Labor and Employment

In Bostock v. Clayton County, Georgia, the United States Supreme Court addressed whether an employer violated Title VII of the Civil Rights Act of 1964 by considering whether an employee is gay or transgender in making employment decisions. The court held that an employer violates Title VII when it intentionally relies in part on an individual employee’s homosexual or transgender status when deciding to discharge the employee because the employee’s sex is the “but-for” consideration­. (June 15, 2020)

In Harrison v. Health Network Laboratories LP, and Lehigh Valley Health Network, Inc., the ­­Supreme Court of Pennsylvania addressed whether the Pennsylvania Human Relations Act (PHRA) precludes a wrongfully terminated employee from filing a court action for retaliatory discharge under the Pennsylvania Whistleblower Law (Whistleblower Law), when the plaintiff reported discriminatory conduct made unlawful by the PHRA, but was not herself the subject of the underlying discrimination. The court held plaintiffs who are not themselves the victims of discrimination based on their own race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, or national origin, but who report discriminatory conduct made unlawful by the PHRA, may pursue a claim under the Whistleblower Law notwithstanding the viability of a claim under the PHRA for the same harm. (June 16, 2020)

In Rullez Co. LLC v. Tel-Stream, Inc., the ­­Supreme Court of Pennsylvania addressed whether employer can enforce a covenant not to compete given after the first day of employment in the post-employment timeframe although no new consideration was supplied in connection with its execution. The court held that since it was undisputed that physical execution of the covenant took place after the first day of work and additional consideration was needed to render it enforceable. Therefore, the employer failed to establish a likelihood of success on the merits. (June 16, 2020)

In In the Matter of M.M., Department of Human Services, the Superior Court of New Jersey, Appellate Division, held a career-service employee at a State hospital could not directly appeal to the Civil Service Commission for the disciplinary action taken against her by the Department of Human Resources and the Department of Health, as the employee was found in violation of state policy and disciplinary action was imposed. Direct appeals are only authorized where disciplinary action is not imposed. Rather, the employee is required to first challenge the findings and discipline in a departmental hearing or, if applicable, pursuant to the procedure in a collection negotiations agreement. (March 19, 2020)

In Razak v. Uber Technologies, Inc., the United States Court of Appeals for the Third Circuit considered whether UberBLACK drivers should be considered Uber employees or independent contractors within the meaning of the Fair Labor Standards Act (FLSA). The court held that, although determination of employment status under the FLSA is a question of law, the trial court’s entry of summary judgment in Uber’s favor was wrong because there were numerous disputed issues of fact that affected the legal determination of the drivers’ employment status. (March 3, 2020)

In Balducci v. Cige, the Supreme Court of New Jersey addressed the validity of a retainer agreement in the context of an action brought under New Jersey’s Law Against Discrimination (LAD). The court found that there was credible evidence that the client never agreed to guarantee her attorney his hourly rate if the lawsuit did not prevail, thus invalidating the retainer agreement. The court further expressed no ultimate conclusion on any ethical implications pertaining to attorneys handling employment law or fee-shifting claims, and referred those matters to an ad hoc committee. (January 29, 2020)

In Paul v. Murphy, the United States Court of Appeals for the First Circuit addressed whether a former employee of the United States General Services Administration met her burden of establishing that her employer’s asserted nondiscriminatory reason for taking adverse actions against her was pretextual. The court held that there was no evidence that the employee’s male coworkers, who allegedly received different treatment, were similarly situated. Additionally, the court found that stray remarks about the employee’s age did not provide a basis to find that she had been discriminated against based on her age. Finally, the court found that there was insufficient evidence to find that the words “EEO activity” written next to her name on a notice board were causally connected to her protected activity. (January 24, 2020)

In Santana-Vargas v. Banco Santander, the United States Court of Appeals for the First Circuit addressed whether a former bank manager had demonstrated that he was fired due to his age rather than his poor performance. The court found that the bank had advanced a legitimate reason to terminate the employee: his poor performance documented by over three years of poor reviews and that there was no evidence that these reviews were pretextual. (January 27, 2020)

In City of Pittsburgh v. Fraternal Order of Police, the Supreme Court of Pennsylvania addressed whether to reinstate an arbitration award to police officers required to work during a privately administered marathon on their day off. The court reinstated the award because it found that the arbitrator did not exceed her authority to address terms and conditions of employment in the collective bargaining agreement. (January 22, 2020)

In Weiss v. Loomis, Sayles & Company, Inc., the Appeals Court of Massachusetts addressed whether a software engineer, alleging he was improperly classified as an independent contractor rather than an employee, had standing to bring a misclassification claim under the Massachusetts Wage Act against a financial services company he provided full-time services to. The financial services company argued that he lacked standing because the company obtained his services through a business-to-business relationship with a technology staffing firm, which had in turn contracted with the software engineer’s pre-existing consulting company. The court held that the facts here (the financial services company’s contracting for the services of the specific individual software engineer by name, as well as the time contracts and contractual restrictions on work for others) are enough to permit a jury to consider whether there is really a business-to-business relationship that would exempt the arrangement from the Massachusetts Wage Act. (January 23, 2020)

In Ferreras v. American Airlines, the United States Court of Appeals for the Third Circuit addressed whether to certify a class of airline workers claiming New Jersey Wage and Hour Law violations because the airline’s timekeeping system defaulted to paying employees based on work schedule rather than time worked. The court held that the district court did not conduct a rigorous evidentiary analysis before certifying the classes and that individualized inquiries prevented plaintiffs from meeting the commonality and predominance requirements for class certification. (December 24, 2019)

In Donovan v. New York City Housing Authority, the New York Supreme Court, First Department, considered an employer’s motion to compel an employee’s medical records in an action alleging employment discrimination and retaliation. The court found that the employee put her physical condition at issue by alleging that the employer created a hostile work environment that resulted in physical distress and a miscarriage. (December 26, 2019)

In Flaherty v. Entergy Nuclear Operations, Inc., the United States Court of Appeals for the First Circuit addressed whether a security officer at a nuclear facility had established disability discrimination and failure to accommodate under the Americans with Disabilities Act (ADA). To establish a claim under the ADA, the employee must establish that he was 1) disabled, 2) otherwise a qualified individual for the job, and 3) discharged because of the disability. Although the security offer had a number of health issues, including service-related PTSD and chronic fatigue syndrome, he had failed to disclose these conditions on the annual medical questionnaires used for evaluating security access. When his omissions were discovered, he lost his security clearance. Because security clearance was a necessary prerequisite for the job, the court held that the employee could not establish that he was a qualified individual, and thus had no ADA claim. (December 23, 2019)

In Lynn v. State Employees Retirement Board, the Supreme Court of Pennsylvania addressed whether a change of beneficiary designation and plan option, under the State Employees’ Retirement System (SERS), is effective upon mailing or upon receipt by SERS, when SERS received the change after the former state employees’ death. The court rejected the common law “mailbox rule” because allowing a change after the death would essentially create an impermissible death benefit under state law. Furthermore, since the Board controls the benefits and has a fiduciary duty to the recipients of the retirement system, allowing a post-death beneficiary or plan change would make it difficult for the members of the Board to execute their duties. (November 20, 2019)

In Deal v. The Children’s Hospital of Philadelphia, the Superior Court of Pennsylvania held that an at-will employee could be terminated on the basis of pending criminal charges because the presumption of innocence in criminal proceedings guaranteed by the Pennsylvania Constitution did not implicate the “public policy exception” to the general rule allowing employers to terminate an at-will employee for any reason. (November 19, 2019)

In Chevalier v. General Nutrition Centers, the Supreme Court of Pennsylvania addressed the proper calculation for overtime benefits for non-exempt salaried workers under the Pennsylvania Minimum Wage Act of 1968 (PMWA). The employees were paid a base salary in addition to commissions. While both the employer and employees agreed the employer should use the Fluctuating Work Week Method (FWW) to determine overtime compensation, they disagreed whether the employees should be entitled to a 0.5 or 1.5 multiplier for any hour worked over forty. The court held that despite the employee’s partially commissioned salary, the employee should be entitled to use the 1.5 multiplier in calculating his overtime hours. (November 20, 2019)

In Milton Hershey School v. Pennsylvania Human Relations Commission, the Commonwealth Court of Pennsylvania reversed and remanded a Pennsylvania Human Relations Commission denial of the Milton Hershey School’s (MHS) motion to dismiss on the basis that it was a public accommodation subject to suit. The court noted that a determination of whether a school constituted a public accommodation was a fact-based inquiry to determine if the school: (1) solicited/accepted students from the general public; (2) was under Commonwealth supervision; and (3) was distinctly private in nature. The court noted that the Commission below had not held an evidentiary hearing to determine if these factors were satisfied and reversed and remanded the matter with orders to hold an evidentiary hearing. (November 4, 2019)

In Charles v. Leo, the Appeals Court of Massachusetts addressed whether a plaintiff alleging racial discrimination and a failure-to-promote claim needed to show that she applied for the promotions she did not receive. The court held that a rational jury could have inferred that it would have been futile for the employee to apply for particular positions when a manager instructed the employee's supervisor to give her an unjustified performance review because of her “uppity” behavior. (October 31, 2019)

In Boston Police Department v. Civil Service Commission, the Supreme Judicial Court of Massachusetts addressed whether the police department properly bypassed an applicant for employment in 2013 solely because his hair sample from 2010 tested positive for cocaine. The court held that the department had not demonstrated reasonable justification for the bypass given the documented concerns regarding the general reliability of the hair drug test and the credible evidence from the applicant himself, who strenuously denied having used cocaine. (October 30, 2019)

In In re Euralee Childs v. The Board of Education of the City School District of the City of New York, the New York Supreme Court, 1^st Department stated that a probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith. The court found termination was proper where termination was based on two incidents which the petitioner did not dispute, and had an “Unsatisfactory” rating. (October 22, 2019)

In Reisman v. Associated Faculties of the University of Maine, the United States Court of Appeals for the First Circuit addressed an economics professor’s First Amendment challenge to a Maine statute governing collective bargaining between the state’s university system and its faculty. The statute provided that the union with majority support within each bargaining unit (groupings of employees based on occupation) would be recognized as the sole and exclusive bargaining agent for all employees in the bargaining unit. The court, noting that the statute preserved the rights of every employee to refrain from joining a union and to present their grievances to the university without the permission of the bargaining agent, concluded that the statute did not burden the professor’s First Amendment rights. (October 4, 2019)

In South v. Metropolitan Transportation Authority, the Supreme Court of New York Appellate Division First Department, addressed whether the lower court properly denied the plaintiffs' motion for summary judgment on their Labor Law Section 240(1) claims. The court ruled that the plaintiffs’ evidence that the lift truck on which they were working lacked a guardrail and that they fell and were injured when the lift truck was struck by a passing bus established a violation of Labor Law Section 240(1). The court further held that the defendants’ reliance on hearsay evidence as to how the accident may have occurred is insufficient to defeat a motion for summary judgment. (October 8, 2019)

In Javitz v. County of Luzerne, the United States Court of Appeals for the Third Circuit considered whether an “at will” public employee’s termination for complaining of being secretly recorded during a union meeting violated the employee’s rights under the First and Fourteenth Amendments to the United States Constitution. The court held that, as an “at will” employee, the employee had no property interest in her position and, therefore, her termination did not violate the Fourteenth Amendment’s Due Process Clause. However, because the county fired the employee for speech that was not required by her job duties, the termination based on her statements violated the employee’s First Amendment rights. (October 10, 2019)

In Zeigler v. Rater, the United States Court of Appeals for the First Circuit addressed whether a psychiatrist defamed an employee by disseminating a report regarding the employee’s fitness to return to work after a period of medical leave. The court ruled in favor of the psychiatrist because a communication respecting the character of an employee is qualifiedly privileged if made in good faith by a person who has duty in the premises to one who has a definite interest therein. The court found that the report was not made recklessly and did not rely on biased accounts of other employees. (October 1, 2019)

In Verma v. 3001 Castor, Inc., the United States Court of Appeals for the Third Circuit considered whether an exotic dancer, as a member of a class action, could sue her employer, a gentlemen’s club under the 29 U.S.C. Fair Labor Standards Act (FLSA) for unpaid minimum wages. The club had a complicated multi-tiered system wherein the dancers were ostensibly classified as independent contractors responsible to rent stage time, pay a DJ and tip a “house mom.” The club did not pay the dancers a fixed rate and they were paid solely in tips when dancing on stage and dance fees for private dances. The dancers had specific schedules and the club closely monitored their attendance, appearance, demeanor and customer service. The club assessed fines when the dancers failed to meet expectations. The court found that in effect the dancers were employees and not independent contractors and thus could pursue a class action claim for unjust enrichment. (August 30, 2019)

In Hall-Brewster v. Boston Police Department, the Appeals Court of Massachusetts addressed whether a former Boston detective was entitled to notice and a pre-deprivation hearing before being reassigned as a patrol officer. The court ruled that the detective was entitled to notice and a pre-deprivation hearing and awarded him nominal damages. However, the court held that he was not entitled to reinstatement because the reassignment was properly sustained after a post-deprivation hearing. (September 5, 2019)

In Stone v. Troy Construction, LLC, the United States Court of Appeals for the Third Circuit addressed the appropriate standard for determining whether a violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.§ 201 et seq., is “willful,” insofar as the word is used in the statute of limitations applicable to civil actions. The court found that willfulness under the FLSA does not require a showing of egregiousness, but is established where the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA. (August 20, 2019) 

In United States Department of Labor v. Bristol Excavating, Inc., the United States Court of Appeals for the Third Circuit considered whether, within the meaning of the Fair Labor Standards Act, 29 U.S.C.§ 201 et seq., an employer must treat bonuses provided by third parties as “remuneration for employment” when calculating employees’ overtime rate of pay. The court held that incentive bonuses provided by third parties may or may not be remuneration for employment, depending on the understanding of the employer and the employee. (August 20, 2019)

In Rozenblit v. Lyles, the Superior Court of New Jersey, Appellate Division, addressed the legality of a section in a collective bargaining agreement that required the Board of Education to pay the salaries and benefits of two teachers who were selected by members of the union to serve as president and his/her designee. The court held that the legislature did not intend to authorize boards of education to enter into this type of contractual arrangement under N.J.S.A. 18A:30-7. The disbursement of public funds pursuant to this contractual agreement, therefore, was beyond the Board’s authority. (August 21, 2019)

In Lico, Inc. v. Dougal, the Superior Court of Pennsylvania addressed a trial court’s denial of a request for injunctive relief relating to a non-competition agreement. Because the duration of the non-competition agreement lapsed during the pendency of the appeal, the appeal was deemed moot and dismissed accordingly. (August 9, 2019)

In Jaludi v. Citigroup, the United States Court of Appeals for the Third Circuit addressed whether an employer may require arbitration of a former employee’s retaliatory claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), and the Sarbanes-Oxley Act of 2002. The court held that the employee’s RICO claims were subject to arbitration as provided for by the arbitration provision in the employee handbook. However, when the employer released the latest employee handbook, federal law prohibited pre-dispute agreements to arbitrate whistleblower claims under Sarbanes-Oxley. Therefore, no agreement existed between the employee and employer to arbitrate Sarbanes-Oxley claims. (August 6, 2019)

In ADP, LLC v. Erik Kusins, the Superior Court of New Jersey, Appellate Division addressed whether the restrictive covenant agreements executed by six former employees, in exchange for receiving stock awards, were enforceable after they left their positions as sales representatives. The court held that the agreements were enforceable, in part, finding specifically that the agreements could only prevent the solicitation of the employer’s actual clients rather than prospective clients and could only prevent a former employee from providing services to a competitor-company for a reasonable amount of time and in the same geographical territory that the employee managed while employed by the former employer. (July 26, 2019)

In Lazo v. Sodexo, the United States Court of Appeals for the First Circuit addressed whether a food-service-provider violated the Massachusetts Tips Act when it subjected two of its corporate clients to an eighteen percent “administrative charge” for food services to an Executive Dining Room, but did not provide these funds to the wait staff as tips. Concluding the food-service-provider did not violate the Tips Act, the court explained that the eighteen percent charge was expressly stated as an administrative charge and the charge was further and expressly explained to not represent a tip or service charge for the wait staff. Because the charge was levied on the service provider’s corporate clients directly, not the individual diners, the food-service-provider was under no obligation to disclaim to the individual diners that the administrative charge was not intended to serve as a tip. (July 23, 2019)

In Commonwealth of Pennsylvania v. President United States of America, the United States Court of Appeals for the Third Circuit addressed whether the District Court’s order preliminarily enjoining the enforcement of rules that permit employers to refuse contraceptive care coverage based on personal religious, ethical, or moral beliefs is appropriate. Through the Women’s Health Amendment to the Affordable Care Act, Congress directed the Health Resources Services Administration (HRSA) to issue guidelines setting forth the preventive healthcare services that women should be provided, including contraceptive care. Thereafter, HRSA and the Departments of Labor and Treasury promulgated regulations that expanded the entities that could invoke an exemption to the requirement of covering contraceptive services. The court found that HRSA was not granted the authority to exempt these entities without complying with the Administrative Procedure Act (APA). The court therefore held that the state plaintiffs were likely to succeed in proving the agencies did not follow the APA and upheld the preliminary injunction. (July 12, 2019)

In Deforte v. Borough of Worthington, the Pennsylvania Supreme Court considered whether civil-service employment protections apply to police officers of all borough police departments regardless of department size. The court read the Borough Code and the Tenure Act as in pari materia, meaning as about the same subjects, and held that the “normal working hours” criterion in the Borough Code for assessing membership in a police force also applies for the same purpose under the Tenure Act. (July 17, 2019)

In Exeter Township v. Pennsylvania Labor Relations Board, the Pennsylvania Supreme Court considered whether the Municipalities Planning Code (MPC) provides sufficient basis to determine that a zoning officer is a management-level employee under the Public Employee Relations Act. The court noted that the MPC does not clearly identify a zoning officer as a management-level employee because it provides that a zoning officer shall administer zoning ordinances literally. Consequently, the court held actual evidence of a zoning officer’s duties was required for one to be held a management-level employee, which requires the employee to determine policy or be responsible for its implementation. (July 17, 2019)

In Millcreek Township School District v. Millcreek Township Educational Support Personnel Association, the Pennsylvania Supreme Court considered whether the Commonwealth Court disregarded the law when it vacated a grievance arbitration award based on an interpretation of the parties’ collective bargaining agreement. The court held that the Commonwealth Court erred in substituting its own interpretation of the contract for the arbitrator’s interpretation where the arbitrator’s interpretation was rational, especially in light of the arbitrator’s finding of facts, which are entitled to deference, concerning the parties’ contractual intentions. (July 17, 2019)

In Pennsylvania Restaurant and Lodging Association v. City of Pittsburgh, the Supreme Court of Pennsylvania considered the scope of the Business Exclusion of the Home Rule Charter and Optional Plans Law. The Business Exclusion prohibits a home-ruled municipality from “determin[ing] duties, responsibilities[,] or requirements placed upon businesses,” except as provided by statutes applicable to the entire Commonwealth. The court held that a Pittsburgh law requiring paid sick leave fell outside the exclusion because it fell within a Commonwealth statute empowering municipalities to enact ordinances relating to “disease prevention and control.” (July 17, 2019)

In Camacho v. Ironclad, the New York Supreme Court, Appellate Division, First Department, addressed liability for violations of Labor Law § 240(1). The court ruled that the plaintiff established prima facie a violation of Labor Law § 240(1) by showing that the plaintiff’s fall from the scaffold, without guard rails or other protective devices, was a proximate cause of the accident. (July 9, 2019)

In Renner v. The Court of Common Pleas of Lehigh County, the Supreme Court of Pennsylvania granted a petition for allowance of appeal to address whether the Pennsylvania Human Relations Law abrogates the judicial branch’s sovereign immunity for purposes of a discrimination suit and, if so, whether application of the Pennsylvania Human Relations Law permitting an employee of the judicial system to bring a claim for workplace discrimination violates constitutional separation of powers limitations. (July 2, 2019)

In G.A.-H. v. K.G.G., the Supreme Court of New Jersey addressed whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee. The court found that there were no facts to find that either the co-worker or employer had knowledge of the relationship, therefore there was no opportunity to determine whether vicarious liability was applicable based upon negligent hiring, supervision and training. (June 26, 2019)

In Calabotta v. Phibro Animal Health Corporation, the Superior Court of New Jersey, Appellate Division, held that the New Jersey Law Against Discrimination (NJLAD), notwithstanding the reference to “inhabitants” in its preamble, can extend in certain circumstances to plaintiffs who reside or work outside of New Jersey. However, whether the NJLAD applies to a particular nonresident’s claims turns on the weighing of New Jersey’s choice-of-law factors. In applying those factors, the court concluded that they strongly weighed in favor of applying New Jersey law, not Illinois law, and thus NJLAD’s ban against associational discrimination applied to the defendants’ alleged failure to give the plaintiff fair consideration for a promotion in New Jersey. (June 27, 2019)

In Branch v. Cream-O-Land Dairy, the Superior Court of New Jersey, Appellate Division, addressed whether an employer’s reliance on determinations made by Department of Labor officials regarding individual employee complaints satisfied the requirements of the good-faith defense available under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a, et seq. The court held, as a matter of first impression, such discrete determinations by Department of Labor officials – which do not rise to a degree of formality so as to constitute broadly applicable guidance and are also subject to further administrative appeal – do not constitute an “administrative practice or enforcement policy,” and are, thus, insufficient to invoke the good-faith defense. (June 19, 2019)

In Colon v. Third Avenue Open MRI, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed the difference between routine maintenance and repairs for purposes of liability under Labor Law § 240(1), a workplace safety measure. Repairs implicate potential liability whereas routine maintenance does not. The court found that the leak the handyman was repairing when he was injured was a spill from the apartment above, rather than an issue with the plumbing; therefore, the handyman was engaged in “routine maintenance” and not a repair. (May 28, 2019)

In Ungard v. Williamsport Bureau of Police Pension Board, the Commonwealth Court of Pennsylvania addressed whether a government employee must forfeit his pension under the Pension Forfeiture Act after he was convicted of a crime during his employment. The court held that when the crime is unrelated to public office or public employment, the pension is not forfeited. (May 30, 2019)

In Robbins v. Consolidated Rail Corporation, the Superior Court of Pennsylvania considered whether the family of a deceased railroad employee was permitted to bring a Federal Employers Liability Act case in Pennsylvania against the railroad company, even though the decedent only ever worked in Indiana. The court held that the decedent’s family could choose to sue in Pennsylvania because the policies and procedures related to the decedent’s illness and subsequent death were determined at the company’s headquarters in Philadelphia. (May 29, 2019)

In Donis v. American Waste Services, LLC, the Appeals Court of Massachusetts addressed whether workers seeking to recover wages owed under a Massachusetts statute setting a specific minimum wage for certain public works contracts are bound by the statute’s three-year statute of limitations, or whether they may recover outside that limitations period through the mechanism of a common-law breach-of-contract claim (subject to a six-year statute of limitations). The court concluded that the statute preempts the workers common-law breach-of-contract claim, barring them from recovery outside the statute’s three-year limitations period. (May 22, 2019)

In Smith v. University of Scranton, the United States Court of Appeals for the Third Circuit addressed whether a terminated employee stated a prima facie case for retaliation under the Americans with Disabilities Act. Although the employee had asked for reasonable accommodations and suffered an adverse action (i.e., termination), the court determined that the adverse action was a result of generally poor performance over a lengthy period of time and not her request for reasonable accommodations. The court further found that, even if the employee had established a prima facie case, her poor performance would have constituted a legitimate, non-retaliatory reason for her termination. (May 9, 2019) 

White and Williams attorney Nancy Conrad secured this favorable result for our client.

In Sullivan v. Sleepy’s LLC, the Supreme Judicial Court of Massachusetts held that an employer may not retroactively allocate employees’ sales commissions as hourly and overtime wages even if these commissions equaled or exceeded the minimum wage for the employees’ first forty hours of work and one and one-half times the minimum wage for all hours worked over forty hours or on Sunday. Employees paid in commissions or advances on commissions are entitled to separate and additional payments of one and one-half times the minimum wage for every hour worked above forty or on Sunday. The court stated that employers must “respect the purposes of the overtime law . . . because such payments are necessary to ‘reduce the number of hours of work, encourage the employment of more persons, and compensate employees for the burden of a long work week.’” (May 8, 2019)

In Konstantynovska v. Caring Professionals, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an arbitration provision in a collective bargaining agreement bound former employees. The court held that one employee was bound by the arbitration agreement because the amendment was entered into while she was still employed, even though it was not ratified until after her employment. However, the court held that another employee and other class members could not be compelled to arbitrate their claims because they were no longer the defendant’s employees when it was executed, they were not parties to the agreement, and there was no evidence that the union was authorized to proceed on their behalf. (May 9, 2019)

In Matter of Village of Bronxville v. Bronxville Police Taylor Act Committee, the New York Supreme Court, Appellate Division, Second Department, addressed whether a police officer waived his right to arbitrate under a collective bargaining agreement. The police officer had previously commenced a litigation proceeding arguing that the collective bargaining agreement had been breached. The court held that by commencing an action at law involving arbitrable issues, the police office waived whatever right he had to arbitration. The court further noted that once waived, the right to arbitrate cannot be regained. (April 10, 2019)

In ADP, LLC v. Nicole Rafferty, the United States Court of Appeals for the Third Circuit addressed whether certain restrictive covenants, which high-performing employees entered into as a condition of a stock award, constituted an impermissible restraint on trade under New Jersey law. Before high-performing employees could enter into a stock-award program, the employees first had to enter into a second-tier restrictive covenant agreement which included a strengthened non-solicitation agreement and a strengthened non-compete agreement. The court determined that these strengthened covenants were not unenforceable in their entirety because they served a legitimate business interest. However, these covenants may place an undue hardship on employees because they are overbroad. New Jersey law favors blue-penciling the overbroad covenants over voiding the covenants. (April 26, 2019)

In Zimmerman v. Sussex County Educational Services Commission, the Supreme Court of New Jersey held that the New Jersey Tenure Act's protection of compensation for tenured teachers is not restricted to just protecting the hourly rate of pay. In this case, the Commission reduced two part-time tenured teachers’ total number of hours per year, which caused the teachers to receive lower annual compensations, even though their hourly wages had increased. The court also clarified that pertinent rights of tenured staff and seniority that comes with tenure must be considered. Accordingly, the court remanded the case to the Commissioner of Education to develop a record of the reasons for the allocation of work amongst tenured and non-tenured part-time teachers, which resulted in the reduced number of hours for the tenured teachers. (April 30, 2019)

In Tundo v. County of Passaic, the United States Court of Appeals for the Third Circuit addressed whether former civil service employees in New Jersey have a property interest protected by the Fourteenth Amendment in staying on rehire lists. The court determined that the New Jersey Civil Service Commission has significant discretion to take former employees off of its rehire lists. Therefore, the court held that former civil service employees in New Jersey have no constitutionally protected property interest in a benefit if the government has broad discretion to deny that benefit, unless it constrains that discretion. (May 2, 2019)

In Vertical Systems Analysis, Inc. v. Peter J. Balzano, the New York Supreme Court, Appellate Division, 1^st Department, addressed whether a restrictive covenant in an employment agreement was enforceable. The court concluded that the employee did not, as a matter of law, violate the employment agreement including its nonsolicitation provision, because the employee – an elevator inspector – “did not provide unique or extraordinary services or have access to any trade secrets or proprietary information that would require the enforcement of a restrictive covenant.” (April 25, 2019)

In Lamps Plus v. Valera, the United States Supreme Court addressed whether a putative class action, instituted by an employee after a hacker tricked his employer into disclosing the tax information of 1,300 employees, was subject to the arbitration clause in the employee’s employment contract. Specifically, the Court considered whether arbitration could be compelled when the agreement was ambiguous on the availability of class arbitration. The Court held that, under the Federal Arbitration Act, an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration. (April 24, 2019)

In Gammella v. P.F. Chang’s China Bistro, Inc., the Supreme Judicial Court of Massachusetts held that employees could assert a class action under the Massachusetts Wage Act and the Massachusetts Minimum Fair Wage Law against their restaurant-employer. Since the restaurant failed to make thousands of payments to hundreds of employees, failed to provide record keeping justifying the nonpayments, and refused to provide the names of the employees involved, it was reasonable to infer that the number of class plaintiffs would satisfy the numerosity requirement. (April 12, 2019)

In Dickson v. Community Bus Lines, Inc., the Superior Court of New Jersey, Appellate Division, held that a perceived disability claim based on obesity under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, must be grounded upon direct or circumstantial evidence that an employer perceived its employee to be disabled due to a medical condition that caused him to be overweight. (April 4, 2019)

In Jones v. School District of Philadelphia, the Commonwealth Court of Pennsylvania held that back pay awards to wrongfully terminated teachers were based on improper calculations. The court rejected the overly broad evidence offered by the school district that purported to show the teachers failed to mitigate damages by seeking new employment. (April 2, 2019)

In Saquicaray v. Consolidated Edison Company of N.Y., Inc., the Supreme Court of New York, Appellate Division, First Department, considered whether the employee made a prima facie showing that the work he was performing for his employer at the time of his accident was covered under [Labor Law § 240(1)]. The court held that the employee made a prima facie showing that the work was covered under § 240(1) because: 1) the employer routinely required its employees to perform the work; 2) the employer required its employees to perform the work because it was contractually obligated to perform the work for a third party; and 3) the employee was performing the work on an active construction site. (April 2, 2019)

In Weaver v. Gotham Construction Company LLC, the Supreme Court of New York, Appellate Division, First Department, considered whether a construction company was liable under Labor Law § 200 or common-law negligence for injuries a construction worker sustained while on the job site. The court held that the construction company could not be liable under § 200 or for common law negligence because it had established that it did not control the method and means of the work that the construction worker was performing when he was injured. The court came to this holding because the construction company did not employ that construction worker nor did its superintendents direct that construction worker in performing his job. (April 2, 2019)

In Robinson v. First State Community Action Agency, the United States Court of Appeals for the Third Circuit addressed whether an error in a jury instruction allowing a former employee to claim damages under the American Disabilities Act for being regarded as having an impairment was waived by the employer. The court held that the employer waived the argument because the former employee routinely raised the “regarded as” claim throughout the litigation and the employer did not object until the appeal. (April 1, 2019)

In Wild v. Carriage Funeral Holdings, the Superior Court of New Jersey, Appellate Division, addressed the issue of whether an employee can state a claim for unlawful discrimination under the Law Against Discrimination (LAD) based on his termination for legally using medical marijuana for cancer treatment. The court concluded that the New Jersey Compassionate Use Medical Marijuana Act’s refusal to require an employment accommodation for a user does not mean that the Compassionate Use Act has immunized employers from obligations already imposed elsewhere including the LAD. (March 27, 2019)

In Bowser v. Clarion County, the Commonwealth Court of Pennsylvania held that the County and the Court of Common Pleas were separate governmental entities for purposes of an employment age discrimination suit. In this case, a former probation officer for the court alleged that he was fired due to his age, while the defendants asserted that he was fired for playing golf when he was supposed to be working and lied about it. The court looked to the County's lack of control over his day to day operations, held that it was not joint employer of the probation officer with the Court of Common Pleas, and affirmed the dismissal of the case against the County. (March 18, 2019)

In Community College of Philadelphia v. Faculty and Staff Federation of the Community College of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether the Pennsylvania Public Employee Relations Act grants a trial court subject matter jurisdiction over a complaint made by a “public employer” requesting an injunction of an “employee organization’s” strike. The court determined a trial court has jurisdiction to enjoin strike activity that poses a clear and present danger or threat to the health, safety and welfare of the public. (March 12, 2019)

In Ortiz v. Cedar Crest College, the United States Court of Appeals for the Third Circuit addressed whether an employer’s stated reason for terminating an employee was pretextual. To show pretext, the ex-employee must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Where the ex-employee fails to submit evidence to discredit the employer’s reason for termination and fails to submit enough evidence of a discriminatory reason, no reasonable jury would find the employer’s stated reason was pretextual. (March 12, 2019)

White and Williams lawyers Nancy Conrad and George Morrison secured this favorable result for our client.

In Ludwig v. McDonald, the Superior Court of Pennsylvania addressed when an employee is within the scope of his employment with respect to liability for a motor vehicle accident. The court held the employee was not within the scope of his employment when he was on vacation at the time of his accident, was driving his personal vehicle, and was returning from his employer’s premises which he had visited for only a few minutes to retrieve his personal tools he had left there to use for a personal project. (February 21, 2019)

In Ferman v. Sturgis Cleaners, Inc., the Supreme Judicial Court of Massachusetts addressed whether a group of employees whose Wage Act claim against their employer resulted in a favorable settlement agreement and stipulation of dismissal had “prevailed” in their suit, entitling them to attorneys’ fees and costs under the Wage Act’s fee-shifting provision. The parties disputed whether Massachusetts law followed the test for determining prevailing party status under the federal fee-shifting states (the Buckhannon test) or the catalyst test, which examines whether the plaintiff’s lawsuit is a necessary and important factor in causing the defendant to ground a material portion of the requested relief. The court determined that the catalyst test applies to Wage Act claims, and that the Wage Act entitled the employees to attorneys’ fees. (February 19, 2019)

In Yee v. Massachusetts State Police, the Supreme Judicial Court of Massachusetts addressed the adverse employment action element necessary to sustain a cause of action for discrimination in violation of Mass. Gen. Laws c. 151B, § 4. An Asian-American trooper worked as a lieutenant shift commander for the Massachusetts State Police in South Boston, but had requested a transfer to a unit headquartered at Logan International Airport because the position at the airport included better overtime and paid details. Over four years of his continuously expressed desire for the transfer, multiple white male lieutenants were transferred to the airport. Holding that the a failure to grant a lateral transfer to an employee’s preferred position may constitute an adverse employment action under c. 151B where there are material differences in compensation, terms, conditions or privileges of employment, the court reasoned that the trooper’s desire for a transfer to a location where he had more opportunity to earn additional compensation through the greater availability of overtime and paid details is an objective indicator of desirability. (January 29, 2019)

In Bedoya v. American Eagle Express Inc., d/b/a AEX Group v. KV Service, LLC, the United States Court of Appeals for the Third Circuit addressed whether the Federal Aviation Authorization Administration Act of 1994 (FAAAA) preempted the class of delivery drivers’ claims that they were misclassified as independent contractors when they were actually employees entitled to protection under the New Jersey Wage and Hour Law (NJWHL) and New Jersey Wage Payment Law (NJWPL). The Third Circuit determined, on an interlocutory appeal from the district court’s denial of the employer’s motion for judgment on the pleadings, that the effect New Jersey’s “ABC classification test has on prices, routes, or services with respect to the transportation of property is tenuous and insignificant” and, as a result, is not preempted by the FAAAA. (January 29, 2019)

In Skuse v. Pfizer, Inc., the Superior Court of New Jersey, Appellate Division, addressed the validity of employee consent to a voluntary agreement to submit to binding arbitration for future claims against the employer. The court held that the employer’s email of a “training module” to its employees describing the company’s mandatory arbitration policy and asking its employees to “acknowledge” the agreement by clicking a button was insufficient to create enforceable consent to arbitration. The court found that the module failed to request employees to provide signatures conveying their agreement or to memorialize that they expressly agreed to the policy. (January 16, 2019)

In New Prime Inc. v. Oliveira, the United States Supreme Court addressed whether the Federal Arbitration Act (FAA) compels arbitration in disputes involving independent contractors. The Court found that the FAA’s exclusion relating to disputes involving “contracts of employment” encompasses contracts with independent contractors and consequently held that arbitration could not be compelled. It further found that a court, and not an arbitrator, should resolve whether a contract falls within the ambit or under an exclusion of the FAA. (January 15, 2019)

In Pittsburgh Logistics Systems v. BeeMac Trucking, the Superior Court of Pennsylvania addressed whether no-hire restrictive covenants between contracting companies were unenforceable as a matter of law. In a case of first impression, the en banc court held that the no-hire provisions were not enforceable and that, as a general rule, companies should not be entitled to circumvent traditional non-compete agreements (i.e. between an employer and employee) through an agreement with a third party. The court further reasoned that broad no-hire provisions violate public policy by preventing employees from seeking alternative employment with no additional consideration for the restriction. (January 11, 2019)

In Rodrock v. Commonwealth of Pennsylvania Public Utility Commission, the Commonwealth Court of Pennsylvania clarified the scope of the two-year statute of limitations for discrimination claims filed under thePennsylvania Human Relations Act. The trial court dismissed the complainant’s suit as untimely because he filed more than two years after the Pennsylvania Utility Commission (PUC) gave him notice of dismissal for his ageism complaint against his employer. The Commonwealth Court reversed the trial court, finding that the language of section (12)(c) of the Pennsylvania Human Relations Act makes a clear distinction between the PUC’s notice of dismissal and notice by the PUC that they are officially closing the matter. The statute of limitations should have started at the time the complainant received notice that the PUC closed his case and not when he received notice that the PUC dismissed his discrimination claim. (January 9, 2019)

In Breyan v. Department of Conservation and Natural Resources, the Commonwealth Court of Pennsylvania addressed whether a Pennsylvania administrative agency’s refusal to provide its employee benefits under the Heart and Lung Act is an appealable adjudication. The court held that where the adjudication does not affect the employee’s personal or property rights, the refusal is not appealable. (January 8, 2019)

In City of Erie v. General Teamsters Local Union (Kelly Kirsch), the Commonwealth Court of Pennsylvania addressed the deferential standard of review applied to labor arbitration awards under a collective bargaining agreement (CBA). The court found that an arbitrator’s award must be rationally derived and drawn from the essence of the CBA and the arbitrator cannot add terms that do not exist in a CBA. (January 3, 2019)

In Calixto v. Coughlin, the Supreme Judicial Court of Massachusetts addressed the interplay between two employee protection statutes: G.L. c. 149, § 148, the Massachusetts Wage Act (Wage Act), and the Federal Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C. §§ 2101-2109. The plaintiffs, former employees of a defunct company that had closed without notice, had obtained a default judgment for WARN Act violations in federal court and sought to hold the company’s corporate officers liable in state court under the Wage Act. The court held that damages for WARN Act violations do not constitute wrongfully withheld “earned wages” for which the officers could be individually liable under the Wage Act.  The court reasoned that “earned wages” only included work actually performed and wages presently due, not additional compensation awarded to the plaintiffs for prospective work that would have been performed but for the WARN Act violations. (December 28, 2018)

In Amquip Crane Rental v. Crane & Rig Services, the Superior Court of Pennsylvania addressed the propriety of a preliminary injunction that prohibited a former employee who never signed a covenant not to compete and others who did from 1) working in the crane rental industry in limited geographic areas; 2) soliciting customers of the original crane rental company; and 3) using its former employer’s confidential information. The court enforced the non-compete covenants that the individuals entered into with their employer. It further upheld the preliminary injunction against the former employee who did not sign a non-compete covenant because he breached his common law duty of loyalty to his former employer by diverting its customers to a competitor, inducing fellow employees to breach their covenants not to compete, and using confidential business information from his former employer to benefit his new employer. (November 27, 2018)

In Dittman v. UPMC, the Supreme Court of Pennsylvania addressed whether an employer must safeguard its employees’ personal information. The court held that when an employer stores sensitive employee information on internet-accessible computer systems, the employer has a legal duty to exercise reasonable care to safeguard that information. (November 21, 2018)

In Bermudez v. Dielectrics, Inc., the Appeals Court of Massachusetts held that terminating an employee for bringing a third-party negligence claim could constitute retaliation under the workers’ compensation statute, GL c. 152, § 75B (2). The court reasoned that the act allows an employee to bring both workers’ compensation and third-party negligence claims based on the same incident. (November 17, 2018)

In Greco v. Myers Coach Lines, Inc., the Superior Court of Pennsylvania evaluated the definition of “wrongdoing” under the Whistleblower’s Law. The court held that in order to prove a violation of the Whistleblower Law, the plaintiff must demonstrate she made a good faith report of some action by her employer or its agent, which, if proven, would constitute a violation of a law or regulation. Moreover, the report must be of an actual violation, not a potential or contemplated violation. (November 15, 2018)

In Mount Lemmon Fire District v. Guido, the United States Supreme Court addressed whether federal age discrimination laws codified in the Age Discrimination in Employment Act of 1967 (ADEA) applied to all public employees. The ADEA defined employer in part as having twenty or more workers most days. The court held that the numerosity requirement did not apply to states and political subdivisions. The definition of employer included an “also means” provision that is additive rather than clarifying so as to supplement the definition of “employer” to include “a State or political subdivision of a State” without reference to any prerequisite minimum number of employees. (November 6, 2018)

In Northern Berks Regional Police Commission v. Berks County Fraternal Order of Police, the Commonwealth Court of Pennsylvania addressed whether an arbitrator exceeded his powers in ordering the reinstatement of a municipal police officer whose employment had been terminated. Part of the officer’s conduct that gave rise to his termination included the misuse of official-use operating systems. As a result, the officer’s access to these information systems was permanently revoked. The police commission argued that compliance with the arbitration award would compel the police commission to commit an illegal act, since the officer’s duties require access to the official-use operating systems. The court determined that the officer must first exhaust all available administrative remedies in an attempt to regain his access to the information systems before the court can consider whether the police commission can implement the award without violation of the law. (October 31, 2018)

In Biewald v. Seven Ten Storage Software, Inc., the Appeals Court of Massachusetts found that a software company’s refusal to pay commissions to a terminated sales executive did not violate his sales contract or the Massachusetts Wage Act. The court reasoned that the contract termination unambiguously extinguished any right to commissions on sales for which the company had not yet been paid. (October 31, 2018)

In Flanzman v. Jenny Craig, the Superior Court of New Jersey, Appellate Division, refused to enforce an arbitration clause in an employment agreement because the arbitration clause failed to identify an arbitration forum or any process for conducting the arbitration. Accordingly, the court held that the arbitration clause in the employment agreement was invalid and unenforceable because the missing language proved there was no “meeting of the minds” between the parties as to the meaning of the arbitration clause. (October 17, 2018)

In Ellicott v. American Capital Energy, Inc., the United States Court of Appeals for the First Circuit held that an employee’s compensation, a sales commission of 40% of the profit margin on each sale and installation of the employer’s product, to be paid within 30 days after the client paid the employer and installation was complete, was a “commission” under the Massachusetts Wage Act, and not a profit-sharing scheme. The court held that the compensation met the two criteria for a commission to fall within the Wage Act: it was “definitely determined” and had become “due and payable.” (October 12, 2018)

In Johansmeyer v. New York City Department of Education, the Supreme Court of New York, Appellate Division, 2d Department, considered whether the defendants’ motion for summary judgement was properly denied on the issue of whether they could be held liable for their employee’s action. “An employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business, but the employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.” Here the court found that defendants failed to make a prima facie showing that they were not negligent with respect to the hiring, retention and supervision of the named-defendant employee because they could not submit facts that established they took appropriate measures to evaluate the named-defendant employee’s employment and fitness at the time he was allowed to intern for the defendants. (October 3, 2018)

In Palardy v. Township of Millburn, the United States Court of Appeals for the Third Circuit held that union affiliation is protected by the First Amendment’s freedom of association clause. The court further held that the union activity of public employees is always a matter of public concern, and therefore, public employees need not establish that their association is a matter of public concern or that specific freedom of speech issues are implicated. (September 28, 2018)

In Lupian v. Joseph Cory Holdings, LLC, the United States Court of Appeals for the Third Circuit addressed whether the Illinois Wage Payment and Collection Act (IWPCA) – which creates wage-related obligations for employers – was preempted by the Federal Aviation Administration Authorization Act (FAAAA). The court held the IWPCA does not have a significant impact on “carrier rates, routes, or services of a motor carrier” and does not frustrate the FAAAA’s deregulatory objectives because the impact of the IWPCA is too tenuous and peripheral to fall within the scope of the FAAAA preemption clause. (September 27, 2018)

In A. Anonymous v. Mount Sinai Hospital, the Supreme Court of New York, Appellate Division, 1st Department, addressed whether a claim for employment discrimination could be dismissed under New York City Human Rights Law when an employer hospital maintained that it was unaware of an employee’s disability. In this action, an employee alleged that he was improperly terminated based on a disability. In response, the hospital employer argued that the termination was based on excessive absence. The court noted that the employee failed to establish that the employer was aware of the disability. In reaching this conclusion the court found that the employee’s submission of a doctor’s note on letterhead that included a caption referring to housing assistance for those with HIV and AIDS did not alone create a triable issue of fact as to whether the employer knew of the employee’s HIV. (September 25, 2018)

In Long v. Southeastern Pennsylvania Transportation Authority, the United States Court of Appeals for the Third Circuit addressed whether violations of a statute—there, the Fair Credit Reporting Act(FCRA)—constituted an injury in fact for purposes of Article III standing. The court held that the plaintiffs sustained a concrete injury and thus had standing to sue for the failure to provide copies of credit reports before denying employment, a violation under the FCRA. As to the plaintiffs’ second claim, the court found that the plaintiffs did not have standing to sue for the failure to notify them of their rights under the FCRA. (September 10, 2018)

In Sauter v. Colts Neck Volunteer Fire Company No. 2, the Superior Court of New Jersey, Appellate Division, addressed whether a vote of the fire company to terminate the membership of plaintiff, a volunteer firefighter, constituted a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. The court held that plaintiff is not an employee of Fire Company No. 2 entitled to the protections of CEPA. (September 13, 2018)

In Oxford Global Resources, LLC v. Hernandez, the Supreme Judicial Court of Massachusetts upheld the dismissal of a lawsuit brought by an employer against a former employee who allegedly breached a confidentiality, non-solicitation and noncompetition agreement that he had entered into with the employer. There, the employer had its headquarters in Massachusetts, but the employee interviewed for the position, signed the agreement, trained, performed all of his job duties for the employer and allegedly breached the agreement in California. Nonetheless, the agreement declared that it would be governed by the laws of Massachusetts and that all lawsuits arising from the agreement would be brought in a Massachusetts court. After the employee left to work for a competitor in California, the employer filed suit against him in Massachusetts Superior Court. The court held that the Massachusetts choice of law provision in the agreement was not enforceable, where California substantive law would apply under the Massachusetts choice of law principles, and where the application of Massachusetts substantive law would violate the fundamental public policy of California favoring open competition and employee mobility. The court also held that the Massachusetts forum selection provision in the agreement did not bar the employee from moving to dismiss on the grounds of forum non conveniens. (September 7, 2018)

In Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, the United States Court of Appeals for the Third Circuit addressed whether the ministerial exception to justiciability of labor and employment matters prevented the court from proceeding on a breach of employment contract claim filed by the former pastor of a church. The court found that, because “spiritual leadership” was part of the employment contract, the court would be impermissibly tangling itself with religious governance and doctrine, prohibited by the Establishment Clause. (September 5, 2018)

In Morse v. Fidessa Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed a matter of first impression of whether the New York City Human Rights Law’s prohibition against discrimination based on “marital status” encompassed a prohibition against discrimination on the basis of the identity of a spouse. The court held that “marital status” “must be given a broader meaning than simply married or not married, and that it must encompass other factors that may be used to deem the relationship ‘disqualifying.’” The court held that the complaint, which alleges that the defendant corporation terminated the plaintiff’s employment after its spouse left the corporation, states a cause of action for discrimination under the New York City Human Rights Law. (September 6, 2018)

In Conard v. Pennsylvania State Police, the United States Court of Appeals for the Third Circuit addressed the standard for a First Amendment retaliation claim by a former public employee. Where the speech that triggered the alleged retaliation occurs after a plaintiff has left public employment, that plaintiff is not required to plead that public defendants engaged in retaliatory conduct of a particularly virulent character. The court further clarified that there is no bright line rule for the time that may pass between protected speech and actionable retaliation to preclude the finding of a causal link between the two, and that such a determination should be made following discovery. (August 28, 2018)

In Tortolano v. Lemuel Shattuck Hospital, the Appeals Court of Massachusetts addressed whether a state employee can bring claims against her employer where she failed to exhaust the grievance procedure set forth in an applicable collective bargaining agreement. The court concluded that, where an employee has not fully complied with the grievance procedure in a collective bargaining agreement, the employee cannot pursue a contract claim against the employer in court. (August 20, 2018)

In Landmark Capital Partners, LLC v. Greaves, the New York Supreme Court, Appellate Division, 1st Department, considered whether an employee established that a workplace accident was proximately caused by the employer’s failure to provide the required safety devices under Labor Law §§ 240(1) and (6). The court concluded that the worker established that the employer did not provide the required protection against gravity-related risks. (August 9, 2018)

In Long Island Minimally Invasive Surgery v. St. John’s Episcopal Hospital, the New York Supreme Court, Appellate Division, 2d Department, addressed the enforceability of a restrictive covenant in an employment contract. The court found that the covenant, which essentially prohibited the former employee from practicing his choice of medicine in the New York metropolitan area for two years, was unreasonable in time and area and unreasonably burdensome to the employee. (August 8, 2018) 

In Rivera-Rivera v. Medina & Medina, Inc., the United States Court of Appeals for the First Circuit found that an employee could maintain an age-discrimination claim against her employer where she testified that her manager and two of the company’s owners called her “old,” “useless,” and “slow” nearly every day. The court found she was under no obligation to provide the context and specific wording of every derogatory comment directed to her to meet her burden of proof, and that the pervasive, continuous comments could be considered severe enough to create a hostile work environment. (August 1, 2018)

In Belleville Education Association v. Belleville Board of Education, the Superior Court of New Jersey, Appellate Division, addressed whether the Public Employment Relations Commission (PERC) had jurisdiction to decide a complaint alleging retaliation from the Board of Education against its president, in violation of the Employer-Employee Relations Act (EERA), by filing tenure charges against him after he openly advocated against its unilateral implementation of new security policies. The court held that EERA grants PERC exclusive jurisdictionover unfair practice claims arising under EERA. (July 16, 2018)

In Hovatter v. CSX Transportation, Inc., the Superior Court of Pennsylvania addressed the standard for a forum non conveniensmotion in the context of an action brought under the Federal Employers’ Liability Act (FELA). As a threshold matter, the court found that a FELA plaintiff's choice of forum is not entitled to heightened deference. Furthermore, the court found that the defendant had established the weighty reasons for dismissal where the plaintiffs and all known witnesses were outside of Pennsylvania and where the underlying incidents occurred outside of Pennsylvania. (July 13, 2018)

In Scarlett v. City of Boston, the Supreme Court of Massachusetts ruled that a public school teacher satisfied her initial burden of proving race discrimination in the context of a reduction of force by showing that, of the seven teachers considered, only the two black teachers were terminated. Although the city provided evidence that it selected the teacher because of performance issues and her lack of secondary language skills or English as a second language certification, the court found that inconsistent testimony about the teacher’s performance was sufficient to meet her burden of showing evidence of pretext. (July 19, 2018)

In Janus v. American Federation of State, County, and Municipal Employees, the United States Supreme Court held that forcing a public employee to pay agency fees (i.e., fair-share fees) to a public-sector union which promoted ideas/positions the employee found objectionable was a violation of the First Amendment’s prohibition on compelling an individual to subsidize the speech of private speakers. (June 27, 2018)

In Kean Federation of Teachers v. Morell, the Supreme Court of New Jersey addressed the scope of the personnel exception to a public body’s obligation to provide notice of a meeting. Under the personnel exception, matters concerning the termination of a current employee may be held in private. If the public body plans to hold a private session, it must provide the employees with “reasonable notice” (referred to as a Rice Letter) to request the session be held in public. The court held that the university did not need to send a Rice Letter to a professor who was not being reappointed, because the university had intended to publicly discuss faculty reappointments. (June 21, 2018)

In Carr v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether the Department of Transportation violated a probationary employee’s First Amendment rights when the Department terminated the employee based upon the employee’s off-duty personal Facebook posts. In the Facebook posts, the employee discussed her frustration with the poor driving habits of local school bus drivers and she stated that she would gladly crash her vehicle into a school bus full of babies. The court determined that the employee’s speech, while reprehensible, was of public (not private) concern. The court then determined that the employee’s speech was protected and her employment should be reinstated. (June 12, 2018)

In Gillispie v. RegionalCare Hospital Partners Inc., the United States Court of Appeals for the Third Circuit addressed whether it was proper to dismiss a claim brought under the “whistleblower” protection provision of the Emergency Medical Treatment and Active Labor Act (EMTALA), where an employee was terminated after she disagreed with her employer’s decision not to report a potential violation of the EMTALA. The court held that to resolve whistleblower claims under the EMTALA, absent direct evidence of retaliation, courts should apply the burden-shifting scheme used in Title VII disparate-treatment claims. The court held that the EMTALA’s whistleblower provision protects employees who inform personnel in a covered facility of a possible EMTALA violation even where the employee does not also inform any governmental or regulatory agency. The employee-nurse was not protected under the whistleblower provision because she did not make a report; rather, she disagreed with a decision regarding reporting. (June 12, 2018)

In Cular v. MT Imports, Inc. d/b/a Galaxy Toyota, the Superior Court of New Jersey, Appellate Division, in an age discrimination case, addressed the admissibility of evidence related to (1) other employees’ age; (2) the plaintiff’s extramarital affair; and (3) explanatory summaries of sales performance reports. The court held that the age of other employees, whether similarly situated or otherwise, was relevant to the defendant’s defense that age was not a determinative factor in terminating the plaintiff. Further, the plaintiff’s extramarital affair was relevant to refute the plaintiff’s damages regarding his subsequent divorce and financial status. Finally, the court held that the failure to admit the sales report summaries into evidence was not erroneous because the summaries could reasonably produce an unjust result by over emphasizing the particular claim that the plaintiff wanted to make. (June 5, 2018)

In Epic Systems Corporation v. Lewis, the Supreme Court of the United States considered whether the Federal Arbitration Act requires courts to enforce arbitration agreements providing for individualized proceedings in employment contracts. The issue arose when a number of employees sought to litigate Fair Labor Standards Act claims through class actions in federal court despite arbitration clauses in their employment agreements that required individualized proceedings. The Court ruled that the Federal Arbitration Act requires courts to enforce the arbitration clauses in employment contracts as written. (May 21, 2018)

In Gordon v. Bayrock Sapir Organization, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an employee had raised a triable issue of fact as to her claims of employment discrimination, hostile work environment and retaliation under, in part, the City Human Rights Law. The court determined that claims that the employee was “treated differently” or “less well” than other employees were sufficient for a claim under the City Human Rights Law. (May 10, 2018)

In Camargo’s Case, the Supreme Judicial Court of Massachusetts clarified the test for determining who is an “employee” for purposes of workers’ compensation eligibility. The court held that a worker’s eligibility for workers' compensation benefits is contingent upon the worker proving that he/she is an “employee” under the Workers’ Compensation Statute, and that it is not the employer’s burden to prove that the worker is ineligible under the Independent Contractor Statute. (May 10, 2018)

In Pugliese v. State-Operated School District of the City of Newark, Essex County, the Superior Court of New Jersey, Appellate Division, addressed whether a suspended educator is entitled to back pay while a remand of an arbitration decision regarding a tenure charge is pending. The court stated that New Jersey law seeks to alleviate the economic hardship endured by suspended educators and that a reverse and remand is akin to an order granting a new trial. Accordingly, the court held that the suspended educator was entitled to back pay beginning on the 121^st day of her suspension as required under the statute. (April 27, 2018)

In Ferraro v. Temple University, the Superior Court of Pennsylvania found that plaintiff failed to provide sufficient evidence of age discrimination and retaliatory discharge. While the employee was able to show that she was a member of a protected class, qualified for her job and replaced by a younger individual, she could not show that the university’s reason for termination was a pretext for discrimination. The court also determined that evidence was insufficient to support employee’s claim that her termination was in retaliation for filing a complaint with the Equal Employment Opportunity Commission. (April 26, 2018)

In Kegersie v. Delgrande, the Supreme Court of Pennsylvania held that plaintiff should not be reinstated as superintendent of the Susquehanna School District. The school board was not required to follow the Public School Code procedure applicable to removal of a sitting superintendent where the superintendent had already resigned from the position. (April 26, 2018)

In St. Laurent v. Middleborough Gas & Electric Department, the Supreme Judicial Court of Massachusetts considered whether the Middleborough Gas & Electric Department fell within the definition of a public employer under the Massachusetts Tort Claims Act. Holding it did, the court reasoned that the statutory definition of a public employer expressly includes “a municipal or electric plant.” The court further explained that, to the extent another more general clause suggests a contrary result, the specific inclusion of “a municipal or electric plant” controls. (April 4, 2018)

In Encino Motorcars, LLC v. Navarro, the United States Supreme Court addressed whether service advisors are exempt from the Fair Labor Standards Act (FLSA) overtime-pay requirement, which applies to, among other workers, salesmen engaged in selling or servicing automobiles. Considering that service advisors at car dealerships are salesmen primarily engaged in servicing automobiles, they are exempt from the FLSA’s overtime-pay requirement. (April 2, 2018)

In Cournoyer v. Department of State Police, the Appeals Court of Massachusetts addressed whether a former state police officer, who had been involuntarily retired for thirteen years, could return to active status without completing the department’s recruit training program, which is akin to military boot camp. Holding that the former officer must first complete the recruit training program, the court explained that the controlling statute expressly provides that an officer who had been retired for more than three years cannot return to active status without first completing “police academy training as required by the Colonel.” In view of the fact that the Colonel required the officer to complete this program, the court refused to manage state police training because such management would offend the legislature’s decision to grant the Colonel discretion regarding the training of officers. (April 2, 2018)

In Fraternal Order of Police v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether a fired police officer could bring a petition to intervene and vacate an arbitration award finding just cause for termination issued under the Policeman and Fireman Collective Bargaining Act. The court explained that as a general principle, a union, and not its individual members, controls the appeal of an arbitration award. Further, when a collective bargaining agreement is silent on whether a person other than the union or the city may initiate a grievance or request arbitration, the court can look to the longstanding contractual interpretation and practice of the city and union that would demonstrate their intent. (April 4, 2018)

In Lerch v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania addressed a Pennsylvania Unemployment Compensation Law regulation that relates to the reduction of unemployment benefits based on income from part-time self-employment (sideline business). The regulation only allowed for the deduction of the cost of goods and related expenses in calculating gross income. As a result, a sideline service, unlike a sales business, was unable to take meaningful deductions despite potentially operating at a loss. Ultimately, the court found the regulation invalid because it is unreasonable and an appellate court previously found an identical regulation unauthorized. (March 12, 2018)

In New Brunswick Municipal Employees Association v. City Of New Brunswick (Public Employment Relations Commission), the Superior Court of New Jersey, Appellate Division addressed whether an employer could require retired employees to pay contribution rates for pension health benefits that exceed contributions limitations provided by state statute. The court held that the contribution rates included in the Pension and Health Care Benefits Act, which are limited to 35%, do not preempt the provision in the parties’ contract requiring eligible retirees to contribute 50% of the costs of their health care coverage. (March 2, 2018)

In Carey v. Gatehouse Media Massachusetts I, Inc., the Supreme Judicial Court of Massachusetts ruled that a newspaper publisher misclassified a newspaper deliverer as an independent contractor instead of an employee under the Massachusetts Wage Act because the deliverer performed a service within the course of business of the publisher. (February 27, 2018)

In Zarda v. Altitude Express, Inc., the United States Court of Appeals for the Second Circuit addressed whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. The court held that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII. The court concluded that “sexual orientation discrimination is predicated on assumptions of how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.” (February 26, 2018)

In Johnson v. Lansdale Borough, the Commonwealth Court of Pennsylvania held that the trial court, reviewing the decision of a Borough Commission to terminate a police officer for (1) failing to appear at a preliminary hearing and (2) lying about the reason why he failed to appear at the hearing, had the authority to reduce the Borough Commission’s imposed penalty to a suspension based on a finding that, although the police officer failed to appear at the preliminary hearing, he did not lie about the reasons why. (March 1, 2018)

In CNH Industrial N.V. v. Reese, the United States Supreme Court addressed whether an expired collective bargaining agreement created a vested right to lifetime healthcare benefits where the agreement contained a general durational clause regarding date of termination and was silent on the question of vesting. The court concluded that the only reasonable interpretation of the agreement is that the health care benefits expired when the agreement expired. (February 20, 2018)

In Zimmerman v. Sussex County Educational Services Commission, the Superior Court of New Jersey addressed whether part-time tenured teachers enjoy rights under the New Jersey Tenure Act (the “Act”) to protect them from a decrease in annual income after the school district decreased their work hours. The part-time tenured teachers’ collective bargaining agreement (“CBA”) and employment contracts omitted a guaranteed minimum number of work hours. The court held that once the teachers obtained tenure, the Act required that tenure be a mandatory condition of their employment, and the failure to guarantee a minimum number of hours in the contract documents cannot strip the teachers of their tenure rights, specifically the protection against reduction in compensation. (February 13, 2018)

In Casseus v. Eastern Bus Company, Inc., the Massachusetts Supreme Judicial Court construed the scope of a statutory exemption for motor vehicle common carriers of passengers to the Massachusetts overtime statute. The bus company provided two types of services to customers which were performed by the bus drivers: charter services, for which the bus company held a license under the common carrier statute, and transportation of students to and from school, which does not fall under the common carrier statute and does not require a license. The court held that the plain language of the common carrier exemption in the overtime statute applied to any employer that is licensed and regulated under the common carrier statute, and it was irrelevant that the bus company also provided other services that did not fall within the scope of that statute. As a result, it held that the bus drivers were not entitled to overtime. (February 8, 2018)

In Arden v. Board of Review, Department of Labor and Workforce Development, the Supreme Court of New Jersey addressed whether the Appellate Division properly denied claimant’s application for unemployment benefits on the grounds that an employee is required to notify an employer of a medical condition that was aggravated by the working conditions, request an accommodation, and afford the employer an opportunity to address the matter to determine whether there was other suitable work available. The court determined that a regulation which provides an exception to the Unemployment Compensation Law that a claimant is not disqualified from receiving benefits if she left a previous job due to a physical and/or mental condition or state of health that does not have a work-connected origin but is aggravated by working conditions does not impose a notice-and-inquiry requirement. (February 1, 2018)

In Tze-Kit Mui v. Massachusetts Port Authority, the Supreme Judicial Court of Massachusetts held that a public employer did not fail to timely pay a former employee for accrued, unused sick time after his retirement because sick pay does not qualify as “wages” under the Massachusetts Wage Act (G. L. c. 149, §§ 148, 150). The court reasoned that, because the Legislature did not specifically list sick pay as wages under the statute, and many employers have a “use it or lose it” policy, the employer’s policy to compensate eligible employees for unused sick time was essentially a contingent bonus not covered by the Wage Act. (January 29, 2018)

In Lowman v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania addressed whether a claimant’s work as an Uber driver constituted self-employment which rendered him ineligible for unemployment compensation for which he was otherwise entitled by losing his job as a behavioral health specialist. The court held that the Unemployment Compensation Board of Review incorrectly focused on the claimant’s relationship with Uber, when the focus should have been on the level of time and effort the claimant put into his “business” as an Uber driver. The court found the level of time and effort in this case did not evidence intentions of starting a new business or trade, and therefore, the claimant was not disqualified for unemployment benefits. (January 24, 2018)

In Lackawanna County v. Lackawanna County Adult and Juvenile Probation and Domestic Relations Section Employees Association, the Commonwealth Court of Pennsylvania considered whether Lackawanna County’s longstanding policy of giving employees a “gift” vacation day in addition to those required by the collective bargaining agreement was an established past practice that became a part of the parties’ collective bargaining agreement (CBA). In concluding that it was, the court drew a distinction between CBAs with integration clauses and CBAs without integration clauses. Because the CBA at issue did not have an integration clause, the court found that the established practice of giving a “gift” day became a part of the CBA. (January 10, 2018)

In Watson v. Emblem Health Services, the New York Supreme Court, Appellate Division, 1^st Department, addressed whether a former employee stated a viable claim that the reason put forth by the employer for terminating her employment was merely pretextual and that the employer discharged her based on her disability or perceived disability, in violation of New York City Human Rights Law. The court held that the employee proffered sufficient proof of a pretextual motive, where no effort was made by the employer to assist the former employee during the Family and Medical Leave Act claim-filing period and the employer refused to reevaluate termination after the claim was ultimately approved. (January 5, 2018)

In MacDonald v. Jenzabar, Inc., the Appeals Court of Massachusetts held that a general release in an employee’s severance agreement was unambiguous and, therefore, extinguished the employee’s rights to both preferred shares and stock options. The court held that the general release extinguished the employee’s prior employment agreement, out of which his rights to the shares and stock options arose and, therefore, his rights to the shares and stock options were also extinguished. (January 5, 2018)

In Riverview School District v. Riverview Education Association, the Commonwealth Court of Pennsylvania addressed whether an arbitrator’s decision to reinstate a grievance violated the public policy against sexual harassment in the workplace. The court held that the trial court failed to address whether the arbitrator erred in limiting sexual harassment to cases involving supervisory or managerial authority over the target or in requiring the conduct to be in the nature of sexual contact. The court remanded the case to the trial court for clarification of whether the grievant’s conduct constituted sexual harassment and, if so, why the arbitrator’s award does not violate public policy in light of the allegations raised by appellants. (January 5, 2018)

In Difiore v. CSL Behring, LLC, the United States Court of Appeals for the Third Circuit addressed whether an employee asserting a retaliation claim under the False Claims Act must assert proof that protected activity under the Act is the “but-for” cause of an adverse employment action. The court held that an employee’s protected activity must be the “but-for” cause of adverse actions to support a claim of retaliation under the Act. (January 3, 2018)

In Coaldale Borough v. Delaney, the Commonwealth Court of Pennsylvania permitted a Police Chief's petition for arbitration regarding his request for a disability pension from the Police Pension Board. Under the Policemen and Firemen Collective Bargaining Act, police officers and firefighters have the right to bargain collectively the terms of employment, retirement, pensions, and other benefits. Additionally, the Act allows for arbitration of collectively bargained for pension benefits. (January 4, 2018)

In Metz v. Bethlehem Area School District, the Commonwealth Court of Pennsylvania upheld the termination of a tenured public school teacher that tested positive for illegal drug use after determining that the school district had reasonable suspicion to order the test. As public school teachers hold safety-sensitive jobs, the school district can compel teachers to submit to drug testing based on reasonable suspicion. In this case, the school district had reasonable suspicion based on a letter indicating illegal drug use, where the letter was from an identified source, was highly fact specific, and corroborated by additional information. (January 4, 2018)

In Chevalier v. General Nutrition Centers, the Superior Court of Pennsylvania addressed an employee’s challenge to its employer’s calculation of overtime pay according to the Pennsylvania Minimum Wage Act (PMWA). The court held that the employer’s method of calculating the employee’s “regular rate” by dividing the employee’s salary in a given week by the number of hours actually worked in that week did not violate the PMWA, but that the employer’s payment of overtime premium of only one-half the “regular rate” violated the PMWA. (December 22, 2017)

In City of Philadelphia v. Zampogna, the Commonwealth Court of Pennsylvania addressed whether the 1990 amendment to Section 1720 of the Motor Vehicle Financial Responsibility Law restored a public employer’s right to subrogate Heart and Lung Act benefits. The court found that the benefits remain subject to the anti-subrogation mandate of Section 1720 and, therefore, a public employer may not subrogate a portion of Heart and Lung Act benefits under the artifice that those benefits are payable as workers’ compensation benefits. (December 27, 2017)

In Ortegas v. G4S Secure Solutions (USA) Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an action for discrimination was governed by the statute of limitations set forth in an employment application. The court held that the employee failed to show how the shortened statute of limitations was unconscionable and, therefore, the court dismissed the discrimination complaint as time-barred. (December 28, 2017)

In Segal v. Genitrix, LLC, the Supreme Judicial Court of Massachusetts addressed whether the board of directors or other investors could be held personally liable for unpaid wages under the Massachusetts Wage Act. The court held that, when the legislature extended the Wage Act to make liable “officers or agents having the management” of a company, it did not intend to impose personal liability on board members or other investors. (December 28, 2017)

In Breitstein v. The Michael C. Fina Company, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an employer’s purported legitimate nondiscriminatory reason for terminating an employee was pretextual, when the employee was terminated for disclosing a prospective client’s confidential pricing information and engaging in unethical negotiating tactics with certain vendors. The court held that the purported issues of fact pertain to whether the company’s decision to terminate the employee was correct or justified, but do not raise an inference of pretext., i.e., that the employee’s reason for the termination was false and that discrimination was the real reason. (December 21, 2017) 

In Jonson v. Federal Deposit Insurance Corporation, the United States Court of Appeals for the First Circuit addressed whether subject matter jurisdiction exists in the United States District Court for the District of Massachusetts when a party withdraws its claim of discrimination before the Merit Systems Protection Board. The First Circuit held that subject matter jurisdiction did not exist because the case was not “mixed.” To be mixed, the Court went on to explain that a party must exhaust all available administrative remedies; thus, because the appellant had withdrawn his discrimination claim he had failed to present the District Court with a “mixed” case. (December 8, 2017)

In Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, the United States Court of Appeals for the Third Circuit considered whether an employee’s refusal to be vaccinated from the flu was a protected religious objection under Title VII of the Civil Rights Act of 1964. The Third Circuit agreed with the District Court that the employee’s sincere belief that the vaccine would do more harm than good was a medical and not a religious objection. Therefore, his termination did not violate Title VII. (December 14, 2017)

In Cherkaoui v. City of Quincy, the First Circuit Court of Appeals rejected a public school teacher’s claim that she was forced to resign due to discrimination on the basis of religion and disability in violation of M.G.L. c. 151B and Title IV. The court held that the teacher failed to put forth any evidence that the nondiscriminatory explanation for her treatment supplied by her employer was pretextual. The court could not “conclude that her working conditions had reached a level of unbearableness where a reasonable person would have resigned.” The court specifically noted that the employer had taken steps to investigate her allegations of discriminatory treatment and accommodated her requests to the extent possible. (December 4, 2017)

In Sikora v. UPMC Health System, the United States Court of Appeals for the Third Circuit Court addressed the substantive elements of a “top-hat” plan that is largely exempt from the Employee Retirement Income Security Act of 1974 (ERISA). Such plans must be unfunded and exhibit a purpose of providing deferred compensation for a select group of management or highly compensated employees. The court declined to engraft a bargaining power requirement onto the elements of a top-hat plan, concluding that plan participants’ bargaining power is not a substantive element. (November 24, 2017)

In McGrath v. Bureau of Professional and Occupational Affairs, the Supreme Court of Pennsylvania addressed whether, under the Professional Nursing Law, reinstatement of a license automatically suspended due to a violation of the Controlled Substances Act is precluded for a fixed period of ten years or is instead permitted at an earlier date subject to the discretion of the State Board of Nursing. The court determined that the statute reflected a policy judgment that a felony violation of the Controlled Substances Act was a serious infraction warranting an automatic license suspension, but it was not intended to divest the Board of its discretion to restore a license after conducting an appropriate administrative review. (November 22, 2017)

In Shoul v. Commonwealth of Pennsylvania, Department of Transportation, the Supreme Court of Pennsylvania addressed the constitutionality of a statute providing for lifetime disqualification of commercial driver’s licenses due to certain drug crimes during use of motor vehicles. The court determined that the prohibition did not violate Pennsylvania’s constitutional right to substantive due process. However, the court found that the record was insufficiently developed to determine whether the sanction was grossly disproportionate to the offense, in violation of the federal and state constitutional prohibitions on cruel and unusual punishment. (November 22, 2017)

In Commonwealth of Pennsylvania Department of Corrections v. Pennsylvania State Corrections Officers Association, the Commonwealth Court of Pennsylvania overturned an arbitrator’s decision to reinstate a corrections officer who filed a grievance against his employer. In doing so, the court framed its analysis around the “essence test,” which requires that an arbitrator’s award be upheld if: (1) the issue is within the terms of the collective bargaining agreement; and (2) the arbitrator’s award can be rationally derived from the terms of the collective bargaining agreement. The arbitrator’s award was not rationally related to the terms of the collective bargaining agreement because the award modified the employer’s managerial role by restricting the job responsibilities that the employee could be given. (November 17, 2017)

In Rodriguez v. KGA Inc., the Supreme Court of New York, Appellate Division, 1st Department addressed whether Article 6 of the New York Labor Law, which governs unlawful deductions, notice, and record keeping provisions, was violated by an employer. In considering this issue, the court noted that it is a settled rule of statutory interpretation that unless expressly stated otherwise it will not be presumed that legislation is intended to operate outside of the jurisdiction of the state that enacted it. The court denied claims based on labor performed outside of New York and set forth under Article 6’s provisions based on the fact that the statute did not expressly apply on an extraterritorial basis. (November 14, 2017)

In O’Connell v. Macy’s Corporate Services, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a volunteer participant in the Macy’s Thanksgiving Day Parade could hold Macy’s liable for injuries allegedly sustained by the volunteer participant despite signing a release. The volunteer participant argued that the release did not apply because the motor vehicle operator that struck her was not an employee of Macy’s. The court held that Macy’s was not liable for the injuries because the vehicle operator, as a volunteer at the parade, was an agent of Macy’s and covered by the release. (October 31, 2017)

In Ruben Sandia v. Wal-Mart Stores, East LP, the United States Court of Appeals for the Second Circuit considered whether denial of an employee’s discrimination, retaliation, and hostile work environment claims were proper. The court held that an employee’s mere speculation and conclusory allegations in support of discrimination, retaliation, and hostile work environment claims was insufficient to survive summary judgment. The court further held that an employee’s mere speculation that Wal-Mart may have communicated with prospective employers was insufficient for a defamation claim. (October 30, 2017)

In Saliba v. City of Worcester, the Appeals Court of Massachusetts held that M.G.L. c. 149, § 19B, which prohibits employers from subjecting applicants for employment, as well as employees, to a lie detector test, does not prohibit employers from considering the results of a lie detector test administered lawfully by an out-of-state employer in connection with the individual’s earlier application for employment in another state. (October 27, 2017)

In Spaceage Consulting Corp. v. Maria Vizconde and Home Box Office, Inc., the Superior Court of New Jersey, Appellate Division, affirmed the trial court’s grant of summary judgment to a defendant where a plaintiff software services company brought an action against a former employee whom it claimed had violated an employment agreement. The trial court found that the agreement between plaintiff and the employee was unenforceable because it violated federal law. (September 22, 2017)

In Kmetz v. American Association of University Professors, the Supreme Court of Delaware held that the Superior Court of Delaware lacked jurisdiction to hear claims of a professor against his union for failing to file a grievance on his behalf when he was denied a promotion to full professor. The court held that the professor’s claims were within jurisdiction of the Public Employee Relations Board as they were essentially a claim for breach of duty of fair representation. The professor was required to exhaust all available administrative remedies before bringing the claim to Superior Court and the professor could not avoid this requirement by merely relabeling the unfair representation claims as common law tort actions. (September 27, 2017)

In Blake v. Board of Review, Department of Labor, and Laurel Healthcare, LLC, the Superior Court of New Jersey, Appellate Division, addressed whether the Board of Review correctly applied the amendment to the unemployment insurance law which exempts from disqualification for unemployment “an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves ... the first employer” and denied an employee’s application for unemployment benefits after she left her first employer within seven days, and whose new employer rescinded the offer before she ever began work, and after she attempted to rescind her resignation, was informed that she was no longer needed in a full-time capacity. The court determined that the amendment applies only if the employee voluntarily leaves employment and actually “commences” employment with a second employer. (September 28, 2017)

In Gallagher v. Cerebral Palsy of Massachusetts, Inc., the Supreme Judicial Court of Massachusetts ruled that a personal care attendant could not pursue overtime claims against the fiscal intermediary that facilitated her wage payments from the state’s Medicaid program because the consumer to whom she provided healthcare services employed her, not the fiscal intermediary. (September 13, 2017)

In Zuber v. Boscov’s, the United States Court of Appeals for the Third Circuit held that a former employee did not waive his right to sue his employer under the Family Medical Leave Act (FMLA) by signing a Compromise and Release Agreement to settle unrelated workers’ compensation claims. The court applied Pennsylvania contract law in determining that the language of the Compromise and Release Agreement did not waive the former employee’s claim under the FMLA. (September 11, 2017)

In Moody v. Atlantic City Board of Education, the United States Court of Appeals for the Third Circuit considered what factors may make an employee the supervisor of another employee under Title VII and the New Jersey Law Against Discrimination (NJLAD). The court considered factors such as the authority to assign work, set hours, and effect “a significant change” in benefits in determining that a custodial foreman served in a supervisory role of a substitute custodian. (September 6, 2017)

In Borrell v. Bloomsburg University, the United States Court of Appeals for the Third Circuit considered whether a student nurse working at a private hospital through a public university clinical program, who the hospital terminated for refusing to take a drug test, was deprived her property interest without due process in violation of 42 U.S.C.  1983. The court held that neither the hospital nor its employees were state actors in their decision to dismiss the nurse, therefore, they could not be held liable under  1983. The court also held that the administrator of the state university program was a state actor and entitled to qualified immunity. (August 30, 2017)

In Williams v. Pennsylvania Human Relations Commission, the United States Court of Appeals for the Third Circuit considered whether employee claims based on Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA) may be brought through 42 U.S.C.  1983. The court held that the employee could not bring either the Title VII or ADA claim under  1983 because both of those acts had comprehensive individual statutory enforcement schemes and, therefore, the proper means of enforcement was through their respective statutory processes. (August 30, 2017)

In New Vista Nursing and Rehabilitation v. National Labor Relations Board, the United States Courts of Appeals for the Third Circuit held that an employee is a statutory supervisor under 29 U.S.C. § 152(11) when: (1) the employee has discretion to take corrective actions against a misbehaving employee; (2) the employee’s actions initiate the disciplinary process; and (3) the employee’s action functions like discipline because it increases the severity of the consequences of a future rule violation. (August 29, 2017)

In In re New York City Asbestos Litigation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a release from a prior settlement agreement between an employer and former employee for asbestos-related injuries barred the employee from bringing a second suit for mesothelioma. The prevalence of boilerplate language, the vagueness as to actual diagnosis, and “meager” consideration from the first settlement agreement and release prompted the court to conclude that the employee did not intend to release all future claims for mesothelioma. (August 29, 2017)

In Erie County Technical School v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed whether a school violated sections 1201(a)(1) and (5) of the Public Employee Relations Act by engaging in a coercive tactic and not bargaining in good faith when it sent a letter directly to its employees, instead of the teachers’ union, with the “final and best offer” the school proposed to the union. The court held that an employer has a First Amendment right to communicate its general views to its employees, and the letter was nothing more than an accurate depiction of negotiations and, therefore, did not constitute an unfair labor practice. (August 25, 2017)

In Murray v. Williston Township, the Superior Court of Pennsylvania held that the trial court properly reformed an essential term of a severance agreement because specific performance of the agreement as written was not possible. (August 17, 2017)

In In the Matter of County of Atlantic, the Supreme Court of New Jersey considered whether the parties to specific collective negotiations agreements (CNA) were required to continue scheduled salary increases during the period between the expiration of those contracts and the formation of their successor agreements. The court held that the governing contract language of the agreements required that the salary step increases remain in place after expiration and until the parties reach agreement on a new CNA. (August 2, 2017)

In Trzaska v. L’Oreal USA, Inc., the United States Court of Appeals for the Third Circuit addressed whether the dismissal of an in-house attorney for his refusal to violate ethical rules governing the legal profession violated the New Jersey Conscientious Employee Protection Act (CEPA), which prohibits the termination of an employee for refusing to violate regulations or public policy at the instruction of the employer. The court permitted the claimant to proceed to discovery. (July 25, 2017)

In Bull v. Metropolitan Jewish Health System, Inc., the Supreme Court of New York, Appellate Division, 2d Department, addressed what type of evidence proffered by an employer is sufficient to defeat a claim for employment discrimination on the basis of disability and age under the New York State Human Rights Law upon a motion for summary judgment. The court held that medical documents indicating that the plaintiff was cleared to work “without restrictions” was prima facie evidence that the plaintiff did not suffer a disability at the time her employment was terminated. This, coupled with the offering of a legitimate nondiscriminatory reason for the termination, was adequate to defeat the claim. (July 19, 2017)

In Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Judicial Court of Massachusetts ruled that a patient who was terminated from her employment because she tested positive as a result of her lawful medical use of marijuana had a civil remedy against her employer under the state’s anti-discrimination statute, G. L. c. 151B. (July 17, 2017)

In Castleberry v. STI Group, the United States Court of Appeals for the Third Circuit examined whether there existed cognizable § 1981 harassment, disparate treatment discrimination, and retaliation claims based on a single incident of a discriminatory remark followed by termination. The court acknowledged its previous conflicting precedents within the Third Circuit and clarified that the correct standard for examining these claims was to see if the conduct was “severe or pervasive.” Furthermore, a supervisor’s single use of the “n word” can be determined to be adequately “severe” or “pervasive” depending on the context (i.e., the isolated conduct is sufficiently extreme). Here, the court found that the conduct could be sufficient for those claims because the use of the slur was accompanied by threats of termination (followed by eventual termination). (July 14, 2017) 

In In the Matter of Transport Workers Union of Greater New York, Local 100 v. New York City Transit Authority, the New York Supreme Court, Appellate Division, 2nd Department, addressed the circumstances under which an arbitration award could be vacated. The court found that the arbitrator’s award was definite and final because (1) it had not left any matter submitted by the parties open for future contention, (2) had left the parties able to determine their rights and obligations, and (3) had executed the award such that the subject matter submitted was properly addressed. (June 28, 2017)

In In the Matter of Transport Workers Union of Greater New York, Local 100 v. New York City Transit Authority, the New York Supreme Court, Appellate Division, 2nd Department, addressed the circumstances under which an arbitration award could be vacated. The court found that the arbitrator’s award was definite and final because (1) it had not left any matter submitted by the parties open for future contention, (2) had left the parties able to determine their rights and obligations, and (3) had executed the award such that the subject matter submitted was properly addressed. (June 28, 2017)

In George v. National Water Main Cleaning Company, the Supreme Judicial Court of Massachusetts addressed whether statutory prejudgment interest should be added to the treble damages awarded under the Wage Act. The court held that such interest shall be added to the amount of lost wages and other benefits awarded as damages under the Wage Act, but shall not be added to the additional amount of treble damages. (June 26, 2017)

In Perry v. Merit Systems Protection Board, the United States Supreme Court considered the proper review forum for appeals from a decision of the Merit Systems Protection Board (MSPB) for mixed employment discrimination appeals brought by federal employees. The Court determined that mixed cases, which involve claims of (i) serious adverse employment actions (ii) attributable to race, gender, age, or disability, must be appealed to federal district court when they are dismissed by the MSPB on jurisdictional grounds. (June 23, 2017)

In CSX Transportation, Inc. v. Healey, the United States Court of Appeals for the First Circuit addressed whether the federal Railroad Unemployment Insurance Act (RUIA) preempts the Massachusetts Earned Sick Time Law (MESTL), which requires most employers with more than ten employees to provide “earned paid sick time.”  The RUIA does preclude portions of the MESTL since the RUIA states that it is an exclusive remedy and that no person employed by interstate rail carrier “shall have or assert an right . . . to sickness benefits under a sickness law of any State.” (June 23, 2017)

In Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry, the Supreme Court of Pennsylvania, Eastern District addressed whether a terminated employee is an “employee” and, therefore, entitled to inspect her personnel file in accordance to the Inspection of Employment Records Law, 43 P.S. §§1321-24. The court held that the terminated employee is precluded from inspecting her personnel file because the statutory definition of “employee” excludes former employees. (June 20, 2017)

In Jones v. SCO Silver Care Operations LLC, the United States Court of Appeals for the Third Circuit addressed whether an arbitration clause in the governing collective bargaining agreement covered claims brought by three nursing assistants alleging violations of the Fair Labor Standards Act (FLSA). An employee may be compelled to arbitrate his or her FLSA claims when the arbitration clause in the CBA clearly and unmistakably states so. However, even where an arbitration clause does not contain a clear and unmistakable waiver of a plaintiff’s right to a judicial forum, a plaintiff may nonetheless be compelled to arbitrate disputes over interpretations of the CBA if the FLSA claims depend on such contractual disputes.  In the case, the court concluded that neither of the plaintiffs’ FLSA claims depend on disputed interpretations of CBA provisions such that arbitration is necessary. (May 18, 2017)

In Yocum v. Commonwealth of Pennsylvania, Pennsylvania Gaming Control Board, the Supreme Court of Pennsylvania addressed whether the employment restrictions set forth in Sections 1201(h)(8) and (13) of the Gaming Act conflict with Article V, Section 10 of the Pennsylvania Constitution, which gives the Supreme Court of Pennsylvania exclusive authority to govern the practice of law. The court found that there is nothing to prevent attorneys from being subject to both the Rules of Professional Conduct promulgated by the court and the Gaming Act employment restrictions. (May 25, 2017)

In Whitney v. The Bronx-Lebanon Hospital Center, the New York State Supreme Court, Appellate Division, 1st Department, addressed the sufficiency of medical evidence establishing a prima facie claim in a disability discrimination action. The court held that the claimant failed to make a prima facie showing of discrimination “because she failed to plead facts demonstrating that she had any ‘disability’” within the meaning of the N.Y.S. Human Rights Law or the N.Y.C. Human Rights Law based solely on a nurse’s note that the claimant suffers from unspecified “chronic medical conditions.” (May 23, 2017)

In Krolczyk v. Goddard Systems, Inc., the Superior Court of Pennsylvania addressed the viability of a teacher’s common-law claim for wrongful discharge as retaliation for the teacher’s plan to report suspected child abuse by a superior. Because the teacher is mandated by state law to report suspicions of child abuse, the court held that a dismissal based on such reporting, if true, would be wrongful because it would violate a recognized public policy. The court held that the school’s proffer of a legitimate reason for the teacher’s dismissal was insufficient to prevail on summary judgment. (May 23, 2017) 

In City of Pittsburgh v. Fraternal Order of Police, the Supreme Court of Pennsylvania addressed whether a home rule municipality may amend its home rule charter to eliminate mandatory subjects of collective bargaining as defined by the Police and Firemen Collective Bargaining Act. The court held that a home rule municipality cannot redefine subjects of collective bargaining established in the Act. (May 22, 2017)

In Jones v. SCO Silver Care Operations, LLC, the United States Court of Appeals for the Third Circuit Court addressed whether the district court erred in denying defendant’s motion to dismiss or to stay pending arbitration. Plaintiffs alleged the defendant violated the Fair Labor Standards Act (FLSA) and related New Jersey state wage and hour laws by failing to include certain hourly wage differentials in the calculation of their regular rate of pay, resulting in illegally low overtime rates. Defendant moved to dismiss or to stay pending arbitration, arguing that plaintiffs’ overtime claims must first be submitted to arbitration to resolve the disputed interpretation of the collective bargaining agreement (CBA). The court affirmed the district court holding (i) the CBA’s arbitration provision lacked a clear and unmistakable waiver of plaintiffs’ rights to vindicate their FLSA claims in federal court; and (ii) the plaintiffs’ miscalculation of overtime rate claim did not depend on any disputed term of the CBA; rather, it was governed by the FLSA. (May 18, 2017)

In Wilkins Township v. Wilkins Township Police Department, the Commonwealth Court of Pennsylvania addressed whether an arbitrator violated the township’s due process by holding that a township police officer was not required to raise the issue of damages in the form of lost wages in his initial grievance of a denial of outside employment. The township asserted that it was deprived an opportunity to present evidence on and argue the issue of lost wages before the arbitrator. The court held the arbitrator did not violate the township’s due process rights by awarding damages in the form of lost wages since when an officer grieves a denial of outside employment, it can reasonably be inferred that the officer should be compensated if he was wrongfully precluded from engaging in that employment. (May 18, 2017)

In Robertson v. Pennsylvania Public School Employees' Retirement System, the Commonwealth Court of Pennsylvania addressed whether the petitioner had terminated her service or experienced a bona fide break in her employment as required under Pennsylvania’s Public School Employees’ Retirement System to be eligible for her retirement annuity. The court held that there was substantial evidence to support the Public School Employees’ Retirement Board’s conclusion that the petitioner had not severed her employment or experienced a bona fide break as (i) the petitioner’s planned retirement date was in the middle of the school year; (ii) once the petitioner announced her retirement, her employer immediately asked her to continue to perform many of her same duties; (iii) six weeks prior to her planned retirement date, the petitioner signed a contract with her employer to continue providing many of the same or related duties; (iv) the time lapse between petitioner’s employment and her contract work was only four days (including a weekend); and (v) her employer did not consider hiring anyone to replace the petitioner, did not advertise her position and made no effort to identify or recruit anyone else. (May 18, 2017)

In Hejda v. Bell Container Corporation, the Superior Court of New Jersey, Appellate Division, addressed whether an employee-union member’s disability discrimination claim under the New Jersey Law Against Discrimination was pre-empted by Section 301 of the Labor Management and Relations Act (LMRA). The court concluded that, because none of the allegations in plaintiff’s complaint required interpretation of provisions in the collective bargaining agreement between the union and employer, the plaintiff’s lawsuit against the union was not pre-empted by the LMRA. The court reasoned that, because the LMRA only applies to actions alleging violations of a labor contract, the plaintiff’s claims alleging violations of rights “independent of the collective bargaining agreement” brought the suit outside the purview of the statute. (May 9, 2017)

In Stein v. Douglas Elliman, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a temporary placement agency was liable for negligent hiring and supervision where the agency’s employee assaulted and murdered a realtor. The court held that the agency was not liable for negligent hiring and supervision because the evidence demonstrated that the agency had no notice of the employee’s violent propensities or knowledge of facts that might prompt a reasonably prudent person to conduct an investigation of the worker’s background. The court noted that the employee did not have a criminal record, and that the employee’s alleged past misconduct was not disclosed until after the incident took place. (April 27, 2017)

In SEPTA v. City of Philadelphia, the Supreme Court of Pennsylvania addressed whether SEPTA is exempt from the jurisdiction of the City of Philadelphia with respect to the Philadelphia Fair Practices Ordinance (FPO). The court held that the legislative scheme of SEPTA’s enabling legislation shows an intent to exclude SEPTA from the jurisdiction of the FPO. (April 26, 2017)

In Gross v. Nova Chemicals Services, Inc., the Superior Court of Pennsylvania considered whether an employee’s failure to perform his responsibilities as a pilot falls within the “public policy” exception to the wrongful termination of at-will employees where doing so may have violated Federal Aviation Administration (FAA) rules or regulations. The court held that the scope of the “public policy” exception is limited to the Pennsylvania Constitution, court decisions, and statutes promulgated by the legislature and does not include federal regulations. (April 24, 2017) 

In Perullo v. Advisory Committee on Personnel Standards, the Supreme Judicial Court of Massachusetts addressed whether a clerk-magistrate’s removal of her assistant clerk-magistrate was arbitrary or capricious. The Court reasoned that the removal was not arbitrary or capricious because the assistant clerk-magistrate was removed because of chronic absences, failure to pay for a rented parking space near the court house, and prior discipline for her excessive absences. (April 24, 2017)

In Huyett v. Doug’s Family Pharmacy, the Superior Court of Pennsylvania addressed the legal standard for the award of attorney’s fees pursuant to the Pennsylvania Human Relations Act, 43 P.S. §962(c.2). The court held that a trial court may award attorney’s fees where the plaintiff prevails and the trial court determines there has been a violation of the Act. (April 20, 2017)

In Pruszko v. Pine Hollow Country Club, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed whether an employee, injured while riding on the back of the employer’s pickup truck at the employer’s direction, could assert a claim against the employer under a provision of the Industrial Code which prohibits persons from riding on “running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.” Noting that an interpretation of the Industrial Code presents a pure question of law, the court concluded that the word “platform” in the Code reasonably includes the bed of a pickup truck. (April 19, 2017)

In Metalico Pittsburgh Inc. v. Newman, the Superior Court of Pennsylvania addressed whether a non-solicitation provision in a three-year employment agreement expired at the end of the three-year term when the employee became an at-will employee. The court held that the at-will employee was still an employee under the agreement. The court held that the employee agreed to continue to be bound by the non-solicitation provision in exchange for the consideration received under the contract. (April 19, 2017)

In Gannon v. City of Boston, the Supreme Judicial Court of Massachusetts addressed whether a city police department discriminated against a police officer by limiting the officer to desk duty based on an informed, good faith belief that the officer could not safely patrol the streets because of a perceived handicap. The court held that there were facts in dispute regarding whether the officer was a qualified handicapped person capable of performing the full duties of a patrol officer and, therefore, the city was not entitled to a ruling in its favor. (April 18, 2017)

In Thompson v. Board of Trustees, Teachers’ Pension and Annuity Fund, the Superior Court of New Jersey, Appellate Division, addressed the burden of proof for accidental disability benefits for mental disability arising from incidents involving mental and physical stressors where physical injury was temporary or minor. The court held that the disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury or a similarly serious threat to the physical integrity of the member or another person. (April 11, 2017)

In Swezey v. Michael C. Fina Company, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether a former at-will sales representative of a company can maintain a claim for breach of oral contract, and related, causes of action, based on an alleged promise by the company to pay the sales representative’s commissions past his termination. The court held that the breach of contract and the related causes of action are unenforceable under the statute of frauds. (April 13, 2017)

In Germanowski v. Harris, the United States Court of Appeals for the First Circuit held that an employee had failed to state a claim for retaliation under the Family and Medical Leave Act. There, the employee claimed that she had been fired in retaliation for sending an email requesting time off. The First Circuit held that, despite the temporal proximity between the email and the employee’s termination, the other allegations in the employee’s complaint made clear that there was a longstanding dispute between the employer and employee, including a fear by the employer that the employee may have brought a gun to work, and the decision to fire the employee was already in the works before she sent the email. (April 12, 2017)

In McLane Company v. Equal Employment Opportunity Commission (EEOC), the Supreme Court of the United States considered the appropriate standard of review of a trial court’s decision as to whether to enforce or quash an EEOC subpoena. The Court held that an appellate court should review the trial court’s decision under an abuse of discretion standard rather than a de novo standard. (April 3, 2017)

In Rodriguez v. United States, the United States Court of Appeals for the First Circuit reviewed whether a putative class of federal employees could successfully challenge the Office of Personnel Management’s (OPM) regulations for excluding cost-of-living allowances as discriminatory. The court concluded that the employees’ disparate impact claim was barred by the “location-based safe harbor provision of 42 U.S.C. § 2000e-2(h),” and that the employees could not bring non-discrimination claims without a final decision from OPM regarding their application for benefits. (March 24, 2017)

In Saleeby v. Remco Maintenance LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a former employee adequately pleaded causes of action for conversion and breach of contract against his former employer and manager. The court held that the former employee’s conversion cause of action failed because his “common interest” ownership share in a limited liability company “was a type of intangible property that could not be the subject of a conversion claim.” The court also held that the former employee’s breach of contract cause of action against the former manager failed because a manager is not liable for the debts of the LLC, and a limitation of liability provision in an LLC’s operating agreement cannot be used to create additional duties for the manager. Lastly, the court held that the former employee’s breach of contract cause of action against the former manager under an alter ego theory failed because a manager role, in and of itself, and without any further allegations in the pleadings, is “clearly insufficient to impose alter ego liability.” (March 23, 2017)

In Massasoit Industrial Corporation v. Massachusetts Commission Against Discrimination, the Appeals Court of Massachusetts affirmed a finding of age and disability discrimination, as well as emotional distress damages, after an employer fired a custodian shortly after he suffered a heart attack. (March 23, 2017)

In Carvalho-Grevious v. Delaware State University, the United States Court of Appeals for the Third Circuit considered whether a professor asserting a Title VII retaliation claim must establish but-for causation as part of her prima facie case. The court held that, at the prima facie stage, the professor need only proffer evidence sufficient to raise the inference that her engagement in a protected activity was the likely reason for the adverse employment action, not the but-for reason. (March 21, 2017)

In Egan v. Delaware River Port Authority, the United States Court of Appeals for the Third Circuit considered whether an employee pursuing a retaliation claim under the Family and Medical Leave Act (FMLA) is required to introduce direct evidence of retaliation when pursuing a mixed-motive theory of liability. The court held that the FMLA’s regulatory language permits an employee to introduce either direct or circumstantial evidence that would lead a reasonable juror to conclude that the employee’s use of FMLA leave was a negative factor in an adverse employment decision. (March 21, 2017)

In Capone v. Castleton Commodities International LLC, the Supreme Court of New York, Appellate Division, 1st Department, addressed the validity of an exculpatory provision in a corporate unemployment agreement. Noting that the Delaware Limited Liability Company Act was designed to “give the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements” (6 Del C § 18-1101[b]), the court rejected the former employees’ argument that the exculpatory provision is against public policy. (March 16, 2017)

In Brian Sullivan v. The Port Authority of New York and New Jersey, the Superior Court of New Jersey, Appellate Division, addressed the issue of whether the Port Authority is subject to suit under New Jersey’s Conscientious Employee Protection Act (CEPA). The court noted that the clear and unambiguous language in legislation creating the Port Authority and lack of parallel whistleblower statutes confirm that New York and New Jersey did not mutually intend to consent to suit against the Port Authority under CEPA. Accordingly, the court concluded that the Port Authority is not subject to suit under CEPA. (March 15, 2017)

In Borough of Emmaus v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania held that because a borough paid firefighters hourly wages, exercised control over the firefighters’ wages, hours and working conditions, directed and controlled the details of the firefighters’ work, possessed the authority to discipline and/or discharge the firefighters, and had the power to hire fighters, the relationship between the borough and the firefighters was that of employer and employee. (March 13, 2017)

In Doe v. Mercy Catholic Medical Center, the United States Court of Appeals for the Third Circuit addressed whether Mercy Catholic Medical Center, a private teaching hospital, was an education program or activity under Title IX. The court held that it was subject to Title IX and that private retaliation and quid pro quo claims exists for employees of federally funded education programs under Title IX notwithstanding Title VII’s concurrent applicability. The court reinstated the Title IX retaliation and quid pro quo claims, but denied the hostility environment claim as time-barred. (March 7, 2017)

In Acevedo v. Flightsafety International, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether an employee’s back pay award in an employment discrimination case should be offset by the amounts of unemployment compensation he received. The employer argued that the collateral source statute, N.J.S.A. 2A:15-97, applied and the unemployment benefits should have been deducted from the back pay award. The court disagreed and held that the collateral source statute does not apply to employment discrimination cases and unemployment compensation may not be deducted from a back pay award. (March 6, 2017)

In Grimm v. Universal Medical Services, Inc., the Superior Court of Pennsylvania addressed the interplay of the Pennsylvania Wage Payment and Collection Law (WPCL) and Pennsylvania Rule of Civil Procedure 1311.1, which allows a plaintiff to limit the maximum damages recoverable in exchange for relaxed requirements for admitting certain documentary evidence. The court held that the limit on maximum damages under the rule excluded attorney’s fees under the WPCL. The court, therefore, held that the award of attorney’s fees is proper even if it causes the total amount recovered to exceed the limit in the rule. (March 1, 2017)

In Balles v. Babcock Power Inc., the Supreme Judicial Court of Massachusetts addressed whether a former executive, who was terminated for engaging in an affair with a young subordinate, was entitled to the withheld dividends and the return of his stock. The court held that the executive was entitled to the return of his stocks and the withheld dividends, but he was not entitled to receive severance pay. (March 6, 2017)

In International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci, the Supreme Judicial Court of Massachusetts addressed whether shareholders of a publicly traded company could bring a claim individually against the board of directors for entering into a merger that would result in the sale of the company for an inadequate price. The court held that the shareholders could only bring a derivative suit on behalf of the corporation, as the alleged injury would affect the company as well. (March 6, 2017)

In West v. Hoover, the United States Court of Appeals for the First Circuit addressed whether the termination of a former town employee violated the employee’s procedural due process rights under the Fourteenth Amendment. The court held that the termination did not violate the employee’s due process rights, as he was granted the ability to participate in a pre-termination and post-termination hearing. (March 3, 2017)

In Rodríguez-López v. Triple-S Vida, Inc., the United States Court of Appeals for the First Circuit held that an employer’s long-term disability plan governed by ERISA did not reflect a clear grant of discretionary authority to the claims administrator to determine eligibility for benefits. The court held that, for the delegation of discretionary authority to be effective under a plan, the delegation must be clear and the fiduciary must properly designate a delegate for the fiduciary’s discretionary authority. (March 1, 2017)

In Bound Brook Board of Education v. Ciripompa, the Supreme Court of New Jersey addressed whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a discrimination case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. The court held that the arbitrator impermissibly converted the charge of unbecoming conduct into one of sexual harassment. (February 21, 2017)

In Bound Brook Board of Education v. Ciripompa, the Supreme Court of New Jersey addressed whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct under the New Jersey Tenure Employees Hearing Law. Because there is a fundamental difference between charges of unbecoming conduct and sexual harassment, and because proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct, the court found that the arbitrator erroneously applied the more stringent harassment standard. (February 21, 2017)

In Raia v. Berkeley Cooperative Towers Section II Corporation, the New York Supreme Court, Appellate Division, 2d Department, found that a building owner was liable to a plumber under Labor Law Section 240(1) for failing to provide the plumber with a proper safety device. The court found that, although the plumber’s coworker precipitated his injury, it was not of such an extraordinary nature or so attenuated from the owner’s conduct that responsibility for the injury should not be reasonably be attributed to it. (February 16, 2017)

In Cacanoski v. 35 Cedar Place Associates, LLC, the New York Supreme Court, Appellate Division, 2d Department, held that a worker’s “comparable negligence is not a defense to a claim under Labor Law §240(1) and does not effect a reduction in liability” of the owner. However, if the worker’s conduct “is the sole proximate cause of the accident,” then he is not entitled to recovery under Labor Law §240(1). Where the owner cannot establish that the worker was the sole cause of his accident, the worker was entitled to summary judgment upon showing that the owner failed to provide safety devices necessary to protect him from “risks inherent in elevated work sites." (February 8, 2017)

In Kean Federation of Teachers v. Morell, the Superior Court of New Jersey, Appellate Division, addressed whether the Open Public Meetings Act (OPMA) requires public bodies to advise its employees, whose employment status may be adversely affected, of their right to compel their public employer to discuss their employment status in public (Rice Notice). The court held that a public body is required to send a Rice Notice whenever it might act on matters involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body. (February 8, 2017)

In Noren v. Heartland Payment Systems, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether a jury-waiver provision in an employment contract applied to a claim against the employer for violation of the Conscientious Employee Protection Act (CEPA). The court held that when a person has a statutory right to a jury trial, as in CEPA claims, the contract must specify statutory claims are included. The court found that use of the phrase “any suit … to enforce this Agreement,” while not specifically referencing statutory claims, was too ambiguous to waive a statutory right to a jury trial. (February 6, 2017)

In Capps v. Mondelez Global LLC, the United States Court of Appeals for the Third Circuit addressed an employee’s claim that a food manufacturer (1) interfered with his rights under the Family and Medical Leave Act (FMLA); (2) retaliated against his proper use of FMLA leave; and (3) violated the Americans with Disabilities Act (ADA). The court held that an employer’s honest belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim, and that while a request for intermittent FMLA leave may constitute a request for a reasonable accommodation under the ADA, there was a lack of evidence in this particular case that the employer had failed to provide any requested accommodation. (January 30, 2017)

In Southcoast Hospitals Group, Inc. v. National Labor Relations Board, the United States Court of Appeals for the First Circuit addressed whether a hospital’s non-union hiring policy discriminated against union members in violation of the National Labor Relations Act. The court held that the policy was valid, as the hospital’s method was reasonably adapted to achieve its stated goal of treating union and non-union workers more equally when filling vacant positions. (January 20, 2017)

In Tisby v. Camden County Correctional Facility, the Superior Court of New Jersey, Appellate Division, addressed whether Title VII of the Civil Rights Act or New Jersey’s Law Against Discrimination prohibited a government employer from disciplining or terminating an employee based upon the employee wearing religious headwear which was noncompliant with the employer’s uniform policy. The court held that although the employee had made a prima facie case for discrimination, the employer had a legitimate purpose for disallowing the headwear — safety — such that the employer was permitted to discipline and terminate the employee under the law. (January 18, 2017)

In Welsh v. National Railroad Passenger Corporation a/k/a Amtrak, the Superior Court of Pennsylvania considered the use of signed, unsworn statements to support a former police officer’s suit under the Federal Employers’ Liability Act. The court held that the trial court should not consider these statements as they did not meet the definition of an affidavit that must be sworn, include a notary’s jurat, and be subject to the penalties of 18 Pa.C.S. § 4904. (January 17, 2017)

In Royster v. New Jersey State Police, the Supreme Court of New Jersey considered whether the New Jersey State Police waived its sovereign immunity by not asserting it during a trial based on a violation of the Americans with Disabilities Act (ADA). The court found that the police did not waive immunity through its litigation conduct because it did not seek to remove from state court to federal court, or do anything other than appear and defend against the ADA claim. (January 17, 2017)

In Dittman v. UPMC d/b/a The University of Pittsburgh Medical Center, the Superior Court of Pennsylvania declined to impose a legal duty on employers to protect their employees’ personal and financial information. The court reasoned that a judicially created duty of care was not needed to incentivize companies to protect their confidential information. Moreover, the legislature had already considered the issue and chose only to impose a requirement that employers notify their employees of breaches. (January 12, 2017)

In Andaya v. Atlas Air, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed whether an employee was terminated in violation of Executive Law §296 based on his sexual orientation and in retaliation for his complaints about gender and sexual orientation discrimination in the workplace. The court held that the employer established prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for employment discrimination by showing that it had a legitimate, nondiscriminatory reason for terminating the plaintiff’s employment, and that there were no triable issues of fact as to whether its explanation for the termination was pretextual. (January 11, 2017)

In Karlo v. Pittsburgh Glass Works, LLC, the United States Court of Appeals for the Third Circuit addressed whether a disparate impact claim is cognizable when a “subgroup” of older employees has been disfavored relative to younger members of the same protected age class. The court held that a facially neutral policy that significantly disfavors a subset of older employees supports a claim of disparate impact because the Age Discrimination in Employment Act (ADEA) prohibits disparate impact based on age, not only a forty-and-older identity. (January 10, 2017)

In Vendura, Jr. v. Boxer, the United States Court of Appeals for the First Circuit held that a benefit plan had properly calculated the “years of benefit service” for a pensioner’s benefit plan and therefore the district court properly found in favor of summary judgment on that pensioner’s claim under the Employee Retirement Income Security Act. (January 10, 2017)

In Ayers v. Mohan, the New York Supreme Court, Appellate Division, 1st Department, considered whether a plaintiff, who brought suit against physicians for healthcare rendered at a hospital maintained by a public benefit corporation, was required to serve notice of claim on the nonparty corporation under the Public Authorities Law. The court found that, because the physicians were independent contractors, the corporation had no potential liability and there was no reason for the plaintiff to serve it notice of claim. (December 15, 2016)

In Chase v. United States Postal Service, the United States Court of Appeals for the First Circuit addressed whether an employer violated the Family Medical Leave Act (FMLA) by firing an employee while the employee was out of work on protected leave. The court held that the employer did not violate the FMLA because the employer did not have the requisite knowledge of the employee’s medical leave designation necessary to hold it liable under the FMLA. (December 14, 2016)

In Carroll v. Delaware River Port Authority, the United States Court of Appeals for the Third Circuit addressed the employee’s burden of proof in a “failure-to-promote” discrimination lawsuit filed under the Uniformed Services Employment and Reemployment Rights Act. The court held that the employee is not required to plead or prove that he/she is objectively qualified to meet his/her initial burden under the Act. Instead, the court held that the employer may raise an employee’s lack of qualifications as a non-discriminatory basis for declining to promote the individual, notwithstanding the employee’s military service. (December 12, 2016)

In Vitalie v. Schering-Plough Corporation, the Supreme Court of New Jersey granted certification of the following issue for appeal: whether a provision in an employment contract that limits a worker’s right to sue a third party for negligence is enforceable. (December 6, 2016)

In Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission, the Superior Court of New Jersey, Appellate Division, consolidated six appeals challenging several administrative agency decisions rendered by the Civil Service Commission regarding the implementation of a job banding rule for certain civil service positions after the legislature exercised its veto power and determined that the rule conflicted with the Civil Service Act. Under job banding, certain job titles would be grouped into one "band" and employees would be able to advance from lower to higher titles in the same band without competitive promotional examination. The court held that the legislature validly exercised its authority under the Legislative Review Clause of the New Jersey Constitution and correctly invalidated the rule. (December 1, 2016)

In Ioven v. Nestel, the Commonwealth Court of Pennsylvania addressed the protection afforded under the Sovereign Immunity Act to a Commonwealth agency employee acting within the scope of his employment. The court held that Commonwealth employees do not lose their sovereign immunity protection for claims of intentional torts, provided they are acting within the scope of their employment.  Rather, the court explained that waiver of immunity only applies to actions of local agency employees, not Commonwealth employees, that constitute crime, actual fraud, actual malice, or willful misconduct. (November 30, 2016)

In Millette v. Tishman Construction Corporation, the New York Supreme Court, Appellate Division, 2d Department, held that the construction company was entitled to summary judgment dismissing Labor Law 240(1) claims because the worker’s superintendent provided testimony to establish that plywood, which fell and caused the injury, was not hoisted or secured and “did not require securing for the purposes of the undertaking at the time it fell.” (November 30, 2016)

In Beckwith v. The Pennsylvania State University, the United States Court of Appeals for the Third Circuit examined an employer’s alleged breach of a six-year employment agreement for termination of a tenure-eligible professor after two years of employment. The court held that the employer did not violate the professor’s right to procedural and substantive due process as the employee was afforded adequate pre- and post-termination due process.

Nancy Conrad and Marc Penchansky successfully represented The Pennsylvania State University in this case. (November 30, 2016)

In In the Matter of Robbinsville Township Board of Education v. Washington Township Education Association, the Supreme Court of New Jersey addressed whether public employers may change the terms of a collectively negotiated agreement with their employees by noting a current economic crisis. The court held the Board’s unilateral imposition of furloughs for its employees due to a funding shortfall ran afoul of the collectively bargained agreement. The court found the furloughs impermissible, but noted the result could have been different if the Civil Service Commission had issued a temporary emergency regulation. (November 29, 2016)

In Trascent Management Consulting, LLC v. Bouri, the Supreme Court of Delaware held that where a business entity agrees in an employment contract to advance defense costs to its officer until its indemnification obligations are decided by final judgment, the entity may not escape this obligation in a lawsuit against the officer by attempting to void the contract due to fraud during a summary advancement proceeding. The court held that to allow such a defense would permit the entity to escape its clear promise to advance defense costs until a court found indemnification inappropriate, and it would undermine the purpose of making advancement proceedings summary in nature. (November 28, 2016)

In Service Employees International Union, Local 509 v. Department of Mental Health, the Supreme Judicial Court of Massachusetts addressed the interplay between a non-compliant, governmental, privatization contract under the Pacheco Law and a renewal of such contract. The court held that that the protections afforded renewal contracts under Mass. Gen. Laws c. 6, § 53 are inapplicable when a privatization contract under § 54 is timely challenged and subsequently invalidated. The court reasoned that non-complaint privatization contracts are void ab initio and thus so too are the renewal contracts, regardless of when the original contracts were deemed invalid. (November 22, 2016)

In Halle v. West Penn Allegheny Health System Inc., the United States Court of Appeals for the Third Circuit addressed the appeal of three opt-in plaintiffs of a Fair Labor Standards Act (FLSA) collective action. The opt-in plaintiffs appealed the decision to decertify the three individuals as opt-in plaintiffs and dismiss them without prejudice; the named plaintiffs were permitted to proceed to trial. The court dismissed the appeal because there was no final order from which to appeal. The court determined that a dismissal without prejudice was not a final decision, and the opt-in plaintiffs lost no substantive or procedural rights, as they could file their own FLSA action. (November 18, 2016)

In Buchanan Capital Markets, LLC v. DeLucca, the New York Supreme Court, Appellate Division, 1st Department, addressed the enforceability of covenants not to compete. To establish a likelihood of success on the merits, an employer must prove that the restrictive covenants were enforceable. However, such covenants are not enforceable if the employer does not demonstrate “continued willingness to employ the party covenanting not to compete.” The Court held that unless an employer’s clients signed an agreement to conduct business with that employer for a determined period of time, that client “should be free” to choose if they would prefer to conduct business with the employer or with former employee’s new business. (November 15, 2016)

In Lawrence v. SOL G. Atlas Realty Company Inc., the United States Court of Appeals for the Second Circuit addressed whether a collective bargaining agreement’s (CBA) general prohibition on discrimination against union members, and corresponding requirement that any dispute be addressed through arbitration, barred union member’s federal discrimination action alleging violations of 42 U.S.C § 1981, Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law. The court held that the CBA’s arbitration requirement did not bar the union member’s federal action, as the CBA language did not “clearly and unmistakably” require arbitration of the member’s statutory claims, as opposed to his contractual claims arising out of the CBA. To “clearly and unmistakably” waive an employee’s federal forum rights, the court held that a CBA must explicitly compel arbitration of statutory causes of action. (October 28, 2016)

In Cristo v. Evangelidis, the Appeals Court of Massachusetts addressed whether an employee of the Worcester County sheriff’s office had a case of retaliation against the sheriff for terminating him, allegedly because he exercised his rights of free speech under the First Amendment. The court held that the employee’s speech, while related to matters of public concern, was made in his capacity as an employee of the sheriff’s office, not as a private citizen, and therefore the sheriff’s defense of qualified immunity should be granted. (October 28, 2016)

In Siciliano v. Mueller, the Superior Court of Pennsylvania addressed whether payment of wages in the form of a debit card constituted “lawful money of the United States or check” per the Pennsylvania Wage Payment and Collection Law (WPCL). The court concluded that such mandatory form of wages, which may be subject to fees, were not lawful money of the United States or check and thus use of debit cards violated the WPCL. (October 21, 2016)

In Dailey v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed a union member’s claim that a union’s dues collection process violated the Public Employee Relations Act (PERA) by coercing members to assist in political activities. The court held that the union’s decision with regard to dues assessment was an internal union matter not subject to judicial interference. (October 14, 2016)

In Twin City Fire Insurance Company v. Arch Insurance Group, Inc., the New York Supreme Court, Appellate Division, 1st Department, held that an insurance company did not owe damages to another insurance company as a result of the departure of former senior executives of the plaintiff insurance company. The court found that no evidence showed that the defendant insurance company lured employees away from the plaintiff insurance company by improper means or that the employees’ decision to leave was based on anything other than economic considerations. (October 13, 2016)

In Brown v. Office of the Commissioner of Probation, the Supreme Judicial Court of Massachusetts considered whether sovereign immunity bars a plaintiff who is awarded punitive damages, costs, and attorney's fees as part of a judgment for claims of sexual harassment from recovering post-judgment interest on those awards from a public employer. The Court found that the applicable statute, G. L. c. 151B, § 9, does not waive sovereign immunity from liability for post-judgment interest, either expressly or by necessary implication. (October 11, 2016)

In Smiley v. E.I. DuPont De Nemours and Company, the United States Court of Appeals for the Third Circuit addressed whether an employer violated the Fair Labor Standards Act (FLSA)and Pennsylvania’s Wage Payment Collection Law by requiring its employees to work before and after their twelve-hour shifts without paying them overtime. The court concluded that the employer could not offset compensation given to its employees for meal breaks during their shifts against such required overtime. (October 7, 2016)

In Thompson v. Civil Service Commission, the Supreme Judicial Court of Massachusetts considered whether the Boston police department had just cause to terminate ten officers as a result of their hair samples testing positive for cocaine. The Court affirmed the Civil Service Commission’s decision to uphold the termination of four officers whose test results and “safety net” re-tests were positive at levels well above the cutoff level, and to reinstate six officers whose initial levels were barely above the cutoff level and had also presented evidence of negative independent hair tests. (October 7, 2016)

In Frenkel Benefits, LLC v. Mallory, the New York Supreme Court, Appellate Division, 1st Department, examined the definition of “insurance” as used in a letter agreement between an employer and employee. The agreement included a restrictive covenant restricting the employee from “solicitation, representation or business involv[ing] the brokering or placement of insurance,” for a period of time after his employment was terminated. The term “insurance” was not defined. The employee, the former vice president of surety, terminated his employment and while working for his new employer, communicated with his former employer’s surety clients. The employee argued that the letter agreement was not breached because surety and insurance have different meanings. The court held that the covenant was ambiguous, finding that it was unclear whether the term “insurance” included surety work. (September 22, 2016)

In Williams v. Jani-King of Philadelphia, Inc., the United States Court of Appeals for the Third Circuit addressed whether a misclassification claim of independent contractor versus employee can be made on a class-wide basis through common evidence, primarily a franchise agreement and manuals. The court held that under certain circumstances, such as here, documentary evidence alone is sufficient to resolve the Pennsylvania multifactor test to determine who is an employee and that the court need not engage in an examination of the unique employment relationship of each class member. (September 21, 2016)

In Associated Builders and Contractors, Inc. v. City of Jersey City, New Jersey, the United States Court of Appeals for the Third Circuit addressed challenges to tax exceptions for private developers brought under the National Labor Relations Act, Employee Retirement Income Security Act, and the dormant Commerce Clause against Jersey City. The court held that the challenges could proceed because Jersey City was acting as regulator, not a market participant, when it offered tax exemptions and abatements to private developers on the condition that the developers enter into agreements with labor unions that bind the developers to specified labor practices. (September 12, 2016)

In Mancini v. Northampton County, the United States Court of Appeals for the Third Circuit considered whether an exception exists to the ordinary requirements of procedural due process when a government employee with a protected property interest in her job is dismissed as part of a departmental reorganization. The court held that a “reorganization exception” to constitutional procedural due process does not apply where the action was a pretext for an unlawful termination. (September 9, 2016)

In B.G. Balmer & Company, Inc. v. Frank Crystal & Company, Inc., the Superior Court of Pennsylvania examined an insurance brokerage company’s claims that its former executives conspired to steal clients and join a competing business in violation of non-solicitation provisions in their employment agreements. The court held that the gist of the action doctrine did not bar the firm’s tort claims because they arose out of legal obligations separate and distinct from the employment contracts. The court reasoned that the tort claims were based on each individual executive’s conduct while employed, whereas the provisions of the non-solicitation clauses only went into effect after the executives left the firm’s employment.  September 9, 2016)

In Trometter v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed whether the Pennsylvania Labor Relations Board has the power to enforce the provisions on the Public Employees Relation Act and enforce the Act's prohibition against impermissible political contributions. The court held that the Board has a duty and an obligation to enforce and implement the Act, thereby preventing evasion of the provisions prohibiting certain political contributions. (September 6, 2016)

In Khula v. State Correctional Institute-Somerset, the Commonwealth Court of Pennsylvania held that an employee was not qualified because he did not obtain a vocational certification that was a job-related requirement of his position. The court reasoned that it was for this reason that the employee was terminated from his position, not on the basis of prejudice or fear of disabilities. The court further held that his employer could not have provided reasonable accommodation in the form of a private room and additional time to take the exam, the passing of which was necessary to earn the vocational certification, because a different entity administered the exam and his employer had no involvement with the exam. (August 26, 2016)

In Gyulakian v. Lexus of Watertown, Inc., the Supreme Judicial Court of Massachusetts addressed the scope of an employer's liability for punitive damages for a sexually hostile or offensive work environment. The court concluded that a supervisor's creation of a sexually hostile or offensive work environment alone was insufficient to warrant the imposition of punitive damages on the employer; however, the court held that punitive damages were warranted where the employer was on notice of the harassment and outrageously and egregiously failed to take steps to investigate and remedy the situation. (August 24, 2016)

In Vitale v. Schering-Plough Corporation, the Superior Court of New Jersey, Appellate Division, addressed whether a provision in an employment contract limiting a worker’s right to sue a third party for negligence is enforceable. The court held that the contractual limitation was unenforceable as against public policy. (August 22, 2016)

In Puglia v. Elk Pipeline, the Supreme Court of New Jersey reviewed a case involving the dismissal of a laborer who complained about his employer’s failure to pay him proper wages. The court examined whether the Conscientious Employee Protection Act  (CEPA) whistleblowing claim is preempted by the Labor Management Relations Act (LMRA), providing for the application of federal law upon breaches of collective bargaining agreements, or the National Labor Relations Act, which provides the National Labor Relations Board (NLRB) exclusive jurisdiction to determine activities prohibited and/or protected by the Act. The court held that the CEPA claim was not preempted by the LMRA because the case involved questions of whistleblowing rather than an alleged breach of a collective bargaining agreement, and further, that the NLRB did not have primary jurisdiction over said whistleblowing activities. (August 16, 2016)

In Cohen v. National Grid USA, the New York Supreme Court, Appellate Division, 2d Department, found that employees were not entitled to severance pay pursuant to a severance plan as a result of a merger and sale of their employer. The court held that provisions contained in company policy manuals which, like the one in this case, can be amended or withdrawn unilaterally, do not constitute enforceable obligations owing from an employer to its employees absent a showing of a regular practice by the employer to provide the benefits now claimed, the employee’s knowledge of the practice, and his or her reliance upon such practice as evidenced by accepting or continuing employment as a result thereof. (August 17, 2016)

In Brankov v. Hazzard, the New York Supreme Court, Appellate Division, 1st Department, found that an ostensible non-employer was actually a joint employer for purposes of employment discrimination claims under the state andcity human rights laws. The court applied the “immediate control” test, which states that a joint  employer relationship may be found to exist where there is sufficient evidence that the ostensible non-employer had immediate control over the other company’s employees and, particularly, control over the employee in setting the terms and conditions of the employee’s work. (August 11, 2016)

In BGC Notes, LLC v. Gordon, the New York Supreme Court, Appellate Division, 1st Department, found that a dispute between a broker registered under the Financial Industry Regulation Authority (FINRA) and its lender over a cash advance distribution agreement and promissory note would be subject to FINRA arbitration despite the fact that the note provided for resolution of related disputes by the New York state courts. The FINRA-registered broker’s employment agreement contained a broad arbitration provision providing that “any disputes, differences or controversies” from his employment would be subject to FINRA arbitration. The court found that, although the lender was not a signatory to the employment agreement, the lender nonetheless received a “direct benefit” directly traceable to the employment agreement. (August 11, 2016)

In National Labor Relations Board v. Fedex Freight, Inc., the United States Court of Appeals for the Third Circuit addressed the Board’s use of a unit-determination standard in certifying a collective-bargaining unit. The court held that the Board’s clarification of the unit-determination standard was reasonable and properly applied in this case. (August 9, 2016)

In Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC, the United States Court of Appeals for the First Circuit upheld an award of attorneys’ fees under Title VII against a former employee whose sexual harassment, discrimination, and retaliation claims against her former employer had been dismissed by the trial court. The court recognized that fee-shifting under Title VII in favor of a prevailing defendant is the exception to the rule. The court agreed with the trial court, however, that although the litigation was not necessarily frivolous when filed, it continued past the moment at which it became clear that the former employee’s claims were frivolous and without foundation. (August 5, 2016)

In Vladimirsky v. The School District of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether the school district’s termination of a tenured teacher before conducting a hearing and without a resolution from the school board violated the Pennsylvania Public School Code and the teacher’s due process rights. The court held that the school district violated the mandatory provisions of the school code and that those violations amount to a violation of the teacher’s due process rights. (August 3, 2016)

In John B. Ellison v. Chartis Claims, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed whether an employee of a corporation had standing to seek disqualification of the law firm that represented the corporation in an employment discrimination action on the basis of an alleged conflict of interest. The court held that because it was undisputed that the employee was neither a present nor a former client of the subject law firm, and thus the law firm owes no duty to the employee, the employee lacked standing to seek disqualification of the law firm. (August 3, 2016)

In Henry Perez v. The City of New York, the United States Court of Appeals for the Second Circuit addressed whether the New York City Department of Parks & Recreation violated the Fair Labor Standards Act when it refused to compensate current and former Assistant Urban Park Rangers for time spent putting on and taking off required uniforms. The court held that it could not conclude as a matter of law that the Assistant Urban Park Rangers’ time spent putting on and taking off required uniforms were not integral and indispensable to their principal activities as required by the Fair Labor Standards Act. In so holding, the court explained that the district court erred when it mistakenly classified the uniforms as serving solely to protect against workplace hazards, characterized the protective elements of the uniforms as generic, and that generic protective gear is never integral and indispensable to an employee’s principal activities. (August 2, 2016)

In Moshan v. PMB, LLC, the New York State Supreme Court, Appellate Division, 1^st Department, addressed the issue of whether a commission agreement was a valid and binding contract, or simply an unenforceable “agreement to agree.” The commission agreement had been reduced to writing but not signed, and was styled as a “Letter of Intent.” However, because Moshan alleged sufficient facts to permit a reasonable inference that the parties manifested an intent to be bound by the commission agreement, including performance, the commission agreement was not subject to the statute of frauds. (July 28, 2016)

In City of Wilkes-Barre v. Fire Fighters Local Union No. 104, the Commonwealth Court of Pennsylvania addressed the scope of an arbitrator’s jurisdiction under a collective bargaining agreement (CBA) between a municipality and its firefighters. The court held that, under Pennsylvania’s Act 111, which governs collective bargaining between public employers and their fire departments, an arbitrator has jurisdiction to address an issue if it is within the “general class” of controversy of the CBA’s jurisdictional grant. The court concluded that the arbitrator had jurisdiction to decide the union’s grievance regarding the city’s monitoring of a firefighter’s guaranteed benefits because such grievance related to a “condition arising out of the employee-employer relationship” and, therefore, was the type of controversy that was subject to grievance arbitration. (July 20, 2016)

In Baugh v. New York City School Construction Authority, the New York Supreme Court, Appellate Division, 2nd Department, held that Labor Law §240(1) “imposes a nondelegable duty and absolute liability upon owners . . . for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure.” Thus, a worker established, prima facie, that Labor Law §240(1) was violated by showing that although he was provided with a ladder, “the ladder was not secured so as to prevent him from falling.” (June 29, 2016)

In Hill v. City of New York, the New York Supreme Court, Appellate Division, 1st Department, held that an injured employee was not required to show that the ladder he fell off of was defective in order to satisfy his burden as to Labor Law §240(1). Rather, the court found that “it is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent.” Therefore, the fact that the employee’s injuries were the direct consequence of using a ladder that did not provide adequate protection gave rise to the protections of Labor Law §240(1). (June 23, 2016)

In Smith v. Millville Rescue Squad, the Supreme Court of New Jersey considered whether the Law Against Discrimination’s (LAD) prohibition against discrimination based upon marital status extends to a person who has separated from his/her spouse and is in the process of obtaining a divorce. The Court held that marital status should be interpreted to include those who are single or married and those who are in transition from being married to single. (June 21, 2016)

In Sergio Rodriguez v. Raymours Furniture Company, Inc., the Supreme Court of New Jersey addressed whether a private agreement can contravene the Law Against Discrimination. The court held that a private agreement cannot shorten the two year limitations period for asserting private Law Against Discrimination claims. (June 15, 2016)

In AIT Global, Inc. v. Yadav, the Superior Court of New Jersey, Appellate Division, addressed whether a temporary help service firm is required to be licensed as an employment agency pursuant to the Private Employment Agency Act, N.J.S.A. 34:8-43 to -66, to enforce an employment agreement. The court noted that, under the Act, employment agencies must obtain a license, which requires them to demonstrate strict compliance with extensive statutory and regulatory criteria. The court ultimately concluded that, unlike employment agencies, temporary help service firms need only be registered, a significantly less-stringent process than obtaining licensure, in order to bring actions to enforce contracts made with their employees. (June 6, 2016)

In Duranti v. Dream Works Construction, Inc., the New York Supreme Court, Appellate Division, 2d Department addressed whether the court would consider whether plaintiffs had established the existence of a potentially meritorious cause of action when plaintiffs failed to provide a justifiable excuse for failure to file a note of issue within 90 days, and when plaintiffs’ case was dismissed under CPLR 3216. The court held that it would not consider the merits of the plaintiffs’ cause of action, because the conclusory and unsubstantiated claim of a law office offered by the plaintiff did not constitute a justifiable excuse for failure to file a note of issue, and, in the absence of a justifiable excuse, the court would not address the merits of the claim. (May 25, 2016)

In Mazzarella v. Fast Rig Support, LLC, the United States Court of Appeals for the Third Circuit found that defendants had not met their burden to show that the Motor Carrier Act exemption to overtime provisions in the Fair Labor Standards Act (FLSA) and Pennsylvania Minimum Wage Act (PMWA) applied to their employees and they were exempt from paying overtime pay. The court held that the defendants had failed to provide any evidence that their employees engaged in a continuous stream of interstate travel and so their employees were not exempt and therefore entitled to 150% pay for overtime work. (May 23, 2016)

In City of Arnold, Pennsylvania v. Wage Policy Committee of the City of Arnold Police Department, the Commonwealth Court of Pennsylvania addressed whether a grievance filed by an officer’s widow to a city pension board decision may be heard by an arbitrator pursuant to the Collective Bargaining by Policemen or Firemen Act. The court found that, because the dispute was not one between the city as a public employer and the decedent as its employee, the arbitrator did not have subject matter jurisdiction to hear the grievance. (May 20, 2016)

In CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission, the United States Supreme Court addressed whether a favorable ruling on merits is a necessary predicate to find that a litigant is a prevailing party under Title VII of the Civil Rights Act of 1964 for purpose of recovering attorney’s fees. The Court found that the fee-shifting statute of Title VII allows a prevailing defendant to recover fees incurred in frivolous, unreasonable, or groundless litigation when the case is resolved in that defendant’s favor, regardless of if it is on the merits. (May 19, 2016)

In Tang v. Citizens Bank, N.A., the United States Court of Appeals for the First Circuit held that a bank employee could proceed with her claim for sex-based discrimination, despite the fact that the offending employee did not directly proposition the bank employee or touch her, and many of his comments lacked any sexual content. The court stated that the context in which the comments were made could be just as important as what was said. The court also held that the bank employee could proceed with her claim for retaliation. The bank employee had been terminated four months after she complained of harassment to human resources, and her supervisors began forwarding emails to human resources concerning the employee’s performance issues almost immediately after she complained. (May 19, 2016)

In Lopez v. City of Lawrence, Massachusetts, the United States Court of Appeals for the First Circuit considered whether a test adapted by the City of Boston and several other Massachusetts state employers, and used to promote police officers, violated Title VII of the Civil Rights Act of 1964 because it disparately impacted minority applicants, notwithstanding the absence of any intent to discriminate on the basis of race. The court held that the test was a valid selection tool which did not violate Title VII because, although it did have a disparate impact on promotions, it helped employers promote officers based on merit, and the plaintiffs failed to prove the existence of an alternative selection tool which was as (or more) valid, and which would increase the percentage of promotions of minority officers. (May 18, 2016)

In Delvecchio v. Township of Bridgewater, the Supreme Court of New Jersey considered whether a plaintiff may rely on the testimony of a treating physician who has not been designated as an expert witness to establish the existence of a disability for a claim under the New Jersey Law Against Discrimination (NJLAD). The court held that testimony of a treating physician is admissible to support a plaintiff’s disability claim under the NJLAD provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in accordance with the Rules of Court, and the testimony satisfies applicable rules of evidence. (April 28, 2016)

In Heffernan v. City of Paterson, New Jersey, the Supreme Court of the United States addressed whether the First Amendment prohibits the government from demoting an employee based on his supervisor’s perception that the employee supported a particular political candidate. It was subsequently determined that the employee was not involved in and did not support the candidate’s political campaign. The court held that where the government demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge the demotion under the First Amendment even if the government’s actions were based on a factual mistake. (April 26, 2016)

In Murray v. Warren Pumps, LLC, the United States Court of Appeals for the First Circuit addressed whether an employer’s actions violated the Americans with Disabilities Act, where a former employee’s back condition required a ten-pound lifting restriction, but he was occasionally requested to take on tasks that required some amount of physical labor, to which he many times voiced no objection. Here, the former employee produced no evidence that the employer did not accommodate him when specifically requested. The court concluded that the employer could not be faulted, as a matter of law, for times the employee remained silent, voluntarily chose to participate, or failed to police his own physical needs as the parties had agreed. (April 25, 2016)

In Advanced Disposal Services East v. National Labor Relations Board, the United States Court of Appeals for the Third Circuit determined whether a party forfeited its right to challenge the director’s authority by failing to raise the issue until after the order was entered, and signing a stipulated election agreement, preventing it from later challenging the director’s authority. The court held that a party did not forfeit its right to challenge the director’s authority because director authority is an “extraordinary circumstance” that can be raised for the first time on appeal, but, the court held that the director’s attempts to ratify his unauthorized conduct were sufficient to result in enforcement of the order. (April 21, 2016)

In Wakeley v. M.J. Brunner, Inc., the Superior Court of Pennsylvania held that in spite of the fact that an employee relocated from Texas, left a well-paying job, and was not provided with the promised support or training in her new job, she was still an “at-will” employee. The court held that her claims for breach of promise regarding her position were defeated when she signed a confirmation that her employment was “at-will,” and,therefore, she could be terminated at any time by the employer. (April 19, 2016)

In Hudson v. Merrill Lynch & Company,the New York Supreme Court, Appellate Division, 1st Department, addressed whether employees were unlawfully terminated from their employment in violation of New York State and New York City Human Rights law. The court held that no reasonable jury could conclude that the employers’ nondiscriminatory reasons for laying off the employees were pretextual, or that gender discrimination played any role in those decisions. (April 14, 2016)

In Krebaum v. Capital One, N.A., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an employee made a prima facie showing of age discrimination under both the state and city human rights laws. The court noted that the employee asserted that, for five months before the termination of his employment, he endured repeated negative comments about his age from his manager, which was supported by an affidavit from his co-worker. The court, therefore, held that the evidence supports an inference of age discrimination, and issues of fact exist as to whether the employer’s purported reasoning for terminating the employee was false or pretextual. (April 14, 2016)

In Public Employee Retirement Administration Commission v. Bettencourt, the Supreme Judicial Court of Massachusetts held that the mandatory forfeiture of a public employee’s retirement and health insurance benefits upon conviction of a crime "involving violation of the laws applicable to [the employee's] office or position" under M. G. L c. 32, § 15 (4) qualified as an “excessive fine” under the excessive fines clause of the Eighth Amendment to the United States Constitution. In determining whether a “fine” is “excessive,” the court considered four factors including: (1) the nature and circumstances of the crime committed by the public employee; (2) whether it was related to any other illegal activity; (3) the aggregate maximum sentence that could have been imposed; and (4) the resulting harm. (April 6, 2016)

In Hamilton Park Health Care Center Ltd. v. 1199 SEIU United Healthcare Workers East, the United States Court of Appeals for the Third Circuit, in a matter of first impression, held that a “second generation interest arbitration provision” was improperly inserted into a collective bargaining agreement by an arbitrator where there was no evidence or indication that the parties consented to the provision. By contrast, although the collective bargaining agreement only contemplated a single-year arbitration award, the arbitrator was empowered to issue a multi-year award because the parties agreed to such an award. The Third Circuit acknowledged that parties may agree to an arbitrator issuing an award beyond the express terms of a collective bargaining agreement. (April 1, 2016)

In Miller v. State Employees Retirement System, the Commonwealth Court of Pennsylvania addressed whether a Senior Magisterial District Judge who accepted temporary assignments and appointments by the Pennsylvania Supreme Court was considered a public employee during the periods he was not authorized by the court to serve. The court held that, as long as the judge continued to accept assignments and the court continued to appoint him, he retained his status as a public employee even during periods he was not actively serving. (March 30, 2016)

In City of Springfield v. United Public Service Employees Union, the Appeals Court of Massachusetts addressed whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated, even though the arbitrator had found that the employee had engaged in sexual harassment. The court held that the arbitrator’s award of reinstating the employee did not offend public policy or require a result prohibited by statute, since there were mitigating circumstances that supported the determination that the employer lacked just cause for termination, and there were other remedial actions available. (March 25, 2016)

In Escribano-Reyes v. Professional HEPA Certificate Corporation, the United States Court of Appeals for the First Circuit addressed whether an employer met its burden of showing that it did not employ a sufficient number of people to qualify as a covered employer under the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA). The court held that the employer had submitted sufficient documents with the Puerto Rico Department of Labor that showed that it did not employ enough people to trigger the ADA or the ADEA. The court also struck the employee’s post-discovery affidavit under the sham affidavit doctrine, and upheld sanctions against the employee’s counsel for filing the affidavit. (March 30, 2016)

In Hernandez v. Seadyck Realty Company, LLC, the New York Supreme Court, Appellate Division, 1^st Department, addressed whether an injured laborer could sue his employer under Labor Law § 241(6) for providing him with a grinder modified to be used as the functional equivalent of a saw. In finding that such a claim was properly dismissed, the court noted that the text of the statute only pertains to saws, not grinders. However, the court also noted that the laborer’s claim based on 12 NYCRR 23-1.5(c)(3), raised for the first time on appeal and thus not properly before the court, could proceed, conditioned upon amendment to the laborer’s bill of particulars, as it would not prejudice the employer. (March 24, 2016)

In Greenray Industries v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania found that unemployment compensation was not in order in a situation where several employees were discharged for their refusal to sign a non-disclosure agreement as a condition of continued employment. The court found that the employees, via their actions, had engaged in conduct tantamount to a voluntary resignation from employment without a necessitous and compelling reason to do so. (March 17, 2016)

In Kelmendi v. 157 Hudson Street, LLC, the New York Supreme Court, Appellate Division, 1st Department, determined that Industrial Code Section 23-1.12(c)(1) is sufficiently specific to support a Labor Law Section 241(6) claim and is applicable to a case where a plaintiff was injured while using a power-driven hand-operated saw while working on the roof of the defendant’s building. The court found that the defendant could not avoid its duty to comply with Section 23-1.12(c)(1) by asserting that the saw used by the plaintiff could not accommodate a self-adjusting guard as required by the statute since this would ineffectualize the regulation because employers, owners, and contractors would only use tools that would minimize their liability. (March 17, 2016)

In County of Atlantic v. PBA Local 243, the Superior Court of New Jersey held that the New Jersey Employer-Employee Relations Act, did not preempt negotiation over salary increments payable during a Collective Negotiation Agreement, or in the interim period between expiration of a Collective Negotiation Agreement and negotiation or arbitration of a successor agreement. (March 9, 2016)

In Esler v. Sylvia-Reardon, the Supreme Judicial Court of Massachusetts held that where an employee had been terminated by her employer in retaliation for exercising her right to take medical leave under the Federal Family and Medical Leave Act, front pay was an equitable remedy appropriate for a judge’s determination, not a jury’s determination. (March 9, 2016)

In Lang v. Wal-Mart Stores East, L.P., the United States Court of Appeals for the First Circuit addressed whether an employee, suing her employer for wrongful termination under the Americans with Disabilities Act (ADA) and under the New Hampshire Civil Rights Act, had a disability arising from her pregnancy, even though she claimed that she could perform the essential functions of her job with a reasonable accommodation. The court held that the employee could not perform the essential functions of her job, and did not show that her employer acted in a retaliatory manner in terminating her employment. (March 2, 2016)

In Bulwer v. Mount Auburn Hospital, the Supreme Judicial Court of Massachusetts addressed whether a medical resident, suing his hospital for wrongful termination, had produced sufficient evidence of pretext to show that his employers gave a false reason for terminating his employment. The Court held that the resident presented sufficient evidence for a jury to hear his claims, thus overturning the lower court’s finding in favor of the hospital. (February 29, 2016)

In Village of Freeport v. Barrella, the United States Court of Appeals for the Second Circuit addressed whether “Hispanic" describes a race for purposes of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 in an action where a non-Hispanic candidate alleged that he was not appointed chief of police because he was a white Italian-American, and that instead, a less-qualified Hispanic was appointed. The court held “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute, and that “race” should be defined the same way for purposes of Title VII. Accordingly, the court rejected the non-Hispanic candidate’s argument that an employer who promotes a white Hispanic candidate over a white non-Hispanic candidate cannot have engaged in racial discrimination. (February 16, 2016)

In MCPC, Inc. v. National Labor Relations Board, the United States Court of Appeals for the Third Circuit clarified the definition of concerted activity under the National Labors Relations Act and addressed the applicable test for determining whether that activity formed the basis for an employee’s allegedly discriminatory discharge. The court held an employee engages in concerted activity when the employee intends to induce a group activity or the employee’s action bears some relation to group action in the interest of employees, and “a lack of prior planning does not foreclose a finding of concerted activity, where the individual’s statements further a common interest or by their terms seek to induce group action in a common interest.” The court also held that if General Counsel for the National Labor Relations Board “makes a prima facie showing that protected conduct was a motivating factor in the employer’s decision, the burden shifts to the employer to demonstrate that the ‘same action would have taken place even in the absence of the protected conduct.’” (February 12, 2016)

In DiCarlo v. Suffolk Construction Company, Inc., the Massachusetts Court of Appeals held that a workers’ compensation insurer is not entitled to a lien on an employee’s recovery against a third-party tortfeasor to the extent that the damages were paid for the employee’s pain and suffering. (February 12, 2016)

In Eventmonitor, Inc. v. Leness, the Supreme Judicial Court of Massachusetts addressed whether an employer could use after-acquired evidence that allegedly showed a vice president who was previously fired without cause as retroactive grounds for termination. The court held that the after-acquired evidence doctrine did not apply, since the former vice-president did not disclose or use the improperly copied company information, and therefore the evidence could not be used retroactively as grounds for termination. (February 4, 2016)

In DaSilva v. Everest Scaffolding, Inc., the New York Supreme Court, Appellate Division, 1st Department, held that it was sufficient to establish proximate causation under Labor Law 240(1) where the worker testified “he fell off a scaffolding frame . . . when the scaffolding moved while he was attempting to remove a staple from a plastic covering on the building exterior while propping himself up on a cross-brace of the frame.” Although the owner attempted to raise the recalcitrant worker defense based on the worker’s failure to use a ladder, the court held that the defense was “unavailing in the absence of any evidence that plaintiff knew he was expected to use a ladder” or that “there was a ‘practice’ of workers obtaining ladders themselves because it was ‘easily done.’” (February 4, 2016)

In Wiest v. Tyco Electronics Corporation, the United States Court of Appeals for the Third Circuit addressed whether an employer violated the anti-retaliation provision of the Sarbanes-Oxley Act after an employee claimed he was terminated for reporting suspected securities fraud violations pertaining to two of the employer’s resort events. The employee alleged that management took adverse employment action against him for raising concerns related to fraudulent accounting practices and attempted shareholder fraud. The court held that the record was devoid of evidence that the employee’s disclosure was a contributing factor to any adverse employment action that the employer took against him. The court found that there was no evidence that the employee’s conduct frustrated management personnel, or that anyone from management was involved in the ultimate recommendation to terminate his employment. (February 2, 2016)

In Falto-de Roman v. Municipal Government of Mayaguez, the United States Court of Appeals for the First Circuit addressed whether an order denying qualified immunity to various town officials from a suit brought by a former town employee was proper. The court held that a key aspect of the officials’ argument, namely that the actual termination was ultimately the mayor’s decision, was not addressed, and therefore, the initial order denying qualified immunity was improper. (February 1, 2016)

In Martinez-Rivera v. Commonwealth of Puerto Rico, the United States Court of Appeals for the First Circuit addressed whether a former employee’s claims of discrimination under 42 U.S.C. §1983 were time-barred, and whether receipt of a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC) is required to file suit under the Americans with Disabilities Act (ADA). The Court held that although her claims for discrimination under 42 U.S.C. §1983 were time-barred, the right-to-sue-letter requirements are a precondition for bringing suit and can be waived by party consent or the court, thereby preserving the employee’s claims for discrimination under the ADA. (January 29, 2016)

In Silviera-Francisco v. Board of Education of the City of Elizabeth, the Supreme Court of New Jersey addressed whether the State Commissioner of Education properly found that Plaintiff was tenured in the position of Vice Principal when she was removed from the position of Principal. The court affirmed the State Commissioner of Education’s decision, finding that the salient facts of the case were undisputed and the core legal issues were properly settled by the Commissioner’s earlier decision and that the Board of Education waived its right to appeal by failing to file a timely appeal. (January 27, 2016)

In In The Matter of Paul Williams, the Superior Court of New Jersey, Appellate Division, considered whether an employer’s order that an employee undergo a psychological fitness-for-duty examination was reasonably justified under the Americans with Disabilities Act (ADA). The employer ordered the employee to undergo the examination because an anonymous source had complained about the employee’s disruptive behavior. The court held that the employer lacked the lawful authority under the ADA to order the employee to undergo the examination because the employer did not reasonably believe that the employee’s perceived medical condition was affecting his or her work performance or that the employee posed a direct threat, and therefore the examination was not “job-related and consistent with business necessity.” (January 25, 2016)

In Wagner v. Pennsylvania Capitol Police Department, the Commonwealth Court of Pennsylvania addressed whether the prevailing party in an employment discrimination case brought under the Pennsylvania Human Relations Act (the Act) was entitled to costs, full attorney fees and delay damages. The court held that: (1) the Act does not mandate an award of attorney fees and costs to a prevailing party; (2) the attorney fees awarded by the trial court were not manifestly unreasonable; and (3) the Act does not compel an award of delay damages in employment discrimination cases. (January 15, 2016)

In Thomas Jefferson University Hospitals, Inc. v. L&I, Bureau of Labor Law Compliance, the Commonwealth Court of Pennsylvania considered whether the Pennsylvania Department of Labor and Industry, Bureau of Labor Law Compliance erred in granting a discharged employee’s request to inspect her personnel file under the Personnel Files Act (Act). The court held that (1) the discharged employee, having been terminated one week prior to her request for her personnel file, clearly qualifies as “presently elapsed” employment and/or “most recent” employment, thereby, falling within the Act (moreover, under the Act an employee is expressly permitted to inspect one’s personnel file to determine the basis for his/her employment termination); and (2) documents indicating that the discharged employee was terminated on the same day as the incident giving rise to her termination constituted “substantial evidence” that she had no notice of her employment termination. (January 6, 2016)

In Delaware Township Board of Auditors v. Delaware Township, the Commonwealth Court of Pennsylvania considered whether the participation of supervisor employees who were also elected officials in an adopted pension plan constitutes impermissible compensation “of the elected office” under the Second Class Township Code, which provides that any change in compensation of the elected office does not become effective until the beginning of a supervisor’s next term. The court held that participation of supervisor-employees in the pension plan does not constitute compensation “of the elected office” under the Code, given the Code’s clear distinction between the compensation of supervisors as elected officials, whose salary is capped by statute for six years until their next term of office, and the salary of supervisor-employees, whose salary is discretionary with the Board of Auditors. Further, the pension benefit, which is the same for all employees whether they are supervisors or not, is compensation for the supervisors’ role as employees, not in their role as elected officials. Thus, it is not compensation “of the elected office” which may be changed only at the beginning of a new term in office. (January 6, 2016)

In Willis v. UPMC Children’s Hospital of Pittsburgh, the United States Court of Appeals for the Third Circuit addressed the Age Discrimination in Employment Act of 1967 and Pennsylvania Human Relations Act claims of a nurse terminated by the hospital. The court held that the absence of complaints against younger nurses, compared to the plaintiff’s three complaints, did not raise an inference of age discrimination sufficient to satisfy the fourth prong of a prima facie case. The court further held that the plaintiff did not prove pretext by failing to identify evidence that the defendant terminated her based on discrimination rather than the stated reasons. (December 22, 2015)

In Pennsylvanians for Union Reform v. Pennsylvania Office of Administration, the Commonwealth Court of Pennsylvania addressed whether public disclosure of payroll deductions for union political action committee (PAC) contributions would violate an individual’s right to freedom of association under the First Amendment to the United States Constitution. The court held that the public disclosure of a union member’s PAC contribution deductions would violate his right to freedom of association. (December 18, 2015)

In Marzuq v. Cadete Enterprises, Inc., the United States Court of Appeals for the First Circuit addressed whether former managers of Dunkin’ Donuts stores were precluded from bringing claims for overtime pay on the basis that the managers were bona fide executives excluded from the statute’s overtime pay requirement. The court held that, after an examination of the managers’ duties and authority, the evidence was inconclusive and did not permit the court to conclude that the managers were bona fide executives under a primary duty inquiry. (December 9, 2015)

In In re Board of Fire Commissioners, Fire District No. 1, Monroe Township And Monroe Township Professional Firefighters Association, International Association of Firefighters, Local 3170, the Superior Court of New Jersey, Appellate Division, addressed whether the Public Employment Relations Commission overstepped its remedial authority by requiring the Board of Fire Commissioners to offer to reinstate terminated employees with substantially the same work hours, responsibilities, and benefits. The court held that a public employer retains its rights under the New Jersey Employer-Employee Relations Act after it reinstates an aggrieved employee to discharge a worker for a legitimate business reason, unrelated to the employee’s union activities. The court further held that the reinstatement of an aggrieved employee does not forever preclude the public employer from making legitimate and non-retaliatory employment decisions. (December 8, 2015)

In CRST Van Expedited, Inc. v. EEOC, the United States Supreme Court granted a writ of certiorari to determine whether “a dismissal of a Title VII case, based on the EEOC’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of an attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k).” (December 4, 2015)

In Babcock v. Butler County, the United States Court of Appeals for the Third Circuit addressed payment of overtime to prison corrections officers for meal periods under the Fair Labor Standards Act (FLSA). The court held, under the predominant benefit test, that although the officers were subject to a number of restrictions during mealtime, such as inability to leave the prison without permission and required availability for emergencies, on balance, and considering the collective bargaining agreement, the restrictions did not predominantly benefit the employer. Therefore, the officers had no claim to overtime under the FLSA. (November 24, 2015)

In Piatt v. Police and Firemen’s Retirement System, the Superior Court of New Jersey, Appellate Division, held that corrections officers should be considered “policemen” under the Police and Firemen’s Retirement System Act and, therefore, corrections officers were subject to the age limitation that only permitted enrollment in the pension system before age 35. The court reaffirmed the constitutionality of the age limitation finding a significant public interest in the requirement that corrections officers be appointed before age 35 in order to enroll in the Police and Firemen Retirement System. (November 18, 2015)

In Socko v. Mid-Atlantic Systems of CPA, Inc., the Supreme Court of Pennsylvania considered whether the Pennsylvania Uniform Written Obligations Act (UWOA) – which permits a party to be bound to a contract absent consideration when the contract includes an express statement by the signer that he or she intends to be legally bound – applies to a restrictive covenant not to compete. In light of the Commonwealth’s long history of disfavoring restrictive covenants and the legal requirement that new and valuable consideration must accompany a covenant not to compete agreed to after the commencement of employment, the court held that an employee may challenge an employment agreement containing a restrictive covenant not to compete for lack of consideration even if the agreement, by its express terms, indicates that that parties “intend to be legally bound” pursuant to the UWOA. (November 18, 2015)

In DeGrandis v. Children’s Hospital Boston, the United States Court of Appeals for the First Circuit addressed whether a suit against a hospital by a fired employee with a claim under Section 301 of the Labor Management Relations Act for breach of a Collective Bargaining Agreement should be covered by the six year statute of limitations for breach of contract or the six month limitations period that applies to hybrid claims alleging both breach of contract by the hospital as well as breach of the duty of fair representation by his union (which would render his claim untimely). The court held that the employee was not required to bring a hybrid claim, and that his claim against the hospital could proceed. (November 18, 2015)

In Sandusky v. Pennsylvania State Employees’ Retirement Board, the Commonwealth Court of Pennsylvania addressed whether Sandusky, a former football coach, was an “employee” of The Pennsylvania State University when criminal acts were committed even though he had not been on its payroll since 1999. The court held that Sandusky was not an employee when the underlying criminal acts that led to his 2012 conviction were committed. Therefore, the Pennsylvania State Employees’ Retirement Board improperly applied the Public Employee Pension Forfeiture Act. (November 13, 2015)

In Sheet Metal Workers’ International Association Local Union 22 v. Kavanagh, the Superior Court of New Jersey, Appellate Division, addressed whether the fine imposed by the plaintiff-union was reasonable. The court further directed the trial court to consider the following factors in determining whether the fine was reasonable: 1) the conduct for which the fine was imposed; 2) the extent to which the member benefited or profited; 3) the calculation of the fine; 4) the harm to the union and its members; and 5) the current economic conditions. (November 13, 2015)

In Roman v. McGuire Memorial, the Superior Court of Pennsylvania addressed whether it had subject matter jurisdiction in the context of a claim arising under 43 Pa C.S. §§ 932.1- 932.6 (Prohibition of Excessive Overtime in Health Care Act also known as Act 102). The court noted that Act 102, does not provide any administrative or statutory remedies for employees who are fired in retaliation for refusing to work forced overtime and contains nothing that advises such an employee as to the administrative procedure to follow in order to recover for such harms. The court concluded that the wronged employee’s claim, which was filed in 2011 after Act 102 became effective (2009), but before regulations were implemented (2014), was properly before the trial court. (November 9, 2015)

In Arneson v. Wolf, the Supreme Court of Pennsylvania considered whether Pennsylvania Governor had the authority to remove Office of Open Records Executive Director from office without cause. Referencing Article VI, Section 7 and Article VI, Section 1 of the Pennsylvania Constitution, which concern the removal of public officers, the court held that there are limits to removal powers, and the governor did not have the authority to remove the Open Records Executive Director without cause. (October 27, 2015)

In Lancaster County v. Pennsylvania Labor Relations Board, the Supreme Court of Pennsylvania addressed whether the proper legal principles and level of deference had been applied in reviewing the decision of the Pennsylvania Labor Relations Board (PLRB), which found that the County’s termination of two County employees constituted unfair labor practices under the Public Employee Relations Act (PERA) §1201(a)(1) and (3). The court held that the PLRB had properly determined the County had violated §1201(a)(3), as well as the more generic unfair labor practice defined in §1201(a)(1), when it terminated the employees. (October 27, 2015)

In Barr v. Bishop Rosen & Co., Inc., the Superior Court of New Jersey, Appellate Division, addressed whether subsequent notice of an arbitration clause is enforceable on an earlier agreement. Plaintiff worked for defendant as a stockbroker for 17 years, during which time the plaintiff executed forms over a period of years which contained arbitration clauses. The court noted that an arbitration clause is enforceable if the parties know at the time of formation that "there is a distinction between resolving a dispute in arbitration and in a judicial forum." The court held that the later-in-time form could not provide notice to the plaintiff that the earlier-in-time form contained an arbitration clause, and therefore it was unenforceable. (October 26, 2015)

In Weaver v. State Employees’ Retirement Board, the Commonwealth Court of Pennsylvania reviewed a state employee’s eligibility for credited service under the State Employees’ Retirement Code during a lapse in salaried status when the employee was on unpaid disciplinary suspension during which time no contributions were made. The court held that where a state employee lacks both salaried status and contributions for the period in issue, he is neither an “active member” nor a “state employee” under the Retirement Code and as such is not entitled to credited service for retirement purposes. (October 13, 2015)

In Tipaldo v. Lynn, the New York Court of Appeals analyzed whether prejudgment interest is available under Civil Service Law Section 75-b and Labor Law Section 740(5). The court determined that Labor Law Section 740(5) provides courts with discretion to determine what is considered compensation and remuneration. Further, because the remedies listed in the statute appear to seek to make a whistleblower whole, the court held that awarding prejudgment interest would serve that purpose. (October 22, 2015)

In Ragoo v. New York City Taxi & Limousine Commission, the New York Supreme Court, Appellate Division, 1st Department, determined that the transfer of an employee from its employer’s office in Manhattan, to its office in Long Island City, Queens, was not an adverse employment action under the New York State Human Rights law. The court found that the employee’s corresponding reassignment from the position of administrative assistant to the First Deputy Commissioner to administrative assistant to the Chief Administrative Law Judge was at most an alteration of her responsibilities and not an adverse employment action since she retained the terms and conditions of her employment, and her salary remained the same. (October 22, 2015)

In Williams v. Borough of Clayton, the Superior Court of New Jersey, Appellate Division, addressed whether the hiring requirements of N.J.S.A. 40A:14-129 and -130 imposed upon police departments in certain New Jersey cities, which limit promotions to those applicants who have worked in the department for three years, prohibit a new hire from being appointed to Police Chief.  The court held that if there is an internal candidate with three years of experience, “the Borough is bound by the strictures of N.J.S.A. 40a:14-129 and -130, and thus must confine its selection procedures to statutorily eligible candidates.” (October 16, 2015)

In Famularo Catering, Inc., v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed the Department of Labor and Industry’s Office of Unemployment Compensation Tax Services’ (OUCTS) assessment of casual laborers as employees. The court held that by showing that the laborers received “renumeration in exchange for their services,” the OUCTS met its burden of proving the employer engaged the laborers in employment. (October 16, 2015)

In Russo v. Allegheny County, the Commonwealth Court of Pennsylvania considered whether the Court of Common Pleas for Allegheny County was immune from suit by a former clerk who claimed he was wrongfully discharged in retaliation for cooperating with a state and federal investigation of the Allegheny County Court of Common Pleas, Criminal Division. The court held that courts of common pleas enjoy sovereign immunity and that a claim for employment discrimination does not fall within any of the enumerated exceptions to that immunity. The court further dismissed the former clerk’s claim under the Pennsylvania Whistleblower Law on the grounds that the Whistleblower Law could not be constitutionally enforced against a judicial employer. (October 7, 2015)

In Segarra v. The Federal Reserve Bank of New York, the United States Court of Appeals for the Second Circuit addressed whether a former bank examiner was entitled to federal whistleblower protection after she was allegedly fired for refusing to approve a bank’s conflict-of-interest policies. The court held that the suit could not be maintained because the bank examiner’s allegations did not create a plausible and sufficient link between her employer and the Federal Deposit Insurance Company (FDIC) as required by the whistleblower statute. (September 23, 2015)

In Kaye v. Rosefielde, the Supreme Court of New Jersey addressed the question of whether a court may order the equitable disgorgement of an employee’s compensation when the employee breached his duty of loyalty to the employer, but the employer did not sustain economic loss as a result of that breach. The court held than an employer may seek disgorgement of a disloyal employee’s compensation, even in the absence of economic loss. When deciding whether disgorgement is an appropriate remedy, the court should consider: employee’s responsibility and compensation, the number of acts of disloyalty, the extent to which those acts placed the employer in jeopardy, and the degree of planning to undermine the employer done by employee. (September 22, 2015)

In Laduzinski v. Alvarez & Marsal Taxand LLC.,the New York Supreme Court, Appellate Division, 1^st Department, addressed whether an employee’s at-will employment status precluded his cause of action for fraudulent inducement. The court found that the company, despite initially expressing interest in the employee’s client contacts, ultimately induced the employee to join the company at-will instead of under a two-year contract based on the fact that he would not be responsible for business development. Thus, the court concluded that the employee’s termination for failure to bring in business was an injury separate and distinct from his wrongful termination and was sufficient to overcome the general rule of at-will employment in New York. (August 25, 2015)

In Stankey v. Tishman Construction Corporation, the New York Supreme Court, Appellate Division, 1^st Department, addressed the issue of whether comparative negligence is a defense to a violation of Labor Law section 240(1), which requires owners and general contractors to provide safety devices to protect workers from elevation-related hazards. The court held that comparative negligence is not a defense to an elevation-related claim, when a general contractor fails to provide adequate safety devices. (August 25, 2015)

In Vitali v. Reit Management & Research, LLC, the Appeals Court of Massachusetts addressed whether a company is potentially liable to an employee for unpaid overtime wages were the company’s time records presumed that the employee took an hour paid lunch break each day, but the employee sometimes worked through lunch. The court determined that, where the company had constructive notice of the employee’s lunch work and failed to train her to use its system for recording such work when asked, the employee had a viable claim for unpaid overtime. (August 21, 2015)

In Hansler v. Lehigh Valley Hospital Network, the United States Court of Appeals for the Third Circuit addressed, on reconsideration, the viability of an employee’s claim under the Family Medical Leave Act of 1992 (FMLA), 29 U.S.C. § 2601 et seq. The court concluded that, by alleging that the hospital terminated her instead of affording her a chance to cure any deficiencies in the medical certification she submitted as part of a request for intermittent medical leave, the employee had stated a claim that the hospital had violated the FMLA and could proceed with her suit against it. (August 19, 2015)

In Assevero v. Hamilton & Church Properties, LLC, the New York Supreme Court, Appellate Division, 2d Department, found that the owner of a building with a retail store on the ground floor and three residential apartments on the upper floors was not entitled to the homeowners’ exemption in Labor Law Sections 240 and 241. The court determined that the building did not qualify as a two-family dwelling as required by the homeowners’ exemption simply because the building’s certificate of occupancy classified it within an occupancy group that includes one- and two-family residential dwellings. (August 19, 2015)

In National Labor Relations Board v. NSTAR Electric Company, the United States Court of Appeals for the First Circuit required a utility company to bargain with a union that seventeen of the utility company’s electrical dispatch center workers had voted to join. Although the workers were highly skilled and charged with critical tasks, the court held that the utility company had failed to show that the workers were “supervisors” or “managers” because the workers did not exercise independent judgment, could not authorize other workers to work overtime or assign other workers to regular shifts or reporting times, did not possess “responsible direction” over other employees, lacked the authority to hire other workers, and did not represent management interests by taking or recommending discretionary actions that controlled or implemented employer policy. (August 17, 2015)

In Rolando Fernandes v. DAR Development Corp., the Supreme Court of New Jersey addressed whether the comparative negligence of an employee injured in a workplace accident may be submitted to the jury in an action against a third party. The court held that an employee’s negligence may be submitted to the jury only when evidence has been adduced that the injured employee unreasonably confronted a known risk and had no meaningful choice in the manner in which he completed the task. (July 28, 2015)

In Connelly v. The Steel Valley Education Association, the Commonwealth Court of Pennsylvania addressed whether a union acted in bad faith by withdrawing a grievance without the consent of the aggrieved union workers. The court held that, because the union sought legal counsel and determined that the grievance lacked merit, the union did not act in bad faith in refusing to take the grievance to arbitration. (July 28, 2015)

In Jaworski v. Ernst & Young, the Superior Court of New Jersey, Appellate Division, addressed whether,in accordance with changes to an employer’s arbitration policy, continued employment constitutes an affirmative agreement to arbitrate. In 2002, employer established an alternative dispute resolution program for its employees, including a provision that employees are bound to arbitration for disputes. In 2012, plaintiffs were terminated and filed civil suits for age discrimination. The court held that continued employment after employer changed its policy requiring arbitration constituted an affirmative agreement to be bound by arbitration. (July 23, 2015)

In Groton-Dunstable Regional School Committee v. Groton-Dunstable Educators Association, the Appeals Court for Massachusetts held that a union is precluded from pursuing arbitration under the provisions of its collective bargaining agreement on behalf of a terminated teacher with professional teacher status because the Education Reform Act of 1993 provides the exclusive route to arbitration. (July 20, 2015)

In Philadelphia Firefighters’ Union, Local 22 v. City of Philadelphia, the Supreme Court of Pennsylvania addressed whether the City of Philadelphia must fill civil service vacancies immediately from a list of candidates existing at the time the vacancies open. The court found that, pursuant to the Home Rule Charter and the Civil Service Regulations, the City is required to fill vacancies by promotion as opposed to outside hiring, but need not do so immediately. Rather, the City may permit an existing list of candidates to expire and promote from a new list. (July 20, 2015)

In Lippman v. Ethicon, the Supreme Court of New Jersey addressed whether a watchdog employee, whose job duties included objecting to the continued sale and distribution of medical products, was entitled to protection under the Conscientious Employee Protection Act (CEPA), and could invoke whistleblower protections. The court held that watchdog employees are entitled to CEPA protection when performing ordinary job duties, and that CEPA imposes no additional burdens until the Legislature expresses its intent that such employees meet a heightened burden. (July 15, 2015)

In IMO Borough of Keyport v. Local 68, the Supreme Court of New Jersey decided whether three New Jersey municipalities were authorized to unilaterally impose temporary layoffs approved by the Civil Service Commission pursuant to N.J.S.A. 11A:8-1 to -4. The labor unions argued the municipalities were required to negotiate the layoffs pursuant to the New Jersey Employer-Employee Act, N.J.S.A. 34:13A-1 to -30. Applying its negotiability test under established precedent, the court held the municipalities acted for reasons of economy based on municipal fiscal distress existing at the time, rendering the management choice to use a temporary or permanent layoff solution one that constituted a managerial prerogative, which was not subject to negotiation. (July 14, 2015)

In Dunkley v. S. Coraluzzo Petroleum Transporters, the Superior Court of New Jersey, Appellate Division, addressed whether an employee who claims he was harassed by his supervisor due to his race and, as a result, was constructively discharged: 1) could maintain a direct negligence claim under the Law Against Discrimination; and 2) could maintain a claim for vicarious liability against his employer for the actions of a supervisor under the Law Against Discrimination based on a hostile work environment. The court held that the employee could not show any facts indicating that the employer’s conduct was negligent or that it ignored its affirmative duty to prevent discrimination. Since the employer followed and enforced its anti-harassment policy and plaintiff suffered “no employment action,” the employee had no viable claim. (June 24, 2015)

In Hansler v. Lehigh Valley Hospital Network, the United States Court of Appeals for the Third Circuit held that the Hospital Network violated the Family Medical Leave Act of 1993 when the company terminated an employee without providing her an opportunity to cure deficiencies in the medical certification supporting her request for medical leave. The court stated that employers must advise their employees of deficiencies in medical certifications and provide them with an opportunity to correct them before taking action. (June 22, 2015)

In Brown & Brown, Inc. v. Johnson, the New York Court of Appeals addressed whether the choice-of-law provision in an employment agreement, stating that any disputes will be governed by Florida law, was unenforceable as against public policy. The precise issue in the action was the enforceability of a non-solicitation provision. After comparing Florida law and New York law as it applies to the interpretation of restrictive covenants, the court found Florida’s law contrary to New York public policy, and therefore, refused to enforce the choice-of-law provision. (June 11, 2015)

In Burgos v. State of New Jersey, the Supreme Court of New Jersey addressed whether the enactment of Chapter 78, which declared that each member of the state’s pension system would have a contractual right to the annual required contribution amount, created an enforceable contract entitled to constitutional protection. The court held that Chapter 78 does not create a legally enforceable contract entitled to constitutional protection. (June 9, 2015)

In Monell v. Boston Pads LLC, the Supreme Judicial Court of Massachusetts addressed how the Massachusetts independent contractor statute, which sets penalties for failure to properly classify an individual as an employee, applies to real estate salespersons working for a licensed brokerage firm. The court concluded that the working arrangements between real estate brokers and brokerage firms is expressly permitted by the Massachusetts statute setting forth licensing and registration provisions for real estate brokers and salespersons, rendering the more general independent contractor statute inapplicable. (June 3, 2015)

In EEOC v. Abercrombie & Fitch Stores, Inc., the United States Supreme Court considered whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant based on a “religious observance or practice," when the employer had no actual knowledge that the accommodation was required. The Court held that an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. (June 1, 2015)

In Vicuna v. Empire Today, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an employer could be held liable for the alleged assault by one of its employees against another employee. The record showed that the employer knew that the employee was short-tempered and verbally inappropriate, but did not evidence any propensity by the employee to commit violent acts. The Court found that the claim for negligent retention and supervision against the employer could not be maintained. The claim for vicarious liability also could not survive because the assault was not within the scope of the employee’s duties and there was no evidence that the assault was condoned, instigated, or authorized by the employer. (May 26, 2015)

In Bonkowski v. Oberg Industries Inc., the United States Court of Appeals for the Third Circuit addressed how long an employee must stay in a hospital, hospice, or residential medical facility to satisfy the “overnight stay” requirement of the Family and Medical Leave Act (FMLA). The Court held “an overnight stay” means a stay in a hospital, hospice, or residential medical care facility for a substantial period of time from one calendar day to the next calendar day as measured by the individual’s time of admission and his or her time of discharge. Because the employee was admitted just after midnight and discharged on the same day, his hospital stay was not an overnight stay. (May 22, 2015)

In Beach v. Touradji Capital Management, LP, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the trial court properly dismissed employees’ Labor Law claims. The court held that the dismissal was warranted because the employees’ “unpaid extra compensation does not constitute ‘wages’ under Labor Law § 190(1), but depends on factors other than [the employees’] personal productivity….” (May 14, 2015)

In Resch v. Krapf’s Coaches, Inc., the United States Court of Appeal for the Third Circuit held that drivers for a common carrier were not entitled to overtime wages under the Fair Labor Standards Act or the Pennsylvania Minimum Wage Act because the drivers fell within the Motor Carrier Act exemption to the statutes’ overtime provisions. (May 12, 2015)

In Pitney Bowes Bank v. ABC Caging Fulfillment, the Superior Court of New Jersey, Appellate Division, considered whether N.J.S.A. 34:11-31 and -32, a New Jersey labor law statute, exempted unpaid wages from a debtor’s bank account from payment to a creditor. The court held that wages that were “due and owing” to the debtor’s employees before the creditor levied the funds were exempt from payment under the statute, but that wages that only became due after the levy were not. (May 8, 2015)

In Bridgewater-Raritan Education Association v. Board of Education of the Bridgewater-Raritan School, the Supreme Court of New Jersey addressed the interplay between two tenure statutes, which allow for teacher tenure generally but deny tenure for a substitute teacher. The teachers argued that they were entitled to tenure under apparent authority and equitable estoppel principles when high-level administrators told them substitute teaching counted toward tenure. The court held that the administrators had no authority to grant tenure, therefore apparent authority and equitable estoppel do not apply. The court further held that a substitute teacher must be given notice of his or her substitute status in order to be ineligible for tenure. (May 6, 2015)

In Geisinger Clinic v. Mark M. Radziewicz, D.O., the Superior Court of Pennsylvania held that a doctor breached his employment contract as a primary care physician with a hospital when he ceased his employment with the hospital and began working as a hospitalist within 15 miles of his former practice within two years of the date of his former employment. The court noted that it did not matter that the doctor was an inpatient PCP versus a clinical PCP and that because the restrictive covenants were reasonable the contract was valid. In order to prevent future premature breaches of valid restrictive covenants while litigation is pending, the court prohibited the doctor from practicing medicine in violation of his former employer’s covenants for an additional six months and three weeks (the amount of time he breached the restrictive covenant) even though the two-year restriction expired during the course of the litigation. (April 24, 2015)

In Linder v. Innovative Commercial Systems LLC, the New York Supreme Court, Appellate Division, 1^st Department, addressed whether an employee was entitled to receive post-termination commissions. It was the practice of the parties over a seven-year course of dealing that the employee, an at-will commissions salesman, earned his commissions upon payment by the customer. The court held that, absent an agreement expressly providing for post-termination commissions, the employee was not entitled to commissions for payments made by customers after his termination. (April 30, 2015)

In Mach Mining, LLC v. Equal Employment Opportunity Commission, the United States Supreme Court addressed the scope of judicial review of the EEOC’s compliance with pre-suit conciliation duties outlined in Title VII of the Civil Rights Act of 1964. The Court concluded that two areas of the EEOC’s actions were subject to judicial review: (1) whether the EEOC had informed the employer of the specific allegation giving rise to a potential employment discrimination suit, and (2) whether the EEOC offered the employer an opportunity to remedy the alleged discriminatory practice. (April 29, 2015)

In Stewart v. FedEx Express, the Superior Court of Pennsylvania addressed whether an employer wrongfully dismissed an employee because the employee carried a firearm in his personal vehicle. The court held that the employer’s dismissal did not violate Pennsylvania’s at-will employment doctrine or public policy protecting the rights of citizens to bear arms under the Pennsylvania Constitution. (April 17, 2015)

In Tyrone Wiggins v. Philadelphia Board of Pensions and Retirement, the Commonwealth Court of Pennsylvania addressed whether the Pension Board violated due process of an employee, convicted of various crimes, by stripping his pension for malfeasance in office or employment without articulating the legal or factual basis for its decision. The court held that, although Section 22-1302 of the Philadelphia Public Employees Retirement Code and Section 3(a) of the Pennsylvania Pension Forfeiture Act allow an employer to strip an employee of a pension for crimes committed in relation to public office, the Pension Board must first inform the employee of the charges against him, the applicable law, and, specifically, what conduct constituted malfeasance in office or employment. (April 22, 2015)

In In re Altour Service, Inc. v. the Industrial Board of Appeals, the Supreme Court of New York, Appellate Division, 1st Department, held that an employer violated Labor Law § 196-d by retaining the mandatory 20% fee it charged its customer as a gratuity. Because the employer represented or allowed its customers to believe that the charges were gratuities for its employees, the court directed the employer to pay unpaid wages and interest to its employees. (April 23, 2015)

In June-Il Kim v. SUK, Inc., the Supreme Court of New York, 3d Department, addressed whether a former employee of a black car limousine business qualified for unemployment insurance benefits after he was terminated. The court found that the employee’s base period employment with the limousine business was covered under Labor Law because the business imposed numerous restrictions upon the employee, including prohibiting him from working with its competitors, imposing detailed rules as to acceptable work dress and behavior, and requiring him to drive a specific type of car. (April 23, 2015)

In In Re I/M/O Town of Harrison and Fraternal Order of Police, Lodge No. 116, the Superior Court of New Jersey, Appellate Division, addressed whether the Director of the New Jersey Division of Pensions and Benefits had the legal authority to refuse to implement a final decision of the Police and Firemen’s Retirement System (PFRS) because the Director independently concluded the decision was legally incorrect. The court held that, under N.J.S.A. 43:16A-1 to -68, only the Superior Court of New Jersey has the legal authority to overturn a decision of the PFRS and thus the Director’s refusal to implement the decision of the PFRS lacked statutory or regulatory authority. (April 15, 2015)

In Meshna v. Scrivanos, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts Tips Act prohibits an employer from implementing a no-tipping policy. The Tips Act, Mass. G. L. c. 149, §152A, prohibits employers from “accept[ing] . . . deduction[s] from a tip” given to its employees or from retaining gratuity given to the employer. The court determined the statute’s language was clear, and that the Tips Act does not prohibit an employer’s implementation of a no-tipping policy. (April 10, 2015)

In EEOC v. Allstate Insurance, the United States Court of Appeals for the Third Circuit considered whether a requirement that workers sign a release of legal claims against the company when the employer converted a portion of its workforce from employees to independent contractors violated federal antiretaliation laws. Finding that employers can require a release of claims by a terminated employee in exchange for a new business relationship with the employer, the release did not violate the law. (March 26, 2015)

In American Federation of State, County and Municipal Employees, District Council 87 v. Pennsylvania Labor Relations Board, the Supreme Court of Pennsylvania addressed whether a county was required to bargain collectively with a union representing county employees before a local workforce investment board could seek competitive bids for the provision of workforce development services previously provided by the county employees. The court held that the board made the decision to seek competitive bids for certain services, and that local county officials could not exercise control over the local board’s decisional functions such that the county could be responsible for any alleged unfair labor practice. (March 25, 2015)

In L.A. v. Board of Education of the City of Trenton, the Supreme Court of New Jersey addressed whether a school board employee was entitled to indemnification for attorney’s fees and costs spent in defense of a civil action for negligent hiring arising from the same allegations contained in a dismissed criminal indictment. The court held that New Jersey law required indemnification unless there was proof by a preponderance of the evidence that the employee’s conduct fell outside the course of performance of his duties and that a conviction or other unfavorable disposition in a related criminal matter was not part of the inquiry. (March 25, 2015)

In Young v. UPS, Inc., the United States Supreme Court addressed whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” The Court put forth a framework for evaluating workplace policies that allowed for measuring the negative impact on female workers rather than evaluating solely based on intentional bias. (March 25, 2015)

In Phillips v Powercrat Corp., the New York Supreme Court, Appellate Division, 1^st Department, addressed the meaning of “structure” and “demolition” under Labor Law §§ 240(1) and 240(6). The court determined that shelves constituted a “structure” within the meaning of Labor Law §§ 240(1) and 240(6), and the worker’s dismantling of them sufficed as “demolition” pursuant to the statutes. (March 24, 2015)

In Werkheiser v. Pocono Township, the United States Court of Appeals for the Third Circuit held that the defendant official was entitled to qualified immunity for a First Amendment retaliation claim brought after the defendant declined to reappoint the plaintiff as an official in response to the plaintiff’s criticism of a third official.  The court noted that it was not clear whether the plaintiff’s criticism of a fellow official was protected speech.  However, the court concluded that a reasonable official in the defendant’s position would not understand that the retaliation at issue (i.e. declining to offer the plaintiff reappointment) would violate the plaintiff’s First Amendment rights. (March 6, 2015)

In McMaster v. Eastern Armored Services, Inc., the United States Court of Appeals for the Third Circuit held that, while professional motor carriers are generally exempt from paying overtime wages to hourly employees under the Fair Labor Standards Act, the Corrections Act of 2008 waives the exemption for motor carrier employees who drive vehicles weighing less than 10,000 pounds and states that such employees are entitled to overtime. (March 11, 2015)

In Pezhman v. Chanel, Inc., the New York Supreme Court, Appellate Division, 1st Department, addressed whether an at-will employee’s claim for tortious interference with prospective employment was properly dismissed.  The court held that the dismissal was warranted because the at-will employee “failed to allege the existence of a firm offer of employment” and, in any event, the law does not recognize “tortious interference with prospective at-will employment.” (March 12, 2015)

In Royster v. New Jersey State Police, the Superior Court of New Jersey, Appellate Division, held that the doctrine of state sovereign immunity precluded an employee’s Americans with Disabilities Act claim against the State Police.  However, the court held that the employee’s job responsibilities did not preclude him from making a claim under New Jersey’s Conscientious Employee Protection Act. (March 10, 2015)

In Matter of Loren v New York City Department of Education, the New York Supreme Court, Appellate Division, 1^st Department, addressed the issue of whether a participant in the New York City Teaching Fellows training program was wrongfully terminated.  The court held that because the plaintiff was in the midst of a pre-service training period, he had no more rights than those of probationary employees, who may be discharged for any or no reason at all in the absence of a showing that the dismissal was in bad faith or constitutionally impermissible. (March 3, 2015)

In EEOC v. Allstate Insurance Company, the United States Court of Appeals for the Third Circuit addressed whether an employer violates federal anti-retaliation law by requiring employees to sign a release, waiving existing legal claims, as a condition to convert to independent contractor status rather than be terminated.  The court held that employers can require terminated employees to waive existing legal claims in order to retain their jobs as independent contractors.  (February 13, 2015)

In WMI Group, Inc. v. Fox, the Superior Court of Pennsylvania addressed whether a non-competition clause in an original employment contract remains applicable after the execution of subsequent employment contracts with an affiliated, but different, entity.  Because the clause was not explicitly assigned to the new employment contracts, and because the information at issue was not considered a trade secret, the court held that the original employer was not entitled to a temporary restraining order and preliminary injunction. (February 6, 2015)

In Aguas v. State of New Jersey, the Superior Court of New Jersey, Appellate Division, addressed whether an employer can assert an affirmative defense based on its anti-harassment policy against claims for supervisory sexual harassment.  The court held that an employer’s implementation and enforcement of an effective anti-harassment policy can be asserted as an affirmative defense in claims alleging vicarious liability for supervisory sexual harassment. (February 11, 2015)

In City of Somerville v. Commonwealth Employment Relations Board, the Supreme Judicial Court of Massachusetts considered whether the city could unilaterally reduce its percentage contribution to retired employees’ health insurance premiums without first engaging in collective bargaining with current employees.  That statute requires an employer to negotiate with respect to the employment terms and conditions for existing public employees.  The court held the city did not violate the statute because the Legislature conferred the exclusive authority upon a municipality to decide whether and how much to contribute to the monthly health insurance premiums of retired employees and that authority would be “wholly undermined” by imposing an obligation to collectively bargain the issue.  (February 3, 2015)

In Bascombe v. West 44^th Street Hotel, LLC, the New York Supreme Court, Appellate Division, 2^nd Department, addressed whether the worker established that the defendant violated Labor Law §240(1) when the worker was allegedly injured while working on the 15^th floor during the construction of a multi-story building located in Manhattan. The court held that although the worker met his prima facie burden of establishing a violation of Labor Law §240(1), the defendants produced evidence that a safety harness and line were available to the worker, that he was aware that he was required to anchor the line on the floor where he was working, and that the anchors, harness, and line would have prevented him from falling to the 14th floor, but that the worker had consciously decided not to anchor his line on the 15th floor as instructed. (January 28, 2015)

In Wolff v. Salem County Corr. Facility, the Superior Court of New Jersey, Appellate Division, considered whether a public employee who raised a defense of employee retaliation in a civil service discipline proceeding was subsequently barred from bringing suit alleging  identical claims of retaliation in violation of the Law Against Discrimination (LAD). The court concluded that the public interest in promoting finality and consistency in judicial and quasi-judicial proceedings estopped the employee from proceeding with his LAD action. (January 29, 2015)

In Kannikal v. United States, the United States Court of Appeals for the Third Circuit addressed whether a general six-year statute of limitations under 28 U.S.C. § 2401(a) applies in Title VII cases which allows a claimant to file suit 180 days after filing the initial charge.  The court held that 28 U.S.C. § 2401(a) does not apply to Title VII actions, explaining that Title VII has a specific comprehensive scheme which preempts general statutes like 28 U.S.C. § 2401. (January 20, 2015)

In Hargrove v. Sleepy’s, LLC, the Supreme Court of New Jersey addressed the issue of what test should be used to determine whether an individual is an independent contractor or employee for a wage-payment or wage-and-hour claim.  The court applied the restrictive “ABC Test,” which presumes an employment relationship unless it can be shown that: (i) the individual has been and will continue to be free from control or direction over the performance of the services; (ii) such service are either outside the usual course of the business or performed outside of all the places of business of the enterprise; and (iii) such individual is customarily engaged in an independently established trade, occupation, profession, or business. (January 14, 2015)

In Sterk-Kirch v Uptown Communications & Elec., Inc.,  the New York Supreme Court, Appellate Division, First Department addressed the issue of whether a company is liable for its employee’s conversion of property.  The court held that even though the conversion occurred while the employee was working for the employer, the company was not liable for the conversion because the employee’s conduct was not in furtherance of the company’s business and was not within the scope of the company’s employment.(January 6, 2015)

In Comite de Apoyo a los Trabajad v. Perez, the United States Court of Appeals for the Third Circuit addressed a challenge to a Department of Labor regulation applicable to the administration of the H-2B visa program that authorizes the Department of Homeland Security to admit certain unskilled foreign workers for temporary employment. The court held that the regulation is arbitrary and capricious in violation of the Administrative Procedure Act. (December 5, 2014)

In Integrity Staffing Solutions, Inc. v. Busk, the United States Supreme Court held that an employer is not obligated under the Fair Labor Standards Act to compensate employees for time spent in security screening before leaving the worksite in part because the Portal-to-Portal Act exempts employers from liability for claims based upon activities subsequent to the principle activities the employee performs. (December 9, 2014)

In Khazin v. TD Ameritrade Holding Corp., the United States Court of Appeals for the Third Circuit addressed whether whistleblower retaliation claims brought under the Dodd-Frank Act are exempt from pre-dispute arbitration agreements.  The court held that the anti-arbitration provisions apply only to disputes arising under the Sarbanes-Oxley Act of 2002 and the Commodity Exchange Act, and that no provision prohibited arbitration of the employee’s retaliation claims under the Dodd-Frank Act. (December 8, 2014)

In Union-Endicott Central School District v. Peters, the New York Supreme Court, Appellate Division, Third Department, addressed whether to vacate an arbitration award or stay its enforcement.  At issue was whether a teacher, whose employment was terminated after it was discovered that she had stolen property from the school district, was entitled to receive retiree health insurance benefits provided for in a collective bargaining agreement between the teachers union and the school district.  The court held that vacatur of the arbitration award was not warranted because it was not established that the award violated strong public policy, was irrational, or exceeded a specifically enumerated limitation on the arbitrator’s power. (December 4, 2014)

In Chambersburg Borough v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed the meaning of the phrase “to engage in a secondary boycott” as used in the Pennsylvania Labor Relations Act (PLRA).  The court held that the phrase does not require an actual strike or work stoppage, and that the union’s letter inducing union members to withhold volunteer firefighting services from the Borough was a secondary boycott and a violation of the PLRA. (December 4, 2014)In Mayer v. Conrad., the New York Supreme Court, Appellate Division, Fourth Department, addressed whether Labor Law § 200 applied in a situation where an unsecured embankment collapsed and killed a construction worker.  At issue was whether the collapsed embankment qualified as a defective premises condition or whether the accident stemmed from the manner in which the work was being performed. The court held that Labor Law § 200 did apply, because the unsecured embankment transformed into a premises condition since it remained in that condition several weeks prior to the accident and neither the decedent nor any other employee was working on the embankment at the time of the accident. (December 3, 2014)

In Campos v. Daisy Construction Company, the Supreme Court of Delaware considered whether an injured former employee of a company, who was an undocumented worker, was eligible for partial disability payments where the former employer testified that it would rehire him without a loss of earning capacity if he could provide a valid social security number.  The Court held that the testimony was insufficient to meet the employer’s burden of showing no decrease in earning capacity, because such a holding would be contract to the Delaware Workers’ Compensation Act which prevents employers from depriving undocumented workers of employment benefits. (November 13. 2014)

In Garnes v. Passaic County, the Superior Court of New Jersey, Appellate Division, addressed the viability of age discrimination claims brought by a sheriff’s investigators against the county.  Despite the sheriff’s exclusive authority over employment decisions involving investigators, the court held that any violation of the New Jersey Law Against Discrimination (LAD) by the sheriff’s office can be imputed to the county.  The court further held that an employee’s “at will” employment status does not affect his right to recover under LAD as relief is not dependent upon a contractual right or expectation other than freedom from unlawful discrimination. (October 24, 2014)

In Borough of Gettysburg v. Teamsters Local No. 776, the Commonwealth Court of Pennsylvania held that a union’s failure to serve written notice of arbitration upon the Borough Council president within six months of the start of the fiscal year, as required under Section 3 of Act 111, 43 P.S. § 217.3, divested an arbitration panel of jurisdiction to address contract terms for that particular year.  The court further held that waiver does not result where the employer raises such a procedural objection after engaging in the arbitration in good faith. (October 29, 2014)

In American Federation of State, County, and Municipal Employees, District Council 87 v. County of Lackawanna, the Commonwealth Court of Pennsylvania refused to vacate an arbitration decision to award under a Collective Bargaining Agreement (CBA). The arbitrator determined that, based on unique facts, the County’s decision to seek and hire a female juvenile detention officer, when twelve men outranked her, did not violate the CBA’s anti-discrimination and seniority clauses.  The court determined that the arbitrator’s decision did not violate the essence of the CBA. (October 29, 2014)

In Armenti v. Pennsylvania State System of Higher Education, the Commonwealth Court of Pennsylvania considered whether the Board of Claims can ever have jurisdiction over claims arising from employment contracts entered into with the Commonwealth.  The court held that such contracts constitute employment agreements, which are statutorily precluded from jurisdiction, even where they are for a fixed length rather than at-will. (September 26, 2014)

In Massachusetts Delivery Association v. Coakley, the United States Court of Appeals for the First Circuit addressed whether the Federal Aviation Administration Authorization Act (FAAAA) preempts one prong of the Massachusetts Independent Contractor Statute, which requires that workers perform a service outside the usual course of the business of the employer to be classified as independent contractors.  At stake was whether same-day delivery companies in Massachusetts who relied on independent contractors as couriers to provide all its same day delivery services throughout New England would be required to treat those couriers as employees, as Massachusetts law would require, or whether that state law was preempted because it related to “the price, route, or service of any motor carrier . . . with respect to the transportation of property” under the FAAAA.  The court determined that the FAAAA preemption provision should be interpreted broadly, and remanded the case to the district court to determine on a full record whether the Massachusetts statute satisfies the broad preemption test. (September 30, 2014)

In Bulwer v. Mount Auburn Hospital, the Appeals Court of Massachusetts reiterated the complex shifting burden of proof applicable to discrimination claims on summary judgment.  For discrimination claims, it is first the plaintiff’s burden to establish a prima facie case of discrimination.  Second, the defendant has a burden, though not onerous, to articulate a legitimate, non-discriminatory reason for its hiring decision, at which point the presumption of discrimination vanishes.  Third, the plaintiff has the burden of persuasion on the ultimate issue of whether the non-discriminatory reason was pretextual.  Nevertheless, in the summary judgment context, the court held that it is the defendant’s burden to show that there is no genuine issue of material fact as to pretext.  In this case, as the question of pretext was commingled with issues of motive, inherently unsuited for summary judgment, the court concluded that the defendant had not met its burden of showing that there were no disputed issues of material fact as to the existence of pretext. (September 24, 2014)

In Lukose v. Long Island Medical Diagnostic Imaging, P.C., the New York Supreme Court, Appellate Division, Second Department, addressed whether an employee was terminated in violation of New York law, which prohibits an employer from taking “any retaliatory personnel action against an employee” who discloses to a supervisor or public body “an activity, policy or practice of the employer” that violated the law and presents a substantial and specific danger to the public health or safety.  The court held that the employer established its prima facie entitlement to judgment as a matter of law by submitting evidence that the termination of plaintiff’s employment was predicated upon his failure to perform his duties; rather, than his disclosure of a violation of law. (September 17, 2014)

In Delaney v. Bank of America Corp., the United States Court of Appeals for the Second Circuit addressed whether an employee alleging age discrimination may support his opposition to a motion for summary judgment with a draft Equal Employment Opportunity Commission discrimination charge filed by another employee in order to show that plaintiff’s employer regularly acts in a discriminatory way.  The court held that the charge should not be considered because it was inadmissible hearsay and did not call into doubt the nondiscriminatory reason the employer proffered from employee’s termination, i.e., poor performance. (September 5, 2014)

In Vosough v. Kierce, the Superior Court of New Jersey, Appellate Division, addressed the issue of whether the plaintiff doctors, who had admitting privileges at the defendant hospital, had viable claims for tortious interference with contract and prospective economic advantage against the hospital and two of its executive officers where the plaintiffs alleged they were constructively discharged due to the defendants’ harassment, abuse, and retaliation.  The court held that the hospital could not be held directly liable for the tortious interference claims because the a person or entity cannot interfere with its own contract.  The court further held that the plaintiffs did not have a claim against the individual defendants because the employees of a corporation can only tortiously interfere with a corporation’s contract if they were acting outside the scope of employment, which did not occur here where the plaintiffs had alleged that the individual defendants committed their wrongful acts while they were supervising the plaintiffs at the hospital. (August 27, 2014)

In Miller v. BBSI and Unemployment Insurance Appeal Board (UIAB), because there was no evidence of administrative error by the Department of Labor that deprived the former worker of the ability to appear at his hearing or to timely file a motion for rehearing, the Supreme Court of Delaware found the UIAB’s denial of the former worker’s request for a rehearing was supported by the evidence and free from legal error. (August 26, 2014) 

In Besinger v. University of Pittsburgh Medical Center, the Superior Court of Pennsylvania addressed whether a statutory or constitutional right exists under the Pennsylvania constitution to a trial by jury in an action brought pursuant to the Whistleblower law.  The court found that there is no statutory right because the plain language of the statute refers to the court and not the jury.  The court further found that there is no constitutional right because the two requirements needed for a right to a trial by jury are not present: 1) that the right would have been required in 1790 when the Constitution was adopted, and 2) the action must have a common law basis. (August 19, 2014)

In Lupyan v. Corinthian Colleges Inc., the United States Court of Appeals for the Third Circuit addressed whether the evidentiary presumptions arising under the “mailbox rule” could be rebutted by the mere denial of receipt, when the addresser attempted to satisfy the individual notice requirement of the Family Medical Leave Act (FMLA) by use of regular mail. The court held that evidence sufficient to nullify the presumption of receipt may consist solely of the addressee’s positive denial of receipt, specifically stating that “in this age of computerized communications . . . it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.” (August 5, 2014)

In New Jersey Carpenters v. Tishman Construction, the United States Court of Appeals for the Third Circuit held that the union’s claim under the New Jersey Prevailing Wage Act, N.J. Stat. Ann. § 34:11-56.25, is not preempted by the Labor Management Relations Act, 29 U.S.C. § 141, because it exists independent of any collective bargaining agreement. The court held that all that is required in proving a Prevailing Wage Act violation is a comparison of the wages the plaintiffs were paid to those provided in the Prevailing Wage Act. (July 28, 2014)

In Meir Adika v Beth Gavriel Bukharian Congregation, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of whether an injury in the context of a painter falling off a ladder is within the group of injury causations protected under Labor Law § 240(1).  The painter was attempting to paint decorative images on large wooden panels for the congregation when he fell during installation of one of the pieces.  Thus, the court ruled that the circumstances surrounding the employee’s action were outside of the scope of protected activities pursuant to Labor Law § 240(1). (July 23, 2014)

In In re Challenge of Contract Award Solicitation #13-X-22694 Lottery Growth Management Services, the Superior Court of New Jersey, Appellate Division, addressed a challenge brought by the Communication Workers of America and AFL-CIO regarding the constitutionality of the State’s award of a long-term contract to a private company to provide sales and marketing services and to manage other functions of the New Jersey State Lottery. The court denied the challenge, holding that the neither the New Jersey Constitution nor the State Lottery Law requires the day-to-day functions of the lottery to be performed exclusively by State employees. (July 3, 2014)

In Harris v. Quinn, the Supreme Court of the United States addressed whether a public-sector union may compel agency fees from people who enjoy the benefits of collective bargaining but are not themselves members of the union.  The Court held that the First Amendment prohibits the collection of an agency fee from plaintiffs who do not want to join or support a union. (June 30, 2014)

In Berg v. Christie, the Superior Court of New Jersey,Appellate Division, addressed the constitutionality of a statute which suspended cost of living increases to retirees receiving pensions from the State’s public pension fund.  The court held that neither the Appropriations Clause nor the Debt Collections Clause was implicated as the retirees alleged only a potential future inability of the State to pay increases.  The court, however, remanded to the trial court to determine if the modification in pension benefits violates the contract clause. (June 26, 2014)

In Lancaster County v. Pennsylvania Labor Relations Board, the Supreme Court of Pennsylvania addressed whether county prison maintenance employees who supervise inmates constitute guards for purposes of collective bargaining under the Pennsylvania Employee Relations Act. The court held that the maintenance workers were “guards” because part of their job included supervision and security of inmates. (June 16, 2014)

In Holmes v. Business Relocation Services, Inc., the New York Supreme Court, Appellate Division, First Department, addressed whether a defendant-employer was entitled to the special employer defense of the Workers’ Compensation Law against personal injury claims brought by a temporary worker.  The court held that issues of fact existed as to the special employer defense including whether the temporary worker’s employer had surrendered complete control and direction over the worker or if the defendant-employer had assumed complete and exclusive control over his work. (May 8, 2014)

In Subway Surface Supervisors Association v. New York City Transit Authority, the New York Court of Appeals addressed whether a claim could lie against a transit authority for unfair pay relative to other public employees with similar responsibilities under Section 115 of the Civil Service Law.  The Court found that Section 115 did not create a private right of action as it is merely a statement of New York’s policy favoring equitable pay for state employees, and that in any case Article 14 of the Civil Service Law provides a mechanism for challenges to alleged wage disparities. (April 8, 2014)

In Weinstock v. Merisel, the New York Supreme Court, Appellate Division, First Department, addressed a discharged executive’s claim for severance under an employment contract. The Court found that, while the defendant had alleged that the executive had stole corporate property by way of affidavit and circumstantial emails, there was no direct evidence of theft.  Moreover, by virtue of the plaintiff’s compliance with the one-year non-compete provision, he could not have benefitted from any alleged theft in any case. (April 24, 2014)

In Bricklayers of Western PA v. Scott’s Development, the Supreme Court of Pennsylvania addressed the application of the Mechanics’ Lien Law of 1963 to employees of a contractor rather than subcontractors.  The court held that the Legislature’s choice of the word subcontractor in the 1963 Act, as well as precedent and commentary, all militate against an interpretation whereby any employee of a contractor is considered a subcontractor.  The union workers in this case were found to be employees, not subcontractors, and therefore were not entitled to file a Mechanic’s lien. (April 17, 2014)

In Johns v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania considered whether the Unemployment Compensation Board of Review (“Board”) correctly denied unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law when it determined that the claimant committed willful misconduct by threatening a co-worker through a statement to a supervisor. The court held that threats of harm toward co-workers or supervisors constitute willful misconduct under the law and determined the applicant violated the employer’s policy by communicating the threat. (March 21, 2014)

In Civil Service Employees Association, Inc. v. Nassau Health Care Corporation, the New York Supreme Court, Appellate Division, Second Department, addressed whether a Collective Bargaining Agreement was clear and unambiguous such that relief could be granted by way of summary judgment. The court found that the CBA was clear with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time during this period, but it was not unambiguous with respect to those employees who were reinstated to a full time position after one year or more of interruption in full-time employment, but less than a year when periods of part-time employment were taken into account. (March 19, 2014)

In Pennsylvania Turnpike Commission v. Teamster Local Union No. 77, the Commonwealth Court of Pennsylvania addressed whether to overturn an arbitration award sustaining a labor union’s grievance against a state highway commission for breach of a collective bargaining agreement (CBA) with the union.  The Court held that the arbitration award was not without foundation in the CBA, and did not violate public policy, but that the monetary portion of the award impermissibly assessed punitive damages on the highway commission. (March 7, 2014)

In Riley v. Metropolitan Life Insurance Company, the United States Court of Appeals for the First Circuit addressed whether the statute of limitations barred a claim for unpaid ERISA benefits under a long-term disability insurance plan where benefits were paid in monthly installments at a lower rate than the employee expected.  The court determined that the cause of action accrued when the employee first discovered that he was receiving an amount lower than he expected.  The court, joining the Second, Third, and Ninth Circuits, rejected the employee’s argument that the ERISA plan should be analogized to an installment contract, an argument that would have permitted each monthly payment to form the basis of a cause of action. (March 4, 2014)

In Platia v. Board of Education of the Township of Hamilton, the Superior Court of New Jersey, Appellate Division, addressed whether the “temporary” employee exception to the Tenure Act applied to an employee who was a public special education teacher when one of her years of employment was as a “long-term substitute.”  The right to tenure is created and governed by statute, and the right to tenure accrues when there is “compliance with the precise conditions articulated” in the statute.  The court, however, noted that school districts could avoid tenure simply by manipulating job titles.  The court held that the exception did not apply, and that tenure was conferred upon the teacher. (January 30, 2014)

In Sandifer  v. United States Steel Corp., the United States Supreme Court addressed what constitutes “changing clothes” within the meaning of § 203(o) of the Fair Labor Standards Act (FLSA), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning of each workday” must be compensated. Petitioners filed a putative class action seeking back pay for time spent donning and removing required protective gear, such as safety glasses and earplugs. The Court held that the time petitioners spend donning and doffing their protective gear is not compensable by operation of § 203(o). (January 27, 2014)

In City of Scranton v. E.B. Jermyn Lodge No. 2 and its companion case, City of Scranton v. Fire Fighters Local Union No. 60, the Commonwealth Court of Pennsylvania addressed whether the court of common pleas erred when it determined that a pension benefit enhancement provided to the city police and fire departments was unlawful when the city did not raise the issue of illegality before the arbitrators or the court of common pleas.  The court noted that there were aspects of both pension plans that were unlawful.  The court found, in both cases, that the city did not waive its illegality argument by failing to assert it before the arbitrators because arbitrators may not mandate an illegal act. (January 30, 2014)

In Teamsters Local 97 vs. State of New Jersey, the Superior Court of New Jersey, Appellate Division, addressed the constitutionality of three laws that required state employees to increase their contributions to pay for retirement and health benefits. The court held that the laws were constitutional, finding that they bore a rational relation to legitimate state interests to “improve the fiscal strength of the State and local governments, reduce taxpayer burdens, and ensure that the health and pension systems remain viable for current and future employees.” (January 31, 2014)

In Louisiana Forestry Association v. Secretary, U.S. Department of Labor, the United States Court of Appeals for the Third Circuit addressed whether the Department of Labor exceeded its authority by enacting a regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers under the H-2B visa program.  The court held that the Department of Labor’s regulation setting a prevailing wage rate and requiring businesses to advertise jobs to workers in the United States at that rate before hiring foreign workers was valid and within the Department’s authority. (February 5, 2014)

In Miller v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania addressed what constitutes a dismissal for willful misconduct such that a terminated employee should be denied unemployment compensation benefits.  The court found that, where an employee’s conduct is justifiable or reasonable under the circumstances (in this case, instantaneous and reflexive reaction to an assault), it cannot be considered willful misconduct. (January 9, 2014)

In Neshaminy School District v. Neshaminy Federation of Teachers, the Commonwealth Court of Pennsylvania addressed the remedies available to a dismissed teacher in order to challenge a dismissal.  The court found that, under the Public School Code of 1949, a dismissed teacher may pursue either a statutorily-granted hearing or a contractual grievance, but not both.  Therefore, the court found that a teacher’s attendance at a School Board hearing amounted to a knowing and deliberate election of remedies, and precluded her from making a grievance pursuant to the collective bargaining agreement between the school and the teacher’s union. (January 9, 2014)

In Lutz v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether a proceeding before an arbitration panel convened pursuant to the Policemen and Firemen Collective Bargaining Act constituted an interest arbitration hearing or a grievance arbitration hearing. Observing that a “grievance arbitration” is the arbitration which occurs when the parties disagree as to the interpretation of an existing collective bargaining agreement and that an “interest arbitration” is the arbitration which occurs when the employer and employee are unable to agree on the terms of a collective bargaining agreement, the court held that the hearing at issue, which dealt with implementation (and not interpretation) of collective bargaining agreement terms, was an interest arbitration. (January 2, 2014)

In Guippone v. BH S&B Holdings LLC, the United States Court of Appeals for the Second Circuit addressed the Worker Adjustment Retraining and Notification (WARN) Act’s requirement that employers give employees 60 calendar days notice before closing a plant or undertaking mass layoffs.  The court held that the private equity defendants were investors, and not “single employers” as defined under the WARN Act, and thus, were not liable for violations of the Act. (December 10, 2013)

In Landfield v. Tamares Real Estate Holdings, Inc., the New York Supreme Court, Appellate Division, First Department addressed the False Claims Act’s prohibition on employers retaliating against whistleblowers.  The court held that the employer did not violate the False Claims Act because the plaintiff did not engage in protected conduct because his conduct did not go “beyond the performance of his normal job responsibilities so as to overcome the presumption that he was merely acting in accordance with his employment obligations.” (December 12, 2013)

In Paterson Police PBA v. City of Paterson, the Superior Court of New Jersey, Appellate Division, addressed the definition of base salary for calculating health insurance premium contributions in the context of the arbitration of collective negotiation agreements.  Although the applicable statute did not define “base salary,” the court held that the arbitrator should have used the definition provided in a subsequent statute passed the same year, which shared the goal of controlling costs associated with public employee compensation. (November 27, 2013)

In Evans v. Thomas Jefferson University, the Commonwealth Court of Pennsylvania addressed whether plaintiff’s termination of employment violated the Whistleblower Law because the termination was in retaliation for a report she provided regarding a patient. The court held that plaintiff failed to show the requisite causal connection that the report of wrongdoing led to plaintiff’s dismissal under the Whistleblower law. (December 4, 2013)

In Kinsella v. Powerguard Specialty Insurance Services, LLC, the New York Supreme Court, Appellate Division, First Department, addressed whether plaintiff, an at-will employee, could state a claim for fraudulent inducement against his at-will employer for allegedly misrepresenting plaintiff’s position before he accepted employment.  The court held that plaintiff failed to sufficiently allege reasonable reliance and damages separate from his termination so as to state a valid claim for fraud in the inducement. (December 3, 2013)

In Tooey v. AK Steel Corporation, the Supreme Court of Pennsylvania held that, where an employee contracts an occupational disease that manifests itself more than 300 weeks after his/her last date of occupational exposure, the Workers’ Compensation Act does not afford the employer immunity and does not bar the employee from filing a common law claim against the employer. (November 22, 2013)

In Hairston-Brown v. Public School Employees Retirement Board, the Commonwealth Court of Pennsylvania addressed whether the board erred as a matter of law when it failed to adopt the parties’ stipulations of fact, and refused to credit plaintiff for the years that she had worked at charter schools.  The court also addressed whether plaintiff was required to account for her hours worked at the charter schools to obtain credited service. The court noted that while stipulations of fact are binding on the parties and the court, the court may draw its own conclusions of law.  The court cited that the real issue was how many hours plaintiff actually worked at each charter school, which the stipulations of fact did not address.  On this basis, the court held that the board did not err as a matter of law, and plaintiff was not entitled to credited service for the years that she had worked at the charter schools.  The court also noted that it was plaintiff’s responsibility to ensure that her records were accurate prior to her retirement. (October 18, 2013)

In Fisler v. State System of Higher Education, the Commonwealth Court of Pennsylvania addressed whether a university had “just cause” to terminate an associate vice president based on poor performance under the State System of Higher Education Merit Principles Policy (MPP).  The court held that continued poor performance by the employee in the face of repeated warnings by the university satisfied the “just cause” requirement for termination in accordance with the MPP. (October 17, 2013)

In Romanello v. Intesa Sanpaolo, S.p.A., the New York Court of Appeals addressed the issue of employee discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]).  The employer had terminated the plaintiff’s employment after the plaintiff had been unable to work for almost five months, stating that he was sick with an uncertain prognosis, but that he did not intend to “abandon” his position.  The Court held there was no discrimination under New York’s State Human Rights Law because the plaintiff had failed to state allegations sufficient to show that “upon the provision of reasonable accommodations” he “could perform the essential functions of [his] job.”  As the plaintiff had requested an indefinite leave of absence, his claim under the Humans Rights Law was dismissed. (October 10, 2013)

In Soto v. J. Crew, Inc., the New York Court of Appeals addressed the type of “cleaning” activity covered by Labor Law § 2401(1).  Plaintiff, who was responsible for daily maintenance of the defendant’s store, was asked to dust a six-foot-high wooden shelf, used a ladder to do so, and was injured when the ladder fell over.  The Court held the activity plaintiff was engaged in was not “cleaning” within the meaning of Labor Law § 240(1) as it was routine maintenance, did not require specialized equipment or knowledge, did not have elevation-related risks other than those encountered by homeowners in ordinary household cleaning, and did not involve construction, renovation, painting, alteration or repair project. (October 10, 2013)

In Corporate Technologies, Inc. v. Harnett, the United States Court of Appeals for the First Circuit addressed whether a former employee who had signed a non-solicitation covenant, prohibiting him from soliciting existing customers of his former employer for a certain time, could circumvent the agreement by piquing customers’ interest in such a way that they would make the initial contact with the employee’s new firm. Addressing the distinction between actively soliciting and merely accepting business, and noting that whether the former employee or customer makes the initial contact is easily manipulated, the court held that there is no per se rule that initial contact by the customer takes the contact outside the realm of solicitation, and that each scenario must be assessed on its facts, facts which here supported a finding of solicitation. (September 25, 2013)

In County of Berks v. Pa. Labor Relations Board, the Commonwealth Court of Pennsylvania upheld a decision of the Pennsylvania Labor Relations Board determining that Berks County violated its collective bargaining agreement with the Pennsylvania Social Services Union by threatening to end modified work schedules available to all employees if a particular employee did not agree to accept a work schedule not in conformance with the modified work schedule.  The actions of the county violated the Public Employee relations Act and constituted an unfair labor practice. (September 18, 2013)

In Karatihy v. Commonwealth Flats Development Corp., the Appeals Court of Massachusetts addressed whether a banquet server terminated for violations of his employer’s attendance policy could assert a claim of retaliatory discharge.  It was undisputed that the employee had engaged in a protected activity (a lawsuit under the Massachusetts Wage Act) and that he had suffered an adverse employment action (discharge).  The court concluded that the third requirement for a retaliation – that the adverse employment action be causally related to the protected activity – could not be established from the mere fact that one event followed the other, where records showed that the employee was not treated differently from similarly situated employees. (September 18, 2013)

In Lippman v. Ethicon, Inc., the Superior Court of New Jersey, Appellate Division, addressed whether an employee, who functions as an internal “watch dog,” falls, as a matter of law, outside the whistleblower protections of the Conscientious Employee Protection Act (CEPA).  The court held that, if an employee’s job is to protect the public, CEPA does not permit the employer to retaliate against that individual because of his performance of his duties in good faith, and consistent with the job description. (September 4, 2013)

In Lightner v. 1621 Route 22 West Operating Company, LLC, the United States Court of Appeals for the Third Circuit addressed the effect of a decision by the National Labor Relations Board (NLRB) on a temporary injunction issued by a district court in a concurrent civil action.  The court held that the NLRB’s decision rendered the injunctive relief moot and vacated the district court’s order. (September 4, 2013)

In Camesi v. University of Pittsburgh Medical Center, the United States Court of Appeals for the Third Circuit addressed whether named plaintiffs may appeal a district court order denying final certification of a collective action under the Fair Labor Standards Act (FLSA), when the plaintiffs voluntarily dismissed their claims with prejudice under Rule 41(a) in an attempt to obtain a final appealable order.  The court held that the district court’s order decertifying the collective action was interlocutory, and the plaintiffs were not entitled to appeal those orders directly.  The court further held that the plaintiffs could not avoid the strong presumption against interlocutory review of orders by voluntarily dismissing all of their claims under Rule 41. (September 4, 2013)

In Bell v. Southeastern Pennsylvania Transportation Authority (SEPTA), the United States Court of Appeals for the Third Circuit addressed whether claims brought by former and current bus drivers and trolley operators, under the Fair Labor Standards Act (FLSA), to recover unpaid wages and overtime for “pre-trip” inspections, which are conducted in accordance with state and federal regulations, were precluded by the procedures under collective bargaining agreements. The court held that the FLSA claim was not barred by the administrative and  grievance procedures of collective bargaining agreements between SEPTA and the operators because the claim was specific to the FLSA.  The court also found that seeking arbitration first under the collective bargaining agreement would have no effect on the FLSA claim asserted. (August 19, 2013)

In Pinto v. Gormally, the New York Supreme Court, Appellate Division, First Department addressed whether a directed verdict should be granted to the owner of a building after a worker was injured on his property.  The plaintiff was injured when, while carrying a box of tiles from the sidewalk to the basement of the owner’s building, he slipped and fell on the stairs.  The evidence at trial showed that it had rained the day before, that the stairs were wet and muddy, and that the plaintiff had advised his employer of the condition.  The owner moved for a directed verdict arguing that there was insufficient evidence to show that he had notice of the condition.  Because the owner’s office was located in the premises, and his vehicle was at the site at the date of the accident, the court denied the owner’s motion for a directed verdict and allowed the case to go to the jury. (August 20, 2013)

In Ross v. DD 11th Avenue, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed liability under Labor Law 240(1) after a worker was struck in the face by a piece of wood that had fallen from a column.  The court held that the defendants failed to establish “the absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed by section 240(1).”  Moreover, the injured worker’s testimony raised a triable issue of fact as to whether the incident occurred because of absence or inadequacy of a safety device of the kind enumerated under Labor Law 240(1).  As such, the court denied defendants’ motion for summary judgment dismissing plaintiff’s Labor law 240(1) claim. (August 21, 2013)

In Cole v. Jersey City Medical Center, the Supreme Court of New Jersey held that an employer waived its right to arbitrate.  The employer contracted with a medical center to provide anesthesia services.  Plaintiff’s employment agreement included an arbitration provision in the employment contract.  After the medical center revoked Plaintiff’s work privileges, the employer terminated the Plaintiff.  Plaintiff, subsequently, filed a Complaint against the medical center, and the medical center impleaded the employer.  After the impleader, Plaintiff filed an Amended Complaint with direct claims towards the employer.  The parties litigated for twenty-one months.  After discovery, the medical center and Plaintiff entered into a settlement agreement while the case continued to move forward against just the employer.  Three days before trial, Liberty filed a motion to compel arbitration.  The Court, however, found that the employer’s active participation in litigation for 21 months before invoking the arbitration provision on the eve of trial constituted a waiver of its right to arbitrate. (August 15, 2013)

In Szablowski v. State Civil Service Commission, the Commonwealth Court of Pennsylvania addressed the standard for suspending or terminating a civil service employee pursuant to The Civil Service Act. The Act states that “no regular employee in the classified service shall be removed except for just cause.”  The court noted that the Civil Service Commission is the finder of fact and has exclusive authority to assess credibility and to determine evidentiary conflicts.  However, the court further noted that “whether the actions of a civil service employee constitute just cause for removal is a question of law fully reviewable by [the] Court,” and in exercising said power, held that the factual findings of the Civil Service Commission were inadequate to reach the standard of just cause. (August 13, 2013)

In Lipsitt v. Plaud, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts Wage Act is intended to be the exclusive remedy for the recovery of unpaid wages under Massachusetts law, preempting common-law claims for breach of contract and related quasi-contract claims.  The Court held that common law remedies are not preempted by the Wage Act, noting that there was no indication of legislative intent to preempt the common law and noting the minimal practical impact that the continued existence of a common-law right to recover unpaid wages will have on the enforcement scheme established by the Wage Act. (August 12, 2013)

In In re Ben Friedman v. Board of Education of the City School District of New York, the New York Appellate Division, First Department addressed the issue of whether a performance evaluation must be substantiated by documentation in a teacher’s personnel file.  The parties previously stipulated to the removal of the disciplinary letters in the teacher’s file.  The court found that documentation is essential to substantiating such a claim against a teacher under New York law.  Thus, the court held that the teacher’s petition in appeal of the unsatisfactory rating should be annulled. (August 13, 2013)

In American Federation of State, County and Municipal Employees, District Council 87 v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania held that Luzerne County did not violate the Public Employee Relations Act or engage in unfair labor practices when the Luzerne/Schuylkill Workforce Investment Board (Investment Board) contracted out bargaining unit work without first bargaining with the plaintiff-union. (Union).  The Union argued that Luzerne County controlled the Investment Board, and as such, it was required to bargain with the Union first before seeking outside contractors to run the bargaining unit. The court concluded that Luzerne County did not control the Investment Board and that federal law specifically granted the local Investment Board authority to select service providers without any need to seek county approval; thus, the county did not engage in any unfair labor practices. (August 1, 2013)

In Flagg v. Alimed, Inc., the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts law barring handicap discrimination bars an employer from discriminating against an employee based on the handicap of a person with whom the employee associates (associational discrimination).  The court addressed the situation of an employer who terminated an employee in order to avoid the cost of medical treatment for the employee’s handicapped wife.  The court held that such associational discrimination violates Massachusetts anti-discrimination law. (July 19, 2013)

In McLaughlin v. City of Lowell, the Appeals Court of Massachusetts addressed whether a former fire department captain could challenge a fire department’s prohibition on the use of inhalers as constituting disparate treatment in violation of the Massachusetts handicap discrimination statute.  The court held that the former fire department captain could not challenge the prohibition as disparate treatment because he had not made the preliminary showing that he was a qualified handicapped person as defined by law. (July 25, 2013)

In  Longo v. Pleasure Productions, Inc., the Supreme Court of New Jersey addressed whether an “upper management” jury instruction is required when deciding punitive damages in the context of a claim brought pursuant to the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, as well as what standard should be used. The court determined that, in cases arising under CEPA, an upper management jury charge is required to support an award of punitive damages against an employer, which can only be awarded if the jury finds wrongful conduct under the clear and convincing evidence standard. (July 24, 2013)

In Washington County v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed whether a county is liable for an alleged unfair labor practice concerning employee wages and benefits committed by the court of common pleas. Since the county commissioners are responsible for wage and benefit issues, the county was responsible for implementing that term of the award. The court also addressed whether the charge was timely. The court held that the charge was timely, and that the applicable statute of limitations begins to run when a court of common pleas affirms the award or the appellate process is exhausted, whichever occurs first. (July 18, 2013)

In Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College, the Supreme Judicial Court of Massachusetts addressed the enforceability of an arbitral award, which found that the process denying tenure to a union-member professor was flawed and ordered the college to reinstate the professor and conduct a new tenure evaluation. The court held that the college was not bound by the award because the collective bargaining agreement provided that "[t]he granting or failure to grant tenure shall be arbitrable but any award is not binding." (July 12, 2013)

In Battaglia v. UPS, Inc., the Supreme Court of New Jersey addressed three questions under the New Jersey Law Against Discrimination (LAD) and the New Jersey Conscientious Employee Protection Act (CEPA):  (1) whether actual discrimination against an identifiable victim is necessary for a finding of retaliation under the LAD; (2) to what extent expert testimony is required for an award of emotional distress damages under the LAD; and (3) the appropriate focus of a fraud-based CEPA claim.  The Court held that a plaintiff need not prove the existence of an identifiable victim of actual discrimination to pursue a claim so long as an employee alleging retaliation as a consequence of voicing complaints believes in good faith that the complained-of conduct violates the LAD.  The Court also held that lay testimony is sufficient for recovery of emotional distress damages arising from humiliation, embarrassment or indignity, but a plaintiff may only recover an award for future emotional distress if evidence of permanency is offered in the form of an expert opinion.  Finally, the Court held that the initial focus of a fraud-based CEPA claim is whether the plaintiff reasonably believes the complained-of activity was occurring and was fraudulent, keeping in mind the statute does not protect employees whose complaints involve minor or trivial matters. (July 17, 2013)

In Kelly Ruroede v. Borough of Hasbrouck Heights, the Supreme Court of New Jersey addressed whether, under N.J.S.A. 40A:14-147 to -151, a police officer’s employment in a non-civil service jurisdiction was properly terminated following a disciplinary hearing at which the officer was unassisted by counsel and the hearing officer relied on hearsay documents.  The court found that the officer willingly participated in the hearing without his lawyer present and that the Borough followed the rules in deciding to terminate him due to a bar fight. (July 1, 2013)

In Jay D. Tini v. AllianceBernstein L.P., the New York Appellate Division, First Department, addressed whether an employer breached an employee’s employment contract by not administering benefits to the employee during his full 60-day resignation notice period, in the context of “at will” employment.  The court held that the employer breached the employment contract by denying benefits pursuant to the terms of the agreement irrespective of the “at will” nature of the employment. (July 2, 2013)

In Vance v. Ball State University, the United States Supreme Court addressed the issue of when an employee constitutes a “supervisor” for purposes of vicarious liability under Title VII.  The Court held that an employee is a “supervisor” only if he or she is empowered by the employer to take tangible employment actions (e.g., hiring, firing) against the victim. (June 24, 2013)

In University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court addressed the issue of whether Title VII's retaliation provision and similarly worded statutes require a plaintiff to prove but-for causation or require the same proof as status-based discrimination claims, where plaintiff must show that the retaliation was the motivating factor in the employer's decision.  The Court held that held that Title VII retaliation claims must be proved according to but-for causation and not the less stringent standard for discrimination claims. (June 24, 2013)

In Depianti v. Jan-Pro Franchising International, Inc., the Supreme Judicial Court of Massachusetts addressed three certified questions from the Federal District Court for the District of Massachusetts.  First, the court addressed whether the failure to file a complaint with the Attorney General prior to initiating a private action under the Massachusetts Wage Act divests a court of jurisdiction to consider the private right of action. The court determined that the requirement of filing a complaint with the attorney general is not jurisdictional. Second, the court addressed whether a franchisor is vicariously liable for claims brought by the employee of a franchisee. The court adopted a modified “right to control” test, under which a franchisor is liable where the conduct at issue can be imputed to the franchisor. Third, the court addressed whether a defendant may be liable for employment mischaracterization under the Massachusetts Wage Act where there is no contract between the plaintiff and defendant. Examining the plain language and purpose of the statute, the court concluded that the lack of a contract for service between the putative employer and putative employee does not itself preclude liability. (June 17, 2013)

In Dow v. Casale, the Appeals Court of Massachusetts addressed whether a Florida resident who worked remotely for a corporation organized under the laws of Delaware with its sole place of business in Massachusetts may sue under the Massachusetts Wage Act. The court held that where the work is performed does not trump all other considerations. Massachusetts had such a close connection to the parties and their employment relationship that it is entirely reasonable to apply Massachusetts law to the claim. (June 19, 2013)

In Slippery Rock University of Pennsylvania, PSSHE v. Association of Pennsylvania State College and University Faculty, the Commonwealth Court of Pennsylvania vacated an arbitrator’s award reinstating a university professor previously terminated for inappropriate comments. The court held that the award failed to draw its essence from the collective bargaining agreement and also violated an established public policy. (June 7, 2013)

In Northumberland County Commissioners v. American Federation of State, County and Municipal Employees, the Commonwealth Court of Pennsylvania reviewed a dispute over the dismissal of an accounting clerk from employment with the Prothonotary’s office.  The union disputed the Prothonotary’s decision to terminate the employee, contending that the termination was not for just cause under the terms of the Collective Bargaining Agreement (CBA) and was subject to arbitration. The court concluded, that under the terms of the CBA, the Prothonotary had waived her right to terminate without just cause.  As the Prothonotary waived her right to terminate employees without just cause, the court concluded that the terminated employee’s grievance challenging the basis for her termination was subject to an arbitration hearing under the terms of the CBA. (June 10, 2013)

In Fraelick v. Perkettpr, Inc., the Appeals Court of Massachusetts addressed whether an employee’s allegations that she had been terminated in retaliation for her speaking out to senior management about failure to pay sums due under her employment contract were sufficient to support a claim under the Massachusetts Wage Act. The court noted that the Wage Act prohibits an employer from exempting itself from the timely and complete payment of wages by special contract or other means, and found that the employee’s claims were actionable. (June 6, 2013)

In Temple Univ. Health Sys and Temple Univ. Hosp. v. Unemployment Comp. Bd. of Review, the Commonwealth Court of Pennsylvania addressed whether a work stoppage was actually a lockout, which would make the claimants not ineligible for benefits under Section 402(d) of the Unemployment Compensation Law. The court held, under the standard defined in Erie Forge v. Unemployment Comp. Bd. of Review (Vrotney), the work stoppage was a lockout because the employer unilaterally caused disruption during negotiations on collective bargaining agreements and did not maintain the status quo, and thus the claimant’s were not ineligible for benefits under Section 402(d). (June 4, 2013)

In Caminiti v. Board of Trustees, Police and Firemen’s Retirement System, the Superior Court of New Jersey, Appellate Division, addressed whether a police officer who underwent extremely harsh anti-HIV/AIDS treatment after being stuck with a needle while frisking a drug addict had to demonstrate that being stuck constituted “a terrifying or horror-inducing event” in order to receive accidental disability benefits. The Board argued that this standard applied because there was no physical injury which precipitated the emotional trauma. The court found that this standard is inapplicable where a petitioner suffers both a physical and psychiatric injury. The fact that the appellant had been stuck was a “physical injury,” because after being stuck he suffered the emotional fallout of fearing he would develop HIV/AIDS and underwent extremely harsh treatment to prevent transmission of HIV/AIDS. (May 30, 2013)

In Pulse Technologies, Inc. v. Notaro, the Supreme Court of Pennsylvania held that a restrictive covenant contained in an employment agreement is enforceable even though the covenant is not expressly referenced in an initial employment offer letter. The offer letter conditioned employment on the execution of the employment agreement that contained the restrictive covenant making it ancillary to the acceptance of employment and therefore supported by consideration. (May 29, 2013)

In Wrenn v. Verizon, the New York Supreme Court, Appellate Division, Second Department, addressed whether the New York Executive Law permits a plaintiff to initiate litigation alleging employment discrimination after bringing an administrative proceeding that has been dismissed on the merits.  The court held that an earlier administrative action, which is dismissed on grounds other than administrative convenience, bars a plaintiff from initiating litigation based on the same allegations. (May 22, 2013)

In Taylor v. Eastern Connection Operating, the Supreme Judicial Court of Massachusetts addressed whether individuals who live and work outside of Massachusetts for a corporation headquartered in Massachusetts may bring an action in a Massachusetts court to enforce certain Massachusetts independent contractor, wage, and overtime pay statutes, where the individuals contracts contained choice of law provisions selecting Massachusetts law.  The court determined that, where Massachusetts law did not conflict with a fundamental policy of the other interest state, the choice of law clause would be applied. (May 17, 2013)

In New Vista Nursing and Rehabilitation v. National Labor Relations Board (NLRB), the United States Court of Appeals for the Third Circuit reviewed an order issued by a three-member “delegee group” of the NLRB.  The central issue addressed by the court was the meaning of “the Recess of the Senate” in Article II of the United States Constitution. The court determined that “the Recess of the Senate” in the Recess Appointments Clause refers only to intersession breaks. (May 16, 2013)

In Frankowski v. State Civil Service Commission (Department of Labor & Industry), the Commonwealth Court of Pennsylvania considered an order by the State Civil Service Commission (Commission), which directed removal of the petitioner’s name from eligibility lists for the position of intake interviewer. The court held that the Commission’s decision was not an “adjudication,” and therefore the petitioner had no right to appeal from the Commission’s decision. (May 7, 2013)

In Christopher Ross v. 1510 Associates, LLC, the New York Supreme Court, Appellate Division, 1st Department addressed the issue of whether a plaintiff must establish that the ladder that he fell from was defective in order to make a prima facie showing on the issue of liability under Labor Law § 240(1). The court held that the plaintiff did not need to show that the ladder was defective because he alleged that defendants' failure to provide him with proper protection while working on an uneven floor caused his fall.  Thus, the plaintiff was entitled to summary judgment on the issue of liability. (May 9, 2013)

In Mariotti v. Mariotti Bldg Products, Inc., the United States Court of Appeals for the Third Circuit,  addressed whether the test set forth in the Supreme Court case of Clackamas Gastroenterology Assoc. v. Wells, to determine whether a shareholder-director of a professional corporation is an “employee” for the purposes of the Americans with Disabilities Act (ADA), should apply to other business entities in a Title VII employment action.  The court held that the Clackamas test applies to other business entities that are not professional corporations in a Title VII employment action.  The court explained that the analysis focuses on the element of control and the six factors discussed in the EEOC guidelines, rather than the form of the business entity. (April 29, 2013)

In Allegheny County Deputy Sheriffs’ Association v. PLRB, the Commonwealth Court of Pennsylvania addressed whether deputy sheriffs could be considered policemen for collective bargaining purposes under the Policemen and Firemen Collective Bargaining Act since the Crimes Code designated them as “police officers.”  The court held that to allow these deputy sheriffs to be considered “police officers” when other deputy sheriffs in the state were not would violate Pennsylvania's proscription against local or special laws as set forth Article III, Section 32 of the Pennsylvania Constitution. (May 2, 2013)

In Lenel Systems International, Inc. v. Smith, the New York Supreme Court, Appellate Division, Fourth Department, addressed whether a former employee of a company breached an incentive stock option agreement that contained a non-compete clause, when the former employee became employed by a competing corporation within three weeks of resigning from his position with the company, thus making the company entitled to rescission.  The court held that the absence of an explicit forfeiture-for-competition clause in the agreement did not prevent the company from seeking rescission of the stock options and, because the former employee chose to compete with the company in violation of the only material condition of the agreement, the former employee gave up his right to the stock options promised in the agreement. (May 3, 2013)

In Hunt v. Raymour & Flanigan, the New York Supreme Court, Appellate Division, addressed whether an action alleging employment discrimination and retaliation in violation of Executive Law § 296 and the Administrative Code of the City of New York § 8-107 was time barred due to a contract provision in the employment contract. The court held that the contractual time limitation was valid as the parties to a contract may agree to limit the period of time within which an action must be commenced to a period that is shorter than the applicable statute of limitations.(April 24, 2013)

In Kausal v. Educational Products Information Exchange Institute, the New York Supreme Court,Appellate Division addressed whether a foreign citizen could recover damages for breach of an employment contract executed through an H1B visa application.  The court held that the employer breached the employment contract when it failed to pay the minimum salary required to approve the visa. The court also held that the trial court erred in finding that the plaintiff was not entitled to the protections of Labor Law article 6. (April 17, 2013)

In Genesis Healthcare Corp. et al. v. Symczyk, the United States Supreme Court held that an individual plaintiff’s collective action under the Fair Labor Standards Act became moot when she rejected an offer of settlement and no other plaintiffs had joined the action. The claimant had no personal interest in representing putative unnamed claimants, nor any other continuing interest in the outcome that would preserve her suit from mootness. Therefore, her claim was properly dismissed for lack of subject matter jurisdiction. (April 16, 2013)

In Weber v. Coast to Coast Medical, the Appeals Court of Massachusetts addressed whether a sales representative’s unpaid commissions, which the former employer refused, constitute lost wages under the Massachusetts Wage Act and therefore trigger that statute’s treble damages provision. The court held that while not all benefits constitute wages, commissions do and therefore trigger the mandatory treble damages provision. (April 10, 2013)

In H&R Block Eastern Tax Services, Inc. v. Zarilla, the Superior Court of Pennsylvania addressed the enforceability of a provision in a seasonal worker’s employment contract that forfeited the worker’s entitlement to accrued incentive compensation if she was terminated for cause.  The court found that the provision was not unconscionable because the employee continued to seek re-employment each season and continually agreed to the forfeiture provision despite the availability of other employment opportunities. (April 11, 2013)

In Matter of West Taghkanic Diner II, Inc. v. New York State Division of Human Rights, the New York Supreme Court, Appellate Division, addressed the burden of proof on plaintiffs for claims of discrimination and retaliation under the Human Rights Law. The court held that testimony of the accusers and two other employees was sufficient to support their claims where the employer failed to adequately support his own testimony. (April 4, 2013)

In Akers National v. United Steel, the United Stated Court of Appeals for the Third Circuit addressed the standard of review of an arbitration award under a collective bargaining agreement. The court held that arbitration awards are enforceable unless the arbitrator strays from interpretation and application of the applicable agreement. Where the award “draws its essence” from the collective bargaining agreement, the arbitrator’s award should not be disturbed. (April 4, 2013)

In Aly v. Mohegan Council, Boy Scouts of America, the United States Court of Appeals for the First Circuit addressed a discrimination claim by an Egyptian-American Muslim employee of a local Massachusetts council of the Boy Scouts to determine whether it was timely filed, whether the council had sufficient employees to be deemed an employer, and whether there was sufficient evidence to support the jury’s verdict of discrimination.  On timeliness, the court determined that an interview form filed with the Massachusetts Commission Against Discrimination was a valid, timely initial filing to which the later complaint related back.  On employer status, the court determined that the jurisdictional 15-employee threshold was satisfied by a combination of 14 full-time employees and a combination of part-time employees.  On discrimination, the court concluded that a jury could rationally conclude that Aly had been treated differently, and that his negative reviews correlated to his efforts to establish troops in local mosques. (March 22, 2013)

In Hitesman v. Bridgeway, Inc., the Superior Court of New Jersey, Appellate Division addressed the sufficiency of a retaliatory termination claim made under the Conscientious Employee Protection Act (CEPA), which permits a licensed or certified healthcare professional to assert a claim against his or her employer based on an objectively reasonable belief that the employer’s conduct constitutes improper quality of patient care.  In order to show an objectively reasonably belief, the employee must identify a law, professional code of ethics or public policy that was allegedly violated.  Because the plaintiff based his belief on a standard that was inapplicable to his employer, he could not establish the requisite objectively reasonable belief. (March 22, 2013)

In Solar Innovations, Inc. v. Plevyak, the Superior Court of Pennsylvania addressed the employer’s right to enforce a Confidentiality Agreement against a former employee who joined a competing firm and shared confidential information.  The employee argued that a Modified Employment Agreement was the sole controlling contract between the parties and did not prohibit accepting employment and disseminating confidential information.  The court found that the Confidentiality Agreement was wholly separate from the employment contract. (March 20, 2013)

In Dixon v. City of Malden, the Supreme Judicial Court of Massachusetts addressed whether a claim for unpaid vacation days under the Wage Act had been satisfied by undifferentiated gratuitous weekly payments.  The court held that the city’s decision to continue paying the claimant’s salary for two months after his termination, without being required to do so by any contract, could not be recast as vacation pay after the fact and that the claimant was still entitled to be paid for his remaining unused vacation time. (March 4, 2013)

In O’Brien v. New England Police Benevolent Association, Local 911, the Appeals Court of Massachusetts addressed whether an arbitrator exceeded his authority when he determined that a police officer had not engaged in misbehavior giving rise to good cause for termination when he hit or kicked teenagers during an arrest.  The court noted that, to upset an arbitral award on grounds of public policy, the question is not whether the officer’s conduct itself violates public policy, but whether the arbitrator’s decision to reinstate him violates public policy.  As the arbitrator’s factual findings were consistent with the decision to reinstate the officer, the court concluded that the reinstatement was not inconsistent with public policy. (March 1, 2013)

In Harmon v. State of Delaware Harness Racing Commission, the Supreme Court of Delaware addressed whether a state agency can be held liable under a promissory estoppel theory.  The court held that a claim for promissory estoppel in the employment context is an exception to the general rule in Delaware that promissory estoppel does not apply to the state for the acts of its officers. (February 15, 2013)

In Sandifer v. United States Steel Company, the United States Supreme Court agreed to consider the issue of whether donning and doffing safety gear (e.g., goggles, ear plugs) constitutes “changing clothes” under the Fair Labor Standards Act (FLSA).  Although workers are generally paid for their time donning and doffing safety gear, under FLSA an employer need not compensate a worker for time spent “changing clothes,” if that activity is expressly excluded from compensation under a collective bargaining agreement. (February 19, 2013)

In Araujo v. New Jersey Transit Rail Operations, the United States Court of Appeals for the Third Circuit addressed retaliation claims under the Federal Rail Safety Act.  The court held that a plaintiff can support a retaliation claim with circumstantial evidence and need not provide evidence of motive because the burden lies with the employer in whistleblower cases. (February 19, 2013)

In Alfano v. Schaud, the Superior Court of New Jersey, Appellate Division, addressed the summary judgment standard when opposing parties tell two different stories, one of which is blatantly contradicted and discredited by conclusive physical evidence.  The court held that no genuine issue of material fact exists when one party’s statement is contradicted by such conclusive evidence, which, in this case, was a time-stamped police dispatch audiotape that was neither doctored nor altered. (February 14, 2013)

In Dear v. Devaney, the Appeals Court of Massachusetts addressed whether defamatory statements made by police in the course of their investigation of a violation of an entertainment license were absolutely privileged. The police had made statements that an off-duty state trooper had improperly caused or contributed to the licensing violation.  The court determined that the police statements were entitled to only qualified immunity and that the defamation claim could lie if the state trooper showed that the police published these statements knowing them to be false or with reckless disregard for the truth. (February 14, 2013)

In O’Neill v. School Committee of North Brookfield, the Supreme Judicial Court of Massachusetts addressed the validity and enforceability of a clause in an employment contract between a school committee and a superintendent providing for annual reimbursement of health insurance premiums following the superintendent’s retirement, where Massachusetts statute prohibits a school committee from entering into any contract longer than six years. The Court determined that the six-year limitation on contracts does not apply to fringe benefits such as retirement benefits that may be due following the completion of the employment period. (February 8, 2013)

In Garzella, Cali and Sibio v. Borough of Dunmore and Dunmore Police Association, the Commonwealth Court of Pennsylvania held that a public employee cannot sue his employer for breach of a labor contract governed by the state collective bargaining laws, even where his union has in bad faith refused to bring his grievance to arbitration, unless he shows that the employer actively participated in the union’s bad faith or that the employer conspired or colluded with the union to deny the employee his rights under the labor contract.  Further, the employee’s only remedy against the union is an order for nunc pro tunc arbitration of his grievance unless he can prove participation by the employer or conspiracy between the employer and the union. (January 29, 2013)

In Livny v. Unemployment Compensation Board of Review, the Commonwealth Court of Pennsylvania affirmed an order of the Unemployment Compensation Board of Review denying Livny unemployment compensation benefits.  Because the employer was formed with the intent of being a religious organization, was registered with the IRS and Commonwealth of Pennsylvania as a religious organization, and its mission was to provide Jewish education to its students, the court found substantial evidence of the employer operating primarily for religious purposes.  Therefore the employees work for the employer was not “employment” under section 4(1)(4)(8)(a)(ii) of the Unemployment Compensation Law. (January 29, 2013)

In Gerald v. University of Puerto Rico, the United States Court of Appeals for the First Circuit addressed whether three alleged incidents of sexual harassment were sufficient to create a pattern in the course of a university professor’s six-year employment. The court concluded that the frequency of the incidents was not insufficient to support a claim of sexual harassment, noting that even a single act of harassment may, if egregious enough, suffice to evince a hostile work environment. (January 28, 2013)

In Durkin v. Boston Retirement Board, the Appeals Court of Massachusetts considered whether the criminal actions of a former police officer had a sufficient nexus with his position to trigger pension forfeiture under state statute. The court concluded that the officer’s shooting of a friend (and fellow officer) with his department-issued firearm had a sufficient nexus with his job duties to trigger pension forfeiture. (January 18, 2013)

In Retirement Board of Maynard v. Tyler, the Appeals Court of Massachusetts considered whether the criminal actions of a former firefighter had a sufficient nexus with his position to trigger pension forfeiture under state statute. The court concluded, that although the sexual assault of another firefighter’s young child was reprehensible, it was not sufficiently connected with his status as a firefighter for the pension forfeiture statute to apply. (January 18, 2013)

In Flaherty v. Justices of the Haverill Division of the District Court Department of the Trial Court, the Appeals Court of Massachusetts considered whether pension forfeiture for a state employee convicted of stealing paving stones from the highway department violated the Eighth Amendment prohibition on excessive fines.  Assuming that the forfeiture was punitive for constitutional purposes, the court found that the forfeiture was proportional to the crime because the employee had profited from his crime in a side business selling the stolen stones. (January 18, 2013)

In Headen v. Jersey City Board of Education, the Supreme Court of New Jersey addressed whether the New Jersey Civil Service Act’s vacation leave provisions, N.J.S.A. 11A:1-1 to 12-6, apply to a career service, non-teaching staff employee who worked on a full-time, ten-month basis for a New Jersey school district.  Because “a school district opting to become a political subdivision under the Act is subject to all of the Act’s obligations,” and “[b]ecause N.J.S.A. 11A:6-3 and -7 do not contain an exclusion for this purpose,” the court held that the Act’s paid vacation leave provisions apply to career service, non-teaching staff employees (such as the plaintiff) of school districts that have opted to be part of the civil service system. (January 11, 2013)

In Mandel v. M&Q Packaging Corporation, the United States Court of Appeals for the Third Circuit dismissed a retaliation charge because the plaintiff failed to exhaust her administrative remedies.  The court concluded that the plaintiff failed to check the box for retaliation on her EEOC complaint, and thus, the EEOC officer could not have investigated the claim.  The court further concluded that the plaintiff’s claims under the Pennsylvania Human Relations Act were time barred because she did not file a complaint under the PHRA within 180 days of her resignation, and the mere filing of an EEOC questionnaire did not satisfy the 180-day requirement.  The court remanded the case to address the plaintiff’s Title VII claims under the continuing violation doctrine.  In reaching its conclusion, the court held that a plaintiff need not prove that the violations were permanent to establish a continuing violation. (January 14, 2013)

In Berkheimer v. State Employees’ Retirement Board, the Commonwealth Court of Pennsylvania held that where a judge was properly removed by the Court of Judicial Discipline, it was proper for the State Employees’ Retirement Board to conclude that the plaintiff had forfeited his accrued pension benefit.  In reaching this conclusion, the court found that the forfeiture was constitutional and a proper deterrent as it was in the public interest to uphold a high level of professionalism and integrity among the judiciary.  The court concluded that the military service credit that was purchased by the plaintiff was not subject to the forfeiture as that benefit was a privilege granted by the legislature. (January 14, 2013)

In Diehl v. Unemployment Compensation Board of Review, the Supreme Court of Pennsylvania held that the Unemployment Compensation Law does not preclude application of the “voluntary layoff option” provision in Section 402(b) of the Unemployment Compensation Law to early retirement plans offered pursuant to employer-initiated workforce reductions. (December 28, 2012)

In Kloeckner v. Solis, Secretary of Labor, the Supreme Court of the United States addressed whether a Federal employee who appeals a Merit Systems Protection Board decision should bring the appeal to the federal district court or the Court of Appeals for the Federal Circuit. The Supreme Court held that judicial review regarding actions that allege agency discrimination, in violation of an antidiscrimination statute listed in 5 U.S.C. § 7702(a)(1), must seek review in district court. (December 10, 2012)

In Johnson v. Allegheny Intermediate Unit, the Commonwealth Court of Pennsylvania addressed whether the Intermediate Unit was permanently enjoined from terminating the plaintiff’s employment pursuant to an amendment of 24 P.S. § 1-111(e)(1) of the Public School Code of 1949 that relates to employment of convicted felons. The court considered the plaintiff’s prior conviction and his recent exemplary conduct and held that terminating the plaintiff under the amendment is unreasonable, unduly oppressive, beyond the necessities of the offense and is unconstitutional as it violates the plaintiff’s substantive due process rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution. (December 13, 2012)

In Santiago v. New York and New Jersey Port Authority, the Superior Court of New Jersey addressed whether, pursuant to the New Jersey Interstate and Port Authority and Commissions Act (the Act), notice of a workplace discrimination claim against the Port Authority must be provided at least 60 days before a lawsuit is commenced.  The court noted that the Port Authority formerly enjoyed sovereign immunity, but consented to suit brought pursuant to the the Act.  Because the failure to comply with the Act's notice requirement withdraws the consent to suit, the court found that it did not have subject matter jurisdiction over the case and dismissed it accordingly. (December 5, 2012)

In Breeden v. Borough Crafton, the Commonwealth Court of Pennsylvania upheld trial court’s finding that the appellant forfeited his pension under his collective bargaining agreement (CBA) for being discharged for cause.  Here, the appellant was a police officer involved in a motor vehicle accident that resulted in death.  In connection with the incident, the appellant was fired with cause.  The court determined that—according to Act 600 §1(a)(2)—a vested pension is discretionary and, as such, the borough was permitted to deny the officer his vested pension because its CBA specifically provided that no officer shall be entitled to a vested pension who has been discharged for cause. (December 5, 2012)

In Ryan v. Holie Donut, Inc., the Appeals Court of Massachusetts addressed whether the failure to file a administrative complaint with the Massachusetts Commission Against Discrimination barred suit against a corporation for retaliatory discharge following complaints about sexual harassment. The court concluded that an administrative complaint is mandatory and that the omission creates a conclusive affirmative defense requiring dismissal. (October 15, 2012)

In Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination, the Supreme Judicial Court of Massachusetts addressed whether a court may order that a discrimination complaint before the commission be dismissed before the commission has reached a final decision. The court concluded that Massachusetts statutes only authorize review of commission final decisions and that the court lacked authority to dismiss the complaint. (September 19, 2012)

In Owens v. Carman Ford, the Supreme Court of Delaware affirmed a decision that an employee who voluntarily left his employment after refusing to reimburse his employer for damage to a customer’s vehicle was not entitled to unemployment benefits.  Not only had the employee voluntarily left his employment but he failed to exhaust all reasonable alternatives by trying to resolve the dispute with his supervisors before resigning. (August 24, 2012)

In The Philadelphia Housing Authority v. American Federation of State, County, and Municipal Employees, the Supreme Court of Pennsylvania held that where an employee engaged in a pattern of  “extraordinarily perverse and unacceptable sexual harassment of his coworker, and then failed to take responsibility for the conduct”, but only received a verbal warning from his superiors prior to termination, it was against public policy for the arbitrator to reinstate the fired employee to his job with back pay.  The Court noted that PHA has a zero tolerance policy on sexual harassment and that a public employer must be able to “do more than engage in adjectival condemnation when faced with this sort of employee misconduct.” (August 21, 2012)

In Lichetenstein v. University of Pittsburgh Medical Center, et al., the United States Court of Appeals for the Third Circuit determined that a question of material fact existed as to whether en employee’s notice of unforeseeable leave was adequate under the Family Medical Leave Act, whether her invocation of FMLA was a negative factor precipitating her termination, and whether UPMC’s proffered justification for her termination was mere pretext for retaliation. (August 3, 2012)

In Zavala, et al. v. Wal-Mart Stores, Inc., the United States Court of Appeals for the Third Circuit addressed the class certification of janitorial workers at various Wal-Mart stores under the Fair Labor Standards Act (FLSA) seeking compensation for unpaid overtime and civil damages under RICO and for false imprisonment.  The court held that the putative class of plaintiffs did not satisfy standards for “final certification” under the FLSA given the absence of a substantial commonality of interests between the asserted claims such that the class members were not deemed “similarly situated.” The Third Circuit further held that plaintiffs failed to allege a pattern of predicate acts as required under a civil RICO claim and that the presence of a safe alternative exit precluded any finding of false imprisonment. (August 6, 2012)

In Port Auth. of Allegheny County v. Unemployment Comp. Bd. of Review, the Commonwealth Court of Pennsylvania addressed whether payments under a disability plan are deductible as disability retirement pension under the Unemployment Compensation Law, 43 P.S. § 804(d)(2). The court held that because 34 Pa. Code § 65.102(k) limited the deductibility of the payments to those based on retirement, the payments were not deductible. (July 27, 2012)

In MacDonnell's Case, the Appeals Court of Massachusetts addressed whether an employer is entitled to recoup disability benefits paid while the disabled employee participates in a court-ordered alcohol treatment program in the same manner the employer could if the employee had been incarcerated. The court held that the treatment program was not the equivalent of incarceration, and that the employer could not therefore recoup the disability benefits. (July 19, 2012)

In Haverhill Retirement System v. Contributory Retirement Appeal Board, the Appeals Court of Massachusetts, faced with the problem of a municipal employee erroneously enrolled in the city retirement system instead of a statewide teachers’ retirement system, addressed whether the city retirement system remained responsible for the actuarial value of the pension portion of the benefit. The Court held that the erroneous enrollment did not prevent the city retirement system from responsibility for a portion of the employee’s pension where the employee had contributed and the system had invested his contributions. (July 11, 2012)

In Smith v. Delaware State University, a case of first impression, the Supreme Court of Delaware addressed whether proof of a constructive discharge is sufficient to satisfy the “termination” element of The Whistleblower Act, 19 Del C. § 1703. The constructive discharge doctrine provides that an employee’s reasonable decision to resign because of unendurable working conditions will be considered a formal discharge for remedial purposes only upon a showing of “intolerable” working conditions that would have compelled a reasonable person to resign. A mere hostile work environment claim, without more, is insufficient. (July 5, 2012)

In Van Dunk, Sr. v. Reckson Associates Realty Corporation, the Supreme Court of New Jersey addressed whether an employer committed an intentional wrong that permitted an employee to circumvent the Workers’ Compensation Act. The court held that, even though the employer committed a willful violation of applicable safety requirements, the conduct fell short of an intentional wrong creating a substantial certainty of bodily injury or death and, therefore, the plaintiff was barred from bringing an action directly against his employer for personal injuries. (June 26, 2012)

In National Federation of Independent Business v. Sebelius, the United States Supreme Court addressed the constitutionality of the Patient Protection and Affordable Care Act, commonly known as the “Healthcare Reform Act.” The Court upheld the Act’s individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage, but declared the Act’s penalty provision relating to the expansion of Medicaid to be unconstitutional. Specifically, the Court held:

1.    the Anti-Injunction Act, which bars lawsuits relating to taxation until the tax is actually paid, did not bar this lawsuit;

2.    the Act’s individual mandate is not a valid exercise of Congress’s Commerce Clause powers;

3.    the individual mandate is constitutional as a tax on those who do not have health insurance imposed within Congress’s powers under the Taxing Clause;

4.    the penalty imposed by the Act on states failing to comply with the Medicaid expansion provisions of the Act is unconstitutional “economic dragooning” beyond Congress’s powers under the Spending Clause; and,

5.    the Medicaid expansion penalty portion of the Act is severable from the remainder of the Act. (June 28, 2012)

In Christopher v. Smithkline Beecham Corp., the United States Supreme Court concluded that pharmaceutical sales representatives are “outside salesman”  and thus outside the Fair Labor Standards Act (FLSA) minimum wage and maximum hours requirements. In making this determination the Court held that: 1) the Department of Labor’s interpretation of the applicable regulations was unpersuasive; and, 2) the individual workers made sales for the purposes of the FLSA and therefore were exempt outside salesmen within the Department of Labor regulations. (June 18, 2012)

In Elgin v. Dep’t of Treasury, the United States Supreme Court addressed whether the Civil Service Reform Act of 1978 (CSRA) provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional. The Court held that the CSRA precludes district court jurisdiction over petitioners’ claims because it is fairly discernible that Congress intended the statute’s review scheme to provide the exclusive avenue to judicial review for covered employees who challenge covered adverse employment actions, even when those employees argue that a federal statute is unconstitutional. (June 11, 2012)

In Massachusetts State Police Commissioned Officers Association v. Commonwealth, the Supreme Judicial Court of Massachusetts addressed whether a mandatory furlough plan violated the Wage Act. The court determined that a wage is earned following the completion of the labor, service, or performance required and thus a prospective reduction in the number of days to be worked would not deprive the plaintiffs of an earned wage. (May 11, 2012)

In Schmidt v. Celgene Corporation and CVS Caremark Corporation, the Superior Court of New Jersey, Appellate Division held that the plaintiff’s Conscientious Employee Protect Act (CEPA) claim was properly dismissed because the one-year statute of limitations had passed. The court held that the doctrines of substantial compliance and equitable tolling did not afford the plaintiff any relief because the plaintiff’s choice of venue was the reason for his delay. (May 9, 2012)

In Melia v. Zenhire, Inc., the Supreme Judicial Court of Massachusetts addressed whether a forum selection clause was void under the Massachusetts Wage Act.  The court concluded that forum selection clauses are void only where the claims are covered by the Wage Act, the forum state would not apply Massachusetts law, and the application of foreign law would deprive the employee of his Wage Act rights. (May 8, 2012)

In Cowher v. Carson & Roberts, the Superior Court of New Jersey, Appellate Division, addressed the applicability of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq., to perceived membership in a protected group.  The court held that a plaintiff, who was wrongly perceived as Jewish by his coworkers, could bring a hostile work environment claim against his employer and coworkers who directed anti-Semitic comments at him on a daily basis.  The court reasoned that, if the plaintiff could demonstrate that the discrimination that he claimed to have experienced would not have occurred but for the perception that he was Jewish, his claim is covered by the LAD. (April 18, 2012)

In Pellegrino v. Communications Workers of America, AFL-CIO, CLC, the United States Court of Appeals for the Third Circuit addressed whether an employer denied an employee her entitlements under the Family and Medical Leave Act (FMLA) by enforcing its own sick leave policies against her while she was on leave. The court held that because the sick leave policy was not inconsistent with the FMLA, the employer did not interfere with the plaintiff’s FMLA rights by enforcing it against her. (April 19, 2012)

In Nacer v. Caputo, the United States Court of Appeals for the Third Circuit addressed whether a former high school teacher pled prima facie claims against an Assistant School District Superintendent (Superintendent) for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-1, et seq. The teacher alleged the Superintendent terminated his eligibility for substitute assignments because of his Cuban ancestry and in retaliation for his filing of a claim with the Equal Employment Opportunity Commission (EEOC). The court held that the discrimination claim failed because Title VII does not impose liability on individual employees like the Superintendent, and the retaliation claim failed because the employee presented no evidence that the Superintendent knew about the EEOC complaint. (April 19, 2012)

In Talmage Lord v. Bd. of Rev., NJ Dept. of Labor, the Superior Court of New Jersey, Appellate Division, addressed whether an employee who accepted his employer's directive that he "had to resign," left his employment "voluntarily" and was therefore disqualified under N.J.S.A. 43:21-5(a) from receiving unemployment compensation benefits. The court held that a compelled resignation does not constitute a voluntary separation from employment that disqualifies an unemployed person from receiving unemployment compensation. (April 11, 2012)

In Quinlan v. Curtiss-Wright Corporation, the Superior Court of New Jersey, Appellate Division, addressed whether front pay damages are available to a plaintiff employee in a Law Against Discrimination (LAD) case and whether the employee bears the burden of proving an entitlement to such damages. The court held that employees may still collect front pay damages in LAD cases when they establish a sound and reasonable basis for projecting future economic harm by a preponderance of the evidence. (April 5, 2012)

In Allegheny County Deputy Sheriffs’ Association v. PLRB, the Supreme Court of Pennsylvania addressed whether deputy sheriffs are “police officers” for purposes of collective bargaining under Act 111. The court held that because the General Assembly, through two separate and unrelated pieces of legislation, specifically included deputy sheriffs in the definition of police officers, that deputy sheriffs are police officers. (March 26, 2012)

In Linkhof v. Del. Soc.’y for the Prevention of Cruelty to Animals, the District Court for the District of Delaware, addressed whether the Board of the Delaware SPCA’s decision to remove the plaintiff from employment provided the necessary factual predicate for a void ab initio termination claim. The plaintiff alleged that, because the board did not consist of the required duly-elected 20 members, his removal was void ab initio. In dismissing the plaintiff’s ab initio termination claim, the court stated that under Delaware law, a board’s actions are void ab initio if they are “illegal acts of acts beyond the authority of the corporation [, which] are not ratifiable because the corporation cannot, in any case, lawfully accomplish them.” Furthermore, because the plaintiff’s removal was undertaken by an improperly constituted board, the action was merely voidable as long as the board did not act fraudulently or in bad faith. (March 9, 2012)

In Rouse v. Unemployment Comp. Bd. of Review, the Commonwealth Court of Pennsylvania addressed whether a claimant was required to repay Emergency Unemployment Compensation (EUC) and Federal Additional Compensation (FAC) benefits overpaid to her, where the excess benefits were the fault of the Department of Labor and Industry but the claimant had failed to request a waiver of overpayment. The court held that because the issue of waiver of repayment was not before the Unemployment Compensation Board of Review (the Board) or decided by it, claimant was not relieved of her obligation to repay the excess benefits. (March 15, 2012)

In Wilson v. Jersey City, the Supreme Court of New Jersey addressed whether 9-1-1 operators, together with their public-entity employers, are statutorily immune from civil liability for the negligent mishandling of emergency calls.  The court held that the New Jersey 9-1-1 Immunity Act provides immunity to 9-1-1 operators and their public-entity employers for negligence in delivering 9-1-1 services, including the mishandling of emergency calls. (March 8, 2012)

In Haybarger v. Lawrence County Adult Probation and Parole, the United States Court of Appeals for the Third Circuit addressed an issue of first impression of whether an individual supervisor at a public agency can be subject to liability as an “employer” under the Family and Medical Leave Act (FMLA). The court held that an individual supervisor can be deemed an "employer" for purposes of the FMLA “when he or she exercises 'supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation' while acting in the employer's interest." (January 31, 2012)

In Sharp v. Johnson, the United States Court of Appeals for the Third Circuit held that the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, does not permit actions against state officials in their individual capacities. (February 9, 2012)

In Lancaster Cty v. PLRB, the Commonwealth Court of Pennsylvania, addressed whether the Unit Classification of prison maintenance mechanics were properly considered prison guards under Section 604 of the Public Employee Relations Act, (Act) as was determined by the Pennsylvania Labor Relations Board (PLRB). Lancaster County commissioners adopted a reorganization plan that put the workers under a centralized department, however the AFSCME, District 89 petitioned for clarification, seeking reconsideration that the workers were “prison guards” under the Act. On appeal, the court held the Board’s decision was legally erroneous because the maintenance mechanics did not fall within the terms of  Section 604 of the Act, see 43 P.S. §1101.604(3) for “guards at prisons.” (January 11, 2012)

In Franklin Cty Career and Technology Ctr. v. Franklin Cty Career and Technology Ctr. Education Assoc., PSEA/NEA, the Commonwealth Court of Pennsylvania, addressed whether the arbitrator’s award could be rationally derived from the Collective Bargaining Agreement of the educator in determining that the educator had ‘retired.’  The court affirmed the arbitrator’s award and definition of “retirement” that included “withdrawal from one’s position” and not the complete cessation of employment as the Employer contended. (January 11, 2012)

In Chandler v. Commissioner of Social Security, the United States Court of Appeals for the Third Circuit held that the Administrative Law Judge properly relied on a physician’s report and had substantial evidence to conclude the applicant was not credible regarding the intensity and extent of her limitations, in denying her claims for Social Security Disability Insurance Benefits and Supplemental Security Income. (December 7, 2011)

In National Labor Relations Board v. Grane Healthcare Co., the United Stated Court of Appeals for the Third Circuit addressed the appropriate standard for a request for interim injunctive relief for unfair labor practices under 29 U.S.C. sec 160(j) (Section 10(j)).  Rejecting the District Court’s use of a four factor approach applicable to preliminary injunctions under Federal Rule of Civil Procedure 65(a) and utilized by other Circuits, the Third Circuit upheld its two-part approach for Section 10(j) petitions, which required (1) reasonable cause to believe that the alleged unfair labor practice was committed and, (2) relief that is just and proper. (December 7, 2011)

In Delaware Transit Corporation v. Amalgamated Transit Union, the Supreme Court of Delaware addressed whether a labor arbitrator’s shared life experience with a party gave the appearance of bias or partiality that required reversal of an arbitration award that reinstated a terminated employee to his employment.  The court held that to demonstrate partiality sufficient to require reversal of a labor arbitration award, evidence must show the arbitrator failed to disclose a substantial personal or financial relationship with a party, a party’s agent, or a party’s attorney that a reasonable person would conclude was powerfully suggestive of bias.  Thus, evidence that the arbitrator and party had a shared life experience was insufficient to overturn an arbitration award. (November 28, 2011)

In Pleasant Valley School District v. Schaeffer, the Commonwealth Court of Pennsylvania considered whether a reviewing court may use public policy concerns to revise the issue submitted by the parties for arbitration. The court held that a court may review the arbitration decision only on the issues the parties agreed to submit to arbitration and may not give a party another opportunity to arbitrate an issue that it could have raised, but did not. (December 1, 2011)

In Senisch v. Carlino, the Superior Court of New Jersey, Appellate Division considered whether an employer’s negative employment reference letters on behalf of a former employee violated the Conscientious Employee Protection Act (CEPA) and constituted common law defamation and tortious interference with prospective economic advantage.  The court held that because the statute and the qualified privilege protect employers against civil liability for non-malicious reporting of the circumstances of an employee’s termination, the former employee could not as a matter of law prevail on his claims of tortious interference and defamation, or retaliation under CEPA. (December 1, 2011)

In Bockelman Trucking v. Pennsylvania Prevailing Wage Appeals Board, the Commonwealth Court of Pennsylvania addressed the issue of whether truck drivers who worked on a public work project must be paid prevailing minimum wages pursuant to the Pennsylvania Prevailing Wage Act.  The court held that the truck drivers worked “directly upon the public work project” and, thus, met the Act’s definition of “workmen,” because they hauled materials within and around the work site. (October 28, 2011)

In Capital City Lodge No. 12, Fraternal Order of Police (FOP) v. Pennsylvania Labor Relations Board, the Commonwealth Court of Pennsylvania addressed the charge that the City Counsel of Harrisburg violated the Pennsylvania Labor Relations Act by failing to adopt an ordinance implementing a police pension funding agreement reached between the Mayor and FOP.  The court held that the Mayor lacks power to bind City Council to financial obligations. (November 1, 2011)

In Daily v. State Civil Service Commission, the Commonwealth Court of Pennsylvania addressed whether the State Civil Service Commission erred in finding that a county agency could make an employment appointment by promotion without examination and without considering age preference. The court held that age preference does not apply when a list of eligible employees is not the method of selection, and that the Commission could therefore make the appointment without examination. (October 19, 2011)

In Peter B. Kurbatov. d/b/a PBK Construction v. Department of Labor, the Commonwealth Court of Pennsylvania addressed whether PBK’s workers were employees (for whom unemployment compensation taxes are due) or independent contractors (for whose services taxes are not due).  The court held that the workers were employees because PBK exercised sufficient control over their work despite the fact that they provided their own protective gear, hand tools and training, and they signed an independent contractor agreement for each project. (September 30, 2011)

In Zangara v. Somerset Medical Center, the Superior Court of New Jersey, Appellate Division addressed whether a plaintiff whose employment was terminated because of his disability established a prima facie case of disability discrimination.  The court held that, although there were factual disputes about details and the merits of the decision to terminate, the well-documented history of problems between the plaintiff and the staff members constituted a legitimate, non-discriminatory reason for the termination of employment. (October 5, 2011)

In Bueno v. Board of Trustees, the Superior Court of New Jersey determined the applicability of an agency requirement that an application for retroactive service retirement benefits be filed within 30 days of the agency’s denial of ordinary disability benefits even when an individual appeals that denial.  Due to the legislature’s clear mandate to protect pension benefits and because an individual does not receive final notice of the denial until the appeal process is exhausted, the court held that application of the Board of Trustee’s 30-day requirement in such instances constituted improper rulemaking. (September 29, 2011)

In Symcyk v. Genesis Healthcare Corp., the United States Court of Appeals for the Third Circuit considered whether a collective action brought under 29 U.S.C. § 216(b) of the Fair Labor Standards Act (FLSA) becomes moot when, before “conditional certification” and prior to any other plaintiff opting into the suit, the putative representative receives an offer of judgment under Fed.R.C.P. 68.  The Third Circuit held that a rejected Rule 68 offer of judgment does not necessarily moot the claim under FLSA.  The Court extended the “relation back” doctrine, applicable in Rule 23 class actions, to collective actions brought under Section 216(b) of the FLSA.  Under the “relation back” doctrine, the court will treat a motion for conditional certification as though it were brought at the time the complaint was filed.  The Third Circuit found application of the doctrine appropriate under this scenario, where a defendant attempted to “pick off” the lead plaintiff with a Rule 68 offer of judgment, thereby depriving that representative plaintiff of the opportunity to timely bring a class certification motion. (August 31, 2011)

In CSX Transp., Inc. v. McBride, the United States Supreme Court addressed the appropriate instruction on "proximate cause" in a Federal Employers' Liability Act (FELA) action, which holds railroads liable for employees' injuries "resulting in whole or in part from [carrier] negligence." The Court held that FELA does not incorporate the "proximate cause" standards developed in common-law tort actions. Instead, the proper charge in FELA cases simply tracks the language Congress employed, informing juries that a defendant railroad "caused or contributed to" a railroad worker's injury "if [the railroad's] negligence played a part-no matter how small-in bringing about the injury." (June 23, 2011)

In Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court addressed whether current or former female employees of a retail store could pursue a class action because of alleged gender discrimination in violation of Title VII of the Civil Rights Act of 1964 for favoring male employees in pay and promotions. The Court held that the class action could not proceed because the putative class members lacked the necessary common "questions of law or fact." (June 20, 2011)

In Sullivan v. The Mayor and Council of the Town of Elsmere, the Supreme Court of Delaware, addressed due process relating to the termination of a police chief where the panel voting to terminate him contained a biased member. The court held that the "Panel's error by not [disqualifying the biased member], in accord with the fundamental principles of due process, tainted the Panel's votes on the charges against [the police chief] and ordered a new hearing even though there were enough votes to terminate the police chief without counting the biased member's vote. (June 17, 2011)

In Braun v. Walmart Stores, Inc., the Superior Court of Pennsylvania, addressed due process relating to class action certification and whether Walmart and Sam's Club breached contracts with employees, were unjustly enriched and violated the Pennsylvania Wage Payment and Collection Act (WPCL) and Pennsylvania Minimum Wage Act (MWA). The court held that: 1) the record substantiates the trial court's certification of the class and discern no denial of due process, 2) the trial court correctly construed 43 P.S. § 260.10 correctly to permit recovery of statutory liquidated damages and the employees are entitled to recover under the WPCL, and 3) there was sufficient evidence in the record for a fact finder to conclude there was a breach of contract, unjust enrichment, and violation of the MWA. (June 10, 2011)

In Hyland v. Township of Lebanon, the Superior Court of New Jersey, Appellate Division decided that a township violated N.J.S.A. 40A:9-165 when it reduced an employee's vacation days, sick leave and personal time. The employee had been awarded tenure in her position. The Appellate Division affirmed the trial court's ruling that the term "salary," as it appears in N.J.S.A. 40A:9-165, includes payments for vacation, sick and personal days because such payments are "financial benefits . . . akin to salary for purposes of the statute." (April 8, 2011)

In O'Halloran v. Township of Nutley, the Superior Court of New Jersey, Appellate Division addressed the standards used by public employers in awarding employees compensatory time off in lieu of overtime pay under the Fair Labor Standards Act (FLSA). Section 207 requires a public employer allow an employee to use compensatory time off "within a reasonable period after making [a] request if the use of the compensatory time does not unduly disrupt the operations of the public agency." The court held that an employer who permits use of compensatory time within the "reasonable period," but not on the date requested by the employee, does not need to show that the originally requested date would be unduly burdensome. (April 1, 2011)

In Hosanna-Tabor Church v. EEOC, the Supreme Court of the United States granted certiorari to address the "ministerial exception," a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The Court granted certiorari to address the following question: "Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship." (March 28, 2011)

In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court of the United States addressed whether an oral complaint of a violation of the Fair Labor Standards Act (FLSA) is protected conduct under the FLSA's anti-retaliation provision. The Court initially found that the FLSA's statutory phrase, "filed any complaint," was open to interpretation as to its inclusion of oral complaints. However, after considering the purpose and context of the FLSA, the Court held that oral complaints are protected under the FLSA's anti-retaliation provision. (March 22, 2011)

In Milner v. Dept. of the Navy, the United States Supreme Court explored the scope of Exemption 2 of the Freedom of Information Act (FOIA), which protects from public disclosure materials that are "related solely to the internal personnel rules and practices of an agency." The Court determined that Exemption 2 only shields from disclosure materials that concern conditions of employment, such as hiring and firing, work rules and discipline, and compensation and benefits. (March 7, 2011)

In Saffos v. Avaya, Inc., the Superior Court of New Jersey addressed the propriety of awards of punitive damages and counsel fees under the New Jersey Law Against Discrimination (LAD). Regarding punitive damages, the court found such damages in LAD actions are not subject to the New Jersey Punitive Damages Act's (PDA) cap of five times the compensatory damages. The court further found that, in an LAD action in which a plaintiff suffers no physical harm from alleged emotional distress, the emotional distress damages should be excluded from the ratio of compensatory damages to punitive damages. Regarding counsel fees, the court found that a retainer agreement which contains an attorney settlement-veto provision does not have any effect on a plaintiff's ability to seek counsel fees under the LAD. (March 8, 2011)

In Staub v. Proctor Hospital, the United States Supreme Court examined employer hostility toward an employee's military obligation. The Supreme Court held that when a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable pursuant to Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). It is not necessary that the individual ultimately responsible for the decision to terminate employment was motivated by discriminatory animus. It is sufficient that an earlier agent intended, for discriminatory reasons, to take an action adverse to the employee (such as a disciplinary warning), and that warning was a proximate cause of the later firing, the employer has the scienter required for USERRA liability. (March 1, 2011)

In Haun v. Community Health Systems, the Superior Court of Pennsylvania addressed whether a tortious interference claim can survive preliminary objections when the alleged misconduct related to an existing employment contract. The court held that a tortious interference claim is legally insufficient unless it relates to interference with a prospective employment relationship. (January 19, 2011)

In Thompson v. North American Stainless, the Supreme Court of the United States held that an employer's firing of a husband, allegedly in retaliation for a gender discrimination claim filed by his spouse against the same employer, constituted unlawful retaliation under Title VII. The Court further held that the husband had a viable cause of action against the employer under Title VII. (January 24, 2011)

In Kovalcik v. Somerset County Prosecutor's Office, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "Do records of a public employee's coursework or training beyond those demonstrating the minimum job qualifications constitute 'personnel records' that are exempt from disclosure as 'government records' under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13?" (December 10, 2010)

In Goldman v. Southeastern Pennsylvania Transportation Authority, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider questions related to SEPTA's immunity from suit brought in Pennsylvania courts under the Federal Employer's Liability Act (FELA). The Superior Court of Pennsylvania held that "the sovereign immunity of the Commonwealth of Pennsylvania does indeed encompass SEPTA where claims are brought under FELA in the courts of this Commonwealth." The issues the court will decide, as stated by the petitioner, are:

1. Whether the Commonwealth Court in a case of first impression-for the first time in SEPTA's 46-years existence-incorrectly held that, because the court failed to follow the United States Supreme Court's mandated "arm of the state" jurisprudence, SEPTA is not obligated to comply with federal laws, stripping SEPTA employees of the rights and protections railroad employees have enjoyed for a century under [FELA].
2. Whether the Commonwealth Court's decision should be reversed because the decision (a) ignores the United States Supreme Court's mandate in Lake County and Hess that sovereign immunity must be determined based upon a detailed analysis of several specific factors against which to determine an entity's nature and structure and (b) was only based on the state legislature's label of SEPTA as a "Commonwealth Agency and Instrumentality," and the Commonwealth's partial voluntary funding of SEPTA.
3. Whether the Commonwealth Court improperly held, in a case of first impression, that all claims brought under [FELA], 45 U.S.C. §§ 51-60, were completely barred by the Pennsylvania Sovereign Immunity Act, 42 Pa.C.S. § 8522(B), rather than leaving it to the trial courts to decide each FELA accident on a case by case basis as is done in other personal injury actions. (December 20, 2010)

In Winters v. North Hudson Regional Fire & Rescue, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider the following question: "Where the employer's decision to terminate the employee for misconduct was upheld in administrative proceedings and on appeal, may the employee maintain a claim that he was terminated in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8?" (December 10, 2010)

In Gillard v. Martin, the Superior Court of Pennsylvania considered the admissibility of evidence of pre-suit conduct to prove the breach of an employment contract. The Superior Court held that, even though the employee continued to work under the contract, it was not an error of law to permit evidence of pre-suit conduct to prove a total breach. Quoting Williston on Contracts, the court stated that "where the nondefaulting party brings his or her complaints to the defaulting party's attention, and continues the relationship only on the assurance of better performance, he or she will not be barred from asserting rights under the contract." (December 20, 2010)

In Henry v. New Jersey Department of Human Services, the Supreme Court of New Jersey examined the impact of the discovery rule on claims made under the New Jersey Law Against Discrimination (LAD). The court held that the discovery rule may equitably toll the statute of limitations for a discrimination claim made under the LAD. Furthermore, in this particular case, the court held that a specific hearing was required to determine whether the discovery rule equitably tolled the accrual date of the cause of action. (December 10, 2010)

In Quinlan v. Curtiss-Wright Corporation, the Supreme Court of New Jersey addressed the New Jersey Law Against Discrimination (LAD) in a case of gender discrimination, which included a claim for punitive damages. The Supreme Court crafted a seven-part balancing test in weighing the rights of employers and employees when an employee takes or copies documents that the employer believes are confidential for use in a LAD litigation. The test considers: 1) how the employee came into possession of the document; 2) what the employee did with the document; 3) the nature and content of the particular document; 4) whether there is a clearly identified company policy on privacy or confidentiality that the employee's disclosure has violated; 5) the circumstances relating to the disclosure of the document; 6) the strength of the employee's reason for copying the document; and 7) consideration of the broad remedial purposes the LAD, as well as consideration of legitimate rights of both employers and employees. The Court noted that in employment discrimination cases, the two prerequisites for punitive damages are: (1) proof that upper management participated in the discrimination or exercised willful indifference; and (2) "especially egregious" conduct. On these standards, the Court reinstated the jury's verdict on the LAD and punitive damages claims. (December 2, 2010)

In Deuley v. Dyncorp International Inc., the Supreme Court of Delaware considered whether the liability clause in the employment contracts of civilian police officers stationed in Afghanistan released claims arising out of injuries suffered by the officers while on duty. The contracts contained a liability provision stating that certain insurance benefits would be available "as full satisfaction of any claim for death, injury, or disability," and that the employer could not be held liable for such injuries. Applying the law of Dubai, as required by the contract, the Court found that the contract clearly and unambiguously released the employer from claims for injuries, death, or disability. The Court found the liability provision is akin to the exclusive remedies found in workers' compensation relationships, and thus barred all derivative claims. (December 8, 2010)

In Caiarelli, et. al. v. Sears, Robuck & Co., et. al., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal, agreeing to consider the following question: "Whether the Superior Court erred in affirming the trial court's grant of summary judgment in favor of Respondent Sears on Petitioners' claim under the Pennsylvania Minimum Wage Act, where the trial court's determination relied on provisions of federal law having no analogue under that Act?" (December 1, 2010)

In Bayada Nurses, Inc. v. Commwealth of Pennsylvania, Dep't of Labor and Indus., the Supreme Court of Pennsylvania addressed whether Bayada Nurses, Inc. (Bayada) has to pay overtime to its home health care aides. More specifically, the court considered the question of whether a third-party agency employer can benefit from the "domestic services" exception, 40 P.S. § 333.105(a), to Pennsylvania's Minimum Wage Act of 1968. As defined by regulations issued by the Pennsylvania Department of Labor and Industry, the term "domestic services" means "[w]ork in or about a private dwelling for an employer in his capacity as a householder, as distinguished from work in or about a private dwelling for such employer in the employer's pursuit of a trade, occupation, profession, enterprise or vocation." 34 Pa. Code § 231.1(b). The court held that the regulation, distinguishing between householder employers and third-party employers, was consistent with the General Assembly's intent regarding the scope of the domestic service exception. The court also held that a third-party employer does not qualify for the domestic service exception and, therefore, must pay its employees overtime. (November 17, 2010)

In Racanelli v. County of Passai, the Superior Court of New Jersey, Appellate Division addressed whether an employee in a sheriff's department who was harassed and later laid off was barred from raising a Conscientious Employee Protection Act (CEPA) claim in subsequent litigation when that claim was not raised in a prior administrative proceeding upholding his layoff. The court held that the failure to raise the CEPA claim in the administrative proceeding did not preclude later litigation. The court held also that the Tort Claim Act's notice of claim provision was inapplicable to CEPA cases. (November 10, 2010)

In Doe v. Wyoming Valley Health Care System, Inc., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to address several issues:

1. Whether a jury decides if the judicial privilege applies, or the trial court makes a threshold determination if the privilege applies with the jury deciding if the privilege was abused.
2. Whether a party seeking to preserve an objection to a trial court's error of law must object to jury instructions that included the error, although the party repeatedly raised the issue in pre-trial motions.
3. Whether petitioner's confidential information from her personnel record was not material and pertinent, and thus not privileged for disclosure, at the NLRB hearing.
4. Whether the Superior Court, contravening the appropriate standard of review, inappropriately accepted the testimony of respondent's agent. (October 19, 2010)

In Marcinczyk v. State of New Jersey Police Training Commission, the Supreme Court of New Jersey considered the validity of an exculpatory agreement that a police recruit was required to execute by the police academy as a condition of participating in the academy's training program. The exculpatory provision provided that the recruit understood that the academy presents a risk of possible physical or psychological injury and, further, that the recruit would not assert any claims for injuries or other damages sustained as a result of the training. The Supreme Court held that the exculpatory provision was invalid because it contravened public policy under the New Jersey Tort Claims Act, which states that a public entity cannot condition public service on the individual's execution of a waiver of liability. (October 18, 2010)

The Supreme Court of New Jersey, in In the Matter of Nicholas R. Foglio, Fire Fighter, granted a Petition for Certification of Appeal to consider the following question: "Was the challenging candidate entitled to a more detailed explanation for the hiring authority's decision to bypass him for individuals ranked lower on the certified eligible list?" (October 7, 2010)

In Noel v. The Boeing Company, the United States Court of Appeals for the Third Circuit addressed statute of limitations issues involving a failure-to-promote claim in the context of the recently-enacted Lilly Ledbetter Fair Pay Act of 2009 (FPA). The FPA establishes that each paycheck stemming from a discriminatory compensation decision is a tainted and independent employment action that commences the administrative statute of limitations, thereby relaxing statute of limitations requirements. The specific issue before the court - one of first impression in the Third Circuit - was whether a failure-to-promote claim under the FPA constitutes "discrimination in compensation," thus triggering the FPA. The court held that the FPA applies only to compensation decisions and, thus, does not apply to failure-to-promote claims. Consequently, because the plaintiff filed his failure-to-promote claim with the EEOC outside of the 300-day period allowed, the Third Circuit affirmed the District Court's Order granting summary judgment in favor of the employer. (October 1, 2010)

In In the Matter of Anthony Stallworth, Camden County Mun. Utils. Auth., the Supreme Court of New Jersey granted a Petition for Certification of Appeal to address the following question: "In this case involving the discipline of a public employee, did the Merit System Board err in determining that removal was too harsh and that a four-month suspension was appropriate?" (September 10, 2010)

In Ambrose v. Citizens National Bank of Evans City, Pa., the Superior Court of Pennsylvania, addressed whether former employees of the defendant-who prevailed on their claims for compensation under the Wage Payment and Collection Law, 43 P.S. § 260.1 et seq.-were entitled to recover attorneys' fees for defending against the employer's counterclaims. The court held that the former employees were entitled to those attorneys' fees, in part, because the award of those attorneys' fees promotes the purpose of the fee-shifting provision of the Wage Payment and Collection Law. (September 17, 2010)

In Missett v. HUB International Pennsylvania, LLC, the Superior Court of Pennsylvania reviewed a trial court's decision holding that a restrictive covenant preventing the plaintiff-a former employee-from soliciting business from existing clients for two years was unenforceable against the employee after the ownership of the employer changed hands. The Superior Court held that the sale of the membership interest in the company, a limited liability company, to Defendant HUB International, and the subsequent name change of the company, was not a sale of assets to another entity, but rather a transfer of membership in the same entity. Therefore, the transfer in membership interest to HUB International did not result in a change in the identity of the plaintiff's employer. Because the identity of the plaintiff's employer remained the same despite a different controlling membership interest, the Superior Court found that HUB International had standing to enforce the restrictive covenant. (September 23, 2010)

In Victor v. State of New Jersey, the Supreme Court of New Jersey declined to address whether an adverse employment consequence is an essential element of a claim alleging that an employer failed to accommodate an employee's disability under New Jersey's Law Against Discrimination (LAD). The court recognized that the LAD's expansive remedial purpose likely suggests that a failure to accommodate in and of itself may give rise to a cause of action, but found that this case was not an appropriate case for determining the need to prove an adverse employment consequence. (September 13, 2010)

In Wynn v. NutriSystem, Inc., the United States Court of Appeals for the Third Circuit reviewed whether NutriSystem's method of compensating its sales associates represented "commissions on goods and services," which turns on whether the earnings resulted from a "bona fide commission rate" in accordance with the Fair Labor Standards Act (FLSA). The court found that when flat-rate payments made to an employee based on that employee's sales are proportionally related to the charges passed on to the consumer, the payments can be considered a bona fide commission rate under the FLSA. Accordingly, the court held that NutriSystem was not in violation of the FLSA as its compensation plan established a bona fide commission rate. (September 7, 2010) 

In Policemen's Benevolent Ass'n, Local No. 11 v. City of Trenton, the Supreme Court of New Jersey granted a Petition for Certification in an arbitration matter, agreeing to decide the following question: "Is the arbitrator's conclusion that officers must be compensated for reporting for roll call ten minutes prior to their shifts entitled to deference as a 'reasonably debatable' interpretation of the parties' collective bargaining agreement?" (August 12, 2010)

In Allegheny County Deputy Sheriff's Ass'n v. Pennsylvania Labor Relations Bd., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider an issue related to Act 111, which addresses collective bargain agreements for firemen and policemen. The issue the court agreed to consider is: "Whether the Commonwealth Court erred in affirming the PLRB's dismissal of the sheriffs' association's petition to represent deputy sheriffs as police officers under Act 111, when the PLRB disregarded Hartshorn v. County of Allegheny, 333 A.2d 914 (Pa. 1975), and Commonwealth v. PLRB, 463 A.2d 409 (Pa. 1983)." (August 12, 2010)

In 500 James Hance Court, et. al. v. Pennsylvania Prevailing Wage Appeals Board, et. al., the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to consider the following issue: "Whether the Commonwealth Court erred in concluding that the Prevailing Wage Act applies only to the segment of a bifurcated construction contract receiving public funds." (August 4, 2010) 

In EEOC v. The Geo Group, Inc., the Court of Appeals for the Third Circuit addressed whether a prison's requirement that its employees not wear headgear, including the Muslim khimar, violated Title VII. The Court held that the requirement did not violate Title VII because permitting employees to wear khimars would create an undue hardship on the employer-prison by creating a genuine safety and security risk. (August 2, 2010)

In Big M, Inc. v. Texas Roadhouse Holding, LLC, the Superior Court of New Jersey addressed whether tips and gratuities earned by an employee are wages subject to garnishment. Taking guidance from federal law on the issue, the court held that tips that are paid in cash to an employee or charged on a credit card and immediately remitted to an employee are not subject to wage garnishment. However, if an employer remits tips in a manner that demonstrates control by the employer, such as a pooling and distribution system, the tips may be subject to wage garnishment. (July 16, 2010)

In Donelson v. DuPont Chambers Works, the Supreme Court of New Jersey granted a Petition for Certification of Appeal to consider a question related to the Conscientious Employee Protection Act. The question the court agreed to consider is stated as follows: "Does recovery of damages for economic loss associated with back and front pay require proof of actual or constructive discharge under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8?" (July 15, 2010) 

In Thompson v. North American Stainless, the Supreme Court of the United States granted certiorari in order to address whether the Civil Rights Act forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. More specifically, the Supreme Court will determine: (1) whether an employer is barred from retaliating for such activity by inflicting reprisals on a third party who is closely associated with the employee, such as a spouse, family member, or fiancé; and (2) if so, whether that prohibition can be enforced in a civil action brought by the third-party victim. (June 29, 2010)

In Rent-A-Center, West, Inc. v. Jackson, the Supreme Court of the United States considered whether an employment contract's arbitration agreement was enforceable pursuant to the Federal Arbitration Act (FAA) where it was challenged by a former employee in an employment discrimination suit. The arbitration agreement included a delegation clause, which is an agreement to arbitrate threshold issues concerning the arbitration agreement, such as whether the agreement is enforceable. The Supreme Court held that where the former employee failed to specifically challenge the delegation clause per the FAA, the Court must treat it as valid and allow the arbitrator to determine the validity of the arbitration agreement. (June 21, 2010)

In Granite Rock Co. v. International Brotherhood of Teamsters, et al., the Supreme Court of the United States considered whether the district court or an arbitration panel should decide the ratification of a collective bargaining agreement. The Supreme Court held that the parties' dispute over the CBA's ratification date was a matter for the district court, not an arbitrator, to resolve. The Court also considered whether it should recognize and/or create a new federal common-law cause of action under the Section §301(a) Labor Management Relations Act of 1947 for alleged tortious interference with the collective bargaining agreement at issue. The Supreme Court affirmed the Ninth Circuit's decision not to recognize such a cause of action. (June 24, 2010)

In Nino v. The Jewelry Exchange, Inc., an employment discrimination case, the United States Court of Appeals for the Third Circuit addressed issues concerning the enforceability of an arbitration agreement in the face of unconscionable provisions contained within the agreement. In reversing the decision of the District Court, the Third Circuit held that the lower court erred when it held that it could simply sever those portions of the agreement deemed unconscionable and enforce the remaining provisions. According to the Third Circuit, although there are instances where unconscionable or otherwise unenforceable provisions can be severed from an arbitration agreement, "it [was] not appropriate [in this case], in the face of such pervasive one-sidedness, to sever the unconscionable provisions from the remainder of the arbitration agreement." The Third Circuit also held that the employer, by engaging in protracted litigation before seeking to arbitrate the matter, waived its right to compel arbitration. (June 15, 2010) 

In Nini v. Mercer County Community College, et al., the Supreme Court of New Jersey addressed whether the over age 70 exception in the New Jersey Law Against Discrimination (LAD) applies to the nonrenewal of an existing employee's contract. The plaintiff, who was over 70-years-old, brought suit alleging age discrimination after being informed that her employment contract would not be renewed. The defendant argued that nonrenewal of employment was not a termination, and that the plaintiff had no claim because New Jersey's LAD permits an employer to refuse to accept for employment any person over 70 years of age. The trial court granted summary judgment to the defendant, which was reversed by the Appellate Division. The Supreme Court of New Jersey affirmed the reversal by the Appellate Division, holding that the refusal to renew the contract of an employee over 70-years-old on the basis of age is a discriminatory act prohibited by New Jersey's LAD. In making its decision, the court relied upon the legislative intent of the LAD, which is to protect New Jersey's older citizens from being forced out of the workplace based solely on age. (June 1, 2010) 

In Snizaski v. Public School Employees' Retirement Board, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to address an issue related to benefit forms for the Public School Employee's Retirement System. The issue the court agreed to consider is stated as follows: "Whether the Commonwealth Court correctly interpreted 24 Pa.C.S. § 8507(e) to require in this case that a Public School Employees' Retirement System nomination of benefits form must have been completed entirely in the hand of the member/decedent in order to effectuate a valid change of beneficiary designation." (May 26, 2010) 

The Supreme Court of the United States, in Lewis v. City of Chicago, recently addressed whether a plaintiff, who does not file a timely charge challenging the adoption of an employment practice, may assert a disparate-impact claim in a timely charge challenging an employer's later application of that practice. In 1995, the City of Chicago issued a written examination to applicants seeking firefighter positions. In 1996, the City announced that it would sort applicants based on their test scores, into three categories: "well qualified," "qualified," and "not qualified." This process was repeated multiple times over the next six years. In 1997, several African-American applicants, who scored in the "qualified" range but were not hired, filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and received right-to-sue letters. Thereafter, they filed suit alleging that the City's practice of selecting only those applicants who scored in the "well qualified" range had a disparate impact on African-Americans, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k)(1)(A)(i). The District Court denied the City's summary judgment motion, rejecting its claim that the class had failed to file EEOC charges within 300 days "after the unlawful employment practice occurred" and finding, instead, that the City's "ongoing reliance" on the 1995 test results constituted a continuing Title VII violation. The Seventh Circuit reversed, holding that the suit was untimely because the earliest EEOC charge was filed more than 300 days after the only discriminatory act-sorting the test results into the "well qualified," "qualified" and "not qualified" categories-and finding that the later hiring decisions were an automatic consequence of the scores, not new discriminatory acts. The Supreme Court reversed and remanded the matter, holding that, as long as a plaintiff alleges each of the elements of a disparate-impact claim, a plaintiff may assert a disparate-impact claim in a timely charge challenging the employer's later application of an employment practice, even if the plaintiff does not file a timely charge challenging the adoption of that practice. (May 24, 2010)

The Supreme Court of New Jersey, in Alexander v. Seton Hall University, granted a Petition for Certification of Appeal to address the following question: "Did the employer's act of payment constitute continuing discrimination for purposes of determining whether plaintiffs' complaint alleging sex and age discrimination in pay was timely filed?" (April 29, 2010) 

In Sulima v. Tobyhanna Army Depot, et al., the United States Court of Appeals for the Third Circuit addressed whether the meaning of "disability" under the Americans with Disabilities Act (ADA) encompasses an impairment resulting solely from the side effects of medication, whether or not the underlying health problems are disabling. Plaintiff-employee was morbidly obese and suffered from sleep apnea. He took weight loss medication that caused him to take frequent breaks at work. After he took part in a voluntary layoff, the plaintiff-employee sued his employer, claiming that he was forced into the layoff because he was disabled, regarded as disabled by his employer, or was retaliated against for requesting an accommodation for a disability that he believed in good faith existed. The United States Court of Appeals for the Third Circuit held that side effects from medical treatment may constitute an impairment under the ADA if the medication or course of treatment is required in the "prudent judgment of the medical profession," and there is not an available alternative that is equally efficacious without the disabling side effects. However, the court concluded that plaintiff-employee did not meet this standard. The court also held that the employers did not regard the plaintiff-employee as disabled within the meaning of the ADA because he did not allege facts to establish that his employers thought that his gastrointestinal problems would last for an extended period of time. Finally, the court concluded that plaintiff-employee could not establish a retaliation claim because he lacked a good faith belief that he was disabled within the meaning of the ADA. (April 12, 2010) 

In Colwell v. Rite Aid Corp. , the United States Court of Appeals for the Third Circuit considered whether the District Court erred in granting summary judgment in favor of the plaintiff's employer in a disability discrimination lawsuit. The plaintiff, who was blind in one eye and had a note from her doctor stating that she should not drive at night, claimed that her employer discriminated against her by refusing to assign her to day shifts. The plaintiff asserted claims against her employer under the Americans with Disability Act (ADA) and the Pennsylvania Human Relations Act (PHRA). Although the Third Circuit upheld the dismissal of the plaintiff-employee's retaliation and constructive discharge claims, the court reversed the grant of summary judgment in favor of the employer on the employee's failure to accommodate the claim under the ADA. The Third Circuit reasoned that the ADA "contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee's disability-related difficulties in getting to work." The court further noted that the employer failed to argue that the employee's request for day-shift employment was unreasonable or would cause an undue burden. (April 8, 2010)  

In Kasten v. Saint-Gobain Performance Plastic, the Supreme Court of the United States granted certiorari to address an issue related to the Fair Labor Standards Act. In particular, the Court agreed to decide the question of whether an oral complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision, 29 U.S.C. Section 215(a)(3). (March 22, 2010)

In Commonwealth v. Pennsylvania State Troopers Ass'n, the Supreme Court of Pennsylvania granted a petition for allowance of appeal to address an issue related to the State Employees Retirement Code. The question the court agreed to consider is as follows: "Did the Commonwealth Court err when it invalidated the wage provisions of an Act 111 interest arbitration award based upon a holding that the provisions violated the State Employees Retirement Code, 71 Pa.C.S. § 5302(b)(2)?" (March 16, 2010) 

In National Aeronautics and Space Administration v. Nelson, the Supreme Court of the United States granted certiorari to address aspects of a new requirement by the National Aeronautics and Space Administration (NASA) that contract employees in "low risk" positions submit to an in-depth background investigation. The Supreme Court granted certiorari to address two questions:

"(1) Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks, in the course of a background investigation, whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee's response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a; and

(2) Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility, the reference's response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a." (March 8, 2010)

In Schaar v. Lehigh Valley Health Services, Inc., the United States Court of Appeals for the Third Circuit addressed an issue of first impression: whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by the implementing regulations of the Family and Medical Leave Act (FMLA). FMLA entitles employees to take reasonable leave for a serious health condition that requires continuing treatment. 29 U.S.C. §§ 2611-2612. FMLA regulations define continuing treatment as a period of incapacity "of more than three consecutive calendar days" that also involves "[t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider." 29 C.F.R. § 825.114(a) (2005). The plaintiff's doctor opined that she was incapacitated for two days because of her illness, and the employee testified that she was incapacitated for an additional two days. Referencing similar conclusions in other circuits, and noting that the specific regulation itself does not speak to a requirement of medical testimony, the court held that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. (March 11, 2010) 

In Donelson v. DuPont Chambers Works, the Superior Court of New Jersey, Appellate Division, addressed the circumstances under which an employee can seek lost wages under the Conscientious Employee Protection Act (CEPA). The CEPA creates a cause of action for retaliatory discharge in order to protect employees who report illegal or unethical actions in the workplace. Noting that an employee is expected to take all reasonable steps necessary to remain employed, the court found that the jury incorrectly awarded economic damages. The court held that without a constructive discharge or the actual termination of his employment, the plaintiff was not entitled to an award of lost wages. ( February 24, 2010) 

In Smith v. Johnson and Johnson, the United States Court of Appeals for the Third Circuit addressed the issue of eligibility for overtime pay under the Fair Labor Standards Act (FLSA). The plaintiff, a pharmaceutical sales representative, sought overtime pay, but her employer argued that she was not entitled to overtime pay under the FLSA. The Third Circuit affirmed the trial court's holding that the plaintiff was exempt from the FLSA under the administrative employee exemption. The plaintiff's job duties involved a high level of independent planning, without direct oversight, which brought her position within the administrative employee exemption. As such, the plaintiff was not entitled to overtime pay under the FLSA. In a footnote, the court noted that its decision was fact-specific, and cautioned that it may reach a different result in similar cases involving sales representatives for pharmaceutical companies. (February 2, 2010)

In Pignataro v. Port Authority, the United States Court of Appeals for the Third Circuit addressed, among other things, the classification of employees under the Fair Labor Standards Act (FLSA). The plaintiffs, helicopter pilots for the Port Authority of New York and New Jersey, filed a complaint alleging that they were denied proper overtime pay under the FLSA for three years. The District Court granted summary judgment in favor of the plaintiffs, finding that helicopter pilots are not exempt as "professional" employees under the FLSA and, therefore, are entitled to mandatory time-and-a-half overtime compensation. The Third Circuit affirmed the decision, holding that the Port Authority helicopter pilots' work does not require advanced knowledge that is customarily acquired from a prolonged course of specialized instruction and, thus, they are not "learned professionals" who are exempt from overtime pay under the statute. (January 27, 2010)

In Asbury Park Press v. County of Monmouth, the Supreme Court of New Jersey addressed whether a settlement agreement entered into by the County of Monmouth and one of its employees was subject to disclosure pursuant to New Jersey's Open Public Records Act (OPRA), N.J.S.A. 47:1 A-1 to -13. The parties entered into a confidential settlement agreement after the employee brought charges of sex discrimination against the county. The Supreme Court upheld the Appellate Division's decision finding that the OPRA "requires disclosure" of the settlement agreement. As the court noted, given the public nature of the lawsuit and the OPRA's core concern for transparency in government, a governmental entity cannot enter into a voluntary agreement to settle a public lawsuit and then claim that it had a reasonable expectation of privacy in the amount of the settlement. (January 26, 2009) 

In Roa v. LAFE, the Supreme Court of New Jersey addressed the statute of limitations for retaliatory acts for claims brought under New Jersey's Law Against Discrimination. The plaintiffs were two workers, a husband and wife, who claimed they were the victims of retaliatory firings. The husband also alleged that the employer further retaliated by cancelling his health insurance coverage. The termination of his health insurance was considered a post-discharge act because that was when the husband first learned about it. The plaintiffs' filed their complaint more than two years after they were discharged. The trial court dismissed the complaint because claims related to the terminations were time-barred and the insurance matter was not an employment decision. The Appellate Division affirmed the decision as to the wrongful discharge claims, but reversed as to the husband's post-discharge cancellation of insurance. The Supreme Court, discussing whether the husband's claims involved a continuing violation for purposes of the statute of limitations, affirmed in part and reversed in part, holding that a timely claim based on post-discharge retaliatory conduct does not "sweep in" a prior untimely discrete act, which the victim knew or should have known gave rise to a retaliation claim. However, a discrete post-discharge act of retaliation is independently actionable even if it does not relate to present or future employment, and evidence relating to barred claims may be admissible in the trial of the timely claim. (January 15, 2010)

In Mundie v. Christ United Church of Christ, the Superior Court of Pennsylvania addressed whether the trial court erred in dismissing, for lack of subject matter jurisdiction, a breach of contract lawsuit brought by a pastor who had been terminated by his congregation's Consistory. The trial court held that it lacked subject matter jurisdiction because the dispute was ecclesiastical in nature. The Superior Court reversed, and held that the plaintiff should first be given an opportunity to show that he can prove his case without resorting to evidence that would excessively entangle the court with church matters. (December 31, 2009) 

In Smith v. City of Allentown, the United States Court of Appeals for the Third Circuit reviewed the grant of summary judgment in favor of an employer in a case involving claims of employment discrimination based on age and political affiliation. In Smith, a former superintendent of the City of Allentown's recreational bureau brought a lawsuit against his employer alleging that he was terminated from his position due to his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sections 621-34, and also due to his political affiliation, in violation of the First Amendment. In affirming the grant of summary judgment in favor of the employer on the ADEA claim, the court explained that the burden-shifting framework established in McDonnell Douglas Corp.v. Green, 411 U.S. 742 (1973), applies to claims under the ADEA. Applying that analysis to the facts of Smith, the court held that the plaintiff failed to produce sufficient evidence to establish that his employer's rationale for terminating him was a pretext for age-based discrimination. The court further held that the plaintiff failed to produce sufficient evidence to establish that he was terminated based on his political affiliation. In so holding, the court re-affirmed the principle that inadmissible hearsay statements may not be used to defeat summary judgment. (December 22, 2009)

In Building Owners and Managers Assoc. of Pittsburgh v. City of Pittsburgh, the Supreme Court of Pennsylvania addressed whether the City of Pittsburgh exceeded its power and violated the Home Rule Charter and Optional Plans Law (53 Pa. Cons. Stat. § 2962(f)) when it passed its "Protection of Displaced Workers Ordinance." The Ordinance applied to employers who provide janitorial, security or building maintenance services to large commercial buildings within the City of Pittsburgh who enter into new service contracts for that work. The Ordinance required that the new employer retain the employees of the prior contractor for at least 180 days. Because the Ordinance placed an affirmative duty upon contractors by requiring them to retain the employees of prior contractors, the Court held that the Ordinance exceeded the powers of the City of Pittsburgh as a home rule municipality. (December 28, 2009)

In Kirsch v. Public School Employees' Retirement Board, the Supreme Court of Pennsylvania addressed whether the inclusion of increased union-provided compensation artificially and impermissibly enhances or inflates retirement benefits under the Retirement Code, 24 Pa.C.S. § 8101, et. seq. Pursuant to § 8102 of the Code, a school employee granted a leave of absence to serve his or her union in an executive position is guaranteed the same compensation and benefits as if he or she remained in active, full-time service with the employing school district. While on leave, the appellants were compensated by their respective unions at a rate 44 percent to 55 percent higher than the amount they would have received had they continued their regular employment with the school district. The Pennsylvania Supreme Court affirmed the Commonwealth Court's holding that the statute only allows the salary corresponding with the position held at the school district during the approved leave to be credited to the retiree's retirement earnings. (December 15, 2009) 

In Slippery Rock Area School Dist. v. Unemployment Comp. Rev. Bd., the Supreme Court of Pennsylvania addressed whether a substitute school teacher was entitled to receive unemployment compensation benefits for the summer vacation period under Section 402.1(1) of the Unemployment Compensation Act, 43 P.S. §§ 571-914. Pursuant to Section 402.1(1), a teacher cannot receive benefits if she has a contract or a reasonable assurance that she will perform services during the next academic year. The Department of Labor and Industry promulgated a regulation, 34 Pa. Code § 65.161, defining when a teacher has a reasonable assurance that he or she will perform services during the next year. The court held that Section 65.161 was a valid legislative regulation, and held that a per diem substitute teacher was entitled to unemployment benefits because her day-to-day employment as a substitute teacher was not a "reasonable assurance" of her returning to work. (December 1, 2009)

In Carlson v. City of Hackensack, the Superior Court of New Jersey, Appellate Division addressed whether N.J.S.A. 40A9-165 allows a municipality to reduce a tenured municipal tax assessor's salary commensurate with a reduction in the number of hours worked. The Appellate Division found that N.J.S.A. 40A9-165 is clear and unambiguous, and held that it explicitly prohibits a municipality from decreasing the salaries of certain employees, including tenured municipal tax assessors. While N.J.S.A. 40A:9-146 permits a municipality to set the amount of weekly work hours of the tax assessor, it does not authorize the municipality, contrary to the prohibition contained in N.J.S.A. 40A:9-165, to reduce the assessor's salary commensurate with a reduction in hours worked. (December 1, 2009)

In Cobbs v. SEPTA, et. al., the Superior Court of Pennsylvania addressed issues arising from a failure to hire, race discrimination case. Among other things, the court discussed whether the Court of Common Pleas has jurisdiction over an appeal of a decision by the Pennsylvania Human Rights Commission (PHRC), and whether the trial court violated the coordinate jurisdiction rule. With respect to the appeal of a PHRC decision, the court held that only the Commonwealth Court has subject matter jurisdiction over an appeal of a PHRC decision. Regarding the coordinate jurisdiction rule, the court held that the trial court did not violate the coordinate jurisdiction rule when, after one judge denied the defendants' motion for summary judgment based upon a lack of subject matter jurisdiction, a second judge granted a motion for judgment on the pleadings in the defendants' favor based upon a lack of subject matter jurisdiction. "[W]here the issue of subject matter jurisdiction has been erroneously decided in a prior decision, application of the coordinate jurisdiction rule is inappropriate, as continuing the case would be clearly erroneous and amount to manifest injustice." (November 18, 2009) 

In Straley v. Advance Staffing, Inc., the Supreme Court of Delaware addressed whether the Superior Court erred in affirming a decision of the Unemployment Insurance Board (the Board), which held that a terminated employee was not entitled to a rehearing, and was discharged for "just cause." The terminated employee failed to appear at an appeal hearing before the Board even though a notice was sent to her address of record. She argued that she never received the notice, and was entitled to a rehearing. The Supreme Court affirmed the Superior Court's holding that the Board did not abuse its discretion in denying the rehearing. The court also held that there was substantial evidence in the record to support the Board's finding that the employee violated a known office policy (disclosing confidential information), and, thus, was terminated for just cause. (October 27, 2009)

In Best v. C&M Door Controls, Inc., the Supreme Court of New Jersey considered whether a defendant can seek fees under the offer-of-judgment rule (Rule 4.58) in a case involving the Conscientious Employee Protection Act (CEPA), the Prevailing Wage Act (PWA), or any other fee-shifting statute. The court held that a defendant cannot be awarded fees under the rule in cases involving these statutes. The court noted, however, that trial judges may take into account a plaintiff's unreasonable rejection of an offer of judgment in calculating a plaintiff's award under these statutes. (October 14, 2009)

In Healthcare Serv. Corp. v. Pollitt, the Supreme Court of the United States granted certiorari to address two questions. The first question is whether the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. §§ 8901-14, completely preempts a state court suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA. The second question the Court will address is whether the federal officer removal statute , 28 U.S.C. § 1442(a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] ... office," encompasses a suit against a government contractor administering a FEHBA plan, where the contractor is sued for actions taken pursuant to the government contract. (October 13, 2009)

In Elkadrawy v. The Vanguard Group, the United States Court of Appeals for the Third Circuit recently issued a decision regarding the effect of res judicata on successive employment discrimination cases under Title VII and 42 U.S.C. § 1983. The court held that the doctrine of res judicata barred an employee - whose Title VII lawsuit against his employer was dismissed for failing to file the action within the ninety (90) day time frame required by law - from bringing a successive discrimination lawsuit under 42 U.S.C. § 1983 where those claims could have been brought in the first lawsuit, and the "new" claims raised fundamentally similar issues against the same defendant. (October 6, 2009)

In Lewis v. Chicago, the Supreme Court of the United States granted certiorari to address a technical aspect of Title VII 's requirement that a plaintiff seeking to bring a claim of employment discrimination must first file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the unlawful employment practice. The Court will consider whether the EEOC charge must be filed within 300 days of the announcement of the practice, or whether a plaintiff is permitted to file the charge within 300 days of the employer's first use of the discriminatory practice. (September 30, 2009)