PennDOT Defendants Not Immune to Suit for Unpaid Wages

Feinstein Doyle Payne & Kravec, LLC won a significant legal victory on October 7, 2016 when its opposition to Defendants’ motion to dismiss carried the day in an unpaid wages class action against PennDOT (Williams, et al. v. Richards, et al., Case No. 2:16-cv-00525).

The ruling by Chief Magistrate Judge Maureen P. Kelly (PennDOT Opinion) sided with the brief in opposition authored by FDPK Partner Pamina Ewing, finding that Defendants were not entitled to immunity from suit under the Eleventh Amendment because they had been sued in their individual capacities.

Ms. Ewing, along with FDPK Partners Edward J. Feinstein and Deborah K. Marcuse and co-counsel Kevin W. Tucker of the Darren K. Parr Law Firm, represents the Plaintiffs in Williams, a group of PennDOT employees who brought a class action for unpaid wages under the Fair Labor Standards Act against four PennDOT officials.

“We’re gratified that the court has made clear that defendants can’t shield themselves from paying these state employees for the overtime they legitimately worked by claiming immunity under the 11th Amendment,” said Ms. Marcuse, quoted in a Law360 article by Dan Packel. “Plaintiffs are now prepared to go forward with proving their case.”

Click here to review the complete Law360 article (subscription required): https://www.law360.com/employment/articles/849476/penndot-officials-not-covered-by-11th-amendment-judge-says

If you have questions about whether you are owed unpaid wages, please contact Ed Feinstein or Deborah Marcuse.

EEOC ISSUES FINAL RULES ON EMPLOYER WELLNESS PROGRAMS

May 17, 2016.  The EEOC issued final rules on the administration of employer wellness programs.  The rules address the relationship between the Genetic Information Nondiscrimination Act (GINA) and the obtaining and use of genetic information in employer wellness programs.  The final rules are effective July 18, 2016, but will only be applicable to employee benefits plans on January 1, 2017.

Questions and Answers regarding the new final rules were published by the EEOC:

• Wellness ADA Rule
• GINA Rule

Employer wellness programs are health promotion and disease prevention programs and activities offered to employees as an employment benefit — either as part of an employer health plan or as separate benefits. Wellness programs commonly ask employees to fill out questionnaires about their health and risk factors.  These questionnaires are often called “health risk assessments” or “HRAs.”

Wellness programs also often include biometric screening for health risk factors, including blood testing for diabetes or high cholesterol, and blood pressure tests for high blood pressure.  Other employer wellness programs may be educational, such as to provide information about healthy nutrition and eating habits; or may be designed to change unhealthy behaviors such as tobacco use.  They may also be inspirational to develop a healthier-at-work environment.

Employee advocates were concerned that the proposed employer wellness program rules would allow employers to discriminate against disabled employees. The final rules answer a number of questions regarding the relationship between the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA):

1. The ADA’s “safe harbor” provision, which allows health insurers and plan sponsors (including employers) to collect health information related to risk, does not apply to employer wellness programs.  Employers may not seek information related to insurance premiums and insurance rate-making as part of their offering of wellness programs.
2. Employers and those administering a wellness program may ask employees about their disabilities and ask other medical questions as long as the programs are “reasonably designed to promote health or prevent disease.”  This means that wellness programs may use HRAs and biometric screenings as long as the results of the information gathered is only used to help design programs to promote health or to prevent disease.  The information collected may not be used against individuals.
3. The good news is that an employee’s participation in a wellness program must be “voluntary.”  This means the employer may not require any employee to participate in the program.  An employer may also not deny health coverage to an employee who refuses to participate in a wellness program.  The employer also may not take any other adverse action against the employee for not participating, however, that does not mean that there cannot be significant financial consequences to employees who refuse to participate in wellness programs.
4. The bad news is that the EEOC’s final rule allows employers to use “incentives” of up to 30% of the total premium related to an employee’s individual health coverage without the premium assessment being considered as making participation in the wellness program not voluntary.  The “incentives” for tobacco cessation programs may be as high as 50%.  This means that an employee who refuses to participate in a wellness program may end up paying as much as 30% of the total premium charged for the employee’s health coverage and an employee using tobacco may end up paying as much as 50% of the total premium.  These “incentives” may be used not only for employer sponsored coverage but also for coverage under the ACA (“Obamacare”).
5. The Wellness ADA Rule adds two new requirements designed to protect employee privacy.  First, the employer or wellness program may receive information collected by a wellness program, but only in a combined form. This means that this information may be considered for the group without giving the identity of specific individuals “except as is necessary to administer a health plan.”  Second, an employer may not require an employee to waive confidentiality or agree that the employee’s information may be used or shared as a condition of participating in the wellness program.  This second requirement addresses any concern that wellness programs may collect data about individual employees and then sell this private health information without the employee’s consent.

The Wellness/GINA rule uses the same definition of a wellness program, and the same requirements for a wellness program to be “reasonably designed to promote health or prevent disease.”  This final rule allows an employer to ask for current or past health status information about an employee’s spouse as long as there is an inducement to participate.  Inducements to spouses may be offered in all welfare plans.  The inducements may be up to 30% of the cost of the plan. Refusal to participate in a wellness program by a spouse may not be used to deny access to health insurance or benefits if the spouse refused to provide health status information.

The new rules should reduce concerns employees may have had regarding wellness programs.  They will still have a significant effect on employees’ and spouses’ participation in wellness programs.  If the result of not participating is that the employee or the spouse has to pay up to 30% of the costs of health coverage, many employees and their spouses will not be able to afford to not participate in the programs.

This is a summary of complex information in the new rules.  If you have questions about whether your employer’s wellness plan violates the EEOC rulings, you may contact Deborah Marcuse or Ellen Doyle at Feinstein Doyle Payne & Kravec, LLC.

New ADA Resource

May 10, 2016.  The EEOC issued a new ADA  covering what employers owe disabled employees under the Americans with Disabilities Act.

The new publication “Employer Provided Leave and the ADA” highlights several points we believe all disabled employees need to know.

First, the ADA may require your employer to offer you a reasonable period of unpaid leave above and beyond what it offers to non-disabled employees. Most of our clients recognize that an employer cannot deny them benefits that it offers to non-disabled employees.

What many disabled employees don’t know is that if an extended period of unpaid leave is the one thing that would permit a disabled employee to keep her job (for example, three weeks off in order to complete a cycle of chemotherapy), the employer must provide that leave unless it can demonstrate that doing so would be an “undue hardship.”

Factors that may be considered to determine whether an employer has shown that a proposed accommodation would be an “undue hardship” include:

• the amount of leave required
•  the frequency of leave
• the flexibility of leave (whether it could be taken on different days)
• the impact of leave on co-workers or the employer’s operations

Second, an employer may not retaliate against a disabled employee for making use of additional unpaid leave, or any other “reasonable accommodation.”  Many of our clients may not realize that illegal retaliation under the ADA could include an employer deciding not to promote a disabled person because she took a period of unpaid leave, or telecommuted for several months, as a reasonable accommodation for her disability under the ADA.

Third, an employer may violate the ADA by forcing an employee to be “100% healed” before she returns to work. For example, if a disabled employee would be able to return from a period of unpaid leave if she were permitted to work from home half time as a reasonable accommodation, the employer must permit her to do so unless it can show independently that permitting her to work from home would cause it “undue hardship.”

If you are concerned that your employer is not properly accommodating your disability, please contact Edward Feinstein or Deborah K. Marcuse for a confidential consultation.

Posted by Deborah K. Marcuse.

SCOTUS Decision Impacts Workers’ Rights

The US Supreme Court stood up for workers’ rights in its March 22, 2016 decision in Tyson Foods, Inc. v. Bouaphakeo, et al.  Writing for the majority, Justice Anthony Kennedy confirmed that class action plaintiffs may prove their case using statistical or “representative” evidence.

This decision is very important for workers’ rights.  Employers sometimes do not pay workers for time they spend “donning and doffing” (putting on and removing) protective gear.  Nurses, factory workers, environmental workers and others often use protective gear.  If an employer does not keep records of unpaid work time, the workers would not be able to recover the pay they are owed.  This Supreme Court decision helps workers to prove their claim by using statistical or representative evidence.

In Tyson, the plaintiffs were employees at the defendant’s meat-processing plant.  These workers claimed that they were not paid for time they spent putting on and taking off protective gear that was necessary to safely perform their job.  Since their employer did not keep records of the time spent putting on/taking off protective gear, the plaintiffs hired an expert to observe some employees to determine the average time spent putting on/taking off their protective gear.  The defendant argued that plaintiffs could not use this sample to prove their claims on behalf of a class of similarly situated workers at the plant.

The Supreme Court found that the Federal Rules of Civil Procedure (the rules that govern civil procedure in US district courts) do permit the plaintiffs’ use of the sample to prove claims on behalf of the class.  This decision is positive for workers’ rights throughout the United States.

The Court explained that, in this case and in many cases involving unpaid wages, it was proper to use the statistical sample to prove claims on behalf of a class.  Otherwise, the Court noted, the failure of the employer to maintain time records would exclude any worker at the plant from proving their claims and recovering wages. An individual worker could use this type of evidence to prove their claim and the Court found that the same evidence may be used to prove class claims.

In this ruling, the Court also clarified that one of its previous rulings regarding workers’ rights (the 2011 Wal Mart v. Dukes decision) did not prohibit the use of statistical sampling to prove class actions, as some employers had mistakenly argued.

Click here to review the Tyson v. Bouaphakeo opinion.

If you are concerned that your employer may not be paying you for all the work that you do, please contact Edward Feinstein or Deborah Marcuse for a confidential consultation.

Posted by McKean Evans.

The Department of Labor is Unresolved About Overtime and Electronic Devices

September 18, 2015.  The Department of Labor (DOL) is scrambling to update its policies regarding what constitutes compensable work to reflect how to handle overtime and electronic devices.

Digital labor culture is rapidly changing.  Personal electronic devices have dramatically transformed the way we do — and often cannot stop doing — our jobs. We get home from work, start up our smartphones, and then refresh our office email inbox or cast a glance at our company’s Facebook page.  We complete a bunch of seemingly insignificant, one-off tasks on our synced electronic devices.  The time spent on our electronic devices can add up quickly.

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There have been lawsuits against companies like Verizon and T-Mobile for asking their employees to keep working remotely on electronic devices after hours.  (See West v. Verizon Communications, Inc., (M.D.Fla. Sept. 10, 2009), and Agui v. T-Mobile USA Inc., (E.D.N.Y. July 10, 2009)).  Now, the big question the DOL must answer is:  When do those tasks completed on electronic devices become significant enough to be deemed work-related and thus, compensable?

In June, the DOL announced that it was to issue a request for public information on the topic of overtime and electronic devices by the end of August.  It’s been more than three months now, and no formal request has been issued.  The DOL just cannot seem to make headway on this complex issue.  The main challenge is determining what electronic devices use will count as compensable time under the FLSA for minimum wage and overtime purposes, and how to count it; versus what use is truly insignificant, or “de minimis,” in legal terms.

Once the DOL finally adopts and then publishes a rule, employers’ policies may have to change in ways that will not only affect our jobs, but also our relationship with our electronic devices (cell phones, tables, and laptops).

Companies may require their employees to limit their work-related electronic devices usage away from the workplace to avoid overtime for which they have not budgeted. Employees may have to carefully track and claim their digital overtime.  Managers and supervisors may have to monitor their off-hours communications with employees who are not exempt from FLSA overtime requirements and to set “electronic curfews” for their electronic devices.

So, is this the end of the “electronic leash,” or just the beginning of a more rewarding one?

If you believe that you are not being fairly compensated for overtime hours that you have worked, please contact FDPK’s employment lawyers.  Ask for Ed Feinstein or Sarah Martin.

Posted by Ed Feinstein.

California Uber Ride Sharing Service Drivers Win Certification

On September 1, 2015, a California federal court granted class action status in a case against Uber, a popular ride sharing service. The class action lawsuit, O’Connor, et al. v Uber Technologies, Inc., et al., is pending before Judge Edward M. Chen in the United States District Court of California.

Click here to review the decision:  Uber Class Action Ruling

Uber ride sharing service drivers alleged that Uber improperly classified them as “independent contractors” when they were actually employees.  Determining whether you are an independent contractor or an employee is very important.  The law gives employees many legal rights that independent contractors do not have.

If the Uber ride sharing service drivers are determined to have been employees, their employer would be required to pay payroll taxes; to apply minimum wage and overtime laws; and to pay Social Security taxes, workers’ compensation and unemployment insurance.

The court’s decision does not mean that the court has decided whether the Uber ride sharing service drivers will be successful in their lawsuit.  The ruling means that the lawsuit may continue as a class action on behalf of all Uber ride sharing service drivers.

This class action certification may also set a precedent as Lyft, a competing ride sharing service, faces a similar class action.

If you are concerned that your employer has classified you as an independent contractor and you believe that you should be classified as an employee, please contact our employment lawyers, Ed Feinstein or Sarah Martin.

Posted by McKean Evans.

Paid Sick Days – Pittsburgh City Council Passes Paid Sick Days Act

On August 3, 2015, Pittsburgh City Council passed an ordinance requiring most employers within the city limits to give their workers paid sick days. Employees will be able to use the paid sick days to treat their own illnesses or injuries or to care for a sick family member.

If Mayor Peduto signs the bill into law, which he is expected to do, employers with 15 or more employees will have to offer their workers at least five paid sick days a year. Employers with fewer than 15 employees will have to provide three sick days a year. Employees will accrue one hour of sick leave for every 35 hours worked and can use the sick leave after working for three months.

Employees on paid sick leave will receive their normal rate of pay, and the ordinance contains an anti-retaliation provision to punish employers who discriminate against employees for utilizing their paid sick days. An employer can be fined $100 for each violation of the ordinance.

Seasonal workers and employees state and federal employees are not covered by the law.

If the Mayor signs the Paid Sick Leave Act, it won’t go into effect for several months. In that time period, the city’s Law Department expects the Act to be challenged in court by local businesses.

Click to review City of Pittsburgh File No. 2015-1825 – Ordinance supplementing the Pittsburgh Code, Title VI, Article 1, to add a new Section 626, “Paid Sick Days Act.”

If you work in Western Pennsylvania and believe you are being discriminated against by your employer because of a disability, please contact FDPK’s employment lawyers. Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin, August 5, 2015.

EEOC Holds that Sexual Orientation Discrimination is Illegal Under Title VII

On July 15, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued an historic administrative decision stating that sexual orientation discrimination by an employer is illegal under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Click here to review the decision:  EEOC Sexual Orientation Discrimination Decision

The EEOC’s decision states that if an employer makes an adverse employment decision on the basis of an employee’s sexual orientation, the employer is violating the Civil Rights Act.  Sexual orientation discrimination is a type of sex discrimination, and is explicitly prohibited under Title VII. “[S]exual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”

The EEOC provided a simple hypothetical situation to explain its position:  A lesbian female employee and a straight male employee both display pictures of their wives on their desks.  If the employees’ boss suspends the woman because she had the photo on her desk, but does not do the same to her male co-worker, she may allege a charge of discrimination by claiming that her boss wouldn’t have suspended her if she were a man with a wife.

While the administrative decision provides clear insight into the EEOC’s interpretation of Title VII, at this time the decision is not binding on any claim made by non-federal employees.  Nonetheless, courts may likely be persuaded by the EEOC’s decision when considering the discrimination claims of private sector employees.

If courts do adopt the EEOC’s interpretation of sexual orientation discrimination, this decision should come as a relief to LGBTQ residents of Western Pennsylvania.  Until this decision, no federal or state law made it illegal for employers to fire, harass, or refuse to hire LGBTQ workers on the basis of their sexual orientation.

The City of Pittsburgh and Allegheny County, along with several other Eastern Pennsylvania municipalities, have had local Human Relations Acts in place for several years that prohibit this type of discrimination against workers. Now, through the EEOC, LGBTQ residents of Westmoreland, Fayette, and Beaver Counties (to name just a few) have a way to fight workplace sexual orientation discrimination.

If you are employed in Western Pennsylvania and believe you are being discriminated against by your employer because of your sexual orientation, please contact FDPK’s employment lawyers.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin, July 27, 2015.

Independent Contractors:  California Labor Ruling that Uber Driver is an Employee

June 19, 2015. The California Labor Commissioner issued a decision earlier this month stating that an Uber Driver is not an independent contractor.  The decision awarded reimbursement of business expenses to an Uber Technology driver.  Click here to review the Labor Commissioner’s Decision.

California law requires employers to reimburse employees for business expenses incurred while working.  Independent contractors are not reimbursed for business expenses.

Uber is an American transportation company that connects customers who need rides with a fleet of drivers through a mobile app.  The Uber mobile app allows consumers to submit a trip request which is then routed to drivers.  Uber claims to be less expensive and more efficient than a traditional taxi or car service. Services are paid via credit card when customers register for an account.

Uber classifies its drivers as independent contractors.  However, according to the recent decision by the California Labor Commissioner, Uber would not exist without its drivers.  In addition, because the company is “involved in every aspect of the operation,” the drivers meet the traditional legal standard of an employee and are not independent contractors.

On June 17, 2015, Uber appealed the California Labor Commissioner’s decision to the Superior Court of California. If the court affirms the Labor Commissioner’s decision, the door has been opened to Uber drivers to demand not only business expense reimbursement, but also payment of overtime and compensation for their work at the hourly minimum wage level.

If your employer has classified you as an independent contractor, but you feel that you do the work of an employee, please contact the employment lawyers at Feinstein Doyle Payne & Kravec, LLC.  Ask for Ed Feinstein or Sarah Martin (412-281-8400).

Posted by Sarah Martin.