Pennsylvania Employment Legal Questions

The wage rules for travelling workers are very fact specific.  I can say generally that the answer to your question probably depends on whether you are properly classified as an "employee" or an "independent contractor."  Don't rely on how the company classifies you.   Companies will often classify workers as independent contractors when, in fact, the law would classify them as employees.  This is very common.   You should contact an employment attorney to discuss the specifics of your situation to get a more definitive answer.  Feel free to contact me.   www.wgsf-law.com... Read More

I'm really to sorry to hear about this for you.  I'm certain that trying to decide whether to try and keep your job is a difficult one.  The answer to your question is clear: this is not a resignation.  It's relevant to your eligibility for unemployment compensation benefits only.  You should apply and if you are not granted benefits you should definitely appeal.  If you are no longer going to be employed by this company you may want to consider speaking with an attorney who can review your work history and see if you might have any unpaid wage claims (they are fairly common). If they are raised, the can give you leverage against your employer to not contest your claim for unemployment comp benefits. ... Read More

All I can say is "wow".  Sadly this is an all-too-common situation.  Workers are reticient to assert their rights for fear of being fired or subject to adverse treatment at work.  I can assure you that what is going on is not in compliance with Federal or State law. I would encourage your husband to file a complaint with either the U.S. or PA Department of Labor and those agencies may conduct an investigation resulting in back-pay plus penalties for the unpaid hours your husband has worked. Your husband can also retain private counsel to assert his rights under those statutes.  If several of the employees there band together it can reduce the chance of adverse consequences from the employer.  I'd urge you to take action! ... Read More

An employer's obligaton to pay wages and other reumeration is governed by the Federal Fair Labor Standards Act and the Pennsylvania Wage Payment and Collection Law.  I believe you have claims under both of these laws.  If you are successful, you can receive your unpaid wages, interest and penalties.  In addition, under certain circumstances owners of the company for which you worked can be personally liable for your unpaid wages.  You can file a complaint against your employer with either the U.S. or PA Departments of Labor or retain private counsel.  If you are successful, those laws provide for mandatory payment of your attorneys fees in addition to the remedies I mentioned above.  The fastest way for your resolution would be to seek out private counsel. ... Read More

Interesting question.  The answer is probably not if the employer can show that it does not create an unequal burden based on gender and is actually related to the function and purposes of the job. The situation you describe was actually the subject of a high profile case against Harrah's Casino.  See Jespersen v. Harrah's Casino.  In that case, the Plaintiff challenged Harrah's "personal best" policy which included a requirement that women wear makeup.  The District Court found that the policy did not create an unequal burden on female employees since male employees were required to be well-groomed and keep their hair short.  Although it seems like a stretch of logic to compare the grooming policy as applied to men, and as applied to women at Harrah's, the Court found that they imposed similar burdens regardless of gender. The Ninth Circuit Court of Appeals agreed in part, but stated that if the policy was motivated by sex/gender stereotyping, it could be found to be discriminatory.... Read More

Depending on the facts, you could have a claim under the wage payment law in Pennsylvania.  Of course, this applies if the client actually purchased the claim.  Under Pennsylvania law, there are very few valid reasons for witholding an employee's pay.  One of these excuses for non-payment is where the company has a good faith dispute about whether the wages are due and payable to you.  ... Read More

The answer to this question will depend very heavily on the facts. Since you are 62, you are part of the protected class category under the Age Discrimination in Employment Act (which applies to employees 40 years of age and older). The question becomes whether you were laid-off because of your age.  This depends on a number of factors.   How does the company treat other older employees?   Has anyone made comments about your age? How are your performance reviews?   What was the stated reason for the lay-off (I'm assuming it was due to budget issues)? Were other employees laid-off or just you?   These are just a few of the questions that are relevant to determining whether you were discriminated against based on your age.   ... Read More

You are entitled to your wages, regardless of whether your prior employer has been paid by its client for the work that you did.  This is a common problem with Visa workers like you.  Your entitlement to wages is covered by the Federal Fair Labor Standards Act and, if your employment was governed by Pennsylvania law, the Pennsylvania Wage Payment and Collection Law.  You can initiate an administrative claim with either the U.S. or Pennsylvania Departments of Labor, Wage and Hour division or you can file a private lawsuit against your former employer.  In some instances, the principal owners of your employer can be personally responsible for your unpaid wages -- suing them in addition to the company usually gets you a lot of attention!   The private suit will probably get you faster results.  Both statutes require employers to pay your attorneys fees plus penalties on top of the unpaid wages. ... Read More

The payment of commissions is governed by the Pennsylvania Wage Payment and Collection Law.  If your commissions are "earned", your employer is required to pay them to you within 15 days of the normal pay cycle.  You can sue the company for your commissions.  If the "partners" were decisions makers on how much and when people in the company got paid, they can also be sued individually for the commissions.  You can sue both your ex boss and the partner who ran away with the money.  In addition to the unpaid commissions, you can seek penalties of 25% of the unpaid amount or $500 (whichever is greater) plus the imposition of attorneys fees is mandatory. ... Read More

Yes, that might very well be retaliation.  However, a bigger issue might be the misclassification for however long its persisted and the results of that for you.  You might've been entitled to overtime pay and other benefits.  That being said, corrections to misclassifications can have unintended results for both the employer and employee.  I'd strongly recommend that you seek the advice of experienced employment law attorney for further review of your case.  These types of claims are generally very fact-specific.  No matter whether you seek counsel or deal with it on your own, the question only you can ask is "what are you prepared to do about it?"... Read More

It's probably not illegal for the employer to have such a rule.  Whether is enforceable on a practical level is another thing altogether.  How would the employer ever find out?  If the rule were violated, could you be fired?  Yes.  I doubt the employer would violate any type of law for firing you for that reason.  I do think you'd win your unemployment compensation claim if the employer challenged it though.  I doubt a violation of this rule would constitute "willful misconduct" such that you would be ineligible for unemployment compensation. ... Read More

You are very likely entitled to be paid for your work.  I would suggest that you try one of two ways of getting paid if your requests for payment continue to go without an adequate response.  One would be to file a complaint with your local magistrate and cite a violation of the Pennsylvania Wage Payment and Collection Law.  Ask for your unpaid wages plus the statutory penalties of the greater of $500 or 25% of the amount of your unpaid wages.  You can also file a complaint with the Pennsylvania Department of Labor, Wage and Hour Division.  That office can pursue to matter on your behalf.  Of the two, the first is more likely to get you paid sooner. ... Read More

There is no general rule in Pennsylvania requiring employers to pay employees for unused vacation.  However, if your employer has a written policy of paying employees for some or all annual unused vacation, then the employer has obligated itself to comply with its policy.  If it fails to pay for the unused vacation in a timely fashion, the employer could be required to pay a penalty of the greater of $500 or 25% of the unpaid amount and, in the event of litigation, also pay the employee's attorneys fees.  So check the employer's handbook or policy wherever its published to see if it speaks to the issue of accrued but unused vacation time.  ... Read More

Good afternoon.  Dealing with non-compete agreements present some really tough decisions for employees to make.  I always tell my clients, both employer and employees alike, that with non-compete agreements, there's what the law says and what reality says.  From the perspective of the law, if you inform your current employer that you're taking a different position (I'm presuming it would violate the non-compete) and, in doing so, you are relying on the employer not yet signing the agreement, I suspect your employer will cough up a signed agreement that pre-dates your notice.  You have to assume that.  If that's what happens, then you are left to determining whether accepting the new job would violate the agreement.  If you aren't certain the new job would violate the agreement, that should be reviewed carefully.  From the perspective of realtiy, let's assume your employer has a perfectly enforceable agreement and that your new job would violate the agreement.  Does your employer have a history of enforcing its non-compete agreements?  They are expensive to enforce and take a lot of energy. some employers don't have the budget or stomach for that.  It might be that you've learned so little from your new employer and its "secrets" or customers that they wouldn't consider you a threat and would simply let you go without a fight.  In order for anyone to advise you properly, they'd need more facts and to review the agreements.  They may need to investigate your employer's history of enforcement actions.  Sounds like you need to act quickly.  Feel free to contact me if you are interesting in moving further with this matter.  ... Read More

In general, there is no private right of action for OSHA violations/retaliation by an employer, meaning that you cannot file a lawsuit in Court on your own (or with a lawyer).  But you can file a Complaint directly with the Federal Dept. of Labor (more specifically OSHA) and then OSHA will generally investigate.  You can contact OSHA yourself or with the help of a lawyer - but you should contact OSHA ASAP as there are usually very strict statutes of limitations (time limits)   You may also have protection (or a private right of action) under local State PA. law - for which you would probably need an attorney.   I hope that helps. ... Read More

Your employer cannot take any action against you based on the fact that you took or are returning from FMLA leave as long as you returned within the 12 seek period allowed. The employer is required to return you to the same or similar position on your return within the alloted 12 week period, and that would include the same pay.  The employer will need to prove that reducing your pay was competely unrelated to your having been on FMLA and would have occurred even if you had not taken any FMLA leave.... Read More

There is no requirement that you sign any document presented to you by your employer, especially if you do not agree with it.  If you sign this form, then you will probably be denied unemployment.  You can either ignore the letter, or reply back saying you were told you were terminated and asked to leave the job on Jan 2, and ask the employer why they want you to sign this letter under these circumstances. ... Read More

It is NOT legal to terminate an employee because she is pregnant.  The federal statute against pregnancy discrimination only applies to employers who have approximately 40 employees.  But, it would still be considered gender discrimination under federal law if there are at least 15 employees. There may also be state statutes that specifically apply to pregnancy discrimination and would apply even with fewer than 40 employees.  Your employer will need a very strong explanation for why he terminated you given the timing of the discharge from when you informed them of being pregnant. See an attorney who specializes in this area immediately... Read More

If you qualified for FMLA (full time for past 12 months before your daughter became ill, and your employer had at least 50 employees at your work site area), then you may have been entitled to FMLA for the time needed to care for your daughter.  FMLA does allow you to take leave for a family member.  Your daugher's medical condition would also have to qualify under the FMLA as a serious health condition which is defined by missing work or school for at least 3 days due to the condition, and undergoing medical treatment for the condition. If your employer was aware of your need to be with your daughter and you qualify for FMLA, then you can and should consider taking legal action.  You should consult with an employment law attorney in your area to detemine if you qualified under the FMLA... Read More

Although most unions and union reps are helpful, not all of them are.  When the union fails to respond in any manner at all, you should contact the union BA and president in writing instead of just leaving messages hoping that they will call you back.  There are strict deadlines for filing a union grievance and if the union misses the deadline, you are out of luck.  If the union is deliberately refusing to contact you because of some animosity they have against you, then documenting your attempts to get them to file a grievance will help you prove a possible case of the union's breach of the duty of fair representation.  This type of claim can be filed with the National Labor Relations Board. Some union contracts also allow the employee to file the first step grievance without the union.  If that applies to you, you should do so immediately.  your union contract will indicate whether you can do this on your own at least for the first step in the grievance process Having said that, it may be very hard for the union to save your job if you were caught sleeping on duty.  You should speak to an attorney to explore any other options... Read More

Normally, the employer asks the employee to sign a verbal or written warning form to establish that they discussed the issue with you.  This prevents the employee from later claiming they never knew about this matter.  It is usually not intended to have you admit that you engaged in the alleged misconduct. There are occasions, however, when the employer is demanding that the employee sign and admit to the allegations and may even threaten to terminate the employee if he refuses to admit to this.  If you did not engage in the alleged misconduct, then you should not sign it regardless of the threats against you.  This is because that type of employer may later use that against you to block your unemployment or as evidence to support your termination.  Do not sign it if you disagree it.  If part of the incident is accurate but part of it is not, you would have the right to provide a written response stating where you agree and where you disagree with the accusations.... Read More

I strongly suggested that you meet with an attorney who handles both employment law and employee benefits.  From your description, it is clear that the employer has violated both federal and state law as to the proper payroll taxes and failure to contribute to the state for unemployment.  He is subject to fines for this.  But more importantly, your fellow employees and you should be paid appropriately and receive the proper credit for benefits. Legal action should be taken quickly and it may be possible to sue the owner as an individual in addition to the corporation.  Your city and your state should have a bar association referral service that will help you find an attorney. You can also use lawyers.com and NELA.org to find a listing of qualified attorneys... Read More