10 More Things I Think I Think...

1.      I think Charlie Sheen has a great lawsuit against his former employee for breach of contract and a spectacular case for a breach of the Americans with Disabilities Act. Sad... But true!

 Click on Photo For Lawsuit Details

2.      With all this rain, I think building an ark just may end up being a good idea.

3.      Is it time to forgive Tiger Woods.  It's amazing how many people started watching golf or playing because of Woods. Much like Mike Tyson and boxing.  Can't remember the last fight I watched that didn’t feature Tyson.  

4.      The PA Liquor Control Board is think selling bottles of liquor in kiosks in supermarkets… Now that I no longer own a bar!   Seriously... grocery shopping IS a pain but easier access to booze?  Do we really need that? 

 Click on Photo For Additional Article

5.      Looks like EVERYONE was celebrating the Osama bin Laden’s killing

6.      Since I touched on the Royal Wedding… What was with those hats???  Do they break all the mirrors before a Royal Wedding?

7.      The “May 21, 2012 Judgment Day” is came and went…  I actually got a letter in the mail asking me to “Save the Date”  Hmmm…  Who are these people???  

8.      With the new Judgment Day (October 21st) coming up I’m wondering if we all have our priorities straight…  An Abbeville, South Carolina man was on his way to get a haircut, when he ran out of gas. He ends up walking the rest of the way into town for that haircut and rather than get gas, he buys a lottery ticket.  The scratch-off ticket he bought ended up being a $200,000 winner.  Bet he’s hoping the zealots are wrong!

9.      Many of us know that when a land developer wants to build houses, the scariest thing is to find bog turtles, some protected flower or artifacts.  Those things can stop you dead in your tracks… UNLESS you’re digging for natural gas in the Marcellus Shale region.  Turns out an excavation at a Westmoreland County (Pennsylvania) site once occupied by Monongahela Indians produced abundant evidence of two villages and allowed researchers to piece together the violent end of the later settlement at the hand of invaders who sacked it, massacred its inhabitants and burned houses and food stores but when researchers returned they found a drill rig and catchment basin sitting on half the village.  Turns out that while we don’t even tax those drilling companies for what they pull from the ground, Pennsylvania's laws offer little or no protection for archaeological resources.  So maybe if all you land developers (those of you still left) keep a drill rig handy you can bypass all that red-tape while you dig out those pesky bog turtles, protected flowers and artifacts.

10.  Central PA has some amazingly generous people.  I want to thank you all for making Jump Street’s 10^th Annual Derby Day Fundraiser a huge success.  We have even hit the Washington DC social scene!

 Click on Photo For Washington DC Story Link

Check The Box...

Employers beware!

The City of Philadelphia has adopted a new trend in employment law.  The City's "Check the Box" rule, in essence, provides that an employer cannot inquire whether a prospective employee has ever been convicted of a crime. 

About one in four adults, or 65 million people across the country, has a criminal record, which can often make it difficult for those who are also unemployed to find a job, as many Philadelphia residents can imagine.

A recent report from the National Employment Law Center showed that many employers, including large companies such as Domino's Pizza or Bank of America, will announce job openings that often exclude applicants with a criminal record. One employment ad from Bank of America, for instance, states "candidates must be able to pass: background check (no felonies or misdemeanors)."

Another study conducted last year revealed 92 percent of employers may dismiss some or sometimes all applicants who have a criminal conviction. According to the Philadelphia Inquirer, jobseekers in Philly are even required to check a box on job applications when asked whether they have been arrested or convicted for a crime.

However, the City Council is seeking to pass a "ban the box" ordinance that will remove the box from both online and paper job applications. Employers would also be prohibited from asking candidates about their criminal history until after their first interview, which is when they are allowed to run any background checks and ask any questions related to the applicant's criminal record.

"[The ordinance] requires the employer to give candidates the opportunity to be judged strictly on their merits during the application and the first interview ..." explained William Nesheiwat, the director of legislation for City Council member Donna Reed Miller, who sponsors the measure. "Our goal is to create something that helps the individual with a record but does not hurt businesses and their clients."

Criminal Records May Prevent Jobseekers From Finding A Job  By Erline Aguiluz

Seemingly with the passage of that ordinance, the City Council and Mayor added one more thing for employers to be concerned with when trying to locate a competent & productive new hire.

Those employers concerned about hiring ex-cons - like a bank, security company or anyone that needs to bond their employees - can take solace that the ordinance allows you to ask that same question after the first interview.

Interesting law which intended to help ex-cons secure employment but will likely result in a lot of wasted employer time.  Hopefully the trend, in its current state, will not continue.

What do you think?

An interesting day….

I was at a meeting yesterday where a gentleman from a trade association (who I will not name to protect the ….  Not sure what word to use here but innocent is definitely not the right word).  This gentleman was discussing why business owners should  join his association.  He went on to seek the support of local business owners to help pressure legislators into passing what he called reforms to the current legal system.  Explaining that trial lawyers needed to be controlled. 

Between the speaker and the associations website, they addresses many issues such as joint and several liability, products liability, forum shopping and filing of frivolous law suits. 

The association has targeted comments made the Philadelphia Common Pleas Court judge who runs their Complex Litigation Center.  The judge basically invited lawyers representing plaintiffs to file their actions in Philadelphia’s Complex Litigation Center.  She went on to note that the increase in suits would increase revenue to the court as well as the city and local businesses.  The speaker also noted that a person who fell in a Hershey Pennsylvania (Dauphin County) sports arena sued in Philadelphia County based on the premise that the Hershey based sports team played a sports team in Philadelphia County several times a year.  These were his examples of abuses of the system. 

Oddly, these are the rules…  It called venue… 

Rule 2179 of the Pennsylvania Rules of Civil Procedure provides:

(a) Except as otherwise provided by an Act of Assembly, by Rule 1006(a.1) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in

 (1) the county where its registered office or principal place of business is located;

 (2) a county where it regularly conducts business;

 (3) the county where the cause of action arose;

 (4) a county where a transaction or occurrence took place out of which the cause of action arose, or

 (5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

(b) An action upon a policy of insurance against an insurance company, association or exchange, either incorporated or organized in Pennsylvania or doing business in this Commonwealth, may be brought

 (1) in a county designated in Subdivision (a) of this rule; or

 (2) in the county where the insured property is located; or

 (3) in the county where the plaintiff resides, in actions upon policies of life, accident, health, disability, and live stock insurance or fraternal benefit certificates.

These rules may be modified by the legislature at any time.  In fact, the legislature found is appropriate to modify them for medical malpractice cases, limiting venue to the county where the action arose.

There are other rules that lawyers can use to “remove” a case from the wrong court, specifically Rule 1006(e).  The inference that venue (or forum) shopping is an abuse of the system is a frightening commentary from any association.  Associations seeking to “protect” consumers, business people, their insured, themselves should look to the legislature to modify the rules.  If plaintiff’s lawyers play within the rules how can it be an abuse?  You may not like the result, until you’re  a plaintiff and want to be in a different venue but until the rules change – like they did for malpractice matters – there are a lot of places you can be sued and you can file a lawsuit. 

By the way, this is no different than Cameron County and Potter County — those courts figured out that the local court system can make extra money by hosting out-of-county divorce cases even where venue may not be properly placed in their counties.  Their extremely low filing fees for divorces makes them attractive to divorcing spouses who want to save money compared to what they might have to pay to file their cases in the proper venue.  However Cameron County and Potter County will typically look to transfer your case if issues arise. 

I didn’t hear that gentleman expressing concerns about this tactic, which is an abuse of the system.  I guess divorcing couples looking to save a buck don’t do too much to fund Political Action Committees!

Kind of makes you really think about the motives,,,

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!

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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."

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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!

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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.