This post was contributed by Jodi M. Frankel, Esq. a new Associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.
Earlier this year the Superior Court of Pennsylvania held that a worker who was fired after he informed his employer that he was proceeding with legal action against a co-worker may maintain an action against the employer under Pennsylvania’s Crime Victims’ Employment Protection Act.
In Rodgers v. Lorenz (pdf), Rodgers—an employee of Carload Express—alleged that he was subject to repeated acts of verbal and physical harassment by a co-worker. After Rodgers reported to management that the co-worker threatened him on numerous occasions and, on one occasion, choked him, Rodgers was moved to a different job site. A few months later, Rodgers and the co-worker were assigned to the same site, but on different shifts. Thereafter, Rodgers alleged that the co-worker began to harass him during shift changes. Rodgers informed management of his intent to report the co-worker’s conduct to the police. Despite the Company’s request that he not call the police, Rodgers filed a complaint with the local authorities against his co-worker for harassment and assault. Carload Express fired Rodgers later that same day.
Rodgers filed a complaint alleging that Carload Express wrongfully terminated him for instituting criminal proceedings against his co-worker.
Rodgers brought his claim pursuant to the Crime Victims’ Employment Protection Act (Act), which provides:
An employer shall not deprive an employee of his employment, seniority position, or benefits, or threaten to otherwise coerce him with respect thereto, because the employee attends court by reason of being a victim of, or a witness to, a crime or a member of such victim’s family. Nothing in this section shall be construed to require the employer to compensate the employee for employment time lost because of such court attendance.
The Act provides a civil remedy, permitting recovery of lost wages and reinstatement for any employee penalized in violation of the Act. (Rodgers also brought a claim against Carload Express for negligent supervision; however, the court found that this claim was preempted by the Pennsylvania Workers’ Compensation Act).
The Superior Court found that Rodgers could proceed to litigate his claim under the Act. The Court accepted Rodgers’ claim that, after he informed management of his intent to file a police report, it was understood he would attend future criminal hearings. Such conduct, according to the Court, was protected under the Act. In so holding, the Court rejected Carload Express’s argument that the Act protects those employees who have been victims of retaliatory action after attending court, but does not protect those who only have filed a police report and not yet attended a court hearing.
Specifically, the Superior Court noted that the Act was intended to ensure that crime victims could attend court proceedings without concern that their employment will be jeopardized. The Court reasoned that "it would be absurd…to prohibit an employer from terminating a crime victims’ employment after he has attended court proceedings but to permit termination provided the employer acts preemptively." Put simply, the Act protects the employment of both crime victims who have attended court proceedings and crime victims who express an intent to attend future court proceedings related to a reported crime.
This decision may come as a surprise to many Pennsylvania employers who were not even aware of the Act. The most common application of the Act is to protect employees who were subject to discipline because they missed work due to a court proceeding involving a crime to which they were a victim or a witness, or where a member of their immediate family was the victim. Now, given the interpretation of the Act in the Rodgers case, an employer must be careful when an employee informs it that he/she has been the victim of a crime, intends to report the crime to the police, and will attend court to pursue legal action.
To be sure, the Act does not require that an employer provide paid time off so an employee can pursue legal action or otherwise compensate him/her for any lost time on account of court attendance. But an employer who takes disciplinary against an employee following such a criminal report may soon find itself facing its own legal action under the Act.