Discrimination and Harassment
A variety of federal, state and municipal laws protect employees from discrimination in the workplace based on any number of protected characteristics. The exact coverage of these laws, as well as the types of remedies thereunder, vary considerably across jurisdictions.
Many law firms represent only employers or employees. We represent both. We believe that representing both sides in such cases gives us a broader perspective, and as a result we are in a better position to counsel our clients.
All of our attorneys have extensive experience handling employment discrimination claims before local state and federal agencies, and in state and federal court. Our attorneys have obtained favorable outcomes before administrative agencies, and favorable jury verdicts on behalf of both employees and employers in court, and have successfully negotiated hundreds of settlements of employment discrimination claims on behalf of employers and employees. We provide counseling to employers and employees, including diversity and compliance training to employers. Our employment discrimination practice runs the gamut of discrimination, including discrimination based on race, sex, sexual orientation, gender identity, age, national origin, religion and disability, and including discriminatory discharge, demotion, denial of promotion, compensation, and harassment.
We obtained a $3.8 million award before the American Arbitration Association in a case brought under the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. After several days of hearing, the Arbitrator concluded that the defendant had wilfully violated the ADEA when it had terminated our client for purportedly poor performance.
We obtained a multi-million dollar jury verdict on behalf of two scientists formerly employed by PQ Corporation. The jury specifically found that in terminating our clients, PQ wilfully violated the Age Discrimination in Employment Act. Although the trial judge reduced the total verdict from $6.2 million to just under $3 million (not including attorneys' fees and costs), he otherwise denied the Defendant's post-trial motions. The 3rd Circuit Court of Appeals subsequently denied PQ's appeal, and granted our clients' cross-appeal, holding that the trial court had improperly denied prejudgment interest and an upward adjustment to take into account the negative tax consequences of the award. It therefore remanded to the district court to consider these additional items, as well as an attorneys' fee petition.
We have successfully defended against numerous discrimination claims on behalf of our corporate clients, both before the EEOC, various state and local agencies, and in court.
We have also been engaged by employers to conduct internal workplace investigations of allegedly discriminatory conduct, and have negotiated hundreds of settlements of discrimination claims on behalf of our corporate and our individual clients on favorable terms. We have well-established training programs for managers on employment law, as well as our own diversity training program, which has been presented in workplaces throughout the country.
The Employee Retirement Income Security Act (ERISA) is a federal law which governs benefit plans sponsored by employers. Thus, ERISA governs the rights and duties of employers, insurers, and claimants, and sets forth standards of conduct for those with discretionary authority over the plan, known as fiduciaries. ERISA dictates most claims for employer-sponsored benefits, including claims under pension, disability, life and health insurance plans, as well as some severance pay plans. Claims for benefits based on an individual policy, or provided through a governmental agency (including governmental employers) are not governed by ERISA.
The Department of Labor has issued an extensive set of benefit claims regulations which must be followed by plan administrators. Before a claimant can sue for benefits in Court, the claimant must generally follow the claims review process established by the plan administrator, in according with the regulations. If the plan administrator follows the regulations, then if the claimant files a lawsuit, the plan administrator's decision will only be overturned if it is "arbitrary and capricious" -- a quite high standard. Generally, the claimant is also bound to the administrative record; i.e., he or she cannot present new evidence regarding the merits of the claim in Court. Conversely, the plan administrator may lose the benefit of this deferential review if its fails to substantially comply with the regulations. As a result, it is generally a good idea for a claimant to seek the advice of counsel experienced in ERISA before all of his or her internal appeals have been exhausted. Similarly, employers, especially those who are self-insured, should ensure that those conducting plan administration on its behalf have complied with the regulations.
We have a long history of representing claimants, employers and employer-sponsored plans in ERISA claims litigation, and in the presentation of claims during the prior administrative processes, as well as in the prosecution and defense of non-ERISA claims. We have been involved in dozens of claims disputes, from the filing of initial claims through litigation. We also have litigated claims of breach of fiduciary duty under ERISA, and bad faith claims under Pennsylvania law.
Mr. Salmanson is a nationally-known speaker on the litigation of ERISA claims, having presented at legal conferences throughout the country.
We were successful in securing benefits for Robert Miller, a former American Airlines pilot who had been cut off from the disability payments he had been receiving for several years. After several years of litigation, the Third Circuit Court of Appeals, in a broad, widely-reported precedential opinion, ordered American to retroactively reinstate Mr. Miller's benefits. The opinion was noteworthy in many respects, and has been widely cited by other courts throughout the country.
Just a few months earlier, we won another victory in the Third Circuit, which held that our client had wrongly been denied participation in an enhanced disability plan provided by his employer. The issue in that case was whether the claimant, who had just returned from a short disability leave, was "Actively at Work" within the meaning of the policy.
In another precedent-setting case from the Third Circuit, we obtained a judgment against Fortis Insurance Company based on our clients' claim that Fortis had wrongfully denied life-saving chemotherapy treatment to a young girl suffering from leukemia. The Court held that the girl's treatment for a fever prior to the effective date of the policy, did not trigger a "pre-existing" exclusion provision of her health insurance policy, even if the fever had, in fact, been a symptom of the leukemia.
Our cases have involved a wide variety of medical conditions, from pediatric cancers and rare heart conditions to more routine surgical interventions. These claims have involved the meaning of such terms as "preexisting conditions"; "experimental" or "investigational" treatments; coordination of benefits issues; emergency out-of network and other "medical necessity" issues; and participation and other qualification issues. We have represented not only individual claimants, but leading health care providers in the Philadelphia area in regard to insurers' refusals to pay for medical claims.
Qui Tam/False Claims Act
The Federal False Claims act allows a whistleblower (known as a Relator) to file a complaint on behalf of the United States government (known as a qui tam action) to recover funds secured by fraud. Under the Act, the government may recover up to three times the actual damages caused by the fraud, plus a penalty for each claim submitted. The Relator is entitled to a share of the recovery, representing anywhere from 10-30% of the total funds recovered, along with attorneys' fees and costs. The Relator (and those associated with the Relator, such as family members) are also protected from retaliation for raising a false claims act allegation.
The provisions of the Act are complicated and require strict compliance. For example, the allegations of the complaint must generally not be known to the government prior to the Complaint, which must be filed under "seal." For this reason, a Relator contemplating filing a complaint under the Act should consult with counsel experienced in this field. In addition, if you are contemplating filing an action, you should ask any prospective counsel whether they have actual experience trying such a case if there is not a settlement and/or the government declines intervention. Many firms boast of having filed cases under the False Claims Act, but relatively few have actually taken the cases to trial.
The United States Department of Justice announced a $1.6 million settlement with Kaplan, Inc., a subsidiary of the Washington Post Co., based on allegations brought by our client, David Goodstein. We filed suit on behalf of Mr. Goodstein. In the complaint, we alleged that Kaplan, in operating a surgical technician program at its CHI Broomall, Pennsylvania campus, committed fraud under Title IV by knowing obtaining federal student loan money in violation of federal regulations. In particular, Mr. Goodstein, the former director of education at the Broomall campus, alleged that CHI enrolled students in the program knowing that the students could not complete the program, because CHI did not have practical placements in hospital settings, which was a requirement for completion.
We won a jury verdict in the United States District Court for the Southern District of New York against Cornell University and one of its former medical school faculty members, based on claims that the defendants had fraudulently obtained grant money from the National Institutes of Health by making misrepresentations as to a research training program for HIV. We represented Daniel Feldman, who had brought the lawsuit. The jury agreed with Dr. Feldman that the defendants had submitted to NIH three consecutive annual progress reports containing materially false statements that the program was being carried out in accordance with the initial grant application. The total amount of the judgment, with attorneys fees and costs, was approximately $1.6 million.
The defendants appealed to the Court of Appeals. A panel of the 2nd Circuit Court of Appeals unanimously rejected the defendants' appeal, and upheld the judgment in its entirety. In a widely-reported and far-reaching opinion, the Court agreed with our legal positions, and upheld, in a case of first impression for the Court, our theory of damages. The defendants agreed not to pursue any additional appeals, bringing 9 years of litigation to a successful end for our client.
While at our predecessor firm, Mr. Salmanson took the lead in negotiating a multi-million dollar recovery based on allegations that Pennsylvania Blue Shield had engaged in Medicare fraud. Our client, Lynn Bultena, along with three other whistleblowers, had filed suit alleging that Pennsylvania Blue Shield (now Highmark) had defrauded the government in reporting its performance as a Medicare intermediary. Mr. Bultena was credited with $16 million of the total $38.5 million recovered by the Government in the related cases. Mr. Bultena also separately settled his retaliation claim under the False Claims Act.
We have represented whistleblowers in a wide variety of cases involving alleged violations of other federal and state laws. These cases have typically included claims of unlawful termination and/or retaliation. For example, we represented an individual who asserted that he had been terminated for refusing to use software in violation of his employer's license agreement; a teacher who asserted she was fired for refusing to alter state-mandated educational records; another teacher allegedly terminated for reporting a student sexual assault; and an employee who was allegedly terminated for blowing the whistle on his employer after uncovering kickbacks and similar criminal activity.
Wage and Other Employment Issues
The Pennsylvania statute known as the Wage Payment & Collection Law (WPCL) imposes specific requirements on employers for the timely payment of wages, including some claims for severance pay, and also provides for specific remedies for any violations. Most significantly, the law imposes individual liability on certain individuals in positions of authority for the non-payment of claims; imposes a potential penalty of 25% of unpaid wages, and a mandatory award of attorneys' fees and costs to successful claimants.
We represented a client who was entitled to certain payments provided his termination was not for "cause" within the meaning of his employment agreement. After terminating him, the defendants refused to pay, claiming that our client had been terminated for cause. After a multi-day bench trial, we secured a verdict of just under $100,000 in wages (including notice pay, severance and unpaid bonus) and penalties, with an additional award of attorneys' fees and costs, and dismissed defendants' counterclaims for breach of contract, tortious interference, and breach of fiduciary duty.
We represented a corporate official in a claim for unpaid wages deferred while the company was in distress. After a bench trial, we won a judgment against the Company and its CEO in excess of $400,000. Defendants' appeal was denied by the Pennsylvania Superior Court.
We obtained an award of hundreds of thousands of dollars following five days of hearings before the American Arbitration Association on behalf of our executive client who claimed entitlement to severance pay upon his termination.
We obtained a verdict for our physician client after a bench trial based on claims for wages in the form of a bonus, and successfully defended the verdict on appeal. Other Employment-Related Cases We represented a corporation that had an employee leave to work for a direct competitor in violation of his employment agreement. Following a hearing on the merits, we succeeded in obtaining a preliminary injunction in which the court ordered the ex-employee and his new employer to immediately cease violating his employment agreement with our client.