Sean A. Casey: experienced labor law attorney in the greater Pittsburgh area. Call (412) 201-9090 or (888) 658-0041 today for a free consultation.
In today's uneasy economy, you need to protect your job, particularly if it offers good pay and benefits.
Being terminated from your job will:
- Immediately impact your financial situation
- Lead to significant long-term consequences
Even if the employment relationship is not salvageable, ending it the right way is very important.
Pennsylvania Statutes: Providing Rights and Protections to Employees
Understanding the employment statutes and how they interact is a primary focus of this firm. This understanding is essential to effectively representing an individual dealing with job issues or loss. The following is a sample of the employment statutes and causes of action that I pursue in the representation of my clients:
- The Americans with Disabilities Act Amendments Act of 2008
- Family Medical Leave Act
- Age Discrimination in Employment Act
- Unemployment Compensation
- Pennsylvania Human Relations Act
- Employee Retirement Income Security Act
- Racial Discrimination
- Sexual Harassment
- Wrongful Termination
Click here for Pennsylvania state labor law information.
The Americans with Disabilities Act Amendment Act of 2008
The amended version of the ADA greatly improved the scope of coverage for disabled employees. It requires employers with more than 15 employees to provide reasonable accommodations for individuals with covered disabilities.
Ultimately, the ADAAA expanded the definitions of disability under the Act, which had been narrowly interpreted in some Federal decisions, most notably Sutton v. United Airlines, Inc. 527 U.S. 471 (1999).? To meet the definition of disabled under the ADAAA, an individual must have:
- a physical or mental impairment that substantially limits one or more major life activities
- a record of such impairment, or
- be regarded as having such an impairment
It now includes a non-exhaustive list of what would be considered a major life activity, to include:
“caring for oneself, performing manual tasks, seeing, hearing, walking, standing, lifting, bending…”
The list includes functions of the:
- immune system
- neurological system
- respiratory system
The ADA interprets the term “substantially limits” in a broader fashion to favor the disabled employee.
Another significant provision provides that episodic disability can be included in the term “disability,” if it substantially limits a major life activity when an episode occurs. The Act specifically includes psychological conditions such as depression and schizophrenia.
This Act is a very valuable tool for protecting an employment position when facing medical difficulties.
It is absolutely essential to establish the employer's notice or knowledge of the disability and duty to provide requested accommodations in order to be eligible to assert rights under the ADAAA.
As much as it may go against a person's instincts, they must make the employer aware of the disability and request the accommodation:
“This action is necessary to trigger the employer's responsibilities.”
From that point:
- the employee and employer are required to engage in an interactive process,
- to identify and assess what effective reasonable accommodations can be made to allow the employee to continue working despite his or her limitations resulting from the disability.
- legal representation is critical.
“Most employers have legal guidance in dealing with these issues, and so should the employee. When used correctly, this statute can be very effective for keeping a job.”
Family Medical Leave Act
This act provides a covered employee with up to 12 weeks of unpaid leave during a twelve month period for an inability to work due to a serious health condition, or to care for someone in their immediate family. More so, FMLA requires reinstatement at the conclusion of that leave.
FMLA applies to private employers who employ 50 or more people for 20 or more calendar weeks in the preceding calendar year. With the appropriate medical certification, this leave can be periodic or intermittent, and need not be taken in consecutive weeks.
To be approved for FMLA, the employee must:
- have a “serious health condition,” which in general terms involves inpatient care, continuing treatment, and/or periods of incapacity
- provide the employer with proper certification from a medical professional
- provide certification within 15 days of the employer's request. Re-certification can be requested every 30 days, and the employee may be required to comply with the employers call-in procedures for absences due to illness.
- have worked 1,250 hours in the prior 12 months
Employers can challenge or attempt to deny this leave in a number of ways:
- They can question the employee's eligibility on grounds he or she has not worked a sufficient amount of time
- They can challenge the adequacy of the certification or request additional medical opinions at their own expense
Having legal representation to ensure compliance with the FMLA, and to prevent retaliation for exercising these rights, can be essential to ensuring that you maintain the job protection provided under this statute. This is especially true for an individual who has a chronic illness, or a family member with a chronic illness, and who requires intermittent leave on an annual basis.
Age Discrimination in Employment Act
This act protects individuals over the age of 40 from discrimination based on their age.
Some employers will make decisions regarding employment matters based on misinformed notions regarding older employees, including their abilities, appearance and their potential medical issues.
Discrimination can take the form of:
- failure to promote
- unequal pay and
- other actions that demonstrate disparate treatment.
At times, this can be seen as a pattern within a company and clearly constitutes discrimination under this statute.
Generally, an individual terminated by his employer is eligible for unemployment benefits, absent a few specific exceptions.
The employer's allegation of poor work performance is not sufficient for denial of benefits. The burden is on the employer to demonstrate that?the employee:
- voluntarily quit the position
- displayed a willful disregard for the company's interest, or
- otherwise engaged in significant violations of company policy
Many employers will try to deter an employee from applying for benefits by saying they will fight the application. These employers often show up unprepared to meet their legal burden and possess little understanding of significant legal issues needed for introducing evidence. Having legal representation at the hearing can make a huge difference in the conduct of the hearing and the ultimate outcome.
Pennsylvania Human Relations Act
This is an often overlooked statute that can be used to go after discriminatory conduct by small business employers who are not covered by the federal statutes.
This statute provides protection from discrimination to the same classes of individuals covered by the federal statutes. It also can be used to pursue individual liability for discriminatory acts and retaliation. The process for pursuing rights under the PHRA is markedly different from the other statutes; seeking legal counsel is almost a necessity.
Employee Retirement Income Security Act
Known as ERISA, this federal statute protects the benefits of employees.
Most people have heard of COBRA, which is a provision in ERISA, that provides for a continuation of healthcare coverage after separation from employment.
The statute also provides protections for employee's rights under:
- pension plans
- short-term and long-term disability plans, and
- other benefit packages provided by the employer.
As with the other federal statutes, ERISA has very specific procedures that must be followed; legal consultation is highly recommended.
This cause of action is provided for under Title VII of the Civil Rights Act of 1964.
A discriminatory act against an individual because of race is illegal and can include conduct such as:
- failure to promote
Usually, a report has to be made to the employer to trigger liability, and the method of that notice must be handled correctly. Employing counsel in the early stages of this process can help ensure a timely and thorough response from the employer.
Sexual harassment falls under Title VII of the Civil Rights Act of 1964, and it is an all too common occurrence in the workplace. The office is not the place for inappropriate conduct or conversation.
Many companies still do not have the policy or training necessary to prevent sexual harassment in the workplace. Proper reporting to the employer is the important first step.
Legal representation for these cases can:
- ensure a real response from the employer
- minimize the retaliation, and
- aid with timely EEOC filing in the event that it has to be taken to the next level.
Once an employee has exercised his or her rights under a federal statute, there is an absolute prohibition against an employer retaliating against the worker for exercising those rights.
Even if the underlying cause of action is ultimately dismissed, a retaliation claim can stand as a separate cause of action. Under the ADAAA, once the request for accommodation is made, any actions taken by the employer to deter, intimidate, harass, or otherwise dissuade the employee from exercising those rights provides evidence of a cause of action for retaliation.
The key for the employee is to report and assert those rights. The retaliation claim can be used to protect witnesses as well. Often the retaliation claim provides the best cause of action in an employment case.
This is a common law cause of action, meaning that it has developed more from case law and policy than from a specific statute.
The courts have recognized a clear public policy that mandates employees not be terminated for exercising statutory rights. There are specific cases in Pennsylvania that recognize instances where employees have exercised rights for unemployment benefits and Workers' compensation benefits, or to terminate someone for participating in jury duty.
However, the full scope of this cause of action is not well defined.