Tag Archives: Pennsylvania Criminal History Record Information Act

Pennsylvania Employees Can Prove FMLA Retaliation Claims When Leave is a Negative Factor in Terminating Employment

When a Pennsylvania employee is terminated shortly after commencing leave under the Family and Medical Leave Act (FMLA), an obvious question arises as to whether the employee’s use of FMLA protected leave was the reason, or a factor in the decision to terminate employment. In evaluating FMLA claims the nature of the evidence and degree of proof required is critical. Employers have argued that an employee must prove that the employer’s proffered reason for termination was false or the use of FMLA leave was the sole reason for termination. In Egan v. Delaware River Port Authority (3rd Cir. no. 16-1471) (March 21, 2017), the Third Circuit Court of Appeals considered the question of what level of evidence is required to prove a violation of the FMLA; and concluded that an employee is not required to show direct evidence of discrimination to prove that FMLA leave was a negative factor in the termination, finding that it is sufficient to only offer indirect evidence of discrimination to obtain such an instruction.

In Egan, the employee filed a lawsuit against his former employer asserting several violations of federal employment law, including the FMLA. The employee, who was originally hired to manage fleet assets, had a history of migraine headaches; the frequency of his migraines increased almost instantaneously with his transfer to the Engineering Department. The employee applied for and was granted intermittent FMLA leave. Three months after the FMLA was granted an issue arose as the employee was only reporting the approximate number of hours he had worked, rather than the actual number of hours he had worked and took FMLA leave. While the employee was on FMLA leave, he was advised that all economic development functions were being eliminated, his temporary reassignment to the Engineering Department was deemed completed and his employment was terminated.

The case proceeded to a jury trial and the jury found that the employer did not retaliate against the employee for exercising his right to take FMLA leave. The employee filed an appeal arguing that the trial court erred in the jury instructions by not providing the jury with a mixed-motive jury instruction concerning the FMLA claim. A mixed motive instruction advises the jury that the employee can prevail by proving that the termination was based on both legitimate and illegitimate reasons. Instead, the trial court’s instructions required a much higher level of proof requiring the employee to prove that the stated reason for terminating employment was pretext (i.e. false). The Third Circuit found that the District Court erred in requiring the employee to provide direct evidence of retaliation to obtain a mixed motive instruction.

In Egan, the Third Circuit held that to allow an employer to take an adverse employment action against an employee who takes FMLA leave undoubtedly runs contrary to Congress’s purpose in passing the FMLA, and prohibiting retaliation for exercising FMLA rights is illegal because it is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion. Therefore, the court held that employers are barred from considering an employee’s FMLA leave as a negative factor in employment decisions and an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted. Thus, the court held that an employee who claims retaliation may seek to proceed under a mixed-motive approach and show that his or her use of FMLA leave was a negative factor in the employer’s adverse employment action.

In Egan, the Third Circuit also held that the trial court erred in denying a request for a mixed-motive instruction, explaining that it is not necessary to offer direct evidence to obtain a mixed-motive instruction. Thus, the Third Circuit vacated the FMLA judgment and remanded the case for a new trial, so that it could be determined whether there was evidence from which a reasonable jury could conclude that the employer had legitimate and illegitimate reasons for its employment decision and that the employee’s use of FMLA leave was a negative factor in the decision to terminate employment.

Andrew Abramson represents Pennsylvania employees whose FMLA rights are violated. For more information on the FMLA and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126523

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ADA Disability: Employee Who Experiences Seizures Has ADA Claim

With the expansion of the Americans with Disabilities Act (ADA) by the Americans with Disabilities Amendment Act (ADAAA), courts are finding that many more medical conditions are covered by the ADA. In Hoffman v. Palace Entertainment, 2014 U.S. Dist. LEXIS 40422 (E.D. Pa.March 25, 2014)(Gardner, J.), the court found that episodic seizures can be an ADA qualifying disability.

In Hoffman, the Plaintiff was employed in a seasonal, part-time position as a Water Area Attendant at an amusement park and family entertainment facility. During the 2010 season, the employee had absences from work which though supported by doctor’s notes became an issue of concern for the employer. The employee was assessed “points” for her absences and was given a notice informing her that she could face discipline up to, and including, termination if her attendance did not improve. The employee was not terminated and continued to work through the conclusion of the 2010 season. The employee was informed that she was not being invited back for the 2011 season because of issues with her attendance. Nonetheless, the employee was advised that if she was interested, she could apply for employment again and she then applied for employment as a Security Officer. During the interview, the employee further explained that she suffered a miscarriage of twins which caused some seizure activity and that she is required to take prescription medication and seek medical treatment if an episode occurs. The employee described the seizures as “petit ma”, which are seizures involving a brief, sudden lapse of consciousness which may appear mild but can be dangerous if not controlled with anti-seizure medications.

The employee alleged disability discrimination in violation of the ADA and the Pennsylvania Human Relations Act (PHRA) arising from both the decision at the end of the 2010 season not to invite the employee to continue in her position as a Water Area Attendant for the 2011 season, which effectively terminated plaintiff’s employment; and the decision to rescind the offer of a Security Officer position after she applied, and interviewed, for that position during the 2011 season.

To establish a prima facie case of disability discrimination, a plaintiff employee must plead sufficient facts to raise a plausible inference that: (1) the employee is disabled within the meaning of the ADA; (2) the employee is otherwise qualified for the job with or without a reasonable accommodation; and (3) the employee was subjected to an adverse employment action as a result of discrimination. An individual is disabled under the ADA if the individual actually has a record of having, or is regarded as having, a physical or mental impairment that substantially limits one or more of the major life activities of such individual. In defining disability under the ADA, major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

In Hoffman, the court found that the employee pled facts sufficient to support a plausible inference that her seizure disorder substantially limited her ability to work, by requiring her to take unscheduled absences for medical treatment and because the employee alleged that she submitted doctor’s notes for her absences during 2010 season which allegedly were seizure-related and she discussed her seizure condition during the January 2011 interview for the Security Officer position. Thus, the court held that the plaintiff employee could proceed with her disability discrimination claims.

In Hoffman, the employee also alleged that the employer rescinded the offer for the 2011 Security Officer position based upon a 2002 arrest that came up in a background check, alleging a violation of the Pennsylvania Criminal History Record Information Act. The Court held that the Criminal History Record Information Act was potentially violated because whenever an employer receives criminal history record information pursuant to a background check and the employer uses the criminal history record information to rescind its offer of a Security Officer position, the law may be violated.

For more information on the Americans with Disabilities Act, Disability Discrimination, the Pennsylvania Criminal History Record Information Act and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-2122109.html

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PA Criminal History Record Information Act: Probationary Employee Cannot Be Terminated Based on Criminal History

The Pennsylvania Criminal History Record Information Act provides certain projection and opportunities for job applicants who are seeking employment employees but severely restricting instances where an applicant for a job can be rejected based on a prior criminal record. The Criminal History Record Information Act provides that whenever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, the employer may only use that information for the purpose of deciding whether or not to hire the applicant, where felony and misdemeanor convictions relate to the applicant’s suitability for employment in the position for which the prospective employee has applied. Further, the employer is required to notify the applicant in writing if the decision not to hire the applicant is based in whole or in part on criminal history record information. Courts have found that this law only applies to the hiring decision and not to post hiring decisions made on the basis of a criminal history.

In Negron v. School District of Phila., E. D. Pa. 2014 U.S. Dist. LEXIS 4947 (Yohn, J.)(E.D. Pa. January 15, 2014), the Plaintiff signed a document titled, “temporary professional employee notification” and secured a job as a non-tenured teacher, subject to a pending background check. Prior to securing employment as a teacher, the employee completed an application which asked, “[w]ere you ever convicted of a criminal offense?” Conviction was defined in the application as “an adjudication of guilt…which results in a fine, sentence, or probation” but the applicant was permitted to omit convictions for which he successfully completed an Accelerated Rehabilitative Disposition Program (“ARD”). The employee had been convicted of two unspecified charges for which he successfully completed ARD and indicated on his application that he did not have any prior convictions. After the employee had already commenced employment, the School District terminated the employee for allegedly misrepresenting his criminal history on his employment application.

In a prior design in Negron, the court held that the Criminal History Record Information Act applied only to hiring decisions and granted the School District’s motion to dismiss but the court granted the employee leave to file an amended complaint under a “‘probationary employee theory.” Thereafter, the employee amended the complaint and alleged that he was a non-tenured teacher hired subject to the results of a pending background check, he was not permanently hired as a teacher, and his status as a non-permanent employee or an employee temporarily hired pending completion of his background check was confirmed or suggested by the Defendant employer’s termination of employment on the basis of his application and the results of that background check.
While in Negron the court held that the Criminal History Record Information Act applies only to hiring decisions, the court found that since the employee was hired subject to the results of a pending background check and it was alleged that his termination was motivated by his criminal history, construing it in the light most favorable to the plaintiff, the amended complaint alleges that because the employee was hired subject to a background check his subsequent termination, based on that background check, potentially constitutes a hiring decision, drawing his claim within the scope of the Criminal History Record Information Act.

For more information about the Pennsylvania Criminal History Record Information Act and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2122109.html

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Filed under Employment Law, Pennsylvania Criminal History Record Information Act