August 2014 FBA Labor and Employment Law Third Circuit Update

Posted on Friday, September 12th, 2014.

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Stephen E. Trimboli, Esq.

Trimboli & Prusinowski, L.L.C.


A Philadelphia City Charter provision that prohibits City police officers from contributing to political action committees violates the First Amendment.


Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, et al., ­— F.3d —-, 2014 WL 4056694, C.A.3 (N.J.), August 18, 2014, available at


Lodge No. 5 of the Fraternal Order of Police, (FOP), a political action committee operated by the FOP known as COPPAC, and four individual police officers challenged the constitutionality of section 10-107(3) of the Philadelphia Home Rule Charter, which prohibits members of the Philadelphia Police Department from making contributions for any political purpose. An implementing regulation adopted by the Philadelphia Board of Ethics interpreted this ban to extend to donations received by political action committees, political parties, and partisan political groups. The Charter ban applied to police officers only, and not the City’s 20,000 other employees. The ban is one of many restrictions designed to insulate City employees generally, and police officers in particular, from political influence. These restrictions generally mirror those of the federal Hatch Act, 5 U.S.C. Section 7324(a)(2), which prohibits federal employees from taking an active part in political management and political campaigns. However, the Charter ban did not prohibit police officers from registering and voting, belonging to a political party or partisan group, engaging in personal political expression not coordinated with a party, candidate or partisan group, signing political petitions, attending political events as spectators, contributing to nonpolitical advocacy groups, or joining organizations such as the FOP that, in turn, endorse and fund candidates on their own.


Despite the existence of this Charter ban on political action group contributions, the City had enacted on May 4, 2006, under a prior administration, City Bill No. 060181, an ordinance that authorized FOP members to request that automatic deductions be taken from their regular pay and forwarded to COPPAC. The current City administration refused to implement this ordinance, considering it to be in violation of the Charter ban.


The District Court had granted summary judgment in favor of the City defendants. Citing United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), the District Court found that the Charter ban was part of a comprehensive package of reforms that played a successful role in dismantling an old Republican political machine that had corruptly dominated City government in the first half of the Twentieth Century through, among other methods, political patronage, domination and misuse of the police force. The District Court found that the Charter ban had alleviated this harm in a direct and material way, was a reasonable response to these demonstrated harms, and was narrowly tailored to address those harms. That COPPAC, and not the individual officers, would be deciding upon and making the contributions would not insulate the officers from political pressure. That officers were still free to express their views about City government in a nonpartisan way mitigated any First Amendment impact.


In a long, carefully-reasoned decision, the Third Circuit reversed the District Court’s grant of summary judgment to the City defendants, and remanded the matter with instructions to grant summary judgment to the FOP plaintiffs.


Because the Charter ban constitutes a substantial burden on police officers’ First Amendment rights, the Court applied the framework of Pickering v. Board of Education, 391 U.S. 138, 146 (1983), as clarified by NTEU with respect to ex ante prohibitions on public employee speech. When the government defends the regulation of speech as a means of redressing past harms or preventing anticipated ones, it must do more than simply posit the existence of a harm. The government must demonstrate (1) that the harm is “real, not merely conjectural,” and (2) the restriction at issue will alleviate those harms “in a direct and material way.” The Third Circuit applies the NTEU standard whenever a “generally applicable statute or regulation, as opposed to a particular disciplinary action, restricts a government employee’s expression on a matter of public concern.” Swartzwelder v. McNeilly, 297 F.3d 228, 237 (3d Cir. 2002).


The City defendants met the first prong of the NTEU standard. The Third Circuit reviewed at considerable length the history of municipal government corruption in Philadelphia during the first half of the Twentieth Century, and the role played by political influence over the police force in perpetuating the corrupt Republican political machine that controlled City government at the time. The City defendants articulated four legitimate political interests drawn from this history; ensuring that the police enforce the law without bias or political favoritism, enabling employment and advancement in the police department based on merit rather than political influence, protecting subordinate officers from being pressured to support candidates favored by their superiors, and maintaining efficiency and quality of police services. These interests “have longstanding pedigree and have been repeatedly recognized by the Supreme Court as justifying the curtailment of public employee speech.”


That these concerns were now historical did not render them inadequate under the NTEU standard. “A legislature need not, in the absence of concrete evidence to the contrary, rejustify past harms in light of changed circumstances … Court have taken a cautious approach when reviewing longstanding restrictions, acknowledging that when a regulation has succeeded, it is often difficult to discover evidence that the targeted abuses continue to exist … This is true with corruption, which, given its amorphous nature, is particularly hard to quantify and prove.”  The FOP plaintiffs “offered little to dispel” the City defendants’ legitimate concerns, and the City defendants “demonstrated a real risk of future harm,” citing COPPAC’s ability to fund candidates for judgeships and COPPAC’s practice of distributing “courtesy cards” to large donors, which “may threaten public confidence in the police’s impartial enforcement of the law … a card that extends ‘every courtesy’ to its holder may become an improper ticket to preferential treatment.”


However, the Court went on to find that the Charter ban did not alleviate these identified harms in a direct and material way. Implicit in the NTEU “direct and material” standard is a requirement that the government restriction be narrowly tailored. “Proper tailoring does not require that the regulation redress the harm entirely … But when ‘the burden comes closer to impairing core first amendment values, or impairs some given first amendment value more substantially, the requisite closeness of fit of means and end increases accordingly.’” And even though political contributions have not been afforded the same level of constitutional protection as direct forms of political expression such as campaign expenditures, there must still be a reasonable fit between the harm and remedy. Although the means chosen need not be the least restrictive, the means must be “narrowly tailored to achieve the desired objective.” Recent decisions of the United States Supreme Court have “expressed skepticism of political speech restrictions based on broad anticorruption rationales,” and have emphasized that legislative action may be taken “only to address quid pro quo corruption and not ‘the appearance of mere influence or access.’”


The Charter ban failed this second test. The City defendants offered no specific explanation as to how the Charter ban directly mitigated the otherwise legitimate concerns they had asserted. The limitation of the Charter ban to police officers was likewise unexplained. Donations by police officers to a political action committee unaffiliated with any political candidate do not implicate concerns of quid pro quo corruption. And the Charter ban was found to be “illogically under-inclusive” as it permits many of the harms that the City defendants purportedly sought to address. The Court noted in particular that the Charter ban applied to individual officers while allowing the FOP itself to endorse and finance candidates, solicit contributions, and hand out “courtesy cards” to large donors. Less restrictive alternatives are available to achieve the City defendants’ legitimate concerns. “These features … compel us to invalidate the Charter ban.”



A doctor’s note clearing an employee to return to work with “no restrictions” constitutes the employee’s invocation of her right to return to work under the federal Family and Medical Leave Act. The employer may improperly interfere with the employee’s FMLA right to return if it refuses to honor the note.


Budhun v. Reading Hospital and Medical Center, — F.3d —-, 2014 WL 4211116, C.A.3 (N.J.), August 27, 2014, available at


Plaintiff was employed by Berkshire Health Partners, an affiliate of defendant, as a credentialing assistant. Approximately 60% of her job involved typing. Plaintiff incurred a finger injury on July 30, 2010, while off duty, and reported to work on August 2, 2010, with a metal splint on her right hand. Because the injury appeared to prevent her from performing the full duties of her job, the employer placed her on FMLA leave. Plaintiff consulted her own physician on August 3 and 10, had several fingers of her right hand taped together, and informed her physician that she believed she could perform her typing functions even with her fingers taped. She asked her physician to fill out the FMLA leave medical certification form. Based on plaintiff’s representations, her doctor cleared her to return to work on August 16, 2010, with “no restriction,” despite her continuing to have her fingers taped, and despite plaintiff’s own statement that she could not type as quickly as usual. When plaintiff returned to work on August 16, the employer’s human resources representative decided that because plaintiff, by her own admission, could not type at the same speed as before her injury, plaintiff’s physician was “incorrect.” Plaintiff concluded that she was not going to be allowed to work, left the employer’s premises and returned to her physician, who prepared an amended FMLA medical certification. On the amended form, the physician stated that plaintiff would not be able to perform all of her essential job functions. The document was ambiguous as to plaintiff’s return to duty date. Plaintiff remained out of work beyond the expiration of her twelve-week FMLA allotment, and was ultimately terminated.


Plaintiff thereupon brought suit alleging FMLA interference and retaliation claims. The District Court granted summary judgment to defendant on both claims. On appeal, one of the issues the Third Circuit addressed was whether defendant had interfered with plaintiff’s right to return to work when it did not allow plaintiff to work on August 16, 2010. The Third Circuit held that plaintiff had presented sufficient evidence to overcome summary judgment on her interference claim.


FMLA provides that it “shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right” that it guarantees. 29 U.S.C. § 2615(a)(1). In order to assert an FMLA interference claim, plaintiff only needs to show that she was entitled to benefits under FMLA and that she was denied them. Intent to interfere is not a required element. To be entitled to benefits, a claimant must show that he or she is eligible for FMLA protection, works for a FMLA-covered employee, and provided notice of his or her intention to exercise FMLA rights.


One of the rights that FMLA guarantees is the right “to be restored by the employer to the position of employment held by the employee [or an equivalent position] when the leave commenced” upon return from FMLA leave. 29 U.S.C. § 2614(a)(1). “An employee may not be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for leave.” 29 C.F.R. § 825 .311(c).


The Third Circuit “never had occasion to address specifically what constitutes invocation of one’s right to return to work.” Nonetheless, plaintiff “has adduced enough evidence such that a reasonable jury could find that she did so here” because her fitness-for-duty “certification clearly stated that she could return to work with ‘no restrictions.’” An employer may require the employee to provide such a certification, and the employee’s healthcare provider must merely certify that the employee is able to resume work. An employer may require that this certification address the employee’s ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave. 29 C.F.R. § 825.312(b).


In this case, defendant did not provide plaintiff a list of essential functions for her to present to her doctor. Therefore, the fitness-for-duty certification was based only on the description of the job that plaintiff supplied him.


To the extent the information provided by plaintiff and her doctor may have been inconsistent:


The regulations contemplate just this kind of situation. They state that if the employer requires clarification of the fitness-for-duty certification, the employer can contact the employee’s health care provider … However, the “employer may not delay the employee’s return to work while contact with the health care provider is being made.” Instead of following the regulations, {the employer’s human resources representative} (who is not a doctor) seemingly overruled Dr. Battista’s conclusion (albeit reached without an employer-provided list of essential job functions) by telling {plaintiff} that if she was “truly unrestricted,” she “would have full use of all of {her} digits.” … The record is sufficient to allow a reasonable jury to conclude that {plaintiff} attempted to invoke her right to return to work, and that {defendant} interfered with it when it told {plaintiff} that she could not.


The Sixth and Seventh Circuits have similarly reasoned that a medical return to work clearance without restriction would trigger the employer’s FMLA duty to reinstate.


Defendant also argued that plaintiff could not perform the essential functions of her position, and had failed to make out required elements of her retaliation claim. The Third Circuit found factual issues to exist on each of these legal arguments as well.



In order to plead a valid claim for overtime owed under the Fair Labor Standards Act (FLSA), a plaintiff must sufficiently allege that he or she worked forty hours in given or identifiable workweeks, and also worked uncompensated time in excess of forty hours in those weeks. General assertions that an employee “typically” works between thirty-two and forty hours per week and “frequently” works extra time are not sufficient.


Davis, et al. v. Abington Memorial Hospital, — F.3d —-, 2014 WL 4198903, C.A.3 (N.J.), August 26, 2014, available at


This matter involved an appeal from the dismissal of the third amended complaint in five putative collective and class actions alleging that the defendants had implemented timekeeping and pay policies that failed to compensate employees properly for all hours that they worked, in violation of the federal Fair Labor Standards Act (FLSA). Common to all claims was the allegation that the employees had not been compensated properly for work performed in excess of forty hours per week. The claims were filed originally in state court but were removed to the federal District Court. The plaintiffs had originally pled violations of the Employee Retirement Income Security Act (ERISA) and the Racketeer Influenced and Corrupt Organizations Act (RICO) as well as FLSA claims, but by the time of their third amended complaints, plaintiffs had abandoned their ERISA and RICO claims and were focusing exclusively on their FLSA claims. The District Court nonetheless dismissed the third amended complaint on the ground, inter alia, that plaintiffs had failed to plausibly allege that the they had worked overtime and had not be compensated for it. The Third Circuit affirmed.


Federal courts are divided on the level of detail needed to plead a FLSA overtime claim. Some federal courts have adopted a strict approach and require plaintiffs to allege approximately the number of hours worked that were not properly compensated. Other federal courts have adopted a more lenient approach and have sustained complaints as long as the plaintiff simply alleges that the plaintiff worked more than forty hours a week and did not receive overtime compensation. The Third Circuit instead adopted an intermediate standard, first adopted by the Second Circuit, requiring the plaintiff to sufficiently allege that he or she worked forty hours in given or identifiable workweeks, and also worked uncompensated time in excess of forty hours in those weeks. General assertions that an employee “typically” works between thirty-two and forty hours per week and “frequently” works extra time are not sufficient.


Plaintiffs in the present case alleged that they “typically” work between thirty-two and forty hours in a week, and they “frequently” work extra hours. Plaintiffs argued that it is “certainly plausible” that some of the extra hours caused them to work more than forty hours in a week. The Third Circuit disagreed:


Determining whether a plausible claim has been pled is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” … None of the named plaintiffs has alleged a single workweek in which he or she worked at least forty hours and also worked uncompensated time in excess of forty hours. Of the four named plaintiffs who allege that they “typically” worked at least forty hours per week, in addition to extra hours “frequently” worked during meal breaks or outside of their scheduled shifts … none indicates that she in fact worked extra hours during a typical (that is, a forty-hour) week. Their allegations are therefore insufficient. In reaching this conclusion, we do not hold that a plaintiff must identify the exact dates and times that she worked overtime. For instance, a plaintiff’s claim that she “typically” worked forty hours per week, worked extra hours during such a forty-hour week, and was not compensated for extra hours beyond forty hours he or she worked during one or more of those forty-hour weeks, would suffice … But no such allegation is present in this case.

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