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 Rick L. Etter, Esq. of McNees Wallace & Nurick LLC's Labor and Employment Group.

The Office of Federal Contract Compliance Programs (OFCCP) recently issued scheduling letters from its offices throughout the Mid-Atlantic Region. The OFCCP sends a scheduling letter to notify a government contractor or subcontractor that a particular establishment has been selected for a compliance evaluation. In response to the scheduling letter, the contractor or subcontractor must submit its written Affirmative Action Program (AAP) along with supporting information, including detailed data on compensation, hiring, promotion, and termination decisions. A sample scheduling letter can be viewed here (pdf).

Make no mistake, an OFCCP scheduling letter should be treated in the same manner as a class action lawsuit because that is exactly what it is. A quick review of the OFCCP's recent press releases highlights the agency's focus on pursuing high-dollar awards from entry-level failure to hire cases.  The OFCCP uses the information obtained from the scheduling letter to identify personnel decisions that cannot be supported by documentation and then relies on statistics to establish systemic discrimination. For this reason, you should perform your own statistical analyses prior to submitting your response to the OFCCP. More importantly, we strongly recommend that such statistical analyses be coordinated by counsel and protected by the attorney-client privilege. While there are a number of vendors and consultants who offer compliance review support as part of their AAP services, their work is not protected by the attorney-client privilege and is therefore discoverable by plaintiff's attorneys and may be available to the public under the Freedom of Information Act (FOIA).

McNees Wallace & Nurick can guide you through the OFCCP's compliance evaluation. If you receive a scheduling letter, you should immediately contact Rick Etter or Schaun Henry because you have only 30 days to submit your response. 

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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.

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This post was contributed by Adam R. Long, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group. 

In August, the National Labor Relations Board (NLRB) issued a controversial Final Rule that would require most private-sector employers to notify their employees of their rights under the National Labor Relations Act with a new mandatory workplace poster. The rule's effective date originally was November 14, 2011.

Groups like the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce filed lawsuits seeking to block the implementation of the rule's notice-posting requirements. These groups challenged the rule on various grounds, including their position that the rule's notice-posting requirements exceed the NLRB's statutory authority.

On October 5, 2011, the NLRB announced that it was delaying the implementation date for the notice-posting rule until January 31, 2012. The NLRB claimed that it postponed the deadline "in the interest of ensuring broad voluntary compliance."  Other reports indicate that the NLRB postponed the implementation date in response to a specific request to do so by the Judge in one of the pending cases challenging the rule.

Regardless of the NLRB's actual motivation, the decision to delay the notice-posting rule's effective date gives most private-sector employers a reprieve from posting the controversial notice. Employers should continue to monitor this issue, as courts considering the various challenges to the rule likely will issue decisions between now and January 31 that may affect the posting requirement and/or its effective date.

Please note that the NLRB's notice-posting rule and the postponement of its effective date do not affect federal contractors, who already are required to post a similar notice under Executive Order 13496 . Executive Order 13496 applies to (1) most contractors and subcontractors who hold a Federal or Federally-assisted construction contract in excess of $10,000; (2) most non-construction contractors and subcontractors who have a government contract or subcontract, or government bills of lading, of $10,000 or more; and (3) any entity that either serves as a depository of Federal funds in any amount or is a financial institution that is an issuing and paying agent for U.S. savings bonds or savings notes in any amount.
 

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