Author Archive | Sunshine Thomas

When is a Hostile Work Environment in fact a Hostile Work Environment?

By Sunshine Thomas on July 8, 2013 in Employment Statutes

The Third Circuit Court of Appeals recently issued an opinion in Fichter v. AMG Resources Group, which sheds some light on this common cause of action. In this case, the employee cited about 14 examples of what she believed created a hostile work environment. Many of these complaints are ones that we hear employees complain about on a daily basis. These complaints included being required to tell her manager if she was arriving late or leaving early, being asked to finish projects quickly, not receiving a raise in several years, being asked for information but then having her manager leave before she had a chance to respond, having her workload increased, and not having her opinions respected. The employer prevailed when the Court found that these allegations are not violations of Title VII as they are within the scope of common typical managerial functions. The Court also confirmed that Title VII does not guarantee the perfect workplace.

Unpaid Internships and the FLSA

By Sunshine Thomas on July 3, 2013 in FLSA

The FLSA creates a narrow exception to the applicability of its minimum wage and overtime provisions for unpaid internships when certain enumerated criteria are satisfied. If these strict criteria are not satisfied, then the position is not exempt from the overtime and minimum age requirements of the FLSA. Therefore, those individuals would be considered normal employees and must be compensated in accordance with the FLSA. These criteria are as follows:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

These criteria have been provided specific meanings and uses by the FLSA and the applicable case law; therefore, we recommend that employers secure legal advice as to whether these criteria are satisfied in their specific circumstances. However, one rule to keep in mind is that if the employer is using the intern as a substitute for a regular worker, then it is quite likely that the intern would be subject to the minimum wage and overtime provisions of the FLSA.

What should an employer do if a state employment law conflicts with Title VII?

By Sunshine Thomas on June 18, 2013 in State Employment Law, Title VII

A recent decision issued in Ohio, Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio Apr. 23, 2013), highlights the unfortunate circumstance when a state employment law contradicts a federal employment law. In that case, the employer (a school district) was obligated by Ohio law to perform a criminal background check on all current employees and was not permitted to employ anyone who committed any of the crimes specified by the law regardless of how long ago the crime occurred or the relation, if any, to the employee’s position. On this basis, the employer performed the background check and terminated the employment of 10 employees (9 of which were African American). Two of those employees sued alleging racial disparate impact in violation of Title VII. The employer sought to have the case dismissed on the basis that it had been following state law. Although the case remains pending, this decision demonstrates that following state law is not a defense to a claim that the employer violated Title VII as Title VII pre-empts the state law.

EEOC Receives Its Largest Verdict In Its 48 Year History

By Sunshine Thomas on May 16, 2013 in ADA, EEOC

The EEOC recently secured its largest verdict in its 48 year history in the amount of $240,000,000.00 from a federal jury in Iowa when 32 mentally disabled turkey processing plant workers were awarded this verdict against their employer, which was found to have violated the Americans With Disabilities Act (“ADA”) by creating a hostile work environment, imposing discriminatory conditions of employment, and acting with malicious and reckless indifference to the civil rights of these employees. In this case, the employer oversaw the work, lodging and care of these 32 employees. However, these individuals were alleged to have been housed in a dilapidated and bug infested bunk house which failed to meet applicable code requirements. They were paid $0.41 an hour which equated to $65.00 per month even though the employer was allegedly being paid more than $500,000.00 per year for their service. It was further alleged that the employer subjected the employees to verbal and physical abuse. By way of example, they were allegedly subjected to strict punishment such as being forced to walk in circles carrying heavy weights and were locked in their bedrooms at night. While working, they were allegedly denied bathroom breaks and were forced to work long hours. Many of them allegedly required immediate medical care, which had been denied to them by their employer.

Although this case presents a unique situation as few employers oversee the care, work and lodging of their employees in this era, this case is notable as it confirms that the potential still exists for significant verdicts to be issued by juries when presented with an appropriate set of facts.

Case Alert: Bowman v. Sunoco Permits an Employer to Use Disclaimers to Protect its Clients from Employee Personal Injury Suits

By Sunshine Thomas on May 14, 2013 in Pennsylvania Supreme Court, Workers' Compensation Act

The Pennsylvania Supreme Court recently issued the above decision, which provides employers with a mechanism for protecting the interests of their clients. In this case, the plaintiff was employed as a private security guard. She was performing services on the site of one of her employer’s clients, Sunoco, when she fell and sustained injuries. She sought and secured workers’ compensation benefits from her employer, Allied Barton Security Services. She also filed suit against Sunoco alleging negligence and failure to maintain safe conditions. At the time of the commencement of her employment, she signed a disclaimer barring her from filing such suits against her employer’s clients. Plaintiff alleged that this disclaimer was void as against public policy and that her suit against Sunoco should be permitted to proceed. She specifically argued that the disclaimer violated Section 204(a) of the Workers’ Compensation Act and that the disclaimer was invalid because it waived a cause of action that had not yet accrued.

The Supreme Court rejected both of these arguments. As it pertains to Section 204(a) of the Workers’ Compensation Act, the Court found that this provision was not violated as the disclaimer did not seek to divest plaintiff of her rights under the Act to seek compensation from her employer, but only to file suit against a third party. The Court rejected her other argument that the disclaimer should be considered invalid as it waived a cause of action that had not yet accrued on the basis that this principle only applies when the potentially waived cause of action is different from those causes of action contemplated by the parties at the time of the disclaimer. Here, this cause of action is the kind of action that was contemplated.

Accordingly, this case indicates that it is permissible for an employer to enter into an agreement with its employees waiving the right for the employees to sue its clients for any injuries subject to the Workers’ Compensation Act. However, we do caution employers that this issue will likely be subject to further revision as this practice becomes more common and litigated. For example, this disclaimer was entered into at time of hire. When looking at general contract law as well as the law governing employee non-competition agreements, I suggest that such a disclaimer could be subject to challenge if it was entered into at a time other than hire unless specific consideration was given. In addition, this case contemplates injuries subject to the Workers’ Compensation Act. If the injury was not covered by the Workers’ Compensation Act, then it is possible that the disclaimer may not effectively bar suits against the employer’s client.

IOWA COURT UPHOLDS FIRING OF IRRESISTIBLE EMPLOYEE

By Sunshine Thomas on April 30, 2013 in Discrimination, Employment Statutes

A recent Iowa Supreme Court decision made headlines when the Court upheld an employer’s decision to terminate the employment of an attractive female assistant the employer viewed as a threat to his marriage. That employee filed a gender discrimination claim in response to the discharge. The Court determined that the firing was not unlawful discrimination under the Iowa Civil Rights Act because the discharge was not specifically based on her gender.

Although this case was situated in Iowa and is not controlling precedent upon employers and employees within the state of Pennsylvania, it does give rise to the question of when an employer in Pennsylvania can discharge an employee. It is well established that Pennsylvania is an state. This means that an employer in Pennsylvania can terminate the employment of an employee for any reason or no reason. There are, however, a few limitations upon this leeway given to employers by the at-will principle. Specifically, there are a number of statutes which address protected characteristics upon which an employee cannot be discharged or otherwise discriminated. Those protected characteristics include, but are not limited to, race, Color, religion, sex, national origin, age, disability, and veteran’s status. Additionally, an employee may not be terminated for having made a good faith complaint of harassment or discrimination based upon any of these protected characteristics. lt is also prohibited to retaliate against an employee for tiling a workers’ compensation or FMLA claim. To the extent an employer is considered qualified under the Whistleblower Law, it is also unlawful to retaliate against an employee for having made a good faith report of wrong doing or waste under the law. Although this is not an exhaustive list of those characteristics and/ or actions upon which an employee cannot be terminated and/or otherwise subjected to an adverse employment action, they are some of the more common examples.

So in practical effect, while it is permissible for an employer to terminate the employment of an employee who has demonstrated continued poor work performance, it is not permissible for an employer to terminate the employment of an employee based on his or her membership in a protected class. As with all employment law matters, there are many nuances and potential implications relative to every employment decision. To that end, we encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employees.

Summer is quickly approaching- are you ready for employees under the age of 18?

By Sunshine Thomas on April 23, 2013 in Child Labor Act

All Pennsylvania employers must be aware of and follow very specific regulations and guidelines governing the type of work, conditions of work, and hours of work that an employee under the age of 18 can perform. We caution all Pennsylvania employers to be aware of the Child Labor Act, which recently went into effect. The Act provides a specific list of establishments where the employment of minors is prohibited as well as specific guidelines governing the hours of work a minor may perform. In addition, the Act also sets forth specific recordkeeping and notice posting requirements, which the employer must follow. In order to work, a minor must have a valid work permit issued by the school district in which the minor resides. The type of work permit required varies based on the age of the minor.

Some helpful hints:

Generally, employment for those under the age of 14 is prohibited although there are some exceptions.
Anyone under the age of 18 who works five continuous hours or more is required to be given a 30 minute uninterrupted rest period.
Anyone under the age of 18 is prohibited from working more than six consecutive days (except newspaper delivery)
Employees Aged 14 & 15:
- During the school term, an employee aged 14 or 15 can work a maximum of 3 hours / school day or 8 hours / non-school day with a maximum of 18 hours / school week (Monday through Friday). An additional 8 hours on Saturday and Sunday is permissible.
- The work cannot interfere with school attendance.
- During school vacations, an employee aged 14 or 15 can work a maximum of 8 hours / day with a maximum of 40 hours / week.
- They can work between the hours of 7 a.m. and 7 p.m. during the school term; however, during school vacations, they may work until 9 p.m.
Employees Aged 16 & 17:
- During the school term, an employee aged 16 or 17 can work a maximum 8 of hours / day with a maximum of 28 hours / school week (Monday through Friday). An additional 8 hours on Saturday and Sunday is permissible.
- During school vacations, an employee aged 16 or 17 can work a maximum of 10 hours / day with a maximum of 48 hours / week although the employee may refuse any request to work more than 44 hours / week.
- They can work between the hours of 6 a.m. and midnight during the school term; however, during school vacations, they may work until 1 a.m.

Please note this is solely a short synopsis of a portion of the Act. Please consult one of our employment attorneys for a comprehensive discussion of the Act’s requirements.

Potential New Issue for Employers – Remote Access and the Fair Labor Standards Act

By Sunshine Thomas on April 18, 2013 in FLSA

As we are all aware, companies and employers are trending towards supplying their employees with access to e-mail and/or other work functions nearly 24 hours a day 7 days a week via mobile devices and remote access. With this trend, employees are increasingly continuing to work outside their normal work hours such as on weekends and into the evening hours. Initially, this trend was predominately restricted to professionals and other classifications of employees who would ordinarily be exempt from the FLSA and the payment of overtime. As this trend becomes more prevalent, however, it is now extending to hourly employees and other employees who are not exempt under the FLSA and are subject to the payment of overtime. In light of this trend, we caution all employers to be wary of the use of these devices by their non-exempt employees as their use of these devices could count as hours worked and could, under certain circumstances, require the payment of overtime. For example, if you have an hourly secretary who is checking e-mail during the evening or on weekends and is therefore working over 40 hours per week, that employee could be entitled to the payment of overtime for all hours worked over 40 hours. To that end, we recommend that employers consider the implementation of policies governing the use of these devices by their employees, especially those employees who are non-exempt under the FLSA.

We encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employees. If you would like assistance navigating these statutes, please contact us.

What Is Retaliation And What Does It Mean As An Employer?

By Sunshine Thomas on April 4, 2013 in Employment Statutes

Claims of retaliation are quite prevalent and are worrisome to employers. Claims of Retaliation can arise after an employee engages in an action which is considered to be a protected activity. Protected activities can take on many different forms but one of the most common forms is the filing of a complaint regarding harassment or discrimination with the employer, the EEOC, or the PHRC. However, many employment-related statutes contain an anti-retaliation provision and recognize an employee’s right to file a claim for retaliation. Recent cases have extended these protections to include participation in an employer’s internal efforts to investigate or remediate an alleged discriminatory incident. These anti-retaliation provisions are intended to make an employee feel comfortable making a complaint or assisting someone else do so without fear of a negative impact on his or her job. It should be noted that an employee can prevail on a retaliation claim even if the underlying discrimination or harassment claim proves groundless.

To establish a claim of retaliation, a plaintiff must show that he or she engaged in a protected activity, that the employer was aware of this activity, and the employer took an adverse employment action in response to the protected activity. The burden then shifts to the employer to demonstrate a legitimate non-discriminatory reason for why it took the employment action. Subsequently, the employee must then demonstrate that the employer’s proffered reason is merely a pretext for an illegal retaliatory action. One reason retaliation claims are so prevalent and complicated to defend and avoid is that retaliation claims can hinge on an abstract adverse employment action. Some recent decisions have demonstrated that a retaliation claim can be asserted if an employee feels a material adverse effect to the terms and conditions of his or her employment as a result of engaging in a protected activity. A materially adverse employment action, however, must be more than a mere inconvenience that does not cause any actual harm to the employee. For example, it is possible that a failure to invite the employee to a dinner could be retaliatory if that dinner included a training session that could affect the advancement of that person’s career. These claims can be much more difficult to avoid and defend than the underlying discrimination claim.

That said, however, employees who engage in protected activities are not granted free rein to violate employer policies. To the extent the employee violates company policy or fails to adequately perform his or her job, an appropriate response by the employer in accordance with company policy is permissible. However, it is important for an employer to properly and completely document all instances, actions, and decisions involved in the rendering of the discipline or employment action in an effort to refute any retaliation claim which may be asserted.

As with all employment law matters, there are many nuances and potential implications relative to every employment decision. To that end, we encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employee.

Recent Guidance Issued By the U.S. Department of Labor Relative to the Adult Child Provision of the FMLA

By Sunshine Thomas on April 3, 2013 in FMLA

The United States Department of Labor (DOL) recently issued guidance regarding the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it relates to an adult child. The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is (a) under 18 years of age or (b) 18 years of age or older and incapable of self-care because of a mental or physical disability. Under the FMLA, an eligible employee may take leave to care for a son or daughter who is 18 years old or older if the following four conditions are met: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) he or she is incapable of self-care due to that disability; (3) he or she has a serious health condition; and (4) he or she is in need of care due to a serious health condition. However, there has been a lingering question relative to the timing of the onset of the child’s disability. Some believed that the disability had to occur prior to the child turning 18 in order for the adult child’s parent to be eligible for FMLA leave. The DOL has now stated that its interpretation of the FMLA is that it is irrelevant whether the onset of the disability occurred before or after the child turned 18.

The DOL previously adopted the ADA’s definition of disability to define “mental or physical disability” for purposes of determining whether caring for a child over 18 is subject to the protections of the FMLA. However, the definition of “disability” broadened with the enactment of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA broadened, among other things, the definition of “major life activities” and expanded the definition of “disability” to include episodic conditions that periodically flare up and substantially limit a major life activity. The DOL has now offered guidance on the impact of the ADAAA on the FMLA and has stated that it believes that the broadened definition of disability as set forth in the ADAAA should apply to this provision of the FLMA. It is expected that this will increase the number of FMLA eligible leaves.

The DOL has also issued guidance concerning FMLA leave used to care for the subsequent serious health condition of an adult child who became disabled during military service. Under the FMLA’s military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 weeks of FMLA leave in a single 12-month period. There was a question, however, whether the parent could take additional FMLA-protected leave in subsequent years to care for a serious health condition of that adult child if the parent had exhausted the military caregiver leave. The DOL has stated that it believes it is appropriate for a servicemember’s parent to take FMLA leave to care for that adult son or daughter in subsequent years because of the adult child’s serious health condition provided all other requirements are met, which includes, among other things, that the parent and its employer are FMLA eligible, the adult child is incapable of self-care due to his/her disability and his/her parents are needed to care for him/her due to his/her serious health condition even if the military caregiver leave had been exhausted in a prior year.

An example of this would be: A parent exhausted the military caregiver leave when his/her adult child returned from service to care for extensive injuries sustained by the adult child during service, which then left the adult child with ongoing injuries that constituted a disability as defined by the ADA and left the adult child unable to care for him/herself. That adult child then sustains a serious health condition in another FMLA year which requires the parent to again provide care. Under this situation, provided all other requirements are met (i.e. the parent has worked the requisite amount of time, the employer is covered by the FMLA, etc), the parent may take the standard twelve workweeks of protected leave.

The position taken by the DOL generously construes the FMLA in favor of employees; however, we should monitor to see whether the Courts adopt the DOL’s interpretation.

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