Patrick Fanelli
ABOUT THE AUTHOR

Patrick Fanelli

Mr. Fanelli is a founding partner of Fanelli Willett Law Offices, one of Blair County's newest law firms. Patrick focuses his practice on helping public and private employers navigate the increasingly regulated landscape of labor and employment law, while also serving as a respected school lawyer on behalf of various Pennsylvania school districts and other public entities, which turn to him for assistance in the collective bargaining process or as a general solicitor. Read More about Attorney Fanelli

US Supreme Court Building

Court Gives Employers Big Win: No Obligation to Pay Employees for Post-shift Security Inspections

In a unanimous decision today, the United States Supreme Court ruled that employers do not need to pay employees for the time spent in post-shift security inspections.  In this case, an employer operated a warehouse and shipping facility for Amazon.com, and given the employee access to the large inventory in the warehouse, the employer required its employees to undergo an inspection after the conclusion of their shift and before they could leave the job site.

The employees argued that the time spent going through these security checks – as much as 25 minutes each time – was compensable under the Fair Labor Standards Act, which requires that working time be compensated at a minimum wage.

The 9th Circuit Court of Appeals ruled that the employees were entitled to paid for this time, since they were required by the employer to be there.  A unanimous United States Supreme Court, however, reversed that decision, making clear that this kind of time is not compensable.

Under the Fair Labor Standards Act, all hours worked must be compensated, but certain preliminary and postliminary activities are not compensable.  For example, the time spent putting on protective gear or uniforms is not compensable.  The test for determining whether or not the time is compensable includes a requirement that the activity performed during that time be the type of duties the employee was hired to perform or that the activity be integral to those duties the employee was hired to perform.

Here, the Court wrote:

“To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they ‘integral and indispensable’ to those activities.”

There have been a series of cases all holding the same thing, so this result was expected.  The good news is that the unanimous decision shows the court considers this concept to be well settled.  Employers always should consult with counsel to make sure they are considering the correct hours to be compensable and non-compensable, but this provides more good news for employers as a confirmation that these kinds of postliminary activities need not be considered compensable.

school bus

PA Supreme Court Affirms Cap on School & Municipal Liability

In an important decision for school districts and municipalities, the Pennsylvania Supreme Court this week upheld a cap on damages claimed by plaintiffs injured by public entities. Here, in the case of Zauflik v. Pennsbury School District, the Court invalidated a jury verdict in excess of $14 million dollars, leaving the plaintiffs with a revised award of just $500,000.

In this tragic case, a student was injured severely when a bus owned by the Pennsbury School District, and operated by a District employee, accelerated onto a sidewalk, hitting 20 students. The plaintiff suffered a crushed pelvis and required the amputation of her leg. There was no question that the District was liable for the injury.

The question in this case, though, involved the Political Subdivision Tort Claims Act and its cap on damages that can be awarded. Generally, governmental entities are immune from liability, but the Act includes some exceptions to that general rule. Even when an exception applies, as it did in this case, the law still says that no damages can be awarded against a local government in excess of $500,000 per incident.

Here, the plaintiffs argued that the cap was unconstitutional and that a $14 million award from the jury should stand. The Court affirmed the constitutionality of this limit on liability, however, leaving the plaintiff with the statutory cap.

This is an important decision for local governmental entities, since paying large verdicts in cases like this would divert taxpayer funds from providing other essential services. Governmental entities should be aware, though, that this Act and its cap on damages apply only to personal injury claims and not other types of disputes, like eminent domain actions, employment related claims and breach of contract disputes for example.

As always, governmental entities should contact legal counsel with any questions about possible liability.

open records

Right to Know Law Does Not Require Agency to Keep Any Records

Last week’s decision by the Pennsylvania Commonwealth Court marks a victory for public agencies that are subject to Pennsylvania’s Right to Know Law (RTKL). In a suit by the Pittsburgh Post-Gazette, which sought certain email records from the Pennsylvania Department of Education (PDE), the Court confirmed that although the RTKL requires that certain records be made public upon request, it does not require that any records actually be kept.

Under the applicable record retention policy, certain records, including emails, are to be disposed of as soon as it is determined that they no longer are of administrative value. According to the internal operating procedures, these types of records include such things as phone messages, routing slips, extra copies or preliminary drafts of final documents, communications relating to scheduling of meetings, etc. According to the policy, if an email is found to be one of these types of records that can be deleted, it will be deleted from the employee’s email inbox on a daily basis, and it then is permanently deleted from the server five days later.

The Post-Gazette sought some of these emails from employees at the PA Department of Education and sued the Governor’s Office of Administration (GOA), which developed the internal operating procedure at issue, along with the PA Department of Education, asking the Court to order that the emails be kept for a period of two years so they could be accessed if requested under the RTKL.

The Court noted that Section 507 the RTKL makes very clear that nothing in that law shall supersede a duly adopted record retention policy. Because the record retention policy here was adopted pursuant to the GOA’s authority to make such policies, and because the PDE employees were acting in compliance with the record retention policy when deleting emails each day, the Court concluded there was no reason to order that PDE keep emails for any length of time.

Although this case deals with emails, the statutory language is not limited to email. Public agencies should evaluate their record retention policies first to make sure that the policies describe how and for how long various records will be kept. Also, agencies should make sure that these policies are being followed and that records are being kept for the correct amount of time – no more and no less.

How Schools Should Handle Teacher Sexual Misconduct

Sadly, Pennsylvania Commonwealth Court Judge Kevin Brobson accurately described one unfortunate result of sexual misconduct by teachers and coaches. In a concurring opinion he authored last month, Judge Brobson wrote:

The days of allowing our children to roam their neighborhoods, to walk to school, or to play on a playground are gone, replaced with concern that a stranger’s single kind word to a child may be the opening salvo to a heinous act. “Grooming” is a word that we no longer think of as involving personal hygiene. Although we are all importantly more aware than we used to be of the dangers that our children, our most precious assets, face, we and they are also less innocent as a result and, sadly, less free.

That quote came from a decision in the case of Harden v. Rosie and the Albert Gallatin School District, in which the Court concluded the school district was not liable to the family of a female student who became engaged in a sexual relationship with a teacher in the District.

After the family notified the District about the relationship , the District suspended teacher Donald Rosie, investigated the claim and ultimately fired him upon concluding that the report was accurate. The family sued under Title IX, which does provide a private cause of action for permitting students to suffer sexual harassment or discrimination in school.

After a trial, the jury determined that the student was subjected to sexual harassment and that the district was responsible. The Commonwealth Court, though, ultimately concluded that the District was NOT responsible.

Why?

For a plaintiff to be successful in a Title IX claim against a school district, the plaintiff must show (1) that the district had actual knowledge of the harassment and (2) that the district acted with deliberate indifference to the known harassment.

Here, the Court determined there was no evidence at all that there was a sexual relationship with the student, but it spent a lot of time discussing what exactly the District did or did not know about “inappropriate behavior” that may have been discovered during the long career of Mr. Rosie. Read the Court’s description on pages 11 through 22 to get an idea of the kinds of issues and questions that surrounded him.

At the conclusion of this discussion, the Court determined that none of this information was enough to give the District actual knowledge of a problem. With the benefit of hindsight, of course, the situation looks very different than it might have appeared on the front end, but still these various incidents of inappropriate behavior were not enough to show actual knowledge of the likelihood of a sexual relationship with this plaintiff.

Judge Brobson concludes in his concurring opinion quoted above that the question of actual knowledge is a much closer one than the other judges seem to believe. Schools should be very careful to look for signs not only of actual sexual misconduct but the grooming activities that appear less devious, or even purely innocent, but that are intended to be “the opening salvo to a heinous act.”

All of the judges clearly agreed, however, that whether or not the District had actual notice of sexual misconduct, there is no Title IX liability here because the District did not act with “deliberate indifference.” Deliberate indifference involves something more than just negligence but instead requires that there be some affirmative decision by the District not to remedy the situation. On the contrary the District did act to investigate the claims of the sexual relationship, as well as earlier reports of inappropriate behavior, and each time the District took some kind of action to try to stop or prevent such conduct. The fact that the district failed to stop the abuse is not fatal to the case.

In another update to be posted soon, I will address reporting requirements and upcoming legislative changes involving school employee sexual misconduct. This case reiterates for now, though, a District’s potential for liability when it has actual knowledge of sexual misconduct. To prevent liability, schools should assure that when they are made aware of reports of misconduct they perform a prompt and thorough investigation and take appropriate action to prevent or stop misconduct from occurring.

As Judge Brobson points out, however, schools should be ever mindful not only of overt misconduct but also potential grooming activities that, if stopped, could prevent more serious harm.

NLRB: Employees Have Right to Discuss Their Discipline

Once again the National Labor Relations Board (NLRB) has invalidated an employer’s policy that required confidentiality with respect to personnel matters, when it ruled a few weeks ago that an employee was fired illegally after he refused his employer’s directive not to talk about certain discipline he received.

Philips Electronics North America had employed Lee Craft in its Tennessee facility, and in a few short years it gave Mr. Craft several oral and written reprimands and suspensions, as well as a demotion, for harassment and intimidation of others. On one instance, the company disciplined him for his behavior, giving him a final warning that any future incidents would result in discharge. They also reminded him of a company policy that prohibited employees from discussing discipline with others.

When Craft did discuss his discipline with co-workers, the company fired him for violating the company policy.

The NLRB, however, concluded, consistent with other recent decisions, that employees have a statutory right to discuss their discipline with others, and any policy that attempts to prohibit such activity would be invalid and unenforceable.

Employees have a right, pursuant to the National Labor Relations Act, to engage in “concerted activity” – activity that is in concert with others – intended to protect or promote their interests in their working conditions. The NLRB has taken a very broad view of what kinds of activity constitute “concerted activity.” A number of times, when confronted with an employer policy that prohibits discussion of things such as discipline, wages, benefits, etc., the NLRB has invalidated such policies, concluding that employees are entitled to, and perhaps need to, discuss those topics with one another in order to be able to engage in any kind of meaningful concerted activity.

Certainly, it can be necessary or at least helpful in some circumstances to require that some information be kept confidential, but employers should be careful to make sure they do not run afoul of the NLRA’s protection afforded to concerted activity.