February 2023

High Swartz | February 24, 2023

Attorney David J. Brooman Comments on Governor's Recent Criminal Referral To ABC27 Harrisburg

You can watch David's commentary starting at 2:22.

Environmental, Land Use, and Municipal attorney David J. Brooman recently commented on the governor's criminal referral of Norfolk Southern. David also touched on the the train derailment's environmental implications during his interview with Sarah Willson of ABC27 News Harrisburg.

About the Train Derailment: On February 3, 2023, about 50 Norfolk Southern freight cars derailed near East Palestine, a town of roughly 4,800. While no one was injured in the wreck — which happened because of a mechanical issue with a rail car axle — the surrounding area had to be evacuated due to fears of a potential explosion from the hazardous chemicals on board the train. Beaver County PA was among the areas evacuated.

Below are recent developments on the incident:

PA governor Josh Shapiro accused Norfolk Southern of mismanaging the train derailment disaster from the outset, citing the company’s failure to immediately notify the Pennsylvania Department of Environmental Protection and the Pennsylvania Emergency Management Agency.
On Tuesday February 21, at a joint press conference with Ohio governor Mike Dewine and joined by U.S. EPA Administrator Michael Regan, Shapiro urged Acting Attorney General Michelle Henry to take up a criminal referral.
Said Shapiro, "We made a criminal referral to the office of attorney general. They'll determine whether or not there was criminal activity. What I know is that Norfolk Southern is governed every day, not by caring about the communities that they send their trains through, but by corporate greed."
No timetable from the state on if and when they may file criminal actions against Norfolk Southern.
The EPA announced it would take control of the cleanup and use its authority under the federal Superfund law to order Norfolk to take all available measures to clean up contaminated air and water. The EPA can fine the railway company up to $70,000 a day if the work is not completed. The agency can also do the work itself if necessary and bill Norfolk Southern triple its costs.
Shapiro’s administration is also working to ensure fire departments in western Pennsylvania are reimbursed by Norfolk Southern for the costs of replacing all equipment contaminated during the response to the East Palestine train derailment.
Residents can also pursue their own civil lawsuits against the railroad – at least ten lawsuits have already been filed, including class action lawsuits that allege the train was back-loaded with too much weight, that the accident was not reported promptly and the railroad did not share information about the chemicals. Some of the lawsuits also ask the court to allow anyone who lives or works within 30 miles of East Palestine to join the class.
Shapiro said tests of municipal water supplies and wells haven't shown any "concerning readings" of toxins and will continue to test "for months and months and months, if not years" to ensure that water is safe for residents.

Thomas D. Rees | February 10, 2023

How Would a Non-Compete Ban Impact My Business? – 5 Things to Know

On January 5, 2023, the Federal Trade Commission (FTC) proposed a rule to ban non-compete clauses in employment agreements nationwide, except in very limited circumstances. If enacted as written, the proposed rule would supersede all contrary state laws that currently govern non-competes.

1. What is a Non-Compete Agreement?

A non-compete agreement is a restrictive covenant limiting your ability to work in a particular field or industry. Generally, the non-compete specifies the length and the geographic area of the restrictions.

Currently, state laws govern the enforceability of non-competes. Limitations on non-competes vary from state to state. For example, California, North Dakota, and Oklahoma, Montana and District of Columbia don't allow non-compete agreements. Pennsylvania and neighboring states limit (but don't prohibit) non-competes.

2. What Would the FTC's Proposed Rule Do?

If made final, the proposed rule would prohibit employers in every state from entering into or enforcing non-competes with workers (including employees, independent contractors, volunteers, interns, and any other individuals who work for an employer). The FTC rule states that non-competes are unfair methods of competition, which the FTC Act prohibits.

The proposed non-compete ban would require employers to rescind existing non-competes within six months. In addition, employers would have to provide individual notice to current and former employees that their non-compete clause is no longer in effect or enforceable.

The proposed rule does not prohibit non-competes that are part of the sale of a business.

3. When Could The Non-Compete Ban Take Effect?

The proposed rule is open for public comment until March 10, 2023. After that, public members may request more time to submit comments.

Once the comment period closes, the FTC may modify the proposed rule before deciding whether to reopen the comment period or whether to issue a final non-compete ban.

A final rule may face lawsuits challenging the rule's content or the FTC's authority to take away state authority to regulate non-compete agreements. Because of the likelihood of challenges, the timeline for any proposed rule is unclear.

However, the long-term trend among the states is to limit or ban non-compete agreements. State and federal courts have ruled against enforcement of non-competes where employers appeared to overreach. State legislatures have considered laws that prohibit or limit non-competes.

4. How Can I Protect My Business Without Using Non-Competes?

The proposed rule does not specifically ban other types of restrictive covenants, such as non-solicitation or non-disclosure agreements, which employers can use to protect their business interests. These are described below.

Non-Solicitation Agreements restrict ex-employees from asking customers, vendors, or other employees to move to the employee's new employer. The employee may work for a competitor but may not initiate contact with the former employer's customers, vendors, or employees to gain a competitive advantage. Like non-competes, non-solicitation agreements have a limited duration (typically one or two years).

Non-Disclosure/Confidentiality Agreements prohibit the employee from using confidential information acquired during an employee's tenure with the employer. Examples include customer lists, trade secrets, unique manufacturing processes, and product development initiatives. Unlike other restrictive covenants, confidentiality provisions need not include time limits.

Although the proposed non-compete ban does not prohibit non-solicitation or non-disclosure agreements, the ban would extend to de facto non-compete clauses. These are contractual provisions written so broadly as to have the functional effect of prohibiting workers from seeking or accepting new employment.

As such, business owners need to understand the terms of their employment agreements and avoid using overly broad language in them. Restrictive covenants should be written narrowly to protect legitimate business interests, such as confidential information or trade secrets, and shouldn't be any broader than necessary to protect those interests. Contact a business lawyer or employment attorney to review your current agreements.

5. What Else Can Businesses Do To Prepare for a Non-Compete Ban?

The FTC's proposed rule may or may not become law, and its final version may differ significantly from its current version. Nonetheless, employers should continue monitoring the status of the proposed rule and state law for any related legislative developments that may occur in the meantime.

While employers don't need to take any immediate action, business owners using non-competes should consider the enforceability of their existing restrictive covenants and determine if those restrictions are necessary to protect a business's interest.

Business owners may find it valuable to revisit and consider updating their existing employment agreements to best comply with the purpose of the proposed rule.

Talk to Our Employment Lawyers

It makes sense to have some restrictive covenants to protect your business if you're an employer.

Our business and employment lawyers can provide employers throughout Pennsylvania and New Jersey with sound advice and representation. Our employment law attorneys deal with workplace issues in an ever-changing environment and seek to minimize the risk of employee lawsuits for our clients.

If you'd like to learn more about enforcing a restrictive covenant or about creating an employment agreement for your business, call our Montgomery County and Bucks County law offices today at 610-275-0700.

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

High Swartz | February 5, 2023

Navigating the Social Security Disability Benefits Application Process in 2023

How Long Does It Take to Get Social Security Disability Benefits in 2023?

The timeline for processing an SSD application ranges between three to six months, depending on the availability of medical records and the applicants’ timely completion of necessary forms.

If you have been denied disability, you’ll need to file an appeal through a Request for Reconsideration and a Request for a Hearing before an administrative law judge. That process can take an additional six to 18 months. It may take less time if you agree to a hearing by telephone. However, it’s questionable whether you will get the best result by selecting that option.

When Should I Apply for Social Security Disability Benefits?

The answer to that question varies depending on whom you ask. Due to the lengthy process, many disability advocates suggest applying for benefits as soon as possible. In my practice, however, I consider each case individually before recommending when you should apply. Several factors play into my decision-making process, including how long you have been out of work due to your condition(s)

The conditions are keeping you from being able to work.
Your age and the type of work you have performed.
The length and frequency of your medical treatment and the type of providers where you receive treatment.

The answers to these questions determine the right time to apply for benefits. For example, Social Security guidelines consider how long you have been out of work and how long you will be out of work if your condition is terminal. So, preparing a case and filing an application at the appropriate time can increase your chance of a favorable outcome.

If I’m working part-time, can I apply for disability benefits and get approved?

If you are 18 or over, the first step to Social Security’s evaluation of your SSDI application is to determine your work activity. For example, if you engage in substantial gainful activity (SGA), you are not considered disabled under Social Security’s guidelines. Engaging in SGA means you are working and earning wages of $1,470.00 or more before taxes. As a result, even if you have a severe health problem but continue to work at SGA, you will not be able to collect Social Security Disability benefits.

You may be eligible if you work part-time and earn less than SGA. However, having consistent, part-time work may result in Social Security denying your SSDI application unless you have documentation from a medical doctor addressing why you cannot work full-time.

How Much Will I Receive Monthly if I Am Awarded SSDI Benefits?

The amount you will receive per month varies depending on what you have paid into the program through your wages over the years. If you set up an SSA.gov account, you can see the monthly amount you would be entitled to if found disabled. A person’s maximum benefit per month in 2023 is $3,627.00.

How Much Will I Receive Monthly if Awarded Supplemental Security Income (SSI)?

SSI is a disability program available to individuals who have not worked or paid into the Social Security Program. To be considered for this program, you must have less than $2,000.00 in assets.

The maximum monthly amount you can receive for an individual in 2023 is $914.00. The maximum for couples is $1,371.00. However, the monthly amount you receive may be reduced if you receive assistance from family or friends, including free room and board.

If My SSDI Application is Approved, When Do the Payments Begin?

After filing an SSDI application and being awarded benefits, those benefits begin five months after your disability date. For example, if SSA determines you became disabled as of January 1, 2023, your benefits will start on June 1, 2023.

SSI payments begin the first full month after your disability date. So, if SSA determines you became disabled as of January 1, 2023, your benefits will start on February 1, 2023.

Both programs provide for payment of back-due benefits depending on the date you filed your application. SSDI will pay back-due benefits up to 12 months before the filing date. SSI will pay back due benefits to the first month after the date of filing.

Are SSDI and SSI Benefits Taxable?

SSDI benefits are considered taxable. Generally, the IRS will tax SSDI income over a certain threshold. The threshold is $25,000 in these instances:

Single
Head of household
Married and filing separately (not living with a spouse)
Qualifying widower

If you are filing married and jointly, the threshold is $32,000.00. The threshold is zero if you are married and filing separately but lived with your spouse during the tax year.

SSI benefits are not taxable.

Do I Need a Disability Lawyer to File an SSDI Application?

No, there is no requirement for you to be represented by an attorney in the SSDI application process.

However, an attorney’s assistance may be helpful even at the initial application stage. An experienced disability attorney will be able to answer your questions as you go through the process. In addition, they can assist in completing the application and the required forms after applying.

We can assist you with obtaining, reviewing, and interpreting your medical records. We can also determine whether the documents are sufficient to support a favorable decision on your claim for disability.