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Mr. Mueller's Options, Short Of Indictment >
November 27, 2017
By: Ronald H. Levine
Suppose special counsel Robert Mueller's investigation unearths evidence that falls short of the legal standard to indict (probable cause), or falls short of the DOJ policy standard required to seek an indictment (admissible evidence probably sufficient to obtain and sustain a conviction). Suppose further that - as a matter of national security or noncriminal malfeasance - this evidence would likely be of great interest to the public and/or relevant to congressional committees investigating parallel and related matters. Do potential disclosure options exist notwithstanding the general rule of grand jury secrecy? Yes.

Right to Work Initiatives: Rallying Cry for Unions or Contributor to Decline? >
November 16, 2017
The Legal Intelligencer's 2017 Labor and Employment Supplement
Organized labor unions in both the public and private sectors have experienced declining relevance and power since the 1980s a decline made more precipitous by right-to-work (RTW) legislation and laws throughout various states 28 at last count. Though labor unions are woven into the cultural, political, and economic fabric of America, the changing climate for American labor has challenged unions' influence over the workplace and has presented potential risks to their continued survival.

Decision Highlights Need for Employer Vigilance to Sexual harassment in the Workplace >
November 8, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
With sexual harassment so much in the news, a recent decision of the U.S. District Court for the Eastern District of Pennsylvania reminds us of an employer's obligation when it becomes aware of harassing behavior from a co-worker.

Timing of Termination Leads to Viable FMLA and ADA Claims >
October 12, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
Neither the Family and Medical Leave Act (FMLA) nor the Americans with Disabilities Act (ADA) are so-called “job protection” statutes. employers can and should discipline employees, up to and including termination, despite an employee having a disability or needing FMLA leave. The timing of such decisions when an employee has implicated either statute, however, should be considered very carefully.

Court Defines 'Willfulness' Under FLSA and OKs Reduced Fee Award >
October 2, 2017
The Legal Intelligencer
By: Andrea M. Kirshenbaum
On Sept. 20, 2017, the U.S.Court of Appeals for the Third Circuit issued a precedential opinion in Souryavong v. Lackawanna County that is music to the ears of employers on two fronts.

No Sexual Harassment, but Retaliation Claim Survives >
September 13, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
Just as the adage is that "the coverup is worse than the crime," we know that in employment law, "the retaliation claim is more dangerous than the underlying discrimination." The latest example of this is in the recent decision of Austin v. Bloomin' Brands.

Third Circuit's Take on 'Same Hire, Same Fire' Defense >
August 9, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
When the same individual hires an employee and shortly thereafter fires him, it makes intuitive sense that discrimination almost certainly did not motivate the termination. After all, why would an employer hire an employee in a protected category and then use the protected category as a factor in the subsequent termination? The U.S. Court of Appeals for the Third Circuit, however, has consistently rejected what is often referred to as the "same hire, same fire" defense, as precluding a finding of discriminatory animus, finding it to be simply "evidence like any other."

The Obstacles to Private Resolution of FLSA Claims >
July 31, 2017
The Legal Intelligencer
By: Andrea M. Kirshenbaum
A question that has bedeviled employers for decades: Can employers obtain a release of claims under the Fair Labor Standards Act (FLSA) in the absence of DOL or court approval? A recent decision adds more fuel to the fire, dismissing a plaintiff's FLSA claims and holding that the plaintiff's "pre-litigation settlement agreement" released her FLSA claims, even without the imprimatur of the DOL or a court.

Pa. High Court Addresses Scope of the Environmental Rights Amendment >
July 25, 2017
By: Terry R. Bossert
There is no doubt that the PEDF decision will lead to more challenges to government actions and challenges to legislation or regulations relating to the environment as different stakeholders find different meanings in the decision. There is also no doubt that the three-part Payne test will not be applicable to those challenges. It is clear that when those challenges implicate the use of or the impact to publicly owned natural resources the standard of review will involve the private trust principles discussed in the opinion. What is less clear is what standard of review will apply to government actions or government authorizations for private actions that impact the environment generally.

Inconsistent Performance Standards Dooms Defense Case >
July 12, 2017
The Legal Intelligencer
By: Sidney R. Steinberg
Over the years, a consistent theme of this column has been that employers need to hold all employees, regardless of protected characteristic, to the same standard in order to avoid even the appearance of discrimination. These are generally “employment words to live by.” Realistically, however, managers often hold more senior employees to a higher standard than they do relative newcomers. while a number of courts recognize this reality, in a recent case, the manager's shifting explanation of her performance standards created a “genuine issue of fact,” which defeated summary judgment.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs >
July 7, 2017
Business Crimes Bulletin
By: Ronald H. Levine and Carolyn H. Kendall
An effective compliance program is essential for any business, allowing the organization to identify potential vulnerabilities and to minimize risk. It is also relevant in defending against government investigations and prosecutions, criminal or civil. In fiscal year 2016, 132 organizations were sentenced (129 pleaded guilty; only three went to trial); however, according to the U.S. Sentencing Commission, only 2.1% of organizations seeking acceptance of responsibility credit under U.S. Sentencing Guideline § 8C2.5 had an “effective” compliance program.

Expectations After Pa. High Court Workers' Comp Ruling >
July 5, 2017
By: Karyn Dobroskey Rienzi
In a significant decision affecting employers, workers' compensation insurance carriers, and third-party administrators, on June 20, 2017, the Pennsylvania Supreme Court declared that Section 306(a.2) of the Workers' Compensation Act constitutes an unconstitutional delegation of legislative power to the American Medical Association (AMA) and struck the 21-year-old provision from the act. As a result of the Supreme Court's decision in Protz v. WCAB (Derry Area School District), the impairment rating evaluation (IRE) process has been eliminated from Pennsylvania workers' compensation law.

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