Jury Awards $10 Million To Three Ex-Philly Police Officers In Retaliation Case

On Wednesday, May 14, 2008, an Eastern District of Pennsylvania jury awarded $10 million to three former Philadelphia police officers who alleged retaliation for opposing illegal employment discrimination based on race.

Plaintiffs William McKenna, Michael McKenna, and Raymond Carnation alleged that the City of Philadelphia violated Title VII when it retaliated against Plaintiffs after they filed complaints with the Pennsylvania Human Relations Commission complaining of mistreatment of African American colleagues.

The jury determined that Plaintiffs proved by a preponderance of the evidence that the City was motivated by unlawful retaliation for Plaintiffs' protesting the City's treatment of African Americans. According to the jury's Verdict Sheet, the City's retaliatory acts include:

* disciplining William McKenna for his comment that a Sergeant "should be shot in the head";
* performing a number of sick checks on William McKenna;
* forcing Michael McKenna to stand in the rain;
* a police Sergeant's instigation of Michael McKenna's confrontation with another individual;
* rating Michael McKenna's work performance "unsatisfactory" in one category;
* transferring Michael McKenna to another district;
* keeping Raymond Carnation in the 7th squad after transferring the McKennas;
* disciplining Raymond Carnation for contacting his supervisors over the Memorial Day weekend;
* a police Captain's involvement in Raymond Carnation's custody dispute with the mother of Carnation's child; and
* terminating Raymond Carnation's employment.

The jury awarded compensatory damages in the amounts of $3 million to William McKenna, $5 million to Michael McKenna, and $2 million to Raymond Carnation.

The case dockets are available online through PACER (McKenna v. City of Philadelphia, et al., Docket No. 98-CV-05835-MAM; Moore, et al. v. City of Philadelphia, et al., Docket No. 99-CV-01163-MAM).

NCO Collection Agency

NCO Financial Corp. (aka NCO Group, NCO Portfolio Management, NCO Financial) is a collection agency and a company that purchases consumer accounts that have gone into default. They purchase this debt from a variety of companies, such from credit cards, hospitals, student loans, mobile phones, etc. If you see the following address appear on your credit report or on any other documentation, it is NOC: 507 Prudential Road, Horsham, PA 19044.

If NCO is acting as a collection agency on behalf of another company, they must comply with the Fair Debt Collection Practices Act. If they are trying to collect on a debt that they allegedly purchased, the FDCPA still applies, as the Federal Trade Commission still views it as collecting someone else's debt. Furthermore, several states, such as Pennsylvania, have consumer protection statutes that govern how original creditors collect consumer debts. For a discussion of the FDCPA and other consumer protection statutes, see our previous post entitled “Consumer debts – Myths and Facts.”

If NCO is attempting to collect a debt that they claim to have purchased (or was assigned to them), there are several things that you should know. In order for NCO to collect these types of debts, the original creditor (such as the credit card company) must assign or sell the debt to NCO. If NCO can’t prove that the debt was sold or assigned to them, then legally, they can’t collect it. If you are contacted by NCO and they claim that your debt was sold or assigned to them, make them prove it. In a number of cases that we were involved in, NCO was unable to provide any documentation that showed they purchased or were assigned the debt.

In addition to providing proof that the debt was assigned / sold to NCO, NCO also must prove that you owe the money. Make NCO provide you with proof that you owe the debt to the original creditor (such as as the credit card company). Refuse to accept any NCO-generated statement of account – demand that they provide you with invoices, bills, etc. from the original creditor (such as the credit card company).

NCO is very quick to give the accounts they allegedly purchased or were assigned to a law firm for legal action. NCO’s (and their lawyer's) business model is based on them depending on you not respond to the law suit. That way, NCO and their attorney does not have to prove that you owe the money they are claiming you owe.

When a defendant does not respond to a law suit, the plaintiff can have a default judgment entered against you. That then allows the plaintiff to attempt to collect on the judgment. Disrupt NCO’s and their attorney’s business model, by responding to the law suit and make them prove what they say.

In the past six-months, Wisniewski & Mensing, LLP has successfully represented two clients against NCO. One of the cases was won at trial, the other was won on a summary judgment motion. In each case, we prevailed by showing that NCO was unable to prove that our clients owed the money NCO claimed, resulting in over $13,000 in alleged debt being wiped away in one case and over $6,000 in alleged debt being wiped out in the other.

New Jersey's Family Leave Act

On May 2, 2008, New Jersey joined California and Washington to become just the third state to pass a family leave law.  Modeled on the federal Family and Medial Leave Act (FMLA), New Jersey’s law, known as the “Family Leave Act” (FLA), permits an employee to take up to six weeks of paid family leave a year and collect 2/3 of their weekly pay, up to $524 a week.  The FLA works alongside the FMLA.

 If you’re an employer, there are some bad things and some “not-so-bad” things about NJ’s law.

 The Bad:

• Employers with 50 or more employees must hold open the job for their employee on FLA leave.  All employees, no mater where they are based, are counted towards the 50 number.  So, if an employer has 49 employees working in Pennsylvania and 1 working in NJ, the employer is deemed to have 50 or more employees and must hold open the job for the NJ employee on FLA leave.

 The Not-So-Bad:

• Employers with less than 50 employees don’t have to hold open a job for an employee that is on FLA leave and is protected by statute from any legal action by an employee concerning the FLA.  Please note that the employer will still be required to comply with all the other state and federal labor and employment regulations.
• The monetary costs for the law will be borne by a new payroll tax on all NJ employees.  Employers will not directly bear any costs of the FLA.
• Employees must give their employer notice, between 15-30 days, before taking FLA leave, unless the leave is “unforeseeable”.
• Employers may require an employee to expend up to 2 weeks of the employee’s sick, vacation, or other paid time-off before taking FLA leave.
• If the leave is not child-care related, the employee must provide their employer with a doctor’s note.  (This provision was added to address employer concerns of employee abuse of the FLA, as there is wide-spread abuse of the FMLA among employees).
• Employees are eligible for FLA leave only if they have worked for that specific employeer for at least 20 “base weeks” and earned at least 1,000 times NJ’s minimum wage during that time, which is currently $7.15 an hour.
• FLA runs concurrently with the FMLA.
• An employee is qualified to take FLA leave only for care of a family member’s “serious health condition” or to care for a child during the first 12 months of the child’s birth or adoption.

New Jersey’s Department of Labor and Workforce Development will be issuing regulations on implementation and application of the FLA.  The FLA will go into effect on July 1, 2009.  Employee payroll tax deductions will begin January 1, 2009.

Conclusions:

Expect to see more businesses leave NJ and move to Pennsylvania or Delaware, due to increased costs to do business in NJ.  For employers that do remain in NJ, expect demand for temporary employees to rise, to cover the work-load of the employee on FLA leave.  Unfortunately, as with the FMLA, litigation is likely, as there are enough undefined terms and unclear language in the FLA.  Also, as with the FMLA, expect some employees on or returning from FLA leave who were fired/let go for job-performance or other legitimate reasons to file suit under the FLA, claiming that they were fired simply for taking FLA leave.