Articles by Our Attorneys

February may be the shortest month, but it packed plenty of significant developments in the world of employment law, including a major worker-friendly change in severance agreements, another massive employment discrimination punitive damages award against a household-name business, and another difficult result for our hometown Philadelphia Eagles.  Get the latest details below.

 

NLRB Limits Inclusion of Overly Broad Non-Disparagement and Confidentiality Clauses in Severance Agreements for Employees

The National Labor Relations Board (NLRB) has issued a decision that restricts the use of non-disparagement and confidentiality clauses in severance agreements, which could have ripple effects for employers nationwide. The NLRB held that employers cannot implement severance agreements that include overly broad non-disparagement or confidentiality provisions that restrict the employees’ exercise of their rights under Section 7 of the National Labor Relations Act (NLRA). The Board reasoned that an employer’s offer of a severance agreement with unlawfully broad provisions is itself an attempt to deter employees from exercising their statutory rights. The ruling applies to workers who have Section 7 rights, regardless of whether they are unionized. The decision overrules the Trump administration’s more employer-friendly standard.  As a result of the decision, employers will potentially need to reexamine their severance agreements with an eye towards compliance with the new NLRA standard.

The case is McLaren Macomb, 372 NLRB No. 58 (2023).

 

Another Enormous Punitive Damages Award in Employment Discrimination Action

In another in a series of recent enormous verdicts across the U.S. in cases of employment discrimination, a Texas federal judge has ordered FedEx to pay $366 million plus interest to ex-salesperson Jennifer Harris, who was allegedly fired for complaining about racial discrimination. The award included $365 million in punitive damages in addition to past and future compensatory damages awarded by a jury in October. In her May 2021 complaint, Harris asserted that she had been a successful sales representative at the company for more than ten years and had flourished in her role. However, she claimed that a manager requested she take a demotion, which she perceived as discriminatory. This request led to what she deemed a fraudulent investigation into her accusations, additional disciplinary action, and ultimately her termination. FedEx had asked for the jury’s decision to be erased, arguing that it had made good-faith efforts to comply with anti-retaliation laws. FedEx has filed a notice of appeal.  The case serves as a powerful reminder of the severe consequences that a company can face if it is found to have acted recklessly in violation of an employee’s civil rights.

The case is Harris v. FedEx, case number 4:21-cv-01651, in the U.S. District Court for the Southern District of Texas.

 

Commonwealth Court holds that Philadelphia Eagles cannot evade disability payments for Former Linebacker 

 

The Philadelphia Eagles have had a tough month.  In addition to their difficult loss in the Super Bowl, the Eagles were unsuccessful in a recent legal challenge regarding disability benefits for a former player.  The team must pay disability benefits to Emmanuel Acho, a former linebacker who broke his thumb in two separate incidents in 2015 and was unable to play at a professional level since, a Pennsylvania appellate court has ruled. The court ordered the team to pay total disability benefits from August through November 2015, and partial benefits from November 2015 through September 2019. The Eagles argued that other teams’ disinterest in Acho was not necessarily due to his injury, but the Commonwealth Court panel found that his success and ranking as a professional player was not meaningfully contested.

The case is Philadelphia Eagles Inc. v. Acho, case number 1060 CD 2021, in the Commonwealth Court 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.

On February 15, 2023, the Pennsylvania Supreme Court issued its decision in Erie Insurance Exchange v. Mione siding with an insurance company against a motorcycle rider after interpreting that a Household Exclusion precluded recovery of Underinsurance Benefits.

Facts of the Case

In 2018, Albert Mione was injured in a collision while operating his motorcycle that was insured by Progressive and did not include Underinsurance Coverage (UIM). UIM coverage is an optional benefit that you can purchase on your own insurance policy that provides extra compensation if you are injured in an accident caused by someone else who does not have enough coverage to pay for all of your damages.

Albert and his wife owned a car that was insured by Erie on a single-vehicle policy with “stacking.” Stacking permits an insured to combine UIM limits from multiple policies.

Mione’s adult daughter lived with them and had her own single vehicle policy with Erie which also included UIM benefits.

Both Erie policies contained identical Household Vehicle Exclusions stating: Coverage does not apply to damages sustained by anyone we protect while occupying or being struck by a motor vehicle owned or leased by you or a relative, but not insured for Uninsured or Underinsured Coverage under this Policy.

Mione recovered full policy limits from the driver responsible for causing the crash and then, because he did not have UIM coverage on his motorcycle policy with Progressive, he made UIM claims under both Erie Car Insurance Policies, his policy and his daughter’s policy.

Erie denied UIM coverage and filed suit against Mione so that the PA courts could interpret the Household Vehicle Exclusion.

What Did Each Side Argue?

Erie asserted that the Household Vehicle Exclusions were unambiguous and clearly precluded recovery. Mione was hurt while riding a motorcycle that he owned and insured with Progressive, not Erie. Accordingly, the Household Vehicle Exclusion precluded coverage from Erie.

Mione’s lawyer argued that Stacking of UIM benefits is something allowed by PA law and that if a stacking waiver is not signed, Stacking is mandatory so an insurance company cannot deny UIM coverage.

Erie countered Mione by stating that since he did not have UIM on his motorcycle policy, nothing was being stacked. Instead, Mione was seeking UIM coverage in the first instance from the Erie policies. So, the mandatory nature of stacking was not a factor in this case.

The Supreme Court Decision

Ultimately, the PA Supreme Court sided with Erie and found that the Household Vehicle Exclusion was enforceable. It held that each case must be analyzed based upon its own facts and that since Mione did not carry UIM benefits on his motorcycle, the mandatory nature of UIM benefits absent a stacking waiver was not implicated.

Further, the Court found that part of the intent behind PA Car Insurance Law was to try to stop spiraling cost of car insurance in Pennsylvania. The Court stated that if Mione’s position was accepted, it would allow an entire family living in a single household to obtain UIM coverage through a single insurance policy which would increase costs. The Court further reasoned that its decision was fair because it held Mione to “his voluntary choice of not purchasing UIM coverage on his Progressive Motorcycle Policy.”

Long Term Impact of the Erie v. Mione Decision

In practical terms, this Decision settles this fact pattern but does not provide comprehensive guidance on the tension between UIM Stacking and insurance policy exclusions. The Court’s Decision specifically states that each of these cases must be decided based upon its own unique facts. So, stay tuned because the Court will continue to decide these cases….

Bonus Advice – Purchase UIM on Your Motorcycle Policy

The result of the Mione case makes it even more important that Motorcycle riders purchase Uninsured/Underinsured coverage on their Motorcycle Policies.

Motorcycle Accidents often result in serious, if not catastrophic, injuries or death for the motorcycle rider.

In addition, it’s a sad fact that many car drivers have no liability insurance or state minimum $15,000 liability policies. If a motorcycle rider is hurt in an accident cause by an Uninsured or Underinsured driver, the only way to make sure that his/her damages will be fully covered is to purchase large amounts of Uninsured/Underinsured coverage. Such coverage allows you to look to your own insurance company for compensation above and beyond the limits of the responsible driver.

Please make sure that you have at least $100,000 of UM/UIM coverage on your motorcycle insurance policy and preferably $250,000, $500,000, $1 Million or more. You and your family deserve to be fully protected!

 

Tim Rayne is a Car, Truck and Motorcycle Accident lawyer who practices with the full-service Pennsylvania and Delaware law firm MacElree Harvey. Contact Tim with any questions or for a Free Consultation regarding your Accident Case at 610-840-0124 or [email protected] or visit his website www.TimRayneLaw.com.

As medical marijuana becomes legal in an increasing number of states, employers are facing new challenges when it comes to managing the use of medical marijuana by employees in safety-sensitive job roles. In Pennsylvania, employers may be particularly impacted by this issue as the state has legalized medical marijuana use. As a lawyer who works with employers in Pennsylvania, I have seen the complexities that can arise when medical marijuana is used by employees in safety-sensitive positions.

Under Pennsylvania law, employers are not required to accommodate medical marijuana use in the workplace. However, employers must be careful when conducting drug tests and when disciplining employees for marijuana use. Significantly, medical marijuana users are protected under the Pennsylvania Medical Marijuana Act (MMA) against discrimination and retaliation by their employers.

The biggest challenge facing employers is how to balance the needs of employees who use medical marijuana with the need to maintain a safe workplace. While medical marijuana may be legal and prescribed by a doctor, it can impair a person’s ability to perform certain job duties. This is particularly true for employees in safety-sensitive job roles, such as those in transportation, healthcare, and law enforcement.

To address this issue, employers should develop policies that balance the rights of employees to use medical marijuana with the need to maintain a safe workplace. Employers should consider implementing drug testing policies that account for medical marijuana use, and they should also provide training to managers and supervisors on how to identify impairment and respond appropriately.  

Employers also should be mindful of their potential obligations to provide reasonable accommodations for employees who use medical marijuana under the Americans with Disabilities Act and state disability laws. This may include allowing employees to use medical marijuana outside of work hours or transferring the employee to a non-safety-sensitive position if one is available. However, employers are not required to make accommodations that would pose an undue hardship on the business or would compromise safety.

Finally, employers should be aware of the specific legal protections afforded to medical marijuana users under the Pennsylvania MMA. Employers should avoid taking adverse employment actions against employees based solely on their status as medical marijuana users. Instead, employers should focus on job performance and take appropriate action if an employee’s use of medical marijuana interferes with their ability to perform their job safely and effectively.

In conclusion, employers in Pennsylvania are facing new challenges when it comes to managing medical marijuana use by employees in safety-sensitive job roles. By developing clear policies, providing training to managers, and making reasonable accommodations, employers can balance the needs of employees with the need to maintain a safe workplace. Employers should to stay up to date on the latest legal developments in this area and to seek legal guidance when necessary.

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.

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.