Twenty-Three Pietragallo Law Firm Lawyers Named PA Super Lawyers

June 2, 2014

PITTSBURGH and PHILADELPHIA, PA – William Pietragallo, II, founding partner of the law firm of Pietragallo Gordon Alfano Bosick & Raspanti, LLP was selected as a Pittsburgh Top 50 Lawyer by Super Lawyers 2014. Mr. Pietragallo was recognized for his work in Business Litigation. Marc S. Raspanti, name partner in the firm, was selected as a Philadelphia Top 100 Lawyer and a Top 100 Lawyer in Pennsylvania by Super Lawyers 2014. Mr. Raspanti was recognized for his work in the White Collar Criminal Defense Practice Area. These designations are awarded to lawyers who received the highest point totals in the Pennsylvania Super Lawyers 2014 nomination, research, and blue ribbon review process. Twenty-three attorneys in total were named by the publication as 2014 Pennsylvania Super Lawyers. In addition to Pietragallo and Raspanti, the following firm counsel were recognized by the publication as 2014 Pennsylvania Super Lawyers, Gaetan J. Alfano, Joseph J. Bosick, Mark Gordon, Christopher A. Iacono, Kathryn M. Kenyon, James W. Kraus, Daniel J. McGravey, Michael A. Morse, Francis E. Pipak, Jr., Kevin E. Raphael, Douglas Rosenblum, Clem C. Trischler, and Paul K. Vey. The following firm attorneys were recognized as 2014 Pennsylvania Super Lawyers Rising Stars, Ethan J. Barlieb, Sarah R. Lavelle, Leslie A. Mariotti, Alicia M. Passerin, John A. Schwab, and Peter S. Wolff. Selection as a Pennsylvania Super Lawyer is an honor reserved for only 5% of the Pennsylvania Bar. The arduous selection process encompasses a strict nomination, research, and review process. Read More

Supreme Court Reshaping Patent Law

May 28, 2014

Recently, the EEOC and the FTC issued joint guidance to employers, employees, and applicants on the use of background checks. The pinnacle consideration is to ensure that specific individuals or groups are not unfairly targeted. Prior to conducting a background check, an employer must receive the employee’s or applicant’s written permission. The employer must reveal the scope of the background check and inform the party that any information received may result in an adverse employment action. The guidance, however, warns employees and applicants that refusal to provide permission may result in the denial of employment or termination. If the background check reveals information that warrants an adverse employment action, the employer must take the following actions: 1. Provide the employee or applicant “A Summary of Your Rights Under the Fair Credit Reporting Act” as provided by the background screening entity. 2. Advise the employee or applicant that they were rejected or terminated due to information revealed on the background check. 3. Provide the employee or applicant with the name, address, and phone number of the entity that conducted the report. 4. Advise the employee or applicant that they may dispute the report and receive an additional free report from the entity within sixty days. If an adverse employment action is taken, the background check and any related records must be retained for one year (two years for educational, government, and federal contractor entities). After the retention period, the employer may dispose of the background check through a secure process. Employers must be mindful that a lack of compliance with this guidance presents liability issues and violations of the Fair Credit Reporting Act. Further, employers must be mindful of state and local ordinances that may apply. Specifically, many government entities have implemented “ban the box” initiatives, which restrict an employer’s ability to inquire into the prior criminal history of employees and applicants. Read More

Safety Policy Bars Disability Discrimination Claim

May 12, 2014

A recent decision by the Third Circuit Court of Appeals supports employers in reducing their litigation exposure when they have properly crafted and enforced safety policies.  In Coleman v. Pennsylvania State Police, No. 13-3255, 2014 WL 1064379 (3d Cir. Mar. 20, 2014), the court affirmed a ruling in favor of the Pennsylvania State Police (“PSP”) against disability discrimination and other claims by a probationary State Police Cadet. Prior to completing training, Coleman suffered a traumatic brain injury while off duty. Because he suffered seizures, the last in 2010, Coleman needed to work in a limited duty capacity. Under PSP policy, a Trooper, whether probationary or not, must be seizure free for 5 years in order to work full duty. Although Coleman’s commanding officer believed she could “more than accommodate” him for at least 5 years with limited duty assignments, the PSP recommended termination because Coleman “would not be able to resume full duty until August of 2015 at the earliest, and every subsequent seizure would re-start the five-year clock….” The district court granted PSP’s motion for summary judgment, finding, among other things, that Coleman could not prove that he was otherwise qualified to perform the essential functions of a full status trooper.  On appeal, the Third Circuit affirmed, finding that, since Coleman never completed his required probationary training, he could not prove he was qualified to perform the essential functions of the job at the time of his dismissal. PSP had also shown that “the threat of a seizure is significant enough to constitute a ‘direct threat’ and that the PSP seizure policy is a justified response to that threat,” since its purpose is to protect the officers, their colleagues and the public from a significant risk of substantial harm. Where safety is essential to their work, employers, including police departments and other public service employers, may implement policies that apply to all employees, whether full status or probationary, to ensure the safety of employees and others impacted. Read More

PBI’s Employment Law Institute

April 25, 2014

Daniel J. McGravey and Sarah R. Lavelle will present “Managing Employees’ Bad Habits and Crafting Effective Wellness Programs” at PBI’s Employment Law Institute on April 25, 2014 in Philadelphia, PA. Read More

Joint Employer Status Does Not Turn Solely On Who Writes The Check

April 10, 2014

Under the Fair Labor Standards Act (“FLSA”), multiple corporations may be considered a worker’s joint employer. A joint employer relationship can exist where one employer controls, is controlled by, or is under common control with the other employer. In such situations, each joint employer may be held liable for the other’s violations of the FLSA. In Thompson v. Real Estate Mortgage Network, No. 12-3828 (3rd Cir. April 3, 2014), the United States Court of Appeals for the Third Circuit discussed the role of paychecks in the joint employer analysis. Patricia Thompson was hired as a mortgage underwriter by Security Atlantic Mortgage Company (“Security Atlantic”). Several months later, she and other employees were instructed to complete new job applications to work for Real Estate Mortgage Network (“REMN”). From that day forward, Thompson’s paychecks were issued by REMN rather than Security Atlantic. The district court granted a motion to dismiss Thompson’s claim that Security Atlantic and REMN were joint employers under the FLSA. In determining that Thompson’s employment with Security Atlantic was separate and distinct from her work for REMN, the trial court apparently focused on the names appearing on her paychecks. The Third Circuit disagreed and held that who issued the paycheck was not dispositive. Rather, Thompson had also alleged that: a) an employee of REMN provided her with training immediately after she was hired by Security Atlantic; b) REMN was described as Security Atlantic’s sister company and c) she and virtually all other Security Atlantic employees were abruptly and seamlessly integrated into REMN’s business. According to the Third Circuit, these allegations supported Thompson’s contention that the two companies shared authority over hiring and firing practices. As a result, the court remanded the case for discovery on payroll and taxation documents, disciplinary records, internal corporate communications and leadership and ownership information. Thompson demonstrates that form does not trump substance. Read More

PBI’s Health Law Institute

2014/03/13

Daniel J. McGravey and Sarah R. Lavelle will be presenting at PBI’s Health Law Institute on “Current Employment Issues and Developments Facing the Healthcare Provider Community” in Philadelphia, PA on March 13-14, 2014. Read More

Implementing Workplace Anti-Bullying & Gossip Policies

February 25, 2014

As the topics of workplace bullying, gossip, and harassment have garnered attention, employers must be precise in enacting protective policies. In Laurus Technical Institute and Joslyn Henderson, a National Labor Relations Board Judge rejected a “No Gossip Policy” that prohibited discussing a person’s personal life when they were not present, discussing a person’s professional life without their supervisor present, negative or untrue comments about a person, injuring a person’s reputation, or sharing a rumor about the person. The ALJ held that the policy would reasonably tend to chill employees in the exercise of their protected rights. Specifically, the ALJ noted that the policy was vague and overly broad, as it precluded both negative and positive comments about managers and the company. The ALJ compared the “No Gossip Policy” to prior Board decisions that invalidated employer policies banning “false and profane statements,” “disrespectful conduct,” “negative conversations,” and “disparaging comments.” Despite this decision, a carefully drafted anti-gossip or anti-bullying policy can withstand scrutiny. Applying principles previously upheld by the Board, an employer should include the following when drafting a policy: A preamble to the policy that states its purpose, i.e. eliminating bullying in the workplace. Clear definitions of any term that may be subject to multiple meanings. Examples of the activities the policy is designed to prevent. For instance, an anti-bullying policy should include language prohibiting inflammatory comments about an individual’s height, weight, voice, or intelligence level. Examples of the workplace harm bullying may cause, i.e. lower morale, absenteeism, and creating an unsafe working environment. A procedure for victims of bullying to seek assistance, including management contacts. These suggestions are merely a few that should be implemented in an anti-bullying or anti-gossip policy. A company planning to enact or renew a policy should have a thorough understanding of the problems facing its workplace in order to draft a precise policy addressing its specific needs. Read More

Supreme Court Puts To Rest The Meaning Of “Changing Clothes”

February 6, 2014

In Sandifer v. U.S. Steel Corp., the Supreme Court held that time spent donning and doffing workplace gear by a class of U.S. Steel unionized employees was not compensable under the terms of the parties’ collective bargaining agreement. Sandifer and others filed a collective action under the Fair Labor Standards Act (“FLSA”), seeking backpay for time spent donning and doffing required protective gear.  U.S. Steel argued that this activity, which would otherwise be compensable under the FLSA, was non-compensable pursuant to a collective bargaining provision that time spent changing in and out of “clothes” was non-compensable. The Court held that “clothes” denotes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.”  Further, time spent “changing clothes” includes time spent altering dress.  The Court ruled that gear, including a flame-retardant jacket, pants, and gloves constituted clothes as they are designed and used to cover the body, while glasses, earplugs, and respirators failed to qualify.  When changing clothes and non-clothes are involved, the Court directed that the inquiry should be whether, “on the whole,” the activity is fairly characterized as time spent “changing clothes.”  If so, then the entire period is governed by the collective bargaining arrangement. Sandifer is a substantial victory for unionized employers who have either expressly negotiated for or established a practice of not compensating for donning and doffing time.  For those employers not impacted by the decision, the traditional FLSA rule applies – donning and doffing is compensable if it is “integral and indispensable” to a principal work activity. Read More

Employers Beware: Even A Voluntary Job Transfer Can Be Considered An Adverse Action

January 29, 2014

Proving the adage “no good deed goes unpunished,” the Sixth Circuit recently held that a voluntary transfer can be an adverse employment action. In Deleon v. Kalamazoo County Road Commission, et al., No. 12-2377 (6th Cir. Jan. 14, 2014), a superintendent of road maintenance with twenty-eight years of experience, applied for a vacant office position.  Although not initially selected for the position, the Commission laterally transferred the Plaintiff into the job the next time that it became available. After the transfer, Plaintiff took medical leave claiming that the diesel fumes from an adjacent garage made him ill.  The Commission eventually terminated his employment after he exhausted all his available leave.  Plaintiff brought suit for national origin and age discrimination – citing a pervasive atmosphere of racial insensitivity and derogatory comments.  The district court found in favor of the Commission as Plaintiff had failed to show that the transfer was an adverse employment action. The Sixth Circuit Court of Appeals, however, reversed.  It held that the transfer of an employee can constitute an adverse employment action, even when it does not involve a demotion or reduction in pay, and regardless of whether the employee had requested the transfer, if the work environment was “objectively intolerable.”  The Court found the transfer was involuntary even though Plaintiff had previously applied for it. This decision underscores that employers are not insulated from litigation risks simply because they granted an employee’s request for a transfer.  It is also a stark reminder that some courts may be sympathetic to employees, such as this one, with substantial tenure and may be more likely to allow them their “day-in-court.” Read More

Addicted Employee – Return-To-Work Agreements

November 15, 2013

Substance and alcohol abuse is a serious workforce issue confronting employers.  Ramifications range from absenteeism and reduced productivity to increased health care costs, workplace injuries and accidents.  To combat substance abuse, employers should consider establishing a drug and alcohol-free workplace with a written policy.  Employers also should consider utilizing return-to-work agreements.  Under such agreements, an addicted employee, following the completion of a rehabilitation program, agrees to abstain from alcohol or drugs as a condition of returning to work.  A return-to-work agreement should specify the employer’s expectations of the addicted employee, as well as the consequences if the expectations are not met.  Importantly, courts increasingly are upholding such agreements. In Ostrowski v. Con-way Freight, No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013), the plaintiff, a driver sales representative, requested a leave of absence to attend an alcohol rehabilitation program.  After completing the program, the employer required the plaintiff to enter into a return-to-work agreement as a condition for returning to work.  The agreement prohibited alcohol use, regardless of whether the plaintiff was on or off the clock, and warned the plaintiff that any violation of the agreement could result in termination.  After signing the return-to-work agreement, the plaintiff relapsed and was terminated.  The plaintiff sued, alleging that his termination violated various statues, including the Americans with Disabilities Act (“ADA”). The U.S. Court of Appeals for the Third Circuit held that the employer did not discriminate against the plaintiff on the basis of his disability (alcoholism) when it fired him for violating the return-to-work agreement.  The Third Circuit noted that the Sixth and Eighth Circuit Courts have held that employers do not violate the ADA simply by entering into return-to-work agreements that subject addicted employees to different standards from other employees.  The court further noted that the return-to-work agreement did not preclude alcoholic employees from working for the employer; rather, it prohibited alcoholic employees subject to the agreement from consuming alcohol.  Read More