Tuesday, May 10, 2016

disability - ADA - charging admission for personal care attendants of disabled persons

Anderson et al. v. The Franklin Institute – E.D. Pa. – May 6, 2016


Held:  FI’s policy of charging separate admission fees for the government-funded personal care attendants (PCA) of people with disabilities violated the Americans with Disabilities Act, 42 USC 12181 et seq., and corresponding regulations, 28 CFR 36.101 et seq.  FI’s policy effectively doubled the cost of admission for the class of disabled persons who need PCAs to help with aspects of daily living.

In 1990, Congress enacted the ADA “to remedy widespread discrimination against disabled individuals. In studying the need for such legislation, Congress found that ‘historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.’ ” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001). 11 Title III of the ADA and its implementing regulations prohibit “public accommodations,” including museums, theaters, stadiums, and other places “of exhibit entertainment,” from discriminating against people with disabilities. 42 U.S.C. § 12181(7)(C)&(H). Specifically, “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).

Discrimination under the ADA includes failure to afford an individual or class of individuals the equal opportunity to participate in or benefit from a good, service, or facility as able-bodied individuals on the basis of disability. 42 U.S.C. § 12182(b)(1)(A)(ii); see generally 42 U.S.C. § 12101. An entity can also be held liable for ADA discrimination for failing to reasonably modify its policies and practices to accommodate individuals with disabilities absent proof “that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii). In addition, a “public accommodation may not impose a surcharge on [disabled persons] to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide [those individuals] with the nondiscriminatory treatment required by the Act or this part.” 28 C.F.R. § 36.301(c).

The above statutory requirements and definitions have been condensed by the case law into a three part test: “[t]o state a claim of disability discrimination under Title III of the ADA, a plaintiff must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by the public accommodation's owner, lessor or operator.” See, e.g., Harty v. Burlington Coat Factory of Pennsylvania, L.L.C., No. 11-01923, 2011 WL 2415169, at *9 (E.D. Pa. June 16, 2011) (internal citations omitted); Dempsey v. Pistol Pete's Beef N Beer, LLC, No. 08-5454, 2009 WL 3584597, at *3 (D.N.J. Oct. 26, 2009).   The court held that that plaintiffs satisfied this test, concentrating its analysis on part two: the right to full and equal enjoyment of goods and services.
---------------------

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Tuesday, May 03, 2016

UC - willful misconduct - rule violation - good cause for non-compliance - circumstances

Bell v. UCBR – Cmwlth. Court – April 26, 2016 – unpublished memorandum opinion*


“The fact that the claimant knew the employer rules and did not strictly comply with it does not necessarily require a finding of willful misconduct.”  Circumstances may provide good cause for lack of compliance.

In this case, claimant had a very minor accident (knocked over a mailbox).  Employer rules required the immediate reporting of accidents.  Claimant didnt report until he returned to the office.  Circumstances included that: the accident was very minor; claimant’s cell phone did not work, nor did his partner’s; his partner, who was senior to him, advised that it was ok not to report until returning to the office; claimant reported immediately upon return to the office.
---------------------------------
*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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)




Sunday, April 24, 2016

UC - willful misconduct - entry into ARD not proof of WM

Reading Water Authority v. UCBR – Cmwlth. Court – April 21, 2016


Held:  Where a claimant is fired for a criminal act, such as theft, subsequent acceptance into an ARD program is not sufficient proof of willful misconduct.  Bruce v. UCBR, 2 A.3d 667 (Pa. Cmwlth), app. denied, 12 A.3D 753 (Pa. 2010); UCBR v. Vereen, 379 A.2d 1228 (Pa. Cmwlt. 1977).
-----------------

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)


Monday, April 11, 2016

UC - overpayment - non-fraud - partial v. total liability for benefits received

Stock v. UCBR – Cmwlth. Court – April 8, 2016


UCBR found that claimant made an “honest mistake” in failing to report part-time (PT) earnings over a period during which he received UC benefits.  Board also found that claimant “did not knowingly or intentionally” give false information or withhold information in order to obtain benefits, and that there was no fraud involved.

Under those circumstances, the Board erred in making a finding of “total ineligibility” and requiring claimant to reimburse the Dept. for all of the benefits that he had received.  Rather, claimant should be permitted to settle the overpayment by reimbursing the difference between the amount that he received and the amount that he should have received had his part-time wages been properly reported.

The Board erred in disqualifying him as to all benefits that he received while employed part-time. Instead, the Board should have calculated the non-fraud overpayment by first

            - determining the amount of benefits that Claimant would have received had he properly reported his PT earnings, and then
            - subtracting that amount from the amount Claimant actually received.

The difference between these sums would equal the amount of the non-fraud overpayment.
--------------------------

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)



Friday, April 08, 2016

federal courts - class action - unaccepted offer of judgment to indiv. plaintiff under FRCivP 68 does not moot class action

Weitzner v. Sanofi Pasteur Inc. – 3d Cir. April 6, 2016


Putative class action under Telephone Consumer Protection Act, 47 USC 227, not mooted by defendant’s unaccepted offer of judgment to individual plaintiff under FRCiv P 68, made before plaintiff filed motion for class certification, under Campbell-Eward v. Gomez, 136 S.Ct. 663  (2016), which overrules prior 3d Cir. precedent, Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004).



Thursday, April 07, 2016

legislative standing

Markham et al. v.Wolf et al. – Pa. Supreme Court – March 29, 2016


Held:  Legislators do not have standing to intervene in a case challenging the governor’s issuance of an executive order concerning direct care health workers.    The legislators’ interests purportedly impacted by the executive order do not involve unique legislative prerogatives, but, rather, are interests common to the general citizenry, which only remotely impact the legislators’ right to act as legislators.


Tuesday, April 05, 2016

UC - indpt. contractor - side business - necessity of findings on key issues

Spencer v. UCBR – Cmwlth. Court – April 1, 2016 – unreported* memorandum opinion


Held:  Case remanded failure of UCBR to make findings about whether claimant was “customarily engaged in an independent trade or business,” as required under Section 4(l)(2)(B) of the Law, which  sets forth a presumption that one who performs services for wages is an employee — and thus not ineligible for benefits under section 402(h) — as opposed to an independent contractor — who is ineligible for benefits under section 402(h). Stage Road Poultry Catchers v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 34 A.3d 876, 889 (Pa. Cmwlth. 2011).

The presumption in favor of employee status is overcome and the claimant will be considered an independent contractor if the putative employer establishes that: (1) the claimant was free from control and direction in performing the services; and (2) the services are of a type customarily performed in an independent trade or business. CE Credits Online v. Unemployment Compensation Board of Review, 946 A.2d 1162, 1167 (Pa. Cmwlth. 2008). The issue of whether an individual is an employee or independent contractor under section 4(l)(2)(B) of the Law is a question of law, subject to this Court’s review. Stage Road Poultry Catchers, 34 A.3d at 888.

First prong - The existence of an independent contractor agreement is not dispositive, although it is a significant factor to be considered. Stage Road Poultry Catchers, 34 A.3d at 889. Other factors include: whether there is a fixed rate of remuneration; whether taxes are withheld from the individual’s pay; whether the employer supplies the tools necessary to carry out the services; whether the employer provides on-the-job training; and whether the employer holds regular meetings that the individual was expected to attend. Id.

Second prong - The following three factors generally guide our inquiry: (1) whether the claimant is able to work for more than one entity; (2) whether the nature of the business compelled the individual to look to only a single employer for the continuation of such services; and (3) whether the claimant worked on a job-by-job basis and was free to accept or reject assignments. Danielle Viktor, Ltd. v. Department of Labor and Industry, Bureau of Employer Tax Operations, 892 A.2d 781, 797-98, 801-02 (Pa. 2006); Gill v. Department of Labor and Industry, Office of Unemployment Compensation Tax Services, 26 A.3d 567, 570 (Pa. Cmwlth. 2011). Where the employee is free to accept or reject an assignment, or has sole control over the days in which he/she will work, the individual is generally not considered to look to a single employer for the continuation of such services. Danielle Viktor, 892 A.2d at 801.

Moreover, as part of the second prong, the putative employer must also demonstrate “that the claimant [was] customarily engaged in such trade or business in order to be considered self-employed.” Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593, 598 (Pa. Cmwlth. 2012) (en banc) (emphasis in original).   However, and most significantly, the Board failed to make any findings or legal determination as to whether Claimant was “customarily engaged” in the business of selling insurance. See Minelli, 39 A.3d at 598. Indeed, in its brief to this Court, the Board overlooks the “customarily engaged” analysis altogether.   We have repeatedly noted that in proceedings such as these, where the claimant is already receiving benefits, the question presented is not whether the work at issue would entitle the claimant to benefits, but, rather, whether it disqualifies the claimant from further receipt of benefits he is already receiving. Minelli, 39 A.3d at 598 n.7. On this reasoning, this Court has determined that the Law requires the putative employer to demonstrate “an additional element, that the claimant be customarily engaged in such trade or business in order to be considered self-employed.” Id. at 598 (emphasis in original)

-----------------

* 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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)




UC - employee v. indpt. contractor

PSU KnowHow v. UCBR – Cmwlth. Court – unreported* memorandum opinion – March 31, 2016


Held:    Some 300 tutors for private tutoring company held to be “employees” rather than independent contractors, resulting in affirmance of Department of Labor & Industry assessment of UC contributions against company. 

------------------------------
*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

If the case is old, the link may have become stale and may not work, but you can use the case name, court, and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

__._,_.___


>