PENNSYLVANIA
LEGAL UPDATE
FALL 2004 ISSUE
CALCULATING
WORKERS' COMPENSATION BENEFITS
The Pennsylvania Workers' Compensation
Act takes away from employees their right to sue their employers for
injuries they suffer in the course and scope of their employment. However,
the loss of the right to sue is balanced by the strict liability that
the Act imposes on employers. With few exceptions, when employees are
injured while working, they automatically are entitled to the medical
benefits and income benefits provided by the Act.
An injured employee need not prove that
the employer was negligent, and any negligence or fault on the employee's
part does not reduce or eliminate the employee's entitlement to benefits
for work-related injuries. In two recent rulings, Pennsylvania's courts
have clarified how these benefits are calculated.
Average Wages
Depending on the nature and severity
of the work-related injury, an injured employee is entitled to collect
a percentage of his or her average wage for a period of weeks or years.
Since 1966, an injured employee's average wage generally has been calculated
by averaging the three highest of the past four calendar quarters. The
Pennsylvania Supreme Court recently ruled that an employee's periods
of part-time work while he or she was a high school student are
not to be included in the average wage calculation if he or she
is injured after stepping up to full-time status.
In this case, a heating and air conditioning
company employee was severely injured when a fork-lift truck fell on
him. The injured employee had worked part-time for the company for almost
a year while in high school. The accident occurred shortly after the
employee assumed full-time work with the company following his high
school graduation.
Initially, the injured employee's benefits
were calculated mostly from his part-time pay since his most recent
pay periods were largely part-time. However, the Pennsylvania Supreme
Court awarded him benefits based only on his full-time pay, holding
that the formula for calculating average wages does not apply "where
it would lead to a grossly and demonstrably inaccurate measure of a
worker's average weekly wage." The court stressed the fact that
the injured employee was a student during his part-time employment.
Flex Dollars
In another case, an employee suffering
a wrist injury claimed that his average wage should have included his
"flex dollars." As do many employers, the injured employee's
company offered a compensation package that included additional benefits
in the form of flex dollars that employees could take as wages or that
they could apply to life insurance, disability insurance, health insurance,
vision care, dental care, or retirement accounts.
The injured employee had elected to take
all of his flex dollars in medical and dental coverage. But he argued
that, since he was permitted to take the dollars as wages if he chose,
their value should be included in his average wage for the calculation
of his workers' compensation benefits.
The court rejected his claim, noting
that the Act specifically excludes from calculation of the average weekly
wage any employer contributions to retirement, pension, health, and
welfare benefits. Moreover, fairness to other injured workers was also
an issue. Noting that employees who opt for benefits from their flex
dollars do not pay taxes on the value of the benefits they receive,
the court ruled that it would be unfair to later permit those employees
to receive higher workers' compensation wages after an injury, effectively
placing them at the same level of workers' compensation benefits enjoyed
by employees who previously did pay taxes on their flex dollars.
ADVERTISING
ALCOHOL TO COLLEGE STUDENTS
In 1996, the Pennsylvania Legislature
amended the state Liquor Code to prohibit "any advertising of alcoholic
beverages" in any medium of mass communication affiliated with
"any educational institution," including a college or university.
After the amendments were passed, The Pitt News, a University
of Pittsburgh student newspaper, stopped accepting any advertising that
contained references to alcoholic beverages.
The paper's editors tried to persuade
establishments with liquor licenses to place ads that did not refer
to the sale of alcoholic beverages, but their efforts were unsuccessful.
In 1998, the newspaper lost approximately $17,000 in revenue, and the
loss affected the length of the newspaper, as well as its ability to
make capital expenditures such as updating its computers and acquiring
digital cameras.
The Pitt News brought a lawsuit
claiming that the law was an unconstitutional infringement on the First
Amendment rights of students and student newspapers, and a federal court
in Pennsylvania agreed. The state Liquor Control Board and the Attorney
General defended the amendments, arguing that the new law did not actually
prohibit The Pitt News from printing alcoholic beverage ads but
simply prevented the paper from receiving payments from liquor license
holders for running such ads. The court rejected this argument and ruled
that the statute unfairly restricted student speech. According to the
court, the very purpose of the law was to discourage a form of speech--alcoholic
beverage ads--that the Commonwealth regarded as harmful. The court observed
that "if [the] government were free to suppress disfavored speech
by preventing potential speakers from being paid, there would not be
much left of the First Amendment."
Although many parents, administrators,
and state agencies have legitimate concerns about alcohol abuse on college
campuses, college and university publications in Pennsylvania are once
again entitled to accept advertisements for alcoholic beverages.
MAKE YOUR VOTE
COUNT
Election Day is Tuesday, November 2,
2004--whatever your political preferences, be sure to vote! If you are
18, if you have been a citizen for at least one month, and if you have
been a resident of your polling district for 30 days, you are qualified
to register to vote. Now is the time to be sure you are registered to
vote and to confirm where your polling place is located.
How to Register
A wealth of voting registration information,
including a list of all county voter registration offices, is available
on the Pennsylvania Department of State website at
www.dos.state.pa.us. You can check on your registration status
by telephone--you do not have to go to your county voter registration
office in person. If you call, also take the time to check to be sure
you know where to vote because you must go to the proper polling place
on Election Day in order to cast your vote.
Identification
If you will be voting for the first time
at your polling place, you will need identification. You may use your
Pennsylvania driver's license or the ID card issued by PennDOT, any
photo identification issued by any other commonwealth agency or by the
federal government, your passport, your armed forces photo ID, your
official student photo ID, or an employee photo ID. Certain nonphoto
identifications are also acceptable, including your voter registration
card, a firearm permit, or a current paycheck.
Absentee Ballot
You can vote by absentee ballot if you
are registered to vote and (1) you are unable to go to the polling place
due to disability or illness, (2) you expect to be absent from the county
due to "duties, occupation or business," (3) you are a county
employee who has job duties that prevent you from going to the polling
place, or (4) you are observing a religious holiday on Election Day
and cannot go to the polling place. If you are in the military, you
have broad rights to vote by absentee ballot, even if you are not registered
and even if you are actually present in the polling district on Election
Day.
If you are qualified to vote by absentee
ballot, you must first complete an application to receive an absentee
ballot. You must apply no later than the first Tuesday prior
to Election Day--this year, that date is Tuesday, October 26. Emergency
procedures are available after October 26 for those persons who suddenly
become ill or who are unexpectedly called out of their voting district,
and later deadlines are available for military personnel.
In some states, a felony conviction bars
a citizen from voting. But the Pennsylvania courts have held that excluding
former felons from voting violates the Pennsylvania Constitution. While
incarcerated felons cannot vote in Pennsylvania even if they are registered,
a Pennsylvania citizen with a former felony conviction is entitled to
register and to vote.
At the polling place, any voter who requires
assistance to vote by reason of blindness, disability, or inability
to read or write may be given assistance. Voting is a right and a privilege;
take the time to participate in our democratic process by voting on
November 2.
APARTMENT COMMON
AREAS OPEN TO POLICE SEARCHES
Where more than one tenant has access
to the hallway and staircase of an apartment building, none of the tenants
has a "legitimate expectation of privacy" in the hallway or
stairs, and therefore those areas are open to warrantless police searches.
This is the current status of Pennsylvania law following a recent Pennsylvania
court decision.
A police officer was working on a tip
that a runaway girl was staying with a female relative in a small apartment
building. When the officer arrived at the building, he found a guest
outside waiting for the third-floor male tenant to admit her to the
building. The officer did not knock on the door but simply waited. When
the male tenant opened the locked door that accessed the street, the
officer pushed his way into the building. The male tenant repeatedly
tried to push the officer out of the building and was arrested for obstructing
the police officer in the performance of his duties.
The court upheld the tenant's conviction,
finding that, no matter how small the apartment building, where tenants
share common areas from which they have no right to exclude the other
residents of the building, those common areas are open to police searches
without any warrants.
FAMILY AND
MEDICAL LEAVE ACT: KNOW YOUR RIGHTS
An electric company employee recently
won the first round of a lawsuit he brought against his employer. The
company fired the employee after concluding that he was not keeping
accurate time records of his attendance at work. The employee maintained
that he was leaving the work area early only to shower at the worksite
since his job exposed him to contaminants.
The employee's union helped him negotiate
a settlement where the employee was not fired but instead entered into
a "last chance agreement," which provided that he could keep
his job but that he would be fired for any further problems with his
work attendance or safety performance. Shortly after signing the last
chance agreement, the employee was seriously injured in a non-work-related
automobile accident.
The employee's surgery and recovery period
prevented him from returning to work for almost five months. During
the period of the employee's recovery, his employer encouraged the employee
to take off the necessary time but fired him the day he returned to
work, claiming that the last chance agreement was clear in its requirement
that the employee report for work on time every day.
The Family and Medical Leave Act (FMLA)
is a federal law that protects employees of local, state, and federal
public agencies, including schools. It also protects private-sector
employees who work for employers with 50 or more employees in 20 or
more workweeks in the current or preceding calendar year. Among its
many protections, the Act requires that "an eligible employee shall
be entitled to a total of twelve workweeks of leave during any twelve
month period" if the employee has a "serious health condition"
that makes the employee unable to perform the functions of his or her
position. After an eligible employee returns from an FMLA leave, the
employee is entitled to be reinstated to his or her former position,
or an equivalent one.
The electric company employee won the
right to go to trial against the company, largely because the company
never gave him any advice about his rights under the FMLA. Even though
the employee's leave actually exceeded the 12 weeks permitted by the
Act, the court found that the employer's complete failure to advise
its employee of his right to 12 weeks of FMLA leave interfered with
the employee's ability to meaningfully exercise his right to FMLA leave.
If you work full-time for an employer
who employs more than 50 employees, or if you work for a government
agency, you are protected by the FMLA. Go to the United States Department
of Labor website to learn more about the Act at
www.dol.gov.
THEY SAID IT
The following exchanges actually took
place in courtrooms across the country.
Q: What is your date of birth?
A: July 15th
Q: What year?
A: Every year.
Q: Can you describe the individual?
A: He was about medium height and had
a beard.
Q: Was this a male or female?
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