Impact of The Souza Settlement

So what does Dawnmarie Souza’s case against American Medical Response of Connecticut Inc. mean to Pennsylvania employers?  Most experts don’t think it will have much of an impact.  First of all remember than Souza was a union employee and a large part of the claims in her suit were that AMR violated the collective bargaining agreement.  Most of us don’t have collective bargaining agreements with our employers. 

The National Labor Relations Board’s website says that the Nation Labor Relations Act (NLRA) protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities.  Some examples of protected concerted include:

-       Two or more employees addressing their employer about improving their working conditions and pay

-       An employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions

-       Two or more employees discussing pay or other work-related issues with each other

-       Refusing to do any or all of these things

While an employee generally does not have a protected right to free speech when dealing with private employers, the NLRB tried to assert that Souza’s conversations with her co-workers on Facebook were in the nature of self-organization and collective bargaining.  Additionally as an "at will" employee, an employee can be fired for any reason as long as they are not fired based on race, age or other protected status.

In order for the same argument to be effective with a private employer, it is my opinion the NLRB will need to argue and prove that the Facebook postings were meant to initiate, advance, or discuss self-organization or collective bargaining otherwise it is not likely covered by the NLRA.  Nonetheless companies should periodically review their internet/social media policies to ensure that they are not overly broad.

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Can Your Facebook Posting Get You Fired?

Employee Fired For Facebook Posting “Wins” Lawsuit

The title of this posting is a little confusing to the average person but so is the case. 

Dawnmarie Souza, a paramedic for American Medical Response of Connecticut Inc., posted comments on her Facebook page on the same day she was suspended from work after refusing her supervisor, Frank Filardo's request to write up a report on a complaint about her own performance.   Souza Facebook remarks sparked supportive postings from her co-workers to which Souza responded with additional negative comments.  After the suspension, Souza was ultimately terminated.   Since Souza was a union employee she requested union representation which Management rejected.

The Souza case caught the attention of the National Labor Relations Board which claimed AMR “illegally terminated [Souza] who posted negative remarks about her supervisor on her personal Facebook page” and that the company “maintained and enforced an overly broad blogging and internet posting policy.”  Further contending that [Souza’s] Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provision, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in their right to engage in protected concerted activity.

AMR’s response was that Souza was terminated “based on multiple, serious complaints about her behavior” which included her negative Facebook postings related to her supervisor.

This case which some have called “groundbreaking” was scheduled for a hearing before an Administrative Law Judge on Tuesday, where the NLRB would have argued that Souza's firing was improper, in part because her Facebook postings about her supervisor, outside the workplace, were protected activities, even they were posted on the Facebook or the Internet.

Rather than participate in the hearing, AMR agreed to settle the case with Souza.  The terms of the settlement which have not been completely disclosed are reported to include payments to Souza and conditions she must meet as well as AMR’s agreeing to revise its "overly broad” policy regarding blogging, Internet posting, and communications between employees.  This position has obviously concerned many employers. 

Since Souza was a union employee, the legal community is questioning how this case will impact private employers in Pennsylvania.  My perspective … in the next blog.


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Am I Entitled to My Unused Sick Leave and Vacation Pay?

This is a common question asked by employees who have been terminated by an employer.  Sadly, there is no specific Pennsylvania law which requires an employer to pay an employee for sick leave, vacation pay or provide severance pay.  The employer only has an obligation to pay employees these benefits if the employer has a policy to pay such benefits or a contract with the employee to pay these benefits. If an employer has a handbook or written policy which provides for the payment of such benefits, the employer must follow its own rules for these kinds of payments. 

If you think you are entitled to be paid for these types of benefits you can:

a)    Personally request payment from your employer

b)    Electronically file a request for payment utilizing the Pennsylvania Department of Labor and Industry – Here’s a link to the fillable, submittable form  http://tiny.cc/pjrlawwage

c)    Institute a legal action under the Wage Payment and Collection Law, Act of 1961, P.L. 637, No. 329.

For more information on Employment Law, visit our website: www.LawOfficesofPeterJRusso.com

Saying Goodbye To Amber

For many of our clients, our receptionist Amber was the first and last person they saw when they visited our office.  Amber recently made the decision to move back to her hometown of Long Isand, New York.  Friday was her last day and she'll be missed by her co-workers as well as clients that came to depend on her.  We all wish her the best in her future endeavors and hope to see her again soon!

Most Common Tax Season Question:

Most Common Tax Season Question:

We frequently get asked which parent gets to claim a child on their taxes.  Communication is the first line of defense.  If the parents don’t discuss the matter and both parents file electronically, the one that files first will generally be accepted by the IRS.  The second return will be rejected because the child’s Social Security number will have already been used by that first return. 

If the second parent is entitled to claim the child, the rejected electronic return can be converted into a paper return and filed by mail.  If this is done, the IRS will start a review of both returns causing the IRS to review the relationship, age, residency; support, and joint return tests to determine if the child could be a qualifying child of more than one person.

While its possible for the child to be a qualifying child for more than one person, the IRS only allows one person to actually treat the child as a qualifying child.  Some or all of the following tax benefits could be available for the parent who can claim the child as a qualifying child:
• The taxable exemption for the child.
• The child tax credit.
• The ability to file utilizing head of household filing status.
• The ability to utilize tax credits for child and dependent care expenses.
• The exclusion from income for dependent care benefits.
• The claim an earned income credit

Since the “other parent” cannot take advantage of any of these benefits, if the parents can’t agree on which will use the “qualifying child” on their return, the IRS has established “Tiebreaker Rules” to determine which person can treat the child as a qualifying child to claim those tax benefits.

Some of the “Tiebreaker Rules” include:

If the child lived with both parents for the same amount of time during the tax year, the IRS will view the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for that tax year.
If neither parent can claim the child as a qualifying child, the child is viewed as the qualifying child of the parent who had the highest AGI for that tax year

If a parent can claim the child as a qualifying child but no parent actually does claim the child, the child is viewed as the qualifying child of the parent who had the highest AGI for that tax year, but only if that parent’s AGI is higher than the highest AGI of any of the child’s parents who can claim the child.

For more information, see IRS Publication 501

I Just Won The Lottery!!! Part 3

Well at the end of the last blog, we had a check for nearly $500k with no way to cash it.  Bank of America insisting it was real.  And a client demanding his money. 

I did everything I could to delay the "distribution" to my client when Bank of America called and said THEY made a mistake. 

The certified check was really drawn from the account on the check.
The certified check was really drawn from from the account holder listed on the check.
The certified check number was really used by that account holder.

BUT.... the certified check they had was drafted for less than $50 and "advised" me not to honor the check.  Hmmm....  but you just told me I could honor it... 

Well if the scam played it course, I would have deposited the BIG check and "kept" $300k for myself and sent the balance of about $200k to "my client" but when the bank realized the check was fake, I would have been responsible for the $200k that I sent out.  Well having caught the scammers red handed, I decided to help the authorities bring these bastards to justice. 

FBI said they really didn't handle that type of crime so call the Secret Service.
After weeks of phone tag with Secret Service they never did anything with it.
I called the local district attorney without real success.  The Attorney General didn't even feel they could or should do anything...

So we had all the proof, names, email addresses, physical addresses, phone numbers, the checks but no one really wanted to do ANYTHING... just allowed these scammers to find others who were less suspicious than I was ... and they almost succeeded - http://www.law.com/jsp/law/sfb/lawArticleFriendlySFB.jsp?id=1202475502267

I Just Won The Lottery!!! Part Two

So... yes, Mike Glaser was right... I immediately called the issuing bank and advised them that I believed the certified check that I received was a forgery.  My call was quickly dispatched to the security division of the bank and they asked me to fax over a copy of the check.  We faxed it over and quickly got a phone call confirming that the check was in fact a forgery.

Armed with this new information, I called my client and told them the bad news.  The client was shocked that the check was fake and insisted that I try to deposit it again.  I explained that while I nice thought, I would not even consider that option.  I told the client that we should immediately file suit against the deadbeat and collect our money the right way.  The client agreed and when I told them I would need about $1,000 to cover the "out-of-pocket" costs, they asked if they could try to get the other side to issue a new check.  I wasn't thrilled with the idea but agreed to give them the opportunity to "collect" their own money.

Within 24 hours I received an email from the deadbeat asking about the old check and why I thought it was a forgery.  After explaining why, I told them to issue a new check payable to me and Tom Corbett, the Pennsylvania Attorney General under the pretext that all checks of that size are to be run through the Attorney General's Office as a means to protect clients from money hungry attorney who might consider ripping off their clients. 

The deadbeats agreed and the next day I got a certified check from Bank of America again for nearly $500,000.  And yes, you are right, I was suspicious that this check, although written to Tom Corbett was also a fake. 

So I again contacted the issuing bank, Bank of America.  I faxed them a copy of the certified check.  Bank of America said the check was REAL....  I could deposit it without concern.  I insisted the check was fake.  Explained what happened with the earlier check and said there was no way this was real.  Bank of America insisted the check was real and I should honor it. 

As I was on the phone with Bank of America, the client was on another line leaving me a message that they heard I received payment and that they wanted their portion ASAP or else they would report me to the attorney disciplinary board. 

I asked Bank of America to send me something in writing - email or fax - saying the check was real and the funds were available.  Shortly thereafter I received a fax saying there was plenty of money in the account cover the check therefore I was again asked to honor the check.  I still had an uneasy feeling but I now had a real check made payable to the Attorney General of Pennsylvania with no way to deposit it and an angry "client" wanting their money....

Part III is next!!!