Volume 13, Number 4 · October 2003

Brief Notes

Splitting Hairs
What are the consequences of a traffic arrest by an off-duty policeman not in uniform in an unmarked car? It all depends!

Our Superior Court, in 1997, had held that a trooper had to be in uniform to effectuate a legal arrest. Thus, in a DUI case where evidence was seized during an unlawful arrest, the evidence should have been suppressed.

But in another DIM case involving an arrest by an off-duty officer, a license suspension for refusal to submit to a blood test was affirmed by the Commonwealth Court (June 2003). The Court relied on a 1987 Supreme Court case which decided that under the law it was the refusal to undergo the test which activated the suspension, regardless of whether the arrest was legal or not.

Query: Is the Court advising DIM suspects arrested by out-of-uniform officers to take the test and preserve the contest? Stay tuned!

FMLA Applies to State Workers
The federal Family and Medical Leave Act (FMLA) provides 12 weeks of family leave to care for children and ailing relatives. Recently the U.S. Supreme Court extended coverage to state employees in a Nevada case.

The ruling was unexpected in view of the Court's recent trend limiting federal powers and holding federal fair employment statutes inapplicable to state employers. But the Court reasoned Congress could require states to give employees the same benefit federal FMLA gives private sector employees.

Common Law Marriages Challenged
In a workers' compensation case, the PA Commonwealth Court on September 17, 2003 abolished common law marriage in Pennsylvania. However, the Court limited its ruling to prospective applications.

The decision was unexpected both because the case was not a family law case, and because neither the legislature nor the Supreme Court had signaled a need for the change.

The Court argued that common law marriage has lost its modem relevance, given the ease of transportation and obtaining a marriage license.

Extensive attorney comment questioned the likely results. Does this "grandfather in" existing common law relationships? Will the decision adversely effect many orphans, widows and widowers? One can expect further appellate review on this subject.

Mandatory Pledge of Allegiance Stricken
A recent Pennsylvania law that would have required public and private schools in the Commonwealth to begin each day by singing the National Anthem or reciting the Pledge of Allegiance was stricken by a Federal Court in Eastern Pennsylvania in July.

The judge found it violated the constitutional rights of parents and students based on religious conviction or personal belief.

Conceding the state has a compelling interest in teaching patriotism and civics, the Court held the law was too restrictive and that a class teaching civics and good citizenship was more narrowly tailored and therefore less intrusive.

Change in Sexual Harassment Law
In 1998, the U.S. Supreme Court held an employer could be vicariously liable for the discriminatory or harassing conduct of its supervisory personnel. Moreover, the employer could be held strictly liable (without affirmative defense) if a hostile work environment resulted in a "tangible employment-action" (firing, demotion, etc.).

The Third Circuit Court of Appeals (covering Pennsylvania) on April 16, 2003 held that a "constructive discharge" (an intolerable work situation) constitutes such a "tangible employment action?"

This creates a clear split among the Federal Circuit Courts, with the Second and Sixth Circuit Court of Appeals disagreeing with our Third Circuit Court of Appeals and the Eighth Circuit Court of Appeals.

Until the U.S. Supreme Court resolves this inconsistency, Pennsylvania employers are bound by the more stringent rule and will be well advised to train their supervisors to avoid adverse employee work situations which could be threatening enough to result in a claim of constructive discharge resulting in vicarious liability for the employer.

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