Drug Testing Programs Require Careful Planning

Pennsylvania unemployment compensation law considers an employee’s refusal to submit to a drug test or a failed test grounds for denial of benefits without the employer having the additional burden of proving “willful misconduct.” However, to avail itself of the relaxed standard, the employer must adopt a drug testing policy that is not in violation of law or a collective bargaining agreement. The employer must communicate the policy to its employees and comply with the policy.

Simply putting a paragraph in a handbook that advises employees they may be asked to submit to a drug test is not enough. Careful consideration must be given to when a drug test may be appropriate. Upon hire? After an accident? Upon reasonable suspicion that a person may be under the influence of a controlled substance? Should the employer implement random testing for all employees in safety sensitive positions? These are all important considerations that should be resolved before a policy is drafted. Drug testing policies should be tailored to the needs of the employer. An insurance agency with mostly clerical staff, for example, will not require as onerous a policy as a trucking company.

Once an employer decides when to test, it must also consider the manner and method for testing. Many employers contract with local clinics to conduct drug testing and often forget to inform the employees in the policy what to expect when they get there. There are a variety of tests and collection methods. The U.S. Department of Health and Human Services and the U.S. Department of Transportation both have manuals on drug testing that provide useful information to consider when drafting a policy and can be found on the agency websites. An employer need not adopt a policy that meets stringent HHS or DOT guidelines. However, a policy should inform employees under what circumstances they may be tested, what will happen when they are tested, and the consequences of a refusal to test or a failed test. Consultation with our office and medical professionals experienced in drug testing and sample collection prior to implementation of a drug testing program will enable an employee drug testing program to work effectively and withstand legal challenges.

Need assistance in an employment matter? Call our Yardley, PA office at (215) 493-8287 or contact us by email at scott@fegleylaw.com. We Give You Peace Of Mind.

 

outdoor injury attorney

Who Is Liable for Outdoor Injuries?

Summer is upon us! Time for hiking, swimming, climbing and enjoying the great outdoors! However, these seasonal activities, like any other outdoor activities, are not without risk. Serious injury can occur from diving in shallow water, hiking off marked trails, and failing to exercise caution outdoors.

In Pennsylvania, we have a law called the Recreational Use of Land and Water Act. The RULWA provides landowners immunity from lawsuits if they allow the general public access to their land for recreational purposes without a fee. The law was intended to encourage landowners not to post their lands with “No Trespassing” signs and enable fishermen, hunters, hikers and other outdoor enthusiasts greater access to our open spaces. In general, landowners who allow access are given the same protection from liability as if they had posted “No Trespassing” signs. The landowner cannot be liable unless he actually knew of a hazard on his property and deliberately failed to take steps to correct it or warn about it.

Let’s look at some examples. A sledder walking across land to a snowy slope falls in a deep, uncovered well on the property. If the landowner (a) knew people walked on his land for recreational purposes, (b) knew about the well, and (c) failed to take steps to cover it or prevent someone from falling into it, the landowner may still be sued. The RULWA offers no protection in that circumstance. However, if the sledder, while sledding down the hill, loses control or strikes a tree and suffers a head injury, the landowner will not be liable.

Landowners may also rely on a doctrine called “assumption of the risk.” Those of us who enjoy outdoor activities are assumed to know the risks inherent in the activity and assume the risk of being injured while participating.   However, the doctrine generally affords protection to landowners only for known or expected risks such as collisions with natural objects.

Before engaging in outdoor activity, it is always important to be familiar with the area and to observe signs and marked trails. Enjoying the sport safely is far more important and worthwhile than trying to figure out who’s at fault after an injury occurs.

If you have any questions regarding possible exposure as a landowner or if you sustained an injury due to someone else’ fault, call Scott Fegley at the Fegley Law Firm, in Yardley, PA at (215) 493-8287 or email us as scott@fegleylaw.com.

security cam attorney

Can Accident Videos Be Used in Civil Cases?

Can Accident Videos Be Used in Civil Cases?

A video of a vehicle accident can be powerful evidence in a personal injury case. The number of cameras that surround us increases every day. On any given roadway, intersection or parking lot there may be multiple surveillance cameras. After an accident, locating available videotape evidence can mean the difference between a settlement and a much larger one.

Typically, lawyers litigating accident cases must rely on;

  • Statements by the drivers and witnesses,
  • Physical evidence such as damage to the vehicles and skid marks, and
  • An investigation by an accident reconstruction expert who then offers an opinion as to how the accident happened.

One video of an accident can overcome a witness’ inaccurate memory or another driver’s spin of the events. It can also save injured plaintiffs a substantial amount of money paid to experts to recreate the accident through the physical evidence and computer modeling.

Videotape evidence of an accident is fairly easy to have admitted at trial. In fact, it is much easier than having an expert’s computer created model or demonstration admitted and much more difficult for the defense to attack. The images in the video are often self-authenticating. The injured plaintiff can identify himself, his vehicle, the scene. . . even if he isn’t the one who took the video. As they say, a picture is worth a thousand words. And videos are worth considerably more.

Admission of video evidence is not guaranteed. If the video is of poor quality or an argument is made that the video was tampered with, additional steps may be necessary to use the video at trial.

  • The person responsible for the video surveillance system could be called to testify about the camera, where it was pointed, how images were recorded, how the images were stored, and the reliability of the images.
  • An expert may be employed to improve the quality or restore damaged video or extract information from a video such as object locations to create a computer model.

While an accident video is just one tool in the legal toolbox that an attorney can use to prove a plaintiff’s negligence case against another driver, it is a powerful one and often leads to a pretrial settlement. An attorney should be thinking of possible sources of videotape evidence from the very first client meeting.

If you or a family member has been injured in an accident, contact Scott Fegley at the Fegley Law Firm, (215) 493-8287 or by email at scott@fegleylaw.com. Mr. Fegley has 30 years of accident litigation experience. We Give You Peace of Mind.

Tied For First In “Best of Bucks”! – Keep Voting!

The “Best of Bucks” contest doesn’t measure an attorney’s skill, but it is an opportunity for some visibility which, for a sole practitioner, is often hard to come by.  As of last Friday, February 23rd, I was tied for first place in the voting with an attorney from a large Bucks County firm.  The last day for online voting is March 3rd.  It would be nice to win, and I am hitting the social media space up til the last minute, but I am already so very pleased to have so many people take the time to vote for me.  I aspire to provide a level of professional service above your expectations.

Thank you!

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Employer Not Responsible For Employee Data Safekeeping

You start your job and give your employer all your personal information: your home address, social security number, perhaps even confidential medical and financial data. Did you know your employer has no duty to keep your confidential information safe from hackers? In a recent 2 – 1 vote, a three-judge panel of the Pennsylvania Superior Court ruled that employers cannot be held responsible for a data breach of employee information even if the employer was not utilizing current best practices to prevent a breach.

In the case of Dittman v. University of Pittsburgh Medical Center, decided January 12, 2017, the names, addresses, birthdates, salaries, social security numbers and other valuable data of 62,000 employees were stolen from University computers. The breach resulted in as many as 788 employees falling victim to tax fraud and identity theft. Yet, the court’s majority concluded that since data breaches are widespread and cannot be prevented entirely, it should not create a rule that would force employers to spend significant sums on technology when data breaches remain an unavoidable hazard.

 

The court did not evaluate the technology UPMC had in place, its cost, or the cost of more expensive measures that might have prevented the breach. In a stinging dissent, Judge Musmanno chided the majority for failing to even allow the plaintiffs the opportunity to demonstrate the University was aware of the threat of cyberattacks and did not act reasonably within budgetary constraints to safeguard employee information.  The Dittman decision has far-reaching implications.  To the delight of hackers, it may encourage some employers to spend less on data security, or at least on the security of data that doesn’t affect the employer’s bottom line if it is compromised. Look for this one to go up to the Pennsylvania Supreme Court. In the meantime, employees might want to spend a little themselves on LifeLock or similar services to protect their confidential information.