Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

This post was contributed by Jodi Frankel, a new Associate in McNees Wallace & Nurick LLC's Labor and Employment Group.  Jodi graduated from the University of Virginia School of Law in May 2011 and sat for the Pennsylvania bar exam in July 2011. 

So your employee recently posted photos of herself lounging poolside with margarita in hand while out on FMLA leave. Can you do something more than just compliment her nice tan?

Earlier this year, in the case of Pellegrino v. Communications Workers of America (PDF), a Pennsylvania federal court answered yes. The court upheld the termination of an employee for violating a work rule that restricted employee travel outside the immediate vicinity while on FMLA leave.

Under a policy in its employee handbook, CWA provided sick pay to eligible employees on approved medical leave. Such wage replacement, however, was subject to certain restrictions. Specifically, employees were required to remain in the immediate vicinity of their homes while on sick leave unless they were seeking treatment or attending to ordinary and necessary personal or family needs. Employees also were permitted to leave the immediate vicinity if they received express permission from CWA.

Denise Pellegrino, a CWA employee, was out on approved FMLA leave following surgery. She also received sick leave pay under the CWA policy. While out on leave, Pellegrino took an unapproved week-long vacation to Cancun, Mexico. CWA learned of Pellegrino's travels and fired her; at the time of her termination, Pellegrino had yet to return from FMLA leave. Pellegrino sued claiming that CWA had unlawfully interfered with her right to take FMLA leave. CWA claimed that her termination was unrelated to her status under the FMLA, but rather because she violated its leave policies. CWA said it would have terminated Pellegrino regardless of whether or not she was on FMLA leave.

While the court agreed that Pellegrino was entitled to unpaid leave under the FMLA, it found no evidence that CWA's sick leave policy or its decision to terminate her employment while she was still out on leave improperly interfered with her rights under the FMLA. In fact, the court noted that to the extent the CWA policy provided a wage supplement, it might have actually encouraged employees to take advantage of their rights under the FMLA.

In its ruling, the court noted that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave." Similarly, companies have the right to create and enforce leave polices, including policies designed to rein in FMLA abuse, so long as such policies do not abridge an employee's rights under the FMLA. Where a sick leave policy has been adopted, the employer has the discretion to enforce it through means such as termination. The court further noted that, even in the absence of an explicit policy limiting employee travel while out on FMLA leave, an employer might reasonably terminate an employee for taking a vacation while receiving sick leave pay.

Sick leave policies similar to CWA's were previously upheld by courts in Pennsylvania. Such policies have included requirements that employees absent on sick leave stay at home during working hours, that employees obtain medical authorization and employer permission to leave the home, and that employees be subject to calls or visits by their employer.

The Pellegrino case underscores the court's growing concern with FMLA abuse and provides precedent for restrictive sick leave policies. However, an employer who suspects that an employee is abusing FMLA should conduct a thorough investigation and allow the employee to explain his/her conduct before taking immediate employment action.

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On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees' Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

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This post was contributed by Rick L. Etter, Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Group.

Given the increase in major weather events that have impacted Pennsylvania recently, including high winds and substantial flooding, employers should consider the following issues that may arise when closings, delays, and absences are caused by inclement weather.

Must employees be paid when the business is closed because of inclement weather?

Nonexempt employees need not be paid for time when they do not work because the business is closed. Exempt employees must be paid their salary for the week regardless of the business closing. An employer may require exempt employees to use accrued paid time off.

Must employees be paid if they don’t report to work due to inclement weather when the business is open?

Nonexempt employees need not be paid for the time they are absent from work. Exempt employees need not be paid for a whole day absence taken due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off. However, if the exempt employee has no accrued paid time off, his or her salary may not be docked for a partial day absence.

May an employee be disciplined or discharged for failing to report to work due to weather conditions when the business is open?

An employer may generally apply its normal attendance policy to weather related absences. However, there is one major exception. Under Pennsylvania law, an employer may not discipline or discharge an employee who fails to report to work due to the closure of the roads in the county of the employer's place of business or the county of the employee's residency, if the road closure is the result of a state of emergency. The law does not apply to the following jobs: drivers of emergency vehicles, essential corrections personnel, police, emergency service personnel, hospital and nursing home staffs, pharmacists, essential health care professionals, public utility personnel, employees of radio or television stations engaged in the gathering and dissemination of news, road crews and oil and milk delivery personnel.

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Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.
 

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