Blog Topic

WHAT IS FAMILY AND MEDICAL LEAVE
Posted by: John Gallagher
July 07, 2009

Family and Medical Leave is provided under federal law in accord with the Family and Medical Leave Act, 29 U.S.C. §2601, et seq. ("FMLA"). Pennsylvania does not have a state law providing for family and medical leave. 

Here are the requirements for FMLA leave: 1) the employer must have more than 50 employees; 2) you must have worked more than 27.5 hours per week for the 12 months immediately before the start of your FMLA leave.  You are entitled to FMLA leave: 1) if you are going to have a child; 2) if you have a serious health condition; 3) if a close family member has a serious health condition and you need to care for that family member.

You can take FMLA leave in large chunks (i.e. you are out for 6 weeks with a broken leg) or intermittently (i.e. your child is home for one week with strep throat, or you need to get yourself or your child treatment for an ongoing health condition).   

If you are qualified for FMLA leave, you are entitled to up to 12 weeks of leave per year WITH A RIGHT TO JOB REINSTATEMENT.  This is the key to FMLA leave - they cannot fire you if you are on FMLA leave (unless you were going to be fired anyway), and must hold your job open until you return. In our experience, many companies do not want you to know about FMLA leave, because many companies have a tendency to want to replace someone who is out of work for a substantial period of time.  Thus, you may have to be proactive in asserting your FMLA rights.  If you need to take FMLA leave, whether for 6 weeks or 6 hours, you need to promptly put your employer on notice of the reason for your absence, and make it clear that you or a family member has a serious health condition.  Look carefully at your company Handbook for more information on FMLA.

As noted in the FMLA regulations,  "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions." 29 C.F.R. §825.220(c). In essence, that means that you cannot be punished or disciplined for taking family and medical leave, either during your leave, when you return, or at any time in the future.

If an employee's FMLA rights are violated, the employee may be entitled to reinstatement, wages and benefits lost as a result of any employer action that was unlawful, liquidated damages (i.e. a penalty) in an amount equal to double the amount of actual wage loss suffered by the employee and attorneys' fees.  

FMLA provides a powerful tool for job protection when an employee needs it most.  However, we find it is among the most consistently violated statutes in the Country.  Therefore, employees would be wise to familiarize themselves with their rights under the FMLA.

Permalink

WHAT IF I AM OWED MONEY BY MY EMPLOYER
Posted by: John Gallagher
July 06, 2009

If you are owed money by your employer, you can recover under Pennsylvania's Wage Payment and Collection Law, 43 Pa.C.S.A. §260.1 et seq. ("WPCL"). WPCL provides that any employee prevailing on a claim for wages is entitled, in all cases, to full and complete reimbursement for all legal fees and costs incurred in pursuing such wages in Court. This is in contrast to the general rule that each party in litigation pays his/her/its own legal fees. WPCL also provides that any individual who participates in a decision to wrongfully withhold such wages can be held individually liable. This is in contrast to most laws, which do not permit individual officers/agents/managers of corporations to be held accountable for the acts of the company. Under WPCL, the employee is entitled to liquidated damages (i.e. a penalty) equal to 25% of the unpaid wages if the decision to withhold wages was not made in good faith. The statute of limitations for a WPCL claim is 3 years.

What are wages under WPCL? The term includes, among other things, ordinary salary or hourly pay, promised severance or bonus payments, earned commissions, accrued vacation or personal time and stock option benefits.

The WPCL is a very powerful tool, and employees who feel they are owed money have an excellent chance of recovering what they are owed thereunder.

Continue Reading

SEVERANCE - WHAT ARE THE RULES
Posted by: John Gallagher
June 17, 2009

Neither state nor federal law requires an employer to pay Severance to an employee. Rather, any Severance obligations owed by the employer are created solely by the employer's own policies or practices, or by virtue of a contract with an employee.

A company policy for Severance is typically spelled out in the company Handbook, or sometimes in defined benefit plans setting forth retirement benefits and the like. A company practice requiring the payment of Severance is established where an employee can prove that the employer routinely pays Severance to departing employees.

An offer letter or Employment Agreement is the most common location of a written contract for the payment of severance to a specific employee. Moreover, oral promises to make pay Severance, if made in connection with the negotiation of employment or continuing employment, are enforceable as well if proper supporting evidence is presented. Further, if an employee signs a Release in exchange for Severance, the employer has a contractual duty to pay the promised Severance.

An employer that fails to pay Severance despite an obligation to do so may be sued for breach of contract under Pennsylvania's Wage Payment and Collection Law. This powerful, pro-employee statute provides significant remedies and penalties not just against the employer, but also against any individuals employed by the employer who participated in the decision to withhold the Severance payment.

Finally, employer's often offer a departing employee Severance even where there is no obligation to do so. In such cases, employers offer such Severance in order to obtain a Release from the employee prohibiting a future lawsuit. You should seek counsel if your employer offers you Severance upon the termination of your employment.

Severance payments do not count as wages for unemployment purposes, and therefore do not preclude or in any way inhibit an employee's right to Unemployment Compensation.

Permalink

JUDGE SOTOMAYOR'S EMPLOYMENT LAW DECISIONS
Posted by: John Gallagher
June 11, 2009

Judge Sotomayor's Employment Law Decisions

Judge Sonia Sotomayor, who is currently a judge on the United States Court of Appeals for the Second Circuit, was recently nominated for the United States Supreme Court by President Obama. Judge Sotomayor was appointed to the Second Circuit by President George H.W. Bush. During her time on the Second Circuit, Judge Sotomayor has ruled on a number of employment law cases. She has sided with both employers and employees. This article highlights some of her key decisions while on the Second Circuit.

Decisions in Favor of Employees

In Raniola v. Bratton, a 2001 retaliation case, Judge Sotomayor sided with a female police officer in the New York City Police Department. The Second Circuit reversed the district court's dismissal of Raniola's hostile work environment and retaliation claims and remanded for a retrial of those claims. The court held that Raniola, who was given undesirable shifts and threatened after she complained about sex discrimination, had presented enough evidence for a jury to find that she faced a hostile work environment because of her sex. In addition, the court found that there was enough evidence for a reasonable jury to find that there were retaliatory motives behind her being suspended, placed on probation and ultimately terminated.

Cruz v. Coach Stores, was a 2000 case involving claims under Title VII of the Civil Rights Act of 1964 and allegations of hostile work environment, race discrimination, failure to promote and retaliation. The Second Circuit affirmed the district court's grant of summary judgment for Coach on the plaintiff's termination and disparate impact claims, but reversed summary judgment on her hostile work environment claim. The court noted that Cruz alleged that she had experienced racial slurs and sexual harassment and that the evidence of a human resource manager's physically threatening behavior made this a case involving not just "boorish conduct" but "actionable sexual harassment." Thus, a reasonable jury could decide that Cruz faced a hostile environment because of her sex.

In a 2000 decision in Parker v. Columbia Pictures Industries, Judge Sotomayor reversed the lower court's grant of summary judgment for the defendant employer on Parker's discriminatory discharge claims. In Parker, a former employee sued under the Americans with Disabilities Act (ADA). Among other things, the Second Circuit held that there was a factual dispute as to whether Parker could perform his job with reasonable accommodation and whether he was fired because of his disability.

In a dissenting opinion in EEOC v. J.B. Hunt Transport, Inc., Judge Sotomayor would have vacated the lower court's grant of summary judgment to the employer. In this 2003 decision, the Equal Employment Opportunity Commission (EEOC) had alleged that the defendant discriminated against truck drivers who took certain prescription medications and therefore violated the ADA.

Cases Siding With Employers

The most recent employment law case before Judge Sotomayor was Ricci v. DeStefano, a "reverse" race discrimination case, in 2008. There was no written opinion in this case, only a couple of paragraphs in which the panel basically agreed with the lower court's reasoning. In Ricci, the Second Circuit panel upheld the city of New Haven's decision to set aside the results of a promotional exam for firefighters. The exam results basically meant that no black or Hispanic firefighters would be eligible for promotions, which would be a disproportionate racial impact. However, refusing to validate the results meant that the white firefighters who scored highest would not be promoted, and they sued. By setting aside the results, the panel ruled that the city was trying to fulfill its obligations under Title VII. The United States Supreme Court heard the firefighters' appeal this past spring.

In a 2004 opinion written by Judge Sotomayor in Williams v. R.H. Donnelley Corp., the Second Circuit affirmed the lower court's grant of summary judgment for the employer. Williams involved a Title VII action brought by an African-American former employee who alleged that she was denied promotions and a lateral transfer because of her race and sex. The Second Circuit held that the employer's failure to transfer Williams to an account executive position at a different location was not adverse employment action. In addition, the court held that there was no discriminatory motive for the employer's refusal to create a position for Williams.

In the 1999 decision in Norville v. Staten Island University Hospital, Judge Sotomayor and the Second Circuit held that a nurse failed to present a prima facie race discrimination case. The nurse, a disabled black woman, claimed that the hospital did not give her the same accommodations that it gave to white employees. The Second Circuit found that the nurse did not establish that she was similarly situated to the white employees.

Conclusion

In addition to the cases discussed above, there are numerous other employment law cases in which Judge Sotomayor either participated or wrote the opinion. Judge Sotomayor has sided with both employees and employers in a variety of other employment circumstances. If confirmed, she will likely bring an evenhanded and objective view to employment law cases that reach the Supreme Court.

Permalink

EMERGENCY UNEMPLOYMENT COMPENSATION
Posted by: John Gallagher
June 09, 2009

Federal law provides for the payment of up to 20 weeks of Emergency Unemployment Compensation to qualified individuals. Those benefits are known as "Tier 1" Emergency Unemployment Compensation. The first payable week of Tier 1 Emergency Unemployment Compensation was the week ending July 12, 2008. The Emergency Unemployment Compensation law also provides for additional weeks of benefits, called "Tier 2" Emergency Unemployment Compensation, for unemployed individuals in states where the unemployment rate reaches a certain level, which at this time includes Pennsylvania. The first payable week of Tier 2 Emergency Unemployment Compensation is the week ending January 24, 2009.

Eligibility requirements for receipt of regular UC also apply to EUC. That means you must be at least partially unemployed, available for suitable work, not disqualified for voluntarily leaving work, and not discharged for willful misconduct. Also, you must report all work performed and gross wages earned during weeks you claim.

The Emergency Unemployment Compensation weekly benefit amount is equal to the regular UC weekly benefit amount on your corresponding UC claim.

You may not begin to receive Tier 1 EUC later than the week ending December 26, 2009; you may establish a Tier 2 EUC claim only if you exhaust all of your Tier 1 EUC on your corresponding Tier 1 claim no later than the week ending December 26, 2009.

The last week for which you can be paid any EUC benefits is the week ending June 5, 2010.

To apply for Emergency Unemployment Compensation in Pennsylvania, you may use the Internet or phone to file biweekly claims if you have received a notice that you are financially eligible for EUC. Visit www.dli.state.pa.us, Keyword: unemployment, or call 1-888-255-4728. If you need information on any other Pennsylvania Unemployment issues, call the UC Service Center at 1-888-313-7284 or the Claims Information Center at 717-783-3140.

Permalink

UNEMPLOYMENT COMPENSATION: WHAT YOU SHOULD KNOW
Posted by: John Gallagher
April 13, 2009

Many employees are unaware of the rules relating to Unemployment Compensation. Consequently, millions of dollars each year are forfeited by employees who either do not pursue benefits or abandon efforts to get them.

Here is a condensed version of the law of Unemployment Compensation in Pennsylvania.

An employee who is laid off due to a reduction in force is entitled to benefits. An employee who is terminated for minor work place infractions or for "poor performance" is entitled to benefits.

Employees who are the victim of a "constructive discharge" are entitled to benefits. A "constructive discharge" occurs when an employee chooses to quit work in lieu of being terminated for minor infractions or poor work performance. Individuals who quit because they have been treated in a discriminatory or harassing fashion, or because they have been retaliated against after complaining about work place violations, are also deemed to have been constructively discharged.

Only employees who quit without a legally compelling reason or who are fired for "willful misconduct" are prohibited from receiving benefits.

An application for benefits must be made promptly after the termination of employment, and may be made on-line at http://www.dli.state.pa.us/ or via telephone 888-313-7284. Initially, a Notice of Financial Determination is issued, advising applicants as to how much in benefits they will receive per week if benefits are approved. Soon after the Notice of Financial Determination is issued, a decision to grant or deny benefits (usually based upon whether willful misconduct or a voluntary quit occurred) is set forth in a "Notice of Determination." An employee or employer has 15 days to appeal from the eligibility finding set forth in the Notice of Determination. If an appeal is filed, then a Hearing before a Referee is scheduled. At the Hearing, each party is sworn in and testimony and evidence are provided to the Referee in a transcribed proceeding. Parties may be represented by counsel at such proceedings. The Referee's Decision may be appealed, but such appeals are relatively rare.

Permalink