Sunday, December 25, 2011
Sunday, December 18, 2011
The Axelrod Firm and The Beasley Firm Salvation Army Holiday Toy Drive
Here is how you can help:
Bring: New, unwrapped toys for children ages infant to 14 years old
Place: The bin in the lobby of The Beasley Building, 1125 Walnut Street, Philadelphia
Dates: November 14 – December 14, 2011
Times: Monday-Friday, 12 pm - 7 pm (excluding holidays)
(Five minute limited parking available to drop off toys)
Let’s share the spirit of the holidays and make this holiday season joyous for everyone!
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The Salvation Army helps people around the world including by operating 2 emergency shelters right here in the Philadelphia area. While The Salvation Army operates thrift stores, none of the donated items will be sold. Everything will be donated directly to families in need.
*The Axelrod Firm is certified to be a woman-owned law firm by the Women’s Business Enterprise National Council (WBENC) and the Commonwealth of Pennsylvania.
Sheryl Axelrod Appointed Communications Director of the Philadelphia Bar Association Women in the Profession Newsletter
At The Axelrod Firm, we are proud Sheryl Axelrod has been appointed Communications Director of the Philadelphia Bar Association Women in the Profession Newsletter. The Newsletter contains articles from extraordinary women. Below is the first issue as copied into The Axelrod Firm's Newsletter. The women who contributed the articles in it are: the Dean of Temple Beasley School of Law (JoAnne Epps), Judge Sandra Mazer Moss, two former Chancellors of the Bar Association (Jane Leslie Dalton and Sayde Ladov), the incoming Chancellor (Kathleen Wilkinson), a partner at Pepper Hamilton LLP (Maria Feeley), and a Fellow with Community Legal Services (Kathleen Creamer). We hope you enjoy it.
Click here to read The Philadelphia Bar Association's July 1, 2011 Women in the Profession Newsletter.
Click here to read The Philadelphia Bar Association's July 1, 2011 Women in the Profession Newsletter.
Sunday, October 16, 2011
10 Tips For Effective Networking
We all know what it’s like. We go to meetings. We meet a lot of people. We talk about our businesses and we leave wondering why we didn’t get business. The reason we didn’t get business there is because generally speaking, people don’t give business out based on a single conversation. People generally give business to people they know and like. This brings me to my first networking tip.
1. Don’t network – build relationships!
Business is generally not generated on the spot. It’s developed over time by people who have gotten to know you and trust you, so when you go to a networking function, your goal should not be to walk away with business. It should be to start a professional relationship.
2. Know your elevator speech.
To start the relationship, you need to explain why people should give you business. Work on being able to describe what you do in 30 seconds or less.
Now, it's okay to say something like, "I handle commercial cases," or, "I sell furniture," but you could really improve your explanation if you worked on not only getting across what you do, but suggesting in that same 30 seconds who should be giving you business and why.
What is the difference between saying what you do and describing why people should give you business? What you do doesn’t help me or show me why I should want your products or services. So, if you normally say something like, “My company sells high end furniture,” consider enhancing your message. Try saying something like, “We help companies improve their image by providing them with unique, high end furniture pieces tailored to their style.” My elevator speech? I help companies minimize their exposure in business, employment and general liability matters. With descriptions like this, you can explain not only what you do but who should give you business and why.
3. Begin with a positive attitude.
Attend networking functions when you are upbeat and looking forward to them. If you would prefer not to attend a networking event, or you are going to have to rush through it to get some place afterwards, don’t go. The point is to have fun, meet people and start developing relationships. That ties into my next tip.
4. Go to events you enjoy.
You are not networking. You are not doing something boring. You are building relationships. It should be fun and enjoyable. Go to events on topics you like. If you love wine, go to wine tastings. If you like reading, go to book clubs. Building your professional base of contacts, i.e., building a book of business, is not about going to every event you think you should and being bored out of your mind. It is about enjoying meeting people and starting to build professional relationships. You will have the best chance of doing so at events you feel comfortable attending, and want to attend, so go to them.
5. Attend events with objectives other than getting work.
If you are less focused on getting business from people, you are more likely to focus on starting relationships, so go to events with fun goals in mind. Go to a gallery opening to meet the artist. Go to a lecture to find someone to whom you can refer business. If you can, get the guest list in advance and decide who you want to meet.
Starting professional relationships means having solid, one-on-one conversations with people. Forget what you have been taught about meeting as many people as you can in a room. You want to try to meet at most 2-3 people at any one function -- not 10 and certainly not 50.
Be aware of your body language. If you are looking around for the next person you want to meet, you will send the message to the person you are talking to that you are not genuinely interested in talking to them. You should be happy you are getting the opportunity to speak with someone you wanted to meet. Focus on that person.
6. Be nice to everyone – not just those you want to impress.
You want to make a good impression. I have no doubt you will be especially friendly and cordial to the people you want to talk to, but be nice to everyone. People notice not only how you treat them; they notice how you treat others. If someone puts a glass of water down in front of you, thank them. Hold the door open for the person behind you and give them a smile. Show that you are a person worth starting to get to know.
7. Listen to what your contacts say.
When you start speaking to someone that you think you would like to get to know, speak less and listen more. Ask questions and pay attention to what you hear. Show a genuine interest in what your contacts do, how they got started, what made them go into what they do, who they are and in those they talk about such as their colleagues, family and friends.
Whatever you do, do not go for a “hard sell.” Do not ask them whether they need your services or what you need to do to get them to give you business. You are beginning a professional relationship. That starts with finding out about them. Begin to get to know them as people and professionals.
8. Follow up promptly and personally, and arrange to see your contacts again.
Once you’ve met someone you hoped you would, follow up with them. Send each contact you met a handwritten thank you note. Do not wait weeks to send it out. It sends the message the person did not matter much to you. Do so right away, preferably, by the next day.
When you write your note, make it personal. Include in your thank you something the person told you that you found especially funny, interesting or salient. Show that you were paying attention to them and that the conversation was important to you.
Make a point of arranging to see them again soon. See whether they will meet you for a cup of coffee or lunch. Make your offer enticing. Go some place fun and inviting. Enjoy beginning to get to know your contact.
9. Never underestimate the power of positivity.
If something a contact told you impressed you, tell them. If something about them impressed you, tell them. This is not about giving out false praise -- don’t. Be genuine, but there is probably something special about the person or you would not be so keen to meet them. If so, let them know.
10. Look for common ground.
As you are talking to your contacts, look for common interests, common values and common experiences. This is a person you should want to continue to get to know. Perhaps you both love watching professional tennis. Maybe you could take your contact to see the U.S. Open some day. Maybe you and your contact love murder mysteries. If there is a great murder mystery special on the Discovery Channel you know about, you can tell them they might want to watch it. These kinds of things begin to build your relationship.
If you follow these tips, you can build a professional network and grow your business.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history. She:
(1) helps companies minimize their exposure in business, employment and general liability matters;
(2) advises and fights for individuals and companies in disputes over money, contracts and/or real estate; and
(3) assists residential mortgage lenders in exercising their rights as creditors on defaulted mortgages.
1. Don’t network – build relationships!
Business is generally not generated on the spot. It’s developed over time by people who have gotten to know you and trust you, so when you go to a networking function, your goal should not be to walk away with business. It should be to start a professional relationship.
2. Know your elevator speech.
To start the relationship, you need to explain why people should give you business. Work on being able to describe what you do in 30 seconds or less.
Now, it's okay to say something like, "I handle commercial cases," or, "I sell furniture," but you could really improve your explanation if you worked on not only getting across what you do, but suggesting in that same 30 seconds who should be giving you business and why.
What is the difference between saying what you do and describing why people should give you business? What you do doesn’t help me or show me why I should want your products or services. So, if you normally say something like, “My company sells high end furniture,” consider enhancing your message. Try saying something like, “We help companies improve their image by providing them with unique, high end furniture pieces tailored to their style.” My elevator speech? I help companies minimize their exposure in business, employment and general liability matters. With descriptions like this, you can explain not only what you do but who should give you business and why.
3. Begin with a positive attitude.
Attend networking functions when you are upbeat and looking forward to them. If you would prefer not to attend a networking event, or you are going to have to rush through it to get some place afterwards, don’t go. The point is to have fun, meet people and start developing relationships. That ties into my next tip.
4. Go to events you enjoy.
You are not networking. You are not doing something boring. You are building relationships. It should be fun and enjoyable. Go to events on topics you like. If you love wine, go to wine tastings. If you like reading, go to book clubs. Building your professional base of contacts, i.e., building a book of business, is not about going to every event you think you should and being bored out of your mind. It is about enjoying meeting people and starting to build professional relationships. You will have the best chance of doing so at events you feel comfortable attending, and want to attend, so go to them.
5. Attend events with objectives other than getting work.
If you are less focused on getting business from people, you are more likely to focus on starting relationships, so go to events with fun goals in mind. Go to a gallery opening to meet the artist. Go to a lecture to find someone to whom you can refer business. If you can, get the guest list in advance and decide who you want to meet.
Starting professional relationships means having solid, one-on-one conversations with people. Forget what you have been taught about meeting as many people as you can in a room. You want to try to meet at most 2-3 people at any one function -- not 10 and certainly not 50.
Be aware of your body language. If you are looking around for the next person you want to meet, you will send the message to the person you are talking to that you are not genuinely interested in talking to them. You should be happy you are getting the opportunity to speak with someone you wanted to meet. Focus on that person.
6. Be nice to everyone – not just those you want to impress.
You want to make a good impression. I have no doubt you will be especially friendly and cordial to the people you want to talk to, but be nice to everyone. People notice not only how you treat them; they notice how you treat others. If someone puts a glass of water down in front of you, thank them. Hold the door open for the person behind you and give them a smile. Show that you are a person worth starting to get to know.
7. Listen to what your contacts say.
When you start speaking to someone that you think you would like to get to know, speak less and listen more. Ask questions and pay attention to what you hear. Show a genuine interest in what your contacts do, how they got started, what made them go into what they do, who they are and in those they talk about such as their colleagues, family and friends.
Whatever you do, do not go for a “hard sell.” Do not ask them whether they need your services or what you need to do to get them to give you business. You are beginning a professional relationship. That starts with finding out about them. Begin to get to know them as people and professionals.
8. Follow up promptly and personally, and arrange to see your contacts again.
Once you’ve met someone you hoped you would, follow up with them. Send each contact you met a handwritten thank you note. Do not wait weeks to send it out. It sends the message the person did not matter much to you. Do so right away, preferably, by the next day.
When you write your note, make it personal. Include in your thank you something the person told you that you found especially funny, interesting or salient. Show that you were paying attention to them and that the conversation was important to you.
Make a point of arranging to see them again soon. See whether they will meet you for a cup of coffee or lunch. Make your offer enticing. Go some place fun and inviting. Enjoy beginning to get to know your contact.
9. Never underestimate the power of positivity.
If something a contact told you impressed you, tell them. If something about them impressed you, tell them. This is not about giving out false praise -- don’t. Be genuine, but there is probably something special about the person or you would not be so keen to meet them. If so, let them know.
10. Look for common ground.
As you are talking to your contacts, look for common interests, common values and common experiences. This is a person you should want to continue to get to know. Perhaps you both love watching professional tennis. Maybe you could take your contact to see the U.S. Open some day. Maybe you and your contact love murder mysteries. If there is a great murder mystery special on the Discovery Channel you know about, you can tell them they might want to watch it. These kinds of things begin to build your relationship.
If you follow these tips, you can build a professional network and grow your business.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history. She:
(1) helps companies minimize their exposure in business, employment and general liability matters;
(2) advises and fights for individuals and companies in disputes over money, contracts and/or real estate; and
(3) assists residential mortgage lenders in exercising their rights as creditors on defaulted mortgages.
Friday, June 24, 2011
Sheryl Axelrod Becomes President Of The Temple Law Alumni Association
The Axelrod Firm is proud to announce that its founder, Sheryl Axelrod, was recently installed as President of the Temple Law Alumni Association (TLAA). She is the 4th woman to head the organization in its over 95 year history.
Each of the judges pictured above at the Temple Law Alumni Association's June 13, 2011 Annual Meeting in which Ms. Axelrod's presidency was formally launched is a graduate of the Temple University Beasley School of Law. The Dean of the Law School, JoAnne Epps, appears on the far left. Also present at the Annual Meeting was Special Guest Rudolph Garcia, Chancellor of the Philadelphia Bar Association.
Upcoming Event
Sheryl Axelrod will be presenting a Continuing Legal Education (CLE) course entitled "Employment Discrimination Issues" as part of the Employment Law Update held on July 27, 2011 in Philadelphia. You can look at the program details and register for the event.
Our Free E-Newsletter
Feel free to forward our free e-newsletter to your friends and colleagues. They can subscribe by going to http://www.theaxelrodfirm.com/articles.php and filling out our subscriber form. To unsubscribe, send an email to saxelrod@theaxelrodfirm.com entitled "Unsubscribe".
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Each of the judges pictured above at the Temple Law Alumni Association's June 13, 2011 Annual Meeting in which Ms. Axelrod's presidency was formally launched is a graduate of the Temple University Beasley School of Law. The Dean of the Law School, JoAnne Epps, appears on the far left. Also present at the Annual Meeting was Special Guest Rudolph Garcia, Chancellor of the Philadelphia Bar Association.
Upcoming Event
Sheryl Axelrod will be presenting a Continuing Legal Education (CLE) course entitled "Employment Discrimination Issues" as part of the Employment Law Update held on July 27, 2011 in Philadelphia. You can look at the program details and register for the event.
Our Free E-Newsletter
Feel free to forward our free e-newsletter to your friends and colleagues. They can subscribe by going to http://www.theaxelrodfirm.com/articles.php and filling out our subscriber form. To unsubscribe, send an email to saxelrod@theaxelrodfirm.com entitled "Unsubscribe".
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Philadelphia Zoning Relief – A Second Bite At The Apple
You’re a Philadelphia developer and you just learned that the Philadelphia Zoning Board of Adjustment (ZBA) denied your request for variances for your pet project. You’ve been around the block enough to know that appeals are time-consuming, expensive, and, all too often, unsuccessful.
Good news. You may well have a do-over. A mulligan. A second bite at the apple.
Good news. You may well have a do-over. A mulligan. A second bite at the apple.
Protecting Your Business: What You Need to Know About Non-Competition, Non-Solicitation And Confidentiality Agreements
Your business wants to recruit talent. The only problem: so does your competition. In a recent poll, over 60% of responding employees said they had worked for two or more companies in the past five years. Almost 9% had worked for at least five employers. Employees move around. Unless your business is protected, when your employees go, they can take your former clients and use their knowledge of your confidential information, such as your profit margins, to outsell you.
Oral Agreements Versus Written Ones: Why You Should Never Enter A Deal Without A Written Contract
When a deal breaks down, the written contract governs. The contract is the keystone document that establishes the terms of the deal – the who, what, where, when, and how of your agreement. If there is a dispute, your contract will be the most important document considered. Incredibly, businesses sometimes forgo entering into written contracts, instead relying on handshakes to cement deals. While informal deals may seem convenient, a well drafted written contract, by clarifying the terms of a deal, offers protections no business should be without.
The EEOC Weighs In On Laws Concerning The Use Of Employees' Genetic Information
On January 13, 2010, we let you know about a new discrimination law affecting companies with 15 or more employees. The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from obtaining an employee's genetic information, and the genetic information of the employee’s family members. The genetic information can include both their current medical conditions and their medical histories. GINA also normally prohibits employers from using such information in making employment decisions.
The Legal Documents You Must Have
Just about everyone knows what a will is. Of course, many of us do not have one. We say, “I’ll get around to it”. A will becomes effective when you die. There are also documents that can be relied upon if you can no longer handle your affairs while you are living. Everyone one needs them.
Suppose your elderly aunt becomes incapacitated, physically unable to get around, and is somewhat forgetful. She has no children. You, her beloved niece, have been watching out for her for years. Does that mean you can write checks to pay her bills? Does that mean you can make decisions affecting her medical care? Does that mean you can sign her in to a nursing home? The short answer is no.
Suppose your elderly aunt becomes incapacitated, physically unable to get around, and is somewhat forgetful. She has no children. You, her beloved niece, have been watching out for her for years. Does that mean you can write checks to pay her bills? Does that mean you can make decisions affecting her medical care? Does that mean you can sign her in to a nursing home? The short answer is no.
Want To Collect Your Money After You Settle? Bankruptcy Proof Your Settlement Agreements
When you hear a case settled, it means the parties entered into a settlement agreement. The agreement should be put in writing, with its terms clearly spelled out. Where the plaintiff (the party which brought the lawsuit) is going to be paid by the other side (called the defendant), the plaintiff's attorney can – in certain circumstances, and where the defendant is willing – attempt to draft a bankruptcy proof settlement agreement, i.e., one which calls for no payments to be wiped out should the defendant file for bankruptcy.
The Impact Of The New Pleading Standard, And Its Greater Examination
This supplements our prior e-newsletter on the amount of detail required in federal court complaints, the documents filed at the beginning of lawsuits. The Supreme Court´s Ashcroft v. Iqbal decision required complaints to contain greater detail. Under Iqbal, a plaintiff (the party bringing a lawsuit) must set out sufficient facts to show that it is not merely "possible" the defendant acted unlawfully; it is "plausible".
What Should I Do If It Looks Like I’m Heading Towards A Lawsuit?
Rule number one: Do not provide your future opponents with information they can use against you. You’ve probably heard on television: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” They are part of the warnings police officers must provide in criminal investigations before suspects’ interrogations. The words apply with equal force in non-criminal cases, in which no such warnings need be given.
Our News!
The Axelrod Firm is proud to announce that in the Spring of this year, the Chancellor of the Philadelphia Bar Association appointed Sheryl Axelrod to a three-year term on the Commission on Judicial Selection and Retention. This is the Bar Association committee charged with the honor and duty of ensuring that the public is well informed about those running to be judges, and those judges running for re-election.
The Chancellor also appointed her Co-Chair of the Bar's Law Practice Management Committee. As the Chancellor wrote, "The Committee will focus on issues related to law practice management, such as technology and the business of running a firm. In this economy, it is critical."
The Axelrod Firm is committed to giving back to the community, including through its involvement in the Bar Association. Sheryl Axelrod was previously elected to a three-year term on the Executive Committee of the Young Lawyers Division of the Bar Association (the YLD). During her YLD tenure, she primarily dedicated her time to children including by co-chairing the Michael K. Smith Oratorical Contest for school children in grades 4 through 8. She spent 5 years coaching high school mock trial teams and continues to act as a scoring judge in mock trial competitions.
In 2009, Ms. Axelrod was awarded the Temple Law Alumni Association's Distinguished Service Award.
The Axelrod Firm also believes in philanthropy. This year, The Axelrod Firm donated $1,000 each to the Temple University Beasley School of Law and The Salvation Army to further their missions of excellence in teaching, scholarship and service, and of Doing The Most Good.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
The Chancellor also appointed her Co-Chair of the Bar's Law Practice Management Committee. As the Chancellor wrote, "The Committee will focus on issues related to law practice management, such as technology and the business of running a firm. In this economy, it is critical."
The Axelrod Firm is committed to giving back to the community, including through its involvement in the Bar Association. Sheryl Axelrod was previously elected to a three-year term on the Executive Committee of the Young Lawyers Division of the Bar Association (the YLD). During her YLD tenure, she primarily dedicated her time to children including by co-chairing the Michael K. Smith Oratorical Contest for school children in grades 4 through 8. She spent 5 years coaching high school mock trial teams and continues to act as a scoring judge in mock trial competitions.
In 2009, Ms. Axelrod was awarded the Temple Law Alumni Association's Distinguished Service Award.
The Axelrod Firm also believes in philanthropy. This year, The Axelrod Firm donated $1,000 each to the Temple University Beasley School of Law and The Salvation Army to further their missions of excellence in teaching, scholarship and service, and of Doing The Most Good.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
What You Need To Know About Carryover Basis And The Estate Tax Repeal
Let’s begin with basis. Prior to January 1, 2010, when folks died, all of their assets took on their date-of-death value for purposes of income tax capital gains and losses. That is called step-up in basis. Consider the example of someone who purchased shares of XYZ Corp in l980 for $25 per share, and died in 2009 when the stock was worth $100 per share. If the estate sold the stock for $105 per share, the gain would be $5 per share ($105 less $100), rather than $80 a share ($105 minus $25). Since January 1, 2010, when the same stock is sold for the same amount, the gain will be calculated at $80 per share. Thus, for income tax purposes, the date-of-death value is now irrelevant. The cost basis is relevant; that is carryover basis. There is a method by which your estate can acquire the step-up in basis for a significant amount of assets. However, you must have an accurate record of your cost basis as a starting point to figure it out.
May You Be Fired For No Reason? The Answer May Shock You.
Pennsylvania is an “employment-at-will” state. This means that unless there is an employment contract, an employee may be fired at any time, for any reason or for no reason at all. The employer does not have to have “cause”.
There are a few narrow exceptions to this rule. Federal law prohibits discrimination in the workplace based on an employee’s gender, disability, race, color, religion, national origin, age and/or pregnancy. The Family and Medical Leave Act also protects those taking time off for family and/or medical reasons. The Pennsylvania Human Relations Act, a Pennsylvania state law, makes it illegal to discriminate on those grounds, and also based on an employee’s willingness to participate in an abortion or sterilization procedure.
Unless the firing was due to one of these legally recognized forms of discrimination, the employee will generally have no valid basis to sue. This is true even where the employee’s work performance was outstanding.
What’s more, the limitations on an employer’s general right to fire employees at will are narrow. For instance, as discussed in The Axelrod Firm e-newsletter at http://www.theaxelrodfirm.com/articles.php?action=15, the United States Supreme Court ruled in Gross v. FBL Financial Services, Inc. that an employer may fire employees on account of their age, so long as age is not the sole reason it does so. In February of this year, in Noecker v. Reading Hospital, the court in the Eastern District of Pennsylvania ruled that an employer was legally entitled to fire an employee whose pregnancy made her unable to perform duties required of her job. She had not been with her employer long enough to qualify for pregnancy leave under the Family and Medical Leave Act. The law would otherwise have protected her.
While an employee may bring a wrongful termination suit, doing so requires proving the firing violated public policy. That public policy must be found in the Constitution, regulations, legislation or case law. Courts interpret this basis for bringing suit narrowly. For instance, in Weaver v. Harpster, a Pennsylvania state appellate court, the Superior Court, considered a wrongful termination suit. The woman who brought the action claimed she resigned due to sexual harassment. She could not bring suit under the Pennsylvania Human Relations Act as she worked for a company with less than 4 employees, and the Act applies only to larger companies. She claimed she should still be entitled to pursue a wrongful termination claim. There is a clear public policy against sexual harassment, she reasoned. However, the court ruled for her employer, reasoning that the law was specifically designed to keep smaller employers outside of its reach.
In summary, employment discrimination is a narrow field. Most firings are legal -- the law recognizes few as unlawful.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
There are a few narrow exceptions to this rule. Federal law prohibits discrimination in the workplace based on an employee’s gender, disability, race, color, religion, national origin, age and/or pregnancy. The Family and Medical Leave Act also protects those taking time off for family and/or medical reasons. The Pennsylvania Human Relations Act, a Pennsylvania state law, makes it illegal to discriminate on those grounds, and also based on an employee’s willingness to participate in an abortion or sterilization procedure.
Unless the firing was due to one of these legally recognized forms of discrimination, the employee will generally have no valid basis to sue. This is true even where the employee’s work performance was outstanding.
What’s more, the limitations on an employer’s general right to fire employees at will are narrow. For instance, as discussed in The Axelrod Firm e-newsletter at http://www.theaxelrodfirm.com/articles.php?action=15, the United States Supreme Court ruled in Gross v. FBL Financial Services, Inc. that an employer may fire employees on account of their age, so long as age is not the sole reason it does so. In February of this year, in Noecker v. Reading Hospital, the court in the Eastern District of Pennsylvania ruled that an employer was legally entitled to fire an employee whose pregnancy made her unable to perform duties required of her job. She had not been with her employer long enough to qualify for pregnancy leave under the Family and Medical Leave Act. The law would otherwise have protected her.
While an employee may bring a wrongful termination suit, doing so requires proving the firing violated public policy. That public policy must be found in the Constitution, regulations, legislation or case law. Courts interpret this basis for bringing suit narrowly. For instance, in Weaver v. Harpster, a Pennsylvania state appellate court, the Superior Court, considered a wrongful termination suit. The woman who brought the action claimed she resigned due to sexual harassment. She could not bring suit under the Pennsylvania Human Relations Act as she worked for a company with less than 4 employees, and the Act applies only to larger companies. She claimed she should still be entitled to pursue a wrongful termination claim. There is a clear public policy against sexual harassment, she reasoned. However, the court ruled for her employer, reasoning that the law was specifically designed to keep smaller employers outside of its reach.
In summary, employment discrimination is a narrow field. Most firings are legal -- the law recognizes few as unlawful.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Managers Can Be Held Individually Liable For Family Medical Leave Act Violations
On February 24, 2010, a federal judge in the Eastern District of Pennsylvania, the federal trial court located in Philadelphia, held that managers could be individually responsible (in legal terms, liable) for violations of the Family and Medical Leave Act (FMLA). The FMLA requires employers to allow employees to take a specified amount of time off for family and/or medical reasons. The law normally applies when an employee is having a child, a family member is ill, or an employee is having surgery.
In Narodetsky v. Cardone Industries, Inc., the employee (Narodetsky) had worked at Cardone, a global supplier of automotive parts, as a tool designer for approximately 12 years. He found out that he needed surgery and requested leave from work under the FMLA. According to his Complaint, immediately after his request, Cardone’s President and CEO, its Human Resources Manager, Human Resources Director, a Human Resources representative, and the Plant Manager decided to perform a forensic search on his computer. The search turned up a pornographic email that he had sent to a co-worker about a year earlier. As a result of the email obtained in this fashion, he was called into a meeting and summarily fired.
While normally in such suits, the employer is the sole party sued, Narodetsky sued not only Cardone, but each of the company officials involved, from the company President to the Plant Manager. Narodetsky claimed that the individuals “participated in the forensic search of his computer with the goal of finding a reason to justify his termination because he had requested FMLA leave.”
The individuals who had been sued (called the individual defendants) filed a motion to dismiss the lawsuit. They claimed they could not be held personally liable for FMLA violations.
The trial judge disagreed. He ruled that the individual defendants could indeed be held legally liable for violating FMLA because Narodetsky alleged in his Complaint that each had the power to terminate him, and that each was involved in his termination.
Following Narodetsky, managers should consult an attorney before denying FMLA requests. Where there is a question whether an employee is entitled to family or medical leave, counsel can provide a reasoned opinion in accordance with the law. The last thing a company should do is leave its managers exposed to personal liability for deciding these issues on their own.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
In Narodetsky v. Cardone Industries, Inc., the employee (Narodetsky) had worked at Cardone, a global supplier of automotive parts, as a tool designer for approximately 12 years. He found out that he needed surgery and requested leave from work under the FMLA. According to his Complaint, immediately after his request, Cardone’s President and CEO, its Human Resources Manager, Human Resources Director, a Human Resources representative, and the Plant Manager decided to perform a forensic search on his computer. The search turned up a pornographic email that he had sent to a co-worker about a year earlier. As a result of the email obtained in this fashion, he was called into a meeting and summarily fired.
While normally in such suits, the employer is the sole party sued, Narodetsky sued not only Cardone, but each of the company officials involved, from the company President to the Plant Manager. Narodetsky claimed that the individuals “participated in the forensic search of his computer with the goal of finding a reason to justify his termination because he had requested FMLA leave.”
The individuals who had been sued (called the individual defendants) filed a motion to dismiss the lawsuit. They claimed they could not be held personally liable for FMLA violations.
The trial judge disagreed. He ruled that the individual defendants could indeed be held legally liable for violating FMLA because Narodetsky alleged in his Complaint that each had the power to terminate him, and that each was involved in his termination.
Following Narodetsky, managers should consult an attorney before denying FMLA requests. Where there is a question whether an employee is entitled to family or medical leave, counsel can provide a reasoned opinion in accordance with the law. The last thing a company should do is leave its managers exposed to personal liability for deciding these issues on their own.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Law Firms Are Not Immune From Attorney Age Discrimination Suits: The EEOC Goes After A Firm
On January 28, 2010, the United States Equal Employment Opportunity Commission (EEOC) sued New York firm Kelley Drye & Warren for age discrimination. The suit concerns the firm’s policy of purportedly requiring its partners to relinquish equity and management authority at age 70 and thereafter, to receive compensation only on an annual performance bonus basis. According to the Complaint, the annual performance bonuses are discretionary. The practices purportedly result in senior lawyers being undercompensated as compared to their more junior counterparts.
Among the relief sought, the EEOC is asking Kelley Drye to not only end the alleged discrimination, but to compensate the affected lawyers for the monies they lost and to provide equal employment opportunities for its employees who are 40 years old and older. The EEOC is demanding that Kelley Drye pay for the lawyers’ claimed pain, suffering and humiliation, and pay monies as punishment (so called “punitive damages”) for the purportedly offending behavior.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Among the relief sought, the EEOC is asking Kelley Drye to not only end the alleged discrimination, but to compensate the affected lawyers for the monies they lost and to provide equal employment opportunities for its employees who are 40 years old and older. The EEOC is demanding that Kelley Drye pay for the lawyers’ claimed pain, suffering and humiliation, and pay monies as punishment (so called “punitive damages”) for the purportedly offending behavior.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Employers Beware: A Supreme Court Case Reveals The Dangers of Going Into Workplace Investigations Without Legal Counsel
A unanimous United States Supreme Court decision highlights how critical it is for employers to seek legal advice when considering conducting internal workplace investigations. Questioned employees may inform investigators that they are being harassed on the job. Employees asserting such claims will now be subject to the same protections from retaliation by employers as those who file lawsuits for harassment. In fact, the Court’s decision leaves employers open to retaliation claims any time they fire employees who tell investigators about unlawful employment practices.
In Crawford v. Metropolitan Government of Nashville, the Metro School District conducted a workplace investigation into rumors that its Employee Relations Director, Hughes, was sexually harassing employees. Crawford, a long-time employee, informed the investigator that Hughes sexually harassed her. Metro took no disciplinary action against Hughes, and fired Crawford for alleged embezzlement.
Crawford filed a retaliation claim against Metro, claiming she was fired for reporting Hughes’ sexual harassment. In legal terms, she asserted that her employer retaliated against her for opposing an unlawful employment practice. The trial and intermediate appellate courts ruled in Metro’s favor, finding that Crawford could not claim retaliation protection because she did not initiate a complaint. She had merely answered an investigator’s questions in an already pending internal investigation.
The Supreme Court reversed. The justices concluded that an employee who tells an investigator about unlawful workplace harassment is protected from the employer’s retaliation. More broadly, the Court suggested that retaliation protection extends to any employee who speaks out about discrimination during a workplace investigation.
The Crawford decision underscores the importance of consulting an experienced employment attorney before, during and after workplace investigations. Before an investigation, counsel can advise whether an investigation should be conducted in the first place. If there is to be an investigation, counsel can frame the issues to be addressed and the questions to be asked. During an investigation, as data is gathered, counsel can review the data, analyze it and provide guidance as to how the employer should best proceed.
If Metro had sought legal advice before firing Crawford, Metro may well have not fired her. (Counsel could also have suggested how best to deal with Hughes.)
After an investigation, counsel can inform an employer of its array of options in dealing with its workforce, and make recommendations as to which to choose. With the right counsel by an employer’s side, many lawsuits can be avoided altogether
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
In Crawford v. Metropolitan Government of Nashville, the Metro School District conducted a workplace investigation into rumors that its Employee Relations Director, Hughes, was sexually harassing employees. Crawford, a long-time employee, informed the investigator that Hughes sexually harassed her. Metro took no disciplinary action against Hughes, and fired Crawford for alleged embezzlement.
Crawford filed a retaliation claim against Metro, claiming she was fired for reporting Hughes’ sexual harassment. In legal terms, she asserted that her employer retaliated against her for opposing an unlawful employment practice. The trial and intermediate appellate courts ruled in Metro’s favor, finding that Crawford could not claim retaliation protection because she did not initiate a complaint. She had merely answered an investigator’s questions in an already pending internal investigation.
The Supreme Court reversed. The justices concluded that an employee who tells an investigator about unlawful workplace harassment is protected from the employer’s retaliation. More broadly, the Court suggested that retaliation protection extends to any employee who speaks out about discrimination during a workplace investigation.
The Crawford decision underscores the importance of consulting an experienced employment attorney before, during and after workplace investigations. Before an investigation, counsel can advise whether an investigation should be conducted in the first place. If there is to be an investigation, counsel can frame the issues to be addressed and the questions to be asked. During an investigation, as data is gathered, counsel can review the data, analyze it and provide guidance as to how the employer should best proceed.
If Metro had sought legal advice before firing Crawford, Metro may well have not fired her. (Counsel could also have suggested how best to deal with Hughes.)
After an investigation, counsel can inform an employer of its array of options in dealing with its workforce, and make recommendations as to which to choose. With the right counsel by an employer’s side, many lawsuits can be avoided altogether
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
The Superior Court Reduces Awards In Motor Vehicle Accidents By The Amount Of Underinsured Benefits Received
The Pennsylvania Superior Court recently examined payouts individuals injured in automobile accidents receive. In Pennsylvania, drivers are required by law to be insured. Of course, there are drivers who violate the law, and drivers who obey the law but carry only the minimum amount of coverage. When drivers carry underinsured motorist (UIM) coverage, they protect themselves against having to pay expenses that are not covered by the drivers who hit them. The injured drivers with such coverage can collect UIM monies and then sue the drivers who hit them for the full scope of their damages including their pain and suffering.
New Discrimination Law Prohibits Using Genetic Information In Making Employment Decisions
As of November 21, 2009, employers had to begin complying with the Genetic Information Nondiscrimination Act (GINA). GINA is divided into two titles. Title I prohibits insurance carriers from using genetic information to discriminate against the individuals covered under their plans. Title II is tailored to employers and prohibits the use of an employee’s genetic information in making employment decisions. This e-newsletter concerns Title II.
GINA broadly defines genetic information as genetic tests of an individual or the individual’s family members. Genetic information under GINA includes the presence of a disease or disorder in the individual’s family members. Put more colloquially, genetic information covered under GINA includes an individual’s entire medical history and that of the individual’s family members. Further, an individual’s family members under GINA include their dependents and any other relative out to the fourth degree, as the term is defined in the statute.
Title II makes it illegal to use an individual’s genetic information in making an employment decision. Covered employment decisions include hiring and firing, decisions about the terms of employment, the segregation of employees, limiting an employee’s opportunities, and limiting an employee’s benefits. For example, if an employer learns that a job applicant’s mother had breast cancer, the employer cannot consider that fact (or the applicant’s increased risk of suffering a similar fate), in deciding whether to hire the applicant. Such discrimination is permissible only if the employer can show that the information was job-related and consistent with a business necessity.
GINA goes further and makes it illegal for an employer to request, require, or purchase an employee or covered family member’s genetic information. The statute provides a few exceptions to this prohibition. An employer may inadvertently acquire this information, such as through innocent workplace conversation. Among a few other permissible exceptions, the employer may also acquire the information to comply with the Americans with Disabilities Act, the Family Medical Leave Act, or other similar laws.
Employers with 15 or more employees should make themselves familiar with these new restrictions. More importantly, they should retain an experienced employment discrimination attorney to assist them in complying with them. Compliance with GINA will require updating the employer’s posters, workplace practices and personnel manual.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
GINA broadly defines genetic information as genetic tests of an individual or the individual’s family members. Genetic information under GINA includes the presence of a disease or disorder in the individual’s family members. Put more colloquially, genetic information covered under GINA includes an individual’s entire medical history and that of the individual’s family members. Further, an individual’s family members under GINA include their dependents and any other relative out to the fourth degree, as the term is defined in the statute.
Title II makes it illegal to use an individual’s genetic information in making an employment decision. Covered employment decisions include hiring and firing, decisions about the terms of employment, the segregation of employees, limiting an employee’s opportunities, and limiting an employee’s benefits. For example, if an employer learns that a job applicant’s mother had breast cancer, the employer cannot consider that fact (or the applicant’s increased risk of suffering a similar fate), in deciding whether to hire the applicant. Such discrimination is permissible only if the employer can show that the information was job-related and consistent with a business necessity.
GINA goes further and makes it illegal for an employer to request, require, or purchase an employee or covered family member’s genetic information. The statute provides a few exceptions to this prohibition. An employer may inadvertently acquire this information, such as through innocent workplace conversation. Among a few other permissible exceptions, the employer may also acquire the information to comply with the Americans with Disabilities Act, the Family Medical Leave Act, or other similar laws.
Employers with 15 or more employees should make themselves familiar with these new restrictions. More importantly, they should retain an experienced employment discrimination attorney to assist them in complying with them. Compliance with GINA will require updating the employer’s posters, workplace practices and personnel manual.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
It Is The First Opinion Of Justice Sotomayor, And It Will Have Sizeable Consequences.
There was much fanfare surrounding Sonia Sotomayor’s nomination to the Supreme Court of the United States. The Supreme Court’s first opinion of the term, authored on December 8, 2009 by Justice Sotomayor in Mohawk Industries Inc. v. Carpenter, received no attention in comparison. It was issued almost in silence, but it portends to have a serious impact upon one of the most important protections the law affords clients.
The Axelrod Firm's David Versus Goliath Commercial Defense Victory Is Published
The Axelrod Firm represented the defendant, a single individual, against the plaintiff, a large nursing company, Visiting Nurse Group, Inc. "Pennsylvania Jury Verdict Review & Analysis" provides professional commentary and analysis on the most significant verdicts in Pennsylvania state and federal courts. This excerpt is taken from page 14 of the October 2009 issue:
Wednesday, June 22, 2011
Can I Make The Other Side Pay My Attorneys’ Fees? Not Often, But You May Have An Advantage If You Plan Ahead.
This post is the second in a two-part series. The first addressed how cases are valued. This addresses when attorneys’ fees are recoverable. The answer in Pennsylvania is rarely, but there are circumstances where you can recover your legal fees by statute. There are even circumstances where statutes don't call for counsel fees to be paid but you can collect them anyway, if you plan ahead.
In Pennsylvania, attorneys’ fees are recoverable where they are provided for by statute, by law or by contract.
In Pennsylvania, attorneys’ fees are recoverable where they are provided for by statute, by law or by contract.
What’s My Case Worth? A Guide To Case Valuation
“What’s my case worth?” and “Can I make the other side pay my legal bills?” are probably the two most commonly asked questions of trial attorneys. This post answers the first question. The next will answer the second.
The value of a case is based on two factors: liability and damages.
The value of a case is based on two factors: liability and damages.
The Dividing Line Between Harassment Based On Gender And That Based On Sexual Orientation: The Two May Be Intertwined, But Only One Is Protected
In the workplace, Title VII, a series of federal laws, prohibits so called gender stereotyping, the harassment of employees who don't act like those of their gender. However, Title VII is not recognized to prohibit harassment based on an employee's sexual orientation. This leaves open the question of what to do when a homosexual male employee is harassed for not acting like a stereotypical man. In legal terms, the question is whether his harassment is covered as gender-based harassment, or whether it falls outside of the scope of Title VII as a claim for sexual orientation-based harassment. That was the issue this region’s federal appellate court decided on August 28, 2009 in Prowel v. Wise Business Forms Inc.
A Reminder From The Bench: Proving A Hostile Work Environment Claim Is Not Easy
On August 14, 2009, the United States Court of Appeals for the Third Circuit, this region’s federal appellate court, kept the bar for proving hostile work environment claims very, very high. “Occasional insults ... are not enough,” the court reiterated in Brooks v. CBS Radio, Inc. To prove a hostile work environment claim, the discrimination must be so “severe” or “pervasive” that it permeates the workplace and changes the very nature of the job.
Even being told by a supervisor to read a book containing blatantly racist passages, the court decided, is not enough. In Brooks, the sole African-American account executive at CBS Radio, Inc. quit after being told by his supervisor to read “Dress For Success”. More specifically, Mr. Brooks left as a result of being offended by a number of the book’s shocking passages including the following:
“The two groups who have the most problems with their appearances are black men and Hispanic men. It is unfortunate but true that our society has conditioned us to look upon members of both groups as belonging to the lower classes, and no matter how high a minority individual rises in status or achievement, he is going to have some difficulty being identified by his success rather than his background. But clothing can help.”
Despite the book’s content, the court ruled that its distribution did not create a hostile work environment for Mr. Brooks. There was no evidence Mr. Brook’s supervisor ever read the book. Not only that, the court decided that since there was no hostile work environment, Mr. Brooks had no need to quit so he could not recover monies from CBS Radio for his departure.
Brooks should make people who believe they work in hostile environments think twice before quitting. They are well advised to seek an attorney's counsel. Together with their attorney, they should step back and reflect about the issue the way a court will: is the discrimination limited to occasional insults, they should ask, or are the insults so severe or pervasive that they infect the very nature of the job? If it’s the latter, before leaving, they should complain about it. They should write out a list of their grievances, date and make a copy of it and hand it to the Human Resources Department (or if there is none, to their supervisors), specifying what precisely the problems are. They should then give their employer the opportunity to rectify the situation. Mr. Brooks did not give his supervisor this chance, and the Third Circuit held that against him.
Brooks notwithstanding, employers should always be vigilant in identifying and eradicating discrimination in the workplace. Diversity should not just be tolerated; it should be welcomed and appreciated. If there is discrimination but it is not severe or pervasive, an employer may win a hostile work environment claim, but the employee may bring other discrimination claims, and the employee will in all likelihood find those easier to prove. Beyond claim prevention, keeping discrimination out of the workplace helps ensure that every employee can be successful. That, in turn, helps a company perform at its peak.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
Even being told by a supervisor to read a book containing blatantly racist passages, the court decided, is not enough. In Brooks, the sole African-American account executive at CBS Radio, Inc. quit after being told by his supervisor to read “Dress For Success”. More specifically, Mr. Brooks left as a result of being offended by a number of the book’s shocking passages including the following:
“The two groups who have the most problems with their appearances are black men and Hispanic men. It is unfortunate but true that our society has conditioned us to look upon members of both groups as belonging to the lower classes, and no matter how high a minority individual rises in status or achievement, he is going to have some difficulty being identified by his success rather than his background. But clothing can help.”
Despite the book’s content, the court ruled that its distribution did not create a hostile work environment for Mr. Brooks. There was no evidence Mr. Brook’s supervisor ever read the book. Not only that, the court decided that since there was no hostile work environment, Mr. Brooks had no need to quit so he could not recover monies from CBS Radio for his departure.
Brooks should make people who believe they work in hostile environments think twice before quitting. They are well advised to seek an attorney's counsel. Together with their attorney, they should step back and reflect about the issue the way a court will: is the discrimination limited to occasional insults, they should ask, or are the insults so severe or pervasive that they infect the very nature of the job? If it’s the latter, before leaving, they should complain about it. They should write out a list of their grievances, date and make a copy of it and hand it to the Human Resources Department (or if there is none, to their supervisors), specifying what precisely the problems are. They should then give their employer the opportunity to rectify the situation. Mr. Brooks did not give his supervisor this chance, and the Third Circuit held that against him.
Brooks notwithstanding, employers should always be vigilant in identifying and eradicating discrimination in the workplace. Diversity should not just be tolerated; it should be welcomed and appreciated. If there is discrimination but it is not severe or pervasive, an employer may win a hostile work environment claim, but the employee may bring other discrimination claims, and the employee will in all likelihood find those easier to prove. Beyond claim prevention, keeping discrimination out of the workplace helps ensure that every employee can be successful. That, in turn, helps a company perform at its peak.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
How Much Is Enough? The Supreme Court Sets The Standard For Making A Claim
On May 18, 2009, the Supreme Court issued a controversial decision with far-reaching implications for cases filed in federal court. Ashcroft v. Iqbal is about the amount of detail required in a complaint, a document filed at the beginning of a lawsuit. A complaint sets out the claims the party bringing the lawsuit, known as the plaintiff, has against the party being sued, known as the defendant.
In Bell Atlantic Corp. v. Twombly, a case decided not long before Iqbal, the Supreme Court considered the amount of information complaints in antitrust cases must have. In Iqbal, the Supreme Court, split 5 justices to 4, broadened the scope of Twombly to all complaints filed in federal court. To survive a motion to dismiss, a plaintiff must now provide enough facts to show that, if he proves his case, it is not just “possible” the defendant acted unlawfully; it is “plausible”.
In Bell Atlantic Corp. v. Twombly, a case decided not long before Iqbal, the Supreme Court considered the amount of information complaints in antitrust cases must have. In Iqbal, the Supreme Court, split 5 justices to 4, broadened the scope of Twombly to all complaints filed in federal court. To survive a motion to dismiss, a plaintiff must now provide enough facts to show that, if he proves his case, it is not just “possible” the defendant acted unlawfully; it is “plausible”.
Taking Measures To Diversify A Workforce Is Now Risky Business: The Supreme Court Rules That Correcting Discrimination Can Itself Be Discriminatory
In the latest of a series of controversial decisions, the Supreme Court, split 5 justices to 4, sounded an unlikely warning to employers: take measures to diversify your workforce at your peril. Ricci v. Destefano concerns Title VII of the Civil Rights Act which prohibits employment discrimination on the basis of race, color, religion, sex or national origin. The Act makes two types of discrimination unlawful: intentional discrimination ("disparate treatment"), and non-racially motivated behavior which disproportionately adversely impacts minorities ("disparate impact"). Ricci goes to the heart of the tension between the two types of discrimination, and leaves employers to walk a tightrope between them.
Ricci, decided on June 29, 2009, concerned New Haven, Connecticut’s exam for firefighters seeking promotions. While there was no intention to skew the results, white candidates outperformed their minority counterparts. Both sides then threatened to sue the City under Title VII. Minority firefighters who would be denied promotions threatened to sue if the City kept the test results.
Ricci, decided on June 29, 2009, concerned New Haven, Connecticut’s exam for firefighters seeking promotions. While there was no intention to skew the results, white candidates outperformed their minority counterparts. Both sides then threatened to sue the City under Title VII. Minority firefighters who would be denied promotions threatened to sue if the City kept the test results.
The Supreme Court Decides That Age May Factor Into An Employer's Decision To Take Action Against An Employee
The Supreme Court -- sharply divided 5 justices to 4 -- recently published a controversial ruling in the field of employment discrimination law. Gross v. FBL Financial Services, Inc. dealt with the Age Discrimination in Employment Act of 1967 (ADEA) which makes it unlawful for an employer to take action against an employee “because of such individual's age”. On June 18, 2009 in Gross, the majority of justices decided that an employee cannot win a claim under the ADEA with proof that age was a factor motivating the employer to take action; the employee must prove that age was the determinative factor.
The Breadth Of Ledbetter Begins To Be Examined, And Compensation Is The Key
The Lilly Ledbetter Fair Pay Act was the first bill President Obama signed into law upon taking the oath of office. The Act gives an employee paid comparatively lesser wages, benefits or other compensation as a result of discrimination additional time to file a claim. In fact, literally every time an employee is handed a disproportionately low paycheck, Ledbetter calls for the employee to be given another 300 days to do so.
Ledbetter changed the landscape for employers. The passing of 300 days (nearly a year) without a claim after new pay scales offers employers no security now; claims may be brought indefinitely, as long as they are filed within 300 days after a lesser paycheck.
Ledbetter changed the landscape for employers. The passing of 300 days (nearly a year) without a claim after new pay scales offers employers no security now; claims may be brought indefinitely, as long as they are filed within 300 days after a lesser paycheck.
Assessing Your Company’s Exposure In An Employment Discrimination Case
A recent Pennsylvania case highlights the substantial liabilities employers face in navigating the complexities of employment discrimination law and offers insight into how employers can limit their exposure. A person who wins an employment discrimination case can collect, among other funds, monies for back pay and front pay. Back pay is the difference between what an employee was paid and the amount the employee should have been paid, had there been no discrimination. Courts may order an employer to pay an employee back all underpaid monies from up to 2 years before the employee’s discrimination charge all the way up to the time of trial. Front pay damages can be even greater. Front pay consists of all monies the employee is expected to lose before finding a substantially equivalent position.
Monday, June 20, 2011
Fighting Back: What To Do When Your Insurance Company Denies A Claim
It happens all too often. You buy an insurance policy to cover your business. You pay your premiums like clockwork, year after year. Then one day, your business gets sued. You immediately submit the claim to your carrier and you figure they’ll cover it. They’ll hire a lawyer at their cost (after you pay any deductible), and the lawyer will defend your company. After all, that’s why you’ve been paying all those premiums, to get that coverage. However, a few weeks later, a letter comes in the mail. Your carrier’s rejected the claim and now you’re stuck having to pay to fight the lawsuit. What should you do? Fight back and here’s how.
1. Size up the battleground
Review your carrier’s claim rejection letter and cross check it against your insurance policy. Your policy is your insurance carrier’s contract with you, and your carrier is bound by its terms. The letter will explain your carrier’s reasons for denying coverage, and will refer to specific policy language. When you cross check the letter against the policy, don’t just look at the policy provisions your carrier cites. Read the entire policy, see how its terms are defined and get a handle on the scope of coverage -- which acts and damages the policy covers, and which it does not.
In Pennsylvania, unless it is absolutely clear that your carrier does not have to provide your business with coverage, your carrier generally has to provide coverage. Courts interpret contracts against their drafters. In the case of insurance policies, the drafters are virtually always the insurance carriers.
When courts interpret a policy against the carrier, they interpret ambiguous terms -- provisions that can mean more than one thing -- in favor of providing the insured, your business, with coverage. So if the policy could be construed to call for your carrier to defend the lawsuit, your policy will be construed to require your carrier to do so. In short, courts will read the policy in the way most likely to provide your business with coverage.
Don’t let the carrier confuse you by claiming that the policy does not require it to indemnify a claim. We are talking about whether the policy requires the defense of a claim, whether the policy calls for the carrier to hire a lawyer to defend your company. Whether your carrier has to pay a judgment that could be entered against your business (indemnification) is a separate question.
2. Strike back
If you conclude that indeed, your policy could reasonably be construed to require your company’s defense, write your carrier back. Set out why the policy requires your carrier to defend the lawsuit, quoting specific policy provisions which call for coverage.
It can be an act of “bad faith” for a carrier to refuse to defend a claim covered by a policy, and if your business wins a bad faith claim against a carrier, the carrier may have to pay your company not only compensatory damages, but punitive damages. Compensatory damages are the monies your business actually incurs from the having to defend the claim (the legal fees and costs of the suit). Punitive damages go further. They are imposed to punish a carrier so that in the future, it will be more likely to defend such a claim rather than forcing its insured to defend it and have to sue to get reimbursed. If you truly believe your carrier’s refusal to defend your company is being made in bad faith, tell them so in the letter but be prepared to back that up with a claim against your carrier should it refuse to budge.
3. Don’t take your eye off the clock
Whatever you do, do not let the time your company has to file a response to the lawsuit run out. In Pennsylvania courts, you may be able to file either an Answer to the Complaint or a pleading to have the Complaint stricken. Call the opposing party’s attorney. Do not mention anything about the merit (or lack of merit) of the lawsuit, but say that you are trying to get your insurance carrier to hire you a lawyer and ask for a reasonable extension of time to Answer the Complaint or otherwise plead. If the lawyer grants you the extension, confirm it in writing. This way, you will retain the ability to have the Complaint stricken while you try to get your carrier to hire your company a lawyer. In the meantime, don’t wait. Look for a lawyer to represent your business in the lawsuit -- preferably, one who will also help you fight your carrier.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
1. Size up the battleground
Review your carrier’s claim rejection letter and cross check it against your insurance policy. Your policy is your insurance carrier’s contract with you, and your carrier is bound by its terms. The letter will explain your carrier’s reasons for denying coverage, and will refer to specific policy language. When you cross check the letter against the policy, don’t just look at the policy provisions your carrier cites. Read the entire policy, see how its terms are defined and get a handle on the scope of coverage -- which acts and damages the policy covers, and which it does not.
In Pennsylvania, unless it is absolutely clear that your carrier does not have to provide your business with coverage, your carrier generally has to provide coverage. Courts interpret contracts against their drafters. In the case of insurance policies, the drafters are virtually always the insurance carriers.
When courts interpret a policy against the carrier, they interpret ambiguous terms -- provisions that can mean more than one thing -- in favor of providing the insured, your business, with coverage. So if the policy could be construed to call for your carrier to defend the lawsuit, your policy will be construed to require your carrier to do so. In short, courts will read the policy in the way most likely to provide your business with coverage.
Don’t let the carrier confuse you by claiming that the policy does not require it to indemnify a claim. We are talking about whether the policy requires the defense of a claim, whether the policy calls for the carrier to hire a lawyer to defend your company. Whether your carrier has to pay a judgment that could be entered against your business (indemnification) is a separate question.
2. Strike back
If you conclude that indeed, your policy could reasonably be construed to require your company’s defense, write your carrier back. Set out why the policy requires your carrier to defend the lawsuit, quoting specific policy provisions which call for coverage.
It can be an act of “bad faith” for a carrier to refuse to defend a claim covered by a policy, and if your business wins a bad faith claim against a carrier, the carrier may have to pay your company not only compensatory damages, but punitive damages. Compensatory damages are the monies your business actually incurs from the having to defend the claim (the legal fees and costs of the suit). Punitive damages go further. They are imposed to punish a carrier so that in the future, it will be more likely to defend such a claim rather than forcing its insured to defend it and have to sue to get reimbursed. If you truly believe your carrier’s refusal to defend your company is being made in bad faith, tell them so in the letter but be prepared to back that up with a claim against your carrier should it refuse to budge.
3. Don’t take your eye off the clock
Whatever you do, do not let the time your company has to file a response to the lawsuit run out. In Pennsylvania courts, you may be able to file either an Answer to the Complaint or a pleading to have the Complaint stricken. Call the opposing party’s attorney. Do not mention anything about the merit (or lack of merit) of the lawsuit, but say that you are trying to get your insurance carrier to hire you a lawyer and ask for a reasonable extension of time to Answer the Complaint or otherwise plead. If the lawyer grants you the extension, confirm it in writing. This way, you will retain the ability to have the Complaint stricken while you try to get your carrier to hire your company a lawyer. In the meantime, don’t wait. Look for a lawyer to represent your business in the lawsuit -- preferably, one who will also help you fight your carrier.
The Axelrod Firm, PC helps individuals, businesses and non-profit organizations with their commercial, real estate and employment issues. Sheryl L. Axelrod is the owner of the three attorney state-certified woman owned law firm. While only 5% of lawyers per jurisdiction are recognized by their fellow lawyers as Super Lawyers, she has been recognized as a Super Lawyer for the third year in a row. She is the President of the Temple Law Alumni Association (TLAA), its 4th female President in its over 95 year history.
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