New PA Law Allows for Record Sealing of Misdemeanor Offenses

New Pennsylvania Law Allows for Sealing of Prior Misdemeanor OffensesPittsburgh Expungement Lawyer

A new Pennsylvania law, effective in November 2016, will no longer punish individuals who were convicted of non-violent misdemeanors over ten years’ prior by restricting them in their daily lives by a criminal record. The law allows for certain misdemeanor convictions to be sealed from public records. If you are free from arrest or prosecution for ten years following a misdemeanor conviction, our attorneys can help seal the record of your conviction from potential employers. Non-violent misdemeanors graded as second or third degree, or ungraded misdemeanors with a maximum penalty of less than two years are eligible for record sealing. This process is slightly different from the process of expunging your criminal record, as sealed records are still available to government and law enforcement agencies. Call Pometto Law today at 412-593-4529 for a free consultation to discuss which charges can be expunged or sealed from your record.

Pennsylvania’s New Medical Marijuana Act In The Workplace

In mid-April of 2016, Pennsylvania’s Medical Marijuana Act (“MMA”) listed as Senate Bill 3, Act 16, was enacted by a vote of 149-46. The Bill became effective on May 17, 2016. The Commonwealth set an eighteen-month time limit until full implementation and compliance. In signing the bill into law, Governor Wolf stated that the legislation “will improve the quality of life for patients and their families throughout Pennsylvania [and] shows that Harrisburg can come together to address big challenges on behalf of the people of the Commonwealth.” Pennsylvania thus became the twenty-third state, plus the District of Columbia, to now allow certain, qualified individuals to be prescribed the use of marijuana for medical treatment.

How the MMA Affects the Employer/Employee Relationship

How this law will affect the interplay between employers and employees is yet to be determined. One section of the Act expressly states that an employer is prohibited from taking adverse employment action against an employee solely on the basis of their approved medical marijuana status. The language of the Act is silent as to the underlying condition that can lead to the granting of such a protected status. Thus, employees are granted some form of protection under the statute. However, employers still have plenty of leeway to discipline employees.

The MMA and Employee Discipline

Under the new law, an employer is permitted to consider an employee’s medical marijuana usage for purposes of discipline. For example, if the employer can prove an employee is abusing or misusing medical marijuana on the premises and during ordinary hours of employment, the employer can take action against the employee. An employer can meet this burden by showing that the employee was “under the influence” of marijuana while on employment premises. Additionally, the new law does not inhibit an employer from continuing to engage in pre-hire, periodic, or random drug-testing.

Important Caveats to the Law

One important caveat to the law is that an employee’s positive drug-test for marijuana cannot be considered the sole criterion for disciplinary action if her usage is medically authorized. However, a positive test result can be used when considering if an the employee is deemed “under the influence.” Exactly what constitutes “under the influence” remains uncertain. One point of reference can be found under a section that restricts employees duties for certain activities. This restriction applies when the employee holds a blood content of more than 10 nanograms of active tetrahydrocannabis (THC) per milliliter. Thus, employers are still free to discipline employees for marijuana use of the workplace if the use of medical marijuana has a negative effect on an employee in the workplace. Also, the blood content limit provides a baseline for employers to use when taking action against an employee for marijuana usage.

MMA’s Overall Effect on the Workplace

Exactly how this law will affect the workplace remains to be seen. Employees who are medically authorized to use marijuana are granted certain protections under the law. However, employers can still test authorized employees for marijuana, before they are hired and after. If they are deemed as under the influence, while at work, employers may still be able to discipline such employees, even if their usage is medically authorized. Considering this rule is still very new, it will take some time for the lines to be clearly drawn. We intend to monitor the evolution of this law and update this site as to what protections employees have in the workplace for medical marijuana usage.

By: Jarrett Lonich

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LGBT Discrimination: Allegheny County and Pittsburgh Provide Protection Above and Beyond State and Federal Law

scales-of-justiceWhen people think of discrimination in the workplace, the first thing that usually comes to mind is race, sex or disabilities. And there is a reason for that: those are the most common forms of discrimination and there are plenty of laws protecting those categories. However, what is less known, is that in Allegheny County and the City of Pittsburgh there is legal protection, in the workplace, for members of the LGBT community. So if you are being
discriminated against because of your sexual orientation, there are laws that will protect you and it may be worth it for you to take action.

Current State of Sexual Orientation and LGBT Protection Laws

Most discrimination lawsuits in the United States stem from federal law and Title VII of the Civil Rights Act (“Title VII.”) Title VII protects many categories of people, including race, sex, religion, and national origin. But Title VII does not protect individuals from employment discrimination on the basis of their sexual orientation, and neither does any federal law currently on the books. Thus, it is up to the states to pass laws protecting this category.

Allegheny County and Pittsburgh

Unfortunately, Pennsylvania has not passed any laws protecting the LGBT community from employment discrimination. Luckily, many local municipalities have stepped up to the plate and have passed laws protecting LGBT people. Pittsburgh was one of the first states in Pennsylvania to pass a law with sexual orientation protection. Pittsburgh passed its first city ordinance protecting LGBT people from discrimination in 1992 and in 2005 the city amended the statute. Thus, if you live or work within the boundaries of the City of Pittsburgh, you have LGBT protection in the areas of employment, housing and public accommodations. The same type of protections exists in Allegheny County, with the County passing its sexual orientation non-discrimination ordinance in 2009.

One important distinction to remember though: just because you live within the boundaries of the city or county, you may not be able to use the laws if you work outside of those boundaries. Whether or not the city or county has jurisdiction over employers or workplaces that are located outside of their borders, yet hire people who live within those borders, is a complicated legal issue that can change on a case-to-case basis. Thus, if you are unsure about whether or not you receive those protections, contact Pometto Law today for a free consultation and case specific analysis.

Conclusion

Many people are unaware of the laws that protect the LGBT community from discrimination. This state of affairs exists because there is no protection on the federal level, and in the case of Pennsylvania, there is no protection on the state level. This does not mean that protection does not exist. The laws within Allegheny County and the City of Pittsburgh protect individuals based on their sexual orientation. So if you are experiencing discrimination in the workplace, or in housing and public accommodations, contact Pometto Law today and we will analyze your case and help you win it.

Congress to Consider Bill Allowing States to Drug Test Unemployment Applicants

By: Joseph D. Pometto, Esq.uc

U.S. Congressman Kevin Brady (Republican, Texas) recently introduced a bill in Congress that would allow states to drug test unemployment applicants. The new law, if passed, would allow states to test applicants who lost their jobs due to drug use or those applicants who are seeking work in a job that requires new employees to pass drug tests. The bill is titled the Ready to Work Act of 2016. The law would also allow states to design drug treatment programs to assist unemployed applicants who are having trouble overcoming their drug issues in order to be ready for work.

Congressman Brady argues that the bill is “a common sense measure to ensure unemployed workers are ready and available to work.” He also cited a survey by the Society for Human Resource Management which estimates that more than half of all businesses drug test their employees.

Opponents of the bill argue that the implementation of such drug testing is costly to the states and the taxpayers. Infrastructure and bureaucracy must be set up and paid for to actually test the applicants. Additionally, employees pay payroll taxes that are, in turn, used to fund their own unemployment benefits. Thus, states that deny benefits on the basis of a failed drug test would essentially be denying employees the benefits that their taxes are used to fund.

Currently the bill has 10 Republican co-sponsors. However, Democrats are likely to oppose the bill. Thus, until the bill is passed, no new restrictions as a result of the bill will be placed on benefits. Furthermore, the bill would not make it mandatory that the states test unemployment applicants, but would allow each state to do so individually. Thus, if passed, each state would need to take further action to implement the testing standards. For these reasons, the law is not likely to impact unemployment applicants anytime soon. If the law is implemented in the next few years, a number of states would likely follow suit and implement a testing scheme.

MAKING SENSE OF THE NEW OVERTIME SALARY THRESHOLD RULE

Office workersWhen the US Department of Labor started talking about changes to the Fair Labor Standards Act (FLSA) way back in 2014, employers, employees, and their attorneys thought they had plenty of time to deal with the government’s plan to extend overtime pay to more than 4 million salaried workers. And yet, the new overtime threshold which takes effect on December 1, 2016 has caught many still unsure and unprepared.

As of today, salaried workers who earn less than $23,600 annually ($455/wk) are eligible for overtime pay for work beyond the standard 40 hours per week under the FLSA. Workers who earn below the current threshold amount are considered non-exempt, or hourly workers. On December 1, however, the threshold for exempt workers will double to $47, 476. That means a salaried employee who earns less than $47, 476 will receive overtime pay equal to one and a half times their regular rate of pay for work beyond the standard forty hours per week. Keep in mind that certain jobs such as physician, teacher, lawyer, police and first responder will remain exempt from the FLSA guidelines, as will those of non-exempt workers.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Although it will impact employers in every category, it seems that the potentially dramatic increase in payroll will have the biggest impact on small and medium sized businesses. Any business with a substantial part of its workforce earning salaries over $23, 660, but less than $47, 476 has some tough decisions to make. Will it simply begin paying overtime where none has been paid in the past? Or will it raise the salaries of exempt employees to exceed the threshold and avoid calculating and paying overtime?
There seem to be three fairly clear cut choices for employers to consider depending on their business’ resources and needs:

– Pay overtime when necessary. Employees that continue to be salaried and now earn less than the threshold will earn overtime. There is no requirement that salaried employees convert to hourly employees to calculate overtime pay at time and a half.

– Raise workers’ salaries to the new threshold level, or beyond, to maintain exempt status. Keep in mind that an exempt employee must also meet the “duties test” as determined by FLSA Regulations. In other words, an employee meets the “duties test” if her duties are truly those of an executive, administrator, professional, IT, or outside sales employee. This determination can be complex, so consult with an attorney to obtain more information on this issue.

– Evaluate and realign the staff and hours so that workload distribution, time and staffing levels are maintained for white collar workers who are below the exempt threshold. This may mean hiring additional staff in some cases.

Each employer will consider the options from the perspective of his own business when determining which choice to make.

WHAT DOES THIS MEAN FOR EMPLOYEES?

Some employees will find the changes extremely positive. If you are one of the lucky ones whose employer simply chooses to increase your salary to $47, 477 to avoid paying you overtime, go ahead and celebrate. But there probably won’t be a lot of you in this category. In addition, workers who have been taken advantage of in the past by having to work longer hours will now be compensated for their additional efforts. Another positive change.

Some changes though, might not be viewed quite so positively. Exempt workers who earn between the current threshold and the new one might be “demoted” to non-exempt status. While the work will not change, a newly non-exempt employee might see her base salary lowered to make up for the overtime that will certainly be paid. And vacation time or “comp-time” will be limited or eliminated.

And for some employees, there is a concern that employers will split full-time jobs into part-time jobs in order to 1) avoid having to pay higher salaries or overtime, and 2) create jobs that may not require benefits such as health care or child care. These concerns should be minimal, however. Employers that recognize the value of their workforce won’t act erratically to jeopardize a successful business environment by lowering morale.

PREPARATION…BRINGING CLARITY TO A CHANGING ENVIRONMENT

During this time of uncertainty, one thing is clear, both employers and employees should seek the advice an employment law specialist to ensure the seamless continuation of a strong business and a positive work environment thought this year and well into 2017.

If you are an employer or employee with questions regarding the new salary thresholds please contact Pometto Law now at 412-593-4529.

Six points of advice that you won’t learn from Law and Order if you are facing arrest

CuffsHow to act when confronted with possible arrest
Article authored by: Barrie Denmark, Esq.

Have you ever watched Law and Order and asked yourself if that’s really how the system works? Well, to some extent, the answer is “yes.” Although it doesn’t work nearly as quickly and succinctly as the show’s district attorney, Jack McCoy, would have you think. What takes an hour on television can take a year or more in real life, which means that if you are arrested for committing a crime, you could be stuck in jail, or in limbo, for quite a while until your case is heard and you are exonerated. It is imperative that you hire a proven and practiced attorney to help you navigate the system.

Even before your lawyer arrives, here are a few things you can do to help yourself if you are arrested:

1) It pretty much goes without saying that if you are stopped for a DUI, or arrested for some other reason, comply, comply, comply! Don’t try to talk your way out of it, don’t ask what you did wrong (the officer will let you know soon enough), don’t resist and don’t fight with the officer. You would be amazed at the charges you can face just for talking back. Remember when you were a kid and your parents told you the only acceptable response was “No sir” or “No ma’am?” That applies now too. Double.

2) People who are generally law abiding don’t really know what to do if they are stopped or arrested. The first thing is to tell the officer that you want an attorney, then STOP TALKING. Don’t ask if you need one, don’t intimate that you want one, flat out say it. Then, stop talking.

3) One of the most common things people who are in custody do wrong is that they try to explain the situation and their innocence. Just because you have stated that you want an attorney does not mean that anything you say from that point forward cannot be used against you. A good interrogator will try to get you to explain yourself. They might even tell you that if you simply cooperate and tell them what happened, the whole thing can be cleared up and you can go home. That is, most often, incorrect.

4) Fairness really doesn’t apply when you’ve been arrested or when you’ve been taken in for questioning. You can’t lie to the police, but the police can lie to you. That’s right, the law says the police can lie to you. Let’s go back to our Law and Order example. You know how Detective Lenny Briscoe might tell a “perp” that she can go home if she owns up to the truth? Or how he may tell one suspect that his partner is squealing on him? Even when it isn’t true, that’s all perfectly legitimate. And what you say in response to those lies is fair game in the state’s case against you.

5) Be polite. You don’t have to be belligerent. You ended up in this situation because something happened, or the police officer thinks it did, and he is just doing his job. When you are in his house, Mr. Nice Policeman, the officer you met in second grade, is no longer your friend. Don’t forget for a minute that you are on opposite sides.

6) We can’t reiterate strongly enough, don’t talk to anyone. That includes the guy who is sharing the same cell you occupy. Yes, police really do send in an undercover cop to see if you’ll talk. And that conversation can be used against you.

Most of us never think we’re going to be arrested. But sometimes life doesn’t go as planned. If you, or a family member, find yourself on the wrong side of the law, the first thing to do (after refusing to talk) is to hire an experienced attorney. Your freedom and your reputation are at stake; you really can’t afford not to.

Over 40 and Fired? You May be the Victim of Age Discrimination

Article Authored by: Barrie Denmark, Esq.

“Youth, is the most beautiful thing in this world—and what a pity that it has to be wasted on the young!” –George Bernard Shaw

There is a huge emphasis on youth these days. In business and in advertising being youthful is extolled as a virtue. When was the last time you saw a beer commercial with a bunch of 50-year olds frolicking on a beach? Or 60-year olds rocking their new fashion finds from Abercrombie and Fitch? Even the elderly seek every conceivable solution to maintaining youthfulness and vigor; from little blue pills to botox-treated immovable foreheads. In order to attract young, upwardly mobile clients (the kind that statistics show spend more money) businesses want to be thought of as forward-thinking, cutting edge, and even fun. But when an employer fires, or fails to hire, a qualified employee because she is over 40, chances are there has been a violation of the Age Discrimination Employment Act of 1967 (ADEA).

There are several qualifying factors to consider:

  • The employee is of 40 years of age or more,
  • The employee was replaced by someone under the age of 40, or considerably younger (for example a 60 year-old replaced by a 40 year-old),
  • The employee was qualified for her position and performed it in an acceptable manner,
  • The employee was not fired for good cause, including lying, stealing, non-adherence to reasonable company policies,
  • And finally, the employee is employed by a business that has at least 20 full or part-time employees throughout the calendar year.

But I’m only 40; I’m not old yet!

Wondering if perhaps you have a claim under the ADEA? Here are a few actual examples of cases the courts decided:

  • When one of the country’s most successful discount airlines started out, it made a heavy sales pitch toward male business travelers, in part by hiring only young, female cabin attendants and dressing them in “hot pants.” When males, and older women, alleged discrimination the company responded that this particular set of practices created an image that was part of its business. Nice try, but the court wasn’t buying it. The court found that the airline’s business was transporting passengers and that the image that was created by scantily-clad young women was not so central to tat business that restricting cabin attendants to young females was justified.
  • In another case though, an airline that questioned the skill and ability of pilots over 60 and required pilots to retire at age 60 was not guilty of discrimination since, at the time, the FAA forbade the use of pilots over the age of 60 in commercial aviation based on tests showing a decline in ability. On the other hand, the same airline could not refuse to hire flight engineers over 60 because it could not determine which engineers would constitute a safety hazard.
  • Finally, a long-time clerk in a fine women’s clothing store was demoted and moved to a position in the stock room, at a reduced wage, because, according to the employer, she no longer represented the “typical customer” and younger women had complained that she could not possibly know what they wanted. The store argued that their very existence was dependent on attracting young, well-to-do women customers and appealing to them was a legitimate reason for the action. Upon review, the court learned the woman’s performance and sales numbers were consistent and satisfactory. Only her age was at odds with the store’s image. The final verdict? Stores may not hire or fire employees based solely on age.

Are you a victim?

It’s difficult for anyone to lose a job and to be out of work. The questions abound: How will I pay my mortgage, feed my family, prepare for retirement? But for an older employee, some say it is even more difficult. Statistics show it is more difficult to get a new job after the age of 50. Employers do place a premium on the fresh ideas and lower benefit costs that younger employees bring to the table, even at the expense of wisdom and experience. And it isn’t often easy to prove that age was a significant factor in their decisions.

If you are over 40 and you think you may have fallen victim to an ADEA violation — either through being fired or demoted, or by not being hired at all — it is important to seek experienced legal counsel to help you navigate the system to your advantage. Just because the government affords us these protections, doesn’t necessarily mean it will make it easy to get relief. Pometto Law will help you proceed. Contact us now for a free consultation at 412-593-4529.

 

Pokemon Go and the Law of Trespass

Pokemon Go might Walk you Right into Trouble
Trespassing Attorney in Pittsburgh
And so it has begun. In their never-ending quest to gather more Pokemon, players of the augmented reality game, Pokemon Go, have begun to trespass. Although public spaces like graveyards and parks have proven to be popular PokeStops (a Pokestop is a real world location identified in the game where players can gather items and more Pokemon), the game has also littered virtual Pokemon in real world locations with private owners; such as churches and businesses. Given that the object of the game is to gather more Pokemon, players have to walk, drive or in some way take themselves within proximity of these spaces in order to capture what they need. And this is where the real world problem of trespass enters the scene.

Legal Risks of Pokemon Go

Wandering into a graveyard while staring down at your phone and hunting Pokemon is all well and good. As long as the graveyard is open. And many businesses are gladly embracing the role of being a Pokestop, in order to turn the crazed players into new customers. However, reports have cropped up of players wandering into police stations, where they are unwanted, and outside of churches that are now converted into people’s private homes. It is only a matter of time before a Pokemon Go player wanders into the wrong business or yard and has the police called on them. If this happens, they could be charged with trespassing. Let’s take a look at some possible scenarios and the legal risks Pokemon Go players face in Pennsylvania with regards to trespassing.

Trespass Defined

Trespassing is a criminal offense in Pennsylvania, and most people instinctively know what it means. It is illegal to go on to someone’s private property without the owner’s permission. However, depending on the type of trespass, the offense can be a summary, misdemeanor or felony, with each of these classifications bringing with it harsher criminal penalties. A person has likely committed a summary trespass if they wandered on to the property and there was no warning or communication posted to alert potential trespassers. If there is a warning posted, or the trespasser has been previously alerted, then the offense could be a misdemeanor. The misdemeanor carries with it stronger criminal penalties than the summary offense. Finally, if a person breaks into a building, or forcibly enters private property, this is likely felony trespass.

Entering Businesses to Capture Pokemon

One potential area where Pokemon Go Players could be at risk is entering private businesses. Many private businesses are welcoming Pokemon Go players as this foot traffic can bring increased sales. But some may not, and if you are playing Pokemon Go, and a business owner ask you to leave, you should comply with the request. While one entry into a store is not likely to get you arrested, if the store owner warns you and you come back a second while playing, that could land you with a trespass charge. One way to likely avoid having the police called on you is to make sure you purchase something at the store. If you buy something every time you come in, the owner will likely not care how many Pokemon you want to catch once inside.

Other Private Residences

It goes without saying that you cannot enter someone’s house, but what if you didn’t know it was a house? There have been reports of churches being popular Pokestops. In this day and age, many churches have been transformed into private residences. So be mindful of your surroundings while playing the game. You don’t want to wander into or around a church that is now someone’s house. If you do stop by, don’t linger. The more you keep moving the less likely you will draw attention to yourself and the less likely you will get hit with a trespass charge.

Public Parks and Locations

You can obviously walk around sidewalks, parks and public places to capture your Pokemon. You likely won’t get charged with trespassing in these areas, but if you linger too long you could face a possible loitering charge. Loitering is generally a lesser charge than trespass. It can be applied to individuals who stay in or obstruct a public place for an extended period of time without a clear purpose for being there. So don’t stay too long in one place while playing the game and you can likely avoid a loitering charge.

Final Words on Pokemon Go and Trespass

Be aware of the closing times for parks, graveyards and other public areas. Even though these areas are open to everyone, they are generally not open for all hours of the day. And finally, have fun and be aware of your surroundings. You want to catch Pokemon, not charges. If you keep your head up and stay aware of where you are, you should be able to avoid most trouble while safely enjoying the game.

If you have any further questions about the legal risks associated with Pokemon Go, or if you have already found yourself in legal trouble because of it, please call Pometto Law now for a free consultation 412-593-4529.

USERRA Protects the Workplace Rights of Military Veterans

Federal USERRA law protects the workplace rights of veterans and active duty members of the military

In order to protect the jobs of our nation’s military, Congress passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This law protects military veterans from discrimination based on their service to the country. Oftentimes, returning from combat can be difficult for military veterans. Many veterans return with physical disabilities and/or post-traumatic stress disorder. The last thing a military veteran should have to worry about is keeping their job. Unfortunately, many employers discriminate against veterans once they have returned from war. The veteran may find that their job has been taken away or that their former employer does not want to re-hire them. Fortunately, USERRA provides protection and recourse for these brave warriors.

Under USERRA, employees returning from military service must be re-hired

If you are a member of the National Guard or the Reserves you will often be leaving your civilian job when called up for military service. If this happens, USERRA requires that your employer re-hire you for your job upon returning from service. An employer must hold your job for up to five years, so if you serve a time period shorter than that your job should be made available to you upon your return. Another important aspect of USERRA is that an employee must be sure to give their employer notice of their deployment or call to service. If proper notice is not given, the employer may not be required to preserve your job.

Employers cannot discriminate on the basis of military status

If you are already a member of the military when you apply for a job an employer cannot deny you work based on your military status. The USERRA law provides powerful measures for veterans to take if they are denied a job on the basis of being in the military or being a veteran. Some things to look out for when applying for a job is if an employer asks excessive questions regarding your military service or gives you a reason to believe that they denied you the job based on your military status. If you believe that you were singled out or not hired because of your military service you should contact Pometto Law and discuss the situation with our firm.

Disabled veterans must be provided accommodations

The USERRA law also includes protection for disabled veterans. If a veteran or reservist returns from duty with a disability her prior employer must provide accommodations so that she can perform her job. This may mean making adjustments to her desk, installing wheelchair friendly entrances or providing other equipment that makes up for the veteran’s disability. An employer who does not provide accommodations faces strict penalties under USERRA and any disabled veteran who has not been provided accommodations should contact Pometto Law for a free consultation.

Conclusion

Active members of the military and military veterans sacrifice blood, sweat and tears to protect our country. They should not have to worry about losing their job back home. The USERRA laws passed by Congress protect veterans by providing recourse against employers who would discriminate against them. If you believe you have been discriminated against on the basis of your military status call Pometto Law to see if we can help. Standing up for veteran’s rights is a service that we proudly provide to those who protect and serve.

Honor Guard

091117-N-5145S-004        Members of the U.S. Army Ceremonial Honor Guard prepare for a 21-gun salute at Arlington National Cemetery, Va., on Nov. 17, 2009, during an interment ceremony for members of the World War II B-25 Mitchell bomber crew that was lost on Dec. 5, 1942, near Papua, New Guinea.  DoD photo by Petty Officer William Selby, U.S. Navy.  (Released)

Marine Corps

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