Third Circuit Rules That Failure To Promote Claim Not Compensable Under Lilly Ledbetter Fair Pay Act

October 20, 2010

On Friday, October 1, 2010, in Noel v. The Boeing Co., No. 08-3877, 2010 WL 381, 2010 U.S. App. LEXIS 20217 (3d Cir. Oct. 1, 2010), a case of first impression before the United States Court of Appeals for the Third Circuit, the appeals court held that the Lilly Ledbetter Fair Pay Act (“Fair Pay Act” or “Act”), 42 U.S.C. § 2000e-5(e)(3)(A), enacted in January 2009, does not apply to discrimination claims for failure to promote. Emmanuel Noel, a black Haitian national who had worked for Boeing for over 10 years as an airline mechanic, sued Boeing under Title VII of the Civil Rights Act (“Title VII”), as amended by the Fair Pay Act, alleging that Boeing failed to promote him in 2003, but promoted his white co-workers. More specifically, Noel alleged that white co-workers were promoted from temporary to permanent off-site assignments that resulted in a higher pay grade, but he was not. Although he complained to Boeing and his union in 2003 about not being promoted, Noel did not file a charge of discrimination alleging race and national origin discrimination with the EEOC until March 2005, well beyond the 300-day statutory time period within which to file a charge under Title VII. In his federal court complaint filed in the United States District Court for the Middle District of Pennsylvania, Noel alleged race and national origin discrimination under Title VII and the Pennsylvania Human Relations Act and also a claim of retaliation. Noel focused his allegations upon the failure to promote in 2003 and only included allegations regarding disparate pay rates in 2005. He did not make any allegations regarding unequal pay for performance of the same job. Before trial, Boeing filed a Motion for Summary Judgment as to Noel’s failure to promote claim with the district court. The court granted Boeing’s motion, finding that the claim was untimely.1 Noel appealed the lower court’s entry of summary judgment and the Third Circuit affirmed. Read More

Firm Newsletter, Summer 2010

July 26, 2010

Articles In This Issue: 1. Walking A Fine Line: An Employer’s Right To Review Its Employee’s Electronic Messages 2. Workers’ Compensation Fraud: Tilting At Fraud Mills No Longer Quixotic 3. Building On Fraud: Qui Tam Issues In The Construction Industry 4. Federal Preemption Of Failure-To-Warn Claims After Wyeth v. Levine 5. Corporate Demise And The Search For Deep Pockets: Accountant Liability And The In Pari Delicto Defense Related Information: Firm Newsletter, Summer 2010 Read More

Firm Newsletter, Spring 2010

March 26, 2010

Articles In This Issue: 1. Increased Spending on Fraud Enforcement Will Result in the Execution of More Search Warrants – Is Your Company Ready? 2. Employee’s Uphill Battle In Establishing A Class Action Under The ADA 3. A Sea Change In Government Contracts 4. The Use Of Arbitration Techniques To Resolve Modern Commercial Disputes 5. The Third Circuit Narrows The Applicability And Enforceability of EMTALA 6. Ohio Supreme Court Addresses Prevailing-Wage Laws 7. The Pennsylvania Supreme Court Clarifies Some Aspects Of Asbestos Law Related Information: Firm Newsletter, Spring 2010 Read More

The Shifting Tide In FINRA Arbitrations

February 2, 2010

James W. Kraus and Doug K. Rosenblum authored “The Shifting Tide in FINRA Arbitrations,” which was published in The Legal Intelligencer. Read More

Firm Newsletter, Fall 2009

November 26, 2009

Articles In This Issue: 1. Collateral Wars 2. Virtual Testimony Andits Impact On The Confrontation Clause 3. Social Networking Sites: A Potential Hornet’s Nest For Employers 4. The Day The Supreme Court Failed To Consider 401(K) Liability: What Should Insureds Do To Reduce Their Exposure? 5. Walk The Line: Reporting Anticipated Fraud Violations May Be A Risky Proposition For SOX Whistlleblowers 6. Updates To The Antitrust Division’s Corporate Leniency Policy Related Information: Firm Newsletter, Fall 2009 Read More

Firm Newsletter, Spring 2009

May 26, 2009

Articles In This Issue: 1. What’s Happening To United States Patents? 2. The Legal And Practical Implications Of Doing Business In China 3. Subguard Insurance – A General Contractor’s Risk Management Option For Defaults By Subcontractors 4. Everything You Wanted To Know About Pennsylvania’s New Right-To-Know Law (But Were To Afraid To Ask) 5. The Lilly Ledbetter Fair Pay Act: What It Is And What Employers Need To Do To Prepare 6. Stark Self-Referral Regulation Deadline Looms Related Information: Firm Newsletter, Spring 2009 Read More

Everything You Wanted To Know About Pennsylvania’s New Right-To-Know Law (But Were To Afraid To Ask)

March 26, 2009

Pennsylvania’s new Right to Know Law (“RTKL”) represents a dramatic policy shift in favor of liberal access to records of public agencies. Under the new RTKL, which took effect on January 1, 2009, the party requesting the information no longer bears the burden of establishing why a record should be released. Rather, the burden has shifted to the agency withholding the record to show why the record should not be released. In other words, all agency records are presumed to be public records unless disclosure is barred by: (1) state or federal law or regulation, or judicial order; (2) an applicable privilege; or, (3) one of the exceptions set forth in the RTKL. The new RTKL also establishes an “Office of Open Records” which, according to its Mission Statement, exists to “enforce the RTKL and to serve as a resource for citizens, public officials and members of the media in obtaining public records of their government.” The RTKL applies to “all agencies,” which encompasses Commonwealth agencies, local agencies, judicial agencies and/or legislative agencies. The term “record” is broadly defined to include “documents, papers, letters, maps, books, photographs, tapes, film or sound recordings” and information stored electronically. The RTKL contains thirty (30) exceptions to disclosure, which permit an agency to deny access to records in certain circumstances. These exceptions address situations involving confidential personal information or public safety issues. Examples of exceptions include records pertaining or referring to: medical records, social security and drivers’ license numbers, performance evaluations, criminal and non-criminal investigations, and the internal, predecisional deliberations of an agency. In some situations, redaction of records may be appropriate. What Are The Obligations Of Agencies Under The New RTKL? Appoint a Right to Know Officer The RTKL requires each agency to appoint an “Open Records Officer.” The Open Records Officer receives requests submitted to the agency pursuant to the RTKL (“RTK requests”), directs those requests to the appropriate persons within the agency and issues responses under the RTKL. Read More

Firm Newsletter, Winter 2009

January 26, 2009

Articles In This Issue: 1. Understanding Bankruptcy Preference Litigation: And How Best To Avoid It 2. Killing the Messenger? How FASB’s Proposal To Expand A Company’s Obligation to Disclose Litigation Loss Contingencies May Do More Harm Than Good 3. Employers’ Cost-Cutting Measures In Strained Economic Times 4. Changes to Pennsylvania’s Realty Transfer Tax Regulations Have Far-Reaching Effects 5. The Next Gold Rush – The Marcellus Shale Natural Gas Basin 6. It Is Important To Properly Classify A Worker As An Independent Contractor Or An Employee Related Information: Firm Newsletter, Winter 2009 Read More

Employers’ Cost-Cutting Measures In Strained Economic Times

January 14, 2009

The subprime mortgage crisis and related nationwide economic difficulties have caused some companies to review ways to minimize the financial impact on their bottom line. Many employers will immediately consider implementing a mass layoff or reduction in force (RIF) in an effort to adjust to the economic climate. Employers that rush to implement these options without careful planning, the advice of counsel, and considering alternatives could incur the substantial expense of defending against claims of employment discrimination filed by the laid-off employees. There are certain considerations that every employer must evaluate in planning for a layoff. When properly considered and documented, these decisions minimize potential liability to the laid-off employees, assist in maintaining the morale of those employees who are retained and asked to perform the work of those who have been let go and, additionally, help maintain the quality of service to the company’s customers or clients. Consider Other Options Rather than immediately assume that an RIF is the appropriate response to difficult economic circumstances, employers should consider other options which could reduce the risk of litigation. Allow natural job attrition to take place without hiring replacement workers. Freeze wages across the board or postpone planned wage increases. Terminate recent non-essential hires within their probationary period. If possible, reduce work hours for hourly employees. Care should be taken, however, to consider the effect on employees’ entitlement to fringe benefits. Where appropriate, allow and encourage employees to job share. Terminate employees who have documented performance problems. Reduce fringe benefits, increase insurance deductibles and institute waiting periods for new hires to be eligible for fringe benefits. A myriad of other options are available to employers to help reduce costs before moving to the more aggressive strategy of instituting an RIF. The list is limited only by management’s creativity and willingness to review the company’s true financial situation and staffing needs. Read More

U.S. House Of Representatives Passes ADA Amendments Act

August 11, 2008

On June 25, 2008, the U.S. House of Representatives overwhelmingly approved by a vote of 402 to 17 the ADA Amendments Act of 2008, a bipartisan bill that proposes to reverse a number of U.S. Supreme Court decisions rendered since 1999 that have found employees to be ineligible for protection provided by the Americans with Disabilities Act of 1990 (“ADA”), and to, thus, broaden the application of the ADA. Proponents of the legislation within the legislature and various organizations, including civil rights groups, disability advocates and trade organizations, argue that, since the ADA was enacted, courts have drastically reduced the number of workers protected from disability discrimination and that the ADA must be broadened in order to apply as it was intended to be applied. The amendments would more fully define “disability” under the ADA, including within definition of “substantially limits” and a more comprehensive list of “major life activities,” adding eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating and the operation of major bodily functions to the existing list. In addition, the amendments would clarify that the standard applied to the definition of “disability” is not intended to be a strict and demanding standard, thus rejecting the Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which currently requires an employee to prove that his or her disability limits a major life activity “significantly” or “to a large degree” in order to qualify as disabled under the ADA. As amended, the Act would also prohibit any consideration of ameliorating effects or mitigating measures, including medication, prosthetics and hearing aids, in determining whether an employee has a disability and is, thus, protected by the ADA. This change essentially overrules the Supreme Court’s decision in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), that the determination whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment. Read More