Supreme Court to Clarify Pregnant Workers’ Rights

The U.S. Supreme Court recently heard oral argument in Young v. United Parcel Service, Inc.,[1] a case that is expected to clarify employers’ legal obligations when pregnant women with work limitations seek workplace accommodations.

Petitioner Peggy Young was a driver for UPS, a positon that required her to lift up to 70 pounds. During her pregnancy, her doctor advised her not to lift more than 20 pounds, and she asked UPS to placer her on “light duty” – something UPS provided for employees who (1) had been injured on the job, (2) were disabled, or (3) had lost their commercial driver’s licenses. UPS denied Young’s request, reasoning that Young’s pregnancy was neither a disability nor an on-the-job injury, and put her on unpaid leave for the next nine months.

Young sued UPS under the Pregnancy Discrimination Act (“PDA”), alleging UPS’ policy discriminated against pregnant women. Since the PDA became law in 1978, it has been illegal to treat women workers unequally just because they become pregnant. But it has remained unclear whether employers who grant light-duty work accommodations to temporarily disabled workers must also provide light-duty accommodations to women whose doctors place similar restrictions on the work they can do during pregnancy.

Young argued that UPS’ policy is illegal under PDA, because it treats pregnant workers less favorably than non-pregnant workers who are similar in their ability or inability to work. UPS (which has since changed its policy), argued that Young is seeking is “special treatment for pregnant employees” — something the PDA does not require.  UPS pointed out that even the Justice Department has in the past defended a US Postal Service policy that treats pregnant women in substantially the same way. (The Justice Department said that policy is now being reconsidered.)

Both the district court and the U.S. Court of Appeals for the Fourth Circuit ruled in favor of UPS. Women’s rights advocates and the U.S. Department of Justice have now lined up on Young’s side. The Supreme Court’s ruling should clarify the rights available to pregnant women, as well as what is required of employers, under the PDA.

[1] No. 12-1226 (argued Dec. 3, 2014).

Pennsylvania Supreme Court to Decide Fresh Consideration Rule for Employee Non-Competes

Yesterday, the Pennsylvania Supreme Court granted allocator in Socko v. Mid-Atlantic Systems of CPA, Inc., 99 A.3d 928 (Pa. Super. Ct. 2014). Socko is the Pennsylvania Superior Court decision from May 2014 that re-affirmed the rule that fresh consideration is required for a non-compete signed after the inception of employment. In Socko, the employer tried to avoid the fresh consideration requirement by relying on Pennsylvania’s Uniform Written Obligations Act (“UWOA”). The UWOA provides that a written release or promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement . . . that the signer intends to be legally bound.”

The Superior Court called the issue one of “first impression in this Commonwealth,” but federal district courts interpreting Pennsylvania law had split on the issue of whether the UWOA applies in the non-compete context. On the merits, the Superior Court sided with the employee and held that the UWOA does not apply to restrictive covenants in the employment context, reasoning that non-compete covenants “are disfavored in Pennsylvania because they are in restraint of trade and may work significant hardships on employees agreeing to them.”

The Supreme Court’s decision in Socko will be of interest to business owners who use non-compete and to employees who are subject to non-competes. The subjects take on particular importance because in our experience the number of non-compete cases in litigation tends to rise with a growing economy.

Noted Climate Scientist Confirms That Climate Change is Real

The headline reads like a spoof from the Onion. Anyone who reads the newspaper or follows the many reports from the leading scientific organizations, like the National Academy of Sciences and the Royal Society, already knows that global warming is real, and a real cause for concern. But don’t take it from me. Take it from a scientist, Richard Alley, Ph.D., of Penn State University, who explained the scientific consensus on climate change at a Philadelphia Bar Association Chancellor’s Forum to a capacity crowd at bar headquarters on November 6. Richard is a glaciologist who is widely credited with showing that the earth has experienced abrupt climate change in the past—and likely will again, based on his study of ice cores from Greenland and West Antarctica.

Richard is also a member of the National Academy of Sciences and the Royal Society, and has worked with both organizations on published reports explaining the consensus on climate change. He served as one of the authors on the United Nations Intergovernmental Panel on Climate Change, whose members shared the 2007 Nobel Peace Prize. He has many other accomplishments in the area of climate science.

Richard began his presentation with the “skinny version of the program,” which is that “we enjoy the good that we get from energy use, which is now primarily from fossil fuels. We must change or suffer really really serious consequences and the sooner we start changing the better off we will be economically and in other ways. So you can now enjoy your dinner.”

The problem is the huge volume of CO2 we are now emitting into the atmosphere, many of us without realizing it, because CO2 is invisible. To illustrate the point, Richard asked the audience to compare the weight of household trash per person per year in America, which is less than 1,000 pounds, to the weight of CO2 put into the atmosphere per person per year in America, which is about 40,000 pounds. “This cannot continue,” he explained. “We are burning fossil fuels roughly a million times faster than nature saved them for us.”

CO2 blocks cooling, something science has known for a long time, and more CO2 will block more cooling of the Earth as it emits energy from the Sun’s rays. This is why, when asked if he “believes in global warming,” Richard responds: “We don’t believe it. It’s physics. And it’s physics like if I drop this pencil it will fall down. There isn’t another side of that.”

Anyone who could not make the program, but wants to learn more, should listen to this podcast of this Chancellor’s Forum. Among other things, Dr. Alley discussed the devastating consequences if we do not reduce CO2 emissions substantially and very soon.

It’s hard to overstate the seriousness of the issues if we can believe Richard Alley and the reports from the science community. Do we believe them? Listen to Dr. Alley and judge for yourself.

How do I look? Supreme Court to Weigh In On Dress and Grooming Policies in Two Religious Liberty Cases

The Supreme Court this term will consider two religious accommodation cases involving dress and grooming requirements. Regardless of how they are decided, the cases are a reminder to employers to consider employees’ religious rights when making employment decisions or developing policies, including policies on dress or grooming.

In Holt v. Hobbs,[1] the Court will consider whether a prisoner has the right to grow a beard for religious reasons.  Arkansas inmate Gregory Holt believes his Muslim faith requires him to grow a beard. He challenged an Arkansas state prison system policy prohibiting inmates from growing beards (except for quarter-inch beards for inmates with diagnosed dermatologic problems).  The prison system argued the policy was justified by security concerns and the possibility that beards could conceal contraband.  The District Court ruled against Mr. Holt, finding that prison officials’ security concerns deserved deference—even though the court itself doubted the validity of the security concerns. The Eighth Circuit Court of Appeals affirmed. At issue before the Supreme Court is how much deference to give prison officials when policies infringe on religious liberty, which is protected by federal statute. And if deference is not required, how are courts to draw the line on balancing religious rights with competing concerns?

In the second case, EEOC v. Abercrombie & Fitch Stores, Inc.,[2] 17-year-old Samantha Elauf, who is Muslim, wore a hijab—a traditional Muslim headscarf—when she interviewed for a salesperson position in an Abercrombie store in Tulsa.  She did not mention the hijab or her religion in her interview, but the interviewer assumed she was Muslim and that she wore the hijab for religious reasons.  Evidence suggested the hijab influenced the decision not to hire her because it conflicted with Abercrombie’s “look policy,” which required sales persons to wear “classic East Coast collegiate style of clothing.”  The EEOC brought suit on Ms. Elauf’s behalf and won summary judgment, but the Tenth Circuit Court of Appeals reversed that decision, holding that because Ms. Elauf had not notified Abercrombie of her need to wear the hijab for religious reasons, her religious accommodation claim failed as a matter of law.  The Tenth Circuit reasoned that the burden of notice is on the employee or applicant, disagreeing with the EEOC’s view that something less than particularized, actual knowledge of the need for an accommodation is required. That issue will now be addressed by the Supreme Court.

The two cases follow last term’s Burwell v. Hobby Lobby decision in which the Supreme Court ruled that some corporations could refuse to provide contraception coverage to their employees on religious grounds. After finding broad religious freedom rights for corporations, many are interested in how the Court will interpret those rights in the context of individuals.

The Holt case was argued on October 7, 2014, and the Abercrombie case has not yet been set for oral argument.

-Therese Dennis

[1] No. 13-6827 (argued Oct. 7, 2014).

[2] No. 14-86 (cert. granted Oct. 2, 2014).

Understanding the Science of Climate Change with Richard Alley, Ph.D., in Philadelphia on November 6, 2014

I am very pleased to report that Bill Fedullo, Chancellor of the Philadelphia Bar Association, will be hosting a Chancellor’s Forum onNovember 6, 2014, on the subject of climate change. Bill has asked me to introduce the speakers.

The principal speaker will be Noted Climate Scientist Richard B. Alley, Ph.D. of Penn State. Dr. Alley will discuss the science of climate change, how it occurs, what causes it, and what can be done to stop it.

Dr. Alley is the Evan Pugh Professor of Geosciences at Pennsylvania State University, and has ranged from Antarctica to Greenland to help learn the history of Earth’s climate and whether the great ice sheets will fall in the ocean, flooding our coasts. With more than 240 scientific publications, Dr. Alley has served on many advisory panels. He participated in the UN Intergovernmental Panel on Climate Change, which was co-recipient of the 2007 Nobel Peace Prize. He has been asked to provide advice to the highest levels of government, and been elected to the US National Academy of Sciences and the Royal Society. He hosted the recent PBS miniseries Earth: The Operators’ Manual, and has been compared to a cross between Woody Allen and Carl Sagan for his enthusiastic efforts to communicate the excitement and importance of the science to everyone.

After Dr. Alley’s presentation, Robert B. McKinstry, Jr. will provide some brief comments on what is being done from a technical and legal perspective to combat climate change.

McKinstry is a partner in the Philadelphia office of Ballard Spahr, LLP, where he heads the firm’s Climate Change and Sustainability Initiative. He was counsel of record for the group of amici climate scientists supporting the petitioners in Massachusetts v. EPA, the 2007 Supreme Court decision that held that the EPA has the authority under the Clean Air Act to regulate greenhouse gas emissions.

This program is free and open to the public. It will be held at the offices of the Philadelphia Bar Association at 1100 Market Street in Philadelphia (10th floor). Registration is required.

Payroll Cards Must Comply With Federal and State Law

In an era where technology equates with convenience, it’s not surprising that employers incorporate the latest technology in all facets of the workplace, including the way employees get paid. One way in which this is done is by issuing payroll cards instead of cash, check, or direct deposit. However, as is often the case with new technology and convenience, there is a downside. In this case the downside is that employees may get stuck paying fees to access their wages and employers risk legal liability if they fail to comply with federal and state law.

According to a September 2013 bulletin from the federal Consumer Financial Protection Bureau, Regulation E prohibits employers from mandating that employees receive wages only on a payroll card of the employer’s choosing. Regulation E permits an employer to require direct deposit of wages by electronic means if the employee is allowed to choose the institution that will receive the direct deposit. Alternatively, an employer may give employees the choice of having their wages deposited at a particular institution (designated by the employer) or receiving their wages by another means, such as by check or cash

That’s pretty clear guidance. But employers who seek to use payroll cards must comply with state law. I am currently serving as an expert witness on payroll cards in a class action lawsuit entitled Gunshannon et al., v. Mueller, et al. (Civil Class Action 7010 of 2013), pending in the Court of Common Pleas for Luzerne County, Pennsylvania. Here is a link to a PDF copy of my expert report. The named plaintiffs all worked at a chain of McDonalds in Pennsylvania and were forced to accept their wages via JP Morgan Payroll Debit Card. When the plaintiffs used the cards, they incurred numerous fees that diminished their wages. Supervisory level employees were given the choice of a check or payroll card, which demonstrates that the hourly employees were being treated differently and unfairly. More to the point, the employer’s conduct violated Pennsylvania law, which does not authorize payroll cards.

In Pennsylvania, the Wage Payment and Collection Act permits payment by “lawful money of the United States or check.” 43 P.S. § 260.3(a) (amended 1977). The Pennsylvania Banking Code extends that to include direct deposit when requested by the employee. 7 P.S. § 6121 (1975). Payroll cards are not lawful money (i.e., greenbacks) nor are they a check nor are they direct deposit when not requested by the employee. Other states have authorized payroll cards only after the legislature provided specific approval and some limitations, as in Florida in 2009. In states like Pennsylvania where the legislature has not authorized payroll cards, employers should think very carefully before mandating their use. Here is a link to a story in Forbes about the New York Attorney General’s investigation into the use of payroll cards. In all states, employers should comply with the CFPB’s guidance on the use of payroll cards.

NYC Climate Rally

NYC Climate Rally

The huge climate rally last week in New York City and other cities around the globe kicked off UN Climate Summit 2014, perhaps the most important government initiative ever. To show my support, I attended the rally on my folding bicycle and filmed what I saw with a GoPro camera strapped to my helmet.

This short video captures the size and energy of the climate rally.

Approximately 300,000 people of all walks, colors, and faiths joined the march.

If you’re concerned about the effects of climate change and want to have your voice heard, please share this post with others via social media.

Please read my related post: Philly Bar Association Demands Action on Climate Change

Philly Bar Association Demands Action on Climate Change

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With all the news about the call for action on climate change at the UN last week, you may have missed the news that the oldest association of lawyers in the US just passed a resolution calling for action on climate change.

In 2008, the ABA passed a similar resolution.

To my knowledge no other bar associations have done so.

Climate change is the single biggest issue facing humankind, with staggering consequences in human and economic terms if we do not substantially reduce emissions, something that many economists say can be done without disruption of the world economy. It’s right that lawyers and bar associations join in the international call for action.

Let’s hope we soon see similar resolutions from many more bar associations. New York, Chicago, Houston, Los Angeles — where are you? Miami? Anyone?

If you’re concerned about the effects of climate change and want to have your voice heard, please share this post with others via social media.

Please read my related post: If You Missed the NYC Climate Rally Check Out this Video

Lawyers Convince Court Client Never Died

Sharolyn Jackson never died. So ruled a Philadelphia court on June 10, 2014. As a result, the formerly homeless, 51-year-old Ms. Jackson can obtain social security benefits including medical care.

This unique judicial ruling arose from unusual facts. Ms. Jackson is physically and cognitively disabled and thus entitled to social security. With the help of social workers from Horizon House, a Philadelphia-based agency that provides services to people with mental health and other needs, she was living on her social security benefits in a West Philadelphia apartment when she went missing in July 2013. The body of a woman fitting her description was found on a street. Ms. Jackson’s son and a social worker who knew Ms. Jackson mistakenly identified the body as her based on a photo of the face of the dead woman, proving the difficulty of making correct identification based on photos. The body was buried on August 3rd. A death certificate was signed and issued. On August 16th, thirteen days after the funeral, Ms. Jackson was found by social service workers from Horizon House very much alive on a street corner in Center City Philadelphia.

Following the declaration of death, a death certificate was sent to state and federal agencies in accordance with a standard protocol. As a result, Ms. Jackson’s federal social security benefits stopped.

To get the benefits back, Ms. Jackson needed to be recognized as legally alive. The Homeless Advocacy Project (HAP) came to the rescue. HAP is a Philadelphia based non-profit that provides free legal services to homeless people and families. HAP had previously assisted Ms. Jackson to obtain social security benefits.

HAP turned to Steve Harvey and David Dzara of Steve Harvey Law LLC to represent Ms. Jackson. They filed a petition for rescission of the death certificate in the Orphans’ Court Division of the Philadelphia County Court of Common Pleas. On June 10, 2014, following an evidentiary hearing, Judge Joseph D. O’Keefe granted the petition and made a specific finding that Ms. Jackson is not dead.

So what’s the moral of the story? Don’t get lost in Philadelphia? Maybe, but more importantly we should all be grateful for and supportive of the work of HAP, Horizon House, and all of the other social and legal services agencies that provide so much help to the poor in our communities.

Thinking of starting your own law firm?

If so, then you may wish to listen to this podcast of an excellent panel discussion, Making Private Practice Leap, sponsored by the Philadelphia Bar Association on June 4, 2014, as part of its Law Firm Laboratory Series.  The panelists were Steve Harvey of Steve Harvey Law LLC; Kevin V. Mincey of Mincey & Fitzpatrick, LLC; Lee A. Schwartz of Lee A. Schwartz, Attorney at Law; and Rhonda Hill Wilson of Law Offices of Rhonda Hill Wilson, P.C. The discussion was moderated by Chancellor Bill Fedullo.

There’s a lot of good stuff you will want to think about in here if you are thinking about going off on your own!