12/31/2009In a decision filed December 16, the Superior Court upheld a motion for judgment on the pleadings by defendant Sunoco, Inc., in Bowman v. Sunoco, Inc., 2009 Pa. Super. 242 (2009), available here. Plaintiff, an employee of a security service firm, alleged that she injured herself slipping on ice on Sunoco property. When plaintiff took employment with the security firm, she had signed a waiver acknowledging the workers' compensation coverage of any injury suffered on the job and expressly waiving claims against customers of the security firm for any injuries covered by workers' compensation. Plaintiff had urged that the Superior Court rule that the waiver was void for being contrary to public policy. The Court following cases in Massachusetts, Arkansas, and Connecticut held that third party releases did not impede the purposes of the Workers' Compensation Act. 9/4/2009In Prowel v. Wise Business Forms, Inc., PICS Case No. 09-1428 (3d Cir. Aug. 28, 2009), opinion available here, the Third Circuit reversed summary judgment in favor of defendant employer on plaintiff's Title VII claims. The Third Circuit held, in an opinion by J. Hardiman, that even though discrimination on the basis of sexual orientation is not protected by Title VII, plaintiff, an avowed homosexual, had established sufficient evidence of gender stereotyping to survive summary judgment (Title VII gender stereotyping claims were recognized by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). The Circuit Court affirmed summary judgment on plaintiff's religious discrimination claims, ruling that plaintiff failed to establish any religious discrimination, other than discrimination on the basis of sexual orientation. 8/26/2009
Under Pennsylvania law, an employer has the right to terminate an at will employee for or without cause. Geary v. United States Steel Corp., 319 A.2d 174, 176 (Pa. 1974). That right has two notable exceptions, which subject an employer to liability for wrongful discharge. Those exceptions are: firing an employee in violation of federal or state anti-discrimination laws, and firing an employee for reasons which violate social policy. Over the last few months, we have discussed the former at length. I would like to focus the next several blawg posts on the latter: firing an employee for reasons which violate social policy.
The Pennsylvania Supreme Court has indirectly held that it is unlawful to terminate an employee for reasons which violate social policy. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 616 (3d Cir. Pa. 1992). This exception is narrowly applied. In fact, to date the Pennsylvania Supreme Court has never held against an employer in a case where a violation of social policy was the basis for a wrongful discharge claim. On the other hand, the Pennsylvania Superior court has held against employers accused of firing their employees in violation of social policy. Over the next several blawg posts I will outline those Superior Court cases where an employer was found liable for wrongful discharge for violating social policy. 8/24/2009
Wow! It’s been a while since I blawged. I’ve been very busy at the office. Over the next several weeks I will post a series of blawgs respecting Pennsylvania’s approach to the at will employment doctrine. Namely: When is an employer liable for the wrongful termination of an at will employee? The short answer—to take away some of the suspense—is hardly ever! This Wednesday I will outline the exceptions to the general rule that an employer may terminate his or her employee with or without cause. On Friday and next Wednesday, we will look at some examples of when an employer is liable for wrongful discharge of an at will employee. I hope these next few posts will prove informative! 7/27/2009On July 22 in Weaver v. Harpster the Pennsylvania Supreme Court by a margin of 5-2 rejected the existence of a common law employment claim for sex discrimination. The claim was made by a female employee against an employer who had too few employees to be considered an employer for the purposes of the Pennsylvania Human Relations Act. The plaintiff asked the Court to recognize the existence of a public policy exception to the at-will employment doctrine for sexual discrimination claims against employers that are not subject to the PHRA. The Court rejected this argument, holding that the PHRA is the exclusive state remedy for sexual discrimination claims against private employers. The Court also found that the Equal Rights Amendment to the Pennsylvania Constitution did not create a public policy exception to the at-will doctrine, finding that the Amendment only constrains the state. The majority opinion by Justice Baer is available here and the dissent by Justice Todd and joined by Chief Justice Castille is available here. 7/24/2009
I was watching a television news show the other day. One of its guests was a young lady who holds the title of: The Worlds Fastest Text Messenger. I was immediately disappointed to learn that I was not invited to participate in the World Text Messaging Championship. Until that point I fancied myself quite the texter! My displeasure was quickly replaced with amazement followed in short order by inferiority. The young lady (fifteen years old) could text faster then I could type—60 words a minute! I guess I’ll start training early for next year’s tournament.
So you ask yourself, why is Brian writing about text messaging on an Employment Law Blawg? Is he bored? No. Is he out of work? No. I’ll tell you why: Text Messages are a great way to preserve evidence of sexual harassment in the workplace! A recent article on Allbusiness.com reports that the number of sexual harassment suits filed where text messages were the basis of the harassment is increasing. It seems employers forget that a text message, like anything in writing, does not disappear into nothingness after it is drafted. Perhaps because of the nature of texting in general, a quick and easy way to communicate short bits of info from one person to another, employers don’t filter what they text. The article cites to a Michigan case where a soccer coach’s university paid $450,000.00 to settle a harassment lawsuit over several text messages sent to two female soccer players.
Employers should ensure they implement a policy aimed at preventing text message sexual harassment. Additionally, employees should not accept inappropriate comments of a sexual nature from their employers, regardless of the medium in which the employer sends them. Treat every text message like you would any written communication and expect that it will never go away.
For a full copy of the article click here.
7/16/2009The American Lawyer has an informative article, available here, reporting that Plaintiffs' attorneys in a Massachusetts case, Salvas v. Wal-Mart Stores, have been accused of reaching a collusive settlement with Wal-Mart over unpaid wages.
Collusive settlements are a potential risk in all class action lawsuits in which individual plaintiffs have relatively small claims. The rationale behind allowing such class actions is that by aggregating plaintiffs with similar claims, it is possible for them to recover damages, despite the fact that each plaintiff's damages would be too small to be worth litigating by itself. However, the large number of plaintiffs and the relatively small stake of each plaintiff means that the clients are unable to exert the same kind of oversight over their attorneys as plaintiffs have in normal litigation.
In ordinary litigation, settlements must be approved by the client, and the client has an interest in maximizing their settlement because of the amount of money involved. This serves as a check on attorneys, who might be willing to accept a lesser settlement offer in order to avoid the delay and costs of further litigation and going to trial, especially in contingent fee cases, where the lawyers receives no fees until the case settles or is resolved in their favor by the court.
Because there is less client oversight in small individual claim class actions, attorneys on both sides may wish to settle for less than the claim might potentially be worth, to avoid delay and costs. In a true collusive case, a defendant who recognizes clear liability on their part, may wish to have a friendly plaintiffs' counsel appointed, with whom they know they can reach a quick and inexpensive settlement, potentially shortchanging the class members. As a result, courts generally exercise far more oversight over class action settlements than ordinary settlements. 7/9/2009
The Delaware Employment Law Blog posted an interesting article today entitled: Three Reasons Employers Don’t Have a Social-Networking Policy. The article suggests that one reason employers don’t have such a policy is they have never heard of social-networking! Old-folk jokes aside, I agree that employers should implement a policy aimed at reducing time spent by employees on social networking sites; however, such a policy should extend beyond social-networking and include all internet use by employees. The internet is a powerful tool, which when used properly in the workplace can provide innumerable benefits; however, it can and is the single largest productivity drain in the modern American office, responsible for millions of dollars is lost productivity each year! Employers should implement a clear succinct internet use policy. Such a policy should be signed and made available to all new and current employees.
7/7/2009
Today’s New York Times editorial criticized the recent holding of the United States Supreme Court in Gross v. FBL Financial Services, Inc. I Blawged about that case on June 18. The Times argues that the Court’s holding “disregarded legal precedent, longstanding practice and the plain reading of statutory language.” The editorial also argued that as a result of the Court’s ruling, all litigants under the Age Discrimination in Employment Act will now “bear the full burden of proving that age was the deciding factor….” Before Gross, under the ADEA an employee could survive summary judgment if it could show that his/her age was one reason for his/her termination. Upon that showing, the burden then shifted to the employer to demonstrate that it had a legitimate non-discriminatory reason for the termination. The editorial calls for Congress to pass legislation to overturn the Court’s holding. For a full copy of the editorial click here. 6/30/2009
After several days of deliberation, a New Jersey jury returned a verdict in favor of the Plaintiff in the case Brian Pietrylo, et al., v. Hillstone Restaurant Group d/b/a Houston’s. I Blawged about the facts of this case on May 24. An essential element of that case was whether the Defendant was authorized to review the Plaintiff’s private Myspace Web site. The Defendant obtained access to that Web site by using the password and login information of an authorized user to the site. Base on those facts, the Defendant moved for summary judgment, which was denied. The Court held that a material issue of fact existed as to whether the Defendant coerced that information from the authorized user. From the Jury’s verdict, it appears that they believed that the defendant had coerced the authorized user. The case caught national attention and stands as a warning to employers of the risk they expose themselves to under Federal law for improperly reviewing their employee's electronic communication. At present no appeal has been filed. Some sources indicate that the Defendant does not plan to appeal. If no appeal is filed, the Defendant will be liable to the Plaintiff for all his attorney fees, which are no doubt significant.
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