The United States Supreme Court Rules that the ADEA applies to all Governmental Entities regardless of Size
In resolving a split among the circuits, the Supreme Court of the United States held that the Age Discrimination in Employment Act (ADEA) is applicable to state and local government entities, regardless of how many employees they have. The Court held that all government entities are considered employers under the ADEA, not just those that employ 20 or more employees. If you are a small local government entity, you will need to take this into consideration when making employment decisions that affect those over the age of 40.
In Mount Lemmon Fire District v. Guido, Justice Ginsburg opined that the ADEA establishes “separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and states or political subdivisions with no attendant numerosity limitation.” The employer, Mount Lemmon Fire District, is an 11-employee political subdivision of the state of Arizona. The group laid off two firefighter captains who were over the age of 40 and the oldest full-time employees. The pair then sued the Fire District under the ADEA, which protects employees and applicants from discrimination on the basis of age. The ADEA applied to private employers with 20 or more employees, and applies to states and political subdivisions, but the language that relates to state employees does not mention the 20-employee mandate.
Ginsburg noted that originally, public employers were excluded from coverage by both the ADEA and Title VII of the Civil Rights Act of 1964, a broader anti-discrimination law, which bars employment discrimination based on race, color, religion, sex, and national origin. In 1972, Congress extended Title VII to public employees, providing the same threshold that applies to private employers under the law to cover only those that employ a certain number of people.
In its argument, the Fire District held that it was not subject to the ADEA because it did not employ 20 or more employees. The matter went to the Ninth Circuit Court of Appeals after the district court agreed. The Ninth Circuit reversed the ruling, stating that the meaning of the statute is unambiguous, and that it applies to all state employers, no matter how many employees they have. Other federal courts of appeals have interpreted the language differently, resulting in the Supreme Court agreeing to review the Fire District’s appeal.
Potential Impact of the Ruling
This increases the risk of liability faced by government agencies as it may inspire a greater number of age discrimination cases to be filed. However, in politically divisive times, there may be many developments that will yield far more polarizing results.
MacMain, Connell & Leinhauser has a broad range of experience successfully resolving complex situations like the above ADEA ruling, and we can help to advocate for and protect your rights. For help and guidance toward making the best decisions, please call 484-318-7106 or contact us online today for an evaluation of your case. Our office is conveniently located in West Chester, Pennsylvania, and we serve clients throughout the Commonwealth.
Suing for Defamation After a Sexual Harassment Charge
Sexual harassment claims carry serious repercussions for those accused. This is true even if an investigation reveals the claims were unsubstantiated and the accused individual is later exonerated. For this reason, many professionals consider filing a defamation lawsuit against the accuser. Attorney Brian Leinhauser of MacMain, Connell & Leinhauser advises clients on the most important things to know when considering suing for defamation.
Determine the Facts
A working definition of defamation is a false public statement about another that causes damage to that person’s reputation. To bring a claim for defamation, each of the elements must be satisfied. Beyond satisfaction of the elements of the claim, there are several critical issues to consider when thinking about suing an accuser for defamation in a sexual harassment matter.
First and foremost, you must separate the facts from the opinions of the accusation. When considering a defamation suit, you must consider whether the factual statements used as the basis for the defamation claim are true. In many cases, the If the factual statements are true and can reasonably be interpreted as sexual harassment, then there is no basis for a defamation claim. The interpretation of the facts by the accuser, or the opinion of the accuser about whether the underlying facts constitutes harassment are generally not be actionable as defamation. Likewise, in a she-said/he-said scenario, being able to prove the truth of a fact is important.
Weigh the Risks and Benefits
The benefit or harm caused by additional exposure to the situation should be analyzed as well. If an accusation of sexual harassment is decidedly public, then the incentive to clear one’s name might motivate the accused to pursue the defamation litigation regardless of the cost or benefit at the end. On the other hand, in the case of a quiet accusation of sexual harassment, even where false, a defamation lawsuit might make public that which has, until then, gone unnoticed publicly.
Cost of litigation should also be considered. While some attorneys may take a claim like this on contingency, there are others that would want to be paid on an hourly basis for the litigation. A defamation suit can be lengthy and expensive if no settlement is achieved. Moreover, if the defendant in the defamation suit has no significant assets, then the judgment achieved, while providing the benefit of exoneration, might provide little else by way of compensation for the damages caused by the false statement.
Consider the Burden of Proof
Whether the individual accused is a public or private figure also makes a difference. Where the accused is a public figure, there is an additional burden to prove that the factual averments are made knowing that they are false or with reckless disregard for the truth of the statement. For a private figure, the burden of proof is lower, and they only need to demonstrate that the false statements were negligently made.
Finally, the accused must consider whether the time, energy, and effort of litigation that could take months or even years is worth the outcome desired. Even where the accusation is known to be false or the proof is easy, it may be difficult to achieve the desired result without litigating the matter.
The business litigation attorneys at MacMain, Connell & Leinhauser advise and counsel clients on all matters of business and employment law. For more information about the services we offer, submit an online inquiry or call 484-318-7106.
Common Zoning Issues
Zoning is the regulation of privately owned land by public authorities. Local governments often use zoning laws for community planning and regulation. Many zoning ordinances (local zoning laws) regulate how land is to be used; for example, some land may be for residential purposes while other land may be for business purposes. Issues often arise when there is a conflict between residential and business interests. Below are some of the most common zoning issues.
Lack of accessible parking can negatively affect businesses but can also decrease residents’ enjoyment of residential areas. The amount of parking available may not be sufficient to accommodate both the patrons of local businesses and residents of local developments. Residents may have difficulty finding parking close to their homes and businesses may have difficulty retaining customers who are frustrated with their inability to find convenient parking.
Zoning ordinances may regulate the size of buildings. These restrictions are in place for both safety and aesthetics purposes. In some areas, structures cannot be too tall or else they may be a hazard to flight safety and air navigation. When the government decrees a structure to be an important landmark, there may be restrictions on new building heights so that views of the landmark are not blocked.
Many local governments have implemented sign laws regulating the size, type and placement of signs. While signs are important navigational and cautionary tools, their improper placement could obscure visibility for drivers or be dangerous distractions. Furthermore, too many signs can create displeasing visual clutter for the community. Homeowners associations also often implement sign restrictions to enhance and maintain communities’ appearances.
Setback is the distance between a property line and where building can take place. In residential areas, these ordinances prevent houses from being built too close to one another and allow for access to ventilation and light. For businesses, setback ordinances often dictate the distance a building may be from the road for safety purposes.
Activities such as solicitation, selling of goods without a license, or smoking may not be allowed in certain areas. Some zoning regulations even have sound decibel limits in order to control noise pollution. These restrictions can vary greatly across cities and neighborhoods as each community aims to accomplish specific goals.
Resolving Zoning Disputes
Zoning disputes are generally resolved in one of two ways. First, the parties may file a claim with the local government. If they are unable to exercise self-help by resolving the dispute on their own, then local government will assist in resolving the dispute.
Second, parties can file a civil lawsuit. This remedy is commonly pursued in cases of alleged civil rights violations. Courts will usually issue an injunction ordering one of the parties to cease illegal or unlawful activity, but they may also award damages to parties who experienced economic losses.
Eminent domain is the power of the government whether it be federal, state or local, to take private property for the purpose of converting it for public use or for the common welfare. The Fifth Amendment to the Constitution requires that the government must fully compensate the property owner for the value of such property. Water, land and property rights are subject to eminent domain.
When the government exercises its power of eminent domain, known as condemnation, it can take any kind of private property. The most common example of private property is land, but leases, stocks, options or anything that has an ownership component can be taken. Intangible assets such as a brand or trademark are also fair game.
Confiscating land is an obvious demonstration of the government “taking” something, but there are other illustrations of “taking” that fall under eminent domain law. Permanent physical occupation of a given area on private property, such as running pipes or wires on private land constitutes a taking and the landowner must therefore be compensated accordingly. Resources taken from private land such as rocks or timber to build a public highway are also taken property and must be compensated. Generally, government regulation of land does not qualify as a taking unless the regulations leave the owner with no viable economic use of the property.
The issue of fair compensation can be a matter of dispute. If the government decides to condemn the property, it will designate someone to meet with the owners to offer what it deems is the fair market value of the property. There can be some negotiating, but it differs from a normal transaction where the owner would have the option to walk away from a deal considered unsatisfactory. If the compensation offered does not seem reasonable, the owner has the option to bring the matter before a judge who will decide the outcome. Sometimes a favorable outcome also means that the government must pay the legal fees of the owner.
Every state has different laws regarding condemnation. Proceedings do not have to go through a court if a contract can be agreed upon for the taking of the property for public use. The owner of the property has a right to due process and must be notified in a timely manner of the taking. He or she must be given an opportunity to voice an opinion as to whether the public use of the condemned property is justified and if the compensation for the property is fair and reasonable. The owner may present evidence and question and cross examine witnesses and has an automatic right to appeal through due process.
Condemnation proceedings have two parts. The first determines the right of the condemnor to take the property. The second determines the amount of compensation that will be paid to the owner. During the proceedings, the owner may continue to use the condemned property as long as the use does not change the condition of the property or diminish its value.
Attorneys at MacMain, Connell & Leinhauser have extensive experience representing and counseling government entities and their officials. Submit an online inquiry or call our Malvern, Pennsylvania office to learn more about the services we provide.
How to Be an Ally At Work
More than half of LGBTQ people have experienced discrimination in the workplace. Repercussions can include being denied health insurance, being overlooked for a promotion due to bias, or being fired based on gender identity. Discrimination denies these workers financial and emotional security and robs companies of the benefits of diversity. A diverse workplace is the key to having a balanced and successful place of employment.
MAC Cosmetics and Refinery 29 teamed up to host a series on LGBTQ lifestyle called Trans 102. They interviewed a group of transgender people with varying backgrounds to find out the common misconceptions and troubles that often arise in their community. The intent of this session was to help identify ways to improve and maintain workplace security for LGBTQ members.
It was determined that it is essential for LGBTQ employees to have benefactors advocating for them within a workplace. Some may consider themselves a minority within the workplace, so it is important to make their voices heard. Companies should have a clear and unbiased hiring policy in place. They should also offer equal health benefits to LGBTQ employees. Employers should promise fair compensation and grant equal rights to promotions.
The interviewed transgender people also stated that coworkers being open and amicable went a long way toward making them feel welcome. It is important to find common ground and stop to have small talk with LGBTQ employees who might feel out of place. Start with small talk around the water cooler. Be genuine and take a real interest in their responses. Foster the relationship to broaden the playing fields and keep all employees active, involved, and engaged in the workplace. This will help quell any feelings that can arise with insecurity. A true leader will find ways with simple conversation to instill security and satisfaction within their team.
It is prudent to have a lawyer review all HR policies to minimize company exposure to litigation matters. An attorney can train supervisors and management on how to properly handle sensitive issues and thus reduce liability exposure from disgruntled employees. Employment litigation defense lawyers represent public, private, and municipal employers in state or federal court. They can challenge unemployment compensation boards, the Division of Civil Rights, the Equal Employment Opportunity Commission, or Human Relations commissions regarding any employment lawsuits or claims. Employment law attorneys are essential for intervening when it comes to allegations of defamation, civil rights violations, or other wrongful discharge claims in court.
Recommended Policy for Teachers and School Districts
While it may be unfortunate for educators to have to think in these terms, teachers and school districts need to take steps to protect themselves from litigation. Failure to do so could result in seemingly small mistakes that can result in big issues for the teacher and the school district in which they are employed.
District Policy and the Teacher Handbook
School districts should have clear policies on their website in which guidelines and regulations are explained. These rules should be carefully drafted with legal counsel to minimize the possibility of litigation against the district and its employees. Everyone working for the school district should be familiar with these policies and follow them diligently. This way, expectations are clear and legal conflicts can be avoided.
By the same token, schools provide teachers with handbooks and it pays to be thoroughly acquainted with these rules and regulations. The handbook will contain information about what is expected of staff members, guidelines for interactions with parents and students, and other helpful material. Almost always, there will be a form that requires a signature saying that the employee has read and understood what is in the handbook.
It is important for staff to be present for any training opportunities that the district offers. Often these are state mandated sessions on topics ranging from bullying to identifying students in need of extra assistance. Staff members should document their attendance by signing in to the session. By fulfilling training requirements, the district can ensure their compliance with state standards.
Teachers spend every day supervising students. It is a big responsibility to ensure that each student is cared for and safe. Again, it is advisable for staff to familiarize themselves with school policies and clarify any questions they have with their principal. Additionally, staff should review the policies together with students and parents. Staff should practice different scenarios so that students know exactly what is expected of them as they arrive and leave the school, or when they are alone in the hallways on the way to the restroom.
Use Good Judgment
Once a teacher has thorough knowledge of district and school policies, there are many situations which will require common sense and good judgment to ensure proper duty of care has been exercised. This means teachers will need to do everything they can to warn students of any risks involved in activities that take place under their supervision so that avoidable physical injuries do not occur. Supervising very young children requires more attention than their older peers. In a science class, students must be advised as to the risks posed by the potentially dangerous equipment being used and supervision must be at a more focused level than one where the class is reading books. Staff should try to anticipate situations that could be problematic and act on them. If a student comes to a staff member to report bullying, the information must be reported to the principal.
Finally, staff should turn to mentors, colleagues, and legal counsel for advice in situations where they are in doubt.
Changes to Pennsylvania School Immunization Requirements
Vaccinations Are Not Just for Kindergartners
Most parents understand the importance of providing an accurate and complete immunization record when their child starts kindergarten. But immunization requirements and recommendations continue through grade school, middle school and high school.
New Changes to Pennsylvania Public Schools Vaccination Requirements
School administrators and school nurses should be aware of recent changes to the law in Pennsylvania regarding required school immunizations and be sure to inform parents of the need for compliance with the new vaccination requirements.
The change in law pertaining to school-required vaccinations went into effect on August 1, 2017. Schools were informed of the change in March 2017. Parents should have received notifications from their child’s school district.
Schools are also required to report immunization data to the Department of Health electronically by December 31 of each year.
Up-To-Date Immunizations Required by the First Day of School — With A Shorter Waiver Period
Public school students must be up to date with their vaccinations on the first day back-to-school. If a child’s vaccinations are not complete, the child may be sent home.
Parents who obtain a provisional waiver for their child are now given only five extra days to have the child vaccinated. With the provisional waiver, the child is permitted to attend school until the required vaccination is obtained. Previously, a waiver provided an eight-month window to obtain the required vaccination.
Students must receive all the doses of a multiple-dose vaccines to be admitted to school. Exceptions are permitted for students who meet the five-day provisional waiver rule or who provide a doctor’s vaccination plan indicating specific dates for the required vaccines. As for single-dose vaccines, if a student has not been vaccinated by the first day of school, he or she may be sent home.
Added Vaccine Requirement for High School Seniors
Students who are entering 12th grade are now required to have an additional dose of the meningococcal conjugate vaccine (MCV) for meningitis. Students are still required to receive a first dose of MCV before entering seventh grade. If a child was given a second dose at 16 years of age or older, that is deemed to be the required 12th-grade dose, according to the state Department of Health. The second dose of the meningitis vaccine has been recommended by the Advisory Committee on Immunization Practices since 2015.
Vaccine Requirements for Public School Children in Pennsylvania
In the absence of a medical or religious exemption, students in Pennsylvania are required to have the following immunizations on the first day back to school: four doses of the tetanus, diptheria and acellular pertussis (Tdap) vaccine, four doses of the polio vaccine, two doses of the measles, mumps and rubella vaccine, three doses of the hepatitis B vaccine, and two doses of the chicken pox vaccine (or documented evidence of immunity).
School nurses and administrators are tasked with making sure all students comply with vaccine requirements and have received the required vaccine at the appropriate time. School administrators are not permitted to admit students unless the students have received all the doses of a multiple-dose vaccine series (unless the five-day waiver is met or a doctor’s schedule is provided).