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Movin’ on Up?

Sherman Alexander Hemsley, a native of Philadelphia, better known for his role as George Jefferson in “All in the Family” and “The Jeffersons”, and later as Deacon Ernest Frye on “Amen”, died in Texas on July 24, 2012, yet remained unburied in a freezer until November 21, 2012, due to a will contest in the El Paso, Texas probate court.  Although the court there recently upheld the will and authorized the executrix to make burial arrangements, the court’s order may be appealed, leaving Mr. Hemsley, while now interred and hopefully “moving on up”, potentially in limbo.  What law applies to burial in similar situations in Pennsylvania?

As a general rule, the Courts of the Commonwealth have long recognized that “the duty to determine when, where and in what manner the body shall be buried rests with the executor or administrator.”  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).  But, this presumes that the Register accepted a will for probate, and that no one challenged the will, so that the Register granted letters testamentary to a personal representative of testator’s estate, which actually has instructions as to the disposition of testator’s remains.  Absent such clear instruction deciding on the disposition of testator’s remains generally does not fall to the personal representative of the estate.  See, Hodge v. Cameron, 132 Pa. Super 1 (1938).  A person cannot become the executor until the will is filed with the Register of Wills, it is accepted, and letters testamentary issue under seal of the Register confirming the appointment of the individual as executor of the estate.

Problematically, most Registers of Wills in Pennsylvania will not issue letters testamentary prior to disposition of the remains of the decedent and issuance of the death certificate.  Nothing in the Probate, Estate and Fiduciary Code (Title 20, “PEF”) specifically states that a death certificate must be produced to the Register in order for the Register to accept into probate testator’s will.  Among the prerequisites that the proponent of the will must produce to the Register is “a death certificate (or other appropriate proof of death)”.  Register of Wills of Philadelphia County Manual, Chapter 2 of Blue Book.  The Register may issue the letters testamentary on affidavit that someone died, provided that the death certificate is actually filed within a set period of time, subject to revocation of the letters testamentary if not timely filed.  The foregoing is uncommon and presumably the affidavit would require counsel executing the affidavit to state something regarding the disposition of decedent.  Consequently, the Courts of this Commonwealth have long recognized that under Pennsylvania’s probate system you cannot determine who is the executor or administrator and can act under the will until the party has duly qualified and has received his commission from the Register of Wills.   Potentially the executor could not qualify.  Hodge, supra.  11.

The Orphans’ Court Division has mandatory jurisdiction over the control of the decedent’s burial.  20 Pa. C.S. § 711(1).  However, the Courts have not relied on this section of the statute on its own.  See, In re Fontana, 72 Pa. D. & C.2d 287 (Allegheny County, Orphans’ Court Division, 1975) (holding that the Orphans’ Court Division lacks subject matter jurisdiction to consider a dispute between brothers regarding the use of crypts in a mausoleum).  Likewise, jurisdiction presumably includes disposition of the body via other means such as cremation, other than the granting of anatomical gifts of the body or parts of it which are governed by separate sections of the PEF.

The Courts have long held that a testator’s wishes regarding the disposal of his remains are entitled to respectful consideration, whether or not the decedent’s directions are followed.  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).

A review of the case law does not indicate any Superior Court decisions addressing a situation where a decedent provided for disposition of his remains in his will, including which cemetery/plot to use and if cremation was selected or not, which someone challenged in court prior to internment.  The common law developed several factors in determining burial disputes, such as the desire of the testator in stipulating a specific burial location or method, requesting that his remains not be disturbed, requesting that no re-internment occur, requesting that burial occur in a specific religious method, etc…  See, Florence E. Novelli and Lloyd E. Carroll v. Pamela Kay Carroll and Whitemarsh Memorial Park, 278 Pa.Super. 141 (1980).  Indeed, in Novelli, the Court relied in part on Judge Cardozo (then sitting on the New York Court of Appeals) who established not a rule, but a process, to guide a court of equity to act in an equitable manner to protect someone’s grave while allowing for the possibility of the need of survivors to make decisions regarding the deceased.  Novelli at 151 citing Judge Cardozo in Yome v. Gorman, 242 N.Y. 395, 403-05, 152 N.E. 126, 129 (1926).

In 1998 the Legislature codified the law on this subject.  Thereafter, absent clear language in a will, or provision in a power of attorney granting an agent authority to make an anatomical gift of part or all of a body (20 Pa C.S. § 8611(a)), or waiver and agreement by those individuals entitled to make burial decisions, 20 Pa. C.S. § 305 governs who may direct the disposition of decedent’s remains.  If a person died intestate or without a valid will, or valid anatomical grant (see, 20 Pa.C.S. § 305(a)), the surviving spouse has priority in deciding the disposition of the remains of their spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence.   20 Pa.C.S. § 305(b).  If decedent did not leave a spouse, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.  20 Pa. C.S. § 305(c).

The statute provides clear guidance on procedural aspects of obtaining a decision from the Orphans’ Court.  An interested party desiring to block the disposition of decedent’s remains must file with the Clerk of Orphans’ Court an emergency petition within 48 hours of the death or discovery of the body of the decedent, whichever is later.  Upon the filing of such a petition, the Orphans’ Court Division may order that no final disposition of the decedent’s remains take place until a final determination is made on the petition.   The Court then must hold a hearing to determine that “clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement” and only then shall the court “enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate”.   See, 20 Pa. C.S. § 305(d)(1).

However, in those instances when “two or more persons with equal standing as next of kin disagree on disposition of the decedent’s remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.” See, 20 Pa. C.S. § 305(d)(2).

In order to minimize the filing of petitions without merit, the statute specifically authorizes the court to award attorney’s fees if the court makes a determination regarding when the petition is not supported by clear and convincing evidence, which if brought by an heir or beneficiary would be offset against their distribution from the estate.  See, 20 Pa. C.S. § 305(d)(3).

The statute specifically authorizes the that court may require the filing of a bond, but the amount is not set.  Whether the filing of the bond will be required concurrent to the filing of the petition, or perhaps only prior to the court issuing a decree enjoining the disposition of the remains of decedent is uncertain, and presumably each county can decide their own procedure in this regards.

While the codification would appear to simplify matters, case law on the subject continues to provide guidance in this matter.  Indeed, Judge Herron recently provided some guidance on this matter and noted that Section 305 should be construed in light of the prior relevant precedent.   See, Estate of Rose Weiss, Phila O.C. No.  1463 DE of 2009 (Judge Herron citing Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007).  Judge Herron examined the issue in depth and determined that courts should look to objective criteria, particularly when it is clear that each sibling loved and cared for their parent.  Among objective criteria utilized was who the decedent chose as their agent for making health care and personal decisions.  Judge Herron noted that “although the statutory language of Section 305 became effective in 1998, the recent appellate precedent of Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007) emphasizes that the provisions of section 305 should be construed in light of the prior relevant precedent”.

In another court, the judge utilized the “closeness” test and received into evidence the emotional closeness of one interested party and the decedent, in terms of the number of telephone communications, among other factors.  See also Estate of N.P., 22 Fid. Rep. 2d 473 (Berks Cty. O.C. 2002).

So, in Pennsylvania, if a relative who is the next of kin learns that decedent died, they can block probate of the will, engage in a will contest and obtain an order delaying the burial of decedent, just like what occurred to Mr. Hemsley.  His unfortunate situation illustrates the importance of having detailed funeral, burial and related instructions in a will, power of attorney, trust and related documents, as well as the necessity of coordination between the agent under a power of attorney and proposed executor and other fiduciaries, the providers of medical services, and the funeral home.  Relatives concerned about the funeral and burial arrangements of their next of kin need to inquire into the matter, and may have to engage in costly litigation at a time when they will be emotionally disturbed by the death of a loved relative.

Judge Cardozo, more than 90 years after his opinion in  Yome, supra, remains correct in his statement that it ultimately rests with the court as a matter of equity to determine disputes about burial arrangements.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C.

Once Again, Progressive Anti-Christian Bigotry Carries a Steep Legal Cost

Last summer, in the days after the Supreme Court decided Masterpiece Cakeshop on the narrow grounds that Colorado had violated Jack Phillips’s religious-liberty rights by specifically disparaging his religious beliefs, a bit of a skirmish broke out among conservative lawyers. How important was the ruling? Did it have any lasting precedential effect?

For those who don’t recall, the Supreme Court ruled for Phillips in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.

While all agreed that it would have been preferable had the court simply ruled that creative professionals could not be required to produce art that conflicted with their sincerely held beliefs, the question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case. For example, what would happen if, in a different case, state officials called faithful Christians who seek to protect the religious freedom of Catholic adoption agencies “hate-mongers”?

In the United States District Court for the Western District of Michigan, it turns out that such rhetoric has cost the state a crucial court ruling, granted a Catholic adoption agency a vital victory, and demonstrated — once again — that anti-religious bigotry can (and should) carry substantial legal costs.

The case is called Buck v. Gordon. My friends at Becket represent St. Vincent Catholic Charities, a former foster child, and the adoptive parents of five special-needs kids. The facts are relatively complicated, but here’s the short version: St. Vincent upholds Catholic teaching by referring same-sex and unmarried families who seek foster and adoption recommendations and endorsements to agencies that have no objection to providing those services. There is no evidence that St. Vincent has prevented any legally qualified family from adopting or fostering a child. In fact, same-sex couples “certified through different agencies” have been able to adopt children in St. Vincent’s care.

In 2015 the state of Michigan passed a statute specifically designed to protect the religious liberty of private, religious adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney general, took office. During her campaign, she declared that she would not defend the 2015 law in court, stating that its “only purpose” was “discriminatory animus.” She also described proponents of the law as “hate-mongers,” and the court noted that she believed proponents of the law “disliked gay people more than they cared about the constitution.”

Then, in 2019, the attorney general reached a legal settlement in pending litigation with the ACLU that essentially gutted the Michigan law, implementing a definitive requirement that religious agencies provide recommendations and endorsement to same-sex couples and banning referrals. The plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a preliminary injunction.

His reasoning was simple. There was ample evidence from the record that the state of Michigan reversed its policy protecting religious freedom because it was motivated by hostility to the plaintiffs’ faith. Because Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t be truly considered a “neutral” law of “general applicability” that would grant the state a high degree of deference in enforcement.

Instead, the state’s targeting led to strict scrutiny. Here’s Judge Jonker:

Defendant Nessel made St. Vincent’s belief and practice a campaign issue by calling it hate. She made the 2015 statute a campaign issue by contending that the only purpose of the statute is discriminatory animus. After Defendant Nessel took office, the State pivoted 180 degrees. . . . The State also threatened to terminate its contracts with St. Vincent. The Summary Statement’s conclusion – that if an agency accepts even one MDHHS child referral for case management or adoption services, the agency forfeits completely the right to refer new parental applicants to other agencies based on its sincerely held religious beliefs – is at odds with the language of the contracts, with the 2015 law, and with established State practice. Moreover, it actually undermines the State’s stated goals of preventing discriminatory conduct and maximizing available placements for children.

The last point is key. As stated above, there was no evidence that St. Vincent prevented any qualified couple from adopting. In fact, if the state forced St. Vincent’s to choose between upholding the teachings of its faith or maintaining its contractual relationship with the state, then it risked shrinking the available foster or adoption options in the state of Michigan. The state demonstrated that it was more interested in taking punitive action against people of faith than it was in maintaining broader access to foster and adoption services for its most vulnerable citizens.

The judge rightly called the state’s actions a “targeted attack on a sincerely held religious belief.” Once again, Masterpiece Cakeshop pays religious-liberty dividends. Once again, a court declares — in no uncertain terms — that in the conflict between private faith and public bigotry, religious liberty will prevail.

by David French in the National Review on 9/27/19 and can be found here.

No I.D.? No Problem – Judge Blocks Pennsylvania Voter I.D. Law

            With the presidential election just a few weeks away, the upheaval in Pennsylvania over what voters must take with them to the polls has sparked a series of battles which is likely to continue.  Temporarily however, it seems that opponents of the photo I.D. law have garnered much success.

The new law, codified at 25 P.S. §§ 2602, 2626, 3050 and otherwise known as Act 18, signed in March 2012 by Republican Governor Tom Corbett in order to set a “simple and clear standard to protect the integrity of our elections,” mandates that potential voters furnish a standard government issued identification card in order to be able to cast a vote, has been a continual subject of political controversy especially in the wake of the upcoming presidential election.

The proposed law requires that “[a]t every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification.  The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done.”  25 P.S. § 3050.  Citizens voting in-person on Election Day must present one of several specified forms of photo identification.  This proof of identification must include the name of the individual, a photograph of the individual, and an expiration date that has not passed.  25 P.S. § 2602.

Several individuals and organizations (“Petitioners”) sought to enjoin the Commonwealth of Pennsylvania, Governor Thomas W. Corbett, the Secretary of the Commonwealth Carol Aichele, and their agents, servants, and officers from enforcing or otherwise implementing Act 18 and filed a request for preliminary injunctive relief with the Commonwealth Court of Pennsylvania for that purpose.  In this case, initially docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 3332376 (Pa. Commw. Ct. 2012), Petitioners alleged that Act 18 and the photo identification requirement under the same violated the Pennsylvania Constitution on three (3) grounds:

  1. Act 18 unduly burdens the fundamental right to vote in violation of Article I, Section 5 of the Pennsylvania Constitution which states, in pertinent part, “Elections shall be free and equal…” PA. CONST. art. I, § 5.
  2. Act 18 imposes burdens on the right to vote that do not bear upon all voters equally under similar circumstances in violation of the equal protection guarantees of Article I, Section 1 and 26 of the Pennsylvania Constitution.
  3. Act 18 imposes an additional qualification on the right to vote in violation of Article VII, Section 1 of the Pennsylvania Constitution.

As the Petitioners did not possess a valid form of identification as required under Act 18, they argued that the new law would serve to cause them to be disenfranchised and/or severely burdened to comply with a new requirement.   The Commonwealth Court analyzed Act 18 under a standard that “weigh[ed] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.”  Crawford v. Marion County Election Board, 553 U.S. 181 (2008).  The burden “however slight … must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.”  Crawford, 553 U.S. at 191.  Rather than apply a strict scrutiny standard in its analysis, the Commonwealth Court adopted the standard announced in Anderson v. Celebrezze, 103 S.Ct. 1564 (1983), and applied the “flexible standard” in their analysis.  Utilizing this standard, the Commonwealth Court found that the requirement of Act 18 is a “reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life.  The Commonwealth’s asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden.”  Thus, the preliminary injunction was denied.  However, the Commonwealth Court noted that if strict scrutiny were to apply, they may have reached a different conclusion.

Upon appeal of the Commonwealth Court’s decision, the Supreme Court of Pennsylvania held that the Commonwealth Court erred by not conducting an assessment of availability of alternative photo identification cards prior to ruling on the preliminary injunction request seeking to delay the implementation of Act 18 stating that “the Commonwealth Court has made a predictive judgment that the Commonwealth’s efforts to educating the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement.  This judgment runs through the Commonwealth Court’s opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek.”  This case is docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4075899 (Pa. Sept. 18, 2012).  The Supreme Court’s ruling remanded the matter to Commonwealth Court to make a decision by October 2, 2012 and make a present assessment of the actual availability of the alternate identification cards, directing the Commonwealth Court to conduct a an analysis of whether the procedures used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards.  Applying this analysis, the Supreme Court stated that if the Commonwealth Court found that the law would not result in voter disenfranchisement, the court would be obliged to enter a preliminary injunction.

After hearing two (2) days of testimony, on October 2, 2012 Pennsylvania Commonwealth Court Judge Robert Simpson ruled that state officials can ask for photo I.D. at the polls but cannot restrain those who do not possess identification from voting as the underlying offending conduct is not the request to produce photo I.D. but rather one of voter disenfranchisement.

In his ruling, docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4497211 (Pa. Commw. Ct. October 2, 2012), Judge Simpson granted a preliminary injunction that temporarily halts enforcement of the law until after the November 6, 2012 presidential election citing the disqualification of eligible voters as the reason: “Consequently, I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election.  Under these circumstances, I am obliged to enter a preliminary injunction.”  Despite a rise in the number of state issued photo identifications, the number was not significant enough to convince Judge Simpson that potential eligible voters would be prevented from voting if the new law were implemented.  Even with the streamlined procedures outlined by the new law to allow voters without I.D. cards to obtain them, Judge Simpson stated, “I expected more photo ID’s to have been issued by this time.  For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”

The result?  Judge Simpson’s ruling means that: (1) the same policy that was in effect during the state’s primary earlier this year will continue to be in effect for the upcoming presidential election.  Voters, regardless of compliance with the law, will be able to have their vote count in the 2012 presidential election; (2) those who cast provisional ballots will not be required to return to their county election board within six days of the election to show proof of identification in order to have their vote count.

Pennsylvania, which is a swing state, has twenty (20) electoral votes up for grabs with President Obama currently leading according statewide opinion polls.  Yet, the Commonwealth of Pennsylvania has acknowledged that it has never seen a case of in-person voter fraud.

Although the new law may not be in effect in Pennsylvania for the upcoming November 2012 presidential election, this does not mean to say that it will never be implemented in future elections.  Judge Simpson’s ruling did not strike down the entire law as being unconstitutional.  In fact, he rejected efforts from those challenging the law to prevent state officials from educating voters about the Voter I.D. requirement.  Challengers to the law have also conceded that the part of the law which requires proof of identification for absentee voting does not harm would-be voters and may be implemented.

For Republicans who had hoped of having this law implemented for the upcoming presidential election in order to narrow the margin in favor of GOP presidential candidate Mitt Romney, all hope is not lost.  Although people may not be required to have photo identification for the presidential election, they are made aware of the law and believe that they will need it.  On the other hand, Democrats feel that the injunction is only a temporary victory, rather than an absolute victory.

Although the voter I.D. requirement may not have an impact on the upcoming November 2012 presidential election, Judge Simpson’s ruling is surely to invoke an appeal.  It waits to be seen whether future elections will be affected, but for now, at least temporarily, eligible voters can rest assured that they will be able to vote without fear of being turned away at the polls.

By Theodore Y. Choi, Esquire and originally published in Upon Further Review on October 24, 2012.

Supreme Court Spotlight: Obamacare – Victory or Defeat?

            In 2010 Congress enacted the Patient Protection and Affordable Care Act (hereinafter referred to as “Act”), which was championed by President Barack Obama and is commonly referred to as “Obamacare.”  The Act was created in an effort to increase the number of Americans covered by health insurance and decrease the costs associated with health care coverage.  On June 28, 2012, in an eagerly awaited decision, the U.S. Supreme Court (“Supreme Court”) ruled on the provisions contained in the Act.

The main and most controversial portions of the Act are the individual mandate provision and the Medicaid expansion provisions.

The individual mandate provision of the Act outlines that:

  • Americans, unless exempt, are required to maintain “minimum essential” health coverage. 26 U.S.C. §5000A.
  • For individuals who are not exempt, and do not receive health insurance through an employer or government program, insurance must be purchased from a private company.
  • Exempt individuals include those with very low incomes who are members of certain religious groups, or who face insurance premiums that would exceed 8% of family income even after including employer contributions and federal subsidies.

Beginning in 2014, all those who do not comply with this requirement will be required to make a “shared responsibility payment” to the Federal Government.  26 U.S.C. §5000A(b)(1).  This payment is classified by the Act as a “penalty” which must be paid to the Internal Revenue Service with an individual’s taxes and is assessed and collected in the same manner as tax penalties.  26 U.S.C. §§5000A(c), (g)(1).

The purpose of the Medicaid expansion provision of the Act is to enhance and expand the scope of the current Medicaid program and increase the number of individuals that States must cover.  As it stands currently, the Medicaid program provides federal funding to assist pregnant women, children, needy families, the blind, elderly and the disabled in obtaining the necessary medical care but does not provide any coverage for childless adults or even adults with children whose income does not fall significantly below the federal poverty level.  Under this provision:

  • States must provide Medicare coverage to adults with incomes up to 133% of the federal poverty level, whereas currently, many States only cover adults with children only if their income is considerably lower than the federal poverty level.
  • In order to effectuate the increase in Medicaid coverage, the Act would increase federal funding to cover the States’ costs. 26 U.S.C. §1396d(y)(1).
  • If a State fails to comply with the Act’s new coverage requirement, it would not only lose the federal funding for those requirements, but would also lose its Medicaid funding altogether. 26 U.S.C. §1396(c).

It is easy to discern why the mandates of the Act sparked a controversial debate which will continue well into the future.  In a narrow 5-4 decision, the Supreme Court upheld the individual mandate provision of the Act but struck down the Medicaid provision.  In general, the Democrats celebrated the idea of Americans being provided access to health insurance, but Republicans contend that the ruling is a dangerous expansion of government.

First and foremost, the Supreme Court ruled that the Anti-Injunction Act was not a bar to the lawsuit challenging the constitutionality of the Act.  The Anti-Injunction Act bars suits where the payment is classified as a “tax.”  The mere label of the payment in the Act as a “penalty” rather than a tax, was controlling in determining whether the Anti-Injunction Act was a bar to a lawsuit.  However, the Supreme Court warns that the label, although determinative of whether the Anti-Injunction Act is applicable, was not controlling in assessing whether the payment is a tax for purposes of the Constitution.

In its ruling, the Supreme Court found that the individual mandate provision, although impermissible under the Constitution’s Commerce Clause or the Necessary and Proper Clause, was valid as a tax.  In striking down the individual mandate provision under the Commerce Clause, the Supreme Court held:

  • The Constitution grants Congress the power to regulate Commerce – a power which presupposes the existence of commercial activity to be regulated;
  • The Act sets out to create commerce by compelling individuals to become active in the marketplace on the premise that the failure to do so affects interstate commerce and thus, the Act did not regulate existing commercial activity.
  • The Act would punish individuals for doing nothing and would open a vast domain of Congressional authority.

Similarly, under the Necessary and Proper Clause of the Constitution, the Supreme Court held:

  • The Necessary and Proper Clause of the Constitution provides authority to Congress to exercise authority derivative of, and in service to, a granted power.
  • The individual mandate clause of the Act gives Congress the ability to create the necessary prerequisites within its granted powers in order to draw those who would normally fall outside of its realm, within its regulatory powers.

Despite failing under the Commerce Clause and the Necessary and Proper Clause, the Supreme Court found that the individual mandate provision was proper under the Taxing Clause.  In following past precedent, the Court took a functional approach to determine whether the individual mandate provision of the Act was properly within Congress’ power to tax. Under such analysis, the Supreme Court determined that “[t]he payment is not so high that there is really no choice but to buy health insurance; the payment is not so limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.”  The Supreme Court found that the individual mandate provision of the Act does not impose any legal consequences for failure to obtain health insurance other than requiring a payment to the IRS.  Furthermore, as a tax on insurance is unlike other direct taxes, it does not need to be apportioned to a State’s population to be in compliance with the Direct Tax Clause.

In upholding the individual mandate provision, Chief Justice John Roberts stated, “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.”  He also stated, “the federal government does not have the power to order people to buy health insurance … the federal government does have the power to impose a tax on those without health insurance.”

Contrastingly, the Supreme Court struck down the Medicaid provision of the Act finding:

  • The provision violated the Constitution by threatening the loss of a State’s existing Medicaid funding for failure or refusal to comply with the proposed expansion.
  • The Spending Clause of the Constitution presupposes a State’s voluntary and knowing acceptance of a program.
  • The Medicaid provision of the Act threatens to terminate other grants as a means of pressuring States to accept the Medicaid provision of the Act, which is not a power provided to Congress under the Constitution and runs afoul of our Nation’s system of federalism.

Nevertheless, the upholding of the individual mandate provision of the Act was the subject of much praise by Democrats.  Supporters of the national health care system stated that the law would reduce health care costs, expand coverage and protect consumers.  In place of creating a national health system, the law bans insurance companies from denying coverage to people with pre-existing medical conditions, bans insurers from setting a dollar limit on health coverage payouts and requires them to cover preventive care at no additional cost to consumers.

Following the decision, in a televised White House statement, President Barack Obama stated: “today’s decision was a victory for people all over this country whose lives are more secure because of this law.”  The underlying principle behind the Supreme Court’s decision was to ensure that no American should go bankrupt because of illness.

However, the new decision has been met with much criticism.  Critics of the new law claim that the new law gives the government too much power to make decisions over issues of what should be a personal decision.  Republican Rep. Michele Bachmann of Minnesota stated that the ruling “means now, for the first time in the history of the country, Congress can force Americans to purchase any product, any service.”

The Supreme Court’s ruling comes at a time very close to the 2012 Presidential election.  Presidential nominee Mitt Romney criticized the ruling as a bad law.  “What the court did not do in its last session, I will do on the first day if elected President of the United States, and that’s to repeal Obamacare.”  On the opposite end of the spectrum, President Obama stated, “I know the debate over this law has been divisive.  It should be pretty clear that I didn’t do this because it was good politics.  I did it because I believe it is good for the country.”  Now that the stage has been set, the extent of the beneficial or detrimental effects of the new law remains to be seen.

This is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article was originally published in Upon Further Review on July 18, 2012.

Marriage decline blamed on lack of ‘economically attractive’ men

But not “economically attractive” men.

The nation has seen a steady decline in marriages and a new study by Cornell University blames it on a shortage of economically attractive men for unmarried women to marry.

“Most American women hope to marry but current shortages of marriageable men – with a stable job and good income – make this increasingly difficult, especially in the current gig economy of unstable low-paying service jobs,” said lead author Daniel T. Lichter, PhD, of Cornell University.

The study focused on opposite-sex couples.

Researchers looked at the sociodemographic characteristics of unmarried women’s potential spouses who resemble the husbands of otherwise comparable married women.

They found different racial groups, especially black women, face serious shortages of potential marital partners, as do unmarried women with either low or high socioeconomic status.

According to the study, estimated potential “dream” husbands had an average income about 58% higher than the actual unmarried men currently available to unmarried women.

They are also 30% more likely to be employed and 19% more likely to have a college degree.

“Marriage is still based on love, but it also is fundamentally an economic transaction,” said Lichter. “Many young men today have little to bring to the marriage bargain, especially as young women’s education levels on average now exceed their male suitors.”

By Blanca Rios in the Journal of Marriage and Family. on September 4, 2019.

Did The Sexual Revolution Give Birth To Identity Politics?

Did the sexual revolution give birth to identity politics? In her new book, out today from Templeton Books, Mary Eberstadt make a compelling case that it did. The central claim of the book is that the Western family’s mass disintegration, caused by the sexual revolution, has left a gaping hole of identity that many people are trying to fill with racial and sexual demographics.

It is rare for a book in this day and age to make such a sweeping claim, yet with a truckload of data and evidence Eberstadt makes her case appear more and more plausible. She opens with a familiar but robust account of the parade of horribles that identity politics has wrought. Political correctness, clamping down of speech, societal disunity, in general just a breakdown of liberal norms are explored in turn.

“Who am I?” Eberstadt writes, “An illiterate peasant in the Middle Ages was better equipped to answer that question than many people in advanced societies this century. He may only have lived until age 30 – but he spent his days among family and in towns, practicing a shared faith, and thus developed a vivid sense of those to whom he was elementally connected…”

There can be little question that she is correct in asserting that in modern Western life those elemental connections are badly strained. And it does strike at the core question of “Who am I?” One piece of evidence she uses is a study that showed that children of divorced parents answered yes to the question, “Do you feel like a different person with each parent,” at extremely high rates. This slipping of self is a gateway to finding one’s true identity in something other than family and community.

In the absence of an assumed, and yes, imposed, identity, all manner of identities might and do flourish. We see this at work with a fundamental difference between transgenderism and homosexuality. Even when homosexuality was far more disdained in our society than it is now, the percentage of homosexuals was about the same. But with transgenderism, we see sharp spikes now that it is not only accepted, but applauded.

I would place it later, but her argument that black feminists’ adversarial approach, even and especially towards black men, marks some kind of beginning makes sense. Eberstadt points out that their grievances were announced just as the black family was dissolving in ways that would soon be mirrored by other communities.

Critics, as Eberstadt well knows and addresses, will view “Primal Screams” as a justification to take back hard-won feminist victories, to put women back in the maternity ward and kitchen. As reasonable and rational as her insistence that this is not her aim is, it will likely fall on many deaf ears. In no small sense, this makes the work a very courageous one. It also proves her point.

The final three chapters are dedicated to short commentary about Eberstadt’s thesis by Rod Dreher, Mark Lilla, and Peter Thiel. This is an unconventional thing to do, perhaps the result of a desire to make the work more marketable. But it does good service to the book, with such a broad, “Mary explains it all” approach; their takes lend the ideas certain gravity. Dreher is particularly adroit in his focus on the loss of organized religion as an adjacent phenomenon.

By David Marcus and published in The Federalist on August 26, 2019 and can be found here.

Social Media Sites “Likes” New Law’s Status

In the episode entitled “The Barbarian Sublimation” of the television show The Big Bang Theory, Sheldon complains to his roommate Leonard that the addiction of their neighbor Penny to online gaming, and her constant questioning about how to defeat certain boards and enemies, has caused him great aggravation and detracted from his daily night’s sleep.  When Leonard asks Sheldon why he doesn’t simply tell Penny to leave him alone, Sheldon replies, “I did! I told her: I texted her, I sent out a very emphatic Twitter, I even changed my Facebook status to ‘Sheldon Cooper wishes Penny would leave him alone!’ I don’t know what else to do!”

Now more than ever, people are using social media sites as their primary means of communication.  The proliferation of social media sites such as Facebook, MySpace, LinkedIn, and Twitter have allowed people to create a virtual identity as an extension of their actual, daily lives.  The staggering growth in the number of users using social media sites has overcome the traditional means of communication giving it a major push towards becoming obsolete.  As of the year 2011, the Pew Internet & American Life Project reports that 65% of online adults now use social networking sites, up from 61% just a year ago.  In fact, the use of social media sites have permeated our daily lives to such a significant extent that only email and Internet search engines, such as Google, accounts for more time spent on the Internet.

It comes with no surprise that the expansion of the social media revolution has brought about significant changes to the employment landscape.  As personal information is easily accessible through one’s social media page, employers have utilized this information to make employment decisions such as hiring, firing, and when conducting background checks.  Recently, even with the plethora of information that could be garnered from an employee’s social media page, new cases have suggested that employers must tread with caution before accessing and using this information when making employment decisions.

One of the most recent challenges to an employment action based on information gained from an individual’s personal social media site came across the National Labor Relations Board (“NLRB”).  On October 27, 2010, the NLRB’s Hartford Regional Office issued a complaint against the American Medical Response Team of Connecticut, Inc. (“AMR”) which alleged that an ambulance service unlawfully terminated an employee for making negative remarks about her supervisor on her personal Facebook page.  In this case, AMR’s employee, Dawnmarie Souza, was asked by her supervisor to complete an incident report in response to a customer complaint filed against her.  This was to be performed and presented during an investigatory interview.  As Souza had reasonable cause to believe that disciplinary action would result against her, she requested Union representation during this interview.  However, AMR denied her request and even threatened her with discipline for making such a request.

When Souza returned home later that day, she logged into her personal Facebook page and posted negative remarks about her supervisor using several expletives.  Her comments drew supportive responses from her co-workers and led to further negative comments about the supervisor from Souza.  AMR suspended Souza and later terminated her based on her Facebook postings on the grounds that they violated the company’s Internet policy which prohibited employees from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

Following an investigation into Souza’s unfair labor practice charge, the NLRB issued a complaint alleging that AMR’s Internet policy, as well as their act of terminating Souza, interfered with her rights to engage in protected concerted activity under the National Labor Relations Act (“NLRA”).  Most states, including Pennsylvania, abide by the Employment-At-Will Doctrine which provides that an employer is free to hire and fire an employee for good cause, bad cause, any cause, or no cause at all, and the employee is equally free to quit, strike, or otherwise cease work, subject to termination in violation of public policy or based on discriminatory motives.  In the case of AMR, the NLRB has seemed to create an extra niche into the protections afforded to employees.

Section 7 of the NLRA states that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights.  Although it is not specifically defined, the term concerted activity generally encompasses two (2) or more employees acting together in furtherance of matters of mutual interest, such as issues regarding employee compensation, benefits or improving workplace conditions.  To engage in a concerted activity, an employee must work with or on the authority of another co-worker and not just simply for his own interests.  However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity.  The NLRB has extended the protections of employees and their right to comment on social media sites regarding their wage, hours and working conditions, regardless of whether the employer is unionized or not.

In the case of Atlantic Steel Co., the NLRB developed a four part test to determine whether an employee’s activities lose their protected status due to insubordinate statements.  Specifically the board considers (1) the place of the discussion, (2) the discussion’s subject matter, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practice.

The case against AMR was recently settled whereby AMR agreed to (1) revise its overly broad Internet policy rules; (2) ensure that its rules do not improperly restrict employees from discussing their wages, hours and terms and conditions of employment with other co-workers while not at work; and (3) not discipline or discharge employees for engaging in such conduct.  Similarly, recent NLRB decisions display a recent trend towards deciding that employees do not lose the protections afforded to them under the NLRA notwithstanding their premeditated use of profane or obscene language toward a supervisor.  In fact, in the case of AMR, Acting General Counsel Lafe Solomon equated Souza’s Facebook postings with that of a typical water cooler discussion between co-workers discussing their working conditions.  Even though the case was settled, it does not provide a blanket protection in all instances of comments made through social media networks.  Nevertheless, it serves as a useful reminder that employers can no longer draft broad employment policies and prohibit employees from making disparaging or criticizing their employer or supervisors.  Public employers should also be weary in that any policy that restricts an employee’s ability to post public comments while off duty on a social networking site or Internet may implicate that employee’s First Amendment rights.

Although the NLRB’s position on this new protection has yet to be subject to judicial scrutiny, for now it seems that social media networking rights have prevailed over employer control.

This is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article  was originally published in Upon Further Review on January 11, 2012.

Meritocracy Is Killing High-School Sports

Athletics are supposed to be great equalizers in American life. But they’re being hijacked by the wealthy.

If you want to understand how income inequality and opportunity-hoarding by the rich can combine in toxic ways to hurt the less fortunate, you could look in all the usual places—elite colleges, housing policy, internships.

Or you could look at high-school sports.

In the 2018–19 school year, the number of kids participating in high-school sports declined for the first time in three decades. At least, that was the headline; the reality was even worse. Thirty years ago, the high-school population itself was shrinking, due to a short-term falloff in births after the Baby Boom. This past school year is the only period on record when high-school sports participation declined even as school attendance increased.

The most obvious reason for the decline of high-school sports is that football, the Friday-night-lit mainstay of the high-school experience, is withering on the vine, likely due to fears about injuries and head trauma. The number of high-school boys playing the sport fell for the fifth straight year in 2018–19, and fewer male high schoolers now play football than at any other time this century. Many schools cannot field a full team and have resorted to a six-on-six version, according to the National Federation of State High School Associations (NFHS). America’s most popular sport on television could be close to a full-blown crisis.

But it’s not just football. Basketball, baseball, golf, and lacrosse are all losing players too. The number of girls playing high-school basketball has fallen to its lowest level since the early 1990s. Head injuries can’t explain all that. Neither can school funding or the number of high-school teams, which are steady, according to the NFHS. Something else is going on.

So is it screens?

Smartphones conveniently take the blame for just about every other societal ill, from rising anxiety to declining sex. But Farrey assured me that screen culture is not the culprit here. What’s telling, he said, is that the children of high-income parents are playing as much as ever. Kids from homes earning more than $100,000 are now twice as likely to play a team sport at least once a day as kids from families earning less than $25,000.

The deeper story is that the weed of American-style meritocracy is strangling the roots of youth sports. As parents have recognized that athletic success can burnish college applications, sports have come to resemble just another pre-professional program, with rising costs, hyper-specialization, and massive opportunity-hoarding among the privileged.

Before kids enter high school, they tend to participate in youth sports leagues, which have become one big pay-to-play machine. It’s now common for high-income parents to pull their kids out of the local soccer or baseball leagues and write thousand-dollar checks to join super-teams that travel to play similar kids several counties away. As I wrote last year, it’s not a crime for parents to spend money on their children. But as travel teams hoard talented (and, typically, high-income) kids, they leave behind desiccated local leagues with fewer resources and fewer players. As a result, many low-income children lose the sports habit (or never gain it to begin with), and simply stop playing altogether by the time they get to high school.

Another crucial factor is the rise in sports specialization. Once again, it might seem harmless that ambitious parents and coaches want talented kids to pick a sport and focus on it. But the frenzy around early specialization might be misplaced. A 2015 paper from Harvard concluded that specialization—defined as at least one year of intensive training in a single sport that requires quitting other activities—increased risks of “injury and burnout.” In July, ESPN published a two-part story on specialization in basketball and its correlation with injuries and emotional exhaustion. One coach likened the overwork of young athletes to “an epidemic.”

What’s more, it’s simple math that specialization means fewer kids per high-school sports team. A teenager who plays three sports counts as three distinct participants in the NFHS data. So the decline in participants partly reflects the fact that students who, 20 years ago, played football in the fall, basketball in the winter, and baseball in the spring are now just focusing entirely on, say, basketball.

“Athletic recruiting is the biggest form of affirmative action in American higher education,” says Philip Smith, a former dean of admissions at Williams College, has said. (About 30 percent of Williams students are recruited athletes.) In the 1990s, Division I and Division II colleges annually distributed less than $300 million in student-athlete scholarships. Today that figure ismore than $3 billion.

You might think most of that scholarship money is going to help kids from poor families who couldn’t otherwise afford college. That’s not the case. In 2010, just 28 percent of Division I basketball players were first-generation college students, meaning they likely came from low-income families. Five years later, that figure has fallen by nine percentage points. Today, fewer than one in seven students receiving athletic scholarships across all Division I sports come from families in which neither parent went to college. Farrey calls this the slow-motion “gentrification” of college sports.

This process starts in youth and high-school sports. Both historically served as a pipeline to flagship universities for low-income kids. But when they’re shut out from pricey travel leagues and the expensive coaching that early specialists receive, lower-income kids are denied not only the physical benefits of playing sports, but also the jackpot that is college recruitment and Division I and II scholarships.

Institutions that were meant to be opportunity-equalizers for the rich, poor, and everybody in between—community youth sports leagues, public high schools, the American college system—are being stealthily hijacked to serve the primary goal of so many high-income parents, which is to replicate their advantages in their children’s generation.

By Derek Thompson and published on August 30, 2019 in The Atlantic and can be found here.

Taking “Aim” at the Second Amendment

            The United States Constitution provides the very framework in which our nation is based, providing for the organization of the United States government and the establishment of the relationship between the federal government with the states, citizens, and all people within the United States.

The Second Amendment of the Constitution, which is part of the United States Bill of Rights, protects the right of the people to keep and bear arms.  The extent to which this right applies remains the subject of dispute as courts attempt to balance an individual’s right under the Second Amendment against governmental interests in adopting regulations to restrict gun ownership and control.  The Second Amendment was found to be fully applicable to both state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago.  Thus, there has been a constant battle between gun rights as safeguarded by our Constitutional and the need for public protection and safety.

The right to gun ownership was established in Heller v. District of Columbia, where it was found that individuals have a right to own a gun in self-defense to protect their hearth and home.  However, this right did not provide an unfettered right to gun ownership.  In assessing a core Second Amendment right under the intermediate scrutiny standard, the court in Heller determined that gun registration requirements effectuated the important governmental interest in the public interest of promoting public safety.  Similarly, Heller limited the types of guns that could be owned by individuals to only those that were in common use and typically possessed by law abiding citizens.  Assault weapons and large capacity ammunition feeding devices were found to be “dangerous and unusual” and not to fall within the purview of rights provided under the Second Amendment.

The extent to which the right to carry guns in areas outside of the home remains the subject of dispute where two cert petitions are currently being argued before the Supreme Court.  In Masciandaro v. United States of America, the petitioner was convicted for possessing a loaded gun in the trunk of his car while in a national park area.  In applying the intermediate scrutiny standard, lower courts found that a regulation prohibiting the carrying or possessing of a loaded handgun in a motor vehicle did not violate an individual’s Second Amendment right as there was a substantial government interest in providing a safe environment for persons who visit and make use of the national parks.  In his appeal before the Supreme Court, Masciandaro argues that the Second Amendment right to possess a gun within one’s home should be extended to allow the possession of guns while traveling on public highways.

Similarly, in Williams v. State of Maryland, another case currently before the Supreme Court, purports that the Second Amendment provides for the right of an individual to carry a gun in his backpack while traveling to his house.  Williams was arrested after an officer observed him rifling through his backpack near a wooded area and then hiding his gun in the bushes.  The Court of Appeals of Maryland upheld his conviction on the grounds that Williams lacked standing to challenge the statute and handgun regulations as a violation of the Second Amendment since he failed to file an application to obtain a permit to carry a firearm, even though he attempted to argue that restrictiveness of the state law to obtain a gun permit was the reason he was unable to obtain one.  Nevertheless, it was found that Maryland’s statute prohibiting the wearing, carrying, or transporting a handgun, without a permit and outside of one’s home fell outside the scope of the protections afforded under the Second Amendment.

The Constitution provides for the very framework in which our nation is founded.  It provides the groundwork for the rights that we enjoy today and is the catalyst which has shaped our nation.  Yet, the rights entailed in the Constitution have not been deemed to be an absolute right.  Whether the Supreme Court will recognize and extend Second Amendment rights to protect the right to carry firearms outside of one’s home remains to be seen.

By Theodore Y. Choi, Esquire and published in Upon Further Review on September 13, 2011.

CONSIDERING ADDITIONAL TYPES OF DISABILITY OR LEGAL RELIEF FOR YOUR SOCIAL SECURITY DISABILITY CLIENTS

By Faye Riva Cohen, Esq., assisted by Gina Y. Mosley, Esq., of The Law Office of Faye Riva Cohen, P.C., Philadelphia, PA

Published in National Organization of Social Security Claimants’ Representatives Forum

March 2010 and April 2010

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death.  That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies.  Therefore, a thorough interview with a potential client should determine:

  • Whether that person suffered an injury at the workplace;
  • Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
  • Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
  • Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
  • Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
  • Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
  • Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS

Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness.  The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions.  The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent.  See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability.  Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary.  That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions.  However, these employers will not be required to make accommodations which will cause an undue hardship.  Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions.  It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations.  Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin.  U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness.  Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

 THE PREGNANCY DISCRIMINATION ACT

The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (”FMLA”).  An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions.  For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options.  The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave.  In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave.  Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA.  As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child.  One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more.  Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age.  29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed.  The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it.  Consider this protocol if a severance agreement concludes one’s client’s disability matter.

 THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off.  He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time.  Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible.  Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability.  Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private.  Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance.  Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

 FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

 The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses.  Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled.  The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded.  There is a three year statute of limitations from the date of the injury.  Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

 SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits.  However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim.  In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process.  This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans.  Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue.  The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process.  Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment.  Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits.  The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland.  A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process.  UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891).  It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974).  In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing.  Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).

Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

 In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA.  The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief.  Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

 However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available.  For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

 Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits.  The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process.  It may be far more cost effective for an employer to give these concessions early in the negotiation process.  It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

CONCLUSION

 It is not unusual to have a client suffering from a job-related injury or illness who would have been able to continue to work given a reasonable accommodation under the ADAAA or following a FMLA leave. Instead, many employers terminate, lay off, or force these employees to resign in violation of the law and the public policy exception to the employee-at-will doctrine and the aforementioned statutes, depending on state law.  That client, in addition to the receipt of Social Security disability benefits, could potentially receive worker’s compensation benefits, short and/or long term disability benefits, retirement disability and/or a settlement from an employer due to alleged violations of one of the civil rights acts or policies.  Note that there may be financial offsets from receipt of more than one of these types of benefits. Also, a negotiated severance agreement or settlement may include severance pay, extension of insurance benefits and attorney’s fees and costs for a client.

In conclusion, there is no doubt, as outlined by the various remedies above, that the disability field of law is often confusing as it requires interaction with various laws and policies which often have not only varying, but conflicting, burdens of proof.  However, a practitioner who is at a minimum familiar with other possible remedies can be of great help to his client. Also, this help may result in additional sources of income to the client and to the practitioner who undertakes these additional claims or refers them to other attorneys and is able to collect referral fees depending on state guidelines.

 

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