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  1. Stember Cohn & Davidson-Welling Client Wins FMLA and Age Discrimination Jury Trial

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    Stember, Cohn & Davidson-Welling, LLC,  won a jury verdict approaching $900,000 in an age discrimination and FMLA case.

    Over a career spanning almost 30 years, Walter Mikulan had worked his way up through the ranks from corrections officer to Major when Allegheny County Jail Warden Orlando Harper fired him. The jury found that Harper terminated Mikulan because of his age and because he took time off under the FMLA. The verdict will increase to almost $1.5 million once liquidated damages and attorney’s fees are added. Maureen Davidson-Welling of Stember Cohn & Davidson-Welling, LLC, served as trial co-counsel along with lead counsel Attorney O’Brien.

    No person who grows old in a job should be fired from that job because they are believed to be too old. And no person should lose a job for taking leave that is protected under the FMLA.

    A man who was fired from the Allegheny County Jail has won a $1 million verdict in his favor.
    wpxi.com
  2. Settlement in Wage and Hour Class Action Brought By Table Games Dealers At The Meadows Casino

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    Stember Cohn &  Davidson-Welling  (“SCDW”) has reached a class action settlement with the Meadows Casino in Washington, PA, on behalf of table games dealers at the Casino in Yanchak v. Cannery Casino Resorts, LLC., a wage and hour case brought under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act.

    A former dealer sued The Meadows Casino in December 2013, claiming that he and other dealers had not been paid for work they were required to perform at the start and end of each shift.  Under the settlement, which must be approved by the court, the Meadows will pay $350,000 to resolve the case.

    The Meadows Casino and all of its related entities specifically denied wrongdoing of any kind and contended, among other things, that it complied with all applicable state, federal and local laws affecting the Class regarding unpaid wages, overtime, and penalties.

    Once the court approves settlement, Class members will receive payment from the settlement fund.  The amount of each payment will be based on the number of shifts the dealer worked during the period covered by the lawsuit.  SCDW anticipates that payments should issue near the end of 2016.

    SCDW attorneys Maureen Davidson-Welling, Jonathan K. Cohn, and John Stember represent the plaintiff and have requested that the court appointment them as class counsel.

    If you worked as a tables games dealer at Meadows Casino and have any questions regarding the settlement, please call us at (412) 338-1445 or email us at info@stembercohn.com.

    Click on the following link to read the settlement agreement: Joint Stipulation of Settlement and Release.

  3. Victory in Gender Discrimination and Retaliation Case

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    The U.S. Court of Appeals for the Third Circuit reinstated the gender discrimination and retaliation lawsuit of Stember Cohn & Davidson-Welling client Sandra Connelly, finding that the lower court improperly dismissed Ms. Connelly’s claims.

    Ms. Connelly was the only female truck driver employed by Lane Construction Corporation at its Pittsburgh facility.  She contends that she was discriminated against based on her gender, sexually harassed, and retaliated against for complaining. She reported harassment by her male coworkers to her supervisors and called the company’s ethics line.  After she complained, she was laid off before any other union truck driver.  She was not recalled the following year when Lane brought back all of the male drivers, including those with less seniority than her. The district court dismissed Ms. Connelly’s case, holding that her claims of gender discrimination and retaliation were not sufficiently pleaded.  The district court also ruled that her claim of retaliation was not plausible because the failure to rehire her occurred almost a year after her last complaint.

    The Third Circuit’s decision to vacate the lower court’s decision reiterates an important legal standard that has been eroded somewhat in recent years.  In considering whether a case can survive a motion to dismiss, a court should consider only whether the plaintiff has pleaded facts that, when taken as true, state a claim of discrimination that is “plausible on its face.” Put another way, the court reaffirmed that it does not matter if the court thinks an employee will not prevail; an employee only has to assert a claim that is plausible on its face. In addition, the Court acknowledged the reality that retaliation can occur well after an employee engages in protected activity.

    Click here to read the decision.

  4. Consideration Required for PA Noncompetes

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    In a clear victory for Pennsylvania employees, the Pennsylvania Supreme Court recently held in a case of first impression that an employer cannot use so called “magic language” to impose noncompete clauses where no significant benefit is provided to the agreeing employee. The continuation of employment on its own, the court found, is not enough to be considered sufficient consideration (an added benefit to the employee, such as a raise or promotion) to support a restrictive covenant to not compete. In other words, a simple statement agreeing to be “legally bound” that is unaccompanied by adequate consideration is not an enforceable noncompete agreement under Pennsylvania law. The court also concluded that an employee is not precluded from challenging an agreement not to compete entered into after the start of employment.

    In Socko v. Mid-Atlantic Systems of CPA Inc., the state Supreme Court affirmed the Superior Court’s May 2014 ruling that a noncompete agreement that a waterproofing company attempted to enforce against a former salesman was, in fact, unenforceable. The salesman had signed an agreement which stated that the parties intended to be “legally bound.” However, the employer offered no new consideration for the noncompete agreement. The employer argued that simply reciting the “magic language” of the Uniform Written Obligations Act (“UWOA”) made the agreement enforceable.

    While the court agreed that “based solely upon the language of the UWOA,” the agreement would be enforceable against Socko, it ultimately decided that such an outcome would be inconsistent with Pennsylvania’s long history of “strongly disfavoring covenants in restraint of trade.” This means that in order for a noncompete agreement to be enforceable under Pennsylvania law, it must either be signed at the start of employment or supported by additional consideration.

    In Pennsylvania,  employees ranging from hourly workers to high-level executives are often required to sign noncompete agreements as a condition of employment.  Adding to the stress of job seekers and the unemploymed, employers frequently sue (or threaten to sue) their former employees based on such agreements.  The Socko decision ensures that an employer who seeks to add a noncompete after the start of employment must give the employee some benefit before attempting to interfere with the employee’s right to make a living.

     

  5. Obama Issues Executive Order on Paid Sick Leave for Federal Contractors

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    President Obama on Labor Day signed an executive order which requires companies that contract with the federal government to provide their workers with paid sick leave. The order, titled “Establishing Paid Sick Leave for Federal Contractors,” seeks to ensure that employees of companies which contract with the federal government are eligible for paid sick leave, and will affect 300,000 American workers previously ineligible for this benefit.

    Under the order, workers on federal contracts will earn one hour of paid sick leave for every 30 hours worked, and a contractor may not limit an employee’s total accrued sick to less than seven days per year. This sick leave may be used by employees for absences resulting from:

    • Physical or mental illness, injury or medical condition;
    • Obtaining a diagnosis, care or preventative care from a health care provider;
    • Caring for a family member in need of medical treatment or preventative care; or
    • Domestic abuse, including seeking medical care, relocation, assistance from victim service organizations, to take any related legal action, or to assist a family member in any of the above.

    The order forbids employers from discriminating in any way against an employee for taking or attempting to take his or her paid sick leave. It further forbids employers from making the use of sick leave contingent on finding someone to cover any work that would be missed during that time. President Obama has directed the Secretary of Labor to issue regulations to carry out his order. The rule change will affect government contracts beginning in 2017.

    The issue of access to paid sick leave is an important one. Without it, Obama noted, a parent may be forced to choose between losing income or staying at home with a sick child. Though the President through executive order may only require federal employees and contractors to comply, as only Congress may issue a law that would require the private sector to do the same, he has urged Congress to pass the Healthy Families Act which would require private-sector employers of 15 or more employees to provide sick leave benefits. He also “strongly encouraged” independent agencies to comply with the order’s requirements.

  6. Verdict for Stember Cohn & Davidson-Welling Client in Sexual Harassment and Discrimination Case

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    On April 17, 2015, a jury awarded Stember Cohn & Davidson-Welling client Sandra Robertson what is believed to be the largest individual plaintiff’s verdict in an employment discrimination case ever entered in the United States District Court for the Western District of Pennsylvania. The jury awarded nearly $1 million in compensatory damages and $12.5 million in punitive damages against defendants Hunter Panels, LLC and Carlisle Construction Materials, Inc.  Ms. Robertson will also ask the court to order the defendants to pay her attorneys’ fees.

    Ms. Robertson — who was the only female supervisor at Hunter’s Smithfield Pennsylvania plant — contended that she was subjected to a hostile work environment, discriminated against because of her gender, and then retaliated against her when she complained.   We believe the jury intended to send a clear message that corporations are not above the law and will be held to account for unlawful sexual harassment and retaliation against employees who report it.

  7. Consult a Disability (LTD) Lawyer Early in the Disability Claim Process

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    Filing for long-term disability (LTD) benefits is more complicated than your LTD insurance company might like you to think.  If you become unable to work and are covered by LTD insurance, consulting with an LTD lawyer could make the difference between getting benefits and having your claim denied.

    The Employee Retirement Income Security Act (ERISA) is a complex federal law that governs LTD insurance coverage in the private sector. LTD claimants who do not have the benefit of a lawyer often make critical mistakes that could have easily been prevented. An LTD lawyer can interact with your LTD carrier or plan administrator on your behalf. An experienced attorney can help navigate the web of ERISA rules to make sure your claim is properly filed, and anticipate important issues that may arise if the LTD carrier denies your claim and you have to file a lawsuit in federal court to get your benefits.

    When you have an LTD lawyer to represent you from the start, he or she can make sure that the documents the insurance company looks at to decide your claim, commonly referred to as “the administrative record,“ include all evidence of your disability. A good LTD lawyer will know the right questions to ask your doctor about your work-related limitations, when to hire vocational experts, and how to make sure that there is more in the administrative record than the insurance company’s paperwork and (in many cases) inaccurate assessments by “independent” doctors hired and paid by the insurance company to review your file

    Many LTD applicants expect that they will receive LTD benefits if they have already qualified for Social Security Disability Insurance (SSDI). Unfortunately, that is often not the case. LTD carriers have won many cases by saying that they use a different standard than Social Security does, or that they considered information that Social Security did not have. Simply put, getting SSDI does not guarantee LTD.

    If you are planning to file an LTD application or have already done so, don’t wait to hire an LTD attorney. By the time your claim is decided, it may be too late.

  8. Widespread Violations of Overtime Law In Marcellus Shale Oil and Gas Industry

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    The U.S. Department of Labor recently announced the recovery of $4.5M in unpaid overtime for thousands of Marcellus Shale natural gas workers  Pennsylvania and West Virginia. The DOL’s investigation revealed significant violations of the Fair Labor Standards Act (FLSA), which resulted in employers agreeing to pay $4,409,547 in back wages to 5,310 employees. An official with the DOL called the oil and gas industry “ripe for noncompliance.”

    The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well one and one-half their regular rates for every hour worked beyond 40 per week. The law also requires employers maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law. Employers that violate the FLSA are generally liable for back wages and liquidated damages payable to the affected employees.

    Most violations among Marcellus Shale workers related to improper overtime payment. Some employees’ production bonuses were not factored into their regular rate of pay, which is used to determine the proper overtime pay rate. All pay received by employees during the workweek must be counted n when determining the overtime premium to be paid. Investigators also found that some salaried employees were misclassified as exempt from the FLSA’s overtime provisions.

    Under the FLSA, individual employees can sue on their own and on behalf of similarly situated employees for unpaid wages and overtime. If you have a question about unpaid wages or overtime, call us at 412-338-1145.

  9. Pennsylvania Same-Sex Marriage Ruling Broadens FMLA’s Reach

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    Last week Pennsylvania joined 18 other states (including its eight neighbors in the Northeastern United States) that recognize gay and lesbian couples’ right to marry.  In Whitewood v. Wolf, federal judge John Jones III invalidated a 1996 Pennsylvania statute defining marriage as “[a] civil contract by which one man and one woman take each other for husband and wife,” and deeming same-sex marriages “void.”  Soon after, Pennsylvania Governor Tom Corbett announced that the Commonwealth would not appeal the ruling.

    The legal ramifications for Pennsylvania employees and employers are far-reaching.  The ruling’s effect on employee rights under the Family and Medical Leave Act (FMLA) is particularly significant.

    The FMLA mandates that covered employers permit their employees to take unpaid leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  Under the FMLA, eligible employees are entitled to twelve workweeks of leave in a 12-month period for events such as:

    • the birth of a child and to care for the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
    • to care for the employee’s spouse, child, or parent who has a serious health condition; or
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job.

    Before the case was decided, Pennsylvania employers were not required to extend these rights to same-sex married couples because the word “spouse” was interpreted based on the definition adopted by the state in which the employee resides.  Now that Pennsylvania’s heterosexist definition of marriage has been overturned, and the term “spouse” has changed such that same-sex marriage partners may be “spouses” under Pennsylvania law, same-sex and heterosexual married couples should have the same FMLA rights.

  10. An Update for Overtime Regulations

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    On March 13, 2014, President Barack Obama issued a memorandum to the Secretary of Labor, Tom Perez, directing him to research and “propose revisions to modernize and streamline the existing overtime regulations.”  Despite the news coverage of this memo, it was neither an executive order nor some other new law or regulation.  Rather, it is the beginning of a conversation about the modern workplace and a directive to update regulations that have not been revised in a decade. The White House initiative focuses on a few key points regarding the so-called “white collar” or management exemptions.

    First, the current minimum salary for an exempt employee is $455 per week—or just $23,660 per year.  The minimum has not changed since 2004.  The original minimum salary was first set in 1975 at $250 per week.  Had that amount kept up with inflation, it would be roughly $1,000 per week now.

    Under the current regulations, managers, executives, and others are exempted from overtime compensation.  According to the Department of Labor, this means that in some workplaces, such as gas stations and fast food restaurants, “all too often, these salaried employees are earning less per hour than the employees they supervise.”

    President Obama has directed the Department of Labor to establish a new standard under the Fair Labor Standards Act that removes this exemption for certain classes of employees in order to increase their pay and increase the competitiveness of the workforce.  Not everyone agrees the changes would achieve the desired results. The CEO of the company that owns Hardee’s and Carl’s Jr. published an article in the Wall Street Journal offering a management side argument that “rewarding time spent, rather than time well spent,” will not better the economy.

    But, the reality is that for managers in some of the targeted industries, their hourly wage is often less than that of the employees they supervise due to the number of hours they work. The proposal will not overhaul the entire system, but is meant to identify those positions that are currently underpaid and redefine the exception. As Secretary Perez said in a statement, this proposed change “will give millions more people a fair shot at getting ahead, a better chance of realizing their dreams.”  White House Council of Economic Advisers member Betsey Stevenson recently said, “The president believes that if you’re making $25,000 a year and you’re working 60 hours a week, you should be getting paid for the extra hours you work.”

    The proposal has also been called a “job-creation program”—with some labor economists predicting that employers will cut the hours of some employees to avoid paying higher overtime wages and will instead hire new employees.