Pennsylvania Supreme Court Rejects Fluctuating Work Week Method

The PA Supreme Court ruled that the “Fluctuating Work Week” method of calculating overtime pay is not permissible under Pennsylvania law. Tawny Chevalier, et al. v. General Nutrition Centers, Inc., et al., Case Nos. 22 WAP 2018 and 23 WAP 2018 (Nov. 20, 2019), PA Supreme Court.

What is the Fluctuating Work Week Method?

Under the fluctuating work week method, non-exempt employees (entitled to overtime pay if they work more than 40 hours a week) who are paid a fixed salary regardless of hours worked are paid for all hours worked in a work week beyond 40 hours at half of their “regular rate” of pay.  That “regular rate” is determined by dividing the employee’s salary by the number of hours worked that week.  As a result, the regular rate of pay “fluctuates” depending on how many hours he or she works in a given week.  Therefore, under this method, an employee may be paid a half time rate for the overtime hours they work.

Is this Allowed?

In short, no.  Not in Pennsylvania.

While the Fair Labor Standards Act (“FLSA“), a federal statute, allows employers to use this method, the PA Supreme Court opinion holds that the Pennsylvania Minimum Wage Act (“PMWA“) does not.  The Court ruled that the fluctuating work week method, which allows employees to be paid at lower overtime rates the more hours they work, violates the PMWA’s requirement that employers pay overtime compensation of at least one and a half times an employee’s regular rate for all hours worked in excess of 40 hours in a work week.

While the FLSA establishes a “national floor” under which wage protections cannot drop, individual states may enact greater protections under their own laws.  The PA Supreme Court Opinion notes that the PMWA, despite being mostly modeled by the FLSA, is silent about whether the fluctuating work week method is permissible.  The PA Supreme Court chose to view this silence as an intent to reject the .5 multiplier utilized under the fluctuating work week method in favor of a 1.5 multiplier.  Thus, the Court rejected GNC’s use of the .5 multiplier for purposes of overtime pay calculation, affirming an earlier decision by the Pennsylvania Superior Court.

Posted by Taylor Gillan, a former associate with Feinstein Doyle Payne & Kravec, LLC.

CBD Products.

Hard-working Americans Across the Country Are Losing Their Jobs After Using CBD

CBD, or cannabidiol, is a chemical found in hemp that is being sold in a variety of forms.  Those products include pills, oils, creams and tinctures, and are promoted as having near-miraculous health benefits for a myriad of conditions.[1] Therefore, although cannabidiol is chemically similar to THC, the substance in marijuana that gets you high, CBD does not have the same psychoactive effects of THC.

Prior to 2019, all extracts of hemp, including CBD and THC, fell within the definition of marijuana and were illegal drugs under Federal Law.[2]   After Congress passed the Agricultural Improvement Act of 2018 (a/k/a 2018 Farm Bill), hemp-derived products that contain less than 0.3% THC were legalized, allowing them to be manufactured and sold nationwide.  However, despite claims that hemp-derived oils and CBD products sold legally contain less than 0.3% THC or may be “THC-Free,” many people taking CBD Products are failing their employer’s random drug tests.  Employees who have been reprimanded or terminated have been the subject of many news articles nationwide [3], and lawsuits have been filed against the companies who made the CBD for this and other reasons [4].

FDPK represents people who have been harmed after taking CBD products.  If you failed your employer or former’s employer’s drug test after using CBD Products, contact us for a confidential, free evaluation of any potential lawsuit you may have.  Ed Feinstein or Wyatt Lison would be pleased to speak with you.

_________________

[1]  The New York Times. October 16, 2019.  “What Are the Benefits of  CBD?” [https://www.nytimes.com/2019/10/16/style/self-care/cbd-oil-benefits.html]

[2] U.S. Drug Enforcement Administration.  “Clarification of the New Drug Code (7350) for Marijuana Extract”

[3]  Including:

• Arizona:  ABC Action News.  June 9, 2019. “Can Using CBD Products Cost Someone Their Job?“
• Illinois:  ABC 13 Eyewitness News. September 26, 2019 “School Bus Driver Warns of CBD Use After Failing Drug Test, Losing Job”
• Ohio:  WLWT5 News.  November 7, 2019. “Dayton Police Officer Dies Days After Being Shot While Serving Warrant”
• Texas: Fort Worth Star-Telegram.  September 19, 2019.  “Don’t Get Lost in the Weeds.  Using Legal CBD Products in Texas Could Cost You a Job”
• Utah:  2KUTV News.  GetGephardt Investigations.  November 6, 2019.  “Fired for CBD:  Employees Have Little Recourse If They’re Sacked for a Positive Drug Test”

[4]  Including:

• Just Brands USA.  Go By Truck Global News.  November 6, 2019. “Trucker Sues CBD Gummy Company After Losing His Job”
• Diamond CBD.  Cannabis Network News.  October 15, 2019.  “Diamond CBD Sued in Class-Action Lawsuit for Mislabeled CBD Products”
• Hemp Bombs. The National Law Review. September 30, 2019. “CBD Industry Beware: The False Labeling Class Action has Arrived”
• Dixie X. Transport Topics. December 20, 2018.  “Fired Truck Driver Sues Cannabidiol Company After Using Product”

Class Action Settlement – Short, et al. v. Churchill Benefit Corporation/Yurcor

Daniel Short, et al. v. Churchill Benefit Corporation dba Yurcor; Framestore, Inc.; Richard McCann; and Mark Ticar

Case No. 1:14-cv-04561

United States District Court for the Eastern District of New York

Bill Payne and Pamina Ewing are pleased to announce that the court has approved the class action settlement in Short, et al. v. Churchill Benefit Corporation, et al.   Following a May 23, 2017 hearing, the court found the settlement to be fair, reasonable and adequate; certified the class for settlement purposes; and that the attorneys’ fees are reasonable.

FDPK and its co-counsel, The Brualdi Law Firm, P.C., Grebow & Rubin, LLP, and Schwartz, Steinsapir, Dohrmann & Sommers, LLP, represent Mr. Short and employees of Churchill Benefit Corporation dba Yurcor and Framestore, Inc.  The class action alleged that the employers did not properly communicate the pay rate for Yurcor employees and as a result they were not paid their full pay rate and were improperly misclassified as independent contractors.

The Settlement Class is defined as follows:

The Settlement Class shall include all individuals who worked as an Artist for or through Yurcor at Framestore in the State of New York during the time periods specified below and who were paid for services rendered to Framestore by Yurcor and who had what has been termed “Administrative Overhead” costs deducted from their pay. The Settlement Class Period shall commence six (6) years prior to July 30, 2014 and continue through the date the Court grants preliminary approval of the Settlement (February 10, 2017).

Click here to review the Memorandum & Order of Preliminary Settlement Approval.

Recover Unpaid Wages – Workers Owed Wages

This summer the federal government launched an online tool called Workers Owed Wages (“WOW”) to help thousands of workers to recover unpaid wages.

The United States Department of Labor’s Wage and Hour Division (“WHD”) investigates violations of minimum wage and overtime laws by employers. When the WHD finds violations – such as an employer paying its workers less than $7.25 per hour or not paying time-and-a-half for working more than 40 hours in one week – the government often may recover unpaid wages on behalf of these employees. In 2014, the WHD recovered over $240 million owed to more than 270,000 workers nationwide.

In many circumstances, it is easy for the WHD to distribute the recovered wages to the rightful employees.  But employees in certain sectors of the economy (like agriculture and fast food) are often more difficult to track down because their employment is temporary, seasonal, or short-lived, which is why the WHD developed WOW.  A worker who believes that he or she is owed back wages collected by the WHD may search the database to recover unpaid wages by answering a series of simple questions in English or Spanish to find out if the government is holding unpaid wages collected on the worker’s behalf.

The WHD reports that “[I]n California alone, there are approximately $14 million dollars waiting to be collected by some 21,000 workers.  And there are many millions of dollars in back wages still waiting to be collected by workers nationwide.”

Since its launch earlier this year, WOW helped workers to recover unpaid wages totaling more than $800,000.

Workers should check the WOW database sooner rather than later because, after three years, the law requires WHD to send the uncollected money to the U.S. Treasury, where it can be spent by the government.

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.

Victory in One Federal Appeals Court for Employees with Temporary Disability

A 2014 decision by the Fourth Circuit of Appeals  (Summers v. Altarum Institute, Corporation, No. 13-1645 (4th Cir. Jan. 23, 2014)) found that an employee’s temporary condition may be considered a disability.  

In October 2011, Carl Summers, a statistical analyst for Altarum (a government contractor), fell as he was getting off a train.  He broke bones and tore tendons in both legs and needed surgery.  His doctors told him he would not be able to put any weight on his legs for at least six weeks. Doctors also estimated that it would be seven months before Summers could walk normally again.

Summers called Altarum’s HR Department from his hospital bed to ask about temporary disability (short term disability) benefits.  He also asked about working from home. The HR employee suggested that Summers should focus on getting well and that he could discuss accommodations for his temporary disability at a later time. Summers also contacted his supervisors to discuss working from home.  No one at the company ever followed up on his requests and in November Altarum fired Summers.  His position was filled by another analyst.

Summers sued Altarum, claiming that he was discriminated against because of his temporary disability in violation of the Americans with Disabilities Act (“ADA“). Congress enacted the ADA in 1990 to prevent discrimination of people with physical and mental disabilities in employment and other areas of life (education, public transportation, etc.)

According to the ADA, if an employee or applicant is otherwise qualified to do a job, the employer is required to make reasonable accommodations for a physical or mental impairment which greatly limits a major life activity (for example, breathing, walking, hearing, etc.) unless the accommodation would cause an “undue hardship for the employer.”

In order for the ADA to apply, the employee must inform his employer of the temporary disability. The employer and employee must then have a conversation (called “the interactive process”) to determine what kind of reasonable accommodations would be helpful and are available. An employer cannot take action against the employee (such as terminating or demoting) just because of the temporary disability and the employer does not want to be inconvenienced by offering an accommodation.

After the Supreme Court held in 2002 that a temporary disability due to injury or illness could not be considered a disability under the ADA, Congress amended the ADA in 2008 to expand the definition of “disability.” The Equal Employment Opportunity Commission “EEOC” (the government agency responsible for enforcing federal anti-discrimination laws) issued regulations stating that, for purposes of proving disability under the ADA, “an impairment lasting or expected to last fewer than six months can be substantially limiting.”

In Summers’ case, the lower court judge ignored the change in the ADA and the EEOC regulations.  That court found that Summers was not disabled because his injuries were temporary and he was expected to heal within one year.  That court concluded that Altarum had not violated ADA when it fired Summers.

Summers appealed the decision to the Court of Appeals for the Fourth Circuit, which reversed the lower court’s ruling.  The Appeals Court found that, under the ADA amendments and the EEOC regulations, even if an impairment is short-term it may qualify as a disability if it is “sufficiently severe.”  The Appeals Court concluded that the extensive injuries Summers suffered to both his legs could be considered “sufficiently severe” to justify protection under the ADA as a temporary disability. The Appeals Court sent the case back to the trial court for further litigation pursuant to this finding.

Congress passed two major laws that include major protections for whistleblowers:
 

In 2002, Congress passed the Sarbanes Oxley (SOX) Act, which protects whistleblowers who report securities laws violations.

In July 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

 
Dodd-Frank amended SOX in several respects, significantly enhancing the protections available to whistleblowers in the financial services industry.
 
Dodd-Frank, which applies to both public and privately held companies, states that an employer cannot retaliate against an employee for revealing any information that is protected or required under SOX; the Securities Exchange Act of 1934; and any other law, rule or regulation subject to the jurisdiction of the Securities and Exchange Commission.
 
Dodd-Frank also protects employees who report truthful information relating to federal crimes.  An employee who wins their case may receive up twice the amount of wages they lost due to retaliation, as well as attorneys’ fees.   Dodd-Frank also allows for a whistleblower to receive cash awards of 10% to 30% of amounts that the SEC recovers based on the whistleblower’s report.
 
There are many important considerations in any whistleblower case.  We can assist you to make decisions and help you through this technical and complex area of the law.
 
If you have questions about your rights under the Whistleblower Anti-Retaliation Laws or SOX/Dodd-Frank, please call us at 412.281.8400 or use our contact form.

Feinstein Doyle Payne & Kravec, LLC fights for the rights of people who “blow the whistle” on illegal conduct at work and then are fired or otherwise retaliated against.

Employees are often in the best position to witness and report unsafe or unlawful conduct in the workplace.  Federal and state laws often protect whistleblowers and encourage them to report wrongdoing.

Not all whistleblowing employees are protected, so it is very important to seek advice from an attorney before you tell a supervisor or government agency about:

(1) a violation of a law or regulation;

(2) a danger to public health or safety;

(3) an abuse of authority;

(4) gross mismanagement; or

(5) a serious waste of funds.

 
You do not have to be absolutely certain about the misconduct in order to be protected from retaliation but you do need to have a good-faith, reasonable belief about what you are reporting.  There may be time limits on when and how to bring your claims, so it is best to promptly seek legal assistance.

If your employer takes action against you for blowing the whistle, you may be able to recover back pay for wages and benefits lost due to retaliation, as well as other types of damages to compensate you.  In some cases, whistleblower protection laws also provide for punitive or exemplary damages, which are intended to punish the wrongdoer and to keep others from similar misconduct.  Most whistleblower protection laws allow for the employee who reports the wrongdoing to recover litigation costs, including attorneys’ fees.

There are many important things to consider in any whistleblower case.  We can help you to make decisions about what you should do.

If you have questions about your rights under the Whistleblower Anti-Retaliation Laws, please call us at 412.281.8400 or use our contact form.

Feinstein Doyle Payne & Kravec, LLC represents individuals in lawsuits under the federal False Claims Act (“FCA”), in what are sometimes called  “qui tam” cases.

If you know that your employer is cheating the federal government (and in some instances cheating  state or local governments) or misusing government funds, you may be able to sue on the government’s behalf under the FCA.  (This is why such cases are also called “qui tam” actions, an abbreviation for a Latin phrase meaning, “[he] who sues in this matter for the king as [well as] for himself.”)

The FCA applies to many different types of fraud against the government.  Conduct that violates the FCA may include:

• billing the government at inflated prices;
• seeking payment for goods or services that were not actually provided
• bribing someone in order to obtain a government contract;
• using federal grant money for personal benefit; and
• overbilling Medicare or Medicaid.

A significant reward is  available to the persons (not the lawyers)  who bring qui tam cases. This reward could be a percentage of the money recovered for the government.  Millions of dollars have been awarded to people who have stepped forward to bring successful FCA suits.

The law provides protection for those that speak up.   If an employer punishes or fires an employee for reporting the employer’s wrongdoing under the FCA, the employer may have to pay damages to the employee and/or give the employee’s job back.  The employer may also have to pay for the employee’s lawyer.

There are many important things to know in any FCA case.  We can help you to make decisions and guide you through this technical and complex area of the law.
If you have questions about your rights under the FCA or Whistleblower Anti-Retaliation Laws, please call us at 412.281.8400 or use our contact form.