Saturday, April 30, 2016

What Are the Differences Between Title VII and the Pennsylvania Human Rights Act?

Pennsylvania's Human Relations Act ("PHRA") in Most Respects Provides More Protection to Workers Subjected to Discrimination Than Does Title VII


Under the Constitution, the United States Congress and its Supreme Court are the final authority where civil rights laws of any kind are concerned.  

However, states are permitted to enact their own such laws, provided that they do not curtail any rights granted under federal law

In other words, states may not eliminate protections provided under federal civil rights laws such as Title VII, but can provide additional protection to groups not protected thereunder.


The PHRA Protects Employees of Smaller Companies

Both Title VII and the PHRA make workplace discrimination based upon age, sex, race, religious beliefs, national origin or disability unlawful.

However, while Title VII prohibits such discrimination only by companies employing 15 or more workers, PHRA applies to employers with 4 or more workers.

So, a Pennsylvania employee who works for a company that that has 8 workers can sue for discrimination under PHRA, but not under Title VII.

Title VII Limits and Caps the Amount of Compensatory and Punitive Damages a Plaintiff Employee May Recover 

In addition, Title VII differs from PHRA in that it places substantial limitations on the amount of compensatory and punitive damages an employee can recover based upon the size of the discriminating employer, why PHRA has no such limitations.

Individual Managers and Supervisors May be Sued and Held Liable Under PHRA, but not Title VII

Another difference is that, under Title VII, an individual supervisory employee or manager may not be sued, while under PHRA there can be individual liability upon decisionmakers who engaged in discriminatory conduct.

Plaintiffs Suing Under Title VII May Recover Punitive Damages, but Plaintiffs Suing Under the Pennsylvania Human Relations Act May Not

Finally, a person suing under Title VII may recover punitive damages, which are not available under PHRA.

Different (Shorter) Deadline for Filing a Charge Under PHRA as Compared to Title VII

You have only 180 days to file a Charge of Discrimination under PHRA; Title VII provides you with 300 days to do so.

Finally, Charges under Title VII are investigated by the EEOC, while Charges filed under PHRA are investigated by PHRA.


John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.  

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

Thanks for checking in with us.

Thursday, April 28, 2016

UPDATE on Recent and Pending Discrimination Matters Pertaining to LGBT-Rights

Are There Any Federal Laws That Make it Illegal to Discriminate Against Employees or Workers Due to Their Sexual Preference, Their Sexual Orientation, or Their Sexual Identity  

Discrimination against a person because of his/her "sex" is illegal.  In fact, that was a principal component of the Civil Rights Act of 1964 (Title VII) which, from an employee rights perspective, was primarily intended to facilitate and protect the rights of blacks and women as they entered into the American workforce in increasing numbers.

LGBT-Related Protection
Out of Its Reach?
Over the past 50+ years, the definition of the term "sex" has become the subject of social debate, legislation and judicial decisions.  This Post discusses some of the more recent developments in that area of discrimination law.

Among the issues addressed herein are those relating to the reach of Title VII where discrimination based upon a variety of "sex-related characteristics" is concerned.

Definitions of Sex-Related Identifiers Used to Describe Members or Characteristics of LGBT Community

Here are some commonly employed definitions to inform your thinking:

"Biological Sex" - ones biological make-up as male, female or "intersex."  Common identifiers include genitalia, breast composition, facial/body hair, and chromosomes.

"Sexual Preference" or "Sexual Orientation" - refers to one's sexual preference or attraction to members of the same sex. Common Euphemism: Gay, lesbian, homosexual.

Same-Sex Symbol
"Sexual Identity" or "Gender Identity" -  refers to one's self identification as male or female, irrespective of one's physical attributes or genitalia.

"Transgender" - refers to persons who identify themselves as belonging to the sex that is the opposite of their Biological Sex.  Common Euphemism: Transsexual
Transgender
LGBT Rights" - Acronym for members of society who identify as "Lesbian, Gay, Bisexual and/or Transgender"
LGBT Rights on Upswing
How Does the Federal Government Make it Illegal to Discriminate in the United States?

Nest,it is helpful to understand how Federal laws are made in the United States. There are 2 ways that our federal government can make it illegal to  discriminate:

1) The United States Congress can pass a law making discrimination illegal, such as it did when it enacted the Civil Rights Act of 1964; or,

A Powerful Source of Law
2) The United States Supreme Court can issue a decision declaring discrimination illegal.
.
Otherwise, the most persuasive authority in the United State's federal government is the Equal Employment Opportunity Commission ("EEOC"); however, while EEOC's rules, regulations and decisions are viewed as highly persuasive by the federal judiciary, they do not constitute the law of the land.

Can States, Cities and Local Governments Make Discrimination Illegal?

Yes, they can, provided that they do not enact laws that provide less rights than any federal law covering the same general subject matter.

Tapestry of LGBT-Related Laws 
Indeed, there are a wide variety of state laws that protect the rights of workers who are part of the LGBT community, and further is found in City, county and local ordinances throughout the country.

Is is Illegal Under Title VII or Any Other Federal Law to Discriminate Against a Worker Because He or She is Gay?

Over the past twenty-years or so, the hot-button issues where LGBT-rights are concerned begins and ends with the issue of whether Title VII prohibits discrimination in the workplace based upon the employee's sexually orientation/preference.

In other words, is it legal to discriminate against an employee because he/she is gay?

Due to the failure of the United States Congress or  Supreme Court to pass a law or issue a ruling making such discrimination illegal, the matter remains open for discussion even today, although it seems clear that such discrimination will inevitably be deemed illegal.

That said, the Supreme Court has issued a number of decisions that support the LGBT community, and the EEOC recently issued a decision squarely stating its position that discrimination based upon one's sexual orientation violates Title VII, at least in its view!

Below is an overview of various legal decisions and EEOC rulings discussing LGBT-related rights to be be free from discrimination at work.

Does the Civil Rights Act of 1964 (Title VII) Make it Unlawful to Discriminate Based Upon Sexual Stereotyping? Is it Illegal to Refuse to Hire, or to Demote, Fail to Promote or Terminate an Employee Because of His/Her Sexual Preference or Sexual Orientation (Gay, Lesbian, Homosexual)?

In its landmark 1989 decision, Price Waterhouse v. Hopkins,the Supreme Court considered a case wherein a woman was denied a promotion to partner of the firm because she was perceived by some of her colleagues as being "macho," and "overcompensat[ing] for being a woman." One partner indicated that the plaintiff's chances of becoming a partner would increase if she would  "walk more femininely, talk more femininely, dress more femininely, have her hair styled, and wear jewelry."  

In suing for sexual discrimination, the plaintiff presented a unique issue, because she was not claiming that she was denied an opportunity to advance because she was a woman but, rather, because she did not fit her colleagues' stereotype of what a woman "should be."

The Supreme Court held that she stated a claim for discrimination based upon sex, noting:

In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. ...we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.

[I]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.

In Hopkins, there was no suggestion that the plaintiff was a lesbian; however, because some lesbian women or homosexual men are perceived to exhibit behavior more commonly associated with members of the opposite sex, it was viewed as a gateway to future decisions by the Supreme Court expanding the reach of Title VII to members of the LGBT community in a variety of contexts.

However, that has not proved to be the case.

Hostile Work Environment Claims - Does Title VII Protect the Victim if the Harasser is of the Same Sex and the Abuse and Bullying is Because the Employee is Seen/Viewed/Perceived to be Gay or a Homosexual or a Lesbian? 

It took nearly a decade for the Supreme Court to issue a decision that further advanced the rights of members of the LGBT community.

In Oncale v. Sundowner Offshore Services, Inc., a 1997 decision by the United States Supreme Court, the male plaintiff was subjected to vile and humiliating statements and actions by his male co-workers, including physical assault and a threat of rape, who perceived the plaintiff to be a homosexual.  Plaintiff complained to management, which did little to remediate the situation. He thereafter quit and filed suit.  After the federal district court in Louisiana and 5th Circuit Court of Appeals court rejected his claim on the grounds that Title VII does not protect a worker for harassment from co-workers of the same sex, the Supreme Court took the case.

The Court held that plaintiff was entitled to protection under Title VII, analogizing the claim to one filed by a woman for a hostile work environment by male co-workers.  In doing so, however, the Court made clear that the plaintiff's claim was based upon sex discrimination, as opposed to discrimination based upon  sexual preference (i.e. homosexuality).

Despite its limited reach, Oncale was highly noteworthy because it was authored by Justice Antonin Scalia - who was revered for his intellect, and universally viewed as staunchly conservative.

Noted Conservatives Unite on
Behalf of LGBT Community?!
Moreover, and perhaps even more remarkably, a concurring opinion was issued by the similarly conservative Justice Clarence Thomas, who once upon a time had himself been accused of creating a hostile work environment.

Surely, an arithmetic advancement of the rights of gay workers across the country was coming swiftly.  .    

Is Discrimination Based Upon Sexual Orientation or Sexual Preference Illegal Under Title VII?

Twenty-seven years after Hopkins, and 19-years after  Oncale, the Supreme Court has yet to decide whether Title VII makes it illegal to discriminate against workers on the basis of their sexual preference or sexual orientation.

Hence, plaintiffs filing suit for discrimination based upon sexual orientation under Title VII are forced to state claims of discrimination based upon the "stereotyping"rubric announced in Hopkins.

Further, while there have been numerous efforts over the years to enact federal legislation making discrimination based upon sexual orientation unlawful, the most recent being the Equality Act of 2015, no such law has been passed as of this date.

The EEOC Decided in July 2015 That Discrimination Based Upon an Employees Sexual Preference or Sexual Orientation is Prohibited Under Title VII

Persuasive, but Not Final Authority

In July 2015, the EEOC issued a decision  in Baldwin v. FAA in which the claimant alleged discrimination based upon his sexual orientation.  The EEOC first conducted a survey of cases that had dealt with the issue over the preceding decade, and noted the consensus view of the federal courts, to wit, “Title VII does not prohibit . . . discrimination because of sexual orientation.” Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005).

Thereafter, the Commission squarely held that, in its view, discrimination based upon sexual orientation was unlawful under Title VII:

 We therefore conclude that Complainant’s allegations of discrimination on the basis of sexual orientation state a claim of discrimination on the basis of sex. We further conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.

OVERVIEW: What Are the Leading Cases From the U.S. Supreme Court and Federal Circuit Courts on LGBT-Related Discrimination?

The EEOC has put together a fairly comprehensive list of such cases.  Click Here to jump to that list.

On March 1, 2016, EEOC published a Fact Sheet entitled Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination.  This provides an excellent overview of pending or recently decided matters, and the issues considered therein.

Click Here to read the EEOC's "What You Should Know" publication, which addresses the laws governing discrimination based upon sexuaal preference.

The EEOC Has Determined That Discrimination Based Upon Sexual Identity (Transgender Discrimination) Violates Title VII

In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the EEOC held that discrimination against a transgender individual because that person's gender identity constitutes unlawful discrimination based on sex and is therefore violative of Title VII.

Representing Pennsylvania Workers Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.  

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.


Thanks for checking in with us.

Thursday, April 14, 2016

Black Mamba Has Me Up Too Late - Kobe Goes for 60 in Last Game

Kobe Bryant Scores 60 in Final Game

I was at Veterans Stadium in 1980 when the Eagles beat the Cowboys to go to the Superbowl.


I was at Citizens Bank Park in 2008 when the Phillies won the World Series and again in 2009 when Roy Halladay threw a no-hitter against the Reds in the playoffs.


I was at The Meadowlands when DeSean Jackson return the punt for a touchdown in December 2010 at the Miracle at The Meadowlands 3.



I saw Danny Ozark leave Greg Luzinski in for an inning too long and Manny Mota bunted for a single and Larry Bowa was called out even though he was safe.

I booed Burt Hooten off the mound in that same game and I saw Darryl Dawkins square off with Maurice Lucas in the first home game of the 1977 NBA Finals at the Spectrum.


I remember Villanova's 1985 Championship vividly, almost as clearly as I remember 2016.


But I have rarely seen anything like what Kobe Bryant did tonight. Here it is past 1:30 in the morning and I'm going to try to fall asleep after seeing him score 60 points in his final game at age 37 after 20 years in the league.

Sports sure are fun.


Monday, March 14, 2016

How Can I Contact My Old Clients and Customers Without Violating My Confidentiality, Non-Compete and Non-Solicitation Agreement?

Pennsylvania Courts Limit the Enforcement Confidentiality Covenants in Non-Competition Employment Contracts to Trade Secrets and Cases Where Employee Took and Used Company's Confidential Client or Customer Information at New Job

In Pennsylvania, many companies require employees to sign Employment Agreements containing Confidentiality clauses restricting an employee's use of the company's "confidential and proprietary information" during the employment relationship or after it ends.  Usually, there is no time limit associated with such a prohibition.

I Signed an Employment Contract Stating That All of the Company's Information Was "Confidential and Proprietary Trade Secrets" -- Am I Stuck?

Usually, such Confidentiality covenants require the employee to agree that anything he/she learns about the company, its operations, processes and customers, is "confidential and proprietary" and constitutes "trade secrets."

Not Always Worth the
Paper Written Upon
As we have discussed in the past, just because you sign a document prepared by your employer agreeing to some legal principle or the other, does not mean that you are bound by that document.

Heck, if Corporate America was given free reign to establish via contracts with employees what legal rights employees do and do not have, then Corporate America would usurp the right of Congress to establish such rights/laws, the power of federal agencies (and their state level counterparts) such as IRS, EEOC and the Department of Labor to enforce such laws and the power of the judiciary to provide a remedy for violations of such laws.

So, no, the mere fact that your employment Agreement says that you agree that everything you learn while employed with the company is a "confidential and proprietary trade secret" does not make it so.

Is All Information a Pennsylvania Employee Learns While Employed "Confidential and Proprietary Trade Secrets?" 

Pennsylvania courts basically hold that information maintained by a company does not rise to the level of being "confidential and proprietary" unless it rises to the level of being a "trade secret."

What is  Trade Secret in Pennsylvania? Pennsylvania's "Uniform Trade Secret Act"

Many courts, when asked to determine whether an employee is guilty of violating a Confidentiality provision in an Employment Contract, evaluate whether the information allegedly misappropriated by the employee is covered by the Pennsylvania Uniform Trade Secret Act, found at 12 Pa.C.S. §§5301 et seq. The Acts defines "trade secrets" as follows:
Trade Secrets = Closely Guarded Information

"Trade secret." Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:

(1)  Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.


(2)  Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

So, chances are, unless the information at issue is akin to a patent (or at least a patent application) or  a highly secret formula (kept in a locked in a safe to which only few within the company have access - THINK: Coca Cola formula) or is a closely guarded IT-related information (THINK: Apple Encryption dispute), it is very unlikely that you have been provided access to a trade secret.

Am I Free to Take My Prior Employer's Customer Contact Information, Pricing Data and Contract Documents and Use it in my New Job?

All that being said, Pennsylvania Courts will not permit an employee to use information maintained by the employee's former employer to compete with the former employer at the employee's new job. This is especially true where the employee is bound by restrictive covenants found in an Employment Agreement protecting confidentiality, limiting competition and prohibiting solicitation of clients/customers!

What Can I Do if I am Bound by an Employment Agreement I Signed in Pennsylvania Limiting My Use of Confidential Information, My Right to Work for a Competitor of My Former Employer and My Ability to Solicit My Customers and Clients?

There are ways to safely reach former customer without running afoul of Confidentiality, Non-Competition and Non-Solicitation provisions found within a valid Employment Contract governed by Pennsylvania law.  The methods require patience, common sense, an acute understanding of Pennsylvania case law and the use of social media.

Clients' Want to Follow Their Milkman
You Just Have to Give it Time
If you find yourself in a quandary because you feel your ability to earn a living is being hamstrung by an Employment Agreement you signed with a company for whom you are no longer employed, it is best to seek legal counsel so that you may develop a strategy that will maximize your ability to thrive, while minimizing the likelihood that you will be sued by your former employer.



Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Pennsylvania Employment Labor Lawyer in Chester , Montgomery, Delaware or Bucks County?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from non-compete disputes, to willful misconduct, to severance issues

Click Here to e-mail John directly.


Thanks for checking in with us.

Tuesday, March 1, 2016

I was Fired - What Should I Say on My Internet Application for Pennsylvania Unemployment Benefits?


How Do I Fill Out Pennsylvania's Internet Initial Application for UC Benefits When I Was Terminated From My Job?

You should file a application for Pennsylvania Unemployment Benefits as soon as possible, or risk potentially losing out on some benefits.  I believe the best (and certainly the fastest) way to apply is via PA's Dept. of Labor Portal  -  https://www.paclaims.state.pa.us/UCEN/ApplicationClosed.asp


NOTE:  Before you start the application process, you may want to Click Here and read my comprehensive Post on completing the application in a variety of situations, such as when an employee quits.  

This Post, however, is specifically tailored to address how to apply for UC Benefits when employment was involuntarily severed due to some alleged actions or inactions by the employee. Click Here to read about how to handle voluntary quit cases.  


Most Common Mistake Made on Pennsylvania Unemployment Applications - Saying You Were Laid Off or Part of a RIF When in Fact You Were Told You Were Terminated for Cause

First off, let me say that the most common mistake in unemployment applications is the mischaracterization as to why the employment relationship ended.  More specifically, the most common error is when an applicant says he/she was let go due to "lay off" or "reduction in force" (RIF) as opposed to what he/she was told at the time of the separation -- that they were being fired because of ALLEGED rule violation(s), insubordination, tardiness/absenteeism, falsification of time records, improper use of company's computers, conflict with co-worker(s), customer complaints, poor performance, etc.  



Employers Are Not Always as Direct as the Donald
I have concluded that the most common reason for these mistakes are as follows:

1)  the employer was ambiguous when explaining the reason for the separation and/or provided no meaningful reason (i.e. "we are going to part ways")

2)  the employer clearly stated the reason for the separation, but the employee does not believe the employer, and substitutes his/her belief as to the "real" reason behind the firing for what he employer said at the time of the separation.

If I Make a Mistake on My Application For Unemployment Compensation in Pennsylvania, Can I Get in Trouble?


Assessment of Financial Penalty
Add to a Host of Problems
When an applicant misstates the reason for the employment separation, he/she unwittingly starts a chain of events, each link of which is worse than the one preceding it.  Here is a paradigm that I hope explains what I mean:
  • applicants who state that the separation was due to lay off or RIF immediately begin to receive unemployment benefits;
  • the people who work for the Pennsylvania Service Center, who are claims investigators, believe that every Pennsylvania citizen is aware of this rule, and its converse --
  • on the other hand, applicants who say they were terminated must wait until their claim is investigated before possibly beginning to receive benefits;
  • when an application is filed, it is immediately sent to the employer, who is told what the applicant said was the reason for the separation, and is asked to state the employer's reason for the termination;
  • if the employer states that the applicant was fired due to some action or inaction (often referred to as "willful misconduct") or "poor performance (which is generally not considered "willful misconduct" and is therefore not a basis for denying benefits), then, I have found, the majority of Service Center Representatives brand the applicant as a "liar" who intentionally misstated the reason for the separation in order to immediately start receiving benefits;
  • in this scenario, I have found that, in the overwhelming majority of "close cases," the Service Center 1) finds that the applicant guilty of wilful misconduct and denies the claim; and, 2) charges the applicant with fraud, requires the applicant to return all benefits previously paid, and adds a substantial penalty.  This is what is referred to as an "at fault overpayment" or "fraud overpayment."   
It is Hard to Admit You Were Fired - But It Must Be Done

With regard to the two most common reasons for misstatements on applications identified above (employer ambiguity and employee disbelief), I have found that the employee disbelief of the employer's stated reason for the termination, coupled with good, old-fashioned pride, is the most prevelant cause.

"Dismissal or firing is generally thought to be the fault of the employee, whereas a layoff is generally done for business reasons (for instance a business slowdown or an economic downturn) outside the employee's performance. 

Firing carries a stigma in many cultures, and may hinder the jobseeker's chances of finding new employment..."


From Wikipedia article entitled "Termination From Employment."

My experience has taught me that Wiki is spot on here.  Where "at fault overpayments are concerned, "pride truly goeth before a fall."

If the Employer Made the Decision to End Your Employment Because of Something it Alleges That You Did Wrong, Then You Were Terminated - and You Need to Say as Much on Your Unemployment Benefit Application

It is hard to admit you were fired.  I get it, believe me, I do.  But, if you were fired, and you want to put yourself in the best position to obtain UC Benefits, it is in your best interest to:
  • republish exactly what was said to you at the time of the termination (using "quotes" is an excellent idea if possible); and/or,
  • to cite and "quote" any written document provided to you on or soon after you were terminated.
In fact, failing to "admit" you were fired can not only cause your claim to be denied, but it can also lead to a finding that you committed fraud on your application, which in turn will lead to your being assessed substantial financial penalties, which the Commonwealth will be intent on collecting.

Understanding the principles explained below, and following the the suggestions that follow. will take the guesswork out of completing the application, and will dramatically reduce (if not eliminate) any possibility that you will be accused of fraud in connection with your application.   

What is an Involuntary Separation from Employment Under Pennsylvania Unemployment Law?

In the broadest sense, an involuntary separation is one that was initiated/decided by the employer. So, in fact, unless you quit, you were involuntarily separated from your job.

NOTE:  Click Here to read "Did I Quit or Was I Fired." 

No Ambiguity Here - The Reverse Donald
Completing an Application for Pennsylvania Unemployment Benefits: Was My Separation From Employment Due to a Lay Off, a Reduction if Force or a Firing?

For purposes of this Post, which is concerned only with employer-initiated terminations of employment, there are 3 choices to select from if you were separated from employment on the employer's motion: 

1)  a "lay-off " is "[t]he temporary or permanent removal of a worker from his or her job, usually because of cutbacks in production or corporate reorganization."  Dictionary.com;

2) a "reduction in force" is "a separation from employment due to lack of funds, lack of work, redesign or elimination of position(s) or reorganization, with no likelihood or expectation that the employee will be recalled because the position itself is eliminated."  Vanderbilt;

3) a "firing" is generally deemed a termination due to ALLEGED "willful misconduct," which is a catchphrase for a wide variety of employee actions or inactions that a reasonable person would understand could or would lead to termination, the most common of which are repeated violations of a work rule after being warned, falsifying work records such as time cards, repeated absences or tardiness, insubordination (refusing a boss's directive), threatening a co-worker, being the recipient of customer complaints. etc.  Like the U.S. Supreme Court said when defining pornography, you know willful misconduct when you see it.  

My Employer Did Not Explain Why I was Being Let Go From My Job - Is That Legal?

Employers are not required to explain why an employee is being discharged. However, if the company did not provide you with any specifics as to why you were being let go, and in fact appeared evasive, you were likely terminated for cause.

Why would I say that?

Lay-offs and RIFs are almost always accompanied by a written communication provided to the employee at the time of the separation - the same is often not the case where an employee is fired for ALLEGED willful misconduct.  

Just the Facts, Ma'am - Like it or Not, Pennsylvania's Unemployment Application Requires You to State What Your Employer Told You Was the Reason You Were Being Let Go - 

When completing the application in involuntary separation situations, the applicant is required to inform the Department of Labor what he/she was told was the reason his/her employment was being severed.



Hence, it is a bad idea to do either of the following when applying for benefits:  
  • Characterizing what you were told by your employer was a firing or a termination as a “lay-off” or “reduction in force” even if you believe that is the real reason you were being let go.  If you were told you were being fired because you ALLEGEDLY did something wrong, then you must report that on the application even if you believe that what you were told was a flat out lie;
  • Spending a great deal of time presenting your "defense" to what you believe the employer will say you did wrong. Disputed claims often lead to a  a Referee Hearing.  At such Hearings, anything the applicant or employer said or submitted to the Service Center during the claims adjudication process is admissible unless excluded on grounds of hearsay, etc. So, unneccesarily "taking the lead" at this early stage of the process, at the risk of inadvertently saying something that can later come back to haunt you (such as, "Yes, I came to work drunk, but everyone does that" or "well, Sally falsified her time cards just like I did, and she wasn't fired'").
NOTE:  Two more things to bear in mind: 1) if you later hire an attorney, he/she will be grateful that you did not say anything that is inconsistent with his/her strategy for the Hearing; and, 2) evidence and testimony provided during the unemployment claim process may be admissible in a future legal proceeding between the parties for discrimination, wrongful discharge, etc.  In such situations,  your attorney will be doubly grateful that you did not say anything that could be "used against you" in that litigation!.

In conclusion, the best practice when filing an application for Pennsylvania Unemployment Benefits is to focus on providing a clear recitation as to exactly what was said to you or provided to you at the separation meeting (or soon thereafter).  In doing so, just state the facts - and avoid presenting your "defense."  Make the employer satisfy its obligation, satisfying its burden of proving you engaged in willful misconduct.  Then, down the road, you will have plenty of opportunity to disprove the validity of the ALLEGED willful misconduct asserted by the employer.


Helping Pennsylvania Workers Since 1991
Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.


Thanks for checking in with us.

Tuesday, December 29, 2015

Chip Kelly Fired From Job as Head Coach and "General Manager" of Philadelphia Eagles

Eagles Owner Jeffrey Lurie Makes Wise Decision to Terminate Contract of Chip Kelly 

December 29, 2015 -  Jeffrey Lurie, the owner of the Philadelphia Eagles, announced today that the team had "released" Chip Kelly, thus ending a nearly 3-year debacle during which Eagles' fans had to suffer the loss of exciting and talented players such as DeSean Jackson and LeSean McCoy, while simultaneously being forced to endure Coach Kelly's insufferable arrogance.

So Long, Chipper
Statement of Eagles' Owner Jeffrey Lurie About Release of Chip Kelly

Mr. Lurie posted the following statement on the Philadelphia Eagles Website:

I have made a decision to release Chip Kelly this evening. I spent the last three seasons evaluating the many factors involved in our performance as a team. As I watched this season unfold, I determined that it was time to make a change. 

As we move forward, the search for a new head coach will begin and will be led by myself, Don Smolenski and Howie Roseman. To the extent that we are able, we will try to keep you informed as we go through this process. 

Pat Shurmur will be our interim coach for the Giants game Sunday. 

We have also released Ed Marynowitz, vice president of player personnel. Tom Donahoe, who has been our senior football advisor since 2012, will assume the role of senior director of player personnel. 

I am determined and excited to select a new coach to help us obtain our ultimate goal. 

Thank you for your consistent and enthusiastic support. It is always appreciated.

Sincerely,
Jeffrey Lurie
Chairman and CEO


Twitter Reaction to Philadelphia Eagles Decision to Dump Chip Kelly

Click Here to see some Twitter reaction to the news via cbssports.com and Here for same from phillymag.com.

We Have Been Deprived of the Sheer Joy
of Watching Shady Run
Kelly Never Understood That Talent
Trumps All in the NFL
Culture Trumps Talent - Hogwash! 

The NFL is a game in which the most talented, aggressive and clutch prevail.  Always has been, and always will be.

How Many Years Are Left on Chip Kelly's Contract, and How Much Money is Chip Kelly Still Owed by the Philadelphia Eagles?

There are roughly 2-years left on Kelly's contract, and he is still owed approximately $13 million.

Take the Money and GO 
Almost all NFL coaching contracts contain "offset" language, which means that, if Chip Kelly finds another job, he can get paid only the difference between what Kelly's next employer agrees to pay him, and the $13 million he is owed by the Eagles pursuant to the 5-year, $32.5 million agreement he signed with the Birds in January 2013.

"Time of Possession is Irrelevant" - Tell it to Your Defense and the Eagles Fans

Perhaps the most frustrating and misplaced philosophy embraced by Kelly, and there were many, was his idea that it was the number of plays that a team ran during a game that was of utmost importance, and that time of possession was an overrated, irrelevant statistic.  Kelly's adamant insistence that he was right in this regard, and that everyone else who thought, and game planned, otherwise throughout the history of the NFL, was wrong.

Hence, during the past 3 years, the Eagles' defense was forced to play the equivalent of one extra game per year.  This was not only highly disrespectful of the safety of the team's defensive players, who were forced to endure 80+ extra violent collisions per year as compared to their counterparts throughout the NFL, but also of the players' desire to compile the kind of impressive statistics necessary to gain recognition, and thus earning power, throughout the league.  

Moreover, Kelly's view was completely out of step with the Eagles' fanbase, which has long valued defense over offense.

I was initially a Chip Fanboy, but that ended when he inexplicably cut DeSean Jackson, who had provided me with many moments of sheer joy,  the pinnacle of which was seeing the Miracle in the Meadowlands III at Giants Stadium in December 2010.

Me (No. 20!) and my Fellow Eagles' Fans Immediately After MITMD III
Since then, it has become increasingly clear to me that Kelly was all theory, and lacked the substance necessary to win in the NFL.

How Does Chip Kelly's Record Comp[are to That of Successful NFL Coaches?

A simple examination of the record of successful NFL coaches posted today by Adam Hermann of phillymag.com makes this abundantly clear, at least in my eyes:

Coach
First Year
Second Year
Third Year
John Harbaugh (32-16, 4-3)
11-5 (2-1), 2nd
9-7 (1-1), 2nd
12-4 (1-1), 2nd
Mike Tomlin (31-17, 3-1)
10-6 (0-1), 1st
12-4 (3-0), 1st
9-7 (0-0), 3rd
Mike McCarthy (27-21, 1-1)
8-8 (0-0), 2nd
13-3 (1-1), 1st
6-10 (0-0), 3rd
Bill Belichick (25-23, 3-0)
5-11 (0-0), 5th
11-5 (3-0), 1st
9-7 (0-0), 2nd
Pete Carroll (25-23, 2-2)
7-9 (1-1), 1st
7-9 (0-0), 3rd
11-5 (1-1), 2nd
Sean Payton (25-23, 1-1)
10-6 (1-1), 1st
7-9 (0-0), 3rd
8-8 (0-0) 4th
Ron Rivera (25-23, 0-1)
6-10 (0-0), 3rd
7-9 (0-0), 2nd
12-4 (0-1), 1st

Kudos to Mr. Lurie for making the right call at the right time.  If only Chip Kelly had done the same....

Hopefully, Mr. Lurie Will Hire a Coach Who Emphasizes What Eagles' Fans Treasure Most -
an Imposing, Dominant Defense
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