Refusal To Try Proposed Accommodation Can Be Fatal To An Employee’s Disability Discrimination Claim

June 5, 2013

The United States Court of Appeals for the Third Circuit has held that an employee who refuses to try a reasonable accommodation of a disability cannot maintain a discrimination suit under the Americans with Disabilities Act (“ADA”). In Yovtcheva v. City of Philadelphia Water Department, No. 12-3089 (3d Cir. May 7, 2013), the plaintiff, Silvia Yovtcheva, was an analytical chemist with the Philadelphia Water Department’s Bureau of Laboratory Services.  Ms. Yovtcheva subsequently informed the Department that she was experiencing health problems as a result of her work with a particular chemical.  The Department advised Ms. Yovtcheva that she could wear a full-face respirator for protection.  Ms. Yovtcheva was fitted for the respirator but only used it a few times because it made her claustrophobic and caused her to experience a panic attack.  The Department then offered Ms. Yovtcheva a partial-face respirator but she refused to try it.  Ms. Yovtcheva subsequently filed suit alleging, among other things, that the Department had discriminated against her due to her disability.  The United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the Department. To maintain a claim for discrimination under the ADA, a plaintiff must show that: 1) he or she is disabled within the meaning of the ADA; 2) he or she is otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation by the employer and 3) he or she has suffered an adverse employment decision as a result of the discrimination.  Under the ADA, an individual may refuse to accept an accommodation which is offered by the employer.  However, if that individual rejects a reasonable accommodation which is necessary for that individual to perform the essential functions of a job, that individual is not a qualified individual for purposes of the ADA. Read More

Recent Lessons For Erisa 401(K) Plan Fiduciaries From Tussey V. Abb, Inc.

May 26, 2013

Employee Retirement Income Security Act (“ERISA”) fiduciaries and plan sponsors, as defined by 29 U.S.C. § 1002(21)(A), have numerous investment responsibilities – particularly the responsibility to comply with and adhere to plan documents, perform their duties in the sole interest of a plan’s participants for the exclusive purpose of providing benefits to a plan’s participants and beneficiaries and the duty to defray administrative costs for the plan. On March 31, 2012, the United States District Court for the Western District of Missouri issued an expensive lesson in prudence and diligence in Tussey v. ABB, Inc. (No. 2:06-CV-04305) (W.D. Mo. March 31, 2012), which held 401(k) plan fiduciaries liable for approximately $35 million in damages for plan losses caused by imprudent decision-making and prohibited transactions in violation of ERISA.  In Tussey, ABB, Inc. sponsored two 401(k) plans, one for non-union employees and another for union employees, with assets totaling over $1 billion dollars.  The plan fiduciaries for ABB, Inc.’s pension plans were required to select and monitor the plans’ investment options.  These investment options included mutual funds offered by Fidelity Investments (“Fidelity”), such as the Fidelity Freedom Fund. Additional Defendants Fidelity Management Trust Company and Fidelity Management & Research Company respectively served as the plans’ investment advisor and record keeper.  The fees for these services were paid mainly through revenue sharing.  The court emphasized that the type of revenue sharing employed in this case is a common industry practice, but found the fiduciaries’ process faulty in this instance because the fiduciaries failed to follow procedures in required plan documents.  These failures could have been avoided simply by complying with the plan documents. Failure to Calculate and/or Monitor Record-Keeping Costs In direct contravention of the Investment Policy Statement (“IPS”), and required plan documents, the plan fiduciaries failed to calculate or monitor the dollar amount of record keeping fees paid to Fidelity via the revenue sharing arrangements.  Read More

Recognizing When A Corporate Officer Can Become A Title VII Plaintiff

May 21, 2013

The Third Circuit recently established the standard for deciding whether a corporate officer can bring a Title VII action. In Mariotti v. Mariotti Building Products, Inc., No. 11-3148 (3d Cir. April 29, 2013), Robert A. Mariotti, Sr., a founder of the company, its Vice-President and Secretary, a member of the Board of Directors and a Manager of one of the company’s divisions, filed a Title VII claim. According to Mariotti, he was harassed by other officers, directors and employees of the company due to his religious beliefs and, ultimately, terminated.  Nevertheless, he continued to receive payments as an owner of the business and served for a time on the Board of Directors.  The United States District Court for the Middle District of Pennsylvania dismissed Mariotti’s suit, holding that he could not bring a Title VII action because he was not an employee. On appeal, the Third Circuit held that the analysis turns on the extent of the person’s control over the business and the source of the person’s authority to exercise control.  Among the factors to be considered in this analysis are: Whether the organization can hire or fire the individual or set rules and regulations of the individual’s work; Whether, and to what extent, the organization supervises the individual’s work; Whether the individual reports to someone higher in the organization; Whether, and to what extent, the individual is able to influence the organization; Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and Whether the individual shares in the profits, losses and liabilities of the organization. Therefore, in determining whether a plaintiff is an employee or an employer for purposes of Title VII, the focus is on the authority that the individual wields in the organization and whether that individual exercises such authority by right or at the pleasure of others. Read More

Summary Of Amendments To Clery Act, As Set Forth In The “Violence Against Women Reauthorization Act Of 2013”

May 7, 2013

Summary Of Amendments To Clery Act, As Set Forth In The  “Violence Against Women Reauthorization Act Of 2013” Effective Date – All amendments to 20 U.S.C. §1092(f)(1) are effective one year from the enactment date (March 7, 2013).  Therefore, amendments are effective for Annual Security Reports distributed on or by October 1, 2014.  However, many of the mandated policy statements in the Annual Security Reports require that Title IX investigation and discipline procedures also be adopted, and that should be done timely. Amendments codify some aspects of the Dear Colleague letter; require modifying policy statements in Annual Security Reports to include: Possible sanctions and protective measures following a final determination regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault or stalking. Procedures that victims should follow if a sex offense, domestic violence, dating violence, sexual assault or stalking occurred, including: The importance of preserving evidence; To whom the offense should be reported; Options about reporting to law enforcement or campus police, including assisting the victim in notifying law enforcement and giving the victim the option to decline to notify such authorities; Rights of victims to obtain, and institutional responsibilities concerning, orders of protection, no contact orders, restraining orders, and other legal orders from civil or criminal courts. Procedures for institutional disciplinary action in cases of domestic violence, dating violence, sexual assault or stalking, which include clear statements about: Proceedings providing prompt, fair and impartial investigations and resolutions, conducted by officials with training on issues related to domestic violence, dating violence, sexual assault, and stalking; The accused and accuser’s equal opportunity to have a support person/adviser present at any institutional proceeding or related meeting; Notice of the disciplinary results, appeal procedures, and changes to the results prior to the results being finalized. Information about confidentiality for victims, and how it will be protected and maintained. Read More

OSHA Launches Initiative To Protect Temporary Workers

May 2, 2013

On April 29, 2013, citing an increase of fatal workplace incidents involving temporary workers, the Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor announced a new initiative to better protect those workers.  Temporary workers are defined as those workers who are paid by temporary agencies and supplied to a host employer.  OSHA found that post-accident inspections often exposed situations where temporary workers were insufficiently trained in language and vocabulary that they could understand and lacked the necessary knowledge of workplace hazards and protective equipment. OSHA’s director of enforcement programs has directed regional administrators to track this “vulnerable population” during inspections and created a new OIS code for temporary workers.  If an inspector determines that any temporary employees are exposed to a violative condition, the inspector must enter the newly created code “TEMPWORKERS” in their information system. In addition, when encountering temporary workers during the scope of an inspection, inspectors will document the name of the temporary workers’ staffing agency, the agency’s location, and the supervising structure under which the temporary workers are reporting (i.e., the extent to which the temporary workers are being supervised on a day-to-day basis either by the host employer or the staffing agency). Workplace injuries to temporary workers often involve accidents that occur on the first day the temporary worker is on the jobsite, as occurred in Bacardi Bottling Corp., 584358 (2/8/2013), cited by OSHA in its press release.  The use of temporary workers may also lead to situations where the host employer loses immunity for civil liability for workplace injuries.  See also Black v. Labor Ready, 995 A.2d 875 (Pa.Super. 2010), in which the Superior Court of Pennsylvania held that a host employer was estopped from claiming immunity as an employer of a temporary worker who lost a hand in a press machine, after denying employer status in the workers compensation pleading. Read More

Managing Pregnant Employees Requires Delicate Balance

April 16, 2013

In Young v. United Parcel Service, Inc., — F.3d –, 2013 WL 93132 (4th Cir. Jan. 9, 2013), the United States Court of Appeals for the Fourth Circuit held that employers do not need to provide preferential treatment to pregnant employees simply because the employee is pregnant.  More specifically, the Fourth Circuit held that: (1) the employer did not violate the Americans with Disabilities Act (“ADA”) because it did not “regard” her as disabled; (2) the employer’s policy of not providing light duty work to pregnant employees while providing temporary, light duty work to employees injured-on-the job did not violate the Pregnancy Discrimination Act (“PDA”); and (3) the employer’s denial of an accommodation to pregnant employees did not give rise to an inference of unlawful discrimination under the PDA. Background In Young, the plaintiff worked part-time as a delivery truck driver for United Parcel Service, Inc. (“UPS”). In 2006, the plaintiff took a leave of absence from UPS to undergo fertility treatments.  After the plaintiff became pregnant, and while she was still on a leave of absence, she submitted two notes from two different medical providers stating that she should not lift more than 20 pounds. The plaintiff’s supervisor informed her that she would not be permitted to continue working as long as she had a 20 pound lifting restriction because it was an essential function of the job for drivers to lift packages weighing up to 70 pounds. Moreover, pursuant to a collective bargaining agreement (“CBA”), UPS only provided temporary, alternate work to employees unable to perform their normal work assignments due to on-the-job injuries. Pregnant employees, however, were ineligible for the temporary, light duty work to accommodate any limitations arising solely from the pregnancy. The plaintiff remained on leave, and returned to work after she gave birth. The plaintiff brought an action against UPS for discrimination on the basis of her pregnancy and for discrimination under the ADA because UPS “regarded” her as disabled. Read More

Aiding And Abetting Claim Likely Fails If Underlying Discrimination Claim Is Dismissed

March 21, 2013

In addition to providing for employer liability for discrimination claims, the Pennsylvania Human Relations Act (“PHRA”) and similar local laws, including Allegheny County’s Human Relations Ordinance, Philadelphia’s Fair Practices Ordinance and Pittsburgh’s Fair Practices Ordinance, contain provisions giving employees or applicants an additional claim of aiding and abetting liability against individual defendants. Notably, however, if the underlying discrimination claim against the employer is dismissed, any aiding and abetting claim should also be dismissed. Section 955(a) of the PHRA makes it unlawful for an employer with four or more employees to engage in employment discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, non-job related handicap or disability, the use of a guide or support animal because of blindness, deafness or physical handicap or having a GED rather than a high school diploma. 43 P.S. § 955(a). Allegheny County’s ordinance similarly applies to employers with four or more employees and also contains additional classes protected from discrimination, including gender identity or expression, familial status, marital status and sexual orientation. Allegheny Cnty. Code § 215-32. Philadelphia’s ordinance applies to all employers and contains additional classes of domestic/sexual violence, ethnicity, gender identity, genetic information, familial status, marital status and sexual orientation. Phila. Code § 9-1103. Pittsburgh’s law applies to employers with five or more employees and similarly contains additional classes of familial status, place of birth and sexual orientation. Pittsburgh City Code § 659.02. The PHRA also provides for aiding and abetting liability at Section 955(e), which states that it is an unlawful discriminatory practice: (e) For any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any action declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued there under, or to attempt, directly or indirectly, to commit any act declared by this section to be an unlawful discriminatory practice. Read More

Better The Devil You Know? Dangers Of Corporate Hacking

March 6, 2013

Corporate America has been rocked recently by revelations of hacking into company-wide computer systems from overseas, including concerns that the unlawful conduct is state-sponsored.  The more likely and immediate threat to all corporate systems, however, is the damage that can be done by individuals within or recently departed from a company.  A prime example of this problem is the hacking of the computer system of Dallas-based Exel Transportation Services by its former president Michael Musacchio and other former employees.  The case culminated with the conviction of Musacchio on Friday by a federal jury in Dallas for conspiring to hack into his former employer’s computer network.  United States v. Musacchio, No. 3:10-cr-00308-P (N.D. Tex.) The Mussachio case represents a cautionary tale, both to companies concerned with cyber security and entrepreneurs looking for an edge against competition.  The genesis for the wrongful conduct was the desire for a market advantage by individuals who had left Exel to form a competing venture, Total Transportation Systems, LP, in 2004.  Now, with the settlement of a civil suit between the companies and three federal convictions in its wake, the Exel case stands as a stark reminder of how sensitive corporate information can be compromised by the combination of outrageous conduct by former company officials and a company computer system left susceptible to attacks by former employees. In 2004, Musacchio left his position as President of Exel to form a competing company, Total Transportation Services, LP, where he was the original president and CEO.  Two other former Exel employees, Joseph Roy Brown and John Michael Kelly, also went to work at Musacchio’s new company.   According to the government, evidence submitted at trial demonstrated that between 2004 and 2006, Musacchio, Brown and Kelly engaged in a scheme to hack into Exel’s computer system for the purpose of conducting corporate espionage.  Read More

Court’s Holding Of No Extra-Territorial Application Of PHRA Begs More Questions

February 21, 2013

The United States District Court for the Eastern District of Pennsylvania recently held in Blackman v. Lincoln National that the Pennsylvania Human Relations Act (“PHRA”) does not cover employees who neither reside nor work in Pennsylvania. While that conclusion may seem obvious and logical, the decision may have a broader impact on employers. Plaintiff, Kathy Blackman, was an Illinois resident working in the Illinois office of Lincoln National Corporation and Lincoln Financial Group, companies headquartered in Pennsylvania. Plaintiff alleged sex and age discrimination following a demotion, lodging a complaint with the Equal Employment Opportunity Commission. When she was subsequently fired and had exhausted her administrative remedies, she filed a discrimination and retaliation lawsuit under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (“ADEA”), and the PHRA against her former employers in the Eastern District of Pennsylvania. Lincoln National moved to dismiss the PHRA claim on the basis that Blackman did not live or work in Pennsylvania. In deciding whether the PHRA applied, the court looked at the language of the PHRA.  Because the pertinent section of the PHRA was silent as to whether it applied to non-residents employed outside the Commonwealth, the Court examined other sections for the legislature’s intent. In concluding the PHRA did not apply to individuals who neither lived nor worked in Pennsylvania, the Court reviewed the Act’s intent which was to protect the “inhabitants” and “the people of the commonwealth.” The Court opined that to overcome the presumption that a state statute applies only within the state, there must be explicit statutory language providing for application beyond the state’s borders. Plaintiff argued that the PHRA should apply even though she lived and worked in Illinois, because her employer, Lincoln National was headquartered in Pennsylvania. The court determined it did not matter where the employer was headquartered, but it was the plaintiff’s place of employment which dictates application of the state anti-discrimination laws.  Read More

Firm Newsletter, Winter 2013

February 1, 2013

Articles In This Issue: 1. The Fundamentals of Intellectual Property 2. Circuit Split Narrowed in Favor of Employees With Disabilities Regarding Whether ADA Reassignment Requires Preferential Treatment 3. The Superior Court’s Decision in Patton v. Worthington Sounds Death Knell for Statutory Employer Defense and Elevates Construction Costs Throughout the Commonwealth 4. Pennsylvania Product Liability Law Remains Unsettled   Related Information: Firm Newsletter, Winter 2013 Read More