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Philadelphia Employment Lawyers

Philadelphia employment lawyers at Sidkoff, Pincus & Green are experienced in handling employment law matters and routinely represent employees and employers in Pennsylvania and New Jersey. Employment law broadly refers to the rights and responsibilities that grow out of an employer-employee relationship, which include those of current, former and prospective employees.

Wrongful Termination, Unlawful Discrimination and Whistleblower Protection

Pennsylvania and New Jersey are employment “at-will” states, meaning that unless an employee has a contract stating otherwise, he or she may be terminated at any time and for any reason with certain exceptions. There are federal, state and municipal statutes that present exceptions to the at-will doctrine. Some of these statutes protect against discrimination,whistle-blowing and retaliation, and a sample of the more commonly invoked statutes are listed below. There are also rare public policy exceptions to the at-will doctrine that may result in a common law claim for wrongful discharge; these exceptions are also discussed below.

Title VII of the Civil Rights Act of 1964 (“Title VII”)

Title VII prohibits employers with 15 or more employees from discriminating against employees on the basis of race, color, national origin, religion, or sex (the “protected classes”) in all aspects of employment. The prohibition against discrimination relates to hiring, termination, compensation, promotion and other conditions of employment. The EEOC has responsibility for administration and enforcement of claims made under Title VII.

In order to prevail on a discrimination claim without direct evidence of discrimination (such as an admission from an employer), an employee will look to the three-step burden shifting analysis established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must establish a prima facie case for discrimination. That is, a plaintiff must demonstrate 1) that she is a member of a protected class; 2) that she was qualified for the position in question; 3) that she was discharged; and 4) that she was terminated under circumstances that give rise to an inference of unlawful discrimination.

Establishing a prima facie case creates the presumption of unlawful discrimination. If this is established by the plaintiff, the burden of production shifts to defendant to set forth a legitimate, non-discriminatory reason for its action. Upon defendant advancing such a reason, the presumption of unlawful discrimination is rebutted and drops from the case. Then, plaintiff must be given the opportunity to show by a preponderance of the evidence that the employer’s explanation is pretextual. To demonstrate pretext, plaintiff must provide evidence that would allow a fact finder reasonably to (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer’s action.

For further information regarding claims and potential claims under Title VII, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

Hostile Work Environment under Title VII

The scope of protection provided by Title VII includes protection against a hostile work environment.

There are five elements that a plaintiff must prove to establish a claim for hostile work environment under Title VII –(1) the employee suffered intentional discrimination because of his or her protected class; (2) the discrimination was pervasive or regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Clark County School Dist. v. Breeden, 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); Andrews v. City of Philadelphia, 895 F.2d 1469, 1472 (3d Cir.1990).

With respect to the second element, the Supreme Court has made clear that Title VII is not a “general civility code,” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The Court has also observed that “hostile work environment” harassment must be pervasive or severe enough “to alter the conditions of … employment and create an abusive working environment.” Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982). The test looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it interferes with an employee’s work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)

The standards governing employer liability for a hostile work environment differ depending on the source of the hostility. Imputing liability for co-worker harassment is grounded in the employer’s direct negligence. Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 333-34 (4th Cir.2003). Where a co-worker is the source of the hostile environment, “liability exists where the defendant knew or should of known of the harassment and failed to take prompt remedial action.” Kunin, 175 F.3d at 293 (internal citations omitted).

For further information regarding hostile work environment claims under Title VII, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

Retaliation under Title VII

Title VII also protects those individuals who file claims of discrimination, or who otherwise oppose discriminatory practices from retaliation. Title VII’s anti-retaliation provision provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

In order to prevail in a claim for retaliation, a plaintiff must make out a prima facie case to shift the burden of production to the defendant to set forth a legitimate, non-discriminatory reason for its action. If the defendant is successful, the plaintiff must show that the defendant’s stated reason for the adverse employment action was merely a pretext for discrimination. To succeed in establishing a prima facie case in a retaliation claim, a plaintiff must show: (1) that she was engaged in a protected activity; (2) that her employer took adverse action against her; and (3) that a causal link exists between the protected activity and the employer’s adverse action.

Retaliation claims proceed in one of two ways, depending on the nature of the evidence available. Plaintiffs with direct evidence of retaliation present such evidence without the McDonnell Douglas burden-shifting analysis, discussed above in the general analysis of Title VII claims. Plaintiffs with only circumstantial evidence, however, will go through this burden-shifting analysis. Because of the burden shift, however, the plaintiff’s entire burden of proof need not be satisfied at the prima facie stage. Instead, the plaintiff need only raise an inference of retaliation to state a prima facie case, a burden that the Supreme Court has defined as “not onerous.” The plaintiff may then fulfill the burden by proving pretext. The most common circumstantial evidence of a causal connection is temporal proximity because the sooner adverse action is taken after protected activity, the stronger the implication that the protected activity caused the adverse action.

For further information regarding retaliation claims under Title VII, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The Age Discrimination in Employment Act (ADEA)

Age is not a protected class under Title VII. However, in 1967, the ADEA was enacted with the goal of preventing discrimination and promoting employment of older persons based on ability rather than age. The ADEA forbids age discrimination in employment of persons at least forty (40) years of age. There are exemptions permitting mandatory retirement under certain circumstances for executives and high policymakers, and for firefighters and law enforcement officers. Also, age itself may be a bona fide occupational qualification exemption in certain circumstances. The ADEA covers private employers as well as states, political subdivisions, and labor organization. Federal employment is exempted from the general provisions but specifically covered in a separate section. The ADEA differs from Title VII in that the ADEA applies to employers of 20 or more employees, as opposed to 15 or more. The EEOC has responsibility for administration and enforcement of the ADEA.

The ADEA’s prohibition of employers from discriminating with respect to the compensation, terms, conditions, or privileges of employment is identical to the language found in Title VII. Adverse employer actions under the ADEA include hiring and termination, advertising, referrals by employment agencies, actions by unions, and assertions of rights by employees under the ADEA. It is thus unlawful for an employer to retaliate against an employee who objects to age-based discriminatory employment practices, or who files an age discrimination charge or initiates litigation, or who otherwise participates in an investigation, proceeding, or litigation under the ADEA.

In order to prove a violation of the ADEA, in the absence of direct evidence of discrimination, a plaintiff must satisfy the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, Plaintiff must establish a prima facie case of discrimination by proving the following four elements: (1) Plaintiff is 40 years of age or older; (2) Defendant took an adverse employment action against Plaintiff; (3) Plaintiff was qualified for the position in question; and (4) Plaintiff was replaced by an employee sufficiently younger to support an inference of discriminatory animus. Second, the burden of production shifts to Defendant to identify a legitimate, nondiscriminatory reason for the adverse employment action. In the third and final step, Plaintiff may survive summary judgment … by submitting evidence from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

For further information regarding claims and potential claims under the ADEA, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The Americans with Disabilities Act of 1990 (ADA)

Title I of the ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Title V prohibits retaliation “against any individual because such individual has opposed any act or practice made unlawful by [the ADA].”The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act.

An individual with a disability is a person who: has a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or is regarded as having a disability. Per the ADA Amendments Act of 2008 (ADAAA), an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” The term “substantially limits” is construed broadly in favor of expansive coverage. Nonetheless, not every impairment will constitute a disability. A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to: making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring, modifying work schedules, reassignment to a vacant position; and acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

Courts reviewing discrimination claims under the ADA where there is no direct evidence of discrimination apply the McDonnell Douglas burden-shifting analysis. In order to prevail under the ADA, a plaintiff must first establish a prima facie case by producing evidence sufficient to support an inference of discrimination. A plaintiff must demonstrate the following: (1) she is disabled, as defined by the ADA; (2) she is qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) she suffered an adverse employment action as a result of discrimination. If a prima facie case of discrimination is established, the burden of production shifts to the defendant to articulate legitimate, nondiscriminatory reasons for treating the plaintiff in an adverse manner. If the defendant articulates legitimate, nondiscriminatory reasons for the plaintiff’s adverse treatment, the plaintiff must demonstrate that the reasons given by the defendant for such treatment are merely a pretext for unlawful employment discrimination.

For further information regarding claims and potential claims under the ADA, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The Pennsylvania Human Relations Act (“ PHRA”)

The PHRA is Pennsylvania’s counterpart to federal anti-discrimination law and, in most respects, a claim under the PHRA is analyzed identically to a claim under Title VII. The PHRA prohibits discrimination in employment by reason of: race, color, familial status, religious creed, ancestry, age (40 and above), sex, national origin, handicap or disability, use of guide or support animals because of blindness, deafness or physical handicap, or because of use of a handler or trainer of support or guide animals (“PHRA protected classes”). The employment provisions of the PHRA apply to employers of 4 or more persons, including units of state and local government, labor organizations, and employment agencies. Unlike Title VII, the PHRA covers independent contractors against discrimination so long as they are in a profession regulated by the Pennsylvania Bureau of Professional and Occupational Affairs.

Employers are prohibited from refusing to hire, employ, contract with, bar or discharge from employment, or discriminate against an individual or independent contractor, because of membership in one or more PHRA protected classes, for: compensation, hire, tenure, and conditions of employment. The Pennsylvania Human Relations Commission administers and enforces the PHRA. The allocation of the burden of proof for employment claims under the PHRA follows the familiar Title VII standards, including the McDonnell Douglas framework.

One way in which the PHRA and Title VII differ is that the PHRA does not include a cap on compensatory damages. In 1991, Congress amended the Civil Rights Act of 1964 to allow a successful plaintiff to recover compensatory damages for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” As part of the amendment allowing compensatory damages, the Civil Rights Act of 1991 imposes a cap on such damages based on the number of people employed by the defendant. For an employer with more than 500 employees, the statutory cap is $300,000. The United States Court of Appeals for the Third Circuit has held that, in appropriate circumstances, a district court may apportion compensatory damages in excess of the federal statutory cap to an uncapped PHRA claim in order to maximize the recovery to the plaintiff.

For further information regarding claims and potential claims under the PHRA, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The New Jersey Law against Discrimination (NJLAD)

The NJLAD prohibits discrimination on the basis of age, race, color, religion, national original, gender, ancestry, sexual orientation, services in the armed forces, atypical hereditary cellular or blood trait, marital status, domestic partnership status and civil union status (“NJLAD protected classes”). The NJLAD protects employment applicants, as well as those who are already employed, but unlike the PHRA, it does not cover independent contractors. However, not only does the NJLAD apply to both private and public employers, it is broader than both Title VII and the PHRA in that it applies to all employers, regardless of size.

In the absence of direct evidence of discrimination, an employee asserting a claim under the NJLAD may prove discrimination using the three-step burden- shifting inquiry established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Accordingly, in this respect, the NJLAD is identical to the PHRA.

As another distinguishing factor that demonstrates the broad power of the NJLAD, supervisors and coworkers, while not considered “employers”, may be held liable as aiders and abettors under the Act. In order to hold an employee liable as an aider or abettor, a plaintiff must show that (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as a part of an overall illegal or tortious activity at the time that he provides the assistance; and (3) the defendant must knowingly and substantially assist the principal violation.

Unlike Title VII and the PHRA, an employee asserting a claim under the NJLAD is not required to file an administrative claim with a state agency or the Equal Employment Opportunity Commission. An employee may choose whether to file an administrative claim with the New Jersey Division on Civil Rights, or to file a lawsuit in state court. NJLAD administrative claims must normally be filed within 180 days of the violation. NJLAD lawsuits in state court must normally be filed within two years of the violation. If an employee files an administrative claim and the Division on Civil Rights issues a finding of no cause to believe there was discrimination, the employee will no longer have the option of filing a lawsuit in state court.

For further information regarding claims and potential claims under the NJLAD, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq.

The PA Whistleblower Law holds that no employer (covered under the law) may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. “Waste” is defined as “an employer’s conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.” “Wrongdoing” is defined as “a violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.”

The PA Whistleblower Law also holds that no employer (covered under the law) may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action.

An “employer” is defined under the Pa Whistleblower Law as “[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” A “public body” is defined, inter alia, as any body created by the Commonwealth or “which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.” If an employer receives funds through the state, that may qualify it as being a “public body”.

A court, in rendering a judgment in an action brought under the Pa Whistleblower Law may order: reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.

For further information regarding claims and potential claims under the PA Whistleblower Law, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

The Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq.

CEPA was enacted to protect whistle-blowers from retaliatory action and the scope is accordingly limited to claims for retaliatory discharge. Under CEPA, “[a]n employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer … that the employee reasonably believes (1) is in violation of a law, or a rule or regulation promulgated pursuant to law … (2) is fraudulent or criminal[;] …

b. Provides information to, or testifies before, any public body conducting an investigation hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer[;] … or

c. Objects to or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law [;] …

*468 (2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”

N.J. Stat. Ann. § 34:19-3.

To succeed in a CEPA claim a plaintiff must prove four elements: (1) that the plaintiff reasonably believed that employer’s conduct violated a law or regulation; (2) that the plaintiff performed “whistle-blowing activity” as defined in CEPA; (3) that an adverse employment action has been taken against him or her; and (4) that the whistle-blowing activity caused such adverse employment action. The statute of limitations for CEPA claims is one year and a claim accrues on the date of the adverse employment action. An aggrieved party may receive as a remedy for a successful claim under CEPA all remedies available in common tort actions, along with reinstatement, compensatory damages for lost wages, benefits and other remuneration, reasonable costs and attorneys fees, and punitive damages.

For further information regarding claims and potential claims under CEPA, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

A Selection of Federal Whistleblower Statutes

False Claims Act/Qui Tam

In a Qui Tam action, a private party, referred to as a relator, brings an action on the government’s behalf. Under the False Claims Act, persons and entities with evidence of fraud against federal programs or contracts may sue the wrongdoer on behalf of the United States Government. An employee who blows the whistle on his or her employer is one of the most common types of relators, however relators may also include: former employees, state and local governments, government employees, corporations, and organizations.

A Qui Tam action is initiated by a relator who files a complaint under seal in federal district court. The relator must also file a written disclosure of evidence that supports the allegations made in the complaint. Thereafter, the government investigates the claims made by the relator, and while under seal, may further investigate the claims to obtain more evidence. The government has the right to intervene and join the action. If the government declines, the private plaintiff may proceed on his, her or its own.

If successful, the relator will share an award with the government. The relator’s share will be a minimum of 15 percent and a maximum of 25 percent if the government intervenes, and a maximum of 30 percent if the government declines and the relator takes on the case that ends in a settlement. In addition to receiving a percentage of the award, the False Claims Act also provides that the relator, if successful, will be reimbursed for expenses incurred, including attorneys’ fees and costs. Under Section 3731(b)(1), an FCA action must be brought within six (6) years after the date the defendant committed the violation. However, there is a tolling provision for the statute of limitations that allows for actions to brought not “more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act.”

Under Section 3730(h) of the False Claims Act, any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the Act is entitled to all relief necessary to make the employee whole. Such relief may include: reinstatement; double back pay; and compensation for any special damages including litigation costs and reasonable attorneys’ fees. The Statute of Limitation for filing a FCA retaliation case is based on the statute of limitation applicable to the most closely analogous state statute.

For further information regarding claims and potential claims under the False Claims Act, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

Federal Whistleblower Statutes Enforced by OSHA

The Occupational Safety and Health Act (OSH Act) and a number of other laws protect workers against retaliation for complaining to their employers, unions, the Occupational Safety and Health Administration (OSHA), or other government agencies about unsafe or unhealthful conditions in the workplace, environmental problems, certain public safety hazards, and certain violations of federal provisions concerning securities fraud, as well as for engaging in other related protected activities. Whistleblowers may not be transferred, denied a raise, have their hours reduced, or be fired or punished in any other way because they have exercised any right afforded to them under one of the laws that protect whistleblowers. Pursuant to most of these laws, discrimination complaints must be filed as soon as possible – within 30 days of the alleged reprisal, however, in some cases, the laws allow for significantly longer periods of time to submit complaints (up to 180 days).

OSHA administers the employee protection or “whistleblower” provisions of the following seventeen (17) statutes:

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for exercising any right afforded by the OSH act, such as complaining to the employer union, OSHA, or any other government agency about workplace safety or health hazards; or for participating in OSHA inspection conferences, hearings, or other OSHA-related activities.
Under the Surface Transportation Assistance Act (STAA), employees and certain independent contractors in the trucking industry may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting certain commercial motor vehicle (CMV) safety, health, or security concerns; for refusing to drive under dangerous circumstances or in violation of CMV safety, health, or security rules; for accurately reporting their hours on duty; for cooperating with safety or security investigations conducted by certain federal agencies; or for furnishing information to a government agency relating to any accident or incident resulting in injury or death or damage to property in connection with CMV transportation.
Under the Asbestos Hazard Emergency Response Act (AHERA), employees may file complaints with OSHA if they believe they have experienced discrimination or retaliation for reporting alleged violations of environmental laws relating to asbestos in elementary and secondary school systems.
Under the International Safe Container Act (ISCA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting allegations of an unsafe cargo container.
Under the Energy Reorganization Act (ERA), certain employees in the nuclear power and nuclear medicine industries may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of nuclear safety laws or regulations.
Under the Clean Air Act (CAA), Safe Drinking Water Act (SDWA), Federal Water Pollution Control Act (FWPCA), Toxic Substances Control Act (TSCA), Solid Waste Disposal Act (SWDA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), employees may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of certain environmental laws or regulations.
Under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), employees of air carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of federal air carrier safety laws or regulations.
Under the Corporate and Criminal Fraud Accountability Act, Title VIII of the Sarbanes-Oxley Act (SOX), employees of certain publicly traded companies, companies with certain reporting requirements with the Securities and Exchange Commission (SEC), and their contractors, subcontractors, and agents may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of the federal mail, wire, bank, or securities fraud statutes, any rule or regulation of the SEC, or any other provision of federal law relating to fraud against shareholders.
Under the Pipeline Safety Improvement Act (PSIA), employees of owners or operators of pipeline facilities and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of federal law regarding pipeline safety or for refusing to violate such provisions.
Under the Federal Rail Safety Act (FRSA), employees of railroad carriers and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of federal grants or other public funds intended to be used for railroad safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any federal law, rule, or regulation relating to railroad safety or security; refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties (under imminent danger circumstances); or for requesting prompt medical or first aid treatment for employment-related injuries.
Under the National Transit Systems Security Act (NTSSA), employees of public transportation agencies and their contractors and subcontractors may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting an alleged violation of any federal law, rule, or regulation relating to public transportation safety or security, or fraud, waste, or abuse of federal grants or other public funds intended to be used for public transportation safety or security; reporting hazardous safety or security conditions; refusing to violate or assist in the violation of any federal law, rule, or regulation relating to public transportation safety or security; or refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties (under imminent danger circumstances).
Under the Consumer Product Safety Improvement Act (CPSIA), employees of manufacturers, private labelers, distributors, and retailers may file complaints with OSHA if they believe that they have experienced discrimination or retaliation for reporting alleged violations of any law or regulation within the jurisdiction of the Consumer Product Safety Commission (CPSC) to the employer, the federal government, or a state attorney general; or for refusing to perform assigned tasks that the employee reasonably believes would violate CPSC requirements.

For further information regarding claims and potential claims under these federal statutes, please contact Sidkoff, Pincus & Green, with attorneys licensed in Pennsylvania and New Jersey and offices located in Philadelphia.

Common Law Public Policy Exceptions to the At-Will Doctrine in Pennsylvania and New Jersey

While it is true that Pennsylvania embraces the “at will” employment doctrine, in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), the Pennsylvania Supreme Court recognized that there is an exception where an employee is discharged in violation of public policy. The Court subsequently determined in Shick v. Shirey, 456 Pa.Super. 668, 691 A.2d 511, 513 (1997), that the public policy exception may be applied under narrowly limited circumstances where (1) an employer requires an employee to commit a crime, (2) an employer prevents an employee from complying with a statutory duty, or (3) a statute prohibits discharge. Public policy exceptions to the at-will doctrine have been determined in circumstances where an employee was retaliated against for: filing an unemployment compensation claim; filing a workers’ compensation claim; attending jury duty; refusing to take a lie detector test; and reporting an OSHA violation.

In New Jersey, like Pennsylvania, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine. However, as set forth by the Supreme Court of New Jersey in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 71-72, 417 A.2d 505 (1980), an employer’s grounds for termination cannot be contrary to public policy. The Pierce Court identified that rationale that supported its recognition of this cause of action, explaining: “[a]n employer’s right to discharge an employee at will carries a correlative duty not to discharge an employee who declines to perform an act that would require a violation of a clear mandate of public policy.” It went on to state:

In recognizing a cause of action to provide a remedy for employees who are wrongfully discharged, we must balance the interest of the employee, the employer, and the public. Employees have an interest in knowing they will not be discharged for exercising their legal rights. Employers have an interest in knowing they can run their businesses as they see fit as long as their conduct is consistent with public policy. The public has an interest in employment stability and in discouraging frivolous lawsuits by dissatisfied employees.

Id. at 71, 417 A.2d 505.

Although the New Jersey legislature enacted CEPA after Pierce, and thereby created a statutory cause of action for retaliatory discharge, the common law remedy recognized in Pierce has continued to exist side by side with the statutory one. In order to make a claim under Pierce, a plaintiff must demonstrate not only that he or she complained about a public policy, but that his or her resulting discharge violated a clear mandate of public policy. Some sources of public policy mandates which could support relief by a plaintiff “include legislation; administrative rules, regulations or decisions; and judicial decisions.” Id . at 72, 417 A.2d 505.