10 Thinks I Think I Think....

In no particular order:

1.       I recently read a Realtor suggesting … Do not turn anyone away from an Open House, especially nosy neighbors. Turn the tables and invite them!  Hmmm… How does that help sell YOUR house?  You’re right it doesn’t but it helps the Realtor market themselves.  Should you get a referral fee for the clients they get as a result of YOUR Open House? 

2.       If employers can say that you need at least a college diploma to apply for a job, why can’t the NFL and NBA require the same before an athlete can participate in the draft?

3.       Speaking of professional sports, when was the last time that YOU were able to renegotiate a contract BEFORE it was over?  I am sure Verizon would love it if you called them to say, Hey If you don’t charge me less, I am going to break my contract, sit out and not use my cell phone for the next year … Those who know me, know that could NEVER happen in my world.



4.     Charlie Sheen’s publicist resigned???  What a missed opportunity in my mind.  I saw it as a win-win.  If the guy gets back to his old self, the publicist will be able to taut their skills.  If Charlie keeps acting like he had Two and a Half brain cells, the publicist can say no one could have helped him but we stuck by him.

5.       Kindle  and the Kindle Store will make many writers who can’t get publishing deals a lot of money.  Sells books for a couple of dollars, writers will make money on readers looking for a “deal.”  E-books cost nothing to publish, print or store and the author typically gets more than half of the sales price.  Do the math.

6.       I think the United States Supreme Court missed the boat on the Matthew Snyder / Westboro Baptist Church decision.  While I understand the First Amendment is meant to protect free speech, I would have hoped the Court would have made some exception for the funerals of persons who died in the defense of our country.    I’m not likely to be appointed to the bench anytime soon.

7.       I think people take this end of the world thing too far.  They want to latch onto something.  Wait… Maybe this is a marketing angle I didn’t think of.

END OF THE WORLD ESTATE PLANNING SPECIAL

NOW THROUGH DECEMBER 1, 2011

ALL OF YOUR ESTATE PLANNING DOCUMENTS FOR THE LOW, LOW PRICE OF $5,000

REMEMBER…. YOU CAN’T TAKE IT WITH YOU!!!

*So You Might As Well Give It To Me

8.     NCAA Pools… Crime or Just Good Old Fashion American Fun?  There is a trinity among even the most abstinent gamblers, weekly football pool picks, Super Bowl Boxes and – yes –  The standard NCAA Tournament bracket pool.  The FBI estimated at $2.5 billion in wagers will be placed during the NCAA Tournament.  Only a small percentage will be placed legally so…  does the government really have that much time on their hands that they need to bust up office pools?  Some people have analogized it to speeding. Depending on how bad you break the law is almost determinative of whether the law is going to break you!  By the way…  Can you employer fire you for organizing a NCAA Pool…. Hmmm…  I would say so…

9.       Privatizing Liquor Stores in Pennsylvania will not result in an overall positive experience for the consumer.  Our PLCB has AMAZING buying power and with that buying power comes the ability to demand a below market purchase price.  Those savings are passed along to the consumer in PA.  People often moan and groan about the limited selection – got me there – but is everyone willing to pay a lot more so that the store will get your favorite wine or vodka?  A bottle of my favorite Grey Goose cost me over $90 in a NY liquor store.  When I questioned it, the clerk said because the stores are individually owned, they had no buying power  and actually paid more, wholesale, than we pay retail for the same bottle.  

10.   NFL Lockout… Ugh… Where do I start…  How about here – DON’T DO IT!!!  Scab Football will be a disaster.  A delayed or locked out season will lead to more injuries than an 18 game season! 

Just DON’T do it!

www.PJRLaw.info
www.PJRLaw.com
www.LawOfficesofPeterJRusso.com

Third Parties MAY Have Right to Claim Retaliation

In a unanimous decision written by Justice Scalia, the U.S. Supreme Court has ruled that some third parties can sue their employers for retaliation.  Eric Thompson who was allegedly fired because his fiancée, Miriam Regalado filed a claim against their employer, North American Stainless with the Equal Opportunity Employment Commission (EEOC) was permitted to sue North American Stainless for retaliation.   Thompson was treated as an "aggrieved person" who falls within the allowable "zone of interests."

Eric Thompson and Miriam Regalado both worked for North American Stainless and were engaged and their engagement was common knowledge among other employees.  In 2002, Regalado filed a complaint with the EEOC claiming that North American Stainless had discriminated against her, based on gender.  The EEOC notified North American Stainless of Regalado’s claims in February of 2003.

Thompson was fired about three weeks later.  Thompson alleged that his firing was due to Regalado's complaint of discrimination.  North American Stainless asserted that it terminated Thompson due to poor job performance.

Thompson filed a separate complaint with the EEOC claiming a retaliatory discharge under Title VII of the Civil Rights Act.  The EEOC determined that there were reasonable grounds for the complaint to move forward because Thompson was an "aggrieved person" under the law.   North American Stainless challenged the EEOC’s decision.

Thompson argued that Title VII prohibits retaliation and allows a third party to sue an employer directly for damages.  Contrarily, North American Stainless argued that Thompson lacked standing to sue.

The trial court awarded summary judgment to North American Stainless saying that Thompson didn't fit within the class of persons Congress intended to protect by statute.  Thompson’s appeal to the Sixth Circuit Court was unsuccessful as the Sixth Circuit Court affirmed the lower court's ruling reasoning that the Court did not believe that Thompson was engaged in a protected activity.

In his appeal to the U.S. Supreme Court, the Supreme Court determined that plaintiffs have standing to sue if they fall within the "zone of interests" sought to be protected by the law in question.  This test permits a right of review unless "the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."  Thompson, was an employee of the employer and the purpose of Title VII is to protect employees from unlawful actions of employers.  Utilizing this analysis, the Court said Thompson was entitled to be treated as an "aggrieved person."

Justice Scalia reasoned that firing Thompson "was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her... He is a person aggrieved with standing to sue."  Justice Scalia called Thompson "collateral damage."

www.PJRLaw.info

www.PJRLaw.com

www.LawOfficesofPeterJRusso.com

Unemployed Treated Disparately???

The Employment Opportunity Commission seems to have a lot of time on its hands.  The EEOC has decided to look into if companies may be excluding job applicants simply because they don’t have jobs.  EEOC Commissioners stated at a hearing this week that they are investing whether excluding unemployed applicants from applying for a job could have a greater effect minorities.

The EEOC noted that the overall unemployment rate is 9% equating to nearly 14 million people out of work. As compared to the general population, the unemployment rate is higher among percent among Blacks and Hispanics, 15.7% and 11.9% respectively.

So a friend asked what I thought about this.  Was the EEOC serious?  While it’s seems that the EEOC DOES have too much time on their hands, notwithstanding that, it is true that the racial discrimination cases can be supported by the use of statistics.  I wonder what the true motivation of the employers who employed these hiring methods. 

A counter to the EEOC’s position is that if the employer has a legitimate, non-discriminatory reason for its decision, it may avoid liability.  If the employers can create a rational business basis for not permitting ANY unemployed persons from applying for jobs, I suspect that the courts may not find a basis for allowing the suits to proceed to trial.  I guess we’ll see if how much money our government will spend on analyzing statistics rather than trying to figure out how to create incentives so business owners will create new jobs!

www.PJRLaw.info
www.PJRLaw.com
www.LawOfficesofPeterJRusso.com

Delta Assessed A Record Fine

If you need assistance getting on or off a plane, think twice about Delta.

The U.S. Department of Transportation (DOT) assessed the largest civil penalty in its history, $2 million,  against Delta Air Lines for violating rules meant to protect air travelers with disabilities.  “Ensuring that passengers with disabilities receive fair treatment when they fly is a priority for the Department of Transportation,” said U.S. Transportation Secretary Ray LaHood.  “We take our aviation disability rules seriously and will continue to enforce them vigorously.”

The U.S. Department of Transportation requires all airlines to provide assistance to passengers with disabilities while boarding and deplaning aircraft.  Airlines are required to respond within 30 days to written complaints of disabled passengers and specifically address the issues raised in those complaints.  

An investigation of disability complaints filed against Delta revealed many violations of the requirement to provide Delta passengers with assistance getting on and off the airplane.  The complaint about Delta showed that it frequently did not provide an adequate written response to disability complaints nor did it properly report each disability complaint.

Delta will only need to actually part with $750,000 of the $2,000,000.  The balance may be used by Delta to improve its service to passengers with disabilities beyond what is required by law. Delta may the money toward the development and implementation of an automated wheelchair tracking system at the carrier's major hub airports, developing and distributing customer service surveys for passengers, and/or enhance its website to improve air travel accessibility.  The actual costs of these improvements by Delta is expected to be significantly greater than the credited amounts by the fine.

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.

www.PJRLaw.info

www.PJRLaw.com

www.LawOfficesofPeterJRusso.com  

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.


www.PJRLaw.info
www.PJRLaw.com
www.LawOfficesofPeterJRusso.com

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