PENNSYLVANIA LEGAL UPDATE
FALL 2004 ISSUE

CALCULATING WORKERS' COMPENSATION BENEFITS

The Pennsylvania Workers' Compensation Act takes away from employees their right to sue their employers for injuries they suffer in the course and scope of their employment. However, the loss of the right to sue is balanced by the strict liability that the Act imposes on employers. With few exceptions, when employees are injured while working, they automatically are entitled to the medical benefits and income benefits provided by the Act.

An injured employee need not prove that the employer was negligent, and any negligence or fault on the employee's part does not reduce or eliminate the employee's entitlement to benefits for work-related injuries. In two recent rulings, Pennsylvania's courts have clarified how these benefits are calculated.

Average Wages

Depending on the nature and severity of the work-related injury, an injured employee is entitled to collect a percentage of his or her average wage for a period of weeks or years. Since 1966, an injured employee's average wage generally has been calculated by averaging the three highest of the past four calendar quarters. The Pennsylvania Supreme Court recently ruled that an employee's periods of part-time work while he or she was a high school student are not to be included in the average wage calculation if he or she is injured after stepping up to full-time status.

In this case, a heating and air conditioning company employee was severely injured when a fork-lift truck fell on him. The injured employee had worked part-time for the company for almost a year while in high school. The accident occurred shortly after the employee assumed full-time work with the company following his high school graduation.

Initially, the injured employee's benefits were calculated mostly from his part-time pay since his most recent pay periods were largely part-time. However, the Pennsylvania Supreme Court awarded him benefits based only on his full-time pay, holding that the formula for calculating average wages does not apply "where it would lead to a grossly and demonstrably inaccurate measure of a worker's average weekly wage." The court stressed the fact that the injured employee was a student during his part-time employment.

Flex Dollars

In another case, an employee suffering a wrist injury claimed that his average wage should have included his "flex dollars." As do many employers, the injured employee's company offered a compensation package that included additional benefits in the form of flex dollars that employees could take as wages or that they could apply to life insurance, disability insurance, health insurance, vision care, dental care, or retirement accounts.

The injured employee had elected to take all of his flex dollars in medical and dental coverage. But he argued that, since he was permitted to take the dollars as wages if he chose, their value should be included in his average wage for the calculation of his workers' compensation benefits.

The court rejected his claim, noting that the Act specifically excludes from calculation of the average weekly wage any employer contributions to retirement, pension, health, and welfare benefits. Moreover, fairness to other injured workers was also an issue. Noting that employees who opt for benefits from their flex dollars do not pay taxes on the value of the benefits they receive, the court ruled that it would be unfair to later permit those employees to receive higher workers' compensation wages after an injury, effectively placing them at the same level of workers' compensation benefits enjoyed by employees who previously did pay taxes on their flex dollars.

ADVERTISING ALCOHOL TO COLLEGE STUDENTS

In 1996, the Pennsylvania Legislature amended the state Liquor Code to prohibit "any advertising of alcoholic beverages" in any medium of mass communication affiliated with "any educational institution," including a college or university. After the amendments were passed, The Pitt News, a University of Pittsburgh student newspaper, stopped accepting any advertising that contained references to alcoholic beverages.

The paper's editors tried to persuade establishments with liquor licenses to place ads that did not refer to the sale of alcoholic beverages, but their efforts were unsuccessful. In 1998, the newspaper lost approximately $17,000 in revenue, and the loss affected the length of the newspaper, as well as its ability to make capital expenditures such as updating its computers and acquiring digital cameras.

The Pitt News brought a lawsuit claiming that the law was an unconstitutional infringement on the First Amendment rights of students and student newspapers, and a federal court in Pennsylvania agreed. The state Liquor Control Board and the Attorney General defended the amendments, arguing that the new law did not actually prohibit The Pitt News from printing alcoholic beverage ads but simply prevented the paper from receiving payments from liquor license holders for running such ads. The court rejected this argument and ruled that the statute unfairly restricted student speech. According to the court, the very purpose of the law was to discourage a form of speech--alcoholic beverage ads--that the Commonwealth regarded as harmful. The court observed that "if [the] government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment."

Although many parents, administrators, and state agencies have legitimate concerns about alcohol abuse on college campuses, college and university publications in Pennsylvania are once again entitled to accept advertisements for alcoholic beverages.

MAKE YOUR VOTE COUNT

Election Day is Tuesday, November 2, 2004--whatever your political preferences, be sure to vote! If you are 18, if you have been a citizen for at least one month, and if you have been a resident of your polling district for 30 days, you are qualified to register to vote. Now is the time to be sure you are registered to vote and to confirm where your polling place is located.

How to Register

A wealth of voting registration information, including a list of all county voter registration offices, is available on the Pennsylvania Department of State website at www.dos.state.pa.us. You can check on your registration status by telephone--you do not have to go to your county voter registration office in person. If you call, also take the time to check to be sure you know where to vote because you must go to the proper polling place on Election Day in order to cast your vote.

Identification

If you will be voting for the first time at your polling place, you will need identification. You may use your Pennsylvania driver's license or the ID card issued by PennDOT, any photo identification issued by any other commonwealth agency or by the federal government, your passport, your armed forces photo ID, your official student photo ID, or an employee photo ID. Certain nonphoto identifications are also acceptable, including your voter registration card, a firearm permit, or a current paycheck.

Absentee Ballot

You can vote by absentee ballot if you are registered to vote and (1) you are unable to go to the polling place due to disability or illness, (2) you expect to be absent from the county due to "duties, occupation or business," (3) you are a county employee who has job duties that prevent you from going to the polling place, or (4) you are observing a religious holiday on Election Day and cannot go to the polling place. If you are in the military, you have broad rights to vote by absentee ballot, even if you are not registered and even if you are actually present in the polling district on Election Day.

If you are qualified to vote by absentee ballot, you must first complete an application to receive an absentee ballot. You must apply no later than the first Tuesday prior to Election Day--this year, that date is Tuesday, October 26. Emergency procedures are available after October 26 for those persons who suddenly become ill or who are unexpectedly called out of their voting district, and later deadlines are available for military personnel.

In some states, a felony conviction bars a citizen from voting. But the Pennsylvania courts have held that excluding former felons from voting violates the Pennsylvania Constitution. While incarcerated felons cannot vote in Pennsylvania even if they are registered, a Pennsylvania citizen with a former felony conviction is entitled to register and to vote.

At the polling place, any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance. Voting is a right and a privilege; take the time to participate in our democratic process by voting on November 2.

APARTMENT COMMON AREAS OPEN TO POLICE SEARCHES

Where more than one tenant has access to the hallway and staircase of an apartment building, none of the tenants has a "legitimate expectation of privacy" in the hallway or stairs, and therefore those areas are open to warrantless police searches. This is the current status of Pennsylvania law following a recent Pennsylvania court decision.

A police officer was working on a tip that a runaway girl was staying with a female relative in a small apartment building. When the officer arrived at the building, he found a guest outside waiting for the third-floor male tenant to admit her to the building. The officer did not knock on the door but simply waited. When the male tenant opened the locked door that accessed the street, the officer pushed his way into the building. The male tenant repeatedly tried to push the officer out of the building and was arrested for obstructing the police officer in the performance of his duties.

The court upheld the tenant's conviction, finding that, no matter how small the apartment building, where tenants share common areas from which they have no right to exclude the other residents of the building, those common areas are open to police searches without any warrants.

FAMILY AND MEDICAL LEAVE ACT: KNOW YOUR RIGHTS

An electric company employee recently won the first round of a lawsuit he brought against his employer. The company fired the employee after concluding that he was not keeping accurate time records of his attendance at work. The employee maintained that he was leaving the work area early only to shower at the worksite since his job exposed him to contaminants.

The employee's union helped him negotiate a settlement where the employee was not fired but instead entered into a "last chance agreement," which provided that he could keep his job but that he would be fired for any further problems with his work attendance or safety performance. Shortly after signing the last chance agreement, the employee was seriously injured in a non-work-related automobile accident.

The employee's surgery and recovery period prevented him from returning to work for almost five months. During the period of the employee's recovery, his employer encouraged the employee to take off the necessary time but fired him the day he returned to work, claiming that the last chance agreement was clear in its requirement that the employee report for work on time every day.

The Family and Medical Leave Act (FMLA) is a federal law that protects employees of local, state, and federal public agencies, including schools. It also protects private-sector employees who work for employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Among its many protections, the Act requires that "an eligible employee shall be entitled to a total of twelve workweeks of leave during any twelve month period" if the employee has a "serious health condition" that makes the employee unable to perform the functions of his or her position. After an eligible employee returns from an FMLA leave, the employee is entitled to be reinstated to his or her former position, or an equivalent one.

The electric company employee won the right to go to trial against the company, largely because the company never gave him any advice about his rights under the FMLA. Even though the employee's leave actually exceeded the 12 weeks permitted by the Act, the court found that the employer's complete failure to advise its employee of his right to 12 weeks of FMLA leave interfered with the employee's ability to meaningfully exercise his right to FMLA leave.

If you work full-time for an employer who employs more than 50 employees, or if you work for a government agency, you are protected by the FMLA. Go to the United States Department of Labor website to learn more about the Act at www.dol.gov.

THEY SAID IT

The following exchanges actually took place in courtrooms across the country.

Q: What is your date of birth?

A: July 15th

Q: What year?

A: Every year.

Q: Can you describe the individual?

A: He was about medium height and had a beard.

Q: Was this a male or female?