bargaining agreement with its player’s union prohibits discrimination in hiring and employment based on sexual orientation , but the labor agreement does not appear to provide any protection to prospective players during the recruitment process.  Nonetheless, even without the protection of the collective bargaining agreement, it appears that such questions would still violate state or local law in nearly a third of the cities where the NFL has teams.

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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Posted in Labor & Employment, Sexual orientation discrimination | No Comments »

Word to the Wise: Steer Clear of Overtime Violation Claims

The $20.9 million settlement between Rite Aid Corp. and assistant managers and co-managers for overtime pay violations under the Fair Labor Standards Act and various state laws, which settlement was approved by the U.S. District Court for the Middle District of Pennsylvania earlier this year, should serve as a stark reminder that employers need to be ever vigilant in their efforts to properly classify and pay employees.

The attorneys at Harmon & Davies are here to assist employers with all of their labor and employment related needs, including their overtime and break policies and the proper classification of employees.

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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Posted in FLSA, Labor & Employment | No Comments »

In late October 2012, a New Jersey appeals court issued a ruling that gives employers reason to carefully check their drug and alcohol policies.  In A.D.P. v. ExxonMobil Research & Eng’g Co. an employee identified herself as an alcoholic seeking rehabilitation and pursuant to company policy, the company entered into an after-care contract with the employee that required her to submit to random drug testing for a two year period during which time she had to abstain from alcohol use or else she could be terminated.  After failing one of 10 random alcohol tests, ExxonMobil terminated the employee and she sued the company under the New Jersey Law Against Discrimination (“NJLAD”) alleging that the after-care contract and its terms, imposed upon her solely because she identified herself as an alcoholic, along with ExxonMobil’s termination of her for violating the after-care contract, constituted disparate treatment discrimination based on disability.

The trial court dismissed the employee’s claims before her case went to trial, but on appeal the appellate Court found the dismissal of the employee’s claims to be improper on the grounds that the after-care contract and the testing requirements contained therein constituted a policy that was imposed only against employees who were identified as alcoholics.  The court found that although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like the employee could be fired for one “slip” even if their job performance was not affected.  Thus, the Court held that the policy was facially discriminatory and direct evidence of bias.

  1. Where the Court Found Fault with ExxonMobil’s Drug and Alcohol Policy

In the ExxonMobil case, the company’s written drug and alcohol policy mandatorily and uniformly required that any employee identified as an alcoholic agree to submit to random alcohol testing for two years after being so identified.  The New Jersey appellate court found that ExxonMobil’s reliance upon such blanket requirements only confirmed the facially discriminatory nature of the Policy and undermined the defenses that the employer tried to present.  Indeed, the alcohol testing imposed on the at-issue employee was never initiated as a result of performance related issues.  Rather, the testing requirement was imposed only after the employee voluntarily disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program.  This disclosure resulted in the blanket imposition of ExxonMobil’s after-care contract upon the employee, the terms of which included submitting to random drug tests for a period of two years.

The purpose of ExxonMobil’s drug and alcohol policy was to promote the company’s commitment to a safe, healthy, and productive workplace.  Under the policy, being unfit for work because of drug or alcohol use was grounds for termination.  However, the policy also provided that employees with alcohol or drug dependency problems undergoing rehabilitation would not be fired, but would be required to sign an after-care contract as a condition of returning to work.  The after-care contract required a returning employee to maintain total abstinence from drugs or alcohol, submit to random drug testing for two years, and consent to monitoring for an additional three years.  According to the after-care contract, a positive test was grounds for discipline including termination.

In the ExxonMobil case, the employee was terminated after passing nine random breathalyzer tests when her tenth breathalyzer test showed a blood alcohol level of .047 and .043 (under the state legal limit of .08 for driving under the influence) even though there was no evidence that she consumed alcohol at work or that she violated a company policy by being unfit for work because of alcohol use.  There was also zero evidence that she had been told that her job performance had become unacceptable.

Rather, the evidence showed that the imposition of the after-care contract was unrelated to the employee’s job performance.  In fact, a representative of the company went so far as to say that the employee would have been terminated for failing the breathalizer even if she had been performing at the top one-percent of her group.

Under these circumstances, the New Jersey Court found that the employee’s claims should not have been dismissed before trial because the evidence (viewed in the light most favorable to the employee) showed that the basis for ExxonMobil’s testing requirement and its termination of the employee was her voluntary disclosure that she was an alcoholic, not her subpar work performance. Thus, the court found the imposition of the testing requirements and the decision to terminate the employee for failing a breathalyzer test amounted to direct proof of discrimination.

  1. Why ExxonMobil’s Defenses Failed

Interestingly, ExxonMobil might have defeated the employee’s claims despite the direct proof of discrimination if ExxonMobil had been able to show that it would have terminated the employee even in the absence of her failed breathalyzer test.  Indeed, New Jersey law provides two statutory justifications for employers in such situations, but ExxonMobil did not attempt to avail itself of either justification, most likely because these statutory justifications are based upon performance issues, and there was absolutely no evidence that the employee had performance issues.

Instead, the company tried to justify its policy on the grounds of “reasonableness.”  However, the so-called reasonableness test, which the employer argued was based on business necessity and safety failed because: (1) the business necessity defense only applies in adverse impact discrimination cases and this case involved disparate treatment bias; and (2) although the safety defense applied, ExxonMobil could not establish the defense because the safety defense requires an employer to make an individualized assessment of the safety risk, and there was no evidence in the record that an individualized assessment of any kind was conducted in this case.

  1. The Takeaway

If you are an employer and your drug and alcohol policy could result in an employee being fired based solely upon the employee being identified as an alcoholic or drug addict, and not as a result of performance issues or any individualized safety assessment, your policy might be found to be facially biased and direct proof of disability discrimination.  If this is the case, revisions to your policy are encouraged.

The attorneys at Harmon & Davies, P.C. are here to assist employers with all employment law related needs, including assisting employers with drafting and revising drug and alcohol policies.

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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Posted in Drug and Alcohol Testing and Policies, Labor & Employment | No Comments »