Is Driving More Dangerous On New Year’s Eve?

Driving is more dangerous on any day on the calendar that increases the number of vehicles on America’s roadways as well as the number of drivers who still get behind the wheel while under the influence of intoxicating substances. Nevertheless, it may come as a surprise that New Year’s Day is statistically not the most hazardous driving day of the year. That dubious distinction belongs to July 4th.

In a study conducted by the Insurance Institute for Highway Safety analyzing traffic fatalities from 1986 through 2002, the researchers found that New Year’s Eve was the fourth most hazardous driving day of the year with an average of 142 deaths. The top three were July 4th, (161), July 3rd (149), and December 23rd (145). The study analyzed only fatalities and not the entire number of reported accidents.

Even the fourth most hazardous day of the year for traffic fatalities deserves serious reflection and appropriate caution if venturing out on New Year’s Eve. The following are some common sense precautions to assure you return home safely:

  • Allow yourself plenty of time traveling to and from your destination.
  • Make sure your vehicle’s headlights and taillights are functioning properly so you can see and be seen.
  • Wear your seat belt.
  • Avoid distractions in your vehicle from cellphones and other devices.
  • IF YOU CONSUME ALCOHOL OR OTHER CONTROLLED SUBSTANCES, FOR HEAVEN’S SAKE, DON’T GET BEHIND THE WHEEL. HEAVEN DOESN’T NEED YOU YET.

Although traffic-related deaths may increase around certain holidays, the number of fatalities across the entire 17-year period covered by the study still averaged 117 per day. As Allan Williams of the IIHS cautioned, “While more deaths do occur on some of the holidays, the toll of fatalities is relentless every day, all year long.”

If you or someone you know has been injured in an accident, contact Scott Fegley at the Fegley Law Firm, (215) 493-8287 or by email at scott@fegleylaw.com. We Give You Peace of Mind.

A NON-COMPETE WITHOUT PAY? NONSENSE.

It is well established in Pennsylvania law that a non-competition agreement signed at the beginning of employment is enforceable if it is reasonable in its duration and scope. Yet, employers often attempt to compel employees to sign non-competition agreements after the employment has begun. Perhaps the employer overlooked the document during the hiring process. More likely, the attempt comes much later when the employer suddenly realizes the potential impact to its business if a key employee should leave.

Employers in Pennsylvania are required to offer an employee more than just continued employment to enforce a non-competition agreement signed after employment has begun. In Socko v. Mid Atlantic Systems of CPA, Inc., decided by the Pennsylvania Supreme Court in November 2015, the defendant employer foolishly decided the non-competition agreement its salesman, David Socko, signed in 2009 when he was hired wasn’t strong enough. In 2010, it asked him to sign a far more restrictive agreement. The agreement specifically noted that it superseded all prior agreements. Mid Atlantic did not extend Mr. Socko any additional benefit for signing the agreement, not a raise, not a bonus, not an extra week of vacation. When Mr. Socko left to work for a competitor in 2012, Mid Atlantic attempted to enforce the 2010 agreement.

The Supreme Court held the 2010 agreement was unenforceable because Mid Atlantic did not provide Mr. Socko “consideration,” a valuable benefit, in exchange for signing the agreement. Because non-competition agreements have historically been looked upon with disfavor in Pennsylvania jurisprudence, the Supreme Court ruled that an employee is entitled to challenge a non-competition agreement for a lack of consideration even if the agreement contains language which states the employee intended to be legally bound by the agreement. Moreover, the language in the 2010 agreement that superseded all prior agreements prevented the employer from relying upon the less restrictive agreement signed at the beginning of the employment in 2009.

What if an employee refuses to sign a non-competition agreement even if the employer offers a valuable benefit in exchange? Unfortunately, in the employment-at -will environment, a refusal to sign a non-competition agreement properly supported by consideration is not legally protected. At least Pennsylvania employees are entitled to be compensated for agreeing to restrictions. In contrast, the New Jersey Supreme Court has held that continued employment itself is sufficient consideration for a non-competition agreement presented after hiring.

 

If you are presented with a non-competition agreement and have questions, call Scott Fegley at the Fegley Law Firm in Yardley, PA, (215) 493-8287 or email him at scott@fegleylaw.com. Mr. Fegley will help you make an informed decision about whether to sign a document that may restrict your ability to work for another employer.

Love ’em And Leash ’em

Whether you own a poodle or a pit bull, you have a legal responsibility for your dog’s behavior. Two recent Pennsylvania court cases reaffirmed that failure to control a dog may have serious legal consequences.

In Franciscus v. Sevdik, 135 A.3d 1092 (Pa.Super. 2016), an employee of a pet sitting business was out walking a client’s dog when the dog, a pit bull, jumped up and bit a 5-year old girl on her chin. Interestingly, the trial court held only the dog owner responsible for the girl’s injury and dismissed the pet sitter. On appeal, the Superior court reversed. The evidence showed the owner had posted a “Beware Of Dog” sign on his property. Moreover, the owner specifically wrote in the service request form to the pet sitter to avoid routes with children when walking the dog. It seems the pet sitter rather than the owner should have been held responsible. The court ruled the pet sitter had knowledge of the dog’s dangerous propensities and should not have been dismissed from the case. The court held that a pet care business has the same legal responsibility for a dog bite as the owner when the dog is in its care.

The court declined to recognize pit bulls as a dangerous breed. The court held the breed of the dog is not the issue. The focus must be on the owner’s knowledge of behavior that indicates the dog may attack a human. Knowledge of growling or aggressive behavior, such as a fight with another dog, may give rise to liability even if the dog has not previously bitten anyone.

In Skotnicki v. Pennsylvania Dept. of Insurance, (156 C.D. 2015), the court upheld an insurance company’s cancellation of a homeowner’s insurance policy after it learned the homeowner’s dog had bitten someone. The dog, an English Springer Spaniel, bit the owner’s neighbor on his calf as the owner and the neighbor were talking. The owner described the attack as “out of the blue.” It is a simple fact that dogs who bite are more costly to own.

Dog bites are preventable in most situations. Dog owners should always keep a dog on a leash, even in an unfenced yard. Even smaller breeds may run away and encounter people. A dog owner should never allow a person who is a stranger to the dog to approach the dog and pet it without the owner’s introduction. An introduction involves the owner specifically talking to the dog to calm it and let it know the owner approves. If the owner knows the dog has a tendency to be protective or be anxious around strangers, it is best to err on the side of caution and avoid contact at all. Dog owners must also exercise caution when a visitor enters the home. The same rules for outside interaction apply. An aggressive or protective dog should be confined before allowing anyone to enter.

A dog’s companionship can enrich our lives, but it brings with it responsibility just as children do. And just as with children, an adult’s carelessness can lead to injury. Take these simple precautions to prevent dog bites and protect yourself from expensive consequences.

 

 

Scott Fegley is the son of veterinarians who maintained a practice in Hatboro, Pennsylvania for over forty years. He has had dogs as companions his entire life. Scott Fegley also has veterinarians and pet care services among his clients, and has represented persons in dog bite injury cases.  If you have questions about a dog bite case, call The Fegley Law Firm at (215) 493-8287 or by email at scott@fegleylaw.com. 

New Ordinance Targets “Wage Theft” By Philadelphia Employers

 

Philadelphia recently enacted a local ordinance which will make it easier for employees to collect small sums owed to them by employers. Employees owed from $100 to $10,000 can submit a claim to the new “Wage Theft Coordinator” in the city government. The Wage Theft Coordinator will have the power to review claims, make determinations, and impose substantial penalties including fines and revocation of city licenses or permits held by the employer.

In addition to ordering payment of the back wages, the Wage Theft Coordinator may impose a fine of up to $2,300 per violation. Each week that wages go unpaid is considered a separate violation. Like the Pennsylvania Wage Payment & Collection Law, the city ordinance provides for individual liability against company owners and persons in charge of the purse strings even in a corporation. Failure to pay the wages and fines after a violation is found may lead to even more severe penalties including publication in a list of non-paying employers, possible imprisonment of company officials, and revocation or suspension of city licenses or permits for up to one year.

The claim must be for work performed in Philadelphia or where the employment contract was created in Philadelphia. For companies with offices in Philadelphia, that may expand potential liability under the new ordinance to workers anywhere. Philadelphia employers are also required to post new notices in the workplace informing employees of their rights under the new ordinance.

If you are an employee who is owed back wages from your employer, or an employer wanting to stay compliant with wage laws, call Scott Fegley at the Fegley Law Firm in Yardley, PA for assistance. (215) 493-8287 or scott@fegleylaw.com.  We give you peace of mind.

Medical Marijuana: A Joint Impact On Employers And Employees

On May 17, 2016, Pennsylvania became the twenty-third state, along with the District of Columbia, to legalize the use of marijuana for treatment of persons with serious illnesses. The full implementation of the Medical Marijuana Act (MMA) will not occur for some time. The Pennsylvania Department of Health (DOH) has been charged with the task of developing regulations for facilities to legally dispense medical marijuana. It may be several months before the regulations are in place, dispensaries are licensed, and the first medical marijuana patients are certified to purchase the drug.

Despite the time lag until full implementation, there are several aspects of the MMA’s impact on the workplace that employees and employers should take note of now. First, the MMA does not legalize smoking pot. Medical marijuana will be available only in the form of pills, creams, oils and vapors. It will also be available only to those individuals whose physicians have certified them to be suffering from specific serious illnesses such as cancer, HIV/AIDs, and multiple sclerosis.

Second, the MMA does not permit even approved users of medical marijuana to use it at work or to be under the influence of medical marijuana at work. The MMA specifically states:

Nothing in the act shall require an employer to make any accommodation of the use of medical marijuana on the premises of any place of employment.

                                                            and

This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

So if employers do not have to permit possession or use of medical marijuana at work and may discipline an employee for being under the influence of medical marijuana, what real change does the law have on the workplace?

For starters, employers should anticipate some creative plaintiffs’ lawyers will argue that the above language does not permit discipline in circumstances where the employee, though perhaps “under the influence,” remains able to effectively perform his job. Only time and litigation will tell. The more difficult aspect of implementation may occur with an employer’s random drug testing program. A positive test for cannabis may not necessarily, in and of itself, be a basis for discipline or discharge of an employee as it was prior to the law’s enactment. However, persons approved for medical marijuana use will receive a state issued ID card. If an employee cannot produce a state ID card to verify approval for medicinal use, the employer should be able to discipline the employee the same as any other employee under a zero tolerance drug and alcohol policy.

The MMA also prohibits employers from discriminating against employees solely on the basis of the employee’s status as a certified user of medical marijuana. Yet, employees who are certified to use medical marijuana are, by definition, already afflicted with illnesses which themselves will likely justify the exercise of rights and protections available under the Americans With Disabilities Act and/or the Family & Medical Leave Act. Once an employee identifies himself or herself as certified to use medical marijuana, employers should exercise particular diligence to assure accommodations are made, short of possession or use of medical marijuana on the premises, to enable the employee to perform his or her job. However, it bears repeating that even certification for use of medical marijuana will not excuse an employee’s subpar performance or coming to work impaired.

If you have questions about employment law and how it may apply to you or your business call our Yardley, PA office to schedule a consultation.  Contact us at (215) 493-8287 or email Scott Fegley at scott@fegleylaw.com.