Articles by Our Attorneys

What is the state of the employment world as we transition from 2022 to 2023?  Looking back, a study showed that employment discrimination class-action settlements soared in 2022.  Meanwhile, COVID-related litigation shows us that the impact of the pandemic will continue in the courts with vigor in 2023.  Read all about it below.

Workplace Bias Class-Actions Soared in 2022, according to Report

According to a report just issued by Duane Morris, LLP, the value of employment discrimination class-action lawsuits soared in 2022, nearly doubling the total from 2021.  The findings of the report show that 2022’s figure of $597 million in total discrimination class-action settlements dramatically outpaced previous years, with the last five years’ figures being: 

2017 – $294 million;

2018 – $216 million;

2019 – $139 million;

2020 – $423 million; and,

2021 – $323 million.  

The report looked at class-action settlements across three employment class areas – discrimination, wage and hour, and Employment Retirement Income Security Act (ERISA) claims.  Wage and hour and ERISA class-action settlements were down from 2021, but otherwise fairly consistent with the preceding years.  The results of the report can certainly serve as a signal to employers to take a close look at workplace policies – and particularly Equal Employment Opportunity (EEO) compliance – to ensure they do not find themselves part of this trend in 2023.

Workers Compensation Award issued against SEPTA for COVID death may be Harbinger for Future Successful Claims

The family of a former Southeastern Pennsylvania Transportation Authority (SEPTA) mechanic who died of COVID was recently awarded workers’ compensation benefits by a Philadelphia Judge, Todd Seelig.  To prevail on such a claim, the worker needs convincing proof that an injury or illness occurred in the course of their job.  That proof has been considered elusive given the pervasive nature of COVID.  However, this judge was convinced after the worker’s family was able to present evidence that the worker had exposures to multiple infected employees in close quarters, and SEPTA that did not permit masking and failed to perform contact tracing.  While the decision of the judge is only persuasive precedent and therefore not binding on other cases, the case may serve as a roadmap for future workers compensation claims as well as personal injury litigation.  

Philadelphia District Attorney’s Office survives COVID Religious Liberty Suit

The Philadelphia District Attorney was successful in requesting a federal court to dismiss a former prosecutor Rachel Spivak’s lawsuit alleging that she was fired for failure to receive a COVID-19 vaccine based upon her religious objections.  At the time of the exemption request, the DA’s office permitted exemptions to its mandatory vaccination policy based only upon health and safety concerns over vaccination, however the office offered no exemption on religious grounds.  The prosecutor sought an exemption based upon religious beliefs surrounding injecting undisclosed ingredients into her body.  Significantly, notwithstanding the lack of a religious exemption policy, the DA’s office had offered the prosecutor the option of working remotely if she was unwilling to be vaccinated, however she refused that opportunity.  Ultimately, the judge concluded that “[t]here is absolutely nothing in the record suggesting that anti-religious bias figured into [the DA’s] decisions.  To the contrary, Ms. Spivak refused the DAO’s offer of an accommodation, which would have allowed her to keep her job and remain unvaccinated (in accordance with her religious beliefs).”  The case is Rachel Spivack v. City of Philadelphia, et al., case number 2:22-cv-01438, in the U.S. District Court for the Eastern District of Pennsylvania.

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, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff 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.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

New Mexico authorities have charged Alec Baldwin with the crime of Involuntary Manslaughter after he accidentally shot and killed 42 year old Halyna Hutchins on the movie set of a Western titled “Rust”.

How Could Someone Get Shot and Killed on a Movie Set?

In October 2021, Alec Baldwin was a lead Actor and a Producer and Halyna Hutchins was a Cinematographer on the set of a Western-style movie, “Rust”, that was filming in New Mexico.

During rehearsals, a tragedy occurred in which Baldwin accidentally shot and killed Hutchins and injured another production employee when a prop pistol was improperly loaded with a live bullet, rather than a “dummy” round, and Baldwin pointed the gun and pulled the trigger.

The cardinal rule for movie sets involving weapons is that live bullets should never be on set. However, eal guns are often used and must be loaded with something in order to appear authentic. In such situations, real guns are either loaded with blanks that will make sound when fired or “dummy” rounds which are fake and should not fire.

On the day of the shooting, Baldwin was rehearsing drawing and firing a Colt .45 pistol and was working directly in front of the camera. Hutchins was the Cinematographer working the scene and was standing next to the camera person with the film’s Director, Joel Souza, behind her.

The film’s Armorer, Hannah Gutierrez-Reed, had given Baldwin the Colt .45 pistol earlier in the day and told him that the gun was “cold”, meaning that it was loaded with “dummies” and should not fire.

Immediately before the shooting, Baldwin was practicing drawing the gun and aiming it at the camera. Unfortunately, Hutchins and Director Joel Souza were just a few feet away and directly in the line of fire. Baldwin claims that the pistol was cocked for the rehearsal but that he never pulled the trigger. Nevertheless, during the fateful draw, when Baldwin pointed the gun directly at Hutchins, it discharged a live round that struck Hutchins, penetrated her chest and exited through her back. The bullet then struck and lodged in Souza’s shoulder. Tragically, Hutchins died from her wounds. Fortunately, Souza recovered.

Since the shooting, Baldwin has remained steadfast in denying that he pulled the trigger of the pistol. However, the FBI performed extensive testing on the gun after the incident and concluded that the gun would not fire unless the trigger was pulled.

Who is at Fault?

There are multiple people who can be blamed for this tragedy. The primary bad actor appears to be the Armorer, Gutierrez-Reed, who inexplicably allowed a live bullet to be present on set and loaded into a gun that was used in the rehearsal. This is negligent if not reckless conduct. Like Baldwin, Gutierrez-Reed has been charged with Involuntary Manslaughter.

However, It can also be argued that Baldwin bears some responsibility. Baldwin is an experienced Actor and Producer. He knew he had a real gun in his hand, so why was he drawing it and pointing it at people? Importantly, the FBI investigation determined that the gun would not fire unless the trigger was pulled. So, assuming that the FBI is correct, why did Baldwin pull the trigger of a real gun while pointing it directly at Hutchins?

Notably, there were reports of other accidental discharges from guns on this set before Hutchins was killed which indicates that everyone on the set should have been aware of the danger and acting more vigilantly to prevent injuries. There were also some disputes with employees and resignations before the shooting, leading to conspiracy theories that some disgruntled former employee may have intentionally armed the pistol with a live round.

Why Was Baldwin Charged?

When an accident happens that results in a death, two legal proceedings can occur. The family can bring a Wrongful Death Civil Lawsuit for compensation by alleging the the death was caused by Negligence. This has already occurred and the case was settled out-of-court. At the same time, the local authorities can decide to pursue Criminal Charges to punish the wrongdoers with fines and/or jail time.

Under New Mexico law, Involuntary Manslaughter is causing Death while ”in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.”

Involuntary manslaughter is a fourth-degree felony punishable by up to 18 months in prison and a fine of $5,000. However, because a firearm was involved in this incident, there could be an enhancement of the punishment which carries a 5 year prison sentence.

The real question in the criminal trial for Baldwin will be regarding the issue of Negligence. Obviously, Baldwin did not intend to shoot Hutchins. That doesn’t end the inquiry though. This crucial issue is whether a prudent person would have been more cautious than he was. If Baldwin was Negligent, then he could be held criminally liable.

In my view, Baldwin has a real risk of being convicted in that it’s hard to say he was being careful when he drew a real Colt .45, pointed it at someone who was just a few feet away and pulled the trigger. It’s also troubling that it appears there were some live rounds discharged on the set earlier, which would put Baldwin on notice of the danger and should have caused him to be more careful and less confident that all of the guns were armed with only “dummy rounds”. I also think it will be difficult to believe that Baldwin did not pull the trigger since FBI witnesses will testify that they tested the gun and it would only fire if the trigger was pulled.

Baldwin and his legal team have expressed sadness and remorse for the incident and Hutchins’ death, but have steadfastly denied responsibility by claiming that Baldwin had the right to rely on the Armorer to do her job to make sure the gun was loaded with “dummies” and that he did not pull the trigger. Baldwin has also stated in texts to Hutchins’ husband that he has concerns that perhaps the gun was tampered with and intentionally armed with a live round.

After the charges were announced, Baldwin’s legal team released a statement saying that he had no reason to believe that there were live rounds in the gun or anywhere on the set and that they would “fight the charges and win.”

Ultimately, it will be up to the Jury to decide on the Negligence issue and determine whether anyone should be held criminally responsible. On the civil law side, Wrongful Death lawsuit against Baldwin and others has been settled out of court. Overall, this was a terrible and preventable tragedy that, hopefully, will send a message to the movie making industry that safety on set must be priority number one.

Tim Rayne is a Pennsylvania Personal Injury lawyer with the Chester County firm MacElree Harvey. For over 25 years, Tim has been helping accident victims understand their legal rights and receive fair treatment from Insurance Companies. Tim can be reached at 610-840-0124 or [email protected] or you can check out his website at www.TimRayneLaw.com.

2022 goes out with a bang as December brought historic legislation passed for pregnant workers, Facebook was confronted with anti-discrimination claims concerning its advertising, and  Walgreens faces a potential class action lawsuit from former employees.  Get the last updates for 2022 before 2023 arrives.

President Biden Signs Pregnant Workers Fairness Act Into Lw 

After percolating in the legislature for years, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the federal spending package for 2023 on December 22, with President Biden signing the bill into law the following day.  The PWFA requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions.  In this regard, the PWFA tracks protections provided by the Americans with Disabilities Act (ADA) and several state laws that already bar discrimination against pregnant workers.  

Prior to the passage of the PWFA, aggrieved pregnant workers might look to the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act by making clear that discrimination on the basis of pregnancy, childbirth or related conditions constitutes unlawful sex discrimination.  However, the PDA lacked express requirements relating to accommodating pregnancy-related limitations.  Meanwhile, pregnant workers might receive mixed results seeking to enforce accommodation requirements under the ADA for pregnancy-related conditions.  The PWFA thus seeks to fuse the protections of these two existing federal laws into one specific law.  With the passage of the PWFA, employers should amend their existing reasonable-accommodation policies to clarify that they apply to employees who are pregnant, have pregnancy-related conditions or have recently given birth. 

In the omnibus bill, Congress also included the Providing Urgent Maternal Protections for Nursing Mothers Act (known as the PUMP Act) to expand workplace lactation accommodations.  

Meta Facebook Advertising is Biased According to Advocacy Group EEOC Complaint

Real Women in Trucking, which advocates for female truckers, has asked the EEOC to investigate Meta Platforms for violations of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.  According to the complaint filed with the U.S. Equal Employment Opportunity Commission, Meta discriminates against women and older people through biased algorithms that disproportionately direct certain Facebook job listing advertisements to younger men.

The group says that Facebook’s algorithm steers listings to almost exclusively men and young people when it thinks jobs such as trucking, construction and manufacturing will be preferred overall by those groups.  The same bias reportedly occurs in the other direction when the algorithm thinks listing such as housekeeping and food service will be preferred to younger women.  Significantly, this new complaint follows a 2019 settlement of cases making similar claims, pursuant to which Facebook agreed to limit advertisers’ options for targeting ads to specific people or groups.  Accordingly, similar results and changes to Facebook’s advertising algorithm may be likely as the complaint proceeds.

Walgreens Faces Potential Class Action over Deficient COBRA Notices

Walgreens has been targeted by several former employees in a proposed class action alleging that the pharmacy chain fails to adequately notify workers of their right to get continuing health care benefits after leaving their jobs.  The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires that certain employers provide written notice to qualifying employees and beneficiaries of how to sign up to continue to receive health coverage benefits under the same terms as their previously existing coverage.

According to the complaint, the former employees received COBRA notices that were not written in a manner that the average plan participant could understand.  Rather than receiving one document outlining information on COBRA, the employees reportedly received multiple separately mailed documents that lacked critical information.  As a result, the former employees allegedly lost access to their medical coverage, and therefore had to pay out-of-pocket to cover medical expenses.  The complaint accuses Walgreens of providing insufficient notices in order to save money by pushing terminated employees from electing COBRA.

The lawsuit seeks reimbursement of any out-of-pocket medical expenses and benefits available to the class of employees under the plan, reinstatement of their right to elect coverage for the proscribed period, nominal damages and attorney fees.  The case is Bryant et al. v. Walgreen Co., case number 8:22-cv-02732, in the U.S. District Court for the Middle District of Florida.

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, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff 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.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

Practicing within the Family Law specialty has led to some very entertaining conversations over the years. Some of my favorites have included the puzzled faced-fellow guests at weddings (or better yet, some of the guests at my own wedding) when they ask what I do for a living and my Wife says, “He makes divorce dreams come true.” I also often hear questions from friends about what would happen in *insert legal situation here*, and many of those questions I remain able to answer.

Recently, as we find ourselves in America’s favorite season (Football, not Fall), many of those questions have zeroed in on everyone’s favorite fountain of youth dwelling Quarterback, Tom Brady, and his conscious decoupling from Entrepreneur/Fashion Mogul Gisele Bündchen – that most common question, “What would you tell Tom Brady?” I think it’s better rephrased as “What should Tom Brady do?”

The answers are fairly common, regardless of whether the parties involved are Joe and Jane, or Tom and Gisele. Here are a few of them:

1. Maintain a Support Network – Divorce can be emotionally draining. Circle the wagons: your friends, your family, and enlist a counselor or therapist as well. Your Support Network will help you stay strong and grounded through this process. A big caveat here is your children. Although your children are your family, and are often shared with the other party in this, remember, they’re not pawns and must not be used as such. With very limited exception, they should not be involved. 
2. Don’t shy from compromise, but be prepared for litigation – Not every issue has to go before a Judge. Plenty of parties find the resolution of their cases through mediation, or through discussions between attorneys. Operating in this fashion frequently saves parties much financially and also emotionally; however, not every case is so fortunate and many have to find resolution through the engagement of the litigation process. Do not fear that process, respect it. 
3. This too shall pass – Whether it be through seeking a mutually consented finalization after 90 days (Pennsylvania specific), or, as many days as it takes, you will come out on the other side of this process. 

Every case is different, but there will be an end to the tunnel, and a competent attorney, whether we’re providing advice through the mediation process or zealously advocating for you in court, is a necessity.