legal updates 2015 by andrew n.howe, esq. spruce law group llc september 8, 2015 copyright 2015, all...

LEGAL UPDATES 2015BY

ANDREW N.HOWE, ESQ.Spruce Law Group LLC

September 8, 2015

Copyright 2015, all rights reserved by Spruce Law Group, LLC


U.S.S.CT.

Integrity Staffing Solutions v. Busk (12/9/14)

“Waiting is not working.”

Supreme Court addressed, in a unanimous decision, whether the waiting time spent going though security check after the shift ends is compensable time.

Importance to You: The decision provides some guidance on whether waiting time before of after a shift is compensable.

U.S.S.CT.

Con’t

Facts: Integrity staffing supplied temporary workers to fill Amazon.com orders. At the end of their shift, the temporary workers were required to empty their pockets and pass through metal detectors on the way out. Time spent doing this activity averaged 25 minutes. District court dismissed claims but circuit court reversed in favor of the workers.


U.S. SUPREME COURT

Integrity Staffing Con’t

Holding: Supreme Court ruled that this waiting time does not constitute compensable time because it was not “integral and indispensable” to the principal activities of the workers’ jobs. Court further defined “integral” as a duty that an employee cannot dispense of and still perform the principal activities of the job.


U.S.S.CT.

Impact to you: Although the holding is narrowly applied to this fact set, is good indicator of the Supreme Court’s view of this issue.


3rd Circuit Ct of Appeals

Greer v. Mondelez Global, Inc. (10/22/2014) “Not as hostile as you think.”

Third Circuit affirmed lower court granting summary judgment in favor of defendant on, among other things, plaintiff’s hostile work environment claim (race and sex) and retaliation claim.

Importance to you: Highlights the continuing incredibly high threshold “bad behavior” must meet before it becomes actionable.


3rd Circuit Ct of Appeals Greer Con’t

Facts: Plaintiff, an African American woman, was hired as supervisor for plant in September 2008. Alleges was subject to racial and sexual discrimination actions from November 2008 until March 2009 (when she complained and it stopped), gave two week notice in October 2009 then brought charge thereafter.



Greer Con’t

Holding: Court dismissed the claims holding that a hostile work environment is only actionable if creates an “abusive work environment” as “objectively” viewed, not just hostile in plaintiff’s view. Court further held simple teasing, offhand comments, mere offensive utterances do not rise to level of actionable hostile work environment. Retaliation claim also failed.

Impact to you: This case affirms the continuing high factual threshold a plaintiff must cross to establish a hostile work environment claim in this circuit.


3rd Circuit Ct of Appeals Hansler v. Lehigh Valley Hosp. Network

(7/22/15)

“Patience is a virtue, especially for FMLA claims.”

Third Circuit reversed the lower court summary judgment dismissal of an FMLA claim, holding that the employer’s denial of employee’s FMLA leave on basis of “condition does not meet serious health condition” defective and therefore her termination for excessive absenteeism potentially unlawful.

Importance to you: This decision affirms the necessity to be patient with the FMLA process and if the form is incomplete or not clear, must follow up with employee or provider.


3rd Circuit Ct of Appeals Hansler Con’t:

Facts: Employee hired as technical partner. Two years later, missed several days of work with nausea, shortness of breath and vomiting. Requested FMLA forms and submitted FMLA request with medical certification. Employer denied the leave stating was not serious health condition and terminated for excessive absenteeism. She then got a diagnosis of diabetes and high blood pressure so she sued.


3rd Circuit Ct of Appeals Hansler Con’t:

Holding: Court reversed the lower court decision holding that where the employer believes the FMLA notice to be insufficient or defective, it is not enough to simply deny leave but instead notify the employee to allow resubmission or supplementation.

Impact to you: Affirms the need to be patient when processing FMLA claims especially when termination may result from denial of the FMLA request.



Deans v. Kennedy House (10/10/2014)

“Discipline? No, that is NOT discipline.”

Third Circuit Court upheld dismissal of race, gender and retaliation claims holding plaintiff had not suffered any adverse action relating to such claims.

Impact to You: Decision affirms right to impose certain discipline without fear of later claim.

Copyright 2015, all rights reserved by Spruce Law Group LLC


Facts: Deans was African-American housekeeper who worked for 3 years when he started having friction with his supervisor over absences and tardiness. He was repeatedly given written and oral warnings and then given 15 minute dock in pay. Claimed he was targeted because not in traditional male role of breadwinner. Then he was absent for period of time due to back problem and when he could not produce a doctor’s note in a timely fashion he was fired.



Holding: The series of disciplinary actions did not rise to level of adverse action necessary to support a discrimination claim. The disciplines were to temporary and negligible.

Impact to You: Affirms right to take certain disciplinary actions without fear of charges or claims. Also reminds employees that not all discipline amounts to “adverse action.”


U.S.D.C Eastern Dist. Of Pa

Walton v. Spherion Staffing, LLC (1/13/15)

“A threat is a threat…when?”

Importance to you: Highlights quirky quagmire of workplace violence obligations intersecting with disability laws.



Walton Cont:

Facts: Walton, a temp placed in employer’s warehouse, suddenly developed suicidal and homicidal thoughts while at work. So he wrote a note stating he needed immediate help and he was about to kill someone so said call police, family and have security if approach him as he was unstable. He was taken to hospital, diagnosed with depression and sought leave from his employer. Three weeks later terminated and health insurance cancelled.


U.S.D.C Eastern Dist. Of Pa Walton Con’t

Holding: Court held that plaintiff’s claim should go to trial. Court held the three week delay in termination after the note raised an issue of whether he was terminated for having depression and utilizing his employer’s insurance for treatment rather than any threat. Court interestingly reasoned that terminating plaintiff’s health insurance put society at greater risk of harm.

Impact to you: highlights the tricky nature of these types of cases and importance of timely action.


U.S.D.C Eastern Dist. Of Pa Maloney v. City of Bethlehem

(11/26/2014)

“Baloney Maloney…well, maybe not.”

Court denied summary judgment in a gender discrimination and retaliation case.

Importance to you: highlights issue of timing with respect to taking adverse action, especially in the context of a potential negotiated severance.



Maloney Con’t;

Facts: plaintiff was Health director for City. She had a number of arrests including Dui and domestic assault issues. Following domestic assault arrest, placed on paid leave. Her supervisor recommended termination for her public behavior and lying to police. City officials instead asked Maloney to resign in exchange for severance and release agreement. Six months of negotiations occurred but as it appeared a deal could not be made she filed an EEOC charge. She was fired three days later.



Maloney Con’t:

Holding: Court denied summary judgment. Of relevance, the Court ruled three day time period between filing of the charge and her termination was sufficient to require the case to go to the jury.



Maloney Con’t:

Impact to you: Highlights importance of strategy regarding termination or negotiation of severance and documentation regarding same.


U.S.D.C Eastern Dist. Of Pa Dart v. County of Lebanon (9/23/14)

“Try, try again….”

Court granted summary judgment on a disability discrimination (failure to accommodate) and retaliation claim.

Importance to you: Provides affirmation of what constitutes reasonable accommodation in the workplace and when an employer can say no to an accommodation request.



Dart Cont: Facts: Plaintiff was an assistant beautician at

the county nursing home. She alleged that over seven years she was subjected to insulting and humiliating behavior from her supervisor and ultimately she went out on leave for anxiety and depression allegedly caused by the treatment. When her FMLA expired, she stated she would only return to work if she did not have to work for her supervisor, which the county denied because their was only one head beautician. She was terminated. Copyright 2015, all rights reserved

by Spruce Law Group, LLC

U.S.D.C Eastern Dist. Of Pa Dart Con’t:

Holding: Court dismissed these claims. Of relevance, court ruled that requesting as a sole accommodation plaintiff to work for another supervisor is not reasonable because it amounts to an employee determining who she works for which is not reasonable. Further, court held no discussion on this accommodation request were required because she made it clear that was the sole condition under which she would return.

Impact to you: Highlights employer’s right to demand the accommodation be reasonable and employee not having a right to dictate the accommodation.


U.S.D.C Middle Dist. Of Pa

McCorkle. V. Schenker Logistics, Inc. (10/8/14)

“Sanity prevails!”

Court dismissed claim under the Pa Criminal History Record Information Act on basis of falsifying application information.


U.S.D.C Middle Dist. Of Pa McCorkle Cont:

Importance to you: Reinforces right of employer to terminate for falsifying application. Also reminds us of CRHIA requirements.

Facts: Plaintiff applied with company for a position. In his application he failed to disclose certain conviction information. Company extended conditional offer but revoked it after criminal background came back with conviction information not disclosed in application.


U.S.D.C Middle Dist. Of Pa

McCorkle Cont:

Holding: Court dismissed the claim. Court held that falsification of the application was appropriate grounds for revocation of offer despite employer failing to notify applicant in writing of that fact as required by CRHIA.

Impact to you: Reminds us of importance of falsification disclaimer in application materials and also of the employer obligations under CRHIA.


National Labor Relations Board

Browning-Ferris Industries of California, Inc. 362 NLRB No. 186 (8/27/15)

“Here comes the NLRB again.”

NLRB addressed whether an employer and its temporary employees supplied by a temporary employment company were “joint employers” under the NLRA thus considered one employer for purposes of union organizing and unfair labor practices.



BFI Con’t: Importance to you: Highlights increased issues caused

by current NLRB, in this context involving temporary employers and the recipient company.

Facts: BFI had a long term relationship with its temp supplier. In the contract, stated supplier sole employer; only supply temps meeting BFI standards; no ex BFI employees allowed; supplier administer drug screens etc.; BFI could reject anyone and end assignment for no reason at any time; BFI set wages; BFI set schedules; BFI determines breaks; both administer safety training in accordance with BFI safety standards; and supplier had on-site HR and supervisor at BFI.



BFI Con’t:

Holding: Board held that BFI and supplier “joint employers” under NLRA. Held that reserved authority to hire/fire, even if not exercised, is enough. Pointed to other control issues.

Impact to you: Impacts temporary employer relationship with client (vice versa) but also highlights aggressive nature of this Board.



Countrywide Financial Corporation, 362 NLRB No. 165 (8/14/15)

“Mandatory arbitration agreements under attack!”

NLRB addressed whether requiring employees to sign agreements mandating arbitration for any dispute regarding employee’s employment constituted an unfair labor practice.



Countrywide Con’t: Importance to you: NLRB invalidates a popular recent

agreement.

Facts: Employees required to sign mandatory arbitration agreements that reasonably could be construed as prohibiting the filing of unfair labor practice charges. Agreement stated nothing in the agreement should be construed and requiring a claim to be arbitrated if prohibited by law.



Countrywide Con’t:

Holding: Board held that requiring the agreement to be signed was unlawful and thus an unfair labor practice. Court held employees could reasonably believe they could not file a ULP and the “savings” clause was not effective to change that belief.

Impact to you: Highlights the broad protection the NLRB is affording employees in these instances. Copyright 2015, all rights reserved

by Spruce Law Group, LLC

END!

If you would like an e-mail copy of this Power Point please see SHRM website or contact SHRM. If any follow up questions please e-mail me [email protected].

Disclaimer: This presentation is not intended to be construed as legal advice and cannot be relied upon as such.

Thank you!!



Andrew Howe concentrates his practice in labor and employment matters as well as commercial litigation. Prior to joining Spruce Law, Mr. Howe was a founding partner of a regional firm focused in employment and litigation matters and, before then, practiced law in a global Am Law 100 firm based in Philadelphia.

Mr. Howe counsels a diverse corporate client base ranging from 20 to over 8,000 employees, both in union and non-union settings on a local, national, and international level. Given his background and experience, Mr. Howe’s clients leverage his expertise on all labor and employment issues, ranging from discrimination in the workplace to addressing issues arising under the Employee Retirement Income Security Act of 1974. Also, Mr. Howe regularly provides on-site training to his clients on a wide variety of issues, such as discrimination in the workplace, avoidance of labor disputes and liability, among other topics relevant to his clients’ businesses.

Mr. Howe presently serves as the Chair of the Employment Law Section of the Berks County Bar Association and is also a Member of the Board of Directors of the Greater Reading Food Bank. In addition, Mr. Howe is a twenty year member of the Society for Human Resource Management and previously served as the first attorney President for the SHRM Chapter 179.

Andrew N. Howe, Esq.

1622 Spruce StreetPhiladelphia, PA

19103Direct: (267) 546-

0615Mobile: (610) 763-

4700E-Fax: (267) 546-

[email protected]

Professional Associations & Boards• Chair, Employment Law Section, Berks County Bar Association• Past President, Society for Human Resource Management Chapter 179• National Member, Society for Human Resource Management Association• Member, Chapter 179 of the Society for Human Resource Management

Bar Admissions• Supreme Court of Pennsylvania• United States Supreme Court• United States Court of Appeals for the Third Circuit• United States District Court for the Eastern District of Pennsylvania• United States District Court for the Middle District of Pennsylvania

Practice Areas• Labor Law (Management)• Employment Law• Commercial Litigation• Employer Counseling and Training

Previous Experience• Duane Morris, Associate – Philadelphia, PA• Hartman, Howe, Allerton & Shurr, Founding Shareholder – Wyomissing, PA

Education• J.D., Dickinson School of Law• B.A., University of Richmond, Aereopagus English Honor Society and Member of Academic Debate Team• Episcopal Academy

legal updates 2015 by andrew n.howe, esq. spruce law group llc september 8, 2015 copyright 2015, all...

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