FLSA - joint employer

In re Enterprise Rent-a-Car - 3d Cir. - June 29, 2012


http://www.ca3.uscourts.gov/opinarch/112883p.pdf

District Court decision upheld. In re Enterprise Rent-A-Car Wage & Hour Employment Practice Litigation, 735 F.Supp.2d 277 (W.D.Pa.2010).

We are of the view that the starting point for the joint employer test should be N.L.R.B. v. Browning-Ferris Indus. of PA., 691 F.2d 1117, 1123 (3d Cir. 1982). We conclude that "where two or more employers exert significant control over the same employees—[whether] from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment—they constitute ‘joint employers’” under the FLSA. Id. at 1124 see also Moldenhauer v. Tazewell-Pekin Consol. Communications Ctr., 536 F.3d 640 (7th Cir. 2008).

This is consistent with the FLSA regulations regarding joint employment, which state that a joint employment relationship will generally be considered to exist “[w]here the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.” 29 C.F.R. § 791.2(b). Ultimate control is not necessarily required to find an employer-employee relationship under the FLSA, and even “indirect” control may be sufficient. In other words, the alleged employer must exercise “significant control” Browning-Ferris In , 691 F.2d at 1124.

A court should consider these factors in determining whether an entity is an employer: 1)does the alleged employer have: (1) authority to hire and fire employees; (2) authority to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; (3) day-to-day supervision, including employee discipline; and (4) control of employee records, including payroll, insurance, taxes, and the like.

These factors do not constitute an exhaustive list of all potentially relevant facts, and should not be "blindly applied." . . . A determination as to whether a defendant is a joint employer "must be based on a consideration of the total employment situation and the economic realities of the work relationship." . . . . Trial courts should not be confined to "narrow legalistic definitions" and must instead consider all the relevant evidence, including evidence that does not fall neatly within one of the above factors. . . .

UC - voluntary quit - 42% decrease in pay

New Castle Area Transit Authority v. UCBR - June 27, 2012 - unpublished memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/2325CD11_6-27-12.pdf

Claimant had good cause to quit when his work assignment changed because of medical issues and his wages decreased from $18.75 per hour to $10.85 per hour.

"[A] substantial reduction in pay can constitute a ‘necessitous and compelling’ cause for voluntarily terminating one’s employment. It is true that there is no talismanic percentage figure that separates a substantial reduction from one that is not. Each case must be measured by its own circumstances." Ship Inn, Inc. v. UCBR, 412 A.2d 913, 915 (Pa. Cmwlth. 1980).

While this Court has found "a 3.1[%] pay cut is not a substantial figure sufficient to establish necessitous and compelling cause[,]" Pacini v. UCBR, 518 A.2d 606, 608 (Pa. Cmwlth. 1986), this Court in Ship Inn found that a 22% cut in salary was a necessitous and compelling cause for voluntary employment termination. Similarly, this Court in Morysville Body Works, Inc. v. UCBR, 430 A.2d 376 (Pa. Cmwlth. 1981) affirmed the UCBR’s award of benefits where the Claimant voluntarily terminated his employment due to a 25% wage reduction.

In the instant case, Claimant was offered a job at a wage rate of 42% less his final hourly wage. Clearly, this wage reduction is a substantial cut, thereby, establishing a necessitous and compelling cause for Claimant to voluntarily terminate his employment. Accordingly, the UCBR did not err in concluding the same.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Administrative law - burden of proof

Victory Support Services v. DPW - Cmwlth. Court - June 27, 2012 - unpublished memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/1849CD11_6-27-12.pdf

The burden of proof at an initial hearing on an agency’s order is on the agency to justify its action. See B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012); S. Hills Health Sys. v. Dep’t of Pub. Welfare, 510 A.2d 934 (Pa. Cmwlth. 1986) (the party asserting the existence of certain facts bears the burden of proving them).

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

Welfare - adultBasic - Tobacco Settlement Agreement - Pa. Constitution, etc.

Sears. v. Corbett - Cmwlth. Court - June 27, 2012 (en banc 5-2)

http://www.pacourts.us/OpPosting/Cwealth/out/121MD11_6-27-12.pdf

Suit to compel state to allocate monies, as per Tobacco Settlement Agreement, that would maintain adultBasic program.

On defendants' preliminary objections, the court held that

* sovereign immunity - Suits which seek to restrain state officials from performing affirmative acts are not within the rule of immunity - POs overruled

* unlawful redirection of Master Settlement Agreement funds - "If these monies had not been redirected, it appears that there would have been sufficient funding for adultBasic in 2011. Thus, Respondents’ preliminary objection in this regard must be overruled.

* Pa. Constitution, Article I, sec. 3 - single subject rule - The statute deals with "multiple diverse subjects" - possible violation of single subject rule - POs overruled

* legislative power vested in General Assembly - petitioners' claim under this section held to be justiciable

* standing - Preliminary objection that, to the extent that their second amended petition for review challenges any provisions of the Fiscal Code amendments unrelated to adultBasic, Petitioners lack standing upheld by court

* class action - court cannot rule on propriety of a class action until the close of the pleadings

UC - drug testing

unreported drug testing case - Cmwlth Court June 20, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2223CD11_6-20-12.pdf

Some language from the opinion

We rejected the argument that a medical review officer was necessary to admit drug testing results in Turner v. Unemployment Compensation Board of Review, 899 A.2d 381 (Pa. Cmwlth. 2006). In this case, this Court re-emphasized our earlier determinations that:

[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. Id., at 386 (quoting Business Records as Evidence Act, 42 Pa. C.S. §6108(b)).

Welfare - MA - assets - special needs trust

Lewis v. Alexander - 3d Cir. - June 20, 2012

http://www.ca3.uscourts.gov/opinarch/113439p.pdf

The court concluded that Plaintiffs‟ case is justiciable and that they have a private right of action under both Section 1983 and the Supremacy Clause of the Constitution.

On the merits of Plaintiff's challenge, it decided that the District Court was correct in its determination that the 50% repayment provision of 62 P.S. 1414, "special needs" provision, expenditure provision, and age restriction are all preempted by federal law.

However, it decided that the enforcement provision of Section 1414 – when used to enforce provisions not otherwise preempted by federal law – is a reasonable exercise of the Commonwealth's retained authority to regulate trusts.

Affirmed in part and reversed in part.

abuse - expungement - late appeal - notice of right to appeal

K.G. v. DPW - Cmwlth. Court - June 15, 2012 - unreported memorandum decision (2-1, Levitt dissenting)


http://www.pacourts.us/OpPosting/Cwealth/out/1001CD11_6-15-12.pdf

Appeal of alleged perpetrator of abuse -- a nursing student -- was not permitted to be filed nunc pro tunc.

CYF denied K.G.’s request for appeal of a report of abuse, announced in a letter dated September 18, 2009, which advised K.G. that she had the right to a hearing before the Secretary of DPW. K.G. did not request a hearing until March 5, 2010, when she submitted her request by fax.

The court (2-1) rejected K.G.'s claims that(1) the September 18, 2009 decision provided insufficient notice of her appeal rights; (2) the time it took K.G. to obtain counsel; and (3) the confusion she claimed the Department’s January 26, 2006 letter (concerning a report of abuse against her husband) created by indicating that the report of child abuse identified in the husband's case was unfounded, after the alleged victim -- K.G.'s stepdaughter -- had recanted the claim of abuse by K.G.'s husband - the alleged victim's father.

Dissent - The dissent argued that the notice to K.G. was confusing, and that and "indicated report of child abuse implicates due process because this report can destroy the alleged perpetrator's ability to make a living in some lines of work. When so much is at stake, the government‟s notice to a lay citizen about how to pursue an appeal of such a report must be clear and unequivocal." The dissent said that language in the DPW letter telling K.G.

If it is your desire to have a hearing, please submit your request in writing within 45 days of the date of this letter to Child Abuse Appeals at the above address. Please include a telephone number where you can be contacted. [emphasis added]

K.G. apparently understood this letter to mean that the Department of Public Welfare was requesting, not demanding, a written appeal in 45 days that included her phone number. She did not understand the 45 days to be mandatory. Stated otherwise, she believed she could appeal by some other means or timetable, to be determined by when she conceived a "desire to have a hearing." "Please" is not a synonym for "must," as argued by Wayne County Children and Youth Services.

The dissent rejected the argument that DPW's politeness in adding the word "please" to the imperative "submit" should be encouraged. It agree that politeness is desirable, but not at the expense of clarity. Had the Department's notice also warned K.G. of the consequence of not finding it pleasing to submit a written request for a hearing in 45 days, its notice would have been satisfactory.

The dissent contains an lengthly discussing of the word "please" and stresses that K.G., will be denied the right to be a nurse by the rejection of her appeal.

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

open records - (im)proper addressee, (im)proper procedures not decisive

Pennsylvania Gaming Control Board v. Office of Open Records - Cmwlth. Court - June 11, 2012 (4-3)


http://www.pacourts.us/OpPosting/Cwealth/out/1134CD09_6-11-12.pdf

A written request for records sent to the wrong person in an agency must be forwarded to the agency's open-records officer.

If a written request does not comply with an agency’s policy for such requests, the open-records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request.

debt collection - misleading - credit bureau v. debt collector

Durr v. Rochester Credit Center - ED Pa. - June 4, 2012

http://www.paed.uscourts.gov/documents/opinions/12D0564P.pdf

A collection letter that reads: "The CREDIT BUREAU Collection Division" and ends, at the bottom:: “**THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE” may violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Defendant's motion for summary judgment denied.

With respect to the general claim that the letter was deceptive because it suggested a credit reporting agency was involved in the collection effort, whether or not a collection letter creates a misleading impression is judged from the perspective of the “least sophisticated consumer.” Brown v. Card Services Ctr., 464 F.3d 450, 453 (3d Cir. 2006).

If a letter “can be reasonably read to have two or more meanings, one of which is inaccurate,” and misleading it is deceptive. Rosenau v. Unifund, 539 F.3d 218, 222 (3d Cir. 2008).

Here, the evidence viewed in the light most favorable to the non-moving party, is that the letter in question is equally susceptible to different interpretations, one of which is at odds with the other.

With respect to the more specific claim that the letter suggests that a consumer reporting agency is involved with the collection of the debt, a genuine issue of material fact exists.

MA - undocumented aliens - emergency medical condition - acute symptoms

Spring Creek Management v. DPW - Cmwlth. Court - June 8, 2012

http://www.pacourts.us/OpPosting/Cwealth/out/2162CD11_6-8-12.pdf

This case presents an issue of first impression for this Court: under what circumstances does an emergency medical condition continue, and when does the emergency end, such that an undocumented alien‟s treatment is no longer eligible for MA pursuant to federal and state law, 55 Pa. Code § 150.11 and Section 1396b(v) of title XIX of the Social Security Act (SSA), 42 U.S.C. § 1396b(v).

The patient in this case suffered a stroke in June 2010, for which she was hospitalized until September 2010. On September 16, 2010, she entered Spring Creek and, on September 29, 2010, Spring Creek submitted, on her behalf, an application for MA/LTC benefits to the CAO. The CAO requested proof of her ‟emergency medical condition" and Spring Creek sent the CAO additional documentation. By notice mailed April 13, 2011, the CAO denied the requested MA/LTC benefits because it determined that no emergency medical condition existed and, therefore, the patient was ineligible for assistance. Spring Creek timely appealed to the Bureau of Hearings and Appeals (BHA), and the ALJ held a hearing, after which he upheld the CAO decision.

After considering the arguments, the plain language of Section 150.11 of the Department‟s regulations and Section 1396b(v) of the SSA, and the existing case law interpreting Section 1396b(v), we, like the other courts that have addressed this issue, believe we must focus on the term "acute." The plain language of Section 1396b(v), which Section 150.11 mirrors, requires an emergency medical condition to manifest itself through acute symptoms, which is defined as "characterized by sharpness or severity . . . having a sudden onset, sharp rise, and short course . . . [as] opposed to chronic.‟

To meet the standard the emergency medical condition must manifest itself through acute symptoms, and the treatment for the emergency medical condition must be immediately necessary to prevent the three statutory outcomes. Here, the Clinical Director testified that the patient suffers from an "aggregate of very severe chronic conditions" and acknowledged that "treatment and care would be for an indefinite period of time. A review of the record reveals that there is no evidence to support the conclusion that the patient is manifesting acute symptoms thereby rendering her condition an emergency medical condition for which she would be eligible for MA/LTC benefits. The fact that, without the treatment she receives , the patient "might [suffer] one of the three adverse consequences listed [in] the statute," Scottsdale, 75 P.3d at 97, does not alter the fact that W.T. currently is not suffering from an emergency medical condition that, without immediate attention, would lead to one of the adverse consequences set forth in Section 150.11 and Section 1396b(v). The "focus must be on the patient‟s current condition and whether that condition satisfies the criteria" of emergency medical condition.



In addition, the court held that, the provisions for ongoing care set forth in the Operations Memo do not mandate that the patient be found eligible for MA/LTC benefits for ongoing treatment for the results of her stroke. The Operations Memo refers to eligibility requirements "if there is a need for emergency medical services involving ongoing treatment."



Before making this case-by-case determination, the following information must be advanced to a CAO: "the nature of the emergency medical condition"; "[t]hat the medical treatment was necessary because of the emergency condition"; and "[t]he approximate duration of the emergency (this includes a treatment plan)." All of these requirements are predicated on the existence of an emergency medical condition for which ongoing treatment is necessary. Here, as stated above, the provider failed to establish that the patient currently is suffering from an emergency medical condition and, therefore, the ongoing treatment provisions explained in the Operations Memo are not applicable.

Equal Protection - U.S. Supreme Court decision - rational basis

Armour v. City of Indianapolis - US Supreme Court - June 4, 2012

http://wwwsupremecourt.gov/opinions/11pdf/11-161.pdf  (24 pp.)

SUPREME COURT OF THE UNITED STATES

ARMOUR ET AL. v. CITY OF INDIANAPOLIS, INDIANA, ET AL.
CERTIORARI TO THE SUPREME COURT OF INDIANA
No. 11–161. Argued February 29, 2012—Decided June 4, 2012

For decades, Indianapolis (City) funded sewer projects using Indiana’s Barrett Law, which permitted cities to apportion a public improvement project’s costs equally among all abutting lots. Under that system, a city would create an initial assessment, dividing the total estimated cost by the number of lots and making any necessary adjustments. Upon a project’s completion, the city would issue a final lot-by-lot assessment. Lot owners could elect to pay the assessment in a lump sum or over time in installments. After the City completed the Brisbane/Manning Sanitary Sewers Project, it sent affected homeowners formal notice of their payment obligations. Of the 180 affected homeowners, 38 elected to pay the lump sum. The following year, the City abandoned Barrett Law financing and adopted the Septic Tank Elimination Program (STEP),which financed projects in part through bonds, thereby lowering individual owner’s sewer-connection costs. In implementing STEP, the City’s Board of Public Works enacted a resolution forgiving all assessment amounts still owed pursuant to Barrett Law financing. Homeowners who had paid the Brisbane/Manning Project lump sum received no refund, while homeowners who had elected to pay in installments were under no obligation to make further payments. The 38 homeowners who paid the lump sum asked the City for a refund, but the City denied the request. Thirty-one of these homeowners brought suit in Indiana state court claiming, in relevant part, that the City’s refusal violated the Federal Equal Protection Clause.The trial court granted summary judgment to the homeowners, and the State Court of Appeals affirmed. The Indiana Supreme Court reversed, holding that the City’s distinction between those who had already paid and those who had not was rationally related to its legitimate interests in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from the Barrett Law system to STEP, and preserving its limited resources.

Held: The City had a rational basis for its distinction and thus did not violate the Equal Protection Clause. Pp. 6–14.

(a) The City’s classification does not involve a fundamental right or suspect classification. See Heller v. Doe, 509 U. S. 312, 319–320. Its subject matter is local, economic, social, and commercial. See United States v. Carolene Products Co., 304 U. S. 144, 152. It is a tax classification. See Regan v. Taxation With Representation of Wash., 461



U. S. 540, 547. And no one claims that the City has discriminated against out-of-state commerce or new residents. Cf. Hooper v. Bernalillo County Assessor, 472 U. S. 612. Hence, the City’s distinction does not violate the Equal Protection Clause as long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification," FCC v. Beach Communications, Inc., 508 U. S. 307, 313, and the " ‘burden is on the one attacking the [classification] to negative every conceivable basis which might support it,’ " Heller, supra, at 320. Pp. 6–7.

(b) Administrative concerns can ordinarily justify a tax-related distinction, see, e.g., Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 511–512, and the City’s decision to stop collecting outstanding Barrett Law debts finds rational support in the City’s administrative concerns. After the City switched to the STEP system, any decision to continue Barrett Law debt collection could have proved complex and expensive. It would have meant maintaining an administrative system for years to come to collect debts arising out of 20-plus different construction projects built over the course of a decade, involving monthly payments as low as $25 per household, with the possible need to maintain credibility by tracking down defaulting debtors and bringing legal action. The rationality of the City’s distinction draws further support from the nature of the line-drawing choices that confronted it. To have added refunds to forgiveness would have meant adding further administrative costs, namely the cost of processing refunds. And limiting refunds only to Brisbane/Manning homeowners would have led to complaints of unfairness, while expanding refunds to the apparently thousands of other Barrett Law project homeowners would have involved an even greater administrative burden. Finally, the rationality of the distinction draws support from the fact that the line that the City drew—distinguishing past payments from future obligations—is well known to the law. See, e.g., 26 U. S. C. §108(a)(1)(E). Pp. 7–10.

(c) Petitioners’ contrary arguments are unpersuasive. Whether financial hardship is a factor supporting rationality need not be considered here, since the City’s administrative concerns are sufficient to show a rational basis for its distinction. Petitioners propose other forgiveness systems that they argue are superior to the City’s system,but the Constitution only requires that the line actually drawn by the City be rational. Petitioners further argue that administrative considerations alone should not justify a tax distinction lest a city justify an unfair system through insubstantial administrative considerations. Here it was rational for the City to draw a line that avoided the administrative burden of both collecting and paying out small sums for years to come. Petitioners have not shown that the administrative concerns are too insubstantial to justify the classification. Finally, petitioners argue that precedent makes it more difficult for the City to show a rational basis, but the cases to which they refer involve discrimination based on residence or length of residence. The one exception, Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336, is distinguishable. Pp. 10–14.

946 N. E. 2d 553, affirmed.

BREYER, J., delivered the opinion of the Court, in which KENNEDY,

THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and ALITO, JJ., joined.