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Temp Workers Can Sue for Discrimination ... Maybe

The battle over workers' rights and employers' desire to conduct business lawsuit-free turned another page recently. In Faush v. Tuesday Morning. Inc,The Third Circuit overturned a grant of summary judgment in favor of the defendant temp-employer, remanding the case back to the lower court for further findings. The language applied in the court's opinion spells more trouble ahead for employers seeking to blur the distinction between 'temp' and 'employee.'

The situation is routine: a patient with an ERISA-governed health care plan goes in for a procedure. She signs an assignment form, giving her provider the right to collect payment under her plan directly. The assignment allows the provider to deal directly with the insurer in negotiating payment, taking administrative actions and potentially suing in federal court, should the health care plan refuse to pay for the procedure.

That is, except in the District Court of New Jersey, where an unusual intra-district split left district courts divided over whether the assignment for payment also included the right to sue to collect those payments. That divide was solved by the Third Circuit last week when it ruled that, yes, assignments for payment also confer standing to enforce those payments.

Employers cannot simply reject a faulty request for medical leave filed under the Family and Medical Leave Act, the Third Circuit ruled on Monday. Rather, employers have a duty to inform their workers about their request's deficiency and allow them an opportunity to correct it.

The case came after Deborah Hansel, a nurse's assistant at Lehigh Valley Health Network in Pennsylvania, requested medical leave for a then undiagnosed condition. After taking days off, the hospital fired her. At her termination, the hospital only stated that her request was faulty and had been denied.

Three insurance companies were sued by two patients and their pharmacies after the companies had refused to pay for blood-clotting-factor products under ERISA health plans. Eventually, the insurance companies paid them in full, including interest. Each time, the patients recovered through settlement, not court order.

The patients filed for attorneys' fees under ERISA, which allows for recovery of attorneys' fees when there has been "some success" on the merits. The settlements were success enough, the First Circuit reasoned, deciding for the first time that the catalyst theory allows recovery of fees in ERISA cases. ERISA attorneys, now's the time to pop the champagne.

Can an ERISA retirement plan, after having paid out a consistent pension to early retirees, later reduce those pensions based on the age at which the pensioners retired? Not without violating ERISA's anti-cutback rule, the Third Circuit ruled last Wednesday.

The case, Cottillion v. United Refining Company, involved pensioned retirees who began collecting before they were 65. After several years of pension payouts, United amended the plan to reduce, based on an actuary assessment, payments for early retirees. The court found this not only an impermissible interpretation of the plan's terms, but a violation of ERISA, the law governing employee retirement plans.

The Third Circuit ruled Wednesday that certain truckers are entitled to overtime pay under the Fair Labor Standards Act, finding that drivers of lighter vehicles are subject to a "carveout" from the FLSA's overtime exemptions.

The FLSA establishes minimum wage and overtime requirements that apply to the majority of workers. Covered workers are entitled to "time and a half" overtime, except, of course, the many workers who fall within the Act's numerous exemptions.

3rd Cir. Follows Others in Upholding ACA Contraceptive Exemption

Opponents of the Affordable Care Act's religious exemption to contraceptive coverage suffered a setback today, as the Third Circuit Court of Appeals reversed a district court's determination that even the religious exemption runs afoul of the First Amendment.

The Third Circuit's opinion falls in line with opinions from other circuits last year, holding that the religious exemption to contraceptive coverage doesn't allow an employer to prevent an employee from ever obtaining contraceptives.

No Qualified Immunity for School District's Firing of Whistleblower

Qualified immunity? For a claim of employment retaliation for whistle-blowing? Believe it or not, that's the defense Philadelphia School District mounted after a federal district court denied its motion for summary judgment in this employment retaliation case.

Francis Dougherty, a former employee, was fired after she told the news media that the school district's superintendent, Dr. Arlene Ackerman, directed a contract to a minority-owned firm without a bidding procedure. The Third Circuit said "no" to the district's claim that it was protected by qualified immunity.

What Triggers Employer's Duty to Reinstate Under FMLA? Ask a Doctor

The Family Medical Leave Act (FMLA) is simple: If you're injured, you can take leave and your job is held for you while you recover. Except, the finer points can get a bit tricky. What if an employee can only come back with restrictions? Who makes the judgment call on whether an employee can fulfill her essential duties?

That was the key to Vanessa Budhun's case. She broke a finger, was told by HR that she had to take FMLA leave, and while she was gone, was replaced. The doctor cleared her with "no restrictions in splint," which is kinda-sorta like no restrictions, but with only seven functioning digits. (Bundhun's job requires typing.)

The district court granted summary judgment to the hospital, but the Third Circuit reversed. Why?

Remember the mailbox rule? Just the thought of it brings us back to our first year of law school. And believe it or not, it still comes up in cases today.

Last week, the Third Circuit had a chance to review the common law presumption of delivery, and noted that it in this day and age, that time-honored presumption may not be enough for employers attempting to give their employees legal notice.