1. Unemployment Benefits During the COVID-19 Crisis

    Comments Off on Unemployment Benefits During the COVID-19 Crisis

    During this unprecedented time, a record number of Americans are filing unemployment compensation (UC) claims.  Stember Cohn & Davidson-Welling wants you to know what benefits and options are available if you lose work or income due to the Covid-19 crisis.

    STATE EXPANDED BENEFITS

    Pennsylvania has expanded eligibility for UC benefits for employees affected by COVID-19. Recently enacted state law waives the 1-week waiting period (the “waiting week”), suspends weekly work search and registration requirements, and expands eligibility due to job or wage loss from the pandemic.

     You should file for UC if you are not working or on paid leave and:

    • Your employer closed or shutdown due to COVID-19;
    • Your employer reduced your hours due to COVID-19;
    • Your employer told you not to work because of concerns of spreading COVID-19;
    • You’ve been advised by a healthcare provider or employer to quarantine or self-isolate because of COVID-19 exposure, symptoms, or positive diagnosis;
    • You are caring for a household or family member suspected of having or who tested positive for COVID-19.

    You are not eligible for UC benefits if you choose to stay home from work but are not infected or caring for someone who is, and your employer is open. Standard UC lasts 26 weeks. You can file on line at: https://www.uc.pa.gov/unemployment-benefits/file/Pages/default.aspx.

    FEDERAL EXPANDED BENEFITS

    Congress has passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), expanding UC in several important ways.

    Pandemic Emergency UC. If you are receiving or previously received UC (for a Benefit Year ending on or after July 1, 2019), you can still receive 13 additional weeks of UC up to a total of 39 weeks. The 13 additional weeks are be available up through December 31, 2020.

    Pandemic UC. If you are receiving UC in any amount, you should be eligible for an additional $600 weekly under the CARES Act. This $600 is in addition to your weekly UC benefit and lasts up to 16 weeks. You do NOT need to fill out a separate application for the additional 16 weeks; your benefits should automatically update when you file bi-weekly. The additional 16 weeks apply to any week between March 27 and July 25, 2020 in which you are eligible for UC. The additional $600 is subject to 10% Federal Withholding Tax.

    Pandemic Unemployment Assistance (“PUA”). If you are self-employed, an independent contractor or gig worker, or if you are an employee who did not have sufficient wages to qualify for UC, or you have exhausted your rights to UC, you may be eligible for PUA benefits.

    Standard UC does not cover the self-employed or independent contractors – but PUA does.  For more information, See  https://pua.benefits.uc.pa.gov/vosnet/Default.aspx. PUA provides up to 39 weeks of benefits plus the additional $600 weekly payment. Benefits can be retroactive to January 27, 2020 and end after 39 weeks or on December 31, 2020, whichever comes first.

    PUA applicants must self-certify that they lost income or can’t work due to a COVID-19 related reason, which include the following situations:

    • You’ve been diagnosed with COVID-19 or experiencing related symptoms;
    • A member of your household has been diagnosed;
    • You are providing care for someone diagnosed with COVID-19;
    • You are providing care for a child whose school is closed due to COVID-19;
    • You are quarantined or told to self-quarantine by a health care provider;
    • You were scheduled to start work but can’t or lost the job because of COVID-19;
    • You’re now the breadwinner for your household because the head of the household died from COVID-19 or related complications;
    • You had to quit your job as a result of COVID-19;
    • Your workplace closed because of COVID-19;
    • You don’t qualify for standard UC but are affected by COVID-19.

    You can receive PUA from when you lost your job (not just from when you filed).  You will NOT be eligible for PUA if you can work remotely or are receiving paid sick leave or other paid leave.

    The state requires proof of eligibility, including:

    • documentation from a medical professional with the diagnosis or quarantine instructions for you or a household member;
    • notices or emails from a school or daycare center;
    • notices or emails from a county or state government ordering closure of a business or stay-at-home mandate;
    • notices or emails from entities you had a contract with, suspending your services due to COVID-19 related shutdown;
    • a firm offer or other documentation from a prospective employer showing a start date, hours, and pay rate for a job that has been cancelled or delayed.

    Weekly PUA benefits are calculated based on previously reported income. The minimum weekly PUA benefit is $195 and the maximum is $572. You’ll need to submit documentation of previous income with your PUA application.   This can include copies of recent paystubs or deposit receipts, 1099s, billing notices to customers, recent ads for the business, statements from customers, business licenses, ledgers, contracts, invoices, and/or leases.

  2. Women’s Law Project Joins Pregnancy Discrimination Lawsuit Against UPMC

    Comments Off on Women’s Law Project Joins Pregnancy Discrimination Lawsuit Against UPMC

     

    The Women’s Law Project has joined Stember Cohn & Davidson-Welling, LLC, in a pregnancy discrimination lawsuit brought by a former UPMC employee who was fired for failing to return to work within two weeks after childbirth.

    Plaintiff had been working as a bank teller when UPMC offered her a full-time administrative position registering patients at UPMC hospitals.  Plaintiff was visibility pregnant during her job interview, disclosed her pregnancy, and was assured that the imminent birth of her child would pose no problem if she took the job.  With this understanding, she quit her bank job and, in her eighth month of pregnancy, immediately started working for UPMC.  When her daughter was born earlier than expected, Plaintiff believed her job was safe, her future with UPMC was bright, and she would return to work after her maternity leave.  Instead, UPMC fired her without warning based on a policy about which she was never informed.

    Plaintiff alleges in her lawsuit that the UPMC policy under which she was fired violates the Pennsylvania Human Relations Act because it has a disparate and discriminatory impact on pregnant and post-partum women, among other claims.  She seeks damages for lost wages and emotional distress, and an order prohibiting UPMC from applying its discriminatory policy against pregnant or post-partum employees.  Plaintiff’s lawsuit is also based on UPMC’s failure to disclose its policy during the recruitment process, when she disclosed her pregnancy and inquired about maternity leave.

    The case, Threets v. UPMC Presbyterian Hospital, is pending in the Allegheny County Court of Common Pleas.

    Stember Cohn & Davidson-Welling is a Pittsburgh law firm devoted to the protection and advancement of employees’ workplace rights.   The Women’s Law Project (WLP) is a public interest law center with offices in Philadelphia and Pittsburgh. The WLP’s mission is to create a more just and equitable society by advancing the rights and status of women throughout their lives.

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

    Comments Off on Stember Cohn & Davidson-Welling Client Wins FMLA and Age Discrimination Jury Trial

    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
  4. Settlement in Wage and Hour Class Action Brought By Table Games Dealers At The Meadows Casino

    Comments Off on Settlement in Wage and Hour Class Action Brought By Table Games Dealers At The Meadows Casino

    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.

  5. Victory in Gender Discrimination and Retaliation Case

    Comments Off on Victory in Gender Discrimination and Retaliation Case

    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.

  6. Consideration Required for PA Noncompetes

    Comments Off on Consideration Required for PA Noncompetes

     

    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.

     

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

    Comments Off on Obama Issues Executive Order on Paid Sick Leave for Federal Contractors

    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.

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

    1 Comment

    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.

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

    Comments Off on Consult a Disability (LTD) Lawyer Early in the Disability Claim Process

     

    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.

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

    Comments Off on Widespread Violations of Overtime Law In Marcellus Shale Oil and Gas Industry

    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.