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Tuesday, May 27, 2014

Miles on SSM's Impact on Pennsylvania Businesses

The Central Penn Business Journal has a new article, Pennsylvania's gay marriage judicial ruling likely to affect businesses. I provided some input on the article, and received some nice quotes. The author, John Hilton, deserves credit for his proactive research. We spoke about these issues before Judge Jones issued his opinion striking down PA's same sex marriage ban. Anyway, it's a nice article so give it a click.

Lawffice Links - HR Fun Facts

Getting back into the swing of things can be tough following a 3-day weekend. So, I cooked up a few Lawffice Links to make it a little more enjoyable:


Friday, May 23, 2014

Latest Employment Law Blog Carnival is LIVE

The latest Employment Law Blog Carnival is now available on Mahadev's Employer's Corner. This month's theme is "The Small Business Edition." Enjoy some of the best employment law content from around the web (including a post from yours truly)!

Thursday, May 22, 2014

Same Sex Marriage in PA is Here to Stay?

Well, that was quick. On Tuesday morning, Pennsylvania prohibited same sex marriages; by Tuesday afternoon, Judge Jones struck down the prohibition as unconstitutional, and on Wednesday, Governor Corbett announced he would not appeal the decision. Barring some extraordinary circumstances, this likely means the end of the road for the case and the start of same sex marriages in Pennsylvania.

[Sidebar: You never know if some advocacy group, group of legislators, or maybe even some subset of the governor's branch will try to pick up the appeal - such groups likely do not have standing to appeal the decision, but who knows what will pop up]

Gov. Corbett's rationale seemed a little odd:
I have thoroughly reviewed Judge Jones’ opinion in the Whitewood case. Given the high legal threshold set forth by Judge Jones in this case, the case is extremely unlikely to succeed on appeal.
Presumably, any appeal would be de novo and the "legal threshold" set by Judge Jones would be irrelevant. In other words, the appellate court (here, the Third Circuit) would perform its own legal analysis and not be restricted by Judge Jones's ruling.

The ruling generating some initial confusion at the county Register of Wills level. The RoWs should now be issuing same sex marriage licenses to couples who otherwise meet the requirements under Pennsylvania law.

Wednesday, May 21, 2014

Same Sex Marriage in Pennsylvania!

Yesterday, the wise, just, honorable and fair (did I mention I have a case pending before him?) Judge Jones of the Middle District of Pennsylvania struck down Pennsylvania's same sex marriage (SSM) ban as unconstitutional. You can read the opinion here.

FindLaw has an interesting post with 5 things to know. Judge Jones refused to stay the order pending appeal, so SSMs start today. Also, Pennsylvania must now recognize out-of-state SSMs.

How does this impact employers? Most notably, same sex spouses will now "count" for FMLA purposes (e.g. employees can take leave to care for a same sex spouse with a serious health issue). Also, employer benefits and retirement plans likely refer to "spouses," which will now include same sex couples. There may be some tax implications too, but that's not really my thing.

I will note that this decision can still be appealed, and that another court may issue a stay pending an appeal - so this is not necessarily a done deal yet. Also, it's still important for Pennsylvania employers to keep up with other state's SSM laws for reasons listed here.

UPDATE: Eric Meyer notes that same-sex spouses will now be covered by PA's mini-COBRA. Nice catch.

Friday, May 16, 2014

An Enforceable PA Noncompete Without Consideration? Not on the Superior Court's Watch!

A couple of years ago, I blogged about a legal theory in a Legal Intelligencer article that would create enforceable noncompetes without any consideration.

The premise was pretty simple, Pennsylvania has a law called the Uniform Written Obligations Act (UWOA) that generally provides that a written contract will not be rendered unenforceable for lack of consideration if it expressly indicates that each party "intends to be legally bound." So, attorneys in Pennsylvania effectively use the magic words "intending to be legally bound" in contracts. Could such a thing work in the world of noncompetes?

Generally, noncompetes require consideration. That consideration may be the initial job offer, but generally not continued employment after the employee has already been hired. Does the UWOA allow employers to circumvent that requirement?

Well, when I blogged about the theory that the UWOA might get around the consideration requirement, I cautioned: "But be careful - as the article warns: no Pennsylvania appellate court has weighed in on this issue yet" . . . until Tuesday.

In Socko v. Mid-Atlantic Systems of CPA, Inc. (opinion here), the Superior Court addressed exactly this issue:
[F]or a restrictive covenant to be enforceable, the employee must receive actual valuable consideration in exchange for signing an employment agreement containing one. When the restrictive covenant is contained in the initial contract of employment, the consideration is the job itself. But when the restrictive covenant is added to an existing employment relationship, however, to restrict himself the employee must receive a corresponding benefit or a change in job status. Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee.
Sorry employers - if you want the noncompete, you gotta fork over the consideration. Then again, the Superior Court is an intermediate appellate court. This case could go up to SCOPA for a final decision.

HT to Eric Meyer, who was quick on the draw on this one: PA Superior Court Closes Non-Competition Agreement Loophole.

Thursday, May 15, 2014

Fired for What!? - Jay-Z v. Solange Fight Tape

Who wouldn't want to see footage of Beyonce's sister, Solange, physically attacking Jay-Z in an elevator? And yes, every time I watch it I'm imagining him telling her to stop it because, "it's your boy, Hov" - just me?

Well, CNN is now reporting that the employee who leaked the footage has been fired. Was it worth it? Maybe. He reportedly got $250,000 from TMZ. Of course, he got that money from selling footage that is presumably the hotel's property - so he may have to hand over the money to the hotel and may even face criminal charges.

Is Telecommuting a Reasonable Accommodation?

If you have followed this blog for longer than a few days then you have probably already guessed the answer: Sometimes "yes" and sometimes "no." There are almost never easy answers in employment law.

The Sixth Circuit recently reversed a grant of summary judgment in favor of an employer and held that telecommuting may be a reasonable accommodation under the ADA (opinion here):
We have previously concluded that telecommuting is not a reasonable accommodation for most jobs, but that there may be "unusual case[s]" when telecommuting is reasonable because the "employee can effectively perform all work-related duties at home." Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997) (internal quotation marks omitted); see also Tyndall v. Nat'l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994). However, as we noted above, the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded . . . . many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual." Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867-68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an "unusual case where an employee can effectively perform all work-related duties from home." Smith, 129 F.3d at 867-68. In this case, we respond to the world as it exists now.
I thought it may be useful to dig up some case law from my jurisdiction (Middle District of Pennsylvania in the Third Circuit) on the issue:
In its brief, the Navy “maintains that in any company or any branch of the government, it is per se unreasonable for key employees who are expected to provide guidance and advice, problem solve, and interact with others, as was the case with Kiburz, to work from home.” (Def's Br. in Supp. 13.) Though the circuits do not treat work-from-home requests uniformly,3 the Court declines to adopt such a per se rule . . . . fn 3: Compare, e.g., Vande Zande v. Wisc. Dept. of Admin., 44 F.3d 538, 544 (7th Cir.1995) (adopting a presumption against working from home except in “extraordinary circumstances”) with Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1136-37 & 1136 n. 15 (9th Cir.2001) (finding “no reason not to follow the approach taken by the EEOC in its Enforcement Guidance,” which is that “[w]orking at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer.”). See also Brianne M. Sullenger, Comment, Telecommuting: A Reasonable Accommodation under the Americans with Disabilities Act as technology advances, 19 Regent U.L.Rev. 537 (2006-2007) (identifying a “presumption-against-telecommuting approach” and a “fact-specific approach,” and advocating for the latter).
Kiburz v. England, CIV.A. 104CV2247, 2008 WL 2780650 (M.D. Pa. July 16, 2008) aff'd, 361 F. App'x 326 (3d Cir. 2010).

The takeaway: The Courts will examine the circumstances on a case-by-case basis. Some courts have applied something like a rebuttable presumption that telecommuting is generally not a reasonable accommodation. However, given modern technology, that presumption appears to be lessening if not disappearing altogether. If employers don't want to allow an employee to telecommute as an accommodation for a disability they'd better: (1) engage in the interactive process to identify alternatives; and (2) document the hardships of allowing employees to work from home.

Tuesday, May 13, 2014

Shopping for Lawyers at Wal-Mart

Fair warning: this post has nothing to do with employment law. But, I think you'll find it interesting anyway. The ABA Journal is reporting that Toronto Wal-Mart shoppers can now consult on-site lawyers:
The firm charges $99 for a simple will, $25 to notarize a document, and $19 to notarize additional documents. Prices are lower because of the volume, Koke says. The retail sites will also offer services in real-estate law and powers of attorney. Uncontested divorces will be added beginning in the fall. Other cases will be referred to other lawyers.
The on-site law firm, Axess Law, plans to expand throughout Canada over the next four years.

Thursday, May 8, 2014

NFL Cheerleaders Face Arbitration Motion

Last week, I blogged about the Buffalo Bills' cheerleaders filing a wage and hour claim, noting that the Oakland Raiderettes had filed a similar lawsuit earlier in the year. Now, the Raiderette lawsuit faces a significant hurdle: arbitration.

The Oakland Raiders recently filed a Motion to Compel Arbitration (available here). The Raiders claim that the cheerleaders signed an employment agreement that requires arbitrating "all disputes" through the NFL. To make matters even worse for the cheerleaders, the Raiders claim the Federal Arbitration Act (FAA) requires the cheerleaders to arbitrate their disputes individually.

Unfortunately, for employment law bloggers, arbitration could take some of these disputes out of the public eye. We'll have to wait and see whether the Courts actually compel arbitration under the circumstances.

Wednesday, May 7, 2014

SCOTUS Grants Cert. in Retiree Benefits / Collective Bargaining Case

On Monday, the Supreme Court granted certiorari in M&G Polymers U.S.A. v. Tackett. You can view the order here and the SCOTUSblog case page here. SCOTUS limited its grant to only the first question presented in the petition for certiorari:
1. Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.
As you can see, Third Circuit (my home circuit) precedent is on the line here.

Friday, May 2, 2014

After SCOPA Review, Attorney-Expert Correspondence Not Discoverable

Well, it has been a long, strange trip for Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity. In 2010, the Superior Court shocked the legal community by holding that correspondence between an attorney and an expert witness the attorney intends to call at trial is discoverable.

Then, the Superior Court decided to take a second look. Upon reconsideration, in 2011, the Superior Court reversed course in an 8-1 opinion. So, such correspondence appeared to be safe . . . but, wait! What about the Supreme Court of Pennsylvania ("SCOPA" to the cool kids)!?

Well, wouldn't ya just know it? The Supreme Court decided the case this week . . . a 3-3 split! The end result is that the latest Superior Court decision (protecting the correspondence from discovery) is affirmed. You can read the opinion in favor of affirming here, opposed here, and the final order here.

If you're wondering why we have an even-numbered panel at the Supreme Court - it's because Justice Orie-Melvin did not participate (it's a long story).