October 2017

Thomas Panzer | October 25, 2017

FAQs for Employers on Pennsylvania Workers’ Compensation Benefits

October 25, 2017

Based upon the Pennsylvania Statewide Average Weekly Wage, the maximum compensation payable under the Workers' Compensation Act, is $995 per week for injuries occurring on and after Jan. 1, 2017. As an employer, you have the responsibility to provide workers’ compensation coverage to your employees. You also have the right to protect your business against claims that are fraudulent, unwarranted or unrelated to work activities, or for injuries caused by your employee’s drug or alcohol use.

Following are some frequently asked questions to help guide you through the workers’ compensation process:

Q: I don’t have any employees. Do I need to carry Pennsylvania Workers’ Compensation Insurance?

A: The definition of “employee” is broader than people think. Certain laws expand the definition of employee to include workers which a company or a self-employed individual may consider an independent contractor. In fact, you may not have even met an individual, much less hired them, but the law may consider them an employee for purposes of workers’ compensation. For example, in the construction field, a general contractor may enter into a contract with a subcontractor. If an employee of the subcontractor is injured in the course of that employment, he may be considered an employee of the general contractor.

Q: If my company is principally located in another state, and we only rarely send employees to or through Pennsylvania, do I need Pennsylvania Workers’ Compensation insurance?

A: If an individual is hurt while in the course and scope of his or her employment, while in Pennsylvania, the Pennsylvania Workers’ Compensation system most likely will have jurisdiction – even if that jurisdiction is concurrent with another state’s jurisdiction. Defending a workers’ compensation claim can be an expensive proposition. Insurance coverage should carry with it a “duty to defend,” and thereby could mitigate the expense of any direct legal fees to you, as the employer, if a workers’ compensation claim is filed.

Q: What if I don’t carry Pennsylvania Workers’ Compensation coverage?

A: There are criminal penalties for intentionally failing to carry Pennsylvania Workers’ Compensation coverage. An uninsured defendant in a Pennsylvania Workers’ Compensation matter may also be sued at common law under negligence theories. The remedies at common law may exceed those under the workers’ compensation laws. In addition, the responsibility to defend the matter will rest on your business, as opposed to an insurance carrier. In other words, insurance is required by law. Failure to insure carries with it serious consequences, both civilly and criminally.

Q: What if my employee’s work injury is someone else’s fault?

A: If your employee is injured while in the course and scope of his or her employment, your workers’ compensation insurance should cover the risk. In fact, because the injury is covered under the workers’ compensation system, the employer is generally insulated from being sued by the employee at common law. If the injury is caused by the negligence of some third party, the employee can sue the third party at common law, and if the employee recovers, your insurance carrier gets a portion of the workers’ compensation payments made back under the subrogation provisions of the Pennsylvania Workers’ Compensation Act. Subrogation is a means to mitigate “double dipping” by not allowing an individual to recover damages from two separate sources for the same injury or incident without coordination. This is one example of coordinating potential remedies and benefits under the Pennsylvania Workers’ Compensation system.

Q: Is my employee eligible for Unemployment Benefits while claiming entitlement to Workers’ Compensation Benefits?

A: There are circumstances where an employee may be eligible for both unemployment and workers’ compensation benefits at the same time. However, the workers’ compensation carrier is entitled to a dollar for dollar credit against unemployment benefits received. There are other coordinated concurrent benefits. An employer is entitled to a dollar for dollar offset for pension benefits received by an injured worker, to the extent funded by the employer directly liable for the work injury. An employer is entitled to a 50% offset for Social Security Retirement benefits. All public and employer provided benefits should be assessed in the context of a workers’ compensation claim.

High Swartz has considerable experience in defending employers in the defense of workers’ compensation claims. We are proud of our record and results. While past results are not a guarantee of future success, we would welcome a chance to put our workers’ compensation attorneys to work for your business. Please contact Thomas E. Panzer at 215-345-8888 or tpanzer@highswartz.com. Our attorneys in Bucks County and Montgomery County are here to assist you.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Jim Shrimp | October 17, 2017

Protests and Discipline in the Private Workplace: It’s More Complicated than a Tweet

October 17, 2017

By James B. Shrimp

On September 23, 2017, at a purported campaign rally for Senator Luther Strange, President Trump made the following extemporaneous comments regarding the National Football League, its owners, and its players:

Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’

Putting aside whether you believe it is appropriate for the President to call American citizens a “son of a bitch” - the President’s comments, and subsequent tweets, added fuel and wind to a brush fire and turned it into a forest fire. The small and isolated protests by players kneeling during the National Anthem have become more widespread since and continue to fill the news on Sundays and Mondays.

These events have raised the question for management – what, if any, protests must I permit in the workplace. The answer to this question depends on a number of factors discussed below.

The Constitution

Often, the first reaction is that if it’s a protest, it is protected by the First Amendment, and therefore an employee engaging in a protest cannot be terminated. As a blanket statement, this is not accurate. The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Political speech (including protest) in traditional public forums, such as parks, streets, outside government buildings, is provided a high degree to Constitutional protection and blanket prohibitions of that speech is unconstitutional. A government entity may place reasonable time, place and manner restrictions on such speech (protest) so long as the restrictions are content neutral.

If a government worker engages in a protest, whether that government worker may be terminated for a protest is a complicated analysis that requires an article of its own.

As for private workplaces, however, the First Amendment protections do not apply. But as described below that is not the end of the analysis.

Protest in Private Workplaces

A private employer is not Constitutionally prevented from disciplining or terminating an employee for protests in the workplace. For instance, if an employer has the National Anthem played prior to the commencement of every workday, if an employee kneels, the employer is not Constitutionally prevented from terminating that employee.

However, if a group of employees turn their back to the boss, or verbally disagree, in protest of that boss’ decision not to provide free lunches, or to pay a bonus that was promised, or the employees kneel during the playing of the National Anthem to protest poor working conditions, the employee may have protections beyond those provided by the First Amendment. In these situations, employers may be in a situation similar to the NFL owners where they may not have a free hand to terminate their players for kneeling during the National Anthem.

Concerted Activity

Members of unions in the United States are provided certain statutory rights regarding the ability to join together in organizations and jointly bargain for better terms and conditions of employment. One of the rights provided to members of unions is the right to engage in concerted activity. Concerted activity is defined by Section 7 of the National Labor Relations Act as:

Employees shall have the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . . .

More simply, if the employees (whether or not unionized) are engaging in collective activity to improve their working conditions, those activities are protected and an employer will likely be prevented from taking disciplinary action against the employees for said concerted activity. If discipline occurs the employees may enforce their rights through their union, the National Labor Relations Board and/or the state/federal courts.

Thus, whether the NFL owners “have their hands tied” regarding the National Anthem protests depends to a great extent on “why” the players are kneeling. If the kneeling relates to the terms and conditions of employment – e.g., the “black listing” of Colin Kaepernick or the disciplinary powers of Commissioner Roger Goodell - the NFL owners ability to terminate or discipline any player is likely very limited. However, if the kneeling is simply an expression of displeasure of the President calling the players “sons of bitches” this is likely not concerted action and the NFL owners have a greater ability to discipline the player.

In short, there is no simple answer. This is not meant to minimize the understandable displeasure and anger many Americans feel over citizens not standing for the National Anthem. But, whether an employer can take action against the employee is not governed only by displeasure/anger.

Despite Jerry Jones’ recent comment that he will fire any player who kneels during the National Anthem, he may not have a legal basis to do so, if the kneeling players’ activity falls within the concerted activity protection. Moreover, one imagines that Mr. Jones’ position might change if the kneeling player were Dak Prescott or Dez Bryant.

Other Limitations on a Private Employers

Retaliation – In circumstances relating to complaints of harassment/discrimination in the workplace or whistleblower events, a private employer may be prohibited by statute from taking disciplinary action against a complaining/protesting employee. In circumstances where an employee has made complaints to any government agency, the employer is well served to discuss with counsel whether the employer may take disciplinary action against that employee.

Summary

Despite the strong feelings that are being evoked by the kneeling during the National Anthem, a private employer’s decision to terminate an employee cannot be governed by that emotion, unless a lawsuit is of no concern. Although First Amendment protections, in general, do not concern private employers, a private employer must still be on guard not to violate an employees’ concerted activity rights or their anti-retaliation rights. The emotion of this issue wants to evoke a black and white response – however, the law surrounding employee rights is often gray. With that said, consultation with a lawyer is always a good idea before terminating an employee.

If you have any questions about employment law, please contact James B. Shrimp at 610-275-0700 or jshrimp@highswartz.com. Our attorneys in Bucks County and Montgomery County are here to assist you.

Thomas Panzer | October 11, 2017

Workers’ Compensation in PA: Who Has Control Over the Work

October 11, 2017

By Thomas E. Panzer

There is no bright line rule to determine the existence of an employer-employee relationship under the Pennsylvania Workers’ Compensation Act; however, the Pennsylvania Courts have created guidelines and have established certain factors to take into consideration in answering the question.

The primary factor in determining whether a particular individual is an employee and by whom the individual is employed, as it relates to Pennsylvania workers’ compensation matters, is the right to control either the work to be done or the manner in which the work is to be performed.

Consider the scenario where a personnel agency in Bucks County, Pennsylvania, places a nursing assistant at a client location, like a nursing home. The personnel agency may treat the nursing assistant as an independent contractor. The nursing home may take the same position. If the nursing assistant is injured while working at the nursing home, the nursing assistant may want to claim an employment relationship with either the agency or the nursing home.

The answer to the employer-employee question begins with asking who has the right to manage and control the manner in which the nursing assistant performs her work. Where the nursing assistant is being managed and directed by the nursing home, the nursing home will have a difficult time disavowing an employer-employee relationship. Same is especially true where the nursing assistant is performing work on the nursing home premises.

The answer becomes less clear when the work is not performed on the nursing home premises, and where the skilled nursing assistant is not being managed and controlled by the nursing home because she has the training, skill, and experience to perform the functions of her job without direction and control. In those circumstances, the lack of employer-employee relationship is a stronger argument.

In addition to the above factors, there may also be written agreements between the parties. The Pennsylvania Courts will consider a written agreement between the parties with differing weight depending on the position of the parties. For instance, an independent contractor agreement between the nursing assistant and the personnel agency may be considered a factor in deciding whether the nursing assistant is an employee or an independent contractor, but a court will not be bound by that agreement in deciding the nature of the relationship.

The determination of any employment relationship for purposes of workers’ compensation in Pennsylvania is determined on a case by case basis. It is important to engage the services of a workers’ compensation lawyer in Pennsylvania to assist with that determination. To understand the factors in determining if someone is an employee or independent contractor, read: Differences Between Employees and Independent Contractors for Pennsylvania Workers’ Compensation and Independent Contract Doctrine Affirmed in Workers’ Compensation Case

High Swartz workers’ compensation attorneys have decades of experience handling both employees and employers in Pennsylvania. Our Bucks County and Montgomery County workers’ compensation attorneys have knowledge and experience in all facets of workers’ compensation issues.

If you are considering filing a claim, or if a claim has been filed against you, please contact Thomas E. Panzer at 215-345-8888 or tpanzer@highswartz.com. Our attorneys in Bucks County and Montgomery County are here to assist you.

High Swartz | October 9, 2017

High Swartz Welcomes New Family Law Attorney

Attorney Brittany Yurchyk brings alternative dispute resolution (ADR) expertise to full-service law firm

NORRISTOWN, Pa. (October 9, 2017) – Full-service law firm High Swartz LLP is pleased to announce that Brittany Yurchyk has joined the firm’s thriving family law practice. With experience in alternative dispute resolution (ADR), Yurchyk also focuses her practice on equitable distribution, child custody, child and spousal support, abuse and domestic relations.

After achieving a certificate in alternative dispute resolution from the renowned Straus Institute for Dispute Resolution at Pepperdine University School of Law, Yurchyk called upon that training in focusing her practice on building effective solutions that meet her clients’ needs during a divorce or other family law matter.

“We are excited to welcome Brittany to the family law team at High Swartz,” said High Swartz partner and family law practice chair Mary Cushing Doherty. “Her experience in alternative dispute resolution enables us to continue to create positive solutions for our family law clients.”

Most recently, Yurchyk practiced family law at a firm in Pittsburgh. She previously served as a law clerk to The Honorable William F. Ward in the Court of Common Pleas of Allegheny County, Family Division. She assisted with cases related to divorce, child custody, protection from abuse, juvenile delinquency, and other family law matters.

After earning her law degree from Pepperdine University School of Law in Malibu, California, Yurchyk began her legal career in Los Angeles, representing homeless and indigent clients and serving as editor of the Los Angeles Public Interest Law Journal.

Yurchyk is an active member of the Family Law Section of the Pennsylvania Bar Association. She holds a bachelor’s degree in political science and government from Ohio State University. She lives in Phoenixville, Pennsylvania.

High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.

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Thomas Panzer | October 4, 2017

Differences Between Employees and Independent Contractors for Pennsylvania Workers’ Compensation

October 4, 2017

By Thomas E. Panzer

Any claimant who has filed a Claim Petition for Workers’ Compensation benefits bears the burden of establishing all of the elements necessary to support the award of benefits. In order to establish the right to workers’ compensation, the Pennsylvania Workers’ Compensation Act requires an employment relationship, during which an injury arises in the course of employment, and is related to that employment.

One question that often comes up is whether an entity is an employer, and hence whether an employment relationship exists. There is no strict rule within the Pennsylvania Workers’ Compensation Act to determine the existence of an employment relationship; however, certain guidelines have been established and certain factors are taken into consideration in answering the question.

The factors include:

Control of the manner of work to be done;
Whether the individual is responsible for results only;
The terms of agreement between the parties;
The nature of the work or occupation;
The skill required for performance;
Whether one is engaged in a distinct occupation or business;
Which party supplied the tools;
Whether payment is by time or by the job;
Whether the work is part of the regular business of the putative employer; and
Whether the putative employer has the right to terminate the relationship at any time.

The determination of any employment relationship for purposes of workers’ compensation in Pennsylvania, which as a matter of course applies to workers’ compensation in Bucks County and workers’ compensation in Montgomery County, requires a review of the relationship on a case by case basis. Workers and employers should also be aware that in some other cases, an employer-employee relationship may arise under the statutory employer provisions of the Workers’ Compensation Act, or under the Employee Misclassification Act. These are reasons why it is important to engage the services of a workers’ compensation lawyer in Pennsylvania.

High Swartz workers’ compensation attorneys have decades of experience advising and representing both employees and employers in Pennsylvania. Our Bucks County and Montgomery County workers’ compensation attorneys have knowledge and experience in all facets of workers’ compensation issues.