Articles by Our Attorneys

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.

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.