Articles by Our Attorneys

In July 2022, the EEOC provided a significant update on COVID-19 workplace policy, and America’s two largest retailers fell under scrutiny for their workplace practices, with a Philadelphia-based employee class action against Walmart, and nationwide investigation into Amazon fulfillment centers.  Find out more in the employment law update below.

EEOC Issues Guidance on Mandatory COVID-19 Workplace Testing

In guidance issued earlier this month, the U.S. Equal Employment Opportunity Commission (“EEOC”) indicated that employers will now need to specifically assess pandemic and workplace circumstances in order to justify mandatory COVID-19 testing of employees.  In the absence of this recent guidance, worksite COVID-19 testing was permitted without any specific justification or assessment on the part of the employer.

In short, the EEOC stated that employers must show that COVID-19 testing is job-related and consistent with business necessity, and provided several potential factors to consider when making an assessment, including:

• The current levels of COVID-19 community transmission;
• The vaccination status of employees;
• The degree of breakthrough infections of fully vaccinated employees;
• The transmissibility of current variants;
• The potential severity of illness from current variants;
• The level of contacts employees may have with others during the course of their work;
• The potential impact upon the employer’s operations if an infected employee enters the workplace.

Moving forward, employers should give consideration to (and consider documenting) how these new guidelines will be factored into their workplace COVID-19 policies.

Lawsuit filed against Walmart in Philadelphia alleges violations of the City’s Fair Workweek Law

According to a proposed class action filed in Pennsylvania state court, Walmart workers in Philadelphia claim the company violated the local “Fair Workweek Law” by failing to provide them with work schedules 10 to 14 days in advance or give them “predictability pay” when their schedules were changed within that window.  The lawsuit asserts claims for five different types of violations of the Fair Workweek Law, and noted that each instance of a violation could result in statutory damages ranging from $25 to $1,000 per pay period.

In Philadelphia, the Fair Workweek Law provides predictable scheduling to certain service, hospitality, and retail workers.  It requires “Covered Employers” to:

• post and provide a written 10-day advance notice of work schedules;
• provide predictability pay for all employer initiated changes to the posted schedule;
• allow employees to refuse to work additional hours not included in the posted schedule;
• offer existing employees the right to additional work shifts before hiring new employees; and,
• schedule nine hours of rest between certain shifts unless the employee provides a written consent and payment of $40.

“Covered Employers” under the law are retail, hospitality, or food services establishments that employ 250 or more employees including all full-time, part-time, and temporary workers and have 30 or more locations worldwide. This includes franchises and chains and then temporary employees hired through an agency.

The case is Washington et al. v. Walmart, case number 220701449, in the Court of Common Pleas for Philadelphia, Pennsylvania.

Amazon Warehouses under Investigation by OSHA for Safety Hazards

The Occupational Safety and Health Administration (“OSHA”), in conjunction with New York federal prosecutors, inspected Amazon warehouses this month in New York City, Chicago and Orlando, Florida, after investigators received complaints about the working conditions.  The Southern District of New York’s civil division is investigating the potentially hazardous working conditions at warehouses across the country as well as whether Amazon committed fraud by hiding worker injuries from OSHA.  The investigation follows a slew of serious incidents and allegations relating to workplace safety, including: news that an employee died at one of Amazon’s fulfillment centers in New Jersey during the company’s Prime Day event; a lawsuit concerning another employee being killed in a fulfillment center collapse in Illinois; and a recent report from the National Council for Occupational Safety and Health that included Amazon on a “dirty dozen” list of businesses that have committed “egregious” safety violations that endangered their workers.  Recent efforts to unionize a facility in Alabama failed, where workers claim that the pace of work that the company expects is untenable and dangerous.  Amazon’s commented publicly in response to the investigation that it will cooperate with the investigation and believes the investigation “will ultimately show that these concerns are unfounded.”

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.

Get ready to sort through your digital receipts. Starting with this 2022 tax year, Third-Party Settlement Organizations (TPSOs) such as Venmo, Cash App, and PayPal are required to report payment of commercial transactions that total $600 or more per year to the Internal Revenue Service (IRS), and, therefore, will be sending qualifying users a Form 1099-K.

This new rule is among the 243 pages of The American Rescue Plan Act of 2021, more aptly known as the $1.9 trillion economic stimulus package signed by President Biden into law on March 11, 2021.

Previously, apps like Venmo and Cash App were only required to report to the IRS when a user had both (i) over 200 commercial transactions and (ii) gross payments in excess of $20,000. Under the new rule, TPSOs are now required to report to the IRS payments amounting to more than $600 in total during the course of the year regardless of the number of transactions. Ultimately, anyone whoreceives payment(s) of $600 or more from goods or services this year will receive a Form 1099-K. The end result is that many more Americans will be receiving a Form 1099-K this tax year, many of whom will be receiving one for the first time. Some tax lobbyists estimate the number of Americans receiving a 1099-K this year could be as high as 20 million.

Form 1099-K is simply an informational form, listing both taxable and nontaxable income. All taxable income must be listed on one’s income tax return. Thus, it is essential, now more so than ever, to keep accurate and detailed records of your digital expenses and payments. Consider the following example: Five years ago you bought a coffee table for $200. A few years have passed and you sold it this year for $100; you were paid via Venmo. You receive a 1099-K for this tax year because your aggregate Venmo receipts total over $600. Is that $100 subject to income tax? Without a receipt showing the coffee table’s original $200 sales price and, thus, proof that you sold it for a $100 loss, it very well could be. As you can see, the practical implications are endless.

If all of this sounds unsettling to you, there are two pieces of good news:

(1) The rule only applies to commercial goods or services, not personal charges.

(2) This is not a new tax, but rather a new reporting requirement. The IRS is not taxing users on individual transactions.

The first point above bears repeating. The IRS is not taxing you on your payment of this month’s rent to your roommate or you being paid by your brother for a shared Christmas gift. Those are personal, and this new rule only applies to commercial goods or services. However, this only further necessitates the importance of keeping accurate records. TPSOs will send you a Form 1099-K if you trigger this new $600 threshold without necessarily differentiating which payments are personal and which are commercial. Fortunately, Venmo has a feature that allows users to tag a payment as being for “goods and services”. Although this feature may help users stay organized going forward, do not be surprised if you, like millions of other Americans, receive a Form 1099-K in the mail this year.

Matthew C. Cooper is an attorney at MacElree Harvey specializing in business and corporate law. He counsels businesses of various sizes and industries through all stages of the business life cycle, including representing management and boards of directors by helping them stay compliant with the ever-changing landscape of corporate law. Matthew frequently represents businesses in private financings and mergers and acquisitions, and is a trusted adviser to lenders and borrowers in commercial lending transactions. If you have any corporate or business law needs, please contact Matthew C. Cooper at (610) 840-0279 or [email protected].

Whether it be the price of avocados, gasoline, or housing prices and inflation are going up and causing many Americans to buckle down and create savings wherever they can. Then, as many custodial parents have also encountered, the curve ball comes: another Petition to Modify Custody. So much for saving money, right?

When we hear and read headlines of celebrities getting attorney fees awards in their highly publicized cases, surely a parent, who is only doing what’s right and best for Little Johnny or Janey should have their fees paid by the other side too, right? Wrong.

A discussion I have with many clients, and not just those involved in custody disputes, flows from the question: Will they have to pay my legal fees?

Fortunately, or unfortunately (depending on your perspective) there are limited instances where a party is able to recover legal fees. In the context of Child Custody Litigation, the wise and noble Pennsylvania Legislature saw fit to provide us with statutory authorization to seek fees in child custody actions.

Pursuant to Section 5339 of the Child Custody Act, “a court may award reasonable interim or final counsel fees, costs, and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive, or in bad faith.”

23 Pa.C.S.A. § 5339

So how often does this actually happen? When can a client expect to get counsel fees? It depends on the facts and circumstances of the case. Some matters are clear cut, others are anything but; however, I’ve seen awards in instances of both.

To find out if you would be eligible for counsel fees in your child custody, divorce, or other domestic relations related matter, contact Attorney Michael Rovito today to schedule a consultation.

Decisions from across the country in May 2022 contained some interesting, employer-friendly rulings in developing areas of law, including labor relations via Twitter, COVID-19 ‘disability’, and trans-gender benefits issues.  Check out the details below.

3rd Cir. Reverses National Labor Relations Board, Finds Federalist Boss’ Tweet Was Joke

The U.S. Court of Appeals for the Third Circuit reversed a National Labor Relations Board (“NLRB”) decision finding the publisher of online news magazine The Federalist, Ben Domenech, violated labor law by tweeting that he would send workers “to the salt mine” if they sought to unionize, finding the tweet was a joke, not a threat.  The ruling resolves FDRLST Media’s challenge to the NLRB’s 2020 ruling that the tweet was an “obvious threat” barred by the National Labor Relations Act (the “NLRA”).  Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA, which includes threatening employees with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.

The Third Circuit panel concluded that the NLRB’s threat finding glossed over the context of the tweet, observing it evoked the farcical image of a “tiny media company” of 6 employees toiling “in dimly-lit mineshafts alongside salt deposits.”  Domenech touted the win, writing that he’s “pleased with the outcome, and happy that the humorless trolls and their army of bureaucrats lost.”

California Federal Court rejects Claim by Hertz Employee that Mild COVID Was Disability

Hertz defeated an employment discrimination lawsuit by a former employee who was fired after she came to work feeling sick while waiting for COVID-19 test results, after a California federal judge Monday found that the employee – who contracted a mild case of the virus – can’t be considered disabled under California’s Fair Employment and Housing Act (“FEHA”).

Addressing a question of first impression, the District Court in a 19-page order granted Hertz’s motion for summary judgment, finding that mild COVID-19 symptoms don’t qualify as a disability under the FEHA.  The FEHA defines a ‘disability’ as a condition that affects one or more body systems and limits a major life activity, but does not include a condition that is mild or doesn’t make major life activities more difficult.  In that respect, it contains a similar definition of disability as the Americans with Disabilities Act (“ADA”).  In the Order, the Court wrote: “When it presents with temporary symptoms akin to the common cold or seasonal flu, COVID-19 will fall outside the FEHA definition of ailments considered a disability … Because the symptoms of her infection were mild with little or no residual effects, Roman’s COVID-19 infection is excluded from FEHA’s definition of disability.”

While the case addressed California law, it may provide guidance for similar claims under the ADA and other states’ disability discrimination laws.  The case is Michelle Roman v. Hertz Local Edition Corp. et al., case number 3:20-cv-02462, in the U.S. District Court for the Southern District of California.

Judge Says Christian Cos. Don’t Have To Cover Gender Transition Care

A North Dakota federal judge temporarily barred the U.S. Equal Employment Opportunity Commission and the Department of Health and Human Services from requiring Christian employers and health care providers to cover gender transition surgery.  The court granted the Christian Employers Alliance’s (“CEA”) motion for a preliminary injunction in an order that prevents the EEOC and HHS from requiring the business group’s members to provide health coverage for gender transition services until the court considers the merits of the case.  The CEA sued the government in October, claiming that by requiring trans health coverage, the EEOC and HHS were misinterpreting Title VII and the Affordable Care Act in violation of the Religious Freedom Restoration Act, the First Amendment and the Administrative Procedure Act.

The Court enjoined the EEOC from interpreting or enforcing Title VII of the Civil Rights Act against the CEA in a way that would require the business group’s present or future members to provide insurance coverage for gender transition services. He also enjoined the EEOC from applying or enforcing those regulations against insurers and third-party administrators of CEA members.  The Court also enjoined the HHS from interpreting or enforcing Section 1557 of the ACA and any regulations in a way that would require future or present CEA members to provide, offer, perform, facilitate or refer for gender transition services, and from enforcing any regulations restricting or compelling member speech on gender identity issues.

The CEA joins several other religious groups that have obtained court orders blocking federal agency requirements on trans health care coverage.

The case is Christian Employers Alliance v. U.S. Equal Employment Opportunity Commission et al., case number 1:21-cv-00195, in the U.S. District Court for the District of North Dakota.

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 today’s world, the traditional family structure continues to change and now takes many different forms.  Unfortunately, many grandparents have been faced with becoming the primary custodian of their grandchildren when parents become unavailable to raise their children due to mental health, addiction, abuse, incarceration or other issues. Grandparents are bearing the financial burden of raising their grandchildren in their golden years and while on a fixed income.  However, when a grandparent is caring for or has been awarded custody of their grandchild, they have the right to seek child support from the parents.

Under the Pennsylvania Code, parents have a statutory duty to financially support their children.  Parents are liable for the support of their children who are unemancipated and 18 years of age or younger, and in certain circumstances, may even be liable for the support of their children who are more than 18 years of age.  A grandparent that has custody of a grandchild or is caring for the child, regardless of whether a court order has been issued granting custody, may commence a support action on behalf of the grandchild seeking child support from the parents.

The Pennsylvania Code does not impose a statutory duty on grandparents, as non-parents, to financially support their grandchildren.  However, as the traditional family structure continues to evolve, the Court has been faced with support claims asserted against grandparents having custody.

In 2015, the Pennsylvania Supreme Court determined that a stepparent who aggressively litigated for custody of the biological children of his former spouse, who was a fit mother, and who took affirmative legal steps to assume the same parental rights as a biological parent, would likewise assume parental obligations including the payment of child support.  This Supreme Court decision finding a non-parent’s obligation to pay child support has been relied on to argue a support obligation of a grandparent in cases involving support claims asserted between two grandparents having custody but living in separate households and in cases where the grandparents have actively litigated for custody.

While the Court has struggled with addressing the various fact scenarios presented, the Court has continued to determine that the grandparents in these cases did not to have a duty to financially support the grandchild.  The Court relied primarily on the lack of statutory duty.  The Court also recognized the potential impact of requiring a grandparent who steps in to act as custodian of a grandchild when their parents are unable to properly care for them, and the possible reluctance to take on that role when also required to assume the financial responsibility of child support.  Even in a recent case involving custody litigation between divorcing grandparents, the Court found no duty to support by the grandparent existed because the grandparents had assumed custody from the parents due to their unavailability and no action was taken to terminate the rights of the parents.

If you are involved in a custody or support action, it is important to consult with a family law attorney knowledgeable with the Pennsylvania Code to ensure that you fully understand your rights.

The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations.  Ashley B. Stitzer handles a variety of divorce, custody, alimony/support, marital agreements and other family law matters ranging from mediating small disputes to complex litigation.  To schedule a consultation, contact Ashley B. Stitzer at (610) 840-0243 or [email protected].