News & Investigations

Last week, Chief Judge Conner in the Middle District of Pennsylvania approved a settlement in a wage theft case we brought against Vantage Foods on behalf of our client and the other workers at the Camp Hill, PA facility.

Vantage Foods opened the food processing facility outside of Harrisburg in late 2013 to process meat for Giant supermarkets in Pennsylvania and Maryland. Workers were required to don and sanitize personal protective equipment such as gloves, aprons, hairnets and other gear before they started getting paid. They also had to remove this equipment in order to start breaks and conclude their day.

The lawsuit alleged that workers were not receiving pay for the time that it took them to put on, take off and sanitize the equipment. It is well-established under the Fair Labor Standards Act that employees should be compensated for this time under the “continuous workday” rule. As a result of the lawsuit, a fund was set aside to compensate the workers for their unpaid time and the company changed its practices going forward.

We look forward to helping other workers who may not be getting paid for all of the time that they deserve. A report published last year concluded that hundreds of thousands of low-wage workers across PA were not being paid according to the law. It was estimated that Pennsylvania workers lose roughly $20 to $30 million in unpaid wages each week. If you are not receiving the appropriate pay, whether because the company is not paying overtime, minimum wage or another violation of the FLSA, please call us at (215) 545-8800.

An article online this month in the U.S. News & World Report covered five laws that your employer may be violating and three of them dealt with wage theft. These include treating workers as exempt from overtime pay, asking staff to work off the clock and hiring independent contractors but treating them like employees. These are expected to continue to happen at businesses until they get the message that wage theft will not be tolerated.

The Department of Labor has also been waging this battle on behalf of workers. Last year, it issued guidance clarifying that more independent contractors are actually wrongly classified. It also will update as early as this summer the overtime exemption salary cutoff for inflation, which could make as many as 5 million more employees eligible for time and a half during overtime hours through the Fair Labor Standards Act.

We continue to fight to eliminate wage theft. If you are aware of workers who are not being paid appropriately, please call (215) 545-8800 to speak to an attorney about stopping wage theft and compensation for the unpaid wages.

It has been a good week for consumers and employees as the Supreme Court protected the right to proceed with a class action and the Labor Department opened up new options for victims of wage theft.

The Supreme Court struck a blow to large corporations hoping to avoid class action lawsuits by rejecting the argument that a settlement offer to pay off the plaintiff for the full amount owed ends the lawsuit.

In the nearly ten year old lawsuit Campbell-Ewald Co. v. Gomez, the plaintiff sought to bring a class action lawsuit on behalf of thousands of similarly situated individuals who were sent text messages without their consent.

Since the cost of a settlement with one plaintiff is relatively trivial compared to the cost of defending a class action, the company argued that its offer to settle the case for the entire amount sought by the plaintiff (without admitting liability) foreclosed the possibility of that plaintiff successfully bringing a class action.

The Supreme Court refused to allow the company to so easily garner dismissal of the suit. If it had ruled otherwise, it would have been a major blow to class actions, which allow individuals to sue when the amount in controversy is not sufficient to make a lawsuit economically viable.

In other news, the Labor Department issued guidance this week on when U.S. companies could be classified as “joint employers” and held responsible for the labor violations of a staffing agency or contractor. The issue has become important in the government’s pursuit of wage theft under the Fair Labor Standards Act.

The DOL guidance provides an explanation of how to analyze both vertical relationships (one company contracts with another) as well as horizontal arrangements where one person is employed by two related companies.

The guidance may receive a test next month, as a case against McDonald’s goes to trial concerning whether it is liable for the labor violations of franchisees. Although the guidance is not-binding on the courts, courts may still pay deference to it.

There has already been speculation that it will open up new avenues for lawsuits over unpaid overtime and other instances of wage theft.

Over the past few years, our personal injury lawyers have been representing more clients in cases of defective or improperly used medical devices. Although part of this may be due to an expansion of our interests in this area, health technology is a growing part of the practice of medicine and this no doubt has something to do with the fact that we are seeing more defective products in potential medical malpractice cases.

ECRI Institute published a Top 10 list of Health Technology Hazards for 2016 today. Because of our work representing clients, we are already intimately familiar with the top danger cited, which is “Inadequate Cleaning of Flexible Endosocopes before disinfection can Spread Deadly Pathogens.”

In the medical community, the device described above is a duodenoscope. It is used to perform an ERCP Procedure. In the beginning of the year, patient deaths believed to be caused because of design changes that made it difficult to adequately clean the devices before re-use were publicized by hospitals across the country.

We thought that highlighting the rest of the list would be of interest to the health care professionals that read our blog. We expect that we will definitely see cases in 2016 and beyond from the problems identified on this list:

2. Missed Alarms

Patients may not get treatment for dangerous conditions either because the medical device does not detect a condition warranting an alarm or the medical professionals fail to notice the alarm.

3. Opioid-Induced Respiratory Depression

Patients on postoperative drugs such as morphine or fentanyl are at risk of anoxic brain injury or death if oxygenation and ventilation are not adequately monitored every few hours for opioid-induced respiratory depression. The condition may occur because of a medication error, receipt of another drug or comorbidities that compromise their respiratory system. Nevertheless, it should be caught by medical professionals.

4. Telemetry Monitoring

Medical professionals may fail to properly monitor technology designed to increase the number of patients they can assist. In telemetry, patient conditions are automatically communicated remotely to a place for patient monitoring. However, the lack of in person contact and increased workloads could mean that problems are missed.

5. Inadequate Training

ECRI Institute estimates roughly 70% of accidents related to medical devices involve user error or poor technique. Better training concerning new operating room technologies could alleviate many of the errors that lead to complications and additional injuries.

6. Integration of Health IT

Medical errors can result if a new health IT (HIT) system isn’t properly and carefully integrated into the process already used in workflow. ECRI identified missed information, input errors such as the mistaken use of default values, and workarounds as potential problems that can lead to patient harm in treatment.

7. Unsafe Injection Practices

The list identified the transmission of bacterial infections and bloodborne viruses through the reuse of needles, sharing of insulin pens or single dose drug vials.

8. Gamma Camera Failures

There have been more than 40 safety recalls of gamma cameras filed with the FDA in a 2 year period. If the device experiences a mechanical failure, its heavy components can rotate into or fall on a patient.

9. Ventilator-Induced Lung Injuries

Inappropriate ventilation of intensive care patients can lead to preventable deaths from lung injuries. Advanced ventilators and lung-protective strategies can be used to prevent harm, but some professionals do not use these techniques or have access to devices with the latest capabilities.

10. USB Misuse

Medical devices contain USB ports that can cause the device to malfunction or reboot if unauthorized devices are plugged into them. For example, it was discovered last year that an anesthesia delivery system could have a life threatening failure if a USB device was plugged in while it was running. The FDA recall identified recharging a cell phone as a possible cause of the malfunctioning software. We hope that medical professionals quickly figure out how to avoid and minimize these mistakes so that patients do not need to seek out the services of our medical malpractice lawyers. However, we know that this is not always an easy task. For a free consultation concerning medical malpractice related to a medical device, please call (215) 545-8800 to speak to one of our attorneys.

Our home state of Pennsylvania was one of 11 states to flunk the Center for Public Integrity’s research into the systems in place to deter corruption in state government and 44th overall. The CPI said it had “[a]n entrenched culture of malfeasance.”

Pennsylvania fell from the C- grade that it earned in a similar assessment in 2012. The study’s authors said that changes were made to the questions and methodology so that the two scores were not directly comparable.

The description of Pennsylvania pointed to a lack of campaign contribution limits and prohibitions on gift giving as part of the problem in PA. It also pointed to the scandal surrounding PA Attorney General Kathleen Kane.

There have been recent initiatives to ban gifts to political appointees and independent agencies like the Turnpike Commission and the Liquor Control Board. While these actions brought the state’s score up for executive accountability, it’s score for legislative and judicial accountability was among the worst of the states.

According to the article, 40 members or top aides of the PA Legislature plead guilty or were found guilty to public corruption charges in the past four decades. Not one was censured or reprimanded by the legislature’s ethics committee.

If there is a bright spot for Pennsylvania, it is that other states did not fare much better. Only three states managed to earn higher than a D+ in the State Integrity Investigation. Overall, the investigation found numerous examples of exemptions within open records laws, conflicts of interest, and cozy relationships with lobbyists. Alaska was tops with a C, while California and Connecticut placed next with a C-.

Michigan placed dead last, ranking 50th and earning its F because of an “honor system with no honor.” Michigan received an F in 10 out of the 13 categories of ranking, earning a passing grade only on electoral oversight, internal auditing and the state budget process.

The National Highway Traffic Safety Administration has instructed states and local school districts to install three point seat belts on every school bus in a move to stem the safety risks of school children during transportation. However, the policy shift by the federal government has not yet been implemented in regulation as the agency hopes that local governments will voluntarily make the requested changes.

Federal law requires small six or twelve seat school buses to have seat belts because their low weight leads them to be classified the same as cars and light trucks. But larger buses were considered safer in a collision and the decision to add seat belts fell to the states. Only a handful required seat belts.

The addition of seat belts to school buses is not expected to be easy. The cost of adding belts has been estimated in the billions at a time when school budgets are strapped for cash. And there are concerns that incorrect usage by children will lead to an increase in neck or abdominal injuries.

Bus transportation is already considered one of the safer ways to get to school, with substantially more fatalities coming from walking or passenger car transportation. But a number of high profile accidents involving buses and concerns about the adequacy of protective measures after children have been thrown from the bus have led to the new policy shift.

If you have questions about the liability of the school district or another driver for an accident involving injury to your child where the bus does not have seat belts, please contact one of our personal injury attorneys by filling out our contact form or calling (215) 545-8800.