Wednesday, October 12, 2011

Most Common Employment Law Questions Answered by Philadelphia Area Employment Attorney John A. Gallagher, Esquire

D-Jax Punt Return at Giants Stadium 
One of My Fondest Sports Memories
December 19, 2010
Employment Attorney in Philadelphia Area Answers Your Top Employment Law Questions

Below are some of the most common questions/scenarios I am asked about.  I provide the briefest answers in this Post, but if you Click Here where indicated, you will find a more comprehensive discussion on each topic.

My goal is to inform the public, and to remedy illegal employment activities by companies that do not follow the law. I hope you find this helpful.

EMPLOYMENT AT WILL, DISCRIMINATION, RETALIATION AND HOSTILE WORK ENVIRONMENT UNDER PENNSYLVANIA AND FEDERAL LAW

What is "Adverse Employment Action"?

We use that term throughout this Post, and elsewhere.  It refers to action by the employer such as disciplinary action, demotion, failure to promote, reduction in hours, suspension or termination.  Adverse employment action that actually costs you money (i.e. everything cited above but a mere write-up) is especially damaging, and thus most attractive to an attorney.  Such actions also triggers your obligation to file a complaint with EEOC and/or a similar state agency (in Pennsylvania, the PA. Human Relations Commission).

What Does "Employment at Will" Mean in Pennsylvania?

It means that you can be terminated for any reason, good or bad, unless the termination results from illegal discrimination, illegal retaliation or a wrongful termination.  Click Here for a more.

How Does Pennsylvania Law Define Wrongful Termination?

Many states, including Pennsylvania, make it illegal to fire employees that have filed a workers' compensation claim, or have asserted rights under other statutes (such as seeking full or partial unemployment subsequent to layoff or reduction in hours), etc.  Otherwise the "employment at will" rule controls, and one can sue for wrongful termination only if the victim of illegal discrimination or illegal retaliation.  Click Here for more.

What is a Hostile Work Environment?

It exists when the work place is permeated with a poisonous atmosphere that is hostile to people because of their age, sex, race, national origin, religious beliefs, or because of sexual harassment, or because the company manifests its anger in response to a protected complaint by engaging in illegal retaliation.  Click Here for more.

I am Being Treated Unfairly at Work in PA, Do I Have a Case?

You may, if you are being subjected to illegal discrimination, sexual harassment or illegal retaliation.  However, if the atmosphere is poisoned by "mere" office politics, or a jerky boss, or as a result of a policy of favoritism that places you on the outside looking in, probably not. Click Here for more.

What is Illegal Discrimination?

It exists when you are being treated poorly BECAUSE OF your age, sex, race, national origin, etc. (as distinguished between simply because you are not as popular as other employees).  Click Here for more.

Am I the Victim of Illegal Retaliation?

It is when the company treats you badly, or takes adverse employment action in response to your complaint of illegal hostile work environment, sexual harassment and/or illegal discrimination in the workplace.  It also comes about if the company "punishes" you for seeking a reasonable accommodation under the Americans With Disabilities Act, or in response to you asserting your rights to Family and Medical Leave, overtime, workers' compensation or a limited number of other statutes (such as those protecting whistleblowers). 

Click Here for more.

How Do I File a Discrimination or Sexual Harassment Claim in Pennsylvania?  


You may file a Charge of Discrimination with either the Pennsylvania Human Relations Commission ("PHRC"), the Philadelphia Commission on Human Relations (if you work in Philly) and/or the Equal Employment Opportunity Commission ("EEOC").

If your employer (or ex-employer) has more than 15 employees, you have rights under federal statutes such as Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, etc., and must file your Charge with EEOC to preserve your rights under such laws.

If your employer (or ex-employer) has more than 4 employees, you may file your Charge with the PHRC (if they have less than 15 employees, you can only file with the PHRC; if they have 15 or more employees, you may file with PHRC and EEOC.

Click Here to read about time limits for filing, and the best strategies to pursue when considering whether to file first with EEOC versus PHRC (or vice-versa).

How Can I Prove I am a Victim of Race Discrimination in Pennsylvania?

The best way is to have evidence of hostility towards your race via things said by co-workers (and known to management), the posting or publishing of racially intolerant materials in the workplace or blatantly racist comments made directly to you.  Along with or absent this type of evidence, you generally need to find a "comparator", someone just like you (except for your race), who is treated differently than you are UNDER VIRTUALLY IDENTICAL CIRCUMSTANCES to have any potential claim. 

Generally, "straight" discrimination claims are very hard to prove (with the exception of age-based claims), and illegal retaliation claims are the way to go if you feel you are the victim of discrimination.  Click Here for more.

How Can I Prove I am a Victim of Age Discrimination in PA?

If you are over 40, and are subjected to adverse employment action, and a younger worker who is similarly situated is not, you may have a claim for age discrimination. Click Here for more.

How Can I Prove I am a Victim of Sex Discrimination in PA?

See discussion of race discrimination, above.  Click Here for more.


How Can I Prove I am a Victim of Disability Discrimination in Pennsylvania?

If you are subjected to adverse employment action, and you believe it is because of your disability, or because you are perceived as someone who is unable to do the job because of your disability, you may have a claim.  Click Here for more.




How Can I Prove I am a Victim of National Origin Discrimination in PA?

See discussion of race discrimination, above. Click Here for more.

How Can I Prove I am a Victim of Religious Discrimination in PA?

See discussion of race discrimination, above. Click Here for more.

What is a Constructive Termination or Constructive Discharge under Pennsylvania law?

It is when you are treated so poorly at work that you have no choice but to quit. Under the law, you have a claim for ILLEGAL constructive discharge if the mistreatment constitutes illegal discrimination, harassment or retaliation. However, even if your discharge was not illegal, per se, you may still have a right to unemployment compensation of the mistreatment was pervasive, and continued despite your efforts to address and resolve the issues with management. Click Here for our comprehensive Post on these issues.

Add caption
What Should I do if I am Subjected to Sexual Harassment in PA?

Generally, you should bring the matter tot he attention of management, and give it a chance to fix the problem. If it fails to fix the problem and/or the problems get worse, you may have a claim for constructive discharge. If its response is to subject you to adverse employment action, a claim for money damages may arise. Click Here for our comprehensive Post on these issues.


Am I Protected Under Pennsylvania or Federal Whistleblower Laws?

If you work for a government, yes. If you do not, you likely have whistleblower protection only if there is a state law that provides such protection. Pennsylvania does not have such a statute; other states, such as New Jersey, do. Also, if you work for a publicly traded company, you may be entitled to protection under Sarbanes Oxley. Click Here for more.






1099 (INDEPENDENT CONTRACTOR) AND OVERTIME ISSUES IN PENNSYLVANIA

Am I Entitled to Overtime Under PA Law of Federal Law?

Click Here to read our comprehensive Post on this issue.

Am I Being Misclassified as an Independent Contractor in Pennsylvania?

If the company essentially controls your work, subjects you to discipline and otherwise generally treats you like its employees (except for receiving benefits, etc., of course), you may well be.  Click Here for more.

I am a 1099 Worker - Can I Get Pennsylvania Workers' Compensation Benefits? 

If you have been misclassified as an independent contractor, then yes.  Click Here for more. 

I am a 1099 Worker in PA - Can I Get Overtime? 

If you have been misclassified as an independent contractor, then yes.  Click Here for more.

I am a 1099 Worker - Can I Get PA Unemployment Benefits?

If you have been misclassified as an independent contractor, then yes.  Click Here for more.

Can Outside Salespersons Get Overtime Under Pennsylvania Law?

A TRUE outside salesman is not entitled to overtime.  However, many salespersons are misclassified as "outside salespersons" - if you have been so misclassified, you are entitled to overtime. Click Here for more. 

Can Computer Programmers and Professionals Get Overtime in Pennsylvania?

If you work in Pennsylvania, the answer is "Yes."  Click Here for more. 

Commissions, Minimum Wage and Overtime - What Are PA's Rules?

Click Here for our comprehensive Post on these issues.
 

BANKRUPTCY ISSUES

Bankruptcy:  How Does it Affect my Claim For Severance if I am an Executive?

Click Here for our comprehensive Post on this issue.

Bankruptcy:  How Does it Affect my Rights to Wages if I am an Employee?

Click Here for our comprehensive Post on these issues.


FAMILY AND MEDICAL LEAVE AND DISABILITY QUESTIONS

How Does the Family and Medical Leave Act Work?

If you are employed for a company that has more than 50 employees, have worked there for more than 12 months, and have worked more than 1,250 hours during the last 12 months, then you are entitled to up to 12 weeks off without pay to treat a serious health condition, or to care for a family member with a serious health condition, without risk of losing your job. Click Here for more.  

Can I Get Short-Term Disability and Family and Medical Leave at the Same Time?

Yes.  This way, you can supplement your income and protect your job at the same time. Click Here for our comprehensive Post on how FMLA and STD work together.

How Do Family Leave and Short-Term Disability Work Together  Take a Look at Our Comprehensive Video Discussing This Topic in Detail



Can I Take Family Leave for Stress?

Yes.  Click Here for our comprehensive Post on this issues.

Can I Get Fired for Taking Short Term Disability?

Yes, unless you are protected under FMLA or, perhaps, the ADA.  Click Here for our comprehensive Post on these issues.

What is a Reasonable Accommodation Under the Americans With Disabilities Act?

Typically, it is a device or a an adjustment to your work duties or schedule that enable you to fulfill your job despite a disability.  Click Here for our comprehensive Post on these issues.

How Do FMLA, Short-Term Disability, the ADA and Workers' Compensation Fit Together?

Click Here for our comprehensive Post on these issues.


NON-COMPETE AND SEVERANCE ISSUES

Is My Non-Compete Agreement Enforceable in Pennsylvania?

The key to avoiding a problem with a non-compete agreement are generally as follows:  1) be unfailingly loyal to the company during your employment despite your plans to leave; and, 2) do not take any of your former employer's customers when you get to your new job. Click Here for our comprehensive Post on these issues.

How Does Severance Work in Pennsylvania?

Generally, in the absence of a contract between a company and an employee (usually reserved for executives and officers), the payment of severance is a voluntary act by a company. There is no set severance rule; however, the failure offer severance or consistent severance to all employees may be evidence of discrimination. If you are offered severance, you will usually be required to sign a Release. You should seriously consider retaining an attorney to evaluate (and possibly negotiate) any severance package to receive. Click Here for more.

What Can My Former Employer in Pennsylvania Say If Asked for a Reference?

In Pennsylvania, employers run the risk of being sued if they say something negative AND UNTRUE about you, and it causes you to lose another job opportunity (hard to prove).  Click Here for more. 

UNEMPLOYMENT QUESTIONS

Can I Get Unemployment in Pennsylvania if I Quit My Job?

If you have a necessitous and compelling reason to do so.  Otherwise, let them fire you.  Click Here for more. 

Have Questions About Whether You Can Resign and Still Be Eligible for Unemployment Benefits?  Our Detailed Video Discusses This Topic




What is a Necessitous and Compelling Reason for Quitting a Job Under Pennsylvania Unemployment Law?

A significant change in work hours or location, a significant reduction in pay, SEVERE abuse by a fellow employee that continues despite your efforts to have management fix the problem, a severe health condition (although you have to be able to work to get unemployment, so a long-term health condition may lead to your ineligibility), if your spouse has to relocate, if your lose childcare - these are some of the most common N & C reasons.  Click Here for more. 

Can I Get Unemployment in Pennsylvania if  I am Fired for Poor Performance?

Poor performance is NOT a basis for disqualification from unemployment, so yes.  However, BEWARE: employers often fabricate "willful misconduct" at unemployment hearings to get around this rule.  Click Here for more. 

What is Willful Misconduct Under Pennsylvania Unemployment Law?

Generally, it is something that one does that one KNOWS is wrong.  THINK:  no call, no show, drinking on job, repeated violation of work rule despite warning.  Click Here to read more. 

What is Willful Misconduct and How is it Proved at an Unemployment Hearing Before a Referee? Our Video Explains



What Evidence Should I Have For My Pennsylvania Unemployment Hearing?

You should review the file at the Unemployment Hearing Office prior to the Hearing in order to determine the employer's position, and to try and prepare oneself for the Hearing.  Click Here to read more. 

What Happens at a Pennsylvania Unemployment Hearing?

Click Here for our comprehensive post on this issue. 

How Does Unemployment in Pennsylvania Work? 

Click Here for our comprehensive post on this issue.

Can I Get Unemployment in Pennsylvania if I Take a Part-Time Job?

Yes, if you are paid on a W-2 basis and your earnings do not exceed 40% of your weekly UC compensation, you can get full UC benefits.  Click Here for more. 

Can I Get Unemployment in Pennsylvania if I am Terminated from my Job as an Independent Contractor?

Yes, if you prove you were "misclassified" as an independent contractor.  Click Here to read our comprehensive Post on this issue. 

Can I Continue to Get Unemployment in Pennsylvania if I Take a Job as an Independent Contractor?

Not if you are TRULY an independent contractor who is self-employed.  However, that statement gives rise to a number of critical, complex questions.  Click Here to read more. 

Can I Get Unemployment in Pennsylvania if My Business Fails?

No.  Click Here for more. 

If, After I am on Unemployment, I Start My Own Business or Incorporate My Own Business, am I Still Eligible for Unemployment?

No.  Even if you never make any money on such endeavors, you will still be deemed as "self-employed," and thus ineligible for unemployment.

What is a Sideline Business Under Pennsylvania Unemployment Law?

If, while employed on a full-time basis you from time to time did some work "on the side" for which you were paid, and which you reported to IRS, then you will remain eligible for unemployment even if you continue to do such work after you become unemployed, provided you roughly the same amount of work while unemployed, and do not change your business model.

The sideline business rule also applies even if you did not earn any money while "operating" the business while employed full-time.  This is a common scenario for people who, for example, have a real estate license and dabble in that while working at their "real job" on a full-time bais.  Click Here for more. 

What is "Suitable Work" Under Pennsylvania Unemployment Law?

You have lost your job, are getting unemployment and are offered a new job.  The job that is offered to you is not nearly the same as your former job in terms of pay, duties, schedule, or location.  Do you have to take that job or suffer the loss of unemployment benefits?  This dilemma falls under the "suitable work" rule under Pennsylvania Unemployment laws.

If the job offered constitutes "suitable work," you must accept it or lose benefits.  If it is not, you may turn the job offer down and continue to receive unemployment compensation.

"Suitable work" is a DEFINED job offer (i.e. one in writing that lays out the detail of the offer) that basically is the equivalent of your last job in terms of location, pay, job duties, etc.  For example, an offer to a former executive of a job as a clerk at a convenience store is NOT an offer of suitable work. An offer of a part-time job with no benefits is not the equivalent of a full-time job with benefits.

NOTE:  One common "suitable work" scenario is when a company that is terminating your employment at the same time offers you a different job within the company.  When this happens, and an employee rejects the new job offer, companies typically try to characterize it as an employee quit.  This is a common tactic, because companies know that winning quit cases is hard for employees.  However, in reality, this is a termination, followed by an offer of suitable work.

Click Here to learn more.

What Are the Answers to the Most Commonly Asked Questions About Pennsylvania Unemployment Law?

We have addressed them all (we think!).  Click Here for more.

Philadelphia Employment Lawyer Representing Workers

John A. Gallagher -
Representing Individuals 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…

Thanks for checking in with us.


1 comment:

Employment Lawyer Adelaide said...

Very informative questions about employment law. Lots of things are consisting to learn for employment lawyer.