Wednesday, September 9, 2020

US Department of Labor 0-2 versus Southern District of New York


Not likely to see a high fastball any time soon, the US Department of Labor has seen Federal Courts strike down two of its recently promulgated regulations.

On August 3rd, a federal judge in the Southern District of New York struck down regulations released under the Families First Coronavirus Response Act ("FFCRA") which had narrowed the range of persons eligible for emergency paid leave.  The original regulations defined "health care provider" in two separate ways.  Relating to eligibility for leave, the definition was fairly narrow, but relating to which employers were exempt from offering leave, the same term was very broadly interpreted in the regulations.  The court invalidated this contradiction and instructed the agency to come back with something better.  (Parenthetically, a draft regulation was promulgated one month later, on September 3, 2020 and is available here.)

More recently, on September 8th, another Southern District of New York federal judge invalidated a significant number of provisions in the Department of Labor's recently promulgated "joint employer" rule under the Fair Labor Standards Act.  The court challenge had been raised by a number of state attorneys general (including the Pennsylvania attorney general) who had raised both procedural and substantive objections to the rule.  The attorneys general claimed that the promulgation had taken place in violation of the Administrative Procedures Act and that the rule itself contravened certain protections enacted by Congress under the FLSA.  The court called the rule "arbitrary and capricious" which is just about the meanest thing you can say about a rule.

Parenthetically, this is not the first time this administration has been castigated by the courts for haphazard rulemaking.  Even the United States Supreme Court got into the action in last term's Kisor v. Wilkie, 139 S.Ct. 2400 (2019) invalidating the administration's attempt to rescind DACA.

Wednesday, March 25, 2020

Virus? What virus?

Unless you're living under a rock (and that might be one of the safest places right now), you are somehow affected by the Coronavirus Pandemic raging across the globe.  While the disease itself is far less commonplace than many other pandemics, giving rise to careless cynicism about how to best approach the problem, as well as generating heaping loads of misinformation, the contagiousness of the disease as well as its mortality rate are enough to give all but the most stubborn cause to take notice.

Apparently even the United States Congress has managed to stir from its months long lethargy and partisan bickering to actually pass some legislation and send it on to the President, who has managed to sign the legislation in between press conferences where he says things that medical professionals (and even the Vice President) have to tastefully and calmly rebut.

I have prepared a comprehensive guide to Pennsylvanians who are facing the triple whammy of the pandemic, the Families First Coronavirus Response Act (or "FFCRA" among friends), and Governor Wolf's "shut down" order applying to all "non-life-essential businesses."  Parenthetically, all businesses are life-essential to their employees, but I digress.

You can find my guide to the new law, which is effective April 1, 2020 here.

I will update it as more legislation, such as the widely touted "Two Trillion Dollar Relief" law, wends its way into enactment.

Hang in there, friends.  Practice social isolation, and wash those hands!

Friday, August 9, 2019

This is not exactly why we encourage random drug testing.

The availability of medical marijuana, employee use of heavy equipment, the opioid "epidemic," and many other problems lead employers to require random drug testing.  Such testing has to be truly random and not administered in a discriminatory fashion so as to remain compliant with statutes such as the Americans with Disability Act.  (See here for how the EEOC suggests handling such testing.)

Drug testing is not ordinarily used to determine whether an employee is pregnant.  To do so would clearly violate Title VII as gender based discrimination "because of sex."  (And not just because pregnancy is almost always because of sex, but I digress).

But when an Australian basketball pro failed a drug test  he found himself banned from the game because the test concluded that he was pregnant.

No, of course he wasn't really pregnant.  Seems that he had submitted his girlfriend's urine sample instead of his own, while she was blissfully ignorant of the fact that she was pregnant.

Surprise!  You're going to be a daddy!  Surprise!  You're fired!

Tuesday, September 5, 2017

Think Before You Click on "Post."

Joseph Gumpher, III was a junior painter for Epic Metals Corporation who was told when hired that he might occasionally have to work evenings.  Mr. Gumpher was married with four children, one of whom was a child with special needs.  When Mr. Gumpher's job started, his wife was not working. Eventually, his wife did get a job on night shift.

There was no career conflict between the couple until December of 2015 when Mr. Gumpher was assigned again to night shift.  His wife was able to switch to day shift at that time, but she was also told that subsequent requests would be denied.  When Mr. Gumpher was again asked to work nights a few months later, he told his supervisor and said he couldn't work a night shift.

Then he posted the following to his Facebook account:

"Time for a change, Work decided to have 2nd Shift, (Picked for that) don't like, so chose not to . . . it's a choice you can make when retired.  There are other jobs, time to relax for a while."  

He also stopped going to work, did not ask about returning, and then filed for unemployment compensation benefits.

The referee denied him benefits, the Unemployment Compensation Board of Review affirmed the denial, and after Mr. Gumpher appealed to court on his own behalf, the Pennsylvania Commonwealth Court also affirmed the denial of benefits.

An employee who quits his job due to "necessitous and compelling reasons" may be entitled to benefits.  Certainly there is case law providing that care for children or special needs dependents may justify quitting a job.  The Commonwealth Court found here, however, that Mr. Gumpher's efforts to solve his dilemma were totally insufficient to show that his quit was due to "necessitous and compelling" reasons.

They weren't so crazy about his publicly throwing up his hands in surrender on Facebook either.

While the court's decision was based upon more than just the ill-advised Facebook post, a word to the wise is sufficient.

Don't post anything on Facebook that you don't want to read about in a Pennsylvania Commonwealth Court decision.

The official court opinion may be found here.

Monday, July 24, 2017

Note:  I joined a panel last week at the Solo & Small Firm Section Annual Conference of the Pennsylvania Bar Association which was providing "hot tips" with late-breaking developments in several practice areas.  My area, naturally, was employment law.  Over the next few weeks, I'll highlight a few of these tips in greater detail.

Whistleblowers:  There are two types of whistleblowers under the Dodd-Frank Act.  The first type consists of those whistleblowers who only report internally within a company of irregularities, and the second type consists of those whistleblowers to make external reports to agencies such as provided for under the Sarbanes-Oxley Act.  To date, there has been a split among the circuit courts of appeals as to whether the retaliation provisions of Dodd-Frank extend to both types of whistleblowers, or only those who make external reports.

On June 26, 2017 the United States Supreme Court granted certiorari in Digital Realty Trust, Inc. v. Somers.  You can find the petition for certiorari here.

Presumably some time next term of the United States Supreme Court we will get a definitive answer to the question.

Wednesday, November 18, 2015

One Spot Where "Mumbo Jumbo" Doesn't Cut it Any More

In an old television commercial for a law firm whose name I cannot recall, two lawyers are standing at a judge's bench, chatting seriously with the robed judge.  "Mumbo jumbo mumbo jumbo," chatters on one of the lawyers, met with their opponent's "Mumbo jumbo, mumbo jumbo" followed by the court's chiming in, "Mumbo jumbo" at which point the voice over announcer says, "We take the 'mumbo jumbo' out of the law."  

An effective commercial?  Guess not.  Like I said; I can't remember the name of the firm.

What has this got to do with employment law?

Pennsylvania statutory law has long provided that any document which simply recites that the signer intended to be legally bound did not require consideration to be enforceable.  This was under the "Uniform Written Obligations Act," 33 Pa. Stat. Section 6.  Specifically that statute says that a written promise "“shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” 

For years, lawyers have routinely been putting language at the end (or the beginning) of Pennsylvania contracts stating that the signer is "intending to be legally bound" to avoid a challenge to enforcement of the contract for lack of consideration.  Heck, I've done it myself.

What is "consideration," you say?  Consideration is something of value, bargained for and exchanged between parties in exchange for a promise.  (There, Professor Siskind, I remember my first year contracts law.  Would that I had remembered more of it during finals, but that's another story).

When you pay a cab fare (or an Uber fare), you're paying consideration for the ride.  When you collect your paycheck, you're getting consideration for your labor.  When I pay Wawa my $1.49, I'm giving consideration for their agreement to provide me coffee.  And so it goes.

So what happens when the contract says that "you can't work for anyone else in the business for which you're working for me?"  Pennsylvania law has always required consideration for such agreements, known more generically as "non-compete agreements."

But once upon a time an employee's non-compete covenant simply provided that he "intended to be legally bound," and therefore, his former employer argued, they didn't need to give him consideration because the Uniform Written Obligations Act said so.

The Pennsylvania Supreme Court today handed down its decision in Socko v. Mid-Atlantic Systems of CPA, Inc. (142 MAP 2014), rejecting mere OWOA language as a substitute for consideration.  As Justice Todd put it so elegantly in closing the opinion:

[W]e hold that an employment agreement containing a restrictive covenant not to compete may be challenged for a lack of consideration even though the agreement, by its express terms, indicates that the parties “intend to be legally bound” pursuant to the UWOA.
So, employers, if you want that non-compete to stick, make sure you "pay" for it with some form of consideration.  Mumbo jumbo just won't cut it any more.

Wednesday, May 6, 2015

PA Senator Toomey is Playing Politics with Judicial Appointments

The Third Circuit Court of Appeals, crippled by an overwhelming docket, is also laboring with a vacancy on its bench.  In November of 2014 the White House nominated the Honorable Luis Restrepo to fill the position.  Judge Restrepo only recently took his place on the Eastern District of Pennsylvania Bench after receiving bipartisan support, including the express endorsement of Senator Toomey.

Back in November of 2014, Senator Toomey said, “As both a federal magistrate and district judge, Judge Restrepo has served the people of Pennsylvania honorably and with distinction. He also is dedicated to his community by giving his free time to the Make-a-Wish Foundation. Sen. Casey and I recommended Judge Restrepo to the White House for a seat on the federal district court, and I believe that he will also make a superb addition to the Third Circuit based in Philadelphia."

But now, Senator Toomey has admittedly participated in a Republican backed effort to prevent the Obama administration from seeking any kind of legacy on the Federal bench or appeals courts.  As one conservative think tank member suggested this past March in the Wall Street Journal, “There is little risk of the public outrage that might accompany a DHS shutdown or even a fight over a Cabinet nominee.”

I have appeared before Judge Restrepo both as a district court judge and as a federal magistrate judge before that.  I have always found him to be an open minded, capable, and reasonable judge.  His background as a defense lawyer brought a rare perspective to the Eastern District.  Judge Restrepo's experience offered a viewpoint that restored humanity to what is often a grueling and dehumanizing experience --- employment discrimination litigation.

Hopefully, Pennsylvania voters will remember Senator Toomey's shenanigans with this nomination when Toomey runs for re-election next year.  In the mean time, readers can sign an online petition at this link and read more about Judge Restrepo and the nomination here, here, and here.