Get There Early

Some of us are habitually on time for events, or even early.  Others are habitually late and in some instances such tardiness can be the target of jokes or good natured kidding.  However, in this age of recession and high unemployment being late for work not only can lead to dismissal from your job, but also render the worker ineligible for unemployment compensation, leading to disastrous financial consequences for the worker and that person’s family.

In Pennsylvania unless the employee has a contract for employment he or she is an “at-will” employee.  This means the job can fire an employee for almost any reason whatsoever (as long as it is not discriminatory).  It goes without saying then if the employee is habitually late for work the employer can fire that worker.  Thereafter, if the fire worker files for unemployment compensation, it is likely that the worker will be denied unemployment benefits.

In a recent case the Pennsylvania Commonwealth Court was asked to decide if an employee’s habitual lateness was “willful misconduct” thereby preventing the employee from qualifying for unemployment benefits.  The Commonwealth Court considered that over the course of the employee’s 4 years with the company she had been reprimanded four times for being late for work.  In the three week period leading up to the worker’s termination she was late six times, with the worker being late at least 30 minutes for work in five of those instances.  The worker was then given a written warning, after which she began a scheduled vacation.  On the first day back from vacation the worker was 45 minutes late for work, resulting in her termination.

The employee sought unemployment benefits, which were denied.  She requested a hearing at which she claimed that she had good cause for being late on the first day back from vacation.  The Unemployment Referee determined that the employee did not have valid cause for her tardiness and that the habitual lateness was “willful misconduct”, making the employee ineligible for unemployment compensation.  The worker appealed to the Unemployment Compensation Board of Review, which upheld the denial.  She then appeal to the Commonwealth Court.

On appeal the Commonwealth Court agreed with the previous decisions.  The Court stated that where there is the existence of specific work rules the employer has the right to expect a certain standard of behavior from the employee.  The Court also noted that sometimes there are situations where a specific rule is unnecessary, and such an instance is when an employee fails to show up for work on time.  The Court wrote, “…chronic tardiness, particularly after a warning, exhibits a sufficient disregard of the employer’s interests to constitute willful misconduct.”  The Court also pointed out that Pennsylvania law does not require a detailed termination policy regarding tardiness or specific notice that future lateness will result in termination.  If the employee’s lateness is habitual and that fact is known or made known to the employee, future tardiness is unacceptable.

The best course of action is be early and be early often.  If you have a habit of running late for work, change the habit and make it customary that you are early. Failing to do so may not only lead to termination from work, but also to disqualification from unemployment benefits following termination.

Employees, Read Your Personnel Files

The Philadelphia Inquirer, courtesy of the Kansas City Star, recently reported that employees should be aware that personnel files kept by their employers are not the property of the employee, but rather property of the company.  This is true under Pennsylvania law.

In this day and age when it is uncommon for someone to stay at a job for decades, and where there is a great deal of unemployment, it is helpful to know that if an employee needs to have access to their file they do have the right under Pennsylvania law to review the file, but not to possess a copy of it.

Pennsylvania’s Personnel Files Act allows employees the right to inspect certain portions of their employment records.  The Act also allows the employee’s agent or representative to inspect the records.  The Act does not require that the employer provide a copy of the file to the employee, but it does allow the employee to take notes of what is in the file.  The Act was passed several years ago, and thus it is silent on whether the employee may use his or her cell phone to take photos of the contents of the personnel file.

The purpose of the Personnel Files Act has been explained by the Pennsylvania Commonwealth Court to acknowledge the right of both public and private employees to review files held by their employers that contain information about themselves, and not to permit access to employees’ personnel files by the general public.  The Court explained that without the right of inspection, an employee would have virtually no way of correcting errors in his or her file, asserting and enforcing rights to promotion and compensation, or protecting him or herself from improper or illegal termination.

Despite defining an employee as a person who is currently employed by the company, the Court specifically stated that it did not interpret the phrase “currently employed” to prohibit an individual from obtaining his or her personnel file when such request is made contemporaneously with termination or within a reasonable time immediately following termination.  This is important because often a person who has been terminated from the company will have the need to meet with a lawyer and to know what is in their personnel file.

The article provided two very important, and smart, suggestions to employees.  First, employees should keep their own personnel files, so that when they need to search for a new job or when there is a dispute with the employer, the employee will have readily available documentation upon which to rely. Secondly, employees should annually review their personnel files so that they can both be aware as to what is included within the file and so any mistakes or discrepancies can be addressed by the employer.

It is generally a good idea, when faced with the prospect of filing for unemployment compensation, making a claim for wrongful termination, or addressing a legal dispute with a current for former employer, that the employee have documentation to back-up his or her “side of the story”.  A good place to start in this regard is to annually review one’s personnel file kept by the employer.

Take The Breath Test

The Pennsylvania Implied Consent Law requires that the Department of Transportation suspend the driver’s license of a person who refuses to submit to blood or breath testing, if that person is placed under arrest for Driving Under the Influence of Alcohol (DUI/DWI), is requested by the police to submit to chemical testing and refuses to do so. The law says that if blood or breath testing is refused by the driver the testing shall not be conducted, but upon notice by the police officer, PennDOT shall suspend the operating privilege of the person.

The police are authorized to request blood or breath testing when they have reasonable grounds to suspect that the driver is under the influence. “Reasonable grounds” exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of intoxicating liquor. While there is no set list of behaviors that a person must exhibit for an officer to have reasonable grounds for making an arrest, case law has provided numerous examples of what has been accepted as reasonable grounds in the past: staggering, swaying, falling down, belligerent or uncooperative behavior, slurred speech, and the odor of alcohol. The standard for reasonable grounds is not very demanding and the police officer need not be correct in his belief that the motorist had been driving while intoxicated.

In a recent case decided by the Commonwealth (appeals) Court, the Delaware County Court had decided that a driver’s license suspension for refusing to take the breath test was invalid. The Delaware County Court Ordered PennDOT to reinstate the license. PennDOT appealed the decision.

The Commonwealth Court disagreed with the Delaware County Court and reinstated the driver’s suspension. The Court noted that the evidence showed that the driver sped past the police officer’s marked car, failed to signal when changing lanes, became angry and argumentative upon being pulled over, exhibited slurred speech and glassy eyes, confused his registration and insurance card, smelled of alcohol, admitted to drinking alcohol, and refused to submit to field sobriety testing. The Court also noted that while perhaps none of those factors individually would be sufficient to show reasonable grounds, their cumulative impact should allow a reasonable police officer to conclude that the driver operated his vehicle under the influence of alcohol.

The best advice is if a police officer asks you to take a breath or blood test, take the test. Not taking the test will not prevent the police from charging the driver with DUI, as the police can always charge a driver with DUI if the officer has probable cause to believe the driver has consumed alcohol (or drugs) to a degree that prevents the driver from operating their vehicle safely. Not taking the test accomplishes nothing and only leads to an automatic license suspension.

If you do refuse to take the test, call a lawyer immediately. Often the lawyer may be able to act on the driver’s behalf to speak with the police and prevent the refusal from being reported to the Department of Transportation. If you have any questions about a DUI, the refusal to take a blood or breath test, or a license suspension matter, call (215) 822-1888 to speak with Vince Margiotti or Pat McMenamin

Never Agree to a Search of Your Car

Often clients will come to the office with criminal charges that were filed after the police searched an automobile during a traffic stop.  On occasion the searches were conducted after the police asked for, and obtained from the client, consent to search the car.  Other times the police simply announce they are going to search the client’s car and do so.

After a routine traffic stop if the police ask for consent to search the car the driver should always decline and not allow the police to search, even if the client has nothing to hide.  There are numerous reasons for this but the most important reason is that the driver has a right, granted to him or her by the Constitutions of the United States and Pennsylvania, to not agree to allow the police to inconvenience the driver with a time-consuming search.  The reality is that if the police ask for consent to search, but do not get it, they cannot search the car AND they cannot impound the car, even if they then tell the driver that they can.

A more difficult case is where the police do not ask for consent to search; they just do it and find something illegal inside the car.  When the police decide to search a car without consent during a routine traffic stop the officer must have probable cause to believe that there is something illegal in the car.  If the police reasonably believe that they are in danger, or that a safety issue exists, they may conduct a “protective search” of the passenger area of the car if they have reasonable suspicion to believe that the person subject to the stop has a weapon.

In a recent Pennsylvania Superior Court case, the appeals court upheld the suppression of a gun that was found by police during a routine car stop in Philadelphia.  The car was stopped because of dark tinting of its windows.  The police testified the tinting was so dark they could not see inside the car even using flashlights.  They claimed they felt in danger and so they searched the car for protection.

After the car was stopped the police told the driver to open his windows; he did not immediately comply.  When the windows were finally lowered the police asked for the usual paperwork.  The driver appeared nervous.  He opened his center console and immediately showed a surprised look.  He closed the console, opened his glove compartment and then retrieved his documents.  The police then removed the driver from the car and one of the two officers then searched the center console and found an illegal handgun.  The police argued to the Court that they felt in danger and they searched the car only for their own protection.

The Philadelphia court suppressed the gun finding that the police had no reasonable suspicion to believe that there was a weapon in the car based upon simply a delay in opening the windows, a surprised look and alleged nervousness.  The Pennsylvania Superior Court, in considering the prosecution’s appeal agreed, finding that dark tinted windows and nervousness alone do not suggest a dangerous situation in which the police can conduct a search of a car.  The Court also pointed out that after the windows were open and the driver removed from the car, any danger that may have existed was removed.

The Court wrote, “It is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight or was unaware that he or she was driving above the speed limit. Whether described as nervousness, apprehension, concern or otherwise, forced interaction with a police officer is not an everyday occurrence for the average citizen.”

The police are trained to use people’s anxiousness against them.  As the Court noted, almost everyone is nervous when stopped by the police, even if the stop is only for a minor traffic violation.  If you are ever stopped by the police, and asked for consent to search your car, do not agree.  Also, if the police tell you they will impound your car if you do not agree to give consent to search, do not believe this claim; it is designed to make the driver agree out of fear.  While you will feel anxious and nervous, and may even feel that you “have to do what the police ask”, keep in mind that you have protections that are guaranteed by the Constitution, and nobody can take that protection away from you; not even a police officer.

In Custody Cases Parents & Judges Have the Final Say

Recently the Pennsylvania Superior Court reiterated its long standing policy in child custody cases that the ultimate decision making authority regarding child custody issues rests with the judge assigned to the case, not third parties such as psychologists, counselors, or in the most recent case, a parenting coordinator.

In the case of A.H.v.C.M., the parents of 7 year old child were assigned a Parenting Coordinator according to the Custody Order issued by the York County Court.  A dispute between the parents occurred in February 2012, and the Father contacted the Parenting Coordinator.  A month after the incident the Parenting Coordinator issued a finding that Mother disagreed with.  Mother filed a petition requesting that the York County Court review the Parenting Coordinator’s decision.

Rather than conduct a hearing on Mother’s motion, as was provided for by the Order appointing the Parenting Coordinator, the custody judge heard argument from the parents’ lawyers, and then dismissed Mother’s petition.  The judge also added that if Mother filed any future petitions the judge would dismiss them as well, without reviewing them.

Mother appealed the dismissal of the petition to the Pennsylvania Superior Court.  On appeal the Superior Court reversed the York County judge’s decision, stating that the decision of the York County judge to deny Mother’s request for a hearing not only violated the York County Court’s own Order appointing the Parenting Coordinator, but also denied Mother her due process right to a hearing before the Court.  The Superior Court discussed its long standing policy that the trial court cannot merely adopt the judgment of a parenting coordinator as being the final word in a custody matter, and that it was the duty of the court to conduct a hearing and thereafter to make a decision based upon the evidence produced at that hearing.

In child custody matters, it is often helpful to have professionals who assist children through difficult family problems.  However, if the parents cannot agree on a course of action they should be cautious not to simply defer their decision making authority to a counselor, therapist or parenting coordinator.  If parents cannot come to an agreement regarding decisions that affect their children, the ultimate authority is the Court and parents should not be hesitant to seek Court intervention if they seriously disagree with a professional’s opinion.  The Court always retains the authority to review the decisions of a parenting coordinator, or other professional, and should not “merely substitute the parenting coordinator’s judgment for its own.”

Criminal Charges & Foreign Defendants

When you, or someone you know, is not an American citizen and is charged with a crime, it is important to follow the steps below to prevent being deported, or removed, from the USA.

1 Hire a Lawyer

Defendants in less serious criminal cases will often defend themselves. If the defendant is not a citizen of the United States deciding to defend oneself is a critical mistake. Criminal convictions can often carry collateral deportation/removal consequences for the foreign defendant that were never anticipated. Criminal defense lawyers can provide valuable advice that may not prevent a conviction but may avoid deportation/removal consequences.

2 Do Not Take Immigration Advice from the Police

In minor criminal matters the police will often escort the defendant to a preliminary arraignment or be present at the preliminary hearing on behalf of the prosecution. The foreign defendant may not yet have spoken with or hired a lawyer. In an attempt to resolve the case during the early stages of the prosecution the foreign defendant frequently is offered a plea agreement that places the defendant on probation. The desire to avoid jail is overpowering and if this chance is offered along with assurances from the police that there will be no immigration consequences, foreign defendants may feel secure in accepting probationary plea offers. The foreign defendant needs to understand that the police or the prosecutor does not represent the foreign defendant. Moreover, the police and prosecutors often do not understand the immigration law. The foreign defendant should not accept any plea offer until he or she has spoken with their own lawyer.

3 Ask Specific Questions and Get Detailed Answers from Your Lawyer

Once the foreign defendant has hired a lawyer he needs to discuss the charges and the immigration consequences of those charges with the lawyer. State charges that seem minor may carry severe immigration consequences. In addition, the immigration consequences sometimes make little sense in the context of state criminal law. For example, a foreign citizen typically will not be deported for a conviction of possessing marijuana for personal use but may be deported for possession the pipe that is used to smoke the marijuana, even if the drug itself it not present. This situation is illogical to the criminal defense attorney in the context of state criminal law, but it illustrates why a foreign defendant needs to review not only the state criminal charges with the lawyer, but also the federal immigration consequences of conviction.

4 Protecting Yourself at Court

Once the foreign defendant feels confident that he or she is aware of any potential immigration consequences of a conviction and the case is at Court, the defendant must be sure to ask appropriate questions on-the-record. In Court, during a guilty plea for example, the foreign defendant should ask for clarification from his own lawyer as to whether or not the plea will carry any immigration consequences. If the lawyer is not willing to advise the client the he is protected from deportation, then the plea should not be entered and the case delayed. Foreign defendants should never plead guilty to offenses that result in deportation/removal from the United States. The defendant should also be sure that the Court in which they appear is a court of record, meaning that there is a court reporter who transcribes what is occurring. If there is not a court reporter or transcription service present the foreign defendant should not agree to a plea.

5 What to do if the ICE Man Comes

Following conviction, by plea or trial, foreign defendants may be placed on probation and permitted to return to their place of residence. If the conviction is for a deportable offense immigration officers (ICE) may not appear for days or weeks. If ICE does take the foreign defendant into custody because the conviction carries immigration consequences, the foreign defendant must contact a state defense attorney or the local public defender immediately and arrange to file a post conviction appeal. There are usually strict time periods and deadlines that must be followed in post conviction appeals and therefore time is always of the essence.