Articles contained in this issue of the CLE:
Choosing a Construction Insurance Broker
What You Think Is Covered by Commercial General Liability Property Damage Insurance May Not Be “Property Damage” Under Most Policies
PA Superior Court Limits Insured’s Ability to Settle Cases Defended Under Reservations of Rights
Pursuing Misallocated Contract Funds Against the General Contractor’s President in Bankruptcy: Recent Developments Regarding Non-Dischargeability and Fraudulent Misrepresentations
No Extra-Territorial Application of PA Human Relations Act
Has The West Virginia Supreme Court of Appeals Determined That Defective Workmanship Causing Bodily Injury or Property Damage is an “Occurrence” Under a CGL Insurance Policy?
Related Information:
Construction Legal Edge Fall Newsletter 2013 Read More
Employers have an obligation to exercise due diligence in determining not only who they hire, but also who they allow on their premises to perform work. This includes not only regular employees, but also independent contractors and other contingent workers, including freelancers, consultants and long-term temps. Employers have significantly increased their use of contingent workers in recent years, since such workers enable employers to enjoy savings in terms of tax withholding, Medicare and FICA contributions and unemployment and workers’ compensation premiums when the workers are used and classified properly, and since they offer employers the opportunity to utilize uniquely skilled, top talent in their workforce, all while allowing the worker to enjoy flexibility and work-life balance. Staffing Industry Analysts, a global advisor on contingent work, recently reported that temporary help jobs were up 6.7% from last year. This number can only be expected to rise in light of advancing technology and the globalization of the marketplace.
Use of contingent workers, however, raises the question of whether or not employers are free to conduct background checks on such workers. Indeed, employers’ use of background checks has also increased in recent years. The AAIM Employers Association, a St-Louis-based provider of business services to over 1,600 employers, also recently reported that, of the companies it serves, the number conducting background checks more than doubled last year. That was an overall increase of 166% in the usage of background checks in the past 3 years. This increase has been attributed to the need to protect employer property and assets, other employees and customers, potential liability for negligent hiring and the overall ease of access to information via the Internet.
Federal Law on Background Checks
For some industries, federal law requires background checks of both employees and independent contractors. Truck drivers, including independent contractors, must undergo a background check as required by Federal Motor Carrier Safety Act regulations. Read More
In light of the U.S. Supreme Court’s decision in United States v. Windsor, which struck down certain provisions of the Defense of Marriage Act (“DOMA”), the U.S. Department of Labor (“DOL”) recently revised its regulations pertaining to the Family and Medical Leave Act (“FMLA”). Prior to the Windsor decision, in determining FMLA benefits, the DOL relied on Section 3 of DOMA, which limited marriage only to a legal union between one man and one woman and the word “spouse,” which referred only to a person of the opposite sex who is a husband or wife. Thus, same-sex couples were not entitled to FMLA leave even if they lived in a state that recognized same-sex marriage.
In Windsor, the Court held that Section 3 of DOMA was unconstitutional because the regulation of marriage traditionally rests exclusively with the states. On August 9, 2013, the DOL issued an internal memorandum to DOL staff members advising them that the DOL has revised its guidance documents to remove any reference to DOMA and to clarify that an employee in a same-sex marriage who resides in a state that allows same-sex marriage is entitled to take FMLA leave to care for the employee’s same-sex spouse with a serious health condition.
Notably, the law of the state where the employee resides applies, not the law of the state where the employee works. As of August 9, 2013, the following thirteen states (and the District of Columbia) recognize same-sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.
Conclusion
For many employers, particularly those with employees who live in one or more states, the decision regarding FMLA leave becomes significantly more complicated. For instance, an employee who resides in Delaware, which recognizes same-sex marriage, will be entitled to FMLA leave to care for a same-sex spouse (with a serious health condition) while an employee who resides in Pennsylvania, which does not recognize same-sex marriage, will not be afforded a similar opportunity. Read More
Should it stand, the Superior Court’s opinion in Babcock & Wilcox v. American Nuclear Insurers, 2013 PA Super 174, — A.3d —- (2013), will have a greater impact on Pennsylvania coverage disputes than any case decided by our appellate courts in decades. Of great interest, however, is what the court did not decide. While an admirable attempt at reconciling the bitter unfairness inherent in coverage disputes, Judge David Wecht’s opinion leaves important questions unanswered.
In Babcock & Wilcox, the court held that when an insured is presented with an offer to defend subject to an insurer’s reservation of rights related to coverage, the insured has two mutually exclusive options: (1) accept the defense; however, if it does so, the insured must obtain the insurer’s permission to settle and stay “unqualifiedly bound” to the insurer’s defense strategy, or, alternatively, (2) decline the insurer’s defense, settle the case without the insurer’s permission and, if coverage exists, thereafter institute an action to recoup the fair, reasonable and noncollusive amount of settlement.
Despite this straightforward choice, other fact patterns lurk. Consider, for instance, a scenario where an insurer prohibits an insured from settling the claim but has simultaneously instituted litigation denying that it owes the insured coverage — a scenario that did not present itself in the B&W litigation.
Although the court observed that insurers may and do “seek declaratory judgments regarding coverage during the pendency of the underlying litigation,” the court was silent as to whether the insured, who has accepted a defense, must refrain from settling where its insurer has instituted a declaratory judgment action seeking to avoid coverage while the underlying claim against the insured is pending.
Indeed, the opinion observes that Pennsylvania law provides insurers the option to “simultaneously … contest coverage” but also approvingly quotes a New York case that states that an insurer may only control the defense of a case if it does so “without any endeavor to demonstrate the policy does not afford coverage.” Read More
A lawyer typically spends four years in college and three or more years in law school. Some even spend a few years in graduate school before attending law school. While in law school, all lawyers are now required to take a course in professional responsibility and, prior to practicing law, lawyers take the Multistate Professional Responsibility Examination (MPRE) as well as the bar exam. As a result of this intense education, lawyers are seemingly well aware of many of their professional and ethical obligations. By way of example, lawyers must pay their annual dues to the Pennsylvania Disciplinary Board and ensure that they have their 12 CLE credits, with at least one in ethics, completed annually. However, a surprising number of practicing Pennsylvania lawyers are unaware of their reporting obligations under the relevant Pennsylvania Rules of Professional Conduct.
The legal profession, in order to accomplish its mission of predominantly self-regulation, imposes certain reporting obligations upon lawyers. Under the Pennsylvania Rules of Professional Conduct, lawyers are obligated to report professional misconduct by other lawyers, as well as by judges.
A Lawyer’s Duty To Report Misconduct Of Others
The Pennsylvania Rules of Professional Conduct set forth “the minimum ethical standards for the practice of law and constitute a set of rules which all lawyers must follow.” Rule 8.3, “Reporting Professional Misconduct,” requires that:
“(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
(c) This rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.” Read More
Articles In This Issue:
Colleges/Universities Required Reporting of Sexual Misconduct Increased Under the Clery Act/Title IX
A Big Diehl for Employers: Pennsylvania Supreme Court Retires Longstanding Interpretation of Unemployment-Compensation Law’s VLO Proviso
U.S. Supreme Court Delivers One- Two Knockout Combo in Mutual Pharmaceutical Co. v. Bartlett
2013: The Year the Federal Government Declared War Against Patent Trolls
Related Information:
summer_2013_newsletterv2.pdf Read More
Nine lawyers from Pietragallo Gordon Alfano Bosick & Raspanti, LLP were recently selected by their peers for inclusion in The Best Lawyers in America® 2014 (Copyright 2013 by Woodward/White, Inc., of Aiken, S.C.). The attorneys who received this distinguished honor are listed below:
William Pietragallo, II (Bet-the-Company Litigation, Commercial Litigation, Personal Injury Litigation- Defendants)
Mark Gordon (Workers’ Compensation Law- Employers)
Gaetan J. Alfano (Commercial Litigation)
Marc S. Raspanti (Health Care Law)
Alan G. Towner (Copyright Law, Litigation-Intellectual Property, Litigation- Patent, Patent Law, Trademark Law)
Joseph D. Mancano (Criminal Defense: White-Collar)
Paul K. Vey (Medical Malpractice Law- Defendants)
Clem C. Trischler (Commercial Litigation, Product Liability Litigation- Defendants)
Francis E. Pipak, Jr. (Workers’ Compensation Law- Employers)
Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 41,000 leading attorneys cast almost 3.9 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
It is important to note that the lawyers listed in Best Lawyers have no say in deciding which practice areas they are included in. They are voted into practice areas entirely as a result of the votes they receive from their peers. The subspecialties listed after their names are based on information from a variety of sources. Read More
As most employers know, complying with the Americans with Disabilities Act can be a challenge. That challenge promises to become more difficult with the release of the latest version of the manual universally recognized to identify and classify mental disorders – the Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5. Newly identified mental disorders will have major implications in the workplace as employers will have to decide whether and how to accommodate these claims.
As an example, the DSM-5 identifies a new condition called Mild Neurocognitive Disorder, characterized by a modest decline in learning or memory. While there is no absolute duty to accommodate the cognitive effects of aging, an older employee may claim that his forgetfulness or difficulty learning new responsibilities is caused by Mild Neurocognitive Disorder.
The DSM-5 also identifies Social Communication Disorder as a condition affecting an employee’s ability to communicate in social settings. Therefore, an employee whose social awkwardness disrupts their performance may claim a disability based on this condition. These are only two examples of the new mental disorders expected to amplify an employer’s exposure to disability discrimination claims.
Employers, however, must remember that an employee’s inability to perform the essential functions of the job even with a reasonable accommodation is a justifiable reason to end the employment relationship. Special care must be taken by employers to make sure that job descriptions are comprehensive and accurate. Indeed, the job description must methodically memorialize the essential functions of the job so it can withstand an employee’s claim that he or she can perform the essential functions of the job. Now – not later – is the time to review, update and modify job descriptions to prepare for an anticipated increase in disability discrimination claims. Read More
Joseph D. Mancano will moderate the panel, “The Intersection of Corporate Governance and Criminal Law,” at the DRI’s Government Enforcement and Corporate Compliance Seminar on June 27, 2013 in Washington, DC.
Related Information:
Program Information Read More
DRI Government Enforcement and Corporate Compliance Seminar
Training for Day-to-Day Success and Game Planning for Crisis Response
June 27–28, 2013
The Westin Washington D.C. City Center
Washington, D.C.
DRI is proud to bring its inaugural Government Enforcement and Corporate Compliance Seminar to the nation’s capital. Sweeping changes over the past decade have caused corporations, business executives, and in-house counsel to change the way they view their relationship with government agencies. For those who represent clients in today’s business environment, this seminar offers timely and hard-hitting presentations by experts, addressing the ever-increasing risk of civil, regulatory, and criminal liability for corporations and those who run them. Presentations and panel discussions will cover a broad spectrum of substantive areas and offer perspectives from in-house and outside counsel, government prosecutors, and officials.
Click here for more information or to register.
Related Information:
DRI Government Enforcement and Corporate Compliance Seminar Brochure Read More
