Articles by Our Attorneys

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

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

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

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

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

October 2022 brought some notable developments in the employment law world, including large discrimination / retaliation verdicts for employees nationally and in Pennsylvania, and a notable Appeals Court ruling that could have widespread impacts for remote workers.  Further details are below.

Fed-Ex hit with $366M Retaliation Verdict 

An African-American former salesperson for FedEx was awarded more than $366 million in damages after a Texas federal jury concluded that FedEx disciplined and eventually fired her for complaining that she was being discriminated against because of her race.  Notably, the jury awarded the worker $365 million in punitive damages in the face of (only) $120,000 for past pain and suffering and $1.04 million for future mental anguish.

FedEx defended it’s the case by asserting that the actions taken by the company were due to performance issues.  However, according to the complaint the worker was a rising star in the company who had received several awards and promotions because of her performance.  In March, 2019, she was allegedly asked to take a demotion by her manager, which the worker reported to human resources.  The worker alleged that the company failed to properly investigate her complaint, which led her receiving discipline and disrupting her commission structure.  The worker further alleged that she reported the manager again for discrimination and retaliation in August, 2019, however FedEx failed to perform a meaningful investigation, and the worker was eventually terminated in January, 2020 based on the track laid by the manager.

FedEx said in a statement that the company plans to appeal the verdict.  Regardless, the verdict serves as a reminder of the severe consequences that can arise out of equal opportunity complaints, and the need by employers to fully and effectively investigate them.

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

Western Pennsylvania Jury Awards County Jail Guard $1.2M for Novel “Associational Discrimination” Claim

A former guard at the Allegheny County Jail was awarded $1.2 million dollars in damages in the U.S. District Court for the Western District of Pennsylvania after he claimed that he was wrongly fired for filing a workplace complaint about a supervisor who made offensive comments about his biracial niece.  Notably, the case had been previously dismissed at the trial level, before the Third Circuit Court of Appeals reversed and held for the first time that “associational discrimination,” or acting with prejudice toward someone because they associate with someone of a different race, could form the basis for a legal claim under Title VII of the Civil Rights Act.

The employee, who is white, alleged that a supervisor had called his biracial grandniece an offensive, racially charged name, and also had texted the employee pictures with racist depictions of African and Asian-American people captioned with the names of other jail employees. After the employee escalated his complaint, the supervisor was eventually placed on paid administrative leave during an investigation, and then retired.  The employee allegedly was then subjected to retaliation from other administrators and employees allied with supervisor, and he was terminated seven months after making his report. 

The case is Kengerski v. Allegheny County, case number 2:17-cv-01048.

Federal Appeals Court Rules that Time Spent by Employees Booting up Computers is Compensable under Federal Law

The Ninth Circuit Court of Appeals ruled this month that the time spent by a group of call center workers booting up their computers is intertwined with their work and therefore compensable under the Fair Labor Standards Act. “The employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” a panel opinion stated.  The opinion reversed a lower court ruling granting summary judgment to the employer, which held that the tasks the workers completed before and after they logged out of the company’s timekeeping system weren’t compensable because they weren’t connected to their jobs. Though the lower court was reversed, the appeals court clarified in a footnote that its ruling focused on the pre-shift activities, stating that turning the computers off would not be an integral part of the workers’ jobs (and presumably not compensable).

The Ninth Circuit encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington State.  Nonetheless, the holding can serve as a reminder to employers nationwide to carefully consider whether they are properly paying their employees for “compensable” time, especially remote and other computer-based workers.

The case is Cariene Cadena et al. v. Customer Connexx LLC et al., case number 21-16522, in the U.S. Court of Appeals for the Ninth Circuit.

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.

Employment lawsuits have been as active as ever in September 2022.  Among them are interesting cases affecting a prominent ride-sharing company, the U.S. military, and the government agency in charge of investigating discrimination claims in the Commonwealth of Pennsylvania.  My analysis and insights are below.

Ride-hailing Giant Lyft Facing Flood of Lawsuits Over Sexual, Physical Assaults

Lyft Inc. was on the receiving end of 13 lawsuits filed in California state court this month alleging that the company’s systemic failure to conduct thorough background checks and screenings exposed both drivers and passengers to sexual and physical assaults.  The plaintiffs’ legal counsel have revealed that they also filed arbitration demands on behalf of other assault victims, and therefore the full number of claims against Lyft is unclear.

In the lawsuits, eleven passengers and two drivers, all female, from eleven states filed separate actions in San Francisco Superior Court asserting negligence, vicarious liability, misrepresentation and other claims against Lyft. The passengers claim that Lyft has been aware of a sexual predator crisis among its drivers for years but failed to take adequate measures to conduct background checks and monitor its drivers.  The claims by the drivers similarly allege failures on the part of Lyft to ensure the safety of drivers from predatory passengers.  The lawsuits describe disturbing acts of unwanted solicitations, groping and sexual assault.

Lyft released its first-ever Community Safety Report in October 2021, which stated that during the three-year period from 2017 to 2019, Lyft received reports of 4,158 sexual assaults, ranging from nonconsensual touching or kissing to rape.  Lyft nevertheless asserts that from 2017 to 2019, over 99% of trips occurred without any reported safety incident, with the safety incidents referenced in the report accounted for just 0.0002% of all trips.  The company also defended its driver screening procedures, saying it requires an initial and annual background checks, and continuous criminal and driving record monitoring, among other things. Lyft said it developed in-app safety features that allow riders and drivers to share their location with family and friends, connect directly with Lyft Support, and quickly and easily access emergency assistance from the Lyft app.  

​​​​​​​Sikhs Denied Bid To Start Marine Corps Training With Uncut Hair and Beards

A federal judge has refused to allow three Sikhs prospective recruits to start basic training with uncut hair and beards pending an appeal over related U.S. Marine Corps policy, saying doing so could negatively affect the Marines’ “national security mission.”

The three plaintiffs had filed suit in April, saying the Marine Corps had wrongly refused to accommodate their requests to keep their hair and beards, and carry other articles of faith. According to the complaint, maintaining uncut hair, including uncut facial hair, is an essential part of the Sikh religion.  During basic training, the Marine Corps requires recruits to comply with uniform grooming standards including shaved heads and beards, which it asserts is necessary to ensure that Marines are prepared to think as a team before thinking as individual and to serve in extreme environments.  The plaintiffs noted in their arguments for the injunction that the Marine Corps already allows certain recruits to maintain beards for medical reasons and female recruits not to shave their heads.

The court concluded that the public interest and balance of equities had weighed in favor of the Marine Corps at the preliminary stage of the case.  The plaintiffs subsequently said they would appeal the denial of their injunction.

Jury Clears Pa. Human Relations Commission In Staff Atty’s Retaliation Suit

The state agency charged with policing discrimination in the workplace, the Pennsylvania Human Relations Commission (“PHRC”), has been cleared of allegations of unlawful retaliation brought by African American former employee.  In a somewhat ironic series of events, the PHRC had entered into a settlement agreement in the employee’s earlier discrimination lawsuit in 2017 in which the PHRC was supposed to, among other things, create a diversity committee.  Following the settlement, the employee claimed that the agency was not following through its obligations.  In the same timeframe, the employee, a former staff attorney, was terminated from employment, and the employee brought a second lawsuit alleging unlawful retaliation for his complaints about the agency’s alleged failure to follow the settlement.  The agency defended by asserting that it let the employee go because he sent an email from his work account containing sexually suggestive material and forwarded confidential work documents to his personal email.

A jury in the Middle District of Pennsylvania found the PHRC’s arguments more persuasive and ruled in favor of the PHRC.  The case is Cooper v. Pennsylvania Human Relations Commission, case number 1:19-cv-02230, in the U.S. District Court for the Middle 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.