Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Thursday, March 11, 2010

Lay Testimony May Supplement Medical Testimony in FMLA Cases

In Schaar v. Lehigh Valley Health Services, Inc., the Third Circuit Court of Appeals held, in an FMLA suit concerning the denial or applicability of FMLA leave, that an employee may use his/her own lay testimony to supplement the medical testimony of a health care professional in order to allow a jury to ultimately determine whether the employee was suffering, or had suffered, from a "serious health condition," at the time the FMLA leave was requested or taken.

The Court of Appeals noted, however, that contrary to the rules in the Fifth and Ninth Circuits, in an FMLA case concerning a "serious health condition," lay testimony of the employee by itself is insufficient to allow the employee's claim to proceed to a jury.

Monday, March 8, 2010

At-Will Employee May Sue For Wrongful Termination When Fired In Retaliation For Complaining About Drug-Testing Violations

The U.S. District Court for the Middle District of Pennsylvania has ruled that an at-will employee may sue his/her former employer for wrongful termination where the employee is terminated in retaliation for making complaints about his/her employer's or supervisor's failure to comply with Federal and State mandatory drug-testing requirements, where such requirements have been adopted for the protection of the safety of the public at large.

In Oliveri v. U.S. Food Service d/b/a North Star Foodservice, District Judge James M. Munley dismissed Defendant/employer's Motion to Dismiss plaintiff's complaint where plaintiff, at-will employee, alleged that his termination by employer was unlawful in violation of the public policy of Pennsylvania. Defendant/employer was a commercial trucking company, which was required by federal regulations to perform random drug-testing on its commercial truck drivers. Defendant had employed plaintiff as a manager of transportation, an "at-will" position. During the course of his employment, plaintiff discovered that his immediate supervisor was delaying or excusing testing on several drivers, all in violation of federal regulations. Plaintiff complained to other supervisors in the company, but to no avail. Finally, plaintiff contacted an anonymous hotline that Defendant/employer maintained to allow employees to make complaints, reciting his supervisor's violations of the federal drug-testing requirements. The next day, plaintiff's supervisor told plaintiff that he knew plaintiff had complained to the hotline and terminated his employment.

Plaintiff sued Defendant/employer, alleging that despite his status as an "at-will" employee, his termination was in violation of the public policy of Pennsylvania. The Court agreed, holding that Pennsylvania courts have recognized that highway safety and the regulation of commerical trucks are significant matters of public policy, and that Pennsylvania has specifically adopted by reference the federal drug-testing regulations for commerical truck drivers that plaintiff claimed were violated by his supervisor. Therefore, the Court allowed plaintiff's claim of wrongful termination to proceed.

Helicopter Pilots Entitled to Overtime Pay in Pennsylvania, New Jersey & Delaware

Commerical helicopter pilots in Pennsylvania, New Jersey or Delaware, are now entitled to mandatory time-and-a-half overtime pay for all hours worked in excess of 40 during a single workweek.

In Pignataro v. Port Authority of New York and New Jersey, the Third Circuit Court of Appeals held that helicopter pilots did not qualify for the "learned professional" exemption under the federal Fair Labor Standards Act, because the skills and training necessary to obtain a helicopter pilot's certification and license did not require "advanced knowledge that is customarily acquired from a prolonged course of specialized instruction." Thus, helicopter pilots who work more than 40 hours a weeks are entitled to mandatory overtime pay.

In reaching this conclusion, the Court of Appeals noted that jobs that traditionally fall within the "learned professional" exemption are those that require academic degrees from a college or university. Helicopter pilots, however, are not required to have academic degrees or spend a significant amount of time in the classroom. Rather, the majority of pilots' instruction takes place in the air, logging in-flight hours and undergoing in-flight instruction. And, the Court noted that a helicopter pilot's passing of practical and written tests do not qualify as the type of "prolonged court of specialized intellecutal instruction and study," that is required under the federal regulations in order for an employee to qualify for the "learned professional" exemption.