June 2006

RIGHT TO KNOW UPDATE
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* The Commonwealth Court has ruled that the address and date of birth information of retirees receiving pensions from the Public School Employees’ Retirement System (PSERS) is data that does not fall within the definition of “public record” under the Right-to-Know Law.  Rowland v. Pennsylvania State Employees’ Retirement System, 885 A.2d 621 (Pa. Commw. 2005).

June 2006

THIRD CIRCUIT MAKES IT MORE DIFFICULT FOR EMPLOYEES

TO PURSUE OLD COMPLAINTS IN FIRST AMENDMENT CASES

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* In O’Connor v. City of Newark, 440 F.3d 125 (3d Cir. March 13, 2006), the Third Circuit addressed a First Amendment lawsuit brought by a police Lieutenant (O’Connor).  O’Connor alleged that he was subjected to various forms of retaliation because he had provided information to investigators in a federal corruption probe of the former police director.  His allegations included claims that he was improperly denied a promotion, transferred under the command of a hostile superior, assigned excessive work, subjected to unwarranted discipline, and that he was not credited for overtime work.    

October, 2005
GENERAL ASSEMBLY GRANTS IMMUNITY TO EMPLOYERS FOR DISCLOSURE OF INFORMATION REGARDING EMPLOYEES
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* On June 15, 2005, Governor Rendell signed the Employer Immunity from Liability for Disclosure of Information Regarding Former or Current Employees Act, which took effect on September 13, 2005.  Under this new law, employers are immune from suit arising out of disclosures of information about former or current employees when that information is requested by a prospective employer.  This immunity extends to liability for defamation as well as claims for interference with contractual relations.  To pierce this immunity, a plaintiff/employee is required to show that the employer knew or should have known that the information disclosed was false, that the employer knew the information was materially misleading, that the disclosure was made with reckless disregard as to its truth or falsity, or that the disclosure was otherwise prohibited by law.  This law provides a new layer of security for employers who are often reluctant to disclose employee information for fear of lawsuits filed on behalf of former employees.  Public employers should contact their solicitors to update their information disclosure policies to reflect this new law. 

October, 2005
UPDATE:   EMPLOYERS MAY BE ABLE TO PAY LESSER RETIREMENT BENEFITS TO THOSE ELIGIBLE FOR MEDICARE
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*In the ever-changing law on post-retirement health care benefits, a federal court judge vacated her prior order (issued in March, 2005) granting a permanent injunction against an EEOC regulation, which would allow employers to pay lesser post-retirement healthcare benefits to retirees who qualified for Medicare, as contrary to the Third Circuit’s ruling in Erie County Retiree Assoc. v. County of Erie, 220 F.3d 193 (3rd Cir. 2000).  While this latest order upholds the regulation, the judge left the injunction in place pending an appeal.  AARP v. EEOC, 2005 WL 2373863 (E.D. Pa. September 27, 2005).  STAY TUNED.

October, 2005
IF AN ELIGIBLE CANDIDATE FOR AGE PREFERENCE IS NOT ON"LIST OF ELIGIBLES," NOT HIRING THT CANDIDATE IS NOT AGE DISCRIMINATION PER SE, AND A VACANCY NOTICE WHICH DOES NOT MENTION AGE PREFERENCE IS NOT DEFECTIVE

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* In Thompson v. State Civil Service Commission, 869 A.2d 575 (Pa. Commw. 2005), the Commonwealth Court held that public employers are not required to state on position vacancy notices that the position is subject to age preference.  Additionally, even though a qualified applicant is over sixty (60) years old and the position is subject to age preference, the applicant is not entitled to the position if her name does not appear on the list of certified eligibles.

October, 2005
DESPITE OBSERVING THAT DISMISSAL OF PUBLIC EMPLOYEE FOR EXCESSIVE AND INAPPROPRIATE INTERNET USAGE IS "DISPROPORTIONATELY HARSH," COMMONWEALTH COURT UPHOLDS HIS TERMINATION
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* In Thompson v. State Civil Commission, 863 A.2d 180 (Pa. Commw. 2004), the Commonwealth Court upheld the conclusion of the State Civil Service commission that there was merit-based just cause to terminate a county employee for excessive and inappropriate internet usage during work hours.  The Court remarked that it found the punishment harsh, but refused to substitute its judgment for the judgment of the Civil Service Commission which issued the termination.

May, 2005
PENNSYLVANIA SUPREME COURT UPHOLDS BENEFITS TO SAME-SEX PARTNERS OF CITY EMPLOYEES
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*In Devlin v. City of Philadelphia, 862 A.2d 1234 (Pa. 2004), the Pennsylvania Supreme Court upheld a city ordinance requiring employers to offer benefits to “Life Partners” of employees, but struck down a related ordinance that exempted transfers of real property between Life Partners from the local real estate tax.

October, 2004
THIRD CIRCUIT FURTHER EXPLAINS WHEN FIRST AMENDMENT PROTECTION IS AVAILABLE FOR REPORTING SEXUAL HARASSMENT IN THE WORKPLACE
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* Zelinski v. Pennsylvania State Police, 2004 WL 1799234 (3rd Cir.(Pa.)), is a recent decision of the Third Circuit Court of Appeals, which sets forth certain standards applied to many civil rights claims.

October, 2004
DEPARTMENT OF LABOR REVISES COBRA NOTICE REQUIREMENTS
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* The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) protects employees who may lose their health coverage after leaving work, (or after some other qualifying event) as well as their spouses and other qualified beneficiaries. One situation in which COBRA provides this protection, for example, is when an employee takes leave under the Family and Medical Leave Act and then does not return to work, (perhaps to remain home with a new baby or a sick spouse or child). Under COBRA, such an employee may continue as a member of the employer’s health plan as long as the employee pays the entire cost of the coverage as well as any administrative costs.

October, 2005
SOLDIERS MAY QUALIFY UNDER VETERANS' PREFERENCE ACT EVEN IF THEY HAVE NOT RECEIVED FINAL DISCHARGE

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* In Soberick v. Salisbury Township Civil Service Commission, 874 A.2d 155 (Pa. Commw. 2005), the Commonwealth Court held that a military reservist who had not received his final discharge from the Marine Corps and was under a continuing service obligation to the Marines still  qualified as a “soldier” under the Veterans’ Preference Act, 51 Pa.C.S. § 7101 et seq.  In that case, the soldier at issue, Frankenfield, had enlisted in the Marine Corps for a six-year active reserve commitment with two years’ inactive reserve.  He was called up to active duty after the September 11 terrorist attacks, and served eleven (11) months and three (3) days of active duty before receiving an honorable discharge and reassignment to the reserves.  Notably, he received a document indicating that his was not a “final discharge,” and his reserve obligation did not terminate until 2008.

May, 2005
FEDERAL LAW ON MILITARY LEAVES OF ABSENCE AMENDED TO REQUIRE NOTICE TO EMPLOYEES
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*The Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S. Code § 4301 et seq., as amended, is the primary federal statute on this subject. Its protections establish the minimum requirements for employers of military personnel. USERRA requires that federal military leave standards be followed whenever they are more favorable to the employee than state law, and that state laws are to be followed whenever they are more favorable to the employee. 38 U.S.C. § 4302. Pennsylvania law is generally more favorable to the employee than the federal statute. Pennsylvania’s main statute on this subject is the Pennsylvania Military Leave of Absence Act (PAMLAA), 51 Pa.C.S.A. §7302 et seq.

October, 2004
WHAT DOES THE VETERAN’S PREFERENCE ACT PROTECT?
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* In a recent case the Pennsylvania Supreme Court explained the protection provided by the Veteran’s Preference Act. When applying for employment with a public employer in Pennsylvania the Court held that a veteran has a legal right to the preference established by the Veteran’s Preference Act, but only if it can be established that the veteran meets the requisite qualifications of the position. The veteran has no protected interest in the position itself, however. The case was Merrell v. Chartiers Valley School District, 855 A.2d 713 (Pa. 2004) and it dealt with the non-civil service provisions of the Veteran’s Preference Act.

October, 2004
RE-EMPLOYMENT PROTECTION FOR VETERANS IN STATE AND FEDERAL LAW
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* Now, more than ever, it is essential that public sector employers understand their obligations toward employees who may be absent from work due to military service. The reserve components of the armed forces are today taking a more active role in overseas deployments and in homeland security operations than they have in decades. Employers in the public sector are affected by this to an extraordinary degree because a high percentage of soldiers in the reserve components work for public entities, especially police and fire departments.