WHISTLEBLOWER LAW-REPORT TO PENNDOT-PRIMA FACIE CASE

December 18th, 2018 by Rieders Travis in Employment Rights

Greco v. Myers Coach Lines, Inc., 2018 Pa. Super. 306 (November 15, 2018) Ott, J.  Myers Coach Lines appealed from the judgment of $2,400 in a wrongful discharge case pursuant to the Whistleblower Law.  43 P.S. §§ 1421-1428.  The court vacated the judgment and remanded for entry of JNOV in favor of Myers Coach.  The claim was that of a firing due to a safety report to PennDOT.  Also asserted was a common law claim of wrongful discharge.  The first question is, what is “wrongdoing” as defined by the law?   In order to prove a violation of the Whistleblower Law, Greco must demonstrate she made a report of some action by her employer or its agent, which, if proven, would constitute a violation of a law or regulation.  Moreover, the report must be of an actual violation, not a potential or contemplated violation.  It is for that reason Greco’s Whistleblower Law claim fails. Therefore, while her superiors expressed their dissatisfaction with the regulations, and their skepticism regarding her interpretation of those reguolations, such actions do not constitute a “wrongdoing.” According to her own testimnony, Greco did not make a…

WAGE PAYMENT AND COLLECTION LAW-LAWYER-LIQUIDATED DAMAGES-GOOD FAITH DISPUTE OF SALARY CLAIM

October 29th, 2018 by Rieders Travis in Employment Rights

Yablonski v. Keevican Weiss Bauerle & Hirsch LLC, 2018 Pa. Super. LEXIS 1125 (October 17, 2018) Strassburger, J.  This is a case of a lawyer who got fired from his job.  The court found that it was proper to award liquidated damages to the lawyer, along with interest, for breach in violation of the Wage Payment and Collection law.  The court, as liquidated damages, granted 25% of the amount owed.  The court found a contract existed between the parties and they credited the employee-lawyer’s testimony.  This was proper.  The amount was due and owing for more than 30 days.  The law is a vehicle for successful plaintiffs to be compensated for unpaid back wages based upon existing contractual claims.  The court has not previously defined “good faith,” but the trial court addressed the issue.  The court’s finding on credibility concerning good faith will be respected.  

WHISTLEBLOWER LAW-JUDICIAL OFFICERS

September 18th, 2018 by Rieders Travis in Employment Rights

Scrip v Seneca, 2018, Pa. Cmwlth., LEXIS 342 (July 23, 2018) Brobson J. The question is whether Whistleblower Law permits action against judicial branch or whether that’s prohibited by sovereign immunity? We do agree with Scrip, however, that Judiciary employees who comply with the Code of Conduct and report wrongdoing are deserving of protection from retaliation. We can cite to well-publicized examples where individuals within the Judiciary have engaged in wrongdoing, sharking the public’s confidence in our legal system. In an effort to root out such wrongdoing, the Supreme Court adopted the Code of Conduct, which imposed on employees of the Judiciary a duty to report. The Supreme Court may, under its supervisory authority over the Judiciary and without violating the separation of powers, take remedial action when an employee rightfully reports misconduct and is subjected to retaliation. As discussed above, such authority, however, does not extend to effectively amending  a statute to create a cause of action under the Whistleblower Law or waiving sovereign immunity. The Supreme Court did not (and cannot) waive sovereign immunity and thereby authorize civil actions for wrongful termination of employment against the Commonwealth and…

EMPLOYMENT LAW-WHISTLEBLOWER-EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT

July 9th, 2018 by Rieders Travis in Employment Rights

Gillispie v. Regionalcare Hospital Partners, Inc., 2018 U.S. App. LEXIS 15741 (3d Cir. June 12, 2018) McKee, C.J.  We are asked to determine whether the District Court erred in dismissing a claim under the “whistleblower” protection provision of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. The dispute here arises from Marie Gillispie’s allegations that the Southwest Regional Medical Center (the “Medical Center”) terminated her employment because she reported the Medical Center’s allegedly improper discharge of an unstable patient and because she reported its alleged substandard care of an admitted patient.  The District Court granted summary judgment in favor of the Medical Center based upon its conclusion that Gillispie had not established a prima facie case for retaliation under EMTALA and because various common law claims that Gillispie included in her complaint were preempted by state statutes. For the reasons that follow, we will affirm. Title VII’s anti-retaliation provision is once again illustrative. Unlike EMTALA, Title VII provides protection against retaliatory discharge of an employee who “opposed” a Title VII violation or “participated in any manner” in an investigation into a violation. We cannot ignore…

ARBITRATION-EMPLOYMENT

June 5th, 2018 by Rieders Travis in Employment Rights

Epic System Corp. v. Lewis, No. 16-285, (S. Ct.  May 21, 2018), Gorsuch, J. JUSTICE GORSUCH delivered the opinion of the Court. Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or…

ERISA-ANTI-ASSIGNMENT CLAUSE

June 4th, 2018 by Rieders Travis in Employment Rights

American Orthopedic & Sports Medicine v. Independence Blue Cross Blue Shield, No. 17-1663 (3d Cir. May 16, 2018) Krause, C.J.  With the evolution of managed healthcare and the advent of provider networks and other cost-control mechanisms, many insurers in recent years have incorporated into their health insurance plans clauses that purport to bar insureds from assigning their claims to any third party—even the healthcare provider that rendered the service. This appeal presents the question whether such “anti-assignment clauses” are enforceable, or whether, as argued by the healthcare provider in this case whose claim was dismissed for lack of standing, they are antithetical to the Employee Retirement Income Security Act (“ERISA”) and to public policy. For the reasons that follow, we conclude that anti-assignment clauses in ERISA-governed health insurance plans are enforceable, and we will therefore affirm the judgment of the District Court. In sum, anti-assignment clauses in ERISA-governed health insurance plans are generally enforceable, the Insurers did not waive their objections to Appellant’s standing, and Appellant, having waived its argument for a remand to perfect the power of attorney, concedes that the power of attorney in this record is invalid…

DAMAGES-NON-ECONOMIC-WHISTLEBLOWER LAW

May 30th, 2018 by Rieders Travis in Employment Rights

Bailets v. Pennsylvania Turnpike Commission, et al, No. 126 MAP 2016 (Pa. S.Ct. March 27, 2018), Dougherty, J. This is a direct appeal by defendant/appellant Pennsylvania Turnpike Commission (“PTC”) from the Commonwealth Court's order entering judgment on a $3.2 million verdict in favor of plaintiff/appellee Ralph M. Bailets (“Bailets”) following a non-jury trial of his claims arising under the Whistleblower Law, 43 P.S. §§ 421-1428 (“Law”). The verdict included $1.6 million in non-economic damages. PTC presents a question of first impression in Pennsylvania: whether non-economic damages for items such as embarrassment, humiliation, loss of reputation and mental anguish are available to plaintiffs in actions brought under the Law. Additionally, if non-economic damages are authorized under the Law, PTC asks us to determine whether the verdict amount was excessive in this case. We conclude non-economic damages are available to successful plaintiffs under the Law and the trial court did not err or abuse its discretion in entering a verdict amount of $1.6 million. Accordingly, we affirm the judgment. We view the immunity waiver aspect of the Law as supportive of its primary purpose — to protect whistleblowers who come forth with good…

EMPLOYMENT LAW-MERIT SYSTEMS PROTECTION BOARD-SERIOUS ADVERSE EMPLOYMENT ACTION

August 10th, 2017 by Rieders Travis in Employment Rights

Perry v. Merit System Protection Board, 2017 U.S. LEXIS 4044 (June 23, 2017) Ginsburg, J.  This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. §1101 et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as “mixed cases.” In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks…

WORKERS’ COMPENSATION-SUBROGATION-WAIVER

July 26th, 2017 by Rieders Travis in Employment Rights

Kalmanowicz v. Workers’ Compensation Appeal Board, 2017 Pa. Commw. LEXIS 433 (July 7, 2017) Brobson, J.  In the instant case, we discern no evidence that could support a conclusion that Employer acted in bad faith or failed to exercise due diligence in enforcing its subrogation rights, and we decline to expand our definition of conduct by which an employer may implicitly waive its absolute right to subrogation.  See Thompson, 781 A.2d at 1151.  Thus, Employer did not waive its right to subrogation pursuant to Section 319 of the Act by contesting Claimant’s claim petition.  Accordingly, the October 5, 2016 order of the Board, affirming the May 13, 2016 order of the WCJ, is affirmed.

Gross v. Nova Chems. Servs., 2017 Pa. Super. LEXIS 290

May 2nd, 2017 by Rieders Travis in Employment Rights

Chief pilot claims constructive discharge.  People who are forced to fly together did not communicate which a company thought was a safety situation.  In order to comply with duties under the FAA, including to have final authority over operation of the aircraft, the employee’s employment was terminated.  It was claimed that the employer refused to address unsafe flight conditions.  The lower court granted preliminary objections and the Superior Court agreed.  Statutorily created public policy pertained to aviation may drive only from the promulgated rules and regulations of this Commonwealth, not the FAA.  Precedent confines the scope of “public policy” of the Commonwealth in this context to our Constitution, court decisions and statutes promulgated by our legislature.  The federal duty expressed in 14 CFR 913(a) does not reflect the rule or regulation promulgated by the Department of Transportation, nor has our general assembly enacted a law requiring the Department of Transportation to promulgate a discreet rule or regulation that requires conformity with 14 CFR 913(a).  Accordingly, Superior Court discerned no public policy of the Commonwealth within the FAA statutory duty.  The case was therefore dismissed and no public policy was violated…