Saturday, January 25, 2020

wages - FLSA - settlement - confidentiality agreement, general release - sever ability

Solkoff v. Penn State University -  ED Pa. January 23, 2020

The parties’ settlement of plaintiff’s Fair Labor Standards Act case was approved by the court, except for the confidentiality agreement and plaintiff’s general release, which the court held could be severed from the rest of the agreement.

Frustration of FLSA
The confidentiality clause and release clause frustrate the FLSA’s purpose. The central purpose of the FLSA was to provide a remedy for the consequences resulting from “the unequal bargaining power as between employer and employee.” Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945). One of the main consequences of unequal bargaining power was substandard wages, thus the FLSA sought “to secure for the lowest paid segment of the nation's workers a subsistence wage.” Kraus v. PA Fit II, LLC, 155 F. Supp. 3d 516, 525 (E.D. Pa. 2016) (citing D.A. Schulte v. Gangi, 328 U.S. 108, 114 (1946)). In accordance with this central purpose, the general releases and confidentiality clauses in FLSA settlement agreements will be rejected. 

Confidentiality clause
Generally, confidentiality clauses in FLSA settlement agreements frustrate the purpose of the FLSA by facilitating information asymmetry that hinders FLSA enforcement. 

The defendant’s employees, as well as the public at large, have an interest in ensuring fair wages and thus an interest in information about the defendant’s settlement of claims alleging a failure to provide fair wages. . . And by preventing plaintiffs from discussing their cases with other potentially harmed employees, approval of “confidentiality clauses would create new imbalances of information between Defendants and their employees.” . . . In creating this information asymmetry, confidentiality clauses stifle the robustness of FLSA enforcement by creating an obstacle to detecting FLSA violations and to vindicating FLSA rights. 
Under certain circumstances, a confidentiality clause may be approved if it is limited to prevent its undermining the purpose of the FLSA. In certain cases, the purpose of the FLSA may not be frustrated by a confidentiality clause that does not create information asymmetry between the defendant and his employees, namely by allowing the plaintiff to discuss the case and settlement with other employees, but not the media. The purpose of the FLSA is frustrated when alleged FLSA violations by an employer are concealed from its employees and the public. Therefore, contractually binding Plaintiff to make reasonable efforts to maintain confidentiality regarding this settlement will be disapproved. 

General release
The broad release of claims that includes unrelated claims and claims unknown to the plaintiff frustrates the purpose of the FLSA by allowing employers to use their superior bargaining power to disadvantage FLSA claimants. Overbroad release provisions in FLSA settlement agreements subvert the goal of remedying the consequences of unequal bargaining power. 
Because, unlike the confidentiality provision, the release provision is explicitly not severable, the Court will not approve the settlement agreement. 

Friday, January 17, 2020

certified legal interns - bar admission rules




Tuesday, December 24, 2019

employment - professional license - past criminal convictions - no relation to profession

Haveman and Spillane v. State Board of Cosmetology – Cmwlth. Court – 12-9-19 – unreported memorandum opinion**

Held: Petitioners have standing to challenge of the good-moral-character requirement of sec. 5 of the Beauty Culture Law.  Their claims are adequately developed and are ripe for consideration. Because Petitioners seek declaratory and injunctive relief on a facial constitutional challenge and are not appealing the Board’s denial of their license applications, the claims are not barred by a failure to exhaust administrative remedies, collateral estoppel, or res judicata and the Petition is not untimely. Finally, Petitioners seek declaratory relief and not damages; thus, their claims are not barred by the two-year statute of limitations. 

Petitioners had prior criminal convictions which, they say, involve conduct unrelated to the cosmetology profession. Petitioners allege a violation of their state substantive due process rights under article I, section 1 of the Pennsylvania Constitution,which protects Petitioners’ rights to pursue their chosen occupations free from “arbitrary and irrational legislation.” 

Petitioners assert that the good moral character requirement is facially unconstitutional under article I, section 1 because it lacks a substantial relationship to a legitimate government interest and is unduly oppressive. Petitioners also allege that the good moral character requirement is facially unconstitutional under Pennsylvania’s equal protection guarantee. 

Because Petitioners were treated differently from similarly situated individuals, such as prospective barber licensees, due to the good moral character requirement, Petitioners aver that the requirement is unduly oppressive. Petitioners assert that the good moral character requirement has no substantial or rational relationship to a legitimate government interest to justify this different treatment between similar individuals. 
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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716




Wednesday, December 18, 2019

custody - medical marijuana

H.R. and C.A.R. v. C.P. and J.M. – Pa. Superior – reported, precedential – December 18, 2019

Held:  The Medical Marijuana Act does not preclude the trial court from making relevant findings concerning the effect of marijuana use, whether medical or recreational, on a parent’s ability to care for his or her child. Indeed, contrary to Father’s assertion, the Medical Marijuana Act expressly reaffirms § 5328(a) as the controlling mechanism for determining a child’s best interest. See 35 P.S. § 10231.2103(c) (“In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.”). 

That statutory framework explicitly requires the fact-finder to consider not only a parent’s history of drug and alcohol use but also their mental health and physical conditions. Thus, rather than requiring the court to ignore Father’s marijuana use, the Medical Marijuana Act obligated the trial court to contemplate Father’s physical condition, i.e. the nerve pain he complains of in his right wrist, and his reliance upon medication to subdue that pain. 

By way of comparison, OxyContin®, Vicodin®, codeine, and morphine are legal substances when prescribed by a physician; however, it is beyond cavil that, prior to making a custody determination, § 5328(a) (14) and (15) mandates that a trial court consider how a parent’s legal use of any of these substances impacts his or her child’s best interest. That is precisely the analysis that the trial court performed in the case at bar. 

Friday, November 15, 2019

child abuse - expungement - substantial pain - duration of bruise


J.S v. Departmnt of Human Services – Cmwlth. Court – reported, precedential – November 15, 2019

The ALJ’s determinations that Father disregarded a substantial and unjustifiable risk and caused Child substantial pain are both inconsistent with case law and unsupported by the record.  P.R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002)11W.S. v. Department of Public Welfare, 882 A.2d 541 (Pa. Cmwlth. 2005); Allegheny County Office of Children, Youth & Families v. Department of Human Services, 202 A.3d 155 (Pa. Cmwlth. 2018). 

“Without substantial proof” that Child’s pain “was more than the regrettable result of corporal punishment,” we will not rely on such result “to presuppose the element of unjustifiable risk” that would support a finding of criminal negligence. P.R., 801 A.2d at 487.  To the extent the ALJ assumed a correlation between the duration of a bruise and a degree of pain, the ALJ erred. 

Thursday, November 14, 2019

Hydrojet Services v. Reading Area Water Authority – Cmwlth. Court – November 14, 2019 – reported precedential opinion

The court affirmed a trial court ruling in favor of the enforcement of a settlement agreement concerning a large past-due water bill, relying primarily on Mastroni-Mucker v. Allstate Insurance Co., 976 A.2d 510 (Pa. Super. 2009), which held that the verbal agreement reached by the parties constituted a binding agreement and any delay in executing a written agreement memorializing the agreed- upon terms does not defeat that agreement

From the opinion:

The law of this Commonwealth establishes that an agreement to settle legal disputes between parties is favored. Compu Forms Control Inc. v. Altus Group Inc., 574 A.2d 618, 624 (Pa. Super. 1990). There is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant. Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 946 (Pa. Super. 2004). If courts were called on to re-evaluate settlement agreements, the judicial policies favoring settlements would be deemed useless. Greentree Cinemas Inc. v. Hakim, 432 A.2d 1039, 1041 (Pa. Super. 1981). 

Settlement agreements are enforced according to principles of contract law. Pulcinello v. Consolidated Rail Corp., 784 A.2d 122, 124, (Pa. Super. 2001), appeal denied, 796 A.2d 984 (Pa. 2002). “There is an offer (the settlement figure), acceptance, and consideration (in exchange for the plaintiff terminating his lawsuit, the defendant will pay the plaintiff the agreed upon sum).” Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1349 (Pa. 1990), cert. denied, 502 U.S. 867 (1991). 

Where a settlement agreement contains all of the requisites for a valid contract, a court must enforce the terms of the agreement. McDonnell v. Ford Motor Co., 643 A.2d 1102, 1105 (Pa. Super.), appeal denied, 652 A.2d 1324 (Pa. 1994). This is true even if the terms of the agreement are not yet formalized in writing. Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999); see Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911 A.2d 133, 147 (Pa. Super. 2006) (stating “an agreement is binding if the parties come to a meeting of the minds on all essential terms, even if they expect the agreement to be reduced to writing but that formality does not take place.”). 

Pursuant to well-settled Pennsylvania law, oral agreements to settle are enforceable without a writing. Pulcinello, (citing Kazanjian v. New England Petroleum Corp., 480 A.2d 1153, 1157 (Pa. Super. 1984)). An offeree’s power to accept is terminated by (1) a counter-offer by the offeree; (2) a lapse of time; (3) a revocation by the offeror; or (4) death or incapacity of either party. See First Home Savings Bank, FSB v. Nernberg, 648 A.2d 9, 15 (Pa. Super. 1994) (citing Restatement (Second) of Contracts §36 ([Am. Law Inst.] 1981)), appeal denied, 657 A.2d 491 (Pa. 1995). However, “[o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such.” Restatement (Second) of Contracts §42, Comment c. ([Am. Law Inst.] 1981). 
Mastroni-Mucker, 976 A.2d at 518.

Where a settlement agreement contains all of the requirements for a valid contract, a court must enforce the terms of the agreement even if they were never formalized in writing. See also Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor Control Board, 739 A.2d 133, 136 (Pa. 1999) (holding that “[i]f the parties agree upon essential terms and intend them to be binding, a contract is formed even though they intend to adopt a formal document with additional terms at a later date”). Section 27 of the Restatement (Second) of Contracts includes similar language, stating that: 
Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations. 
RESTATEMENT (SECOND) OF CONTRACTS §27 (Am. Law Inst. 1981).

In this case, RAWA does not dispute that the parties reached a verbal agreement with respect to Hydrojet’s unpaid water and sewage bills at the meeting between the parties on December 5, 2017. This verbal agreement called for Hydrojet to make installment payments until these unpaid bills were fully satisfied. As can be seen in the subsequent written settlement agreement, the parties agreed that Hydrojet owed RAWA a total of $133,298.00 for past water service and that Hydrojet would make 98 monthly payments of $1,020.00 along with a lump sum payment of $33,329.50 to satisfy these outstanding charges, upon which RAWA would release Hydrojet from any claims relating to its past water usage. Hence, the necessary prerequisites for a valid contract were established at the December 5, 2017 meeting, i.e., offer, acceptance, and consideration, and the trial court did not err in concluding that the verbal agreement was a sufficient basis upon which to rely in granting Hydrojet’s enforcement petition. 

Tuesday, November 05, 2019

UC - vol. quit - employer reprimand

Decker v. UCBR – Cmwlth. Court – unreported** memorandum decision – November 4, 2019

Burden of proof - A claimant who voluntarily terminates her employment has the burden to establish a necessitous and compelling reason for doing so. Petrill v. Unemployment Comp. Bd. of Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005). The claimant must prove that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and (4) the claimant made a reasonable effort to preserve her employment. Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). 
Reprimand, etc. - It is well settled that resentment of a supervisor’s reprimand, absent unjust accusations, abusive conduct, or profane language, does not constitute a necessitous and compelling reason to voluntarily terminate one’s employment. Krieger v. Unemployment Comp. Bd. of Review, 415 A.2d 160, 161 (Pa. Cmwlth. 1980).  
Furthermore, “an emotional upset over a reprimand imposed by the employer does not as a rule constitute ‘cause of a necessitous and compelling nature.’” Yasgur v. Unemployment Comp. Bd. of Review, 328 A.2d 908, 910 (Pa. Cmwlth. 1974) (citation omitted). 
Here, Claimant contends that she was compelled to quit because Employer created a hostile, uncomfortable work environment and because she was singled out, embarrassed, and humiliated in front of her co-workers.Claimant also asserts that Mr. Nichols unjustifiably threatened her job. We conclude that the record belies these claims. 
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**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716





evidence - courts - documents - authentication - Pa. R.El. 901 and 902 - amendments



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