Update on the Philadelphia Wage Equity Ordinance

The Ordinance

On January 23, 2017, the Philadelphia Wage Equity Ordinance (“Ordinance”) was signed by the Mayor.  The Ordinance made it unlawful for any business that employs individuals in the City of Philadelphia to (1) inquire about a job applicant’s wage history (“Inquiry Provision”); or (2) to rely upon wage history information in determining a salary for an employee at any stage in the employment process (“Reliance Provision”).

The Ordinance was set to take effect on May 23, 2017, but the City agreed not to enforce the Ordinance until a lawsuit challenging the constitutionality of the Ordinance was decided.

The Lawsuit/Decision

On April 30, 2018, Judge Goldberg of the United States District Court for the Eastern District of Pennsylvania issued a split decision on the constitutionality of the Ordinance.  The Court enjoined (prevented) the enforcement of the Inquiry Provision on First Amendment grounds, but did not enjoin (allowed) the enforcement of the Reliance Provision.  Because of the constitutional issues that had to be decided, the decision is long and contains a significant amount of legal language.

What Does the Decision Mean

In the short-term, the decision may not have much effect.  Both the City and the Chamber of Commerce will likely appeal Judge Goldberg’s decision to the Third Circuit Court of Appeals. The appeals will take at least another nine months to decide.  In the meantime, the City will probably agree not to enforce the entire Ordinance.

In the long-term, Judge Goldberg’s decision may very well indicate what an employer’s responsibilities will be when interviewing candidates and making job offers in the City of Philadelphia.

Initially, it is important to note that in the decision, Judge Goldberg highlighted that the City defined “employer” via regulation as “any person who does business in the City of Philadelphia through employees” and “who engages in the process of interviewing a Prospective Employee with the intention of considering such Prospective Employee for a position located within the City.” Thus, the Ordinance will only impact businesses that are searching for job candidates that will work within the City of Philadelphia.

Should Judge Goldberg’s decision be upheld, an employer will be permitted to ask about a job applicant’s wage history, because the Inquiry Provision will be invalidated.  Practically speaking, however, the employer will not want to ask a job applicant about salary history, because the Reliance Provision will still be in effect.  Employers will take the view that it makes no sense to ask about information that the employers cannot use.  Practically speaking, an inquiry about wage history will end up in the ash heap of unaskable questions at job interviews.

With that said, if a job applicant “knowingly and willfully” discloses his/her wage history, the employer is permitted to use that information, but only if the disclosure was not prompted by the employer’s questioning.

Businesses that employ individuals in the City need to keep a close eye on this litigation.  In the meantime, no action is necessary, although it would be prudent to begin auditing certain aspects of the hiring process, including review job application formats and interview outlines, to perhaps eliminate any questions regarding wage history.

If you have any questions about the Philadelphia Wage Equity Ordinance, please contact James B. Shrimp at 610-275-0700 or jshrimp@highswartz.com. Our employment law attorneys provide businesses and nonprofit organizations throughout the Pennsylvania region, including Bucks County, Montgomery County, Delaware County, Philadelphia and Chester County with sound advice and excellent representation.

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.

Thomas D. Rees Speaks on Navigating Student Discipline in 2018

High Swartz partner Thomas D. Rees recently presented a Continuing Education talk for Bryn Mawr Trust titled “Navigating Student Discipline in 2018”. The session focused on how educational institutions are and should be handling student discipline issues in 2018.  Mr. Rees discussed the most serious rule violations at schools and colleges, the stakeholders in the discipline process, and the key legal and procedural issues in a discipline case.  He closed his talk with two case studies, one where the court upheld the school’s discipline and one where the court reinstated the student to the school.Thomas D. Rees heads High Swartz’s Litigation and Employment Practice. He focuses his practice primarily on education law, where he represents independent schools, and employment law, where he represents employers in matters related to employment terminations; restrictive covenants, trade secrets, and other employee mobility issues; discrimination and sexual harassment cases; contract disputes; and defamation and privacy related matters.  Tom also serves his education and employment clients employers in a wide variety of non-litigation matters, including contract negotiation and preparation of policies and procedures.  He serves as an employment arbitrator for the American Arbitration Association.  Tom also handles complex litigation and dispute resolution in the areas of land use and zoning law and government regulation.About High Swartz LLP: 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.# # #

High Swartz Attorneys Named Among PA Super Lawyers and Rising Stars

High Swartz LLP, a full-service law firm with offices in Norristown and Doylestown, Pennsylvania, is pleased to announce that a number of its attorneys have been named among Pennsylvania’s 2018 Super Lawyers and Rising Stars.The High Swartz attorneys named Super Lawyers, and the practice areas for which they have been recognized, are: The High Swartz attorneys named 2018 Pennsylvania Rising Stars are: A program of Thomson Reuters, Super Lawyers is a rating service of outstanding lawyers who, through a peer review and independent research process, have been identified as attaining a high degree of peer recognition and professional achievement. Only the top 5 percent of Pennsylvania’s 50,000 lawyers and the top 2.5 percent of up-and-coming Pennsylvania lawyers are named to the Super Lawyers and Rising Stars lists, respectively.Candidates are evaluated on 12 indicators of peer recognition and professional achievement, including verdicts and settlements; honors and awards; special licenses and certifications; pro bono and community service efforts; and scholarly lectures and writings. The ultimate objective of Super Lawyers is to create a credible, comprehensive and diverse list of outstanding attorneys that can be used as a resource for other practitioners and consumers searching for legal counsel.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.# # #

Melissa M. Boyd Honored with PBA Special Achievement Award

Pennsylvania Bar Association recognizes High Swartz family law attorney’s dedication and commitmentThe full-service law firm High Swartz LLP is proud to announce that family law attorney Melissa M. Boyd has been honored with the Pennsylvania Bar Association’s Special Achievement Award, in recognition of her dedication and commitment to the Family Law Section. Ms. Boyd was presented this award in recognition of her tireless efforts as co-chair of the PBA Family Law Section Membership Committee to  coordinate and promote the Section’s scholarship program to nine law schools and members practicing in under-represented counties.    She also led a successful effort to contact former section members who had dropped their membership.Melissa M. Boyd concentrates her practice on family law.  She advocates in various areas including, but not limited to, divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law. She has dedicated much of her professional career to preserving the rights of children and their families.She is a frequent presenter on family law topics for the Pennsylvania Bar Institute, the Family Law Section of the Pennsylvania Bar Association and the Montgomery Bar Association.Ms. Boyd is a fellow of the American Academy of Matrimonial Lawyers, and she serves on the board of governors for the Pennsylvania Chapter . She also is a member of the family law sections of the American Bar Association, Pennsylvania Bar Association and the Montgomery Bar Association. She previously served as the chair of the Family Law Section of the Montgomery Bar Association.Founded in 1895, the Pennsylvania Bar Association and its more than 27,000 members continue the association’s tradition of service to the profession and the public, while keeping current with changing legal standards and societal practices, quality of life issues, and evolving technology. The PBA’s Special Achievement Award is given annually to recognize those who have given their time and resources to advance the association and the practice of law in Pennsylvania.About High Swartz LLP: 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.# # #

3 High Swartz Family Law Attorneys Coordinate/Present at the PBI Family Law Institute

Mary Cushing Doherty planned the course and Melissa M. Boyd and Elizabeth Early were presenters.High Swartz partner, Mary Cushing Doherty, helped coordinate the course for the Pennsylvania Bar Institute’s Family Law Institute, held at the CLE Conference Center at the Wanamaker Building in Philadelphia. Melissa M. Boyd, also a partner at High Swartz, acted as faculty for the Family Law Institute. Boyd spoke on “Secret of Support Remedies,” the session offered 1.5 substantive CLE credits and focused on what goes on behind the walls of Domestic Relations offices in Pennsylvania. Topics included federal and state regulations, the ways in which arrearages are handled, and whether bank accounts can be seized or licenses suspended as part of support enforcement. Attorney, Elizabeth C. Early, presented case law updates on divorce.The 13th Annual Family Law Institute has become a respected tradition for family law practitioners in Pennsylvania. The conference presented live in Philadelphia, was also simulcast to numerous locations across the state, provided the latest legal developments and domestic relations practice hints.   Mary Cushing Doherty has served as a co-Course Planner for all 13 Family Law Institute programs, and the three years of the Family Law Potpourri predecessor program.A former member of the Board of the Pennsylvania Bar Institute,  and former Chair of the Family Law Sections of the Pennsylvania Bar Association and the Montgomery Bar Association, Doherty has more than 35 years of legal experience in the area of family law. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and alimony, premarital agreement asset protection, complex property division and more. She is a graduate of the University of Delaware and the Villanova University School of Law.Melissa M. Boyd is a partner with High Swartz LLP. She concentrates her practice on family law including, but not limited to, divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law. She has dedicated much of her professional career to preserving the rights of children and their families.Elizabeth C. Early focuses her practice at High Swartz on family law, including divorce, child custody, support, equitable distribution, pre and post-nuptial agreements and abuse matters. She is known for handling each of her client’s cases efficiently and with empathy and attention to detail.About High Swartz LLP: 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.# # #

Be Wary of “Binding Mediation”

Over the last 100 years, High Swartz attorneys have engaged in countless cases involving alternative dispute resolution, representing litigants in arbitrations and mediations and serving as arbitrators and mediators.   Recently however, I have noticed a newer concept being incorporated into contractual provisions and settlement discussions:  “binding mediation”.  Such a provision raises immediate questions.  What is binding mediation?  Is this something that a party should agree to?While not widely used, or even widely known about, binding mediation is a form of alternative dispute resolution.  Alternate dispute resolution is, generally speaking, a collection of methods of resolving disputes outside of court.  In the arbitration method of alternate dispute resolution, the parties conduct a evidentiary hearing before a neutral arbitrator, or panel of arbitrators, that decides the case as would a judge and jury.  Except in very limited circumstances, and unless the parties expressly agree otherwise, the parties are bound by the arbitrator’s decision, and there are very limited rights of appeal.  The arbitrator’s decision can be entered as a judgment in court, the judgment can be enforced, and assets of the losing party can be seized to satisfy the judgment  In a mediation, there is no evidentiary hearing.  A neutral mediator listens to the various positions of the parties and facilitates their settlement discussions.  In mediation, there is no “decision” to be binding.  The culmination of the mediation is either a settlement acceptable to both parties, a partial settlement acceptable to both parties, or the parties leave without their dispute resolved.“Binding mediation” therefore would seem to be a contradiction in terms, and is often discarded as a viable option.   There is no statutory definition or even universal understanding of what binding mediation even means.  Some consider it to be a traditional mediation, except that the parties are expressly bound by any agreement they reach.  Others consider it to be a traditional mediation, but if the parties do not settle, the mediator determines the final settlement somewhere at or between the final positions of the parties.  Still others believe it is simply another term for arbitration.Case law highlights that the term is vague.  In Pennsylvania, the Superior Court addressed binding mediation in its unreported decision Miller v. Miller, 2016 WL 6301602 (Pa.Super. 2016), when it found that because the parties used the word “binding” it meant that they were agreeing to an arbitration, despite the use of the word “mediation.”  In Connecticut, the Appellate Court found in the case of Tirreno v. The Hartford, 129 A.3d 735 (Conn.App.Ct. 2015) that binding mediation was not an arbitration, and thus not subject to that state’s Arbitration Statute, particularly since there was no hearing.  However, the mediation decision in Tirreno was nonetheless found binding in the context of a petition to enforce a settlement that was pending was before the court.While there is no clear accepted definition, what is clear is that if you are going to enter into a binding mediation agreement, simply referencing the process by name is not sufficient to protect your rights.  You must clearly set forth how the process will be conducted, how the decision will be treated, and how the decision will be enforced.Is it a good idea to enter into a binding mediation agreement?  Since you are potentially giving up your rights to a hearing, to examine and challenge evidence and the ability to cross examine witnesses, it would seem that it is rarely a good choice, particularly in an agreement addressing prospective disputes.  However, binding mediation may be appropriate in some circumstances, such as when a dispute has arisen, there are relatively few material facts in dispute, there is a clear mutual understanding of each party’s positions and the scope of the mediator’s authority (such as monetary limits) is clearly defined.If you have any questions about binding mediation, please contact Richard C. Sokorai at 610-275-0700 or rsokorai@highswartz.com. Our Bucks County and Montgomery County Litigation attorneys  have knowledge and experience in all facets of arbitration and mediation.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.

Alcohol Abuse and Custody: What Safeguards are Available?

A straightforward custody case can be made extremely complex and contentious when accusations are raised regarding alcohol use and abuse. Regardless of whether the concerns are legitimate or not, alcohol use that may have been problematic, but tolerated while a relationship was intact, becomes magnified many times over when the parties separate and custody has to be shared between the parties. Even when the imbibing party has committed to sobriety, the other parent may remain deeply skeptical and concerned about sharing custody of young children. This is particularly true if there is an existing pattern of sobriety and relapse into heavy consumption patterns. There are a variety of alcohol detection devices and methodologies available in Pennsylvania that can provide more insight into the level of alcohol use that is occurring. Utilizing these resources can have dual benefits: the concerned parent will either have their fears assuaged or validated and the other parent, if wrongfully accused of alcohol abuse, will have hard proof that the accusations lack merit.Biological TestingThere are both immediate and long term biological alcohol testing options available. The immediate testing options, including breathalyzer testing, blood testing and urine testing, give a snapshot of the party’s blood alcohol level (“BAC”) at any given moment in time. Over the last several years, as cellphone technology has advanced, personalized breathalyzer devices and cellphone apps have been developed which allow the user to test their BAC at any given time and share the results with third parties, like the other parent. There are apps available for almost every major phone manufacturer. These devices can go a long way in providing instantaneous assurance that excessive alcohol consumption is not occurring during custodial time.A common long term biological alcohol test is hair follicle analysis which must be done at a laboratory. This test looks at the average alcohol consumption over a set period of time, typically 90 days, and provides insight into whether the individual’s drinking habits are indeed excessive. The test results can often be translated into an estimate of the average number of drinks consumed by that party on a daily basis and where the party falls on the spectrum of adults who drink alcohol. This testing can provide valid insight into the individuals’ pattern of drinking.Vehicle SafeguardsThere are several vendors approved by PennDot that provide ignition interlock devices. These devices provide two-fold protection. First, they prevent the vehicle from being started if the driver utilizing the device has an elevated blood alcohol level. It has been my professional observation that these devices are extremely sensitive and will not allow the start of the vehicle even when the BAC level is below the legal limit to drive. Second, these devices store a log of the attempts to start the vehicle which can, over a period of time, provide insight into uncontrolled drinking patterns, if they exist. These devices are not perfect: the driver could have a third party blow into the device or could simply use another vehicle, but they do provide an extra layer of protection on top of the other biological testing available.If one or both parties struggle with addiction to alcohol and/or other substances, these devices will not solve the underlying issues. Individual and family counseling is essential to address addictions of all kinds and encourage continued sobriety. However, these devices can be a start in the right direction to advance custody discussions by providing an extra level of protection for the concerned parent.If you have any questions about child custody, please contact Elizabeth C. Early at (610) 275-0700 or eearly@highswartz.com. Elizabeth C. Early is an attorney at High Swartz, LLP. Her practice is 100% family law based and includes divorce, equitable distribution, support, custody, pre- and post- nuptial agreements and abuse matters. Ms. Early has been named as Pennsylvania Super Lawyer “Rising Star” by Philadelphia Magazine. She is an active member of the Pennsylvania Bar Association and the Montgomery Bar Association and is a frequent speaker on family law issues. She is admitted to practice in Pennsylvania and New Jersey and is currently accepting cases in Bucks County, Chester County, Delaware County, Montgomery County and Philadelphia County.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.