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Employment Law Update February 2022

February 28, 2022 by Jeffrey P. Burke, Esq.

February may be the shortest month, but there were still significant employment law developments, including the nomination of a Supreme Court Justice and a landmark lawsuit against the NFL. Read the details below.

President Biden nominates Judge Ketanji Brown Jackson to the U.S. Supreme Court

Confirming what has been rumored since Justice Breyer announced his retirement, federal appeals court Judge Ketanji Brown Jackson was officially nominated to potentially serve as the first African American woman on the U.S. Supreme Court. Below are a pair of employment law decisions that may foreshadow what Justice Jackson’s SCOTUS opinions may look like in the areas of unions and disability discrimination:

In Fed’n of Gov’t Emps., AFL-CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C. 2018), the American Federation of Government Employees (“AFGE”) and numerous other federal employee unions brought challenges to three of President Trump’s executive orders on collective bargaining rights of federal workers. The unions argued that the orders exceeded the president’s powers and conflicted with both federal labor laws and the employees’ constitutional rights. In a lengthy opinion, Jackson ruled for the union challengers. She agreed with them both that she had the power to review their claims and that President Trump’s “directives undermine federal employees’ right to bargain collectively as protected by” federal law. Notably, the D.C. Circuit reversed Jackson’s holding that she had the power to review the union’s claims. The unions, Judge Thomas Griffith reasoned, must first pursue their challenge through an administrative agency process and then, if necessary, in the courts of appeals.
In Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015), Jackson ruled that prison employees and contractors in the District of Columbia had discriminated against William Pierce, a deaf man serving a 2-month sentence for assault, when they failed to take any action to determine what accommodations he would need to communicate with others and “largely ignored his repeated requests for an interpreter.” Jackson found that the plaintiff “easily satisfe[d]” the “deliberate indifference” standard under Title II [applicable to prison officials] . . . where “[t]he District’s employees and contractors knew that [the plaintiff] had a hearing disability, and yet they did not undertake an assessment of the accommodations that [he] might need in order to access prison services”. Instead, the employees and contractors “figuratively shrugged and effectively sat on their hands with respect to this plainly hearing-disabled person in their custody, presumably content to rely on their own uninformed beliefs about how best to handle him and certainly failing to engage in any meaningful assessment of his needs.” A jury later awarded Pierce $70,000 in damages, and the city did not appeal.

Former Miami Dolphins Head Coach Sues NFL alleging Systemic Racial Bias

Earlier this month, former Miami Dolphins Head Coach Brian Flores filed a proposed class action lawsuit seeking to represent African American coaches and general managers passed over the NFL hiring process. Flores had back-to-back winning seasons with the Miami Dolphins before his recent termination this January. Following his termination, Flores was set to interview for an open head coaching position with the New York Giants when he found out through a text message that another Caucasian candidate had already been selected for the role. Flores nevertheless went through the interview process, which he considered a sham and being conducted only for appearances under the NFL’s “Rooney Rule”, which requires teams to interview minority candidates for open head coaching jobs.

The lawsuit highlights the significant labor vs. management paradigm in the NFL between the largely minority players and the largely Caucasian ownership and coaching staffs. Among other things, the suit points out that, despite the fact that the NFL player pool is 70% African American, only 1 NFL team currently employees an African American head coach. Multiple high-profile NFL representatives are identified as potential witnesses, including New England Head Coach Bill Belichick, who sent the text message that alerted Flores to his losing out on the New York position, and Hall of Fame Quarterback-turned-GM John Elway, who was allegedly involved in another sham interview of Flores, allegedly arriving to a Flores job interview an hour late looking “disheveled” and making it “obvious” he and others had been drinking heavily the night before.

Many headlines will likely be forthcoming. The case is Flores v. The National Football League et al., case number 1:22-cv-00871, in the U.S. District Court for the Southern District of New York.

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 Law Update January 2022

January 31, 2022 by Jeffrey P. Burke, Esq.

The New Year started off with a bang with major shake-ups surrounding employer-mandated COVID-19 vaccination policies, and several notable Pennsylvania lawsuits in the employment world:

Supreme Court blocks OSHA Vaccine or Test Rule for Private Businesses, allows Healthcare Mandate

Earlier this month, the U.S. Supreme Court blocked the Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) implementing a vaccine-or-testing rule for private businesses with at least 100 employees. The Supreme Court’s ruling did not technically “kill” the ETS, but meant that OSHA couldn’t enforce the ETS while the 6th U.S. Circuit Court of Appeals considered the merits of lawsuits against the mandate.

Subsequent to the Supreme Court’s ruling, OSHA officially ended the litigation by withdrawing the ETS, effective Jan. 26. However, employers should note that the ETS also acted as a proposal for a permanent standard, which is separate from this litigation. A permanent standard requires the agency to undergo a formal rulemaking process with a notice-and-comment period. OSHA has explicitly stated that this portion of the ETS remains pending: “OSHA is not withdrawing the ETS to the extent that it serves as a proposed rule,” according to the agency’s announcement. To that end, employers are likely to see some sort of regular COVID-19 standard proposed in 2022, though it is safe to say this standard will have some substantial changes from the ETS that was already struck down.

In a separate opinion, the Court permitted the federal Centers for Medicare & Medicaid Services (CMS) to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers. For employers covered by the CMS mandate, workers were supposed to have received their first COVID-19 vaccine dose by Jan. 27, and required to be fully vaccinated by Feb. 28. Additionally, those employers are required to track employees’ vaccination statuses and develop vaccination policies that include medical and religious exemptions and accommodations.

Pennsylvania Superior Court rules Benefits Plan Description Is ‘Contract’

An employer’s short-term disability benefits program for its employees created an enforceable contract under Pennsylvania law, the Pennsylvania Superior Court has ruled. The three-judge panel held that the “summary plan description” that Capital Blue Cross gave an employee laid out the terms and conditions under which the company would pay short-term disability benefits, so the employee could sue the company for breach of contract when she claimed it unfairly terminated those benefits, notwithstanding that the individual’s employment was “at-will”. The employee’s benefits were terminated before the 26-week maximum by an administrator that claimed she was capable of working elsewhere and eventually said she would also be ineligible for long-term disability. The case is Evans v. Capital Blue Cross, case number 410 MDA 2021, in the Superior Court of Pennsylvania.

Pennsylvania Employee files Suit for Discrimination over Medical Marijuana Use

A Mifflintown, Pennsylvania patient under Pennsylvania’s Medical Marijuana Program has filed suit in federal court, alleging he was wrongfully terminated after his status as a medical marijuana cardholder was revealed. The employee was employed for three years as a shift supervisor. He alleges that he was approached by company management “out of the blue” in November 2020 and was asked if he ever used marijuana, allegedly based on information relayed to management by another employee about his participation in the Program. After the employee showed management his medical marijuana card, management abruptly terminated his employment, allegedly citing a blanket policy against medical marijuana usage.

The employee is suing the company under the Americans with Disabilities Act, the Pennsylvania Medical Marijuana Act and Pennsylvania common law. The employee says he was fired due to his disabilities and status as a medical marijuana patient. Notably, the Pennsylvania Medical Marijuana Act expressly prohibits discrimination against an individual based upon their participation in the Program, though the Act does permit employers to impose restrictions around certain dangerous work duties.

The case is Berrier v. Valley Proteins Inc., case number 1:22-cv-00131, in the U.S. District Court for the Middle District of Pennsylvania.

Attorney’s Fees potentially on the table for Pennsylvania Teachers Challenging Union “fair Share Fees”

A Lancaster County Court must determine whether two nonunion teachers challenging the collection of “fair share fees” were prevailing parties and entitled to attorney fees after the 2018 U.S. Supreme Court ruling in Janus v. AFSCME, which held that fair share fees are unconstitutional. The teachers filed suit in 2014, challenging the constitutionality of Pennsylvania’s Fair Share Law, however the case remained in limbo while Janus was being decided. The Lancaster lawsuit was previously dismissed as moot, however a Pennsylvania appellate court has now ruled that the matter was not completely moot because the plaintiffs had also sought to make the unions pay the teachers’ legal bills, and this claim constituted a “live controversy”. The case is Ladley et al. v. PSEA, case number 158 CD 2019, in the Commonwealth Court of Pennsylvania.

How Is My Retirement Account Dealt With In Divorce In PA?

January 26, 2022 by Peter J. Moak, Esq.

In many divorces, the two big assets are retirement accounts and the house. Part or all of your retirement account may be part of the marital estate. If it is split unfairly, there may be tax consequences to you or your ex-spouse on the amount split.

Most retirement accounts fall into two categories: a defined benefit pension and a contribution based retirement account. A defined benefit pension is an amount of money you will get per month during your retirement for the rest of your life, it is usually based on salary, and number of years you have worked for your employer or union. A contribution based retirement account is an amount based on the amount you or your employer has contributed, a 401(k) or an IRA would be considered a contribution based pension.

Additionally, another factor to consider is when the retirement plan was funded. If it was funded during the marriage, the entire account would be considered marital property up until the date of separation. If it is was funded prior to the marriage, and lasts through the marriage, the contributions during the marriage, and the interest on the amount prior to the marriage, could be considered marital property. A retirement plan you have inherited, if it is never comingled with other marital accounts, is usually considered non-marital separate property.

In most cases, a Qualified Domestic Relations Order or QDRO, is usually the best way to divide marital retirement accounts. A QDRO is usually prepared by an attorney who specializes in retirement accounts. The QDRO needs to be preapproved by the pension’s plan administrator. Once approved, a QDRO is signed by a judge and sent back to your plan administrator. The plan administrator will then divide the account in regard to the QDRO. Some accounts, like an IRA, can be divided without a QDRO, but you have to be careful or there may be tax consequences.

If done properly, retirement accounts can be divided without immediate tax consequences. The tax consequences if not done correct can be significant.

Why Did the US Supreme Court Strike the OSHA Vaccine Mandate?

January 15, 2022 by Timothy F. Rayne, Esq.

Why did the US Supreme Court strike down President Biden’s attempt to enact a Vaccine Mandate to combat the spread of COVID-19 throughout the Nation’s workplaces?

A review of the Vaccine Mandate Opinions from the “Conservative” Majority and “Liberal” Minority highlights the divide in the Supreme Court (and perhaps the Nation as a whole) of how a critical public health and legal issue can be viewed in two starkly different ways.

Below is a brief explanation of the Vaccine Mandate in question, the Supreme Court Ruling which is based upon differing interpretations of the Separation of Powers Doctrine, and some soundbites from the Court Opinions.

The Vaccine Mandate

The Secretary of Labor in the Biden Administration, acting through the Occupational Safety and Health Administration (OSHA), recently enacted a Vaccine Mandate directing that all employers with at least 100 employees require that all employees be vaccinated for COVID-19 or obtain a weekly test and wear a mask. This emergency action was part of President Biden’s plan to increase the US vaccination rate to combat the spread of the pandemic. The goal was to impose vaccine requirements on about 100 Million Americans, two thirds of all workers. There were limited exceptions for employees who worked exclusively remotely or outdoors.

Under the Vaccine Mandate, covered employers had to develop policies and procedures to implement the Mandate and to remove unvaccinated employees from the workplace. Employers faced hefty fines for non-compliance.

The Biden Administration estimated that the Vaccine Mandate would save 6,500 lives and prevent over 250,000 hospitalizations in six months.

The Legal Battle

Many State, businesses, and nonprofit organizations challenged OSHA’s Vaccine Mandate in Courts of appeals arguing that it exceeded OSHA’s legal authority and was unconstitutional as a violation of the Separation of Powers Doctrine which limits the power of the Federal Government and its agencies.

One federal court, The Fifth Circuit, entered a stay of the Mandate, but then another Court, The Sixth Circuit, lifted the stay which would have allowed the Mandate to be implemented by OSHA. The lifting of the stay was appealed to the US Supreme Court.

Emergency Relief was sought, asking the US Supreme Court to immediately stop OSHA from enforcing the Mandate, arguing that it exceeded OSHA’s statutory authority and was an unlawful violation of the Separation of Powers Doctrine.

The US Supreme Court ultimately decided that the Vaccine Mandate was unlawful and the Court has prohibited OSHA from moving forward with enforcing it.

Here is a Link to the Supreme Court Opinions.

Soundbites from the Supreme Court Opinion on the Vaccine Mandate

Below are some passages from the opposing Opinions that I found interesting:

Quotes From the Conservative Majority

The Act empowers the Secretary to set workplace safety standards, not broad health measures.

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.

We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

The central question we face today is: Who decides? No one doubts that the COVID-19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combatting the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to the state and local governments across the country and the people’s elected representatives in Congress. This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear. Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question of who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide by them only in more tranquil conditions, declarations of emergencies would never end and the liberties of our Constitution’s separation of powers seeks to preserve would amount to little.

Quotes From the Liberal Minority

Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed. The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various policies will mitigate those risks, and the cost those policies will entail. It has landed on an approach that encourages vaccination, but allows employers to use masking and testing instead. It has meticulously explained why it has reached its conclusions. And in doing all this, it has acted within the four corners of its statutory authorization – or actually here, its statutory mandate. OSHA, that is, has responded in a way necessary to alleviate the “grave danger” that workplace exposure to the “new hazard” of COVID-19 poses to employees across the Nation. The agency’s Standard is informed by a half century of experience and expertise in handling workplace health and safety issues. The Standard also has the virtue of political accountability for OSHA is responsible to the President, and the President is responsible to – and can be held to account by – the American people.

And then, there is this Court. Its Members are elected by, and accountable to, no one. And we “lack of a background competence and expertise to assess” workplace health and safety issues. When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgment of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.

Tim Rayne is a Personal Injury Lawyer with the Chester County Pennsylvania law firm, MacElree Harvey, Ltd. For over 25 years, Tim has been helping accident victims understand their legal rights and receive fair compensation from insurance companies. Tim has law offices in Kennett Square and West Chester Pennsylvania. You can contact Tim at 610-840-0124 or [email protected] or check out his website at TimRayneLaw.com.

Is My Spouse Entitled To A Piece of My Inheritance If We Divorce?

January 10, 2022 by Brian J. Forgue, Esq.

By: Brian J. Forgue, Esquire

One of the most common questions I am asked by a spouse in the midst of a divorce is whether spouses are entitled to receive any portion of money or property that the other spouse inherits individually. The short answer is: it depends.

The general rule in Pennsylvania is that inheritances are the separate property of the spouse that received them and are not subject to equitable distribution in divorce. Of course, there are certain exceptions to this rule based on the factual circumstances of each case. For example, one main exception is if the inheriting spouse takes a monetary inheritance and deposits that money into a joint bank account titled with their spouse. In this instance, the inherited money may be considered commingled, therefore becoming marital property, which is subject to be divided in equitable distribution. Similarly, if a spouse inherits something other than money, like a plot of real estate or a house, and the inheriting spouse adds the non-inheriting spouse to the title as a joint owner, then the property would be considered a marital asset and subject to equitable distribution.

It is important to note that while the initial inheritance of a spouse is considered separate property, any increase in value in that inheritance during the course of the parties’ marriage is considered marital property subject to division. For example, if Spouse A inherits $100,000 from a parent’s will and during the course of the parties’ marriage, that $100,000 inheritance increases in value to $150,000 at the time Spouse A and Spouse B separate, the $50,000 increase during the parties’ marriage is considered marital property subject to equitable distribution, assuming Spouse A did not commingle the inheritance funds into any joint account during the marriage. But, the original $100,000 inherited by Spouse A before the marriage remains the separate property of Spouse A. This example applies similarly to inherited personal and real property as well.

The best way to keep inheritances separate property is to physically keep any monetary inheritance in a separate bank account away from any joint accounts you may have with your spouse and be sure not to deposit or commingle marital funds into the account containing the inherited funds. In the case of inherited personal or real property, be sure to keep these items titled individually in your name alone or your spouse may have a claim that such items are marital property as opposed to separate property.

If you have questions or concerns about inheritances and your divorce, call Brian directly at 610-840-0221 or via email at [email protected].

What To Expect At Your Defense Medical Exam?

January 4, 2022 by Tiffany M. Shrenk, Esq.

Often during the course of your personal injury case, you will be scheduled to meet with a doctor chosen or designated by the defense attorney. This event is referred to as a “Defense Medical Exam” or an “Independent Medical Exam.” This is the opportunity of the defense to have you examined by a doctor who will act as the defense medical expert and provide his/her own opinions concerning injuries you suffered in the accident and the course of treatment that you have undergone.

Here are some helpful tips to consider prior to attending your Defense Medical Exam:

The Doctor is Not Neutral. Although these examinations are often referred to as an “Independent Medical Examination”, you should view the doctor as the defense team’s hired expert. The doctor is hired and paid by the defense, and there are many doctors who make a substantial living off of acting as defense experts and performing these examinations rather than treating patients. More often than not, the defense doctor will provide an opinion favorable to the party who has hired him/her so you should not expect that the doctor will be a completely neutral actor.
The Doctor is Not Going to Provide Treatment. The role of the defense doctor is to interview you, examine you, review your records and provide an opinion. The defense doctor is not going to prescribe for you or provide you with a plan of care. The purpose of the examination is for litigation purposes only; it is not to provide you with additional treatment.
Format of the Exam. The portions of your appointment with the defense doctor will be an interview and a physical examination. The defense doctor will also review your medical records, but he/she will complete the review of records either before or after the appointment. For the interview portion of the examination, you will be expected to discuss with the doctor how the accident occurred, your medical treatment, your symptoms, your restrictions, and any prior or subsequent injuries you have suffered.
How to Prepare For the Exam. There is no preparation necessary for the examination, but it is a good idea to review your medical diagnoses, summary of medical treatment, and be comfortable explaining how the accident occurred and history of your injuries and treatment. Your job during the examination is to be honest and provide a truthful responses. You should be able to be descriptive of your injuries and symptoms, but not over exaggerate.
No Visitors Allowed. While in other neighboring jurisdictions, plaintiffs can bring a chaperone or be accompanied by their attorney’s paralegal to the appointment, Delaware does not allow you to bring a chaperone or support person into the examination room with you. In rare situations where the plaintiff is a minor or suffers from a disability, the court would allow a parent or support person, but as a general rule of thumb, for Delaware cases a chaperone cannot go into the examination with the plaintiff.

Keep in mind, even if you receive an unfavorable report from the defense medical expert, your attorney can have your own medical expert review and rebut the defense medical expert’s opinions. So while it may seem like the cards are stacked against you, you will have your own medical expert to support your injury claim at trial who will most likely be a treating physician who is much more familiar with you, your treatment, and your medical history.

Tiffany is a partner at MacElree Harvey, a full-service law firm serving Delaware and Pennsylvania. Licensed to practice law in Delaware and Pennsylvania, Tiffany represents clients in personal injury cases, trust and estate litigation, adult guardianships, and real estate litigation. She joined MacElree Harvey in the summer of 2016 and spends her time in the Centreville, Delaware office and the Kennett Square office. Contact Tiffany at (302) 654-4454 or [email protected] to discuss your car accident or other civil litigation matter.

Employment Law Update February 2022

Employment Law Update January 2022

How Is My Retirement Account Dealt With In Divorce In PA?

Why Did the US Supreme Court Strike the OSHA Vaccine Mandate?