U.S. Supreme Court Watch – Pending Labor & Employment Cases

January 26, 2015

The U.S. Supreme Court continues to tackle labor and employment issues.  Employers must be ready to react as the decisions roll out. Young v. UPS, No. 12-1226 Issue: Whether the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”), requires an employer to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  Young claims UPS violated the PDA by improperly denying her light-duty work requested due to a doctor-recommended lifting restriction during her pregnancy.  Young was not given the same light-duty accommodation as non-pregnant employees with similar limitations. The 4th Circuit found that UPS’ refusal to accommodate pregnancy was not discrimination, since Young did not prove UPS’s policies were intended to discriminate against pregnant women or resulted in different treatment.  Although the PDA requires pregnant workers to be treated the same as others who are “similar in their ability or inability to work,” UPS has argued that this does not require special treatment for pregnant workers. Mach Mining v. EEOC, No. 13-1019 Issue: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (“EEOC”) mandatory duty to conciliate discrimination claims before filing suit.  The EEOC sued Mach Mining under Title VII, asserting it engaged in systemic hiring discrimination against women, but Mach Mining sought dismissal, arguing that the EEOC did not first engage in statutorily-mandated good faith conciliation efforts before filing suit.  The 7thCircuit held that the EEOC’s conciliation efforts were not subject to review by the courts, however, other federal courts have held the EEOC’s conciliation process is subject to court review, but the type and level of scrutiny varies between the circuits.  The Supreme Court’s decision regarding statutory interpretation of Title VII’s requirements will affect whether failure to engage in the conciliation process is available as an affirmative defense to employers and the decision may define just how aggressive the EEOC will conduct itself during the conciliation process. Read More

Potential Conflict In Accommodating Pregnant Employees

July 16, 2014

On July 1, 2014, the Supreme Court agreed to hear an appeal from the Fourth Circuit Court of Appeals in Young v. United Parcel Service, Inc., a case brought by a former UPS delivery driver who claims UPS violated the Pregnancy Discrimination Act (“PDA”) contained in Title VII, when it improperly denied her request for light duty work because of a recommended lifting restriction during her pregnancy.  Young was not given the same accommodation as non-pregnant employees with similar limitations, in that UPS offered light duty only to employees with on-the-job injuries, employees with permanent impairments entitled to accommodation under the Americans with Disabilities Act (“ADA”) and employees who lost Department of Transportation certification to drive commercial vehicles.  Pregnant employees (women) were deemed ineligible for light duty work for any limitations arising solely as a result of their pregnancy. On July 14, 2014, only 13 days after the Court agreed to hear Young’s appeal, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues.  The EEOC sets forth a comprehensive list of questions and answers regarding pregnancy and provides a list of recommended best practices in terms of hiring and other employment decisions.  Most notably, the guidance addresses employers’ duties under the PDA and ADA and provides that employers are to provide reasonable accommodations, and specifically light duty, to pregnant employees with work restrictions, even if the employee does not qualify as an individual with a disability under the ADA. The guidance discusses matters that relate directly to the facts and issues to be examined and decided by the Supreme Court in Young v. UPS.  However, the guidance does not have the force of law and the Supreme Court’s decision in Young could directly contradict the EEOC guidance.  If this occurs, the EEOC will face vociferous criticism.  This potential for conflict creates some uncertainty for employers regarding their obligations.  Read More

Firm Newsletter, Winter 2014

June 26, 2014

Read More

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