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At MacElree Harvey, a law firm deeply rooted in tradition since 1880, we take immense pride in not only our historical legacy but also in our commitment to fostering a dynamic and people-centered culture. As we embark on the journey of expansion, we are excited to announce various opportunities for talented individuals to join us in roles including: legal assistants, professional staff, paralegals, and attorneys.

Our success is built on a foundation of trust and appreciation for our team members. In 2023, we welcomed seven new associate attorneys and twelve staff members, a testament to our commitment to providing a supportive and thriving work environment.

In recognition of the evolving dynamics in the legal landscape, we prioritize the well-being of our team members. Throughout the year, we implement initiatives such as chair massages, spirit days, social events, and summer Fridays, creating an enjoyable and fulfilling work experience. Our efforts extend beyond traditional work practices, reflecting our dedication to adapt to the changing needs of the modern workplace.

Our dedication to creating a positive workplace has earned us recognition as a Top Workplace by the Philadelphia Inquirer, an accolade that extends to both our Pennsylvania and our Delaware offices. This distinction not only reaffirms our commitment to our employees but also serves as a testament to the caliber of our firm during the recruitment process. At MacElree Harvey, we take pride in being an employer of choice.

Join MacElree Harvey and experience the difference of a culture rooted in excellence, growth, and innovation. As we expand our team, we invite talented individuals to be a part of a legacy that values its people and shapes the future of legal practice. Discover the MacElree Harvey difference and embark on a fulfilling career with a firm that prioritizes its team members and is dedicated to setting new standards in the legal profession. Visit macelree.com/careers to learn more about our available positions.

Legal actions filed in September of 2023 shed light on the limits of reasonable accommodations in the workplace in the areas of workplace testing and remote work, and a national pizza chain is accused of short-changing its drivers.  Read all about it in this month’s update.

Walmart Test Ruling Out Workers Discriminated Against Disabled Workers According to New EEOC Complaint

Walmart is facing legal trouble as the U.S. Equal Employment Opportunity Commission (EEOC) filed a complaint in an Arkansas federal court, alleging the retail giant of discriminating against employees with disabilities. The EEOC contends that Walmart wrongfully utilized a training test, the Pathways Graduation Assessment, to disqualify workers with disabilities who were fully capable of performing their job duties.  The assessment was described as a “self-administered, computer-based knowledge assessment and was required for all entry-level store associates in 31 positions nation-wide”, and purportedly assesses an employee’s knowledge of customer service, inventory essentials, retail fundamentals, and merchandising.

The lawsuit, filed on behalf of former employees Glenda Scott and Jaclyn Walker, as well as a class of unnamed plaintiffs, claims that the assessment was biased against individuals with disabilities, denying them reasonable accommodations and resulting in terminations for those who failed. Walmart implemented this requirement in 2015, later reducing the number of questions in 2018 but maintaining a pass rate requirement of at least 70% after three attempts.

The EEOC asserts that Walmart violated the Americans with Disabilities Act by terminating employees who could perform their job’s essential functions, citing examples of individuals who were terminated for not passing the test despite otherwise having no job performance problems. The lawsuit seeks damages, back pay, reinstatement for wrongfully terminated employees, and a permanent injunction to prevent discriminatory practices.  This legal battle highlights the importance of employers not losing sight of whether employees can perform essential functions of jobs when implementing testing and screening mechanisms for their workforce.

Remote Work for School Principal Deemed Not to Be A Reasonable ADA Accommodation Where Physical Presence Is Essential

In a recent case, Jordan v. School Board of the City of Norfolk, the U.S. District Court for the Eastern District of Virginia ruled against a school principal who sought remote work as a reasonable accommodation for her asthma and restrictive lung disease, which she claimed were worsened by the poor condition of the school building. The court found in favor of the school board, emphasizing that physical presence in the school was an essential function of her job as an elementary school principal.

During the COVID-19 pandemic, the principal had been allowed to work primarily from home, but as students returned to in-person learning, she requested to continue remote work under the Americans with Disabilities Act (ADA). The school district denied her request, citing the essential nature of her job requiring her presence in the school building.

This case highlights post-pandemic considerations for employers facing accommodation requests for remote work under the ADA. Employers should update policies to reflect their current practices, especially regarding in-office presence expectations. Additionally, having well-defined job descriptions can help establish the essential functions of a position, ensuring compliance with ADA requirements while meeting the needs of both employers and employees.

Domino’s Franchises Paying 35 Cents-Per-Mile Allegedly Violates Minimum Wage Laws

Domino’s Pizza franchises in Massachusetts are facing a proposed class-action lawsuit for allegedly underpaying delivery drivers, paying them only 35 cents per mile for their mileage expenses. The lawsuit, filed in federal court, claims that this reimbursement rate effectively reduced drivers’ wages to below the federal minimum wage, violating the Fair Labor Standards Act.

The plaintiff, Brian Kingham, who worked as a delivery driver for these franchises, argued that the low reimbursement rate failed to cover the actual costs of owning and operating a vehicle, including gas, maintenance, insurance, and depreciation. During the period covered by the complaint, the IRS allowed a higher reimbursement rate of 54 to 58 cents per mile. Moreover, industry estimates, including those from the American Automobile Association, suggest that the true cost of driving can be as high as 60 cents per mile, accounting for factors like wear and tear from delivery driving.

Kingham’s lawsuit asserts that the franchise’s reimbursement rate left drivers earning less than the federal minimum wage and essentially subsidizing the company. The complaint alleges that these low reimbursement rates were a frequent concern among drivers, and at times, the company refused to pay any mileage credit, suggesting willful non-compliance with labor standards.

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.

In August of 2023, the EEOC issued initial regulatory guidance on the landmark 2022 Pregnant Workers Fairness Act, and COVID litigation continued to trickle through the system with some positive and not-so-positive developments for employers.  Get the full details below.

U.S. EEOC unveils proposed regulations for implementing the Pregnant Workers Fairness Act

The U.S. Equal Employment Opportunity Commission (EEOC) has introduced proposed regulations for the implementation of the Pregnant Workers Fairness Act (PWFA), which was enacted in 2022. The PWFA mandates that employers must make reasonable workplace adjustments to aid employees facing pregnancy-related limitations in performing their duties.

The proposed regulations offer insight into how the EEOC will enforce the PWFA. The EEOC in its approach emphasizes that the temporary nature of pregnancy calls for temporary accommodations even after childbirth, as unforeseen health issues could arise. Four accommodations highlighted as reasonable include additional restroom and meal breaks, access to water during work hours, and the flexibility to sit or stand as needed.

On the EEOC’s non-exhaustive list of conditions the EEOC believes generally fall within the scope of the law are “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”

While acknowledging that implementing the PWFA could incur a cost to the economy of over $200 million, the EEOC counters the economic benefits of improving gender equality in the workplace outweigh this expenditure.  The public will have 60 days to provide feedback on the proposed rules, with specific areas of concern including defining crucial terms, offering examples of acceptable accommodations, and ensuring non-retaliation against employees utilizing such accommodations.

7th Circuit Court of Appeals Affirms Dismissal of COVID Disability Suit Over Remote Work

The Seventh Circuit Court has rejected a lawsuit accusing an Indiana hospital of discrimination against a department supervisor, who claimed that her anxiety prevented her from wearing a mask when asked to return from remote work during the COVID-19 pandemic.  The employee sought an accommodation to continue working remotely.  Despite having successfully worked from home during the pandemic for 6 months, the hospital declined her request, asserting that her executive director role required in-person attendance. The lawsuit alleged discrimination, retaliation, and failure to provide accommodations.

In a unanimous decision, the three-judge panel upheld the lower court’s summary judgment in favor of the hospital, stating that the employee’s essential job functions necessitated her physical presence. The panel highlighted that while remote work was feasible during the pandemic, the nature of her executive director position demanded in-person collaboration, oversight of equipment, and liaison with other departments.

The court emphasized that essential functions requiring on-site presence varied from job to job and could not be universally equated with pandemic-driven remote work. It was noted that the employee’s claims of discrimination and retaliation were unsupported by evidence of intolerable working conditions leading to her resignation. The panel also dismissed the employee’s assertions of gender-based promotion discrimination.

The case underscores the evolving legal landscape regarding remote work accommodations, indicating that determinations must be made on a case-by-case basis, considering specific job requirements.  The case is Anna Kinney v. St. Mary’s Health Inc., case number 22-2740, in the U.S. Court of Appeals for the Seventh Circuit.

Religious Vaccine Exemption Lawsuit Permitted to go to Michigan Federal Jury

A Michigan federal judge has ruled that the MGM Grand Casino must face claims from former employees, Bryant Brown and Hratch Yeremian, who alleged that they were subjected to religious discrimination for refusing the COVID-19 vaccine. The judge, U.S. District Judge Victoria A. Roberts, denied MGM’s motion for partial summary judgment, stating that the workers had provided sufficient evidence to support their claims of disparate treatment.

Brown and Yeremian claimed that they held sincere religious beliefs conflicting with MGM’s vaccine requirement, informed the company about this conflict, and faced adverse employment actions for not complying. Yeremian said he applied for a vaccination exemption based on his Catholic beliefs, which he said barred him from getting the shot because he believed that the vaccines were developed using cells from aborted fetuses.  Brown said he applied for an exemption based on his claim that he suffered from sleep apnea and breathing conditions that prevented him from getting the shot but did not tell the company that he had religious objections, because he felt like submitting a religious accommodation request would be futile based on what he had heard from management.  However, when MGM’s Human Resources Department called Brown in October 2021 to inquire about his vaccination status, Brown said he told the caller his “body is a temple” and he is “allowed to choose what he puts in it,” according to the order. Judge Roberts said MGM did not cite any authority stating that Brown’s call or email wouldn’t be enough to inform the company of the conflict, and pointed to two decisions in the Sixth Circuit that held an employee doesn’t need to request accommodation in a “particular manner” to be considered as notifying their employer of needing a religious accommodation.

Brown and Yeremian sued MGM for violating Title VII of the Civil Rights Act and the Elliott-Larsen Civil Rights Act, alleging wrongful termination and denial of religious accommodations. The court’s ruling allows the former employees to proceed with their religious discrimination claims against the casino.

The case is Brown et al. v. MGM Grand Casino, case number 2:22-cv-12978, in the U.S. District Court for the Eastern District of Michigan.

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.

In July of 2023, employers are questioning the ripple effects of the Supreme Court’s freedom of religion-based ruling contravening Colorado’s anti-discrimination law, USCIS introduces a new I-9 form that all employers need to know about, and a celebrity lands in hot water over workplace health and safety violations at his school.  Read more below.

U.S. Supreme Court Rules in Favor of Christian Website Designer’s Right to Refuse Services for Same-Sex Weddings

In a significant 6-3 decision along ideological lines, 303 Creative LLC v. Elenis, the U.S. Supreme Court ruled this month that a Christian website designer in Colorado has the right to refuse services for same-sex weddings, citing violations of her free speech rights under the state’s anti-discrimination law.

The case centered around Lorie Smith, owner of 303 Creative LLC, who sought to block the Colorado Civil Rights Commission from enforcing the state’s anti-discrimination law against her. Smith argued that, as an expressive artist, she should not be compelled to create wedding websites for LGBTQ couples, as it conflicted with her religious beliefs that marriage should only be between a man and a woman.

The conservative supermajority of the high court sided with Smith, asserting that the First Amendment protects her from being forced to create designs that communicate messages she disagrees with. Justice Neil Gorsuch, writing for the majority, emphasized that the government cannot coerce individuals to speak in ways that contradict their conscience.

The ruling overturned a decision by the Tenth Circuit and revisited themes from the 2018 case, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The dissenting justices, led by Justice Sonia Sotomayor, criticized the majority’s opinion, arguing that it allows businesses to discriminate against protected classes.

The ruling has implications beyond the case at hand, with critics fearing it could open the door to more discrimination in public accommodations. Colorado Attorney General Phil Weiser vowed to hold accountable those who engage in unlawful discrimination, while Smith’s attorney, Kristen Waggoner of the Alliance Defending Freedom, applauded the reaffirmation of Americans’ right to free speech. 

While not an employment case, the Court’s decision in 303 Creative raises serious questions for employers who constitute public accommodations and have related anti-discrimination policies.  For example, the situation could arise where an individual employee might object to a project on religious grounds and seek an exemption or accommodation to avoid working on the project. Time will tell how these scenarios might play out.

USCIS Introduces Streamlined Form I-9 and DHS Enables Remote Verification for Employers

The U.S. Citizenship and Immigration Services (USCIS) revealed a new Form I-9, set to be mandatory for employers starting August 1, 2023. The updated version has been streamlined and shortened to simplify the hiring process. Employers can still use the old Form I-9 (Rev. 10/21/19) until October 31, 2023, but face penalties if used thereafter. The new form includes a checkbox to indicate if an employee’s documentation was examined using a DHS-authorized alternative procedure, thanks to a final rule issued by the U.S. Department of Homeland Security (DHS). Additionally, employers using E-Verify can conduct verifications electronically, including live video interviews for remote employees.

Notable, USCIS made the following updates to the Form I-9:

• Reduced Sections 1 and 2 to a single-sided sheet. No previous fields were removed. Instead, multiple fields were merged into fewer fields when possible.
• Moved the Section 1 Preparer/Translator Certification area to a separate supplement (Supplement A) that employers can provide to employees when necessary. Employers may attach additional supplement sheets as needed.
• Moved the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B), which employers can print if or when rehire occurs or reverification is required. Employers may attach additional supplement sheets as necessary.
• Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” and also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
• The form can now be filled out on tablets and mobile devices.
• Removed certain features to ensure the form can be more easily downloaded. This also removes the requirement to enter N/A in certain fields.
• Updated the notice at the top of the form explaining how to avoid discrimination in the Form I-9 process.
• Revised the Lists of Acceptable Documents page to include some acceptable receipts and in addition guidance and links to information on automatic extensions of employment authorization documentation. Added a box that eligible employers are required to check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination. 

Former Teacher Files Suit Against Kanye West’s Donda Academy, Alleging Workplace Health and Safety Issues

A former teacher and assistant principal, Isaiah Meadows, has filed a lawsuit against Donda Academy, previously known as Yeezy Christian Academy, alleging various health and safety issues at the school. According to the complaint filed in Los Angeles County Superior Court, Meadows claims that the rapper Kanye West, also known as Ye, who founded the school, did not address critical problems such as lack of working hot water, missing glass in exterior windows, and serious wiring issues that led to an electrical fire.

Meadows further stated that a skylight was installed without glass, causing rainwater to flood the school. The building also experienced periods without electricity, and lessons were conducted using flood lamps powered by generators. Additionally, the lack of hot water posed sanitation issues during the COVID-19 pandemic, and the building’s septic tank overflowed frequently, causing unpleasant odors.

Apart from the health and safety concerns, Meadows alleges issues with his compensation, which was supposed to include assistance with his family’s rent. However, the promised financial support was not fulfilled, leading to severe financial difficulties for him and his family.

The complaint accuses Donda Academy and Kanye West of breach of contract for unpaid wages, breach of the covenant of good faith and fair dealing, and various violations of the state’s labor code. The school has not yet responded to the allegations.

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.

In June of 2023, a federal court holds that offensive song lyrics in the workplace can amount to workplace harassment, the Supreme Court made it easier for employers to compel arbitrations, and a Pennsylvania construction company is hit with significant prevailing wage violations.  To find out more, see the details below.

Federal Circuit Court holds Rap Lyrics May Sustain Sex Harassment Case

The Ninth Circuit Court of Appeals has revived a discrimination lawsuit against an apparel manufacturer, S&S Activewear LLC, alleging the creation of a hostile work environment due to explicit rap music played in a Nevada warehouse. The court panel ruled that the “sexually demeaning and violent language” present in the music could support the former workers’ case. The trial court’s dismissal of the Title VII suit was deemed erroneous. The judges emphasized that the music’s pervasive nature could potentially constitute sex discrimination under Title VII, even if both men and women were offended. The decision aligned with previous rulings from other circuit courts, establishing that widespread sights and sounds can amount to sex discrimination. The appeals panel directed the district court to reconsider the motion to dismiss, highlighting that auditory and visual harassment need not be targeted at a specific individual to taint the workplace. The case, brought by eight former workers (seven women and one man), alleged that S&S Activewear allowed “sexually abusive and misogynistic” music to play in the facility, fostering a toxic environment.  The case is Stephanie Sharp et al. v. S&S Activewear LLC, case number 21-17138, in the U.S. Court of Appeals for the Ninth Circuit.

Supreme Court Reinforces Employer’s ability to Compel Arbitration

In a recent 5-4 ruling, the U.S. Supreme Court has made it easier for employers to enforce arbitration agreements in legal disputes. The decision, made on June 23 in Coinbase Inc. v. Bielski, states that a district court must suspend its proceedings while an appeal on the question of arbitrability of a dispute is underway. The case itself combined two class-action lawsuits against Coinbase, involving alleged violations of the Electronic Fund Transfer Act and deceptive sweepstakes practices. Justice Brett Kavanaugh, writing for the majority, commented that allowing pre-trial and trial proceedings to continue during the appeal would undermine the efficiency and cost-saving benefits of arbitration. To that end, the ruling is expected to alleviate the financial and procedural burdens on parties involved in litigation, allowing them to await a decision from an appeals court without engaging in costly legal battles. The decision has been praised by proponents of employment arbitration agreements, highlighting the value proposition of such agreements. 

Pennsylvania Appellate Court Affirms Construction Co. Violated Prevailing Wages

A panel of the Commonwealth Court of Pennsylvania has ruled that a construction company, Scott Pangallo Contracting, is financially responsible for unintentionally violating the Pennsylvania Prevailing Wage Act. The three-judge panel affirmed the Pennsylvania Prevailing Wage Appeals Board’s decision that the company violated the act by not paying the correct prevailing wages to workers involved in a renovation project. The panel rejected Pangallo’s argument that the public body involved in this case, the Clearfield County Recreation and Tourism Authority, should also be held responsible for the violations.  However, the panel stated that the law does not allow for penalties to be imposed on public bodies, only on employers. Therefore, the panel concluded that it cannot order penalties against the public body. The Department of Labor and Industry had given Pangallo the opportunity to adjust the wages owed by submitting a check for the underpayments, but Pangallo appealed the decision. The case highlights the limitations of the prevailing wage law and the responsibility of employers to ensure proper payment to workers.  The case is Pangallo et al. v. PWAB, case number 526 CD 2022.

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.