Cambria County Courthouse Added to Pennsylvania Courthouses Photo Album

I argued an objection in Cambria County Court of Common Pleas in Ebensburg, Pennsylvania on Monday, so I grabbed some pictures for the Pennsylvania Courthouses Photo Album!

It's yet another beautiful PA Courthouse. The inside is just as stunning with stained glass ceilings and "domes" in the courtrooms. It actually has this really cool amplification effect, where your voice sounds louder when you stand at the podium. It also features "stadium seating" (kind of) so the back seats are higher than the front seats, and the lawyers are sort of in a pit (I'm probably overstating the height differential here).


Click here to view the photo album on Picasa.

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

The Right to Photograph Public Places

OK, technically this is not an employment law post. But given my Pennsylvania Courthouses Photo Album, it's obviously an issue of some interest to me and possibly my readers.

The Washington Post ran a story this week titled Freedom of photography: Police, security often clamp down despite public right. The article explains that:

Courts have long ruled that the First Amendment protects the right of citizens to take photographs in public places. Even after the terrorist attacks of Sept. 11, 2001, law enforcement agencies have reiterated that right in official policies.

Apparently, some people have had unpleasant experiences involving security and photographing government buildings.

As I explained in a previous post, I had my own "run in" with security while photographing the federal court in Williamsport, PA. As I stated at the time, they were courteous and professional at all times (as was I, I might add). A door guard (I don't know which agency employs them) came outside and asked me why I was taking photos of the courthouse. I explained that I was an attorney and that I take pictures of the courthouses I go to for a photo album (and that I actually had a hearing at the state court down the street that day). He asked for ID which I gave him and then he asked if I would speak with an FBI agent. I said that would be no problem and we went inside and waited for the FBI guy.

The FBI agent came down and was likewise polite and friendly. I again explained why I was taking photographs and he said that was fine. He explained that he liked to follow up with people who appeared to take an "unusual interest" in the building. Despite taking some offense to his labelling of my hobby as an "unusual interest" (just kidding), I explained that I post the pictures on my blog. He said that was fine and told me to have a nice day.

At no point did anyone ask to see the photos or make any attempt to delete them. As I said before, a cordial interaction at all times. My First Amendment rights remained intact and they vigilantly performed their security duties.

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

DOL Issues Fact Sheet on Break Time for Nursing Mothers

Lawffice Space readers may recall a March 2010 post in which I detailed numerous Health Care Bill Easter Eggs. One provision tucked away in the new health care law provides for "reasonable break time for nursing mothers." Now, the Department of Labor (DOL) has issued guidance in the form of Fact Sheet #73: Break Time for Nursing Mothers under the FLSA.

The bottom line is that employers need to provide break time for nursing mothers to express milk as frequently as needed. Employers must also provide space (bathrooms do not count) that is available to the mother when needed and "shielded from view, and free from any intrusion from co-workers and the public."

It is also important to note what the new law does not do and who is not covered. The new law does not apply to employees who are exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA). It does not apply to employers with more than 50 employees but only "if compliance with the provision would impose an undue hardship." And, employers are not obligated to compensate nursing mothers for this break time (unless the employer ordinarily compensates employees for break time).

For additional coverage on this topic see:
- Ohio Employer's Law Blog
- Connecticut Employment Law Blog

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

20th Anniversary of the ADA

On this day, exactly twenty years ago, President George H.W. Bush signed into law the Americans with Disabilities Act ("ADA"). At the time, President Bush offered these words:

I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred.... Let the shameful wall of exclusion finally come tumbling down.

As CNN informs us, the ADA debate rages on, even after 20 years. One thing I find amusing about the article is its use of "internet chat board sampling" as the basis for its main point.

More than 18 years after the original ADA, President George W. Bush signed into law the ADA Amendments Act (ADAAA). Courts have generally held that the ADAAA is not retroactive. As a result, there has been some delay in the publication of actual case law addressing new ADAAA issues. Rest assured though, it's starting to emerge and will work its way into the mainstream soon enough.

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

House Rules: Sex, Cocaine, and Strip Clubs

Prepare to have all of your preconceived notions about Hollywood... completely reinforced! Yesterday, a former assistant on the set of the show House filed a Complaint in a Los Angeles Court (full Complaint here). The Complaint includes numerous allegations of debauchery on the set which the plaintiff claims amount to discrimination, hostile work environment, and other related claims.

One particularly colorful paragraph alleges that:

Plaintiff was harassed and disparaged . . . based on his refusal to go along with [his supervisors'] degenerate conduct, visits to strip bars, participation in getting drunk, stoned or intoxicated on cocaine, to participate in sexual conduct at the trailer, and other dangerous conduct.

The plaintiff also alleges his supervisors were drinking Tequila and getting in some target practice with throwing knives on set. And, of course, derogatory name-calling, sexual escapades on the set with co-workers, and "frequently talking about Sadism & Masochism."

In case you were worried, the Complaint also alleges that House was renewed for a seventh season. Although it sounds like the real action is taking place behind the scenes!

Notes: Complaint provided by TMZ (in case the giant 9-line high x entire page-width "TMZ" watermark wasn't a giveaway). And these are just allegations in a complaint. There has been no finding of liability or other confirmation of the allegations at this time.

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

Abortion Protection in the Third Circuit

Earlier this year, I wrote a post reminding readers of a Pennsylvania state employment law addressing abortion. Now, a reminder about abortion and federal law. It's pretty straightforward, actually.

Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act amended Title VII to prohibit discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C.A. § 2000e. In Doe v. C.A.R.S.*, the Third Circuit held that:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.

Like I said, straightforward. There is one little twist in pregnancy discrimination cases and that's in the first element of a prima facie case (in bold):

1. she is or was pregnant and that her employer knew she was pregnant;
2. she was qualified for her job;
3. she suffered an adverse employment decision; and
4. some nexus between her pregnancy and the adverse employment action

One final note on the case, the Third Circuit upheld the lower court's decision to seal the case and allow the plaintiff to use a pseudonym, "Jane Doe."

* Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) order clarified, 543 F.3d 178 (3d Cir. 2008) and cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 432 (U.S. 2008).

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

Law Firm Shareholder Not an "Employee" in 3rd Circuit

Yesterday, the Third Circuit held that a shareholder (or partner) in a law firm is an employer, not an employee. Kirleis v. Dickie, McCamey, and Chilcote, No. 09-4498 (July 15, 2010 3d Cir.). Why does this matter? As an employer, she is "precluded from bringing claims under the employment anti-discrimination laws." At issue in this case: Title VII, Equal Pay Act, and PHRA.

In an extremely brief analysis, the Third Circuit applied the six factors for determining whether a shareholder is an employer or employee from the U.S. Supreme Court:

(1) whether the organization can hire or fire the individual or set the rules and regulations of the individual's work;
(2) whether and, if so, to what extent the organization supervises the individual's work;
(3) whether the individual reports to someone higher in the organization;
(4) whether and, if so, to what extent the individual is able to influence the organization;
(5) whether the parties intended that the individual be an employee, as expressed in written agreements or contracts; [and]
(6) whether the individual shares in the profits, losses, and liabilities of the organization.

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449-50 (2003).

If you're curious which facts were most compelling to the Third Circuit:

As a Class A Shareholder-Director of DMC, Kirleis has the ability to participate in DMC's governance, the right not to be terminated without a 3/4 vote of the Board of Directors for cause, and the entitlement to a percentage of DMC's profits, losses, and liabilities.

The Third Circuit affirmed the District Court's grant of summary judgment in favor of the law firm.

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

Clearfield County Added to Pennsylvania Courthouses Photo Album

I did not go to the Clearfield County Court of Common Pleas today... but I was right across the street. So I grabbed some pictures for the Pennsylvania Courthouses Photo Album!

It's another beautiful PA Courthouse, this time from 1860. They have the Ten Commandments on the front steps. I will also note that I ate at a cafe around the corner that served "Freedom Fries."

Click here to view the photo album on Picasa.

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

Medical Records Law Seminar on September 23, 2010

On September 23, 2010, I will be speaking at a seminar on Medical Records Law in Altoona, PA. Specifically, I will be speaking on:

HIPAA

• What Is It?
• Prohibitions on Use and Disclosure
• Patient Rights
• Business Associates
• Preemption and Exceptions
• What's Not Covered Mental Health, HIV, Others?
• Everyday Application
• Amendment and Correction of Records
• Requests From Attorneys
• Requests From Workers' Compensation Carriers
• Requests From Employers
• Law Enforcement Requests
• Disclosures Without Authorization

My McQuaide Blasko colleague, and member of the Health Law and Litigation practice groups, Jon Stepanian, will also be speaking. Jon recently launched a health law and policy blog, Defense of Medicine, featuring contributions from some other McQuaide Blasko Health Law and Litigation folks.

I'll steal reuse some language from his announcement of this event:

This will be a great event to network with other professionals in the area and an opportunity to learn a few points related to developments in the law affecting medical records. You can learn more about the seminar here, including the other faculty members and agenda. CLE credit is available for attorneys and other credits are available through the American Health Information Management Association, the Institute of Certified Records Managers, the National Association of Long Term Care Administrator Boards, and other professional associations as noted on the seminar information page.

We hope to see you there!

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

The Fictional SCOTUS Standard 5-4 Split

I was reading an article today (McCain's op-ed on Kagan, if you're interested) when I came across an interesting user comment from "obtusegoose":

We all know that in 95% of the cases, the court is split down the middle 5-4 or 4-5.

One comment on an op-ed is hardly a big deal, but I get the impression that this is a common misconception. Or in his or her words "we all know" it.

Just one problem: It's wrong. Really wrong. SCOTUSblog provides us with a great stat-pack on Supreme Court decisions. As page 4 indicates the breakdown for OT09 (aka "this year") is as follows:

• 9-0 - 47%
• 8-1 - 9%
• 7-2 - 15%
• 6-3 - 10%
• 5-4 - 19%

Fewer than 1 in 5 Supreme Court decisions was a 5-4 split this term. And even that's misleading. For example, McDonald v. City of Chicago counts as a 5-4 but it was actually a 4-1-4 with Justice Thomas applying a different legal theory (Privileges or Immunities) than the others (Due Process). It also counts two 5-3 decisions because of the author's belief that they "would have split that way."

Meanwhile, nearly half of the decisions were unanimous! In fact, looking back at all of the years on that page (OT06, 07, and 08) - there were more unanimous decisions than 5-4 splits every year! Sure, there are big issues that we can accurately predict will come down 5-4, but the truth of the matter is that those cases are in the minority.

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

New Process Steel - Now What?

In mid-June, the Supreme Court issued its opinion in New Process Steel v. NLRB, invalidating nearly 600 NLRB decisions. To find out the immediate impact and the NLRB's plan for the future, check out my latest entry on ELinfonet: The Post-New Process Steel World - What Happens Now?

Previous Coverage of New Process Steel on Lawffice Space: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

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

Happy Independence Day!

On July 4th we celebrate our Independence Day. And everyone knows that's because the Declaration of Independence was signed on July 4, 1776... except it wasn't. Yes, it was ratified on July 4th, but as the National Archives explains:

[O]n August 2, the journal of the Continental Congress records that "The declaration of independence being engrossed and compared at the table was signed." One of the most widely held misconceptions about the Declaration is that it was signed on July 4, 1776, by all the delegates in attendance.

But July 4th is still the official holiday per 5 U.S.C. § 6103 and remains "Independence Day, July 4."

Happy Independence Day!

See Also:

Last year's July 4 entry: America's First Employment Law

And some photos of the historic sites associated with the Declaration of Independence from my Philadelphia Field Trip last November.

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

Employee's Fetus was Creating a Negative Energy Field in the Work Place

If you read only one Complaint this year, please make it the one that kicked off Harms v. Hearthstone Homes, Inc. In this bizarre lawsuit, the Plaintiff alleges she was fired in part because her "fetus was creating a negative energy field." The suit alleges religion- and pregnancy-based discrimination under Title VII and violations of Nebraska state law.

When the Plaintiff told the Hearthstone CEO of her pregnancy, he allegedly

responded by telling the plaintiff to be cautious because "babies can remember things while in the womb", and that [the CEO's] mother had a sexual affair with another man while she was pregnant with him and that he could still remember the trauma.

I think I'll remember the trauma of just reading that for awhile.

The Plaintiff also recounts a disturbing meeting in which the CEO and two other managers discussed their "intuition" about her pregnancy. One manager "saw her fetus as two magnets on opposite ends repelling one another, and [another] described her pregnancy as a 'miss'." Apparently, "[t]his meeting was very upsetting to the plaintiff." No kidding!

The discovery for this case should be fascinating. I'll try to keep an eye on this one. After all, I would love to read a court's analysis of whether a "negative force field" is a legitimate nondiscriminatory reason!

HT to Jon Hyman via Twitter who linked to a story on On Point News which provided the link to the Complaint.

Image: The Spirit of Halloween Lives On as a Dead Star Creates Celestial Havoc - Public Domain, created by NASA.

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