Thursday, January 31, 2008
10 Ways to Get an Employer Sued
Join attorney Jane Lewis Volk and paralegal Cherie Mezynski on February 12, 2008 as they present "10 Ways to Get an Employer Sued" at the Pennsylvania Association of Housing and Redevelopment Agencies Legislative Conference. The conference will be held in Harrisburg, Pennsylvania at the Hilton & Towers February 10-13, 2008. To register for the conference please contact the PAHRA at 412-247-0699.
Thursday, January 17, 2008
Individual Liability: Under Employment Laws
Please join us on Thursday, February 21, 2008 for our Executive Education Series Roundtable.
Joseph Vater, Jane Lewis Volk and Quinn Johnson of our Employment Law & Employee Benefits Group will lead this interactive roundtable discussion of individual liability under the Pension Protection Act of 2006, Title VII of the Civil Rights Protection Act, Fair Labor Standards Act, Pennsylvania Wage Payment & Collection Law, Pennsylvania Human Relations Act and Family and Medical Leave Act.
Contact Beth Ansell at eaa@muslaw.com or 412.456.2552 for time and location.
Joseph Vater, Jane Lewis Volk and Quinn Johnson of our Employment Law & Employee Benefits Group will lead this interactive roundtable discussion of individual liability under the Pension Protection Act of 2006, Title VII of the Civil Rights Protection Act, Fair Labor Standards Act, Pennsylvania Wage Payment & Collection Law, Pennsylvania Human Relations Act and Family and Medical Leave Act.
Contact Beth Ansell at eaa@muslaw.com or 412.456.2552 for time and location.
Wednesday, January 16, 2008
Recent Decision Concerning Health Care Insurance Coverage for Medicare-eligible Retirees
By: Jane Lewis Volk, Esquire jlv@muslaw.com
Joseph A. Vater, Esquire jav@muslaw.com
In February 2007, the Third Circuit Court of Appeals issued a decision which affects an employer’s options with respect to the providing of health care coverage for retirees. In AARP v. EEOC, the Court upheld an EEOC regulation that permits an employer to coordinate retirement benefits with Medicare (or comparable state plan) or even eliminate such coverage when government coverage becomes available. The AARP argued that the regulation violated the Age Discrimination in Employment Act (“ADEA”) by making benefit distinctions on the basis of age. The Court ruled that this regulation was reasonable and therefore within the EEOC’s rule-making authority. The regulation was promulgated in reaction to the reality that employers were reducing benefits available to all, rather than bearing the expense of maintaining pre-Medicare benefits for retirees. The EEOC argued that employers are more likely to continue offering retiree benefits to employees under age 65 if they are able to reduce or eliminate benefits for Medicare-eligible retirees. The Court recognized “with some dismay” that the new regulation will allow employers to reduce health benefits to retirees over the age of 65, but saw it as a reasonable exemption from the ADEA which will ultimately “likely benefit all retirees.”
This regulation and the decision upholding it represent a reversal of a 2000 Third Circuit decision, Erie County Retirees Ass’n v. County of Erie.
For more information about the impact of this decision on your health care benefits plan, contact Jane Lewis Volk at jlv@muslaw.com or 412-456-2840 and Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
Joseph A. Vater, Esquire jav@muslaw.com
In February 2007, the Third Circuit Court of Appeals issued a decision which affects an employer’s options with respect to the providing of health care coverage for retirees. In AARP v. EEOC, the Court upheld an EEOC regulation that permits an employer to coordinate retirement benefits with Medicare (or comparable state plan) or even eliminate such coverage when government coverage becomes available. The AARP argued that the regulation violated the Age Discrimination in Employment Act (“ADEA”) by making benefit distinctions on the basis of age. The Court ruled that this regulation was reasonable and therefore within the EEOC’s rule-making authority. The regulation was promulgated in reaction to the reality that employers were reducing benefits available to all, rather than bearing the expense of maintaining pre-Medicare benefits for retirees. The EEOC argued that employers are more likely to continue offering retiree benefits to employees under age 65 if they are able to reduce or eliminate benefits for Medicare-eligible retirees. The Court recognized “with some dismay” that the new regulation will allow employers to reduce health benefits to retirees over the age of 65, but saw it as a reasonable exemption from the ADEA which will ultimately “likely benefit all retirees.”
This regulation and the decision upholding it represent a reversal of a 2000 Third Circuit decision, Erie County Retirees Ass’n v. County of Erie.
For more information about the impact of this decision on your health care benefits plan, contact Jane Lewis Volk at jlv@muslaw.com or 412-456-2840 and Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
Pennsylvania Supreme Court Addresses Unwanted Sexual Advances in a Workers’ Compensation Case
By: Benjamin D. Kerr, Esquire bdk@muslaw.com
Jane Lewis Volk, Esquire jlv@muslaw.com
Under Pennsylvania Workers’ Compensation law, if a claimant is to obtain benefits for a “psychic” injury, he must demonstrate that his injury resulted from abnormal working conditions, not for his subjective reaction to normal working conditions. In January 2007, the Pennsylvania Supreme Court held in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board that unwanted sexual advances may constitute abnormal working conditions. The Court held that a western Pennsylvania coal miner who was exposed to unwelcome sexual advances by a same-sex supervisor was entitled to workers’ compensation benefits for psychic harm.
The Supreme Court held that there was no support in the record for the finding that this challenged conduct was “normal in the mining industry.” This decision of the Pennsylvania Supreme Court is significant for, among other principals, reaffirming the need for firm enforcement of an employer’s sexual harassment policy. Workers’ compensation claims may result from failure to prohibit effectively inappropriate sexual activity in the workplace.
For more information about this case or other employment law issues, contact Benjamin D. Kerr at bdk@muslaw.com or 412-456-2589 and Jane Lewis Volk at jlv@muslaw.com or 412-456-2840.
Jane Lewis Volk, Esquire jlv@muslaw.com
Under Pennsylvania Workers’ Compensation law, if a claimant is to obtain benefits for a “psychic” injury, he must demonstrate that his injury resulted from abnormal working conditions, not for his subjective reaction to normal working conditions. In January 2007, the Pennsylvania Supreme Court held in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board that unwanted sexual advances may constitute abnormal working conditions. The Court held that a western Pennsylvania coal miner who was exposed to unwelcome sexual advances by a same-sex supervisor was entitled to workers’ compensation benefits for psychic harm.
The Supreme Court held that there was no support in the record for the finding that this challenged conduct was “normal in the mining industry.” This decision of the Pennsylvania Supreme Court is significant for, among other principals, reaffirming the need for firm enforcement of an employer’s sexual harassment policy. Workers’ compensation claims may result from failure to prohibit effectively inappropriate sexual activity in the workplace.
For more information about this case or other employment law issues, contact Benjamin D. Kerr at bdk@muslaw.com or 412-456-2589 and Jane Lewis Volk at jlv@muslaw.com or 412-456-2840.
Employment Law Decisions from the Supreme Court of the United States
By: Laura A. Candris, Esquire lac@muslaw.com
Ledbetter v. The Goodyear Tire & Rubber Co., Inc. is one of the most important employment decisions of the U.S. Supreme Court in recent years. In Ledbetter, the Court ruled (5-4) that each decision about an employee’s pay is a “discrete act” and that any Title VII claim based on such a decision must be filed with the EEOC within the same short period (300 days in Pennsylvania, but 180 days in some other states) allowed for filing other Title VII claims. Importantly, the Court rejected Ledbetter’s arguments — and the rulings of a number of federal courts of appeals - that she and other claimants have 180 (or 300) days from any paycheck resulting from a pay-setting decision to file an EEOC charge, even if that decision was made years earlier.
During most of Ledbetter’s career at Goodyear, pay increases were granted or denied based on performance evaluations. Shortly before she retired, Ledbetter filed an EEOC charge alleging that years earlier, her supervisor gave her poor evaluations because of her sex and, consequently, she was paid significantly less than any of the men holding the same job. Thus, Ledbetter claimed intentional gender discrimination. Ledbetter did not claim that Goodyear adopted its performance-based pay system in order to discriminate on the basis of sex or that it applied the system to her discriminatorily during the period allowed for filing EEOC charges or that Goodyear failed to communicate its allegedly discriminatory pay decisions to her at the time.
In its May 29, 2007 opinion, the Court made clear that old acts of intentional discrimination cannot be the basis for new claims under Title VII, even when the effects of such discrimination continue. However, the Court also pointed out that if an employer uses a discriminatory pay structure, then each paycheck based on that structure violates Title VII and triggers a new EEOC filing period. Additionally, the Court observed that the Equal Pay Act (“EPA”) –- which has a much longer claim-filing period - does not require proof that any pay discrimination was intentional or require a filing with the EEOC. Justice Alito, who wrote the majority opinion, observed “[i]f Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles she now confronts.” Justice Ginsberg, writing for the dissenting justices, solicited Congress to overturn the decision legislatively.
While the Ledbetter decision offers employers valuable protection from stale claims of intentional discrimination under Title VII, its benefits are limited because it does not affect other types of Title VII claims or claims under other federal or state statutes, and it may be legislatively overturned. Consequently, employers should continue diligently to monitor the design and administration of their pay systems to prevent intentional and adverse impact discrimination and reduce the incidence of claims.
Other decisions of interest.
In Long Island Care at Home, LTD v. Coke, the Supreme Court upheld a Department of Labor regulation which provides that persons employed to work in private homes providing companionship services for the aged or infirm are exempt from the minimum wage and overtime pay provisions of the federal Fair Labor Standards Act (“FLSA”), even when the employer who pays them is an entity, not the family or household using the services. This ruling means that home healthcare agencies and entity employers of workers providing these services need not comply with the FLSA with respect to workers. Employers must still comply with any state or local laws requiring overtime pay or setting a minimum wage for such workers.
In Davenport v. Washington Education Association the Court ruled that, while unions representing public workers may assess fees against nonmember workers covered by collective bargaining, states may require such unions to obtain authorization from those workers before using their fee money for election purposes.
In Beck v. PACE International Union, the Court reiterated its prior decisions that terminating a single-employer pension plan is a decision of the employer and not subject to the fiduciary obligations under the Employee Retirement Income Security Act (“ERISA”). The Court also ruled that merger with a multi-employer pension plan is not a permitted method of terminating a single-employer defined benefit pension plan. As a result, an employer which is considering terminating a defined benefit pension plan is not required by ERISA to consider a proposal by the union to merge the single employer plan with a multi-employer plan.
For more information about these cases and their impact, contact Laura A. Candris at lac@muslaw.com or 412-456-2891.
Ledbetter v. The Goodyear Tire & Rubber Co., Inc. is one of the most important employment decisions of the U.S. Supreme Court in recent years. In Ledbetter, the Court ruled (5-4) that each decision about an employee’s pay is a “discrete act” and that any Title VII claim based on such a decision must be filed with the EEOC within the same short period (300 days in Pennsylvania, but 180 days in some other states) allowed for filing other Title VII claims. Importantly, the Court rejected Ledbetter’s arguments — and the rulings of a number of federal courts of appeals - that she and other claimants have 180 (or 300) days from any paycheck resulting from a pay-setting decision to file an EEOC charge, even if that decision was made years earlier.
During most of Ledbetter’s career at Goodyear, pay increases were granted or denied based on performance evaluations. Shortly before she retired, Ledbetter filed an EEOC charge alleging that years earlier, her supervisor gave her poor evaluations because of her sex and, consequently, she was paid significantly less than any of the men holding the same job. Thus, Ledbetter claimed intentional gender discrimination. Ledbetter did not claim that Goodyear adopted its performance-based pay system in order to discriminate on the basis of sex or that it applied the system to her discriminatorily during the period allowed for filing EEOC charges or that Goodyear failed to communicate its allegedly discriminatory pay decisions to her at the time.
In its May 29, 2007 opinion, the Court made clear that old acts of intentional discrimination cannot be the basis for new claims under Title VII, even when the effects of such discrimination continue. However, the Court also pointed out that if an employer uses a discriminatory pay structure, then each paycheck based on that structure violates Title VII and triggers a new EEOC filing period. Additionally, the Court observed that the Equal Pay Act (“EPA”) –- which has a much longer claim-filing period - does not require proof that any pay discrimination was intentional or require a filing with the EEOC. Justice Alito, who wrote the majority opinion, observed “[i]f Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles she now confronts.” Justice Ginsberg, writing for the dissenting justices, solicited Congress to overturn the decision legislatively.
While the Ledbetter decision offers employers valuable protection from stale claims of intentional discrimination under Title VII, its benefits are limited because it does not affect other types of Title VII claims or claims under other federal or state statutes, and it may be legislatively overturned. Consequently, employers should continue diligently to monitor the design and administration of their pay systems to prevent intentional and adverse impact discrimination and reduce the incidence of claims.
Other decisions of interest.
In Long Island Care at Home, LTD v. Coke, the Supreme Court upheld a Department of Labor regulation which provides that persons employed to work in private homes providing companionship services for the aged or infirm are exempt from the minimum wage and overtime pay provisions of the federal Fair Labor Standards Act (“FLSA”), even when the employer who pays them is an entity, not the family or household using the services. This ruling means that home healthcare agencies and entity employers of workers providing these services need not comply with the FLSA with respect to workers. Employers must still comply with any state or local laws requiring overtime pay or setting a minimum wage for such workers.
In Davenport v. Washington Education Association the Court ruled that, while unions representing public workers may assess fees against nonmember workers covered by collective bargaining, states may require such unions to obtain authorization from those workers before using their fee money for election purposes.
In Beck v. PACE International Union, the Court reiterated its prior decisions that terminating a single-employer pension plan is a decision of the employer and not subject to the fiduciary obligations under the Employee Retirement Income Security Act (“ERISA”). The Court also ruled that merger with a multi-employer pension plan is not a permitted method of terminating a single-employer defined benefit pension plan. As a result, an employer which is considering terminating a defined benefit pension plan is not required by ERISA to consider a proposal by the union to merge the single employer plan with a multi-employer plan.
For more information about these cases and their impact, contact Laura A. Candris at lac@muslaw.com or 412-456-2891.
Monday, December 31, 2007
Workplace Identity Theft: What Employers Need to Know
By: Quinn A. Johnson, Esquire qaj@muslaw.com
Douglas M. Hottle, Esquire dmh@muslaw.com
As is evident from recent newspaper headlines, identity theft has become a more common occurrence in the American workplace as thieves have begun to target the treasure trove of information that employers retain in the personnel files of their employees, i.e. social security numbers, names, addresses and bank account numbers. The victims of these workplace identity thefts are seeking restitution and other damages from the companies from which the information was stolen. Employers should be aware of the issues surrounding workplace identity theft, including the methods by which such theft can occur, laws regarding the protection of personal information and what employers can do to both prevent identity theft and mitigate potential liability.
In general, identity theft is defined as the misappropriation and fraudulent use of a person’s personal information. Unfortunately for employers, this kind of information is, of course, exactly the type of information contained in a company’s personnel files. Indeed, many workplace identity thefts occur through the simple photocopying of personnel files or through the downloading of confidential information from a computer. In Bodah v. Lakeville Motor Express, Inc., for example, an employer was sued for faxing a list of employees’ names and social security numbers to different managers within the company.
In light of the possibility of liability, employers should take steps to protect personal employee information and are required to do so under state and federal statutes. In Pennsylvania, recent legislation signed by Governor Rendell on June 29, 2006 prohibits employers, with certain exceptions, from publicly posting social security numbers, printing a social security number on any card, requiring an individual to transmit a social security number over the internet, (unless the transmission is encrypted), requiring an individual to use a social security number to access a website (unless a password or other unique personal identification number is also required), and from printing a social security number on any materials that are mailed to an individual, except where required by federal or state law (such as a W-2 form).
Employers should also be aware of an amendment to the Fair and Accurate Credit and Transactions Act (FACTA), which requires an employer to take reasonable measures to dispose of an employee’s credit report obtained as part of the hiring process. Under the statute, reasonable measures may include implementing policies and procedures that require the destruction of documents containing consumer information, including the destruction of electronic information.
Employers should review their policies and procedures to ensure compliance with the above statutes and to otherwise establish policies prohibiting the distribution of personnel files, limiting access to confidential information and providing for the prompt and proper disposal of confidential information. Although these policies and procedures cannot prevent any and all lawsuits or protect against all identity theft, they are a valuable aid in averting identity theft and limiting an employer’s liability if an identity theft occurs.
For more information on identity theft prevention, contact Quinn A. Johnson at qaj@muslaw.com or 412-456-2524 or Douglas M. Hottle at dmh@muslaw.com or 412-456-2809.
Douglas M. Hottle, Esquire dmh@muslaw.com
As is evident from recent newspaper headlines, identity theft has become a more common occurrence in the American workplace as thieves have begun to target the treasure trove of information that employers retain in the personnel files of their employees, i.e. social security numbers, names, addresses and bank account numbers. The victims of these workplace identity thefts are seeking restitution and other damages from the companies from which the information was stolen. Employers should be aware of the issues surrounding workplace identity theft, including the methods by which such theft can occur, laws regarding the protection of personal information and what employers can do to both prevent identity theft and mitigate potential liability.
In general, identity theft is defined as the misappropriation and fraudulent use of a person’s personal information. Unfortunately for employers, this kind of information is, of course, exactly the type of information contained in a company’s personnel files. Indeed, many workplace identity thefts occur through the simple photocopying of personnel files or through the downloading of confidential information from a computer. In Bodah v. Lakeville Motor Express, Inc., for example, an employer was sued for faxing a list of employees’ names and social security numbers to different managers within the company.
In light of the possibility of liability, employers should take steps to protect personal employee information and are required to do so under state and federal statutes. In Pennsylvania, recent legislation signed by Governor Rendell on June 29, 2006 prohibits employers, with certain exceptions, from publicly posting social security numbers, printing a social security number on any card, requiring an individual to transmit a social security number over the internet, (unless the transmission is encrypted), requiring an individual to use a social security number to access a website (unless a password or other unique personal identification number is also required), and from printing a social security number on any materials that are mailed to an individual, except where required by federal or state law (such as a W-2 form).
Employers should also be aware of an amendment to the Fair and Accurate Credit and Transactions Act (FACTA), which requires an employer to take reasonable measures to dispose of an employee’s credit report obtained as part of the hiring process. Under the statute, reasonable measures may include implementing policies and procedures that require the destruction of documents containing consumer information, including the destruction of electronic information.
Employers should review their policies and procedures to ensure compliance with the above statutes and to otherwise establish policies prohibiting the distribution of personnel files, limiting access to confidential information and providing for the prompt and proper disposal of confidential information. Although these policies and procedures cannot prevent any and all lawsuits or protect against all identity theft, they are a valuable aid in averting identity theft and limiting an employer’s liability if an identity theft occurs.
For more information on identity theft prevention, contact Quinn A. Johnson at qaj@muslaw.com or 412-456-2524 or Douglas M. Hottle at dmh@muslaw.com or 412-456-2809.
OWBPA Compliance Necessary For Valid Release of Claims
By: Joseph A. Vater, Jr., Esquire jav@muslaw.com
In terminating an employee or a group of employees, employers will often provide a severance or separation package in exchange for a release of claims against the employer. A recent case decided by the United States Court of Appeals for the Tenth Circuit reinforces the importance of complying with the Older Workers Benefit Protection Act (“OWBPA”) in such situations. In Ted Kruchow Ski v. Weyerhaeuser Co., the Tenth Circuit reviewed the validity of a release signed by a group of former employees of the Weyerhaeuser Company and determined that the release of the Age Discrimination in Employment Act claims was invalid because the release failed to comply with a certain requirement of the OWBPA.
The failure to comply involved an inaccurate description of the decisional unit. A decisional unit is defined by the rules interpreting OWBPA as “the portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of the waiver.”
The group termination in the Weyerhaeuser case defined the decisional unit as all salaried employees at a facility. Weyerhaeuser later responded to interrogatories by indicating the decisional unit was salaried employees reporting to the facility manager. Fifteen employees at that facility who worked in human resources, information technology and accounting did not report to the facility manager. As a result, approximately ten percent of the employees at the facility were not a part of the actual decisional unit.
The Court recognized that the parties did not dispute that the release was written in a manner to be understood by all affected employees, that it specifically mentioned the Age Discrimination in Employment Act and that the employees waived their rights in exchange for consideration in addition to anything of value to which they were already entitled. Nonetheless, the Court held that the absence of even one of the OWBPA’s requirements invalidated the releases. Because Weyerhaeuser failed to show that the strict statutory requirements were met, the Court determined that the releases executed by the employees were invalid and unenforceable with respect to any age discrimination claim. As a result, the former employees who received benefits as a result of signing the releases were able to continue their lawsuit against the defendant on grounds of age discrimination.
Any employer considering obtaining a release from an individual terminated employee, or obtaining releases from a group of employees involved in a lay off, must ensure that its documents comply fully with OWBPA if the employer wishes to have an enforceable release against age discrimination claims.
For more information regarding the requirements of the Older Workers Benefit Protection Act, contact Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
In terminating an employee or a group of employees, employers will often provide a severance or separation package in exchange for a release of claims against the employer. A recent case decided by the United States Court of Appeals for the Tenth Circuit reinforces the importance of complying with the Older Workers Benefit Protection Act (“OWBPA”) in such situations. In Ted Kruchow Ski v. Weyerhaeuser Co., the Tenth Circuit reviewed the validity of a release signed by a group of former employees of the Weyerhaeuser Company and determined that the release of the Age Discrimination in Employment Act claims was invalid because the release failed to comply with a certain requirement of the OWBPA.
The failure to comply involved an inaccurate description of the decisional unit. A decisional unit is defined by the rules interpreting OWBPA as “the portion of the employer’s organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of the waiver.”
The group termination in the Weyerhaeuser case defined the decisional unit as all salaried employees at a facility. Weyerhaeuser later responded to interrogatories by indicating the decisional unit was salaried employees reporting to the facility manager. Fifteen employees at that facility who worked in human resources, information technology and accounting did not report to the facility manager. As a result, approximately ten percent of the employees at the facility were not a part of the actual decisional unit.
The Court recognized that the parties did not dispute that the release was written in a manner to be understood by all affected employees, that it specifically mentioned the Age Discrimination in Employment Act and that the employees waived their rights in exchange for consideration in addition to anything of value to which they were already entitled. Nonetheless, the Court held that the absence of even one of the OWBPA’s requirements invalidated the releases. Because Weyerhaeuser failed to show that the strict statutory requirements were met, the Court determined that the releases executed by the employees were invalid and unenforceable with respect to any age discrimination claim. As a result, the former employees who received benefits as a result of signing the releases were able to continue their lawsuit against the defendant on grounds of age discrimination.
Any employer considering obtaining a release from an individual terminated employee, or obtaining releases from a group of employees involved in a lay off, must ensure that its documents comply fully with OWBPA if the employer wishes to have an enforceable release against age discrimination claims.
For more information regarding the requirements of the Older Workers Benefit Protection Act, contact Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
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