Category Archives: Employment Law

Statement that Employer “Didn’t Want to Get Screwed Over” if Employee Gave Birth Proves Pregnancy Discrimination

In EEOC v. Bob Evans Farms, (W. D. Pa. no. 15-cv-1237)(August 17, 2017, J. Hornak), the employee was a server employed at a Bob Evans restaurant for five years. The employee intended to work up until she gave birth to her second child. After the employee became pregnant she was removed from the automatic shift scheduling process utilized by the restaurant to create employee schedules based on availability and anticipated needs. The General Manager and the employee had a conversation about her future work schedule and the employee indicated that she would work until she had the baby. The General Manager asked her if she could change her availability in the system because he didn’t “want to get screwed over if [she had] the baby.” Approximately two weeks after the conversation the General Manager changed the employee’s availability to “zero”; because she was pregnant, he believed her need for leave was imminent, and he wanted to ensure that the restaurant’s staffing needs were met. The court held that the record demonstrated that several weeks before the employee went into childbirth and without any request by her, the General Manager changed her availability from a status that would automatically generate a schedule with her assigned work, to a status that would not automatically schedule her for any work and result in her only being granted shifts that were available after the automatic system already had generated a schedule without the employee being assigned to any work; as a consequence the employee’s level of work materially declined.

Title VII prohibits discrimination in employment “because of sex.” The Pregnancy Discrimination Act (“PDA”) amended Title VII to add Section 2000e(k) which provides, “The terms, “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions. The Supreme Court has made it clear that the PDA was established so that women who are capable of doing their jobs are treated the same as their male counterparts and not be forced to choose between having a child and having a job. The prohibition against pregnancy discrimination is breached whenever an employee’s pregnancy or related medical condition is a motivating factor for the employer’s adverse employment decision.

Direct evidence is evidence that would prove the prohibited intent without resort to an inference or presumption. In Bob Evans, the court held that the record evidence shows directly and without equivocation that the reason for General Manager’s decision to remove the employee from automatic scheduling was because she was pregnant and he believed her need for leave because of child-birth (and nothing else) was imminent. The court held that the PDA compels the conclusion that an employer cannot require a pregnant employee to stop working unless she is unable to work, preserving the decision to work to the woman’s judgment in the first instance. An employer cannot act to take away a pregnant employee’s shifts because she will go into labor at some point. Nor can it place a roadblock in her path by taking her off of the automatic schedule (and thereby reducing her work opportunities) and effectuate the same result. Thus, the court found discrimination based on pregnancy as the employee (1) was removed from the automatic scheduling system; (2) was expected to call-in as able to work before she would be permitted to work; and (3) was to be placed onto the schedule only if needed to fill a hole after the automatic schedule was generated for other employees. The court concluded that this demonstrated that the General Manager made assumptions about her pregnancy and future childbirth which are prohibited by the PDA. The court also held that it was undisputed that the employee suffered significant disruption in her terms and conditions of employment as she was effectively changed from a regularly scheduled part-time shift worker to a fill-in part-time shift worker with the uncertainty of such a schedule placed on the pregnant worker because she is pregnant and she would at some point give birth, both of which are prohibited considerations. Accordingly, the court that while it is the rare lawsuit in which the record entitles a plaintiff to the grant of summary judgment in its favor, the managers motivation was so clear that a finding in favor of the employee was warranted.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who are discriminated against based on sex and pregnancy in Philadelphia and all its surrounding suburbs. For more information on pregnancy discrimination see

Leave a comment

Filed under Employment Law, Pregnancy Discrimination, Sex / Gender Discrimination

One Severe Incident is Enough to Prove Racial Harassment at the Workplace

Employees are protected from harassment at the workplace when the underlying reason behind the harassment is protected by the law. For instance, sexual harassment takes place when employees face intentional discrimination based on sex. Racial harassment takes place when an employee is subjected to harassment based on race. A recent Third Circuit Court of Appeals decision makes it clear that even one isolated incident can form the basis of a harassment claim.

In Castleberry v. STI Group; (3rd Cir. no. 16-3131 (July 14, 2017), two African- American males were fired by a staffing-placement agency which employed the employees at Chesapeake Energy an oil and natural company. The employees claimed that the termination was racially motivated, citing discriminatory remarks at the workplace and unfair work treatment. The Third Circuit reversed the trial court’s 

dismissal of the employees’ Complaint finding that the employees sufficiently alleged claims of harassment, disparate treatment discrimination, and retaliation.

In Castleberry, the employees alleged that when they arrived at work, 

on several occasions, someone had anonymously written “don’t be black on the right of way” on sign-in sheets, and when working on a fence-removal project, a supervisor told one of the employees and his coworkers that if they had “nigger-rigged” the fence, they would be fired. Following the last incident, the employees reported the offensive language to a superior and they were fired two weeks later without explanation, they were rehired shortly thereafter, but then terminated again for “lack of work.” The employees filed a lawsuit alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. §1981 which provides, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens . . .” The employees alleged a hostile work environment on the basis of race which requires that an employee show that the employee suffered intentional discrimination because of race, the discrimination was severe or pervasive, the discrimination detrimentally affected the employee, the discrimination would detrimentally affect a reasonable person in like circumstances, and the existence of respondeat superior liability (i.e. a basis for the employer being responsible for the conduct- such as a manager making the comments).

In Castleberry, the Third Circuit made it clear that to prevail on a harassment or hostile work environment claim, an employee must establish that . . . the discrimination was severe or pervasive, a standard the Supreme Court has articulated as much on several occasions. Then the Court considered whether a supervisor’s single use of the “n- word” is adequately “severe” and if one isolated incident is sufficient to state a claim or harassment or a hostile work environment. The Third Circuit found that an isolated incident of discrimination if severe can suffice to state a claim for harassment. Applying this standard, in Castleberry the Court held that because the employees alleged that their supervisor used a racially charged slur in front of them and their non-African- American coworkers and within the same breath, and the use of this word was accompanied by threats of termination which ultimately occurred, the single incident was sufficient to show severe conduct that could create a hostile work environment.

The Court also noted that the employee could also satisfy the “pervasive” standard as the employees alleged that on several occasions the sign-in sheets bore racially discriminatory comments and the employees were required to do menial tasks while less experienced white colleagues were instructed to perform more complex work. Thus, the Court held that the employees pled a plausible claim of a hostile work environment under either theory- as the harassment was both “severe” or “pervasive.”

In Castleberry, the Court also held that the employees had a viable retaliation claim based on their claim that they were fired for reporting the racially discriminatory remark made by their supervisor. To establish a retaliation, claim an employee must establish that the employee engaged in protected activity by making a claim of discrimination based on a good faith reasonable belief; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. As the Third Circuit found that a single incident can amount to unlawful activity, the Third Circuit also reversed the trial court’s dismissal of the retaliation claim. The court also reversed the dismissal of the employees’ discrimination claim based on disparate treatment because the employees belong to a racial minority; there was evidence of an intent to discriminate based on race and the termination of employment is a protected activity under §1981.

Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see

Leave a comment

Filed under Employment DIscrimination, Employment Law, Harassment, Race Discrimination, Retaliation

Preliminary Injunction to Enforce Non-Solicitation Agreement Against Pennsylvania Employee Denied

Today, rather than directly hire employees, many Pennsylvania companies and some government entities enter into contracts with staffing companies that supply their employees to perform work for these companies. Even more complicated are situations where one staffing company hires another company to provide employees. These arrangements are often found in the information technology industry. While such arrangements serve to reduce the number of employees who work for the contracting entities and limit exposure for certain potential liabilities that may arise from the employer-employee relationship, these relationships may provide unexpected barriers to the enforcement of restrictive covenants such as non-solicitation agreements.

There are several types of restrictive covenants that Pennsylvania employers seek from employees. A non-compete agreement generally requires that an employee agree not to work in the same industry after leaving employment for a period of time after the employment relationship ends. Another form of a restrictive covenant is a non-solicitation agreement that generally prohibits an employee from seeking business from customers of an employer for a period after the employment relationship ends. In Computer Aid v. Ferree (Pa. Super. Ct. no. 525 MDA 2016) (February 21, 2017) (non-precedential), the court considered the enforcement of a “non-solicitation” agreement required by a staffing company. In addition, the Superior Court of Pennsylvania’s decision addressed another barrier that may arise when an employer seeks to enforce a restrictive covenant, the requirement that an employer must demonstrate that it cannot be made whole by money damages.

Computer Aid, the original managing staffing company for PennDot (the Pennsylvania Department of Transportation), had arranged for the hiring of individuals submitted by numerous vendors that supplied employees to fill PennDot’s needs. Computer Aid lost the contract to be the managing staffing provider but it remained a vendor that provided employees to work for PennDot. After it lost the managing staffing provider position, an individual (hereinafter, the employee), who was originally placed through Computer Aid to work at PennDot who had signed a non-solicitation clause, began working at PennDot again as an employee placed through another staffing company. Computer Aid filed an emergency motion for a preliminary injunction, alleging that the employee violated a non-solicitation agreement by effectively taking Computer Aid’s customer, PennDot. Computer Aid sought an injunction to prevent the employee from further interactions and business with PennDot based upon language in the non-solicitation agreement that prohibited the employee from taking its customers.

In Pennsylvania, a trial court has broad discretion to grant or deny a preliminary injunction against an employee. In order to obtain a preliminary injunction against a Pennsylvania employee, an employer must establish that (1) injunctive relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages; (2) greater injury will occur to the employer from refusing to grant the injunction rather than from granting it; (3) the injunction will restore the parties to their status quo as it existed before the alleged wrongful conduct; (4) the employer is likely to prevail on the merits; (5) the injunction is reasonably suited to abate the offending activity; and (6) the public interest will not be harmed if the injunction is granted.

In order for an employee to be granted a preliminary injunction it must be able to establish that money damages will not make it whole. Computer Aid argued that the trial court erroneously concluded that it could be made whole by money damages by failing to recognize a loss of goodwill, the loss of a customer, and the loss of income when the employee took a position at PennDot through another staffing company. In affirming the trial court, the Superior Court of Pennsylvania noted that a loss of income is in fact a loss of money that can be remedied by monetary damages. While Computer Aid also claimed that the employee created a loss of a customer, the court found that this argument was not convincing as it remained a PennDot vendor and continued to place employees. Lastly, while loss of business goodwill is a non-monetary consideration, the court found that there was no evidence that Computer Aid lost any business goodwill since it continued to be a PennDot vendor providing employees and there was no evidence presented to show that PennDot was in any way dissatisfied with its work. Thus, the court found that Computer Aid failed to establish that it lost a customer but rather just lost one “slot” at PennDot after it had already lost its position as prime contractor and while there may or may not have been a violation of the restrictive covenant, the employee’s actions associating himself with a new vendor did not cause irreparable harm as damages could be calculated based on the amount of money Computer Aid would have received absent the alleged violation. Consequently, the Superior Court found that there were reasonable grounds for the denial of the preliminary injunction and there was no abuse of discretion or misapplication of law.

Andrew Abramson regularly consults with Pennsylvania employees who have issues surrounding non-compete agreements, non-solicitation agreements and restrictive covenants, and when the needs arise Abramson Employment Law represents employees in federal and state courts in Philadelphia, Montgomery County, Pennsylvania and surrounding areas. For more information see

Leave a comment

Filed under Employment Law, Non-Compete Agreement, Non-Solicitation Agreement, Restrictive Covenant

Husband Proceeds with Sex Based Hostile Work Environment Claim Against Employer Based on Wife’s Actions

Many employers have policies that restrict two members of the same family, such as a husband and wife, from working together in order to avoid nepotism, a conflict of interest and other issues that could allow a family related dispute to cause an issue at the workplace. Other employers permit two family members to work at the employer if they are in a different department, or they do not supervise each other. A recent Pennsylvania federal court decision in Reiser v. Concordia Lutheran Health, W. D. Pa. no. 16-959 (December 8, 2016, Bissoon, J.) demonstrates that employers who do not have these types of workplace restrictions may be exposed to liability under laws which protect retaliatory action against employees, such as sexual harassment.

In Reiser, the husband was an employee who worked as a Corporate Director of Rehabilitation at a senior and healthcare services provider with several locations. The employee’s wife, the daughter of the Chief Executive Officer, was employed by the same employer as a manager. When the marital relationship ended, bad feelings erupted, causing substantial problems at the workplace.

The wife confronted her husband in his office and asked him to renew their relationship before their divorce was final; when he refused, the wife stated that she would make his life “a living hell.” The wife then engaged in a series of harassing actions at work, including sending text messages using vulgar terms; telling other employees that the husband was an inadequate lover and a poor father; requiring the husband to use a computer program at work to track his whereabouts and the time that he spent using his mobile phone, while no other salaried, management level employee was required to do the same; falsely alleging that the husband was repeatedly staring at her and not working; using the performance evaluation process to accuse the husband of poor work performance, even though the work performance allegations conflicted with the performance data provided by the other facility managers; and reporting the husband to the police for a violating a protection from abuse order and not advising the police that the husband was an employee required to work at the designated location that day, with the intent of causing difficulty at the workplace as it would be nearly impossible for him to perform his duties and comply with the restrictions. The husband complained to human resources about the wife’s conduct but the employer took no action to address the situation and have the wife cease her actions.

In Reiser, the husband filed litigation against the employer claiming that the employer subjected him to a hostile work environment because of his sex. The employer filed a Motion to Dismiss, arguing that the employee’s hostile work environment claim fails because the actions at issue were not motivated by sex, but rather were the result of a family law dispute.

In order to establish a prima facie of a sexually hostile work environment based on gender, an employee must show that the employee (1) suffered intentional discrimination because of sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; and (iv) the discrimination would negatively affect a reasonable person in the employer’s position. For the harassment to be actionable, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment.

In Reiser, the court denied the Motion to Dismiss and found that the husband alleged sufficient facts to support a sexually hostile work environment claim against the employer by showing that the wife’s actions were sufficiently severe and pervasive to have altered the terms and conditions of his employment, as the wife used her position as a management level employee and daughter of the employer’s Chief Executive Officer to harass the husband because of his refusal to renew their intimate relationship. As such, the court found that the husband sufficiently alleged that he was negatively impacted by the alleged harassment in the form of anxiety and depression and that the actions taken against him would negatively affect a reasonable person in the employee’s position.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who have been subjected to sexual harassment and hostile work environments. Abramson Employment Law represents clients in Philadelphia, Montgomery County and surrounding areas. For more information on sexual harassment and retaliation see

Leave a comment

Filed under Employment DIscrimination, Hostile Work Environment, Sex / Gender Discrimination, Sexual Harassment, Sexual Harassment

Employee with Chrohn’s Disease has Disability Discrimination, Failure to Reasonably Accommodate & FMLA Claims

Employees who suffer from documented disabilities, require medical leave from work and who are terminated by employers, may have claims for disability discrimination under the American with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA); as well as claims under the Family and Medical Leave Act (FMLA).

In Knight v. Callebaut USA Service Company, E. D. Pa. no. 15-6450 (December 19, 2016, Hart, M. J.), the employee was a production supervisor at a cocoa and chocolate factory diagnosed with Chrohn’s disease. The employee was hospitalized twice after experiencing abdominal pain; received treatment for bowel obstructions; and experienced diarrhea multiple times every day. Due to flare ups of his medical condition, the employee needed brief periodic breaks from ten minutes to one hour from zero to three times per shift while he was working to allow him to vomit outside. The employee had conversations with the employer’s Human Resources Manager and Site Manager to let them know what was going on. After a second three-day hospitalization, the employee was advised that his employment was terminated for an alleged theft of time and not doing his job by being on the plant floor for extended times during his work hours. The employer did not discipline the employee or allow him to explain why he was outside of the facility before terminating his employment. The employee alleged that the employer terminated his employment because of his actual/perceived disabilities and/or in retaliation for requesting reasonable accommodations; and that the employer never properly advised the employee of his FMLA rights and discouraged him from applying for FMLA leave.

To establish a prima facie case of disability discrimination, an employee must show that: (1) the employee is disabled within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) the employee suffered an adverse employment decision based on that disability. The burden then shifts to the employer to articulate a legitimate business reason for the termination of employment and then the employee must then demonstrate that the stated reason is merely a pretext for discrimination.

To satisfy the ADA’s definition of disability, an employee may demonstrate: (1) an actual mental or physical impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) that the employer regarded the employee as having a disability.

To establish a failure to accommodate a disability under the ADA, an employee must prove: (1) the employee is disabled, (2) is otherwise qualified to perform essential functions of the job, with or without reasonable accommodations by the employer, and (3) the employer refused to provide a proposed reasonable accommodation, or failed to engage in an interactive process after the employee requested an available reasonable accommodation.

In Knight, the court held that the employer was at least aware of the employee’s health condition and there was disputed evidence that there was a request for some sort of leave of absence for medical treatment, which could constitute a reasonable accommodation under the ADA. Thus, there was sufficient evidence for the case to proceed to trial on the ADA request for reasonable accommodation claim. The court also concluded that the employee could demonstrate a prima facie case of disability discrimination since it was undisputed that the employee requested leave for medical treatment when admitted to the hospital. Further, given that the employee was terminated immediately after returning from a leave that occurred after he had to leave his shift for medical reasons, there was sufficient evidence to create a factual question of pretext, permitting the ADA disability discrimination claim to proceed to trial.

The FMLA provides that it is unlawful for any employer to interfere with, restrain, or deny the exercise of FMLA rights. To establish FMLA interference, an employee must demonstrate: (1) that the employee was entitled to benefits under the FMLA and (2) the employer denied FMLA benefits. An employee is not required to expressly invoke the FMLA; the employee must only provide notice of the request for leave and state a qualifying reason for the leave. A scheduled block of time for treatment and testing or intermittent leave is protected by the FMLA and an employer’s failure to advise an employee of FMLA rights can constitute an interference of the employee’s FMLA rights.

In Kline, the court held that the employee provided sufficient facts to support a FMLA interference claim in that he was deprived of the right to make informed decisions and to plan accordingly when structuring his leave because he was not advised of his rights to 12 weeks or intermittent periods of job protected leave.

In a FMLA retaliation claim, an employee must demonstrate that (1) the employee is protected under the FMLA, (2) the employee suffered an adverse employment action, and (3) the adverse action was causally related to the exercise of FMLA rights. Then the burden shifts to the employee to provide evidence of a legitimate reason for the adverse employment action. Once the employer sets forth a legitimate reason, the employee must point to some evidence that the employer’s reasons for the adverse action are pretextual.

In Kline, the court held that the employee’s need to take time off to treat his medical condition was both a request for accommodation under the ADA and a request for leave under the FMLA. In so doing, the court found that the fact that the employer classified the employee’s leave as FMLA is sufficient to set forth a prima facie case that FMLA rights had been invoked and that the termination of employment was clearly an adverse employment action. As to the casual connection requirement, the fact that employment was terminated immediately upon return from leave was sufficient evidence of causation; particularly combined with fact that the employee has no prior disciplinary history. Thus, the FMLA retaliation claim could also proceed to trial.

For more information on the Family and Medical Leave Act (FMLA), Disability Discrimination and Abramson Employment Law, see,,

Leave a comment

Filed under Americans with Disabilities Act - Disability Discrimination, Employment Law, FMLA

Caucasian Television Anchor Proceeds with Race Discrimination Case

In Pennsylvania employment discrimination cases, evidence that can be used to establish race discrimination by a terminated employee may take many forms. A recent decision in O’Toole v. Hearst Stations, Inc., W. D. Pa.  no. 16-879 (November 18, 2016) (Eddy, M. J.), demonstrates the type of evidence that a Caucasian employee may be able to use to attempt to establish that the true reason for the termination of employment is race discrimination.

In O’Toole, the employee was the main news anchor at a Pennsylvania television station who was repeatedly praised throughout her career for professional expertise, judgment, and work ethic; and she won more than 20 regional Emmy awards for broadcast excellence. As part of the employee’s duties as a reporter and anchor, the employer encouraged the employee to use a Facebook page as a platform to engage and communicate with the television audience about the stories the employee covered. The employee covered a story involving a shooting that resulted in six deaths. The employee wrote on the Facebook page, “you needn’t be a criminal profiler to draw a mental sketch of the killers who broke so many hearts two weeks ago “… they are young black men, likely in their teens or early 20s.” The employee also wrote a second Facebook comment praising a young African-American man who worked in an area restaurant writing, “I wonder how long it has been since someone told him he was special.”

The employee’s Facebook posts caused considerable controversy, and complaints from individuals and organizations purporting to speak on behalf of the African-American community. The employer’s management met with one organization to discuss the employee and issues of racial diversity. The same day, the employer terminated the employee, stating that the employer’s reason for firing was because the employee’s posts were inconsistent with the company’s ethics and journalistic standards.

The employee filed litigation in federal court alleging that she was fired because of her race in violation of 42 U.S.C. §1981. The employee argued that if she had written the same exact comments about white criminal suspects she would not have been fired, and that if the employee was not white but made the same comments, she would not have been fired. The employee also alleged that her Facebook posts were clearly and obviously not intended to be racially offensive and that the employer admitted that she is not a racist and that she was not posting racially offensive material. Thus, the employee alleged that the employer’s publicly stated reason for the termination of her employment, that the postings were inconsistent with the company’s ethics and journalistic standards, is pretextual.

In order to prove a what the law terms as a “prima facie case” of race discrimination, an employee must show that the employee (1) is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action, and (4) that circumstances exist that give rise to an inference of unlawful discrimination. The fourth element can be established through evidence that establishes that other employees outside the protected class were treated differently, or when an employee points to circumstantial evidence that otherwise shows a causal nexus between the employee’s membership in a protected class and the adverse employment action.

In O’Toole, the employee alleged that the evidence of circumstances that give rise to an inference of unlawful discrimination consists of the employer consistently downplaying misconduct by similarly situated reporters and anchors because of their race or gender, and retaining or hiring news reporters and anchors irrespective of their public misconduct. The employee identified two other employees as potential comparators. In denying the Motion to Dismiss, the Court relied upon law in Pennsylvania federal courts that holds that whether individuals are similarly situated is a fact-intensive inquiry which has to be made on a case-by-case basis, rather than in a mechanistic and inflexible manner, and as a consequence, a Motion to Dismiss at the onset of case is not the appropriate stage of the litigation to decide whether an employee outside the protected class who was treated differently is similarly situated. The court also held that evidence that the employer stated that the employee is not racist and that her comments were not racially offensive could be used to establish a reasonable inference of proof of circumstances that give rise to an inference of unlawful discrimination.

Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see

Leave a comment

Filed under Employment Law

Employee Eligible for Unemployment Benefits When Policy Violation Protects Patient Care

As a Pennsylvania unemployment compensation attorney who represents employees at unemployment compensation hearings where the employee is appealing a denial of benefits, I have observed that many employers do not understand that the fact that the employer may have a legitimate reason for terminating an employee, does not mean that the employee will be denied the right to collect unemployment compensation benefits. Employers frequently confuse the right to terminate an employee with the employee’s right to collect unemployment compensation benefits. Pennsylvania unemployment compensation law recognizes that while Pennsylvania generally follows the principle of employment at will, and that the employer has the right to terminate employee for any non-discriminatory reason, including a violation of the employer’s policy, that right does not preclude the employee from collecting unemployment compensation benefits unless the employee engages in willful misconduct at the workplace.

Pennsylvania unemployment law provides that an employee is ineligible for unemployment compensation benefits when the employee’s termination is due to willful misconduct connected with the employee’s work. Pennsylvania courts have defined “willful misconduct” as a willful disregard for the employer’s interests; a deliberate violation of the employer’s rules; disregard for standards of behavior than an employer can expect; or negligence that reflects an intentional disregard of the interest of the employer or an employee’s duties to an employer. The employer has the burden of proving willful misconduct. An employer alleging willful misconduct must show that the employee violated the employer’s rules or policies and the employee’s actions were intentional or deliberate. Once the employer meets this burden, the burden then shifts to the employee to show good cause for a rule or policy violation.

The Commonwealth Court’s recent decision in Washington Health Systems Greene v. Unemployment Compensation Board of Review (Cmwlth Ct. Pa. September 21, 2016) demonstrates that an employee may be entitled to benefits even when a policy violation occurs. The employee, an emergency department registered nurse, was involved in the treatment of a patient at the hospital when the patient’s companion was also present in the emergency room. The employee was outside the treatment room gathering information and recording it on a computer while the companion was pacing outside the treatment room, loudly proclaiming that he wanted another nurse to be removed from the treatment room. The employee testified that the companion loudly threatened to “knock his teeth in” and made another threat. The employee testified that he threatened to call hospital security and he had to speak loudly to the companion to speak over him. The employee was subsequently terminated for violating the employer’s policies which prohibit disrespectful or unprofessional behavior at the workplace, and for conduct detrimental to a patient’s care and use of profanity.

The Court concluded that the Unemployment Compensation Board was correct when it found that the Claimant employee was eligible for unemployment compensation benefits because of the patient’s emergency situation, the employee’s active participation in screening for care, and the employee’s proximity to the companion. Thus, under the circumstances it was not possible to conclude that the employee acted unreasonably by failing to immediately notify his supervisor of the threat, as the employer’s policy technically required. In addition, the record supported the fact that it was the companion, not the claimant, who acted unreasonably and disrupted the patient’s care and that the employee’s actions were reasonable under the circumstances.

There are many nuances in Pennsylvania unemployment compensation law. Many times, employees are successful when they retain an experienced Pennsylvania unemployment compensation benefits attorney to appeal a decision denying unemployment benefits. The attorney will prepare the employee for the Referee’s hearing and represent the employee at the unemployment compensation hearing. For more information about Pennsylvania unemployment compensation claims and Abramson Employment Law see

Leave a comment

Filed under Employment DIscrimination, Employment Law, Unemployment

Gay Male Proceeds with Constructive Discharge Claim Based on Sexually Hostile Work Environment

Title VII, the federal discrimination law that protects employment discrimination in Pennsylvania based on race, national origin, religion and sex does not explicitly provide protection on the basis of sexual orientation. Nevertheless, federal courts have found that the law can be interpreted to protect gay employees under certain circumstances. In EEOC v. Scott Medical Center (W. D Pa. November 4, 2016) (Bisson, J.), the court held that Title VII protects a Pennsylvania employee who is subject to discrimination on the basis of sexual orientation, as the law protects “discrimination because sex.”

In Scott Medical Center, a gay male Pennsylvania employee worked in a telemarketing position. The employee alleged that he was subject to discriminatory behavior by the employer’s telemarking manager and that he was constructively discharged by the employer, due to an allegedly sexually hostile work environment perpetrated by the employer’s telemarking manager. The employee alleged that the employer manager’s discriminatory behavior subjected him to a continuing course of unwelcome and offensive harassment because of his sex and that the harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of the employee’s sex. In effect, the male employee was targeted because he did not conform to what the manager believed was acceptable or expected behavior for a male because of his association with members of the same sex, rather than the opposite sex, and the harassment created a work environment that was both subjectively and objectively hostile and intolerable because of sex.

The workplace behavior at issue included routine unwelcome and offensive comments by the manager, including regularly calling the employee fag, faggot and queer; and making statements such as “f-ing” queer can’t do your job. These harassing comments were being made at least three to four times a week. Additionally, upon learning that the employee was gay and had a male partner, the employee’s manager made highly offensive statements to the employee about the employee’s relationship such as saying, I always wondered how you fags have sex, I don’t understand how you f-ing fags have sex and who’s the butch and who is the bitch? The male employee complained about the manager’s conduct directly to the President/Chief Executive Officer of the employer, who shrugged it off and took no action at all to stop the harassment, which continued. The employer’s failure to engage in prompt and effective action in response to the ongoing harassment resulted in the male employee’s constructive discharge of employment when he quit.

Ironically, the situation involving the gay male employee first came to the EEOC’s attention as part of an investigation of charges of discrimination brought by five of the same manager’s former female co-workers, who alleged they had been subjected to discrimination because of sex based on sexual harassment and unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions.

In Scott Medical Center, the court noted that the Supreme Court has consistently applied a broad interpretation of the “because of sex” language in Title VII and in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998), the Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The court noted that “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality” and the court endorsed the EEOC’s statement that discriminating against a person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” The court also noted that the Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation and noted that “someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Thus, the Court concluded that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex.”

Andrew Abramson and Abramson Employment Law represent Pennsylvania employees who are subject to discrimination and sexual harassment at the workplace. For more information see our website at

Leave a comment

Filed under Employment DIscrimination, Employment Law, Sex / Gender Discrimination, Sexual Harassment, Sexual Orientation Discrimination

Email May Establish Employment Contract & Wage Payment and Collection Law Claim

While not advisable, there are occasions when executive employees are hired without a formal employment contract signed by the employer and employee. When a Pennsylvania employee performs work pursuant to the terms of a less formal agreement and is not paid, other written evidence may form the basis of an employment contract, as demonstrated in Miller v. Cerebain Biotech Corp. E. D. Pa. no. 16-3943 (November 8, 2016) (O’Neill, J.), where the court denied the employer’s Motion to Dismiss a Complaint.

In Miller, the plaintiff was hired to be a senior member of the management team to provide public relations, investor relations and corporate growth strategies and was to be an advisor available to the Chief Executive Officer. The parties agreed on compensation in the amount of $140,000 per year, plus $400 per month in on-going expenses as documented in an email. The executive then provided services to the corporation and after the executive was not paid for services provided, litigation was filed asserting claims for (1) breach of contract; (2) violation of the Pennsylvania Wage Payment and Collection Law; and (3) unjust enrichment.

The Pennsylvania Wage Payment and Collection Law (WPCL) provides that every employer shall pay all wages and benefits due to its employees. When an employee is not paid wages due, the WPCL provides a cause of action for the amount due plus an additional 25% of the amount due, attorneys’ fees and costs. One key feature of the WPCL is that it creates personal liability for a corporate officer with operational control of the employer. Thus, if the employer defaults on its wage payment obligations to an employee, a corporate officer may be personally liable directly to the employee for the wages due.

The WPCL only applies to employees, and not contractors; thus, there are occasions in which a dispute arises as to whether a person should be deemed an employee under Pennsylvania law. Pennsylvania courts consider many factors to determine whether an individual is an employee or an independent contractor, including the control of the manner that work is to be done; the terms of any agreement between the parties; the nature of the work or occupation; the skill required for performance; whether the person is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether the work is part of the regular business of the employer; and the right to terminate the employment at any time.

In Miller, the defendants argued that the plaintiff was not an employee but rather an independent contractor, and even if the plaintiff was an employee, there was no valid employment agreement pursuant to which wages were due. The court rejected both arguments and found that the plaintiff sufficiently pled a WPCL claim by asserting that she was hired as a senior member of the management team to provide services relating to public and investor relations as well as corporate growth strategies, and the terms of employment were memorialized in an employment agreement in the form of an email that contained language suggestive of an employer-employee relationship.

The Pennsylvania Supreme Court has stated that the WPCL provides a means of recovering wages that are due pursuant to a contract and the WPCL does not create a right to compensation, rather, it provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages. Thus, litigation under the WPCL may also include an issue as to whether there is a valid employment contract. Many reported Pennsylvania employment law cases provided that a plaintiff may proceed under the WPCL by establishing the formation of an implied oral contract between an employer and an employee. Under Pennsylvania law, an implied contract arises when the parties agree on the obligation to be incurred, but their intention, instead of being expressed in words, is inferred from the relationship between the parties and their conduct in light of the surrounding circumstances. In Miller, the court found that accepting all factual allegations of the complaint as true, the employee at a minimum, sufficiently pled the existence of an implied employment agreement, and while the e-mail reflects the existence of various uncertainties in the agreement, those uncertainties do not negate the existence of an employment agreement for purposes of the WPCL.

In Miller, the court also found that the employee had sufficiently pled a breach of employment contract claim in that the employee alleged that she was hired under an employment agreement to serve as a senior member of management team at a specific salary, the employee provided services pursuant to the agreement, and the employee was not paid for services rendered.

Where there is some uncertainly as to whether a contract exists, a plaintiff is permitted to plead alternative theories of recovery, asserting both breach of contract and unjust enrichment claims. Under Pennsylvania law, a cause of action for unjust enrichment is established when (1) a benefit is conferred on the defendant by the plaintiff; (2) there is appreciation of the benefit by the defendant; and (3) the defendant accepts and retains the benefit under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.

In Miller, the court permitted the unjust enrichment claim to proceed as the employee established that she conferred a benefit by creating the content for, and managing the development and launch of the corporate website, plans and social media strategy, the employer received the benefit of the work provided, and the employee asserted that the defendants were unjustly enriched because despite repeated promises to pay wages and expenses upon receiving an additional capital infusion, the plaintiff was not paid in full for services provided.

For more information on breach of employment contracts, the Pennsylvania Wage Payment and Collection Law and Abramson Employment Law, see,

Leave a comment

Filed under Breach of Contract, Employment Law, Pennsylvania Wage Payment and Collection Law, Unjust Enrichment

Employer May Be Liable for Stalking & Harassment at Work – Negligent Hiring & Supervision Claim Proceeds

When an employee sustains physical or emotional harm caused by a coworker, legal issues can arise concerning an employer’s liability for the conduct of a coworker. In Brantley v., American Airlines, E. D. PA. no. 16-3540 (Pratter, J.) (November 21, 2016), the court held that when an employer has notice of certain past conduct by a coworker, an employer may be found liable for negligent hiring or negligent supervision.

In Brantley, the employee, an airport customer service agent, filed a Complaint alleging that the employer was legally responsible for misconduct of a coworker who was hired with a criminal record that included charges of stalking and harassing a woman. The employee filed claims against the employer alleging negligent hiring and supervision; and assault and battery on the legal theory of respondent superior (employer is responsible for the actions of an employee that it supervises). The employer filed a Motion to Dismiss all claims.

The employee alleged that the coworker sexually assaulted another employee in the airport employee parking lot but was not terminated or disciplined. Not knowing about the prior incident or record, the employee invited the coworker to her home where he sexually assaulted her.  Thereafter, the employee contacted the police and informed the employer’s Human Resources department about the incident. The coworker was criminally charged for assault and the employee obtained a Protection from Abuse Order (PFA), prohibiting the coworker from having any interaction with her at work and the employee gave a copy of the Order to the employer. Thereafter, the coworker changed his shift to be assigned to employee’s terminal at the airport for a shift partially overlapping employee ’s shift.  Then the coworker sexually assaulted another employee and shortly thereafter, the coworker followed the employee, approached her from behind as she applied lipstick in a common area for employees, stared at her, and whistled at her, despite having “no legitimate reason” to be in the area. According to the employee, these incidents caused her fear and emotional distress, she reported the last incident to airport police, who told her that the employer had never forwarded the PFA order or criminal docket to corporate security, in violation of the employer’s policy. Shortly thereafter, the coworker’s employment was terminated.

To state a claim for negligent supervision or negligent hiring under Pennsylvania law, an employee must allege that the employer failed to exercise ordinary care to prevent intentional harm to a third-party which is committed on the employer’s premises by an employee acting outside the scope of his employment and is reasonably foreseeable. In Brantley, the Court found that there were sufficient facts plead for the employee to bring a negligent supervision / hiring claim because while certain harm took place at the employee’s home, there was also evidence that the coworker engaged in stalking behavior during work hours. In so doing, the court rejected the employer’s argument that the coworker’s mere presence in the same terminal was not cognizable “harm,” as the existence of the PFA order and the coworker’s whistling, staring, and refusal to leave the employee alone is more than mere presence.

The employer also argued that the employee did not allege that the coworker acted outside the scope of his employment. However, the court pointed to Pennsylvania cases allowing negligent supervision claims to survive a motion to dismiss as an alternative claim to direct/respondeat superior liability and held that because, at the pleading stage, some leeway is permitted, the Court would not dismiss the negligent supervision claim simply because the employee also attempted to plead a respondeat superior claim. The court also noted that the employee reported the coworker’s bad behavior to the employer, presented it with her PFA order, and evidence that the coworker assaulted and/or stalked other female employees which placed the employer on notice of the coworker’s behavior, yet the employer continued to allow the coworker to work a period until after two more incidents when it then terminated the coworker.

In Brantley, the court dismissed the assault and battery claim wihtout prejudice. In so doing, the court held that while an employer may be held responsible for the acts of employees which cause injury to a third-party under a respondeat superior theory if the acts were committed during and within the scope of employment, apart from the fact that the actions occurred at work, the employee did not affirmatively plead any facts that would support that the coworker’s actions were of a kind and nature that he was employed to perform or for a purpose that served the employer’s interest.

Abramson Employment Law, represents employees who suffer damage caused by an employer’s negligent hiring and supervision. For more information concerning Abramson Employment Law and employment discrimination claims see

Leave a comment

Filed under Employment Law, Sexual Harassment