Attorney-Expert Witness Correspondence Gets Another Look

In September, I wrote about a Pennsylvania Superior Court decision holding that correspondence between an attorney and an expert witness who the attorney intends to call at trial is discoverable. Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 2010 PA Super 170 (Sep. 16, 2010). That case was huge news for all PA litigators. Well, kiss that decision goodbye... for now.

Shortly before Thanksgiving, the Superior Court entered an Order Granting Application for Reconsideration/Reargument ordering:

THAT the application for en banc reargument filed September 27, 2010 is GRANTED;

THAT the decision of this Court filed September 16, 2010, is hereby withdrawn;

THAT the case be listed before the next available en banc panel; and

THAT the parties shall file twenty two (22) additional copies of all briefs and twelve (12) reproduced records in accordance with Pa.R.A.P. 2140. Each party shall, within the time period specified, either refile the brief previously filed together with a supplemental brief if desired, or prepare and file a substituted brief.

This is big news in Pennsylvania, as we eagerly await the outcome.

UPDATE: My McQuaide Blasko colleague, Jon Stepanian, also covered this topic, on Defense of Medicine.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

ABA Releases 2010 Blawg 100

It's that time of year again! The ABA just released its annual Blawg 100 for 2010. As usual, it's a great list of fun, informative, and just plain good law blogs. Also, as usual, there was one glaring omission... Lawffice Space! Oh well, maybe next year.

There is good news though... the latest Blawg 100 shows my immense impact on the selection process. For example, the ABA accepted "amicus briefs," recommending blawgs for the list. I submitted only one, and that one was on behalf of Jon Hyman for the Ohio Employer's Law Blog. Sure enough, he made the list for (I think) the first time! Why? Because he has a great employment law blog Because I recommended him no doubt.

Also, last year I took a moment to recognize the employment law blogs on the list. This year, the ABA included a separate "In Labor" category recognizing the top employment law blogs on the list. Coincedence? Definitely I think not.

Finally, the list includes Josh Blackman's Blog. And why is that? Because of his hugely popular FantasySCOTUS league and frequent con law updates he went to George Mason Law School with me, of course!

In all seriousness, congratulations to everyone on the list. I recognize a lot of the employment law bloggers from Twitter, so in the hopes of making this post actually useful in some way, here they are:

• Connecticut Employment Law Blog's Daniel Schwartz is @danielschwartz
• Jon Hyman is @jonhyman
• Delaware Employment Law Blog has multiple authors including Molly DiBianca as @MollyDiBi
• Work Matters' Mike Maslanka is @worklawyer

Lastly, a nod to the That's What She Said blog. Although it's listed in the Blawg 100 "For Fun" category (because it's hilarious), it also provides seriously useful info on employment law (Published on HR Hero which is on Twitter @HRHero).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Special Thanksgiving Case of the Week - COTW #17

With the holiday this week, I'm releasing the Case of the Week for Wednesday email distribution. The holiday to which I am referring is, of course, Thanksgiving. This week's COTW is a little different from the usual employment law fare. It is a Supreme Court case from 1992, Lee v. Weisman, 505 U.S. 577, holding (per the syllabus) that: "Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause." What the heck does this have to do with Thanksgiving?

Well, Justice Scalia penned a blistering dissent (does he author any other kind?) in which he reminded the majority that:

The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions . . . but since the Court is so oblivious to our history as to suggest that the Constitution restricts "preservation and transmission of religious beliefs ... to the private sphere," it appears necessary to provide another brief account.

Subtlety has never been one of Justice Scalia's strengths! He went on to provide some of that history and tradition:

Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch:

"The day after the First Amendment was proposed, Congress urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.’ President Washington proclaimed November 26, 1789, a day of thanksgiving to ‘offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions....' "

This tradition of Thanksgiving Proclamations - with their religious theme of prayerful gratitude to God - has been adhered to by almost every President.

Indeed, George Washington's 1789 Thanksgiving Day Proclamation is replete with religious references to Almighty God, "that great and glorious Being," and the "great Lord and Ruler of Nations," but also praised the blessings of "civil and religious liberty." And courts to this day struggle to draw lines preserving the rights of individuals to thank God (or not), and prohibit the government establishment of religion.

For a brief history of Thanksgiving and how some of our other presidents marked and contributed to our modern Thanksgiving traditions, please read last year's Lawffice Space post, Thanksgiving as a Federal Holiday. Thank you for reading and regardless of how you celebrate the holiday, have a happy Thanksgiving!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Lancaster County Added to Pennsylvania Courthouses Photo Album

I attended a CLE (Continuing Legal Education) in Lancaster, PA on Wednesday. It just so happened to be right around the corner from the Lancaster County Court of Common Pleas so I grabbed some photographs for the Pennsylvania Courthouses Photo Album.

The Lancaster County Courthouse is really a tale of two courthouses. There's a beautiful old section that's a classic Pennsylvania courthouse. And then there's the new section which... how to put this nicely... is a great example of 1970s architectural style. One of the pictures shows the exact point at which old meets new. Whether you prefer classic, or 1970s, one thing is for certain: the courthouse is HUGE! The Court's website currently lists 14 judges so I guess they need the space.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Facebook "Fishing Expedition" - COTW #16

Courts have generally been receptive to discovery requests pertaining to a party's social media accounts. For example, in my recent article on eDiscovery, I cite EEOC v. Simply Storage Management. In that case, the Court ordered a party to produce:

[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications [from 2007 to the present] that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.

That's not unlimited access... but close!

This week's case of the week comes from a New York Appeals court. In McCann v. Harleysville Ins. Co. of New York, 10-00612, 2010 WL 4540599 (N.Y. App. Div. Nov. 12, 2010), the Defendant sought a motion to "compel plaintiff to produce photographs and an authorization for plaintiff's Facebook account information."

The motion was initially denied by the trial court. The appellate court agreed, concluding that:

[D]efendant essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence.

It wasn't a total loss for the defendant though. The appeals court reversed the trial court's entry of a protective order on the account, holding "the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff's Facebook account at a future date." So maybe defendant will get at that Facebook account after all, just not today.

Discovery issues are notoriously tricky and often the source of conflict amongst litigants. It should come as no surprise that when you mix in a new element of uncertainty, social media issues, the results may vary from court to court. Courts have broad discretion in applying vague rules and there is little precedent on things like Facebook discovery requests. The law surrounding these issues is just starting to develop so stay tuned!

HT: CJMcKinney via Twitter who tipped me off to Evan Brown's post on Internet Cases.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Entity Formation - Limiting Liability in Pennsylvania

By Sean Burke

Entity formation looks much like alphabet soup: LLCs, S Corps, LPs, LLPs… The appropriate entity for a particular business depends on many factors, like capital structure, control, taxes, liability, and flexibility. During a recent meeting I was asked whether, under Pennsylvania law, there were significant differences between the liability protection afforded by LLPs versus LLCs. As is typical with questions posed to lawyers, the answer is a “yes… but” or a “no… unless.” I’ll explain.

First, let's make sure we're using the same terms. An LLC is a limited liability company. It files a certificate of organization with the Department of State. Its owners are called members. So long as the company is properly capitalized and maintained, each member’s liability for the company’s debts is “limited.” That means that each member is only liable for the company’s debts to the extent of his or her investment.

Sean Burke, McQuaide Blasko

An LLP is a limited liability partnership. Under Pennsylvania law, an LLP is a general partnership that has filed an election with the Department of State to have its general partners treated as limited partners for purposes of liability. In other words, for purposes of control/authority, the partners are general partners. But for purposes of liability, the partners are limited partners. This entity is most often used by professionals, e.g. doctors, lawyers, and accountants, who want to be "in control" but don't want to be liable for the malpractice of their partners.

By contrast, an LP is a limited partnership, and it files a certificate of limited partnership with the Department of State. It names at least one general partner. It can have an indefinite number of limited partners. The general partner controls the partnership, and he/she/it is unlimitedly liable for the partnership's debts. The limited partners enjoy limited liability, but have no authority to bind the partnership. Often the LP's general partners is an LLC that is owned by the limited partners too. That way even the general partner's liability is limited.

But it's even more complex than that! Because an LP can also file the election with the Department of State to have its general partners treated as limited partners for purposes of liability. This is known as a limited liability limited partnership, or an LLLP.

But getting back to the initial question: So long as a general partnership makes the appropriate election with the Department of State and continues to file the annual registration thereof, then it will be an LLP and will enjoy the same liability and asset protection as an LLC.

As I mentioned earlier, liability is only one of the factors to consider in selecting an entity for your business. Because in the end the liability protections among the entities are similar, it is often the other factors, e.g. taxes, capital structure, and flexibility, that will most-often tip the scales in favor of one entity or another. You should consult your planner or advisor before forming an entity, because this isn’t legal advice. Don’t rely on it, as it’s intended for informational purposes only.

Sean Burke practices business and estate planning and administration in the Blair County office of McQuaide Blasko. He can be reached at (814) 283-2000 or smburke@mqblaw.com.

E-Discovery: Golden Opportunity for New Attorneys

We'll be back with another guest post from Sean Burke later this week (for his first guest entry, see 401(k) and IRA Protection from Judgment Creditors). For now, I wanted to pass along my latest article: E-Discovery: Golden Opportunity for New Attorneys. It appears in the new issue of At Issue, the Pennsylvania Bar Association Young Lawyers Division's quarterly publication.

The article contains substantive content on the Federal Rules of Civil Procedure, emerging case law in the field, and new technologies (from social networking to smart phones). All of this is wrapped in a layer of advocacy on behalf of the proposition that new attorneys are positioned to make an immediate impact on litigation teams in the field of electronic discovery.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

401(k) and IRA Protection from Judgment Creditors

By Sean Burke

Recently I was asked about the protection of 401(k) and IRA assets from judgment creditors outside of bankruptcy. Pennsylvania law largely protects these retirement assets.  Investing in retirement plans is often a great way for employees to protect their assets. But that protection isn’t absolute. Nevertheless, in terms of asset protection strategies, funding your retirement ranks among titling assets jointly with your spouse and timely paying your insurance premiums.

Sean Burke, McQuaide Blasko

Under 42 Pa.C.S. Section 8124(b)(1)(ix), any retirement or annuity fund provided for under, among others, section 401(a) or 408 of the Internal Revenue Code, is exempt from execution or attachment on a judgment. That includes 401(k) and IRA assets. There are three exceptions: (1) The exemption doesn't apply to amounts contributed in excess of $15,000 in any one year period. (2) The exemption doesn’t apply to amounts contributed within one year of bankruptcy. (3) The exemption doesn’t apply to amounts contributed in an attempt to defraud creditors. Those exceptions don’t apply to contributions resulting from the rolling over of an otherwise exempt asset. In other words, rolling over $100,000 from your 401(k) into your IRA won’t disturb the asset’s exemption.

Your 401(k) and IRA assets are generally exempt from your creditors. To an extent, those assets are better protected than your home. But this article isn’t legal advice. So you shouldn’t rely on it. Instead you should consult with an experienced planner or advisor.

Sean Burke practices business and estate planning and administration in the Blair County office of McQuaide Blasko. He can be reached at (814) 283-2000 or smburke@mqblaw.com.

Announcing Guest Blogger: Sean Burke

I am excited to announce that my McQuaide Blasko colleague, Sean Burke, will contribute a few posts to Lawffice Space this week! Sean's posts will not cover conventional employment law issues. Instead, he will address asset protection for employees and liability protection for employers.

Sean's first entry will hit Lawffice Space Monday afternoon. For now, here's his bio:

Born and raised in Hollidaysburg, Pa., Sean Burke graduated with honors from St. Vincent College and Washington University School of Law. He practices business and estate planning and administration; commercial and secured transactions; civil litigation; and municipal and land use law. Sean enjoys community service and endurance sports. He's president of the Hollidaysburg Rotary and vice president of the Jeremiah S. Black Inn of Court. Sean also serves on the board of Rails to Trails of Central Pennsylvania. He's a 2009 alum of Leadership Blair County. In 2009, the Altoona Mirror named Sean in its "Twenty Under Forty." In July 2010, Sean completed his first Ironman, completing the 2.4 mile swim, 112 mile bike, and 26.2 mile run in just under fifteen hours.

Is Facebook a Protected Activity? - COTW #15

The NLRB recently issued a Complaint and Notice of Hearing in which an employer stands accused of engaging in unfair labor practices. The Complaint avers that the employee was terminated for "engag[ing] in concerted activities with other employees by criticizing [her] supervisor . . . on her Facebook page." The Complaint alleges that this is a violation of the employee's Section 7 rights under the National Labor Relations Act (NLRA). Section 7 protects employees' right to engage in concerted activities for mutual aid or protection amongst other statutorily defined rights.  If Facebook posts constitute protected activity, this could be huge news for employers and employees alike.

According to CNN, the employee wrote "unflattering and sometimes vulgar terms" about her supervisor, and once wrote, "how the company allows a 17 to be a supervisor." Apparently, 17 is the employer's jargon for psychiatric patients.

The Complaint alleges that the employee violated workplace rules. Specifically, the "Blogging and Internet Posting Policy" which prohibits "making disparaging, discriminatory, or defamatory comments" about superiors and co-workers; and the "Standards of Conduct" which prohibit "Rude or discourteous behavior to a . . . coworker." I'll note that these are common provisions in employee handbooks.

The employer maintains that the Facebook posts are not protected activity. Additionally, the employer claims the case is not even about Facebook and that the employee in question was terminated for "multiple, serious complaints about her behavior," and rude behavior toward patients. 

This case has huge implications for employees' social networking activities and employers' policies. I'll definitely keep an eye on this issue.

As this is a big story, there's tons of coverage out there. Just a few links you may find interesting:

• Dan Schwartz - NLRB Alleges that Connecticut Company Illegally Fired Employee Over Comments on Facebook
• Jon Hyman - Does Your Social Networking Policy Violate Federal Labor Laws?
• Jenna Greene - NLRB Sues Company for Firing Worker Over Facebook Post

Also, check out this video from CNN (email subscribers, if video does not appear then click here to view online):



Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Happy Veteran's Day!

By Sharon R. Miles
Originally published November 11, 2009

Today, November 11, 2010, commemorates the celebration of Veterans Day, the annual, federal holiday honoring all veterans who have served in the U.S. armed forces… and currently a trending topic on Twitter! Veterans Day is typically observed on November 11. However, if November 11 falls on a Sunday, the federal government designates the following Monday for holiday leave. If November 11 falls on a Saturday, then either Saturday or Friday may be designated for employee leave.

Veterans Day takes its roots in the signing of the armistice treaty, signifying the end of World War I. The armistice treaty was signed between the Allies and Germany in 1918, at the eleventh hour of the eleventh day of the eleventh month. President Woodrow Wilson declared an Armistice Day for the following year, November 11, 1919 and in 1938, Congress passed an Act (52 Stat. 351; 5 U.S. Code, Sec. 87a), proclaiming November 11 of each year a federal holiday, "a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as 'Armistice Day'."

Fifteen years later, inspired by his work with American War Dads during WWII, Al King, a shoe store owner from Emporia, Kansas, actively started a campaign to evolve the holiday into a day commemorating all veterans, not only those who served in WWI. As a result, a bill was pushed through Congress and signed into law by President Dwight Eisenhower in May of 1954, and in November of that same year, Congress amended the act to replace “Armistice” with "Veterans." Since then, the day has been known as Veterans Day in the United States.

Where and how we decide to celebrate Veterans Day is a personal choice. I hope each and every American takes a moment to remember those men and women who have fought and continue the fight to defend our country, here and abroad. I want to take this moment to extend my gratitude to all veterans. I also want to give special thanks to my dad, a former naval officer who served two tours in Vietnam. THANK YOU.

Sidenote: An explanation for why there is no apostrophe in Veterans Day.

Image: Library of Congress Public Domain: Crowd at burial ceremony of the Unknown Soldier in Arlington Cemetery, 1921 or 1922.

Jefferson County Added to Pennsylvania Courthouses Photo Album

I had an arbitration in Jefferson County at the Court of Common Pleas on November 4, 2010 and grabbed some photographs for the Pennsylvania Courthouses Photo Album. The courthouse was beautiful inside and out. I believe it was recently renovated, but this was my first time there so I can't comment on the "before." The "after" looks great though! I grabbed lunch at the Patriot House Cafe across the street after the hearing and I highly recommend it as well.

To see only the new Jefferson County pictures, click here for the Lawffice Space Tumblr entry.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Social Media and GINA

Great news! The EEOC released the final regulations for GINA yesterday. For those of you not familiar, GINA is the Genetic Information Nondiscrimination Act which prohibits (and I realize you likely picked up on this already) discrimination on the basis of "genetic information."

I'll probably have additional posts on this subject as I work through the new regs but one thing that caught my eye was the inclusion of social media regulations. Title II of GINA generally prohibits requesting, requiring, or purchasing genetic information pertaining to applicants, employees or other individuals.  The introductory statement recognizes that "a covered entity may violate GINA without a specific intent to acquire genetic information."

This raises concerns about acquiring genetic information via social networking websites. GINA includes an exception, however, where the employer inadvertently requests or requires genetic information. The regs specifically carve out a social networking subsection of this exception:

A manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).

29 C.F.R. § 1635.8(b)(1)(ii)(D)(emphasis added). I underlined words that I think are particularly important. 

First, the acquisition of the information still must be inadvertent. Supervisors can't DM employees on Twitter requesting genetic information and expect any protection from this provision. Second, the employee must have given permission. I think this rules out fake friending someone using a Facebook pseudonym, as well as snooping using someone else's account (ex. Emp A is Facebook "friends" with Emp B so the manager uses Emp B's account to view Emp A's info).

It's interesting to see official government regulations addressing social media websites. There are actually addition social media regulations in GINA (perhaps a follow-up post is in order?). The GINA regs highlight the need for managers to understand some of the legal pitfalls of social media.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Satan No Obstacle to Settlement - COTW #14

My apologies for the sparse blogging this week, I'll be back on track next week. But you knew I wouldn't let you down on the Case of the Week, right? This religious discrimination case has been going on for a few months and recently settled.

All three employees of the Ohio Worker's Compensation Counsel made some startling allegations after they were all terminated. Per this Cleveland.com article, they charged that the executive director:

declared to the staff that she was sent by God to her job, she wanted God to permeate the workplace, and Satan was to blame for obstacles the staff encountered in their jobs. She inquired about their religious beliefs, called them in to pray aloud, cited scripture in her reprimands and asked [one of them] to listen to CDs of sermons and take notes on them.

Sounds like an interesting work environment!

While Satan may have provided many obstacles in the workplace, he was no match for the negotiating parties. Details of a recent tentative $70,000 settlement are available from this usworkerscomp.com story.

Hat Tip: Mason law classmate and fellow employment lawyer Derek Bottcher of Paul Hastings for passing along a blog entry on this story from earlier this week.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Time Off to Vote? - Employee Voting Rights

There are quite a few elections taking place on Tuesday, November 2, 2010. You may have been subjected to numerous robo-calls or seen the political ads on TV. Some states have laws mandating that employers provide leave for employees to vote, and sometimes this leave must be paid.

John Phillips of The Word on Employment law blog has kindly provided a post on Employee Voting Rights - Survey of the Law in 50 States. It's a 50 state survey of voting rights laws and a valuable resource. For my Pennsylvania readers, I'll spare you the suspense and inform you that Mr. Phillips lists Pennsylvania as: "There is no state law regarding employee time off to vote."

Happy Voting!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.