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A Collection of Deaf Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of deaf law issues.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

A Collection of Employment, Civil Rights, and Labor Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of employment, civil rights, and labor legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

Accepting Voluntary Layoff Is Now Involuntary Termination

Decades of Pennsylvania law concerning eligibility for unemployment compensation after accepting an early retirement package has been overturned in the recent landmark Pennsylvania Supreme Court case of Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209

In Diehl, the Plaintiff, a sixty-three (63) year old man with twenty-three (23) years’ seniority with his employer, was given a memorandum from his employer which included a list of twenty (20) employees who would be laid off pursuant to a reduction-in-force; but Plaintiff was not on the aforesaid list. The employer also offered employees over the age of sixty (60) an early retirement program, for which Plaintiff was eligible. Plaintiff accepted the early retirement program and effectively quit his position with employer as a result; he subsequently applied for unemployment compensation benefits.

Plaintiff was ruled to be ineligible for benefits at every level of the litigation of this matter, prior to the Supreme Court’s decision which is the subject of this article. The reasoning of the lower decision-makers’ was based on Plaintiff’s voluntarily accepting the early retirement program which effectively served as a voluntary termination of his employment without a necessitous and compelling reason to do so. Plaintiff was not on the above-mentioned list and he was not compelled to accept the early retirement package, and there was no threat of termination by his employer, if he didn’t accept it.

The Supreme Court’s legal analysis centered upon the Voluntary Layoff Option Provision portion of 43 P.S. Section 802(b) which states the following: “[p]rovided further, [t]hat no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy.”

As one would expect, the tribunals below the Supreme Court cited to multiple cases over the last three (3) decades which would lead to the necessary conclusion that Plaintiff is ineligible for benefits due to voluntarily terminating his employment without a necessitous and compelling reason. These cases tend to focus on a judicially created distinction between early retirement and a voluntary layoff, with only the former allowing eligibility for benefits. However, the Supreme Court pointed out that, despite the long history of reasonably consistent decisions, it was apparent that none of other courts and tribunals actually read the statute they were applying and upon which they ruled.

The Supreme Court began its analysis of the decisions below by identifying an underlying interpretive framework for unemployment compensation which requires viewing the unemployment compensation law as liberally as possible in order to provide the maximum benefits possible. Furthermore, the Supreme Court pointed out that when attempting to apply a statute, courts must abide by the letter of the law when the language of the statute is clear and free from ambiguity using the common and approved usage of the words. As a result, the Supreme Court concluded that benefits should only be denied if the statute has explicit language to that effect; indeed there is a presumption that an applicant for unemployment compensation is eligible for benefits and the burden to prove the contrary lies with the employer.

Using the guidelines described above, the Supreme Court indicated that the Plaintiff was denied benefits, and the many cases in support of his denial, was the result of chronic misinterpretation of the Voluntary Layoff Option Provision portion of 43 P.S. Section 802(b), apparently in an attempt to harmonize it with the law regarding ineligibility upon voluntary termination. Despite this, however, the Supreme Court ruled that the language quoted above, taken on its face, uses the term “layoff” without any other modifier, therefore the term layoff can refer to either temporary or permanent separations initiated by an employer. Indeed, the Supreme Court specifically indicated that the Voluntary Layoff Option Provision portion of 43 P.S. Section 802(b) specifically forbids the denial of unemployment compensation benefits due to accepting a voluntarily offered plan by an employer. The Supreme Court asserted that the language of the aforesaid statute is so unambiguous that the legislature’s intent to equate someone falling within the statute with an involuntarily unemployed claimant as opposed to someone who voluntarily terminated his own employment without a necessitous and compelling reason.

To put it simply, the Supreme Court found no language in the aforesaid statute to prevent interpreting it to allow claimants to be eligible for benefits upon accepting employer-initiated early retirement packages offered pursuant to a workforce reduction.

Originally published in The Legal Intelligencer Blog on January 27, 2014 and can be seen here.

Peril of Losing Benefits While Vacationing Unemployed

When one loses one’s job, being unemployed certainly can free up some time to take a trip or visit people which one otherwise would not have the time to do due to the constraints employment can put on someone. Taking such trips, however, may have the unintended, and perhaps unexpected, consequence of having one’s unemployment benefits discontinued, as happened in the recent New Jersey case of Vialet v. Board of Review, Department of Labor, and Lundbeck Research, USA, Inc. Superior Court of New Jersey, Case No.: A-1226-11T2 (2012 WL 5274565).

The Claimant in Vialet was unemployed and eligible for benefits under the applicable unemployment compensation law. Claimant collected benefits for about two (2) months, from early October 2010 to early December 2010. Coincidentally to her termination from employment, Claimant was to travel to Jamaica on December 15, 2010 to be the maid-of-honor in his sister’s destination wedding. Claimant’s trip to Jamaica was originally scheduled to be a rather short trip. As it turned out, however, Claimant’s parents were of ill-health and living in the Virgin Islands, and, since Claimant was in the Caribbean neighborhood, she flew there to pay her parents a visit after the wedding. Claimant planned to stay in the Virgin Islands until December 27 but could not return home until December 31 due to inclement weather. Claimant asserted that she would not have been able to start new employment, were she to have received an offer for the same, until January 2011, presumably due to her sixteen (16) day trip to parts of the Caribbean.

When reviewing the facts of the case, as described above, the Unemployment Compensation Board of Review ruled that Claimant rendered herself ineligible when she decided to take a trip through the Caribbean, regardless of her reason. The logic employed was this: eligibility requires a claimant to be able and available for work as well as actively seeking employment. The Board of Review believed that being thousands of miles from one’s home and being absent until January meant that she was not able and available for suitable work, because potential employers could not contact her, and she could not appear at potential job interviews. The Board of Review obviously did not believe that the Claimant was “genuinely attached to the labor market” and did not have “good cause to refuse” employment. If Claimant was asked to start at a new job on, say, December 20, 2010, she would have had to refuse, due to being in the Caribbean for what the Board of Review believed to be something other than “good cause.” The Court noted that there were some exceptions to the requirement to be able and available for work, such as a close family member’s funeral or jury duty, but international travel to a wedding was not among them.

Claimant appealed the Board of Review’s decision, arguing that modern communication and internet technology made her job search possible anywhere in the country, if not the world. Claimant also argued that the Board of Review failed to consider possible employment opportunities which could be performed through electronic means. In essence, Claimant argued that there was some sort of parity between being electronically linked to the marketplace and being physically present in it.

In order to successfully appeal the Board of Review decision, the Claimant bore a burden which is rather substantial. Specifically, the Claimant had to overcome the presumption of correctness the Board of Review enjoys. Furthermore, the Court “accords substantial deference to an agency’s interpretation of a statute that the agency is charged with enforcing” and such an interpretation can only be overcome if it can be shown to be “arbitrary, capricious, unreasonable, unsupported by substantial, credible evidence in the record, or inconsistent with either legislative policy or the agency’s enabling statute.”

After a review of the matter, the Court did not believe Claimant’s arguments overcame the burden articulated above. The Court ruled that requiring a physical presence in the marketplace was not unreasonable or arbitrary, but was consistent with existing case law. Indeed, perhaps critical to Claimant’s inability to succeed on appeal, the Court refused to account for the influence of modern technology in interpreting existing law (which predates much of this new technology). The Court upheld the Board of Review’s decision that Claimant’s trip made her unavailable and unable for employment, which detached her link from her local marketplace, was consistent with the facts presented and applicable law, and Claimant’s arguments could not overcome her burden to demonstrate otherwise. As a result, Claimant was ruled to be ineligible for receipt of benefits while she was out of the country upon leaving for the Caribbean.

The message the Court is sending is pretty clear: a claimant for unemployment compensation benefits must at virtually all times be ready to accept a job offer if one were to come his way. A claimant should be leery of taking any extended trips anywhere of a relatively long distance which could impair the ability to interview for a job or accept employment nearly immediately. Until the Court incorporates or recognizes the advancement of modern communication technology and/or telecommuting, a claimant should stay close to home while collecting benefits.

Originally published in The Legal Intelligencer on June 25, 2013 and can be viewed here.

USPS Listens to Deaf Employees’ Claims

The matter of Hubbard v. Donahoe, Civil Case No. 03-1062, U.S. District Court for the District of Columbia, is a class action lawsuit that pits the United States Postal Service against its deaf and hard-of-hearing employees.

The Equal Employment Opportunity Commission brought a class action suit on behalf of various deaf employees USPS alleging that the USPS denied them communication accommodations (e.g., American sign-language interpreters), especially during meetings, refused to provide them a TTY for telephone communication, failed to give them emergency evacuation notification systems, did not promote them or provide assistance in their effort to get promoted, and subjected them to a hostile work environment as a direct result of their disabilities.

After about 10 years of litigation, the parties have finally submitted a class action settlement agreement to the District Court for $4.55 million.

Over the course of my life, I have been involved in the deaf culture in one way or another and I have learned that although most people think of not being able to hear as the disability of a deaf person, the challenges the deaf have in the simplest act of communication with a hearing person are perhaps the disability that most impacts their lives each day. The inability to effectively communicate serves to isolate the deaf person – likely the only one at a given employment location – and therefore completely separate him from the rest of his co-workers. Therefore, failing to provide an interpreter or basic emergency systems or even a telephone (i.e., TTY) compounds a deaf person’s disability and enhances his or her isolation. I can think of few things that would make a work environment more hostile than near complete isolation.

Regardless of the merits of the case, it reminds us that those with disabilities are equal members of our society and our workforce and all have value. A case like this serves as an important reminder that employers all have the obligation to ensure that they honor their responsibility to take reasonable measures to accommodate the disabilities of their employees and to ensure that the workplace is one in which the employees feel comfortable.

Originally published in The Legal Intelligencer Blog on March 22, 2013 and can be found here.

Hearing from the Deaf

recently discussed in this space how technology has aided attorneys in their representation of the deaf. Since that time, I have received some feedback that I think is worthwhile to share.

When it comes to language, while the deaf and hearing use the same written form of English, when “spoken,” American Sign Language employs very different forms of syntax, expression, word order and grammatical structure as compared to spoken English. As a result, sometimes, especially with deaf people older than the so-called Generation X, the norms of spoken American Sign Language become intermingled with a deaf person’s written English, often to the extent that it causes a language barrier. Therefore, practitioners must be sensitive when communicating with a deaf person and realize that sometimes written communication may not be as effective as it would be with a hearing person.

In addition to the above, a common misconception among the hearing is that the deaf can simply lip read in order to effectively communicate. Unfortunately, lip reading is a very inexact science, withmany words unsuccessfully read during a typical conversation. Even if the general gist of an attorney’s point is communicated, this is insufficient, as legal advice is generally fairly complicated and requires, as much as practicable, the full understanding of the client and not simply getting the gist across. Besides, not all deaf people have the skill of lip reading; presuming that they do is simply a hearing person’s stereotype of the deaf.

The Americans with Disabilities Act prohibits an attorney from denying services because of an “absence of auxiliary aids and services.” These services include a sign language interpreter; however, a firm is not required to use an interpreter if it would result in an “undue burden.” While the cost for the interpreter is to be absorbed by the attorney, an attorney may bill for the extra time it may take to effectively communicate with a deaf client. In order to offset some of these costs, the Pennsylvania and Philadelphia bar associations established the Interpreter Access Fund. In addition, it may be possible to secure a tax credit for an attorney’s special expenditures to serve a deaf person pursuant to the Disability Access Credit.

Finally, a variety of organizations exist to help the deaf navigate the legal system and achieve justice. These organizations include the Disabilities Rights Network, the Pennsylvania School for the Deaf, the Legal Clinic for the Disabled, the National Association for the Deaf, and deaflegal.org. It is worthwhile for an attorney to investigate each of these if one intends to represent the deaf on a regular basis.

Originally published on May 18, 2012 in “The Legal Intelligencer Blog” and can be found here.

Backlog injustice

Any given custody case has its share of challenges, trials, tribulations, and issues which need to be overcome.  Unfortunately, the Philadelphia Court system (and the surrounding ones to a lesser extent, but this article focuses mainly on Philadelphia) has added a new one: the dreaded backlog.

What is the backlog?

Every case filed in court, including custody court, goes to the back of line of all the other cases filed previously in terms of the scheduling of hearings and such.  This makes logical sense, seems fair enough, and I do not think – with the exception of emergency matters – anyone really objects to a system of “first come first served.”

The problem – and the injustice – rears its ugly head when litigants in Philadelphia custody court realize how long the line is that they now must stand in to wait for their matters to be heard.

The standard procedure is this: (1) a complaint for custody (or petition to modify custody) is filed; (2) a conference before a hearing master is scheduled to hopefully air out and resolve the issues; (3) if the master is unsuccessful in bringing the case to a close, a trial before a judge is scheduled; and, (4) a judge’s trial can be a normal hearing list (1 hour or less), semi-protracted (1/2 day) and protracted (full day) and if one needs anything above a normal hearing list one must petition for it.  Of course, if one disagrees with the final decision by the judge, appeal options are available just like any other case.

This process seems straight forward and typical enough, right?  So, what’s the problem?  Well, let me ask you, my dear readers, how long do think one should wait between the filing of the complaint (or petition) and a hearing before a master (let alone a judge’s trial)?  A couple of weeks?  A month?  45 days? 2 months?  3 months?  What do you think?

What if I told you that if you filed a complaint or petition for custody in Philadelphia Family Court today you would be lucky to have your master’s hearing by September 2014 – ELEVEN MONTHS from now!  Of course, if the master is unsuccessful in bringing a case to a close, when will the trial happen?  At least six months later, if not another year if a protracted trial is need.  So, when all is said and done, you may not get a trial in your matter until nearly two years after the initial filing.  Get this, I have had a protracted trial with a client which was not complete after a full day trial so a second day had to be scheduled.  When?  Day two of the trial was scheduled SIX MONTHS later.  How can a judge keep track of the issues after six months?  Besides, all sorts of other issues arise in the interim.  I just got a master’s hearing continued to another date just yesterday; the new date?  Nearly a year from now, which means that custody complaint will not reach a master for nearly TWO YEARS.

I do not see how anyone could view this situation as anything but unjust.  Unjust how?  Well think of the logistics of all of this.  First, the children stuck in this situation are caught in the balance for months on end not really knowing when or how their lives will shake out, all the while their parents are engaged in a cold war with one another without any clear direction from the court.  Second, and perhaps most importantly, without a court order, both parents are entitled to custody without limitation.  So, if a mother physically has her children when she files a complaint for custody she does not, absent a court order, have any obligation to turn over the children to the father for him to have visitation.  What is the father’s remedy to having his children withheld?  Well going to court of course, but that only means getting into the back of a year long line; is that a remedy?  Do parents have an incentive to withhold their kids from the other parent?  Of course!  As I said, both parents are entitled to custody where there is no court order, so the risk of turning over the children to the other parent in good faith carries with it an enormous risk, which should be pretty obvious.  Once the other parent receives the children, that parent has no obligation to give them back!  So, what is the remedy for the parent deprived of the children?  Well, go to court of course, but again that means waiting in a year long line.  Third, these enormous wait times also artificially distort the legal arguments to be made in court once the hearings actually do happen.  How so?  Well, think of it: a mother has her children for a year (at least) without father’s involvement (likely due to fear that he would withhold them from her if she gave them up to him in good faith); what are the results in such an arrangement?  Well, mother can confidently go to court and argue that she is the primary care giver and she knows all of the doctors and teachers for the children and is intimately involved in all those matters and father is not and would have to start from scratch.  To disrupt that would be to adversely affect the children and the lifestyle to which they are accustomed.  Further, if the children are very young (say toddlers), the mother will argue that this father has no experience with young children so giving him extended custody is adverse to the children’s interests, not to mention the trauma now to be caused to the children by giving them up to someone who is a virtual stranger to them.  Of course, one would think that a mother in this situation should be sanctioned in someway, but custody determinations are made based on what is best for the children and is it really better for the children-at-issue to profoundly disrupt their lives with a virtual stranger?

Of course, people are very frustrated with this state-of-affairs.  It is notable that Pennsylvania Rule of Civil Procedure 1915.4 requires a 45 day turn around time for hearings on custody, so the court system is fundamentally in violation of the rules.  I spoke to a Philadelphia Family Court judge who I know personally fairly well about this and he said that he and his fellow judges think the backlog is a mark of embarrassment for their court, but they are powerless to do anything about it due to the crushing numbers of litigants and the insufficient number of judges.  Of course, the judges’ embarrassment really does not do anything for the litigants.

Due to the frustration, litigants have sought alternative legal means to address their issues.  It first began as filing for an emergency scheduling for their custody.  Of course, sort of like that alternative route during a traffic jam: when too many people know of it, it too becomes jammed.  The line for emergency petitions also became prohibitively long.  It is now at the point where an emergency petition will only be granted after an explicit showing that the children are in actual danger from drugs or violence.  Withholding one’s children for months on end no longer justifies an emergency.  Another way the backlog has been tackled is through the filing of Protection from Abuse Orders (“PFA”) on behalf of children.  Filing for a PFA has a turn around of about ten days and if children are the subject of abuse, a limited custody provision can be included in the PFA order accordingly.  So, what has happened?  Well, per a PFA judge’s clerk I was speaking with last week, the PFAs on behalf of children amounted to less than five per month; now they get five per day.  Are children now being abused at an exponential rate or is the PFA system being co-opted as a means for a speedy custody trial?  I think it is pretty obvious frustrated custody litigants are using PFAs to achieve their custody goals at least in the short term.

On a personal note, I think the situation described above really shows us the fruits of the sexual revolution, having children out-of-wedlock, and the enormously high divorce rate.  Fourteen judges and at least a half-dozen custody masters are insufficient to handle the deluge of cases is an absolute disgrace.  It is a sad testament to the state of our society.  Aside from a revival of sexual morality in our culture, we need more judges and masters, or masters with more power.  Until then, custody litigants need to know that they will be in it for the long haul and the injustice of being deprived of one’s kids because of this backlog is an unfortunate reality for the foreseeable future.

Justice is Blind, But is it Also Deaf?

Justice is supposed to be blind, but can it also serve the deaf? One of the most legally underserved groups in America is the deaf. The deaf community is enigmatic. It is said that Americans and the British are separated by a common language. The relationship between the hearing and the deaf is similar; although both speak a common language, they are separated by vastly different modes of communication, which creates a challenge for a hearing attorney attempting to represent a deaf client.

Over the years, technology has made it possible to improve communication between the hearing and the deaf. In the second half of the 20th century, the teletypewriter (TTY) and telecommunication device for the deaf (TDD) were invented, which enabled the deaf to communicate with one another over telephone lines through a typewriter-like apparatus. The deaf and hearing could speak to one another over the telephone by calling 711. 711 called a relay service where a hearing person, using a TTY/TDD, would type the hearing person’s words to the deaf person and read the deaf person’s words to the hearing.

With the advent of the Internet, the ability of the hearing and deaf to communicate with each other has advanced exponentially. The deaf first, like the hearing, used e-mail to great effect. However, it was the introduction of instant messaging that truly brought the deaf community into the 21st century. Whether it is through AOL IM, Yahoo messenger or MSN messenger, or newer software like Skype, typed communication between the deaf and between the deaf and hearing has become nearly instantaneous and extremely convenient. Instant messaging, almost single-handedly, has led to the near-obsolescence of TTY and TDD communication.

Instant messaging now includes the use of webcams. As the deaf communicate visually through their hands, web-camming while instant messaging has completely revolutionized deaf communication. Advancing even further, now the deaf can call one another over the telephone using their televisions to serve as videophones, a la Star Trek. Using videophones, much like the now-antiquated 711, the deaf and hearing can communicate through a relay service where the deaf person signs to an interpreter over videophone and the interpreter speaks to the hearing person over a standard telephone. Indeed, technology has now reached such heights that a hearing person can call a deaf person over the videophone relay and a deaf person can now answer himself using the internal camera and screen on his smartphone to communicate over videophone.

Needless to say, opportunities for communication between the hearing and the deaf are greater than ever in human history. These technologies should make it possible for a hearing attorney to be able to serve the deaf community better than ever and the practitioner can easily avail himself or herself of them as they are all now standard elements to any Internet service.

Originally published on March 6, 2012 in “The Legal Intelligencer Blog” and can be found here.

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