Articles by Our Attorneys

April, 2021, has brought a number of legal developments in the employment law arena.  Here are a few of notable developments to keep you updated:

1. Pennsylvania Attorney General’s office launches largest criminal wage theft case in U.S. history.

Pennsylvania construction company Glen O. Hawbaker Inc., has allegedly failed to pay full prevailing wages on several years’ worth of project work, allegedly stealing some $20 million in pay from its workers.  The road and bridge building company is charged with four counts of theft for alleged violations of the Pennsylvania Prevailing Wage Act and U.S. Davis-Bacon Act following a 3-year investigation.  According to the allegations, the company diverted money from workers’ retirement accounts in order to pay pensions for higher-level employees including company executives.  It is further alleged that Hawbaker inflated the amount the company stated it would be paying to cover the cost of worker health care plans, while paying a lower amount and pocketing the difference.  The case serves as a reminder to Pennsylvania businesses that the state attorney general’s office can pursue criminal penalties for wage and hour violations if it perceives the situation as theft.

2. Pennsylvania worker claims employer failed to accommodate her anxiety from COVID-related workplace dispute.

A Pittsburgh woman has filed suit alleging that her employer, a butcher shop, fired her over her anxiety stemming from a COVID-related workplace dispute.  The lawsuit claims that the woman held a wedding in November, and later felt sick at work and left for testing and quarantine.  Her testing was ultimately negative and she returned to work, however upon her return co-workers allegedly accused the woman of potentially exposing them to COVID.  The woman allegedly left to eat lunch and experienced a panic attack in her car and did not return.  During a text exchange with her supervisor, the woman allegedly reported the panic attack, that she had a diagnosed panic disorder, and referenced wanting to find a reasonable accommodation.  The employer allegedly responded by stating that it did not have the resources to accommodate her and terminated the woman’s employment.  The woman has filed suit alleging that the employer’s refusal to accommodate her, and her subsequent firing, were violations of the Americans with Disabilities Act and Pennsylvania Human Relations Act.  The case – Hammond v. Strip District Meats Inc., in the U.S. District Court for the Western District of Pennsylvania – highlights the importance of understanding “reasonable accommodation” requirements under disability law.

3. “Donning” lawsuit illustrates need for employers to properly account for COVID-era PPE requirements in their wage calculations.

In a recent lawsuit filed over “donning”, employees of Cresco Labs, a cannabis cultivator, complained that they had to arrive at their facility at least 12 to 16 minutes early to undergo mandatory health screenings and to put on company-issued PPE required for safety and to protect the cannabis from contamination, however they were only paid for an additional 5 minutes of time.  This is one of a number of recent wage and hour lawsuits relating to “donning” or “doffing”, including a class action lawsuit filed against Walmart.  “Donning” and doffing” is used to refer to the practice of putting on (donning) and taking off (doffing) protective gear, clothing and uniforms. There are certain circumstances where employers are legally required to pay their employees for time spent donning and doffing.  According to the U.S. Department of Labor, “[g]enerally, donning and doffing, which may include clothes changing, can be a ‘principal activity’ [requiring compensation] under the Portal to Portal Act, 29 U.S.C. § 254.” The Supreme Court in IBP v. Alvarez, 546 U.S. 21, 37 (2005) explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable.  The case is Janice Dutcher et al. v. Cresco Labs Inc. et al. case number 1:21-cv-02106, in the U.S. District Court for the Northern District of Illinois.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

When a person claims a right to recover damages, the law imposes a duty upon the claimant to mitigate those damages. This means that someone who has suffered a loss or injury must take advantage of reasonable opportunities to decrease the amount of damages suffered. While this principle applies in a variety of civil cases, there are a few notable situations where the mitigation of damages principle arises in a Personal Injury case.

If you have been in a car accident, your first introduction to the mitigation of damages principle often arises with your property damage claim. If your car has been towed from the accident scene, it will most likely be towed to a lot that incurs daily storage fees. The mitigation of damages principle arises in this scenario to require you to resolve your property damage claim without any unnecessary delays such that you are mitigating the amount of storage fees incurred.

At this stage you may receive a letter from the liability insurance carrier informing you of your duty to mitigate your damages. The mitigation of damages letter will advise you that your vehicle needs to be moved to a storage free facility and will most likely state that the insurance carrier has a storage free lot where your car can be moved. If you do not take advantage of the insurance carrier’s offer to move your car to the storage free lot, you will most likely end up with a dispute regarding the amount of storage fees the insurance company is willing to pay.

Similarly, insurance carriers often assert the mitigation of damages principle as a defense to compensating for reimbursement of rental car fees. Disputes often arise with reimbursement of rental car fees where the insurance company will not agree to compensate the claimant for keeping a rental car longer than necessary.

The next area in my Personal Injury practice where I find myself discussing the mitigation of damages principle with clients is with a lost wage claim. If you are unable to work because of the injuries sustained in a car accident or other incident, you are entitled to recover for your lost wages. However, the mitigation of damages principle applies so that if you are able to work in some capacity, the law imposes a duty upon you to continue to earn wages.

One scenario where this issue arises is when a doctor places a limitation on the number of hours that the injured claimant can work. Although you may no longer be able to work full-time, the mitigation of damages principle applies to impose a duty on you to find suitable part-time employment to mitigate your wage losses.

Another scenario where we see mitigation of damages principle arising with a wage loss claim is when an injured claimant has physical limitations. In this scenario, a claimant who was working a strenuous job pre-accident is no longer able to perform the job requirements due to the injuries sustained in the accident. In this scenario, if the claimant has not found alternative employment, it is common for the insurance carrier to hire a vocational expert who will perform an assessment and identify jobs that would be alternative forms of employment.

These are just a few examples of how the mitigation of damages principle may apply to your motor vehicle or Personal Injury case. Personal Injury Attorneys are experienced with handling disputes when the mitigation of damages principle is asserted as a defense and advise their clients so that they are not negatively impacted by the mitigation of damages principle. If you have been injured in a motor vehicle collision and have concerns regarding how the mitigation of damages principle will apply in your case, you should consult a Personal Injury attorney who will assess your situation and guide you in asserting your claim for damages.

Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania.  Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in a variety of civil litigation matters, including Personal Injury, trust and estate litigation, real estate litigation, and corporate disputes. She joined MacElree Harvey in the summer of 2016 and spends her time in the Delaware office located in the Village of Centreville and the Kennett Square office. Contact Tiffany at (302) 654-4454 or [email protected] to discuss your car accident or other civil litigation matter. 

March 2021 has brought several notable employment law updates.  Once again, COVID-19 dominates the headlines.  Here are a few of the most important developments:

1. President Biden signs American Rescue Plan Act of 2021 expanding FFCRA tax credit.  In addition to various stimulus provisions, the new Act extends the available tax credit under the Families First Coronavirus Response Act (FFCRA) for employers that voluntarily provide paid COVID-19 leave until September 30, 2021, extending the previous deadline of March 31, 2021.  The credit covers 100% of qualifying wages for FFCRA leave, and the qualifying reasons for taking leave are expanded.  Notably, the qualifying reasons now include leave taken to receive a COVID-19 vaccination or to recover from an injury, disability, illness or condition related to receiving a vaccine.  The maximum tax credit is increased to $200 per day per employee or $12,000 per employee in aggregate.  Left out the Act were a previously proposed extension of the mandatory paid FFCRA leave, which expired at the end of 2020, and an increase in the minimum wage to $15.00 per hour.  
2. Walmart employees pursuing class action for unpaid COVID screening time.  Workers filed a $5 million proposed class action in Arizona federal court alleging that Walmart required them to arrive at their shifts 10 to 15 minutes early to undergo COVID-19 screenings but failed to fully compensate them for their time.  Some workers allegedly were required to stand in line and wait to be screened and when they did not pass the screening, they were sent home with no pay at all.  Walmart denied the allegations.  Employers should keep in mind that, where screenings are done on the company’s premises and for the benefit of the company, the employees are likely considered “on the clock” and must be compensated for their time.
3. Amazon settles Whistleblower lawsuit over alleged COVID-19 safety protocol violations.  The settlement comes after a former New Jersey employee claimed he was fired in retaliation for reporting that a shift manager refused to keep at least a 6-foot distance from other workers.  The lawsuit was filed under New Jersey’s Conscientious Employee Protection Act, and also alleged that the manager had been reported several times by several employees but that HR ignored or refused to pass the complaints on to management.  It bears noting that, while the lawsuit was filed under state law, federal OSHA law also has anti-retaliation provisions.  Therefore, employers nationwide can look to this case as a lesson about the consequences of failing to properly address worker complaints during the pandemic. 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

A client recently asked me about using a new scanner on its employees that reportedly can detect the presence of the coronavirus.  If this device works, it certainly could be a major asset to businesses trying to resume normal operations.  However, the question remains, when (and how) could a business use a “coronavirus scanner” for employees?  For that matter, what about testing employees with other instant-tests that may become available to the public?

To begin with, using a coronavirus scanner or other instant tests should be permissible by law under the same logic as employee temperature scans, which the EEOC has already approved (the Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.)  Nevertheless, there are a few things to consider before a business starts screening employees:

1. To perform screenings, the business should avoid having employees line up together where they can see each other.  Rather, it would be better to have the screens done one at a time in a private room or tent outside the facility.  Naturally, it would be best to do the screening before the employees enter the facility, and if not, then the employees could be required to report directly to the screening area without going into any other areas of the premises.
2. For the employee performing the screening, the business ideally would require that he/she use personal protective equipment (at least hand sanitizer, mask and gloves).  The screener might begin by screening themselves to make sure they are not exposing others to coronavirus during the process.
3. For record keeping, ideally the business would have a system 1) to confirm that every employee on site in a given day was screened, and 2) a way to document positive tests, while 3) avoiding creating an abundance of unnecessary confidential medical records for every screen the business performs.

One approach could be to have the screener keep a list of the employees working on a given day and then simply place a check next to their names when the employees are screened without indicating anything about a positive or negative result.  This record could be used to make sure employees are being screened, would not contain any substantive medical information, and therefore would not require any special confidential treatment for record keeping.  

The business could then also have a separate form (or simply create a memo) documenting an employee testing positive for coronavirus in the screening.  This record would be placed in the employee’s separate, confidential medical file (under the ADA, employee medical information is required to be kept separate from the employee’s standard personnel file.) 

To the extent the screening device/test keeps track of who is screened and other data, the business could record the screening device/test data that accompanies a positive test in the employee confidential record/memo.  This practice should alleviate concerns the business may have about deleting/destroying the screening device/test data, since the screening device/test data would be duplicative.  Indeed, the best practice arguably would be to keep the information in the screening device/test only long enough to create the records described above, and then to immediately delete/destroy the data.  Under this approach, the screening device/test itself would no longer contain any confidential information requiring protection.  

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

February may be the shortest month, but that does not mean that there are no important developments in the world of employment law.  Here are some of the notable headlines:

1. After a 6-month lag, employment suits are on the rebound.

Statistics show that new employment suits in federal court started declining in May, 2020.  However, a rise in pandemic-related cases caused a surge in the final months of 2020, with November, 2020, having the highest number of filings in the past 3 years.  Analysts are attributing the rise to the government providing more guidance regarding COVID employee protections.

2. A Pennsylvania federal judge in the Eastern District of Pennsylvania sent back to state court a lawsuit accusing a meat processing company of causing an employee’s COVID-19 death based upon violation of Occupational Safety and Health Administration (“OSHA”) recommendations. 

The court reasoned, “[a]lthough we recognize the unprecedented difficulties the pandemic has caused, we see no reason to diverge from analogous, well-reasoned holdings in our district, particularly where, as here, the complaint is rooted in tort law and refers only to OSHA and CDC guidance”.  While this ruling could have major implications for keeping COVID-19-related litigation out of federal courts, it does not foreclose the possibility of negligence or other tort-based claims being brought against employers in state court.  The case is Ferdinand Benjamin v. JBS SA et al., case number 2:20-cv-02594, in the U.S. District Court for the Eastern District of Pennsylvania.

3. A Massachusetts federal district court rejected claims from Whole Foods employees who filed discrimination claims against the grocery chain and its parent, Amazon.com, for disciplining employees who wore Black Lives Matter face masks to work.

Notably, the disciplined employees consisted of both African-American and other ethnicities.  The court opined that the federal Civil Rights Act doesn’t protect a person’s right to associate with a social cause, and that the claims failed because the plaintiffs had not alleged that the defendants would have treated any individual differently if that plaintiff were of a different race.  The case is Frith et al. v. Whole Foods Market Inc. et al., case number 1:20-cv-11358, in the U.S. District Court for the District of Massachusetts.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.

Almost a year into this pandemic we can confidently say that things have certainly changed in the world of business litigation.  The changes impact jury trials, depositions, and the entire manner in which commercial disputes are litigated.

“I want my jury trial”!

Well, you’re going to have to wait.  With most commercial disputes, the parties (if they want) are entitled to a trial by jury.  In the business litigation arena, this has very much changed.  Most courts now have a temporary hold on jury trials.  The main problem isn’t necessarily the trial itself.  The problem is jury selection.  

During jury selection, there can be up to 100 jurors in a room sitting closely together waiting to be selected.  These jurors are interviewed by the Judge and/or the attorneys for the parties to determine what the jury panel will look like.  This can take several hours and, as indicated above, this requires all the prospective jurors to sit “patiently” in close proximity to one another waiting to be interviewed for potential jury selection.  This is not happening right now, for obvious reasons.

It will be some time before commercial lawsuits are resolved on a regular basis by juries.  Criminal trials (where the criminal defendant is absolutely entitled to a trial by jury) are the ones that will take place first.  The courts will need to work through the backlog of criminal jury trials before even thinking about having jurors sit through civil trials.  

The impact of this, obviously, is delays in the resolution of cases.  The backlog is now growing for civil cases (such as business disputes) to be resolved.  To combat this, Judges are strongly encouraging litigants to permit the cases to be resolved with the Judge sitting as the trier of fact (in place of the jury).  Judges are also asking parties to consider Alternate Dispute Resolution programs (“ADR”).  ADR can include binding arbitration or non-binding mediation.  This occurs where the parties pay for a third party (often a retired Judge) to help assist in the resolution of the matter.  We have certainly seen an increase in the use of ADR to resolve business disputes.  

How Business Cases Are Litigated Now.

In a word, technology.  Fortunately, most courts in this geographic area have fairly sophisticated electronic filing systems in place.  If they didn’t before the pandemic hit, they certainly do now.  This enables the parties to file papers electronically (without the need to go to the courthouse and file the papers in person).  This process is easier, more stream-lined and, in many cases, less expensive for the attorneys and the litigants.  This also enables adversaries to receive immediate notice of filings that are made in a commercial dispute.  This is certainly a more efficient way to handle cases.   

What Does a Deposition Look Like Now?

Before the pandemic, depositions typically took place in person.  This meant that all the parties, litigants and attorneys, were present in the same room for the deposition to take place.  This enabled the attorneys to get a clearer view as to the witnesses’ credibility and the ability to withstand questioning.  This is an extremely important element of trial preparation.  This is the biggest change that we have seen post-pandemic because now most depositions take place remotely.  

Attorneys, witnesses, and court reporters are now separated.  The witness appears on a computer screen for questioning.  This makes it more difficult for attorneys to weight the credibility of the witness.  This is a significant change for all parties in a business dispute.

The benefit of remote depositions is that the depositions are now more efficient and cost-effective.  Depositions can happen faster and cheaper.  This is good for all litigants and, especially, for the clients who are paying the bills.  It will be interesting to see whether remote depositions continue post-pandemic.  

Robert Burke is a business litigator and trial attorney with MacElree Harvey, Ltd. in West Chester, Pennsylvania.  Mr. Burke focuses his practice on complex commercial litigation and estate and trust litigation.  This includes trial and appellate work in federal, state and international courts.  He regularly presents matters before alternative dispute resolution panels and frequently lectures on trial tactics, practice, and procedure.  He has argued before the Pennsylvania Supreme Court and the United States Court of Appeals in both the Third and Sixth Circuits.  

Contact Robert at [email protected] or by calling 610-840-0211.