employment - employee v. indpt. contractor - class certified - common evidence - franchise agreement

Williams et al. v. Jani-King of Philadelphia – 3d Cir. – September 21, 2016

http://www2.ca3.uscourts.gov/opinarch/152049p.pdf

Disputes about whether workers are properly classified as employees or independent contractors are a classic and reoccurring issue in American law. This case presents such a dispute. Jani-King, the world’s largest commercial cleaning franchisor, classifies its franchisees as independent contractors.

Two Jani-King franchisees, Darryl Williams and Howard Brooks, assert that they are misclassified and should be treated as employees. On behalf of a class of Jani-King franchisees in the Philadelphia area, Brooks and Williams seek unpaid wages under the Pennsylvania Wage Payment and Collection Law (WPCL), 43 Pa. Stat. §§ 260.1–260.12.

The District Court granted the Plaintiffs’ motion for class certification. In this interlocutory appeal under Federal Rule of Civil Procedure 23(f), we consider whether the misclassification claim can be made on a class-wide basis through common evidence, primarily the franchise agreement and manuals.

We hold that the claims in this case are susceptible to class-wide determination and that the District Court did not abuse its discretion by certifying the class.

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UC - willful misconduct - fighting

Armstrong World Industries v. UCBR – Cmwlth. Court – 9-15-16 – unreported* memorandum opinion

http://www.pacourts.us/assets/opinions/Commonwealth/out/1724CD15_9-15-16.pdf?cb=1

“Even in the absence of a written policy, fighting may be considered a disregard of the standards of behavior that an employer can expect from its employees, even when the claimant was not the initial aggressor.” Miller v. Unemployment Compensation Board of Review, 83 A.3d 484, 487 (Pa. Cmwlth. 2014).

In such situations, where a claimant has the opportunity to retreat and seek help but instead willingly continues to escalate the situation, the claimant’s actions are “neither reasonable nor justifiable and [do] not constitute good cause.” Rivera v. Unemployment Compensation Board of Review, 526 A.2d 1253, 1256 (Pa. Cmwlth. 1987).

However, when a claimant has a reasonable belief of imminent bodily harm and fears he is in danger of an assault, he is justified in using reasonable retaliatory force for purposes of self-defense. Miller, 83 A.3d at 487 (“using reasonable force in self-defense is, in some situations, justifiable”); see also Sun Oil Company v. Unemployment Compensation Board of Review, 408 A.2d 1169, 1171 (Pa. Cmwlth. 1979) (“A reasonable belief of imminent bodily harm and feared danger of an assault justifies reasonable retaliatory force.”).

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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

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professional licenses - suspension/revocation - strict construction of statute

McGrath v. Bureau of Professional and Occup. Affairs – Cmwlth. Court – August 24, 2016

http://www.pacourts.us/assets/opinions/Commonwealth/out/1001CD15_8-24-16.pdf?cb=1  (en banc)

BPOA intepretation of statute to requir 10-year suspension of nursing license overturned, because BPOA failed to follow statutory construction law requiring ambiguities in penal statutes must be strictly construed against the government, Section 1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1); Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (en banc) (discussing the common law rule of lenity).  The Court overruled a contrary decision reached in the case of Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015).

statutes imposes punishment are penal and must by strictly construed

Where a statute imposes punishment, such as the suspension or revocation of a professional license, for specified acts, such statutes are penal in nature. See Pa. State Real Estate Comm’n v. Keller, 165 A.2d 79, 80 (Pa. 1960). Section 1928(b)(1) of the Statutory Construction Act, 1 Pa. C.S. § 1928(b)(1), requires that penal provisions “shall be strictly construed.” Consistent with this statutory requirement is the rule of lenity, which originated in common law, and provides that:

[a]mbiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be. Application of the rule of lenity extends beyond the context of criminal statutes.  penalties would be. Application of the rule of lenity extends beyond the context of criminal statutes.

Richards, 20 A.3d at 600 (emphasis added). “Underpinning the rule of lenity is the fundamental principle of fairness that gives validity to our laws” by providing individuals the clear and unequivocal warning discussed above. Sondergaard v. Dep’t of Transp., Bureau of Driver Licensing, 65 A.3d 994, 997 (Pa. Cmwlth. 2013). “To apply the rule of lenity, it is not enough that a statute is penal it must be ambiguous as well.” Id. at 999.

Statutory provisions that impose punishment, such as the suspension or revocation of a professional license, for specified acts are considered penal in nature. Pa. State Real Estate Comm’n, 165 A.2d at 80. As previously described, the rule of lenity provides that the statute should provide a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be. Additionally, ambiguities should be strictly construed against the government.

Board changed its long-standing statutory interpretation w/o adequate warning

The language of the statute in this cases does not provide “a clear and unequivocal warning . . . that people generally would understand” about the what is to happen for the nurse’s wrongful conduct.  This is particularly troubling where the Board changed its long-standing interpretation of those provisions without providing any formal or informal warning, via regulation or policy guideline, of that change to the licensees over whom the Board exercises authority.   As these provisions are ambiguous and do not provide “a clear and unequivocal warning,” they “should [have been] . . . construed against the government . . . [and] in favor of the [licensee].” Richards, 20 A.3d at 600 (internal quotation omitted). To hold otherwise would violate the “fundamental principle of fairness that gives validity to our laws.” Sondergaard, 65 A.3d at 997.

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attorney fees - accurate, complete time records

Rougvie et al. v. Ascena Retail Group – ED Pa. – Sept. 12, 2016

https://www.paed.uscourts.gov/documents/opinions/16D0676P.pdf

As we found in our July 29, 2016 Opinion, Class Counsel performed extraordinary work for the over 18.4 Million Class Members. Class Counsel is entitled to be paid now for reasonable hours for their efforts on behalf of the Class Members who selected immediate cash or a voucher.

But when, as here, Class Counsel representing over 18.4 Million consumers in a national consumer protection case largely based on state statutes submit time records without adequate descriptions or otherwise do not contemporaneously maintain time records, we must not approve funds allocated for Class Members to pay for ambiguous uncertain services.   We provided Class Counsel three opportunities to clarify their services but still cannot determine the benefit to the Class from several time entries. At this initial hourly fee stage, we will not approve payment of all of the proffered hourly billings without support to be paid from the Class recovery.

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