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NLRB Expands Joint Employer Status

In a ruling that has many employers and attorneys predicting that the days of using temporary employees or subcontracting work may be over – at least as we know it – the NLRB in Browning-Ferris Industries of California, Inc. expanded the joint employer standard to allow two or more otherwise unrelated employers to be considered a joint employer under the NLRA if they “share or co-determine those matters governing the essential terms and conditions of employment.” The Board lowered the standard, and instead of requiring that a joint employer exercise actual authority over employees’ terms and conditions of employment, will consider whether the entity has the right to control along with actual control.

Given that the PLRB generally adopts NLRB rulings – it is likely that if tested, the same standard will apply to Pennsylvania school districts and companies that provide contract services to them, such as bus companies, food service providers, etc. This could expose districts to unfair labor practice charges related to these third party arrangements or could allow unions attempting to organize these outside companies to draw the districts into negotiations. Essentially, the decision means that in any situation where a district contracts with a third party to obtain services provided by workers who are in any manner under the actual or even potential control of the district – the district may be a joint employer. Some of the key factors considered by the NLRB included whether the user of services has authority to dictate terms such as wages and hours, the number of workers to be supplied, scheduling, overtime, assignment of work, and the manner and method of work performance. As has always been the case, the more direct the influence and control, the more likely a joint employer relationship will result – but this decision eliminates the requirement that such power be exercised directly, immediately and not in a “limited and routine” manner.

As such, this ruling has the potential to expose districts to joint employer liability in situations where it had previously taken adequate measures to avoid such liability. If your district has existing or potential contracts with third party service providers, now would be an excellent time to review these contracts to determine what changes may be required to further minimize the risk of joint employer liability under this new framework.

This post was written by Christine Nentwig. It was included in the October 2015 edition of CGA’s School Law Newsletter.

Video Recordings in School Districts

In today’s technological society most, if not all, school districts are equipped with video cameras within and outside school buildings. Questions have risen as to who has access to view these video recordings.

Recently, two court cases have been decided which shed some light on whether or not individuals have the ability to access these video recordings. Pursuant to these two decisions, parents would be permitted to have access to these videos under the Family Educational Rights and Privacy Act (FERPA) and under the Pennsylvania Right to Know law.

In regard to the video surveillance being subject to FERPA, the Utah Court of Appeals found a video is protected under FERPA and can only be disclosed under the requirements of this law. In Bryner v. Canyon School District, 2015 UT App 131 (May 29, 2015), the defendant filed a complaint in the trial court seeking to compel the school district to produce a copy of a video surveillance recording taken by a security camera at a school. The district determined that the video constituted an education record and the disclosure requirements of  FERPA prohibited release of the record to the plaintiff without the consent of the parents of the other students shown in the video. The plaintiff filed a motion for summary judgment seeking a ruling that the video was not an education record within the meaning of FERPA.

The court denied the plaintiff’s motion,  ruling the record sought was an education record, that it contained the personally identifiably information of other students, and that the video was therefore subject to disclosure requirements of FERPA. The trial court also ruled that the district had to produce a redacted version of the video, but only if the plaintiff paid the cost of the redaction. The plaintiff challenged this ruling on appeal. The Utah Court of Appeals agreed with the trial court that the video was subject to FERPA and the plaintiff’s motion for summary judgment was thus correctly denied. Because FERPA forbids release of the unredacted video, the court also agreed that the district may produce only a redacted copy and the plaintiff should bear the cost of that redaction. The Court went on to state in its analysis that due to the fact that the Family Policy Compliance Office of the United States Department of Education (which implements and oversees compliance with FERPA) determined that images of students involved in an incident caught on video do constitute education records of those students. Therefore, the video is nothing more than a record of the actions of the students involved in the video and therefore the students’ images in the video constitute information identifying the students. Accordingly, the video contained information “directly related to the students involved in the incident.”  Since it was determined by the court that the video constituted information identifying the student, the protections were afforded under FERPA for disclosure.

School districts need to realize that parents do have the right to view videos of their children when the child is involved in an incident captured on video. However, under the ruling out of Utah, districts will also need to understand that, should  a request from a parent and/or an outsider for release of information on a video surveillance is filed, the district may have to supply the video with redacted images for use. Without the redaction of certain parts of the video surveillance, which would identify other students, then the restrictions on disclosure under FERPA should be followed and parental permission is required in order to release the video in its entirety.

Recently, the Commonwealth Court of Pennsylvania decided in Pennsylvania State Police (PSP) v. Grove, No. 1146 C.D. 2014 – July 7, 2015, that a request by an individual for a video from the PSP should be provided. The Court concluded that such recordings of a police stop are not exempt from disclosure. The Court affirmed that the Office of Open Records Order requiring the PSP to provide a copy of the video recording, which contains no audio component, should be provided and that redaction of exempt information from the audio component of that recording should also be provided. This same interpretation can be used in the video surveillance for school districts.

The reason that this case is important is that a school district, like the Pennsylvania State Police, is a public agency. If you have a video recording of an incident, it may be subject to the Right To Know law, however school districts will need to evaluate the specific video and determine if redaction of that video is allowed to be released pursuant to the exemptions under the law. School districts can no longer flat out deny a request for a copy of a video recording. Districts will need to carefully evaluate the specific recording and determine if there is any need for redaction based on the protections under the law.

To summarize these cases, video recording of incidents occurring within school districts may be subject to disclosure and/or protections under the law. If the video recording is an incident involving a student, the district will need to determine if, pursuant to FERPA, permission is going to be needed to release the video and/or if the video can be released with proper redactions. Furthermore, a Right To Know Request for a video recording must be evaluated by the Right To Officer of the school district and the Right To Know Officer must determine if redaction is necessary under the exemptions afforded under the law. It is advised that if any school district receives a request for a copy of a video recording that the school district contact its solicitor.

 

This post was written by Benjamin L. Pratt, chair of CGA Law Firm’s School Law Practice Group. It was included in the October 2015 edition of CGA’s School Law Newsletter.

Disposition of Abandoned Property

landlord tenant law

In 2012, Act 129 was enacted to address the disposition of a tenant’s personal property left behind upon relinquishing possession of the premises. Prior to its passage, the Pennsylvania Landlord-Tenant Act was moot on this topic. Over the years, that silence has caused a multitude of issues between landlords and tenants regarding what to do with personal property left behind. These problems often resulted in litigation, as well as lost property, including family heirlooms and keepsakes. The Act was designed to eliminate this uncertainly and provide clarity on the disposition of personal property. At its center, the Act established safeguards for both landlord and tenant through notice requirements before personal property could be disposed of. Although Act 129 was a significant improvement, its utility has been somewhat limited. Following its passage, a number of concerns were raised by both landlords and tenants, as well as the judiciary. Those shortcomings have now been addressed with the passage of Act 167, which was signed into law by Governor Corbett on October 22, 2014 and went into effect on December 22, 2014.

It remains a fundamental principal that the tenant, whether the tenant is residential or commercial, shall remove all items of personal property at the time possession of the rental property is relinquished. Under the former revision, the method for disposing of the tenant’s personal property largely depended on whether an order of possession was issued in favor of the landlord, which essentially required a landlord to proceed with a landlord tenant complaint, thereby incurring additional costs. Pursuant to Act 167, personal property remaining on the premises is now deemed abandoned in the following scenarios, of which only 2 require actual court intervention:

(1) Tenant has vacated following termination of written lease;

(2) Landlord has obtained eviction order or order of possession, tenant vacates premises and has removed substantially all personal property;

(3) An eviction order or order for possession entered in favor of landlord has been executed;

(4) Tenant has provided landlord with forwarding address in writing, vacates the premises and has removed substantially all personal property; or

(5) Tenant has vacated premises without communicating an intent to return, rent is more than 15 days past due and, subsequent to those events, landlord posted notice of tenant’s rights regarding the property.

If one of the foregoing scenarios are present, the landlord may dispose of the abandoned property, however, not before providing the requisite notice to the tenant. Under the previous revision, notice of a tenant’s property rights was generally required in the lease, as well as in the order of possession, to effectuate the valid disposition of the abandoned property. Those requirements have now been discarded. Pursuant to Act 167, the landlord need only provide written notice of the tenant’s rights regarding the property prior to removing or disposing of the abandoned personal property. The notice must be substantially similar to the form set forth in the Act and provide the tenant 10 days to either retrieve the property or request that the property be stored up to 30 days. The notice must be sent by first class mail to the leased premises, any forwarding address provided by the tenant, and any address provided for emergency purposes.

Upon a timely request from the tenant in response to the aforementioned notice, the landlord is still required to retain or store the property at a place of the landlord’s choosing up to 30 days. The landlord may also continue to seek reimbursement of reasonable expenses incurred in the removal or storage of the personal property. At all times, a duty to exercise ordinary care in the handling and securing the tenant’s property remains on the landlord, as does the requirement to make the property reasonably available for purposes of retrieval.

If no intent is communicated within 10 days from the notice, or if the tenant fails to retrieve the property within 30 days of providing intent to retrieve the property, the landlord may dispose of the tenant’s personal property without further notice. Liability exposure for a landlord disposing of property is not precluded by the Act. Therefore, caution is strongly suggested before disposing of any property to ensure the requirements of Act have been strictly adhered to, no exceptions exist, and no other statutory grounds are available for a tenant to seek damages.

Act 167 makes clear that a landlord may not dispose of or otherwise exercise control over personal property remaining upon an inhabited premises without the express permission of the tenant. Also, if one of the foregoing abandonment scenarios cease to exist, the landlord shall have no right to dispose of or otherwise exercise control over the property. Rather, the landlord must forego with any self-help permitted under the Act and proceed with the commencement of a landlord tenant complaint to obtain eviction.

It is important to note that Act 167 provides an exception to abandonment where an eviction order or order for possession has been entered in favor of the landlord and it has been executed. If the landlord has actual knowledge or is notified of a protection from abuse order entered for the protection of the tenant or a member of the tenant’s immediate family, the landlord shall refrain from disposing of or otherwise exercising control over the personal property of the tenant for 30 days from the date of the notice. If requested, storage must be provided for up to 30 days from the date of the request. Once the foregoing deadlines expire and the property is not retrieved, the landlord may proceed in the normal course provided under the Act.

Act 167 also addresses the scenario where a tenant is deceased and leaves personal property in the premises. In such a scenario, the requirements of this Act do not apply. Rather, the disposition of any personal property left behind is to be governed by the Pennsylvania Probate, Estates and Fiduciaries Code.

The requirements of Act 167 are waivable, much like a notice to quite. However, such a waiver must be set forth in the written lease and provide sufficient notice to the tenant of the property rights being waived.

Most notably, a landlord that violates the requirements of Act 167 shall be subject to treble damages (3x), as well as the reimbursement of tenant for reasonable attorney’s fees and court costs incurred.

Due to the importance if this amendment to the Landlord-Tenant Act, a revision or addendum to any existing lease is strongly recommended, as, without it, potential exposure can arise.

Should you or someone you know own rental or investment properties, call CGA Law Firm at (717) 848-4900 to schedule an appointment with Glenn J. Smith or one of our other knowledgeable attorneys.

This post was written by Glenn J. Smith, a shareholder of CGA Law Firm. Glenn is a member of CGA’s Litigation Practice Group, specializing in commercial, consumer and construction law, including landlord-tenant law. He frequently lectures across the Commonwealth regarding landlord-tenant law and regularly represents both landlords and tenants throughout Pennsylvania and Maryland.

CGA Law Firm has been voted Best Law Firm in York!

We’re honored to be named among the best in Susquehanna Styles annual contest! Thank you for voting CGA the Best Law Firm in York. Our attorneys, paralegals and legal assistants have a passion for serving clients, and we take pride in being trusted advocates and advisors.

Please join us as we host the Best of York Bash with Susquehanna Style magazine at Wyndridge Farm on Thursday, August 20. Learn more and get your tickets now!

We’re Seeking An Associate Attorney (Corporate/Business)

CGA Law Firm is seeking an associate with two to five years of experience handling corporate and business matters. Candidates must be comfortable in a moderately large private practice and be able to work in a team environment. Submissions from interested parties will be strictly confidential. Submit a cover letter (with salary requirements), resume with references, and a writing sample to:

CGA Law Firm
Attn: Hiring Committee
135 N. George Street
York, PA 17401

Judicial Tax Sale Details

The York County Tax Claim Bureau will conduct the annual Judicial Tax Sale this Thursday, June 4, 2015. This sale is distinguishable from the “Tax Upset Sale” because properties at this sale are sold “free and clear” of mortgages and other encumbrances. The sale is conducted to ensure payment of municipal and school taxes. If your property is on this list and you do nothing, you will likely lose your property.

If your property is on the sale list, you may be interested in learning how the “Automatic Stay” under the Bankruptcy Code will stop the sale. In addition to stopping the dale, Chapter 13 of the Bankruptcy Code allows individual property owners the opportunity to pay back their delinquent real estate taxes (as well as any mortgage arrears) over a payment period lasting as long as five years. Other remedies are available for business organizations (such as corporations and LLCs). If you do not have the funds to pay back the real estate taxes before the Judicial Sale, relief under the Bankruptcy Code may be the only remedy to prevent sale of a property. If you are considering purchasing a property at the Judicial Tax Sale, you should first consult legal counsel before bidding on any property.

For information about the tax sale, please contact Attorney Brent C. Diefenderfer, Board Certified Bankruptcy Attorney at CGA Law Firm at (717) 718-7127 or bdiefenderfer@cgalaw.com.

Attorney Anne E. Zerbe Named 2015 Woman of Influence

York, PA (May 2015) – CGA Law Firm is pleased to announce that attorney Anne E. Zerbe has been named as an award recipient of the prestigious 2015 Women of Influence awards by the Central Penn Business Journal.

Anne is a shareholder with CGA Law Firm and heads the Employment Law Department where she concentrates her practice on employment law and health care law. Anne has successfully defended clients at all levels of proceedings, including the Pennsylvania Human Relations Commission and Department of Labor. She represents business clients in local, state and federal employment matters. Anne also represents executives and physicians in employment matters. Anne’s practice emphasizes the prevention of employment liability, defending against employment claims and assisting clients with compliance issues concerning the multitude of employment laws and regulations governing employers. She also counsels employers, practice groups and health care providers on employment law compliance, risk management and HIPAA compliance.

Anne has conducted multiple seminars on Employment Law Compliance, Risk Management of Employment Related Claims, HIPAA Privacy Compliance, HIPAA Transactions and Code Sets, and HIPAA Security Rule Compliance for employers, health care providers, health care associations and physician practices. She has also taught Continuing Legal Education Seminars on HIPAA and its impact on the Legal Community for the York County Bar Association.

Committed to serving the community in which she lives and works, Anne serves as a member of the Board of Directors for Family First Health, a non-profit, federally qualified health center. She also serves as a board member for the York County Economic Alliance, where she works with local business leaders to address issues facing area businesses. She is a featured speaker and past board member of the York Society of Human Resources Managers. Anne resides in York, PA with her husband and two children.

The Women of Influence awards recognizes 25 women leaders in the midstate who are influential in their companies, industries and communities, and have solid reputations based on their experience, integrity, leadership and accomplishments. As an award winner, Anne will be recognized at a luncheon on Monday, June 15 at the Hilton Harrisburg, as well as in a special publication to be inserted in the June 19 issue of the Central Penn Business Journal.

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CGA Law Firm Attorneys Named Pennsylvania Super Lawyer & Rising Star

York, PA (May 2015) – For the 10th consecutive year, attorney Lawrence V. Young has been selected by Pennsylvania Super Lawyers as one of the top bankruptcy attorneys in the state, an honor held by only 5% of lawyers in PA. In addition, attorney Andrew M. Paxton has been selected to the 2015 list of Rising Stars. This is an accomplishment achieved by no more than 2.5% of the lawyers in PA.

Lawrence V. Young, an attorney and shareholder with CGA Law Firm, limits his legal practice to bankruptcy. He is one of only 25 consumer bankruptcy specialist throughout the Commonwealth to be certified by the American Board of Certification. He is also one of the two Trustees appointed by the U.S. Department of Justice to review all consumer bankruptcy filings for the Middle District of Pennsylvania that originate from York and Adams counties. In 2013, Young was recognized by the York County Bar Association with the Outstanding Member Award.

Andrew M. Paxton, a shareholder with CGA Law Firm and chair of the business law practice group, is a trusted advisor to entrepreneurs and businesses providing counsel through all stages of operations from starting a business to financing, protecting intellectual property, obtaining licensing, expanding the business, to successfully exiting when the time is right. As a business advisor, he also provides businesses with innovative strategies on tax planning, financing, drafting and reviewing contracts, and real estate transactions. He serves on the Board of Directors of the Redevelopment Authority for the City of York and the York County Food Bank.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The list of attorneys selected appears in the Pennsylvania Super Lawyers magazine and the Philadelphia magazine.

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Jack M. Hartman Joins CGA Law Firm

York, PA (May 2015) – CGA Law Firm is pleased to announce that Attorney Jack Hartman has joined the firm, bringing extensive experience in Health Law and Litigation.Since 2005, Jack has served as an arbitrator and mediator in a wide variety of matters in litigation throughout our region, bringing complex and highly disputed matters to an amicable conclusion without further court proceedings.

“Jack is an outstanding attorney with extensive skills and quality experience.  He is a welcome addition to our growing litigation group, supplementing the Firm’s capabilities in handling cases, whether modest or complicated.  Further, Jack provides alternative dispute resolution services as a mediator, as does former Judge John Uhler, who joined the Firm last year.  Jack also has health care law experience that can enhance our efforts in that ever-changing area of law,” said Firm President, Jeff Rehmeyer.  “In addition to being a top notch lawyer, Jack is also a leader and dedicated member of our community.”

For over 35 years, Attorney Hartman has appeared before the state and federal trial and appellate courts of Pennsylvania on behalf of individual, business and health care clients in complex civil litigation. Former Senior Vice President, Legal Services, Geisinger Health System, Hartman’s health care practice includes representation of physicians, hospitals, payors and health care systems in integration strategies, regulatory compliance, reimbursement issues, provider contracting, medical staff issues and employment contracts.

A graduate of Davidson College and The Dickinson School of Law, Jack began his legal career as a Captain in the U. S. Army Judge Advocate General’s Corps before establishing his private law practice throughout Central Pennsylvania. He has served on the Court Relations and Court Rules Committee and the Arbitration Panels of both the Dauphin and Cumberland County Bar Associations, and as a member of the Pennsylvania Bar Association and various defense and health care associations, both locally and at the state and national level. Presentations have included before the National Health Lawyers Association, the National Oncology Practice Alliance, the Georgia Society of Clinical Oncologists, the Pennsylvania Society of Internal Medicine, the Pennsylvania Trial Judges and the Pennsylvania Superior Court Health Law and Medical Malpractice Sessions.

Jack notes, “Having established my Health Law and Litigation practice throughout Central Pennsylvania, I am delighted to have the opportunity to join such a reputable firm in the region that will allow me to coordinate my practice with highly skilled and dedicated attorneys in related fields of law. Working with Judge Uhler to build a mediation and arbitration service is certainly an exciting plus.”

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The York County Bar Association Honors Thomas D. O’Shea as Outstanding Member

York, PA (January 2015) – Attorney Thomas D. O’Shea, a shareholder with CGA Law Firm, was recognized by the York County Bar Association (YCBA) with the Outstanding Member Award at their annual dinner held on Tuesday, January 13, 2015.

Active in the legal community, O’Shea served as the President of the YCBA in 2003 and in 2010 he was President of the Board of Directors for the York County Bar Foundation, the charitable arm of the YCBA. He has also served as Chairman of the Family Law Section of the Bar Association and is active in numerous civic and charitable organizations, including the York Little Theatre and MidPenn Legal Services.

He produces, organizes and serves as host for Legal Lines, a program of the York County Bar Foundation, which is televised on White Rose Communication Television and aired locally on Channels 16 and 18. Legal Lines is a 30-minute show which features guests that are subject matter experts on topics such as Domestic Relations and Divorce Law, Inheritance Tax Law, ARD, Drug Treatment Courts, and Bankruptcy just to name a few.

O’Shea also writes and produces The Bar Stools, a local comedic production with a cast of attorneys that spoof on politics and their profession.

To learn more about attorney O’Shea, visit our website at www.cgalaw.com.

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