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Archive for the month “January, 2013”

A New Associate

Well my office has a new recruit, an attorney called Christine Reilly.  She is young but has thus far shown herself rather capable and competent.  Of course, she has been with us a little over a week so I do hope after some time I can have some more adjectives to describe her than those general ones.

Many people seem to lament the turnover in staff.  I agree that it is sometimes a hassle ramping a new person up on all the cases, let alone all of the infrastructure things that need to be addressed, such as creating a new email address, website changes, moving stuff in and out of an office, and getting someone acclimated to the computer and billing systems among other things.  Do not even get me started on having to take on many unfamiliar cases if there is too much of a lag between the old person departing and the new person starting.

On the other hand, I often enjoy new people being hired and getting to know new people and getting a new start with a new associate.  It’s fun both to share about oneself and get to know someone else.  As associates and employees come and go it enlarges the web of contacts one may have and also allows one to gain more wisdom, knowledge, and experience into the thoughts and feelings of others.

So, here’s to new associates and new beginnings.

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Double Dipping: Unemployment Compensation and Other Benefits

In the episode of the Seinfeld television series called “The Implant,” George is spotted dipping the same potato chip into dip more than once after taking a bite out of it. Annoyed, his girlfriend’s brother, Timmy, approaches him, interrogates him about his “double dip,” and scolds him sharply, saying “just take one dip and end it!” Timmy’s admonition to George may not just apply to those attempting to enjoy a second bite of a dip-covered potato chip, but also to those who collect some other sort of disability benefit while also attempting to collect unemployment compensation (hereinafter “UC”) benefits.

Before moving forward, for the sake of clarity, any references to social security benefits (“SBB”) herein will not refer to the collection of the social security pension benefits (hereinafter “SSPB”) due to one reaching a certain age. There is no conflict between collecting a SSPB and UC at the same time as long as each agency is appraised of the income received from the other.

When comparing UC and SSB, a baseline principle was enunciated by the court when it declared “[u]nemployment compensation is not health insurance and does not cover physically or mentally ill persons during periods they are unemployable.” Carter v. Com, 442 A.2d 1245. In other words, in order to collect UC one must be able and willing to work. However, when applying for SSB, one must allege to the Social Security Administration (hereinafter “SSA”) that s/he is completely disabled as to not be able to work at all to be eligible for benefits. Obviously, a conflict arises between the requirements for UC and SSB: if someone is completely disabled as to render him/her unable to do any work s/he is, by definition, not eligible for UC benefits, although s/he may be eligible for SSB benefits of some sort. In saying that, in practical terms, it is highly doubtful that an employer in a UC matter will request discovery or cross-examine a claimant on the issue of what s/he indicated on an application for SSB benefits. Therefore, many cases may be slipping through the cracks simply because there is incomplete analysis into a claimant’s dealings with the SSA.

Although in the typical case one cannot lawfully collect both UC and SSB simultaneously due to the fact that the requirements for each diametrically conflict, there is an exception where someone can collect both UC and SSB. The exception centers on the definition of “substantial gainful activity” (“SGA”). Under the rules of the SSA, someone can work and receive an income and still be eligible to receive SSB as long as his/her work and income are not SGA due to the claimant’s disability. Much case law has developed over time to determine what SGA exactly is and is not, but at least in terms of income, it is clear. The maximum income one can receive at one’s job before it becomes SGA is determined per the national average wage index, which currently stands at +/-$980/mo. Therefore, by way of example, a person legally determined to be disabled can work part-time at his/her local McDonald’s earning $750/mo. That same person may also be eligible for SSB because s/he makes less than the SGA minimum of $980/mo and can prove s/he has a disability which prevents him/her from being able to do work that qualifies as SGA. If s/he loses his/her McDonald’s job due to no fault of his/her own, and is ready and able to work again at the same or similar job, s/he can apply for and receive UC benefits. S/he may then receive both UC and SSB presuming s/he meets the requirements for UC. As always, s/he will have to inform SSA of his/her UC benefits.

In terms of private disability, one can collect UC and private disability at the same time. Again, UC must be informed of the disability income and the claimant must still be ready and able to work. As with SSB, the possible issue that arises is whether the claimant is disabled. Each private disability insurer has a different definition/standard of what disability is; therefore, not all private disability insurers have definitions/standards for disability that would conflict with the UC definition/standard of being ready and able to work. As with SSB, it is unlikely that an employer in a UC matter would delve into what the claimant indicated on his/her private disability application. However, if UC rules that the claimant’s disability is such that s/he cannot work any job, then s/he will be ineligible for UC benefits. By contrast, if the claimant can work at some sort of job, just not necessarily the same one s/he left, then UC benefits may be awarded absent any other reason for ineligibility.

When it comes to sick leave and/or having to quit a job due to a health reason (physical or mental), a claimant must first inform his/her employer of the condition to allow the employer to make an attempt at an accommodation (as a brief aside, it should be noted that how exactly one goes about informing one’s employer of one’s condition, and who has the right to see the information provided, is a process that is heavily regulated by the Family Medical Leave Act and the Americans with Disabilities Act and will not be discussed herein). If the employer refuses to accommodate or cannot sufficiently accommodate, a claimant will be deemed to have been constructively discharged against his/her will and, therefore, eligible for UC if that same claimant can show s/he is still ready and able to work at some other job as long as his/her disability is or can be accommodated. Sometimes an employer can offer sick leave. If the sick leave is paid at normal salary, then UC benefits will be denied as the claimant’s income is stable. If unpaid or paid at less than normal salary, a claimant will only be eligible for benefits only if s/he maintains a relationship with his/her employer and intends to return to work at the end of the leave interval. In addition, Claimant would have to demonstrate s/he was given leave because of a health condition, which essentially constructively discharged him/her from his/her employment. In other words, the leave would have to be the employer’s method of accommodation of the disability which claimant accepts. The leave can be either under FMLA or any other sort of leave offered by employer. At the end of the leave, claimant would have to resume work or show that the accommodation was insufficient. In showing whether the accommodation was insufficient, Claimant must still be ready and able to find alternative employment to be UC eligible. If s/he cannot work any job, UC will deem him/her ineligible as not being ready and able to work. If, while out on leave, the position one expected to re-assume is eliminated, then the claimant will be considered to have been involuntarily discharged, making him/her eligible for UC, presuming s/he is ready and able to work.

In the current precarious economic climate, it is important to know one’s rights relative to what benefits one may be entitled to when unemployed. If one can receive more than one stream of benefits, the opportunity should be pursued. Perhaps Timmy was wrong; maybe one does not have to “end it” after dipping once.

This article was originally published in Upon Further Review on February 8, 2010 which you can see here or on my website here.

Christian Legal Clinics of Philadelphia – Justice IS Rolling!

The theme verse for the Christian Legal Clinics of Philadelphia is Amos 5:24: “But let justice roll like a river, righteousness like a never-failing stream.”  I attended the Clinic’s Board meeting this past Monday and I have to say that justice, indeed, is rolling through and with the Clinic in the City of Philadelphia.

Attorneys are truly living out Christ’s injunction to help those in need and, I hope and pray, these attorneys are the face of Jesus to those they help so that the clients not just receive answers to their legal issues but also can grow closer to and/or embrace Jesus for their soul’s health as well.

A non-profit charitable organization is always in need of funding.  Obviously, organizations such as these do not exist to turn a profit and/or for the purpose of generating revenue, so finding and securing funding for the services it provides is an ever present need and concern.

I am happy to say that God has truly blessed the Clinic.  We set goals for finances, staff, attorneys, and clinics and they, by and large, were all met or exceeded.  It is pretty exciting as we set goals for 2013.  Can we keep it going?  Well maybe we could, but I would not be confident.  Can God keep it going through us?  Absolutely!  We really believe we are carrying out God’s injunction to pursue justice and serve the poor and, so far, God has truly blessed our efforts thus far.

I pray that we can continue fulfilling God’s injunctions to serve and advance justice and that he will continue to bless us and our efforts in the upcoming year.  I pray that we always ensure we are doing God’s will and not our own.  I pray that we can continue to reap a good harvest from the seeds we are laying in Philadelphia through our Clinic.

We are now helping dozens, perhaps literally hundreds, of people in the City and, by God’s grace, we are still growing!  I pray that God can provide the resources so we can continue our growth.   Indeed, we hope to open one or two more Clinics over 2013 which will enable us to bring the love of Christ to even more people through the practical means of legal counseling.

It is a wonderful thing using one’s own talents, skills, and training for the advancement of the Gospel as opposed to simply secular gain, no matter how noble or good.  If you are an attorney who is interested in the Clinic, please email me or click the link above to the Clinic and contact the Clinic.  If you are a non-attorney and are interested in the Clinic, we always have needs for administrative work, marketing, counseling, and other services.  Please contact us!

Thank you Lord for allowing us to serve you in this way; please continue to bless our efforts to bless you and our clients in order to enlarge you Kingdom.

Picture Imperfect: the Implications of Using Cameras to Monitor Drivers

Anyone who has driven the roundabout encircling Philadelphia’s City Hall or down the Northeast Philadelphia drag strip (a.k.a. Roosevelt Boulevard) has no doubt encountered the cameras monitoring whether motorists stop at the traffic lights. Although these cameras apparently have made driving these roads safer, are the new traffic laws that were passed to regulate these cameras consistent with the traditional principles of American Law?
Although most people do not view a traffic violation as seriously as a criminal offense, said violations are a form of criminal offense. According to Pennsylvania Courts, a traffic violation is classified as a summary offense pursuant to 18 Pa.C.S.A. Section 106(c) (see Stumpf v. Nye, 2008 Pa. Super. 122 (2008), Commonwealth v. Henry, 2008 Pa. Super. 20 (2008), and Commonwealth v. Gimbara, 2003 Pa. Super. 394 (2003)). According to 18 Pa.C.S.A. Section 106(c), a summary offense is a classification of a criminal offense. Pennsylvania Courts have made it clear that even for summary offenses, the burden the Commonwealth must meet is “beyond a reasonable doubt” (see Commonwealth v. A.D.B., 752 A.2d 438 (Pa.Cmwlth. 2000 and Commonwealth v. Banellis, 452 Pa.Super. 478 (1996)). Therefore, working backward logically, as a traffic violation is a summary offense, which is a classification of a crime, and the Commonwealth’s burden of proof for a crime is beyond a reasonable doubt, it is clear that the Commonwealth has to prove its case against a defendant in Traffic Court beyond a reasonable doubt, and therein lies the rub relative to the traffic cameras mentioned above.

According to 75 Pa.C.S.A. Section 3116(a), a city of the first class, such as Philadelphia, is authorized to enforce traffic control devices through the use of an automated camera system. The cameras photograph the rear of a vehicle, capturing its make, model, and license plate, as well as the violation, as it passes through an intersection against the direction of a traffic control devise, generally a red traffic light. Pursuant to Section 3116(b) of the same title, if an automobile is photographed perpetrating a traffic violation by driving through a red light, the owner of the vehicle is presumed liable for the penalty for the violation. If a vehicle owner is presumed liable for a traffic violation penalty due to a photograph pursuant to Section 3116(a), it is up to the owner of the vehicle to prove his innocence by raising various defenses, such as alleging that he was not driving the vehicle at the time the photograph was taken. It is also notable that under Section 3116(e)(1), the statute specifically prohibits the cameras to photograph the front of a vehicle as evidence of the violation.

What happened to the Commonwealth having to prove guilt beyond a reasonable doubt? It seems that 75 Pa.C.S.A. Section 3116, in one fell swoop, has, in effect, turned perhaps the most axiomatic of American legal principles on its head. The Commonwealth’s burden of proof of beyond a reasonable doubt, which applies to criminal matters such as violating traffic control devices, has not just been reduced to a less onerous burden, but it has been essentially reversed by placing the burden on the automobile owner to prove his innocence. The presumption of guilt against the owner of a vehicle afforded by Section 3116 overlooks doubts that are manifestly reasonable on their face such as: it was the owner’s spouse, friend, child and/or neighbor driving the car, not the owner himself, or that the car was stolen. Indeed, even the obvious solution of photographing the front of the vehicle which would, or at least could, capture an image of the face of the driver illegally traversing the intersection is inexplicably prohibited. Finally, it would seem that Section 3116 tacitly, without any fanfare at all, undermines a basic principle of traffic law which heretofore established that penalties for violating a traffic law attach to an individual rather than the vehicle itself. It seems that Section 3116, without explicitly changing the focus of traffic law, suddenly has made being caught by an approved camera a violation that attaches to the vehicle itself as opposed to the driver. While focusing on the vehicle as opposed to the driver could be an explanation for the sudden ease in the Commonwealth’s burden in these sorts of matters, nowhere in the statute is it stated that traffic violations now attach to vehicles as opposed to drivers. Therefore, one is left with the clear conclusion that, when it comes to traffic control cameras, a vehicle owner is guilty of a violation until proving himself innocent.

Surely the safer streets, which seem to have resulted from the installation of cameras, is a good thing. However, although most people view traffic violations as a minor issue, the apparent overturning of the basic American principle of “innocent until proven guilty” could potentially have significant and long range effects. Could Section 3116 be struck down by the Court? Possibly, but due to the costs involved, it is obviously unlikely that a conviction under Section 3116 would even be litigated let alone appealed to the Pennsylvania Supreme Court. However, it is not outside the realm of possibility that the Pennsylvania Legislature could use Section 3116 as a springboard to slowly erode and ease its burden of proof in even more significant criminal matters. As citizens of this venerable Commonwealth, we must be vigilant in ensuring that our rights do not continue to be eroded in the name of safety.

Originally published on December 8, 2009 in Upon Further Review and can be seen here or on my website here.

The Secret to Unemployment Compensation Defense

I have litigated dozens, if not hundreds, of unemployment compensation cases.  I represent both claimants and employers but I more frequently represent claimants.  I think it is fair to say that claimants are more likely to win an unemployment compensation case against an employer due the nature of the law, but I think employers could increase their chances of success if they just spent a little more time and effort pursuing, preparing, and presenting their cases.

When I represent claimants I object pretty aggressively to the testimony, documentation, and evidence presented by employers mainly because they almost always are, to some degree if not totally, hearsay.  I think my success in representing claimants is due, at least to some degree, in preventing the employer’s evidence from being presented.

Now, I admit that I don’t want to give my opponents any advantages, but I think some very basic things could go a long way for employers.  Employers just do not present sufficient competent evidence to win.  Documentation, as much as is relevant, is always helpful.  When wondering whether to bring something, it is always wiser to bring it and not need it than the opposite.  Unfortunately, much of the documentation brought as evidence contains the statements of people who do not appear at the unemployment compensation hearing and is, therefore, hearsay.

This leads me to the single biggest error made by employers at unemployment compensation hearings, which is their failure to bring witnesses.  If an employer wishes to have documentation with the statements of others introduced into evidence at an unemployment compensation hearing, then the employer must bring the person(s) who made the statements to the hearing to provide testimony as to the statements in the documentation.  Furthermore, if someone is terminated for cause, then a witness to the incident(s) of misconduct giving rise to the termination is critical to win an employer’s case.  Many employers will bring the “boss,” whether that is the C.E.O. or president or manager or what have you, as a witness.  The problem is that the boss is usually too disconnected to have any personal knowledge of the claimant’s alleged misconduct which gave rise to his termination.  Therefore, any testimony from the boss about the misconduct is hearsay.

Another typical mistake is to bring the human relations person to the hearing.  The same problem with the boss applies to the HR person.  While the HR person can certainly introduce documentation in a person’s employee file, this person too is almost always too disconnected from the claimant’s alleged misconduct to have personal knowledge of it; as a result his testimony is hearsay as well.

When it comes down to it, an employer must bring sufficient witnesses who have personal knowledge of the issues at hand to win its case, otherwise employers will consistently be at a disadvantage at unemployment compensation hearings.

Alternative Pleading in a Divorce Action? Not so Fast!

When filing a divorce complaint, it appears that a typical lawyer’s standard pleading philosophy is to make as many claims as theoretically possible, relying on the court or opposing counsel to take the appropriate action to strike the weakest claims; a strategy often referred to as “throw as much mud against the wall and see what sticks!” The Pennsylvania Rules of Civil Procedure (Pa. R.C.P. 1020 and 1021) appear to support such a strategy by specifically allowing alternative pleading as well as pleading contradictory claims. In fact, the Supreme Court of Pennsylvania has explicitly ruled that “[t]hese rules reflect the general principle that plaintiffs should not be forced to elect a particular theory in pursuing a claim.” Republic Intermodal Corporation and Sullivan Lines, Inc. v. Doris Leasing Company, Inc. and Union National Bank of Pittsburgh, 473 Pa. 614 (1976).

When filing a divorce complaint, it appears that most attorneys maintain the aforesaid strategy by simultaneously making claims for a divorce under Sections 3301(c), 3301(d), and sometimes 3301(a) of the Pennsylvania Divorce Code, as standard practice. For the benefit of those who are not familiar with the Divorce Code, Section 3301(c) permits a no-fault divorce after the filing of Affidavits of Consent by both parties and ninety (90) days have elapsed after the filing of a divorce action. Section 3301(d) allows for a no-fault divorce to be unilaterally secured by one spouse after two (2) years of separation. 3301(a) is a traditional and old-fashioned fault-based divorce claim.

Although the Rules of Civil Procedure appear to allow for alternative pleading, even in the context of divorce, there are a growing number of cases that appear to proscribe alternative pleading in divorce in certain circumstances. One question which has arisen is: can a plaintiff in a divorce action, filing under Section 3301(c) and 3301(d) and/or 3301(a) refuse to file an Affidavit of Consent to consent to his own divorce action? It would appear, under the above Rules and case law that a plaintiff in a divorce action has the choice of proceeding under whichever claim he wishes. However the courts have increasingly limited this right under certain circumstances.

Pennsylvania courts, in an increasing number of cases, have ruled that refusing to allow a plaintiff’s divorce action to progress through the quickest route possible unfairly and inappropriately prejudices the opposing party. Consequently, if a plaintiff files under Section 3301(c), the courts have increasingly taken the position that one cannot refuse to file an Affidavit of Consent under Section 3301(c). The prejudice to the opposing party is fairly obvious: first, the filing of a divorce action is often accompanied by the filing for (and granting of) alimony pendente lite. Alimony pendente lite is support for the opposing party which can only be received during the pendency of a divorce action. Therefore, taking action to prolong one’s own divorce action only serves to extend the time the opposing party has to pay alimony pendente lite without recourse to stop it. Second, it prolongs the time the parties are married, which can have any number of implications. The courts have taken the position that the refusal to consent to one’s own divorce action is an abuse of the divorce process and one cannot receive the benefit of the divorce action without taking reasonable steps to expeditiously conclude it.

Although the courts have ruled that one cannot refuse to file an Affidavit of Consent, can a court force a party to execute the affidavit? Thus far, the courts have been reluctant to force the execution of an Affidavit of Consent. The cases deciding this issue to date have established the penalty for refusing to consent to one’s own divorce to be the dismissal of the divorce action in toto, which, by definition, simultaneously dismisses the alimony pendente lite. It does not yet appear that sanctions against the party refusing to consent to his own divorce action are among the penalties to be assessed, but the cases do not proscribe such a result.

A subset of cases involving a party refusing to consent to his divorce is growing in the circumstance where the party is receiving spousal support rather than alimony pendente lite. The crucial distinction between spousal support and alimony pendente lite is that spousal support is not dependant upon the existence of a divorce action. Spousal support can be successfully requested and received by a spouse absent a divorce action, but is definitively concluded when the parties are divorced. Therefore, dismissing the divorce action as a penalty for refusing to file an Affidavit of Consent, does not resolve the prejudice of having an artificially prolonged spousal support order in place against the opposing party. In this instance, judicial economy arguments are raised in the context of the individual factual circumstances of each case. The specific issue is whether dismissing the divorce claim has any positive effect on the spousal support claim. If not, then dismissing the claim may not be a viable alternative to correct the prejudice against the opposing party. It is in this situation that sanctions are most likely to be assessed to remedy the clearly unjust situation.

In the final analysis, when filing for a divorce, one has to be aware of the implications of the existence of an order for spousal support or alimony pendente lite on the speed in which one would like divorce action to proceed. Relatedly, if one files under Section 3301(c) of the Divorce Code, one must be prepared to file an Affidavit of Consent, otherwise one should only proceed under the other sections of the Divorce Code. Relevant cases on this topic are: Skelly v. Skelly, 36 Pa.D.C.4th 189 (1997); Norris v. Norris, 10 Pa. D.&C.4th 207 (1991); Mellot v. Mellot, 1 Pa.D.&C.4th 618 (1988); Burk v. Burk, 38 Pa.D.&C.3d 558 (1986); Way v. Way, 35 Pa.D.&C.3d 653 (1985); Rueckert v. Rueckert, 20 Pa.D.&C.3d 191 (1981).

Originally published in Upon Further Review on November 10, 2009 and can be viewed here or on my website here.  This article was also reprinted on November 10, 2009 in Upon Further Review.  Furthermore, it was also reprinted in Volume 32 Issue No. 4 (December 2010) of Pennsylvania Family Lawyer.

What’s In a Name?

Part of my practice is to help adults and children change their names.  Although the process for children is markedly simpler as compared to an adult, this process is much more complicated than people anticipate.

In Pennsylvania, in order to change one’s name, one has to get finger printed, secure their criminal history, a history of any judgments against him/herself, and a report of any child support owed.  Obviously, these items are not necessary to seek a child’s name change.  Although the precise documentation needed for a name change for an adult and child differs slightly, both require a hearing before a judge before the name change will be approved and both require publication of the notice for the aforesaid hearing in two (2) local newspapers.

Many people rankle at the idea of having a hearing on a name change, but the fact is someone could contest it.  Who would contest it?  There are people out there would try and change their names in order to avoid creditors, criminal backgrounds, or simply attempt to become a new person.  These are issues that a judge ought to know before entering an order approving a name change.  The issue for children is even more visceral.  Many times mothers attempt to change the last name of their children as the children bear the last name of an uninvolved and “deadbeat” father.  In this situation, the father has a right to argue against the allegations made against him and the change to the child’s last name.  Regardless of what the reason is for the name change, one must be prepared for the fact that changing one’s name requires a commitment of both time and money.

Finally, it should also be noted that unless one receives a decree from a court approving the name change, one’s name is not officially changed.  I have had clients who have somehow gotten their names changed on driver’s licenses and Social Security cards without formally changing their names.  I have no idea how or why the Department of Motor Vehicles and/or the Social Security Administration would go ahead and change someone’s name as it appears on his license and/or Social Security card without a decree changing the person’s name.  It may be due to confusion, mistake, or plain incompetence.  Regardless of the reason, it happens and I have to say that I have seen it happen a few times over the years.  In fact I have had a client who has had at least two (2) different driver’s licenses and three (3) different Social Security cards, all bearing different names.  This seems to me like a terrible security risk, a way for someone to avoid creditors and/or arrest, or, at the very least, a sure recipe for some frustration due to confusion over names in the future.  The point here is, regardless of whether one’s name has been changed informally on a driver’s license and the like, one’s name has not been officially changed until a court enters a decree to that end.

The Hidden Inequity in Unemployment Compensation Law

As everyone knows, the current financial climate is precarious at best, which makes knowing one’s rights under Pennsylvania Unemployment Compensation Law vital to one’s financial future. Conventional wisdom, which is largely correct, is the following: an employer must pay unemployment compensation taxes for employees and those employees can collect unemployment compensation benefits if separated from employment (presuming, of course, they meet the statutory eligibility requirements). For unemployment compensation purposes, an employee is basically defined as someone who is dependant upon the business for which he works for income, works for a fixed rate of remuneration from the business for which he works, and whose work is completely controlled by that same business.

Perhaps an employee is best described by what it is not. In contrast to an employee is an independent contractor. Independent contractors, by statutory definition, are ineligible for benefits. An independent contractor is defined by 43 P.S. § 753(l)(2)(B), and the cases decided thereunder, as the following: (1) being free from the direction and control of a purported employer and (2) having an independent business that is not reliant upon a single source for his business. While the above language means is often determined on a case by case basis, general guidelines have been provided in well established Pennsylvania case law. Characteristics of someone who is free from direction and control include, but are not limited to, the following: the individual (1) does not have his taxes withheld by an alleged employer; (2) can accept or reject work at his own discretion; (3) can work for competing entities without fear of reprisal; (4) can control how a job is performed; (5) works without a fixed rate for remuneration; (6) supplies his own tools and/or supplies to accomplish his work; (7) does not receive “on the job training” from the alleged employer; (8) sets his own hours of work; (9) sets his own parameters for his work; and (10) is not dependant upon a single source for his business. As an independent contractor is not an employee, and therefore not eligible for benefits, if one contracts with an independent contractor no unemployment taxes need be paid for that person.

The general rule is if unemployment compensation taxes are paid for an individual, then that person can collect benefits; in the alternative if someone cannot collect benefits, then the unemployment compensation taxes do not have to be paid for that person. However, is there a situation where the tax must be paid for someone but that individual cannot collect? In the context of Unemployment Compensation, the analysis of what makes an employee, as contrasted from an independent contractor, converges onto an owner of a business in a way that is inequitable. The inequity appears to be derived from exploiting both sides of businesses as legal entities independent from both its owners and employees.

An owner of a business, who works and earns income for the business he owns, is considered to be an “employee” for whom unemployment compensation taxes must be paid because the owner depends upon the business for his income and the business completely controls the owner’s work. However, in reality, as the owner of the business, he controls what work the business does and how it is performed. Therefore, the business owner simultaneously controls and directs the business (fitting the criteria for an independent contractor) on the one hand, while being dependant upon and controlled by the business for both work and income (fitting the criteria for an employee) on the other hand. Taking full advantage of a business owner’s dual role as independent contractor and employee, Pennsylvania Unemployment Law as presently written and interpreted, treats a business owner as either an employee or independent contractor when it most benefits the government as opposed to the owner. Therefore, although a business owner pays unemployment compensation taxes on his own income from his business because he fits the criteria of an employee, if that same business owner becomes separated from the business for any reason (except for the exception detailed below) then that business owner is ineligible to collect unemployment benefits because he also meets all of the criteria for an independent contractor listed above. Therein lays the hidden inequity: a business owner must essentially pay a tax for which he cannot receive the benefit.

The only exception that would allow a typical business owner to collect unemployment benefits is if he is forced to terminate his relationship with the business through an involuntary bankruptcy. An involuntary bankruptcy is considered to be analogous to the involuntary termination of one’s employment from an employer. Perhaps this is a clue as to the rationale behind the general rule that business owners must pay for but cannot collect unemployment benefits for themselves. A business owner is essentially his own employer and could hire himself and lay himself off repeatedly at will, theoretically making himself eligible for unemployment benefits over and over again. Perhaps lawmakers believed a business owner holds too much control over the employment relationship with the business itself to allow him to collect benefits.

It is interesting to note that, aside from the above exception, a Pennsylvania statute specifically carves out an exception for real estate and insurance agents in 43 P.S. § 753(l)(4)(17). The statute specifically indicates that although real estate and insurance agents may own, at least in part, the businesses for which they work, unemployment compensation law will specifically deem them to be exclusively independent contractors as opposed to simultaneously employees. Therefore, there is no requirement under Pennsylvania statute for real estate and insurance agents to pay unemployment compensation taxes. Thus far, the cases decided under 43 P.S. § 753(l)(4)(17) have not expanded its application beyond the specific exceptions for real estate and insurance agents to include individuals in other professions but with the same sort of owner/employee arrangement relationship.

Most people expect to have the safety net of unemployment compensation benefits if they unfortunately lose their job. However, if one owns a business and pays unemployment compensation taxes for oneself, he should be aware that the payment of the tax does not entitle him to collect the benefit. This may be clearly inequitable on its face, but until it is changed it is imperative that business owners be aware that the safety net they may be hoping for will not catch them if they can no longer work for their business.

Originally published in “Upon Further Review” on October 8, 2009 and can be found here and on my website here.

Lines Drawn Against First Amendment Rights in Public Schools

A Marple Newtown School District kindergarten student has recently found himself at the center of a First Amendment controversy involving religious expression in public schools in the matter of Busch v. Marple Newtown School District, 2007 WL 1589507, appealed to the 3rd Circuit 2009 WL 1508513 (neither decision is reported).  The trial court found against the Plaintiffs per a Motion for Summary Judgment and the 3rd Circuit affirmed the decision.

In October 2004 a kindergarten class was in the midst of a unit of study called “All About Me”.  The assignments in the unit included the opportunity for the children to make a poster with pictures and/or drawings of their interests, hobbies, and/or families; bring in a toy or other item to share with the class; bring a snack; and, bring a parent in to share a talent, short game, small craft, or story with the class.  The Plaintiffs (a mother and son) in the matter elected to have an excerpt from Plaintiff-Son’s favorite book read by Plaintiff-Mother to the class to fulfill that portion of the assignment; Plaintiff-Son’s favorite book is the Bible.  Plaintiff-Mother intended to read Psalms 118:1 – 4 and 14 without further comment on them (the aforesaid verses read as follows as translated in the Authorized Version of the Bible: “O give thanks unto the LORD; for he is good: because his mercy endureth for ever. Let Israel now say, that his mercy endureth forever. Let the house of Aaron now say, that his mercy endureth forever. Let them now that fear the LORD say, that his mercy endureth forever. The LORD is my strength and song, and is become my salvation.”). This portion of the Bible was selected because it had no reference to Jesus, was generally inspirational, and was a form of poetry, according to the Plaintiff-Mother.  Plaintiff-Mother went to Plaintiff-Son’s class at the appointed time and told his teacher what she intended to read.  His teacher indicated that she would have to confer with the principal before she could allow Plaintiff-Mother to read from the Bible to the class. The principal refused to permit Plaintiff-Mother from reading from the Bible to the class for fear of violating the law, specifically a breach of the “separation of church and state.” Believing their constitutional rights have been violated, Plaintiff-Mother brought suit on behalf of her son alleging Constitutional breaches of his freedom of speech, the Establishment Clause, and equal protection of the law.

In making its ruling, the Court attempted to navigate the tangled web of law surrounding the rights guaranteed by the First Amendment balanced by the limitations of the Establishment Clause in a public school.  At the outset, the Court first had to discern what sort of “forum” a school (and a kindergarten class in particular) is for First Amendment purposes which determines the level of scrutiny the Court applies to the circumstances before it.  The parties agreed in this matter that a public school classroom (and a kindergarten class in particular) is not a public forum, which gives the government wide latitude to implement its curriculum.  The second tier of analysis is for the Court to determine whether the school engaged in viewpoint discrimination.  The Court ruled that, with specific exceptions, the government cannot discriminate speech based upon its viewpoint.  After review of all of the facts presented, it did concede that the school district discriminated against Plaintiff-Mother’s speech based upon its viewpoint (i.e.: the Bible).  The Court’s next step in its inquiry is to determine if the school’s viewpoint discrimination fits into one of the constitutionally permissible exceptions.  In taking this step, the Court noted that the various Circuit Court rulings are across the spectrum on the issue of what precisely is and is not permissible viewpoint discrimination.  Finally, the Plaintiffs alleged that the school district violated their 14th Amendment rights by subjecting them to disparate treatment based on their religious beliefs.  The Plaintiffs argued that the school permitted other religions to be exposed to the class and discriminated against Christianity by prohibiting the Plaintiffs from reading from the Bible.

A primary focus of the Court’s analysis was to determine whether the situation presented a perception of school-endorsed speech.  The listeners of the speech have to know that the religious speech at issue does not originate from and is not endorsed by the school.  Additionally, the Court noted that a school may restrict speech inasmuch as it is reasonably related to pedagogical concerns.  Essentially, the government cannot be perceived as promoting religion.  As a general rule, the younger the child, the more control over speech a school may exercise as it is generally assumed that young children are more impressionable and less likely to discern whether speech is endorsed by and/or originated from the school as opposed to a student.

After a fairly extensive review of the facts and law relevant to the matter, the Court ultimately ruled that the school district was correct to restrict Plaintiffs from reading from the Bible in the classroom.  The Court decided that, in this matter, young children of a kindergarten age are specifically protected by the Constitution and are not able to discern school-endorsed speech from speech from an individual student.  The fact that was of central importance to the Court’s analysis was that the Plaintiff who read the Bible in the classroom was the mother whom, as a parent of a child in the class, the Court believed would be viewed as an authority figure by the children.  The Court believed that an impressionable kindergarten student would view the reading of the Bible by an authority figure (i.e.: parent) in a classroom as (unconstitutionally) coming from the school district and unable to discern that it was coming from the parent individually.  In terms of the equal protection claim, the Court noted that the other religions were presented “culturally” whereas it believed that Bible reading to a class was “proselytizing” restricted by Establishment Clause.

Obviously the Court’s decision is controversial and the Plaintiffs are considering filing an appeal to the United States Supreme Court.  The Court’s decision is far from having unshakable support in either law or fact.  Indeed, matters such as this are extremely fact specific, and the law on which a court must base its ruling is extraordinarily tangled.  To complicate matters further, the Court spent a few paragraphs of its analysis of the matter detailing what the Plaintiff-Mother and her husband believe an Evangelical Christian to be.  It also attempted to discern the theological significance of the Bible verses selected for the reading.  Neither lines of inquiry are relevant to whether Plaintiffs’ speech is constitutionally permissible and, in fact, give the appearance that Christianity itself is, inappropriately, on trial.  In fact, it is through these flawed lines of analysis that the Court hinted that the Plaintiffs were actually engaged in proselytizing as opposed to their own stated intentions of merely presenting Plaintiff-Son’s favorite book.

One could argue that the Court did not take the assignment in proper consideration. One could very logically assume that the children listening to a presentation within the context of “All About Me” would readily understand that the Bible reading was, by definition, “all about” Plaintiff-Son and his favorite book as opposed to the school.  Indeed, Plaintiffs’ intention to read from the Plaintiff-Son’s favorite book was responsive to and complied with the assignment given by the school itself.  No evidence was presented by the Defendant that the students would somehow be confused over whether Bible reading in class was student or school sponsored.  Indeed, the reading of the verses would have taken less than thirty (30) seconds; one can hardly argue that that would somehow have an “adverse” effect on the children in the class.  To fit its ruling, the Court makes impossible distinctions.  For example, the Court distinguishes between expressing one’s love of the Bible from reading from it as well as incredulously stating that an assignment to help students learn about one another (i.e.: the “All About Me” project) somehow does not permit students to express their religious beliefs if they are important to those students.  In other words, students can learn about one another, except when it comes to religion.

It was noted during the trial – and in the Court’s opinion – that religion and the kindergarten class have crossed paths before.  The classroom contains various books dealing with religious holidays (both Jewish and Christian).  Furthermore, the school has allowed a presentation to the class by a Jewish woman about the significance of Hanukkah and Passover.  Ironically, the Plaintiff-Son included pictures of a church on his “All About Me” poster with captions saying “I love to go to the house of the Lord”, and even that was permitted.  The school district obviously did not see any of the above as impermissible entanglements of religion and the kindergarten class.  One wonders how the Court could credibly draw such imperceptible distinctions between these religious incursions into public schools and the reading of 5 innocuous verses from the Bible in a classroom.

Finally, it could be argued that the school district was generally overly sensitive and discriminatory to the presence of Christianity in its schools.  For example: the school district has likely unconstitutional policies of (1) prohibiting students from “advocating” a religious point of view or preference in any context; (2) ensuring that public schools are not a forum for a student to express his personal religious preference/doctrine; and, (3) suggesting calling a Christmas tree a “holiday” tree.  These policies are based upon the false premise that the Constitution calls for “separation of church and state”.  It is noteworthy to point out, as a sort of final slap in Plaintiffs’ faces, that when the Bible was rejected as a book to be read to the class, the teacher offered the Plaintiffs a book about witches as an alternative.  It hardly shows any appropriate sensitivity to the Plaintiffs’ religious beliefs on the part of the school district to suggest a book about the occult – something well known to be taboo among professed Christians – as somehow a viable alternative to the Bible.

It remains to be seen whether this case will be appealed; if so it may be a viable case to be heard by the United States Supreme Court due to the general confusion and inconsistency among the various Circuits.  Regardless of whether this case is appealed to the United States Supreme Court, the fact remains that the relationship of religion and public schools is a very sensitive and fact specific one.  Ultimately, we are all called to be respectful and tolerant of one another and our religious, or nor non-religious, views.  One would hope that the lesson being learned in public schools is that there is a wide diversity of religious views and that it is possible for us all too peacefully co-exist without having to sacrifice one’s own religion in the process.

Originally published on August 10, 2009 in “Upon Further Review” which can be found here or on my website here.

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