Recent Workers' Compensation Cases Focus on "Going and Coming" Rule

This post was contributed by Paul D. Clouser, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Lancaster, Pennsylvania.

As a general rule, an employee is deemed not to be "in the course and scope of employment" and is therefore not entitled to workers' compensation benefits, while commuting to and from work. This is known as the "going and coming" rule. However, if the employee is deemed to be a "traveling employee" (as opposed to a stationary employee with a fixed place of work), the scope of employment is much broader and the employee is entitled to a presumption of coverage while commuting, unless his actions at the time of injury were so foreign to and removed from his usual activities, as to constitute an abandonment of employment.

In Holler v. WCAB (Tri-Wire Engineering Solutions), the Claimant was employed as a cable technician, responsible for installing cable and network services at customers' homes and businesses. He began each day by reporting to his employer's facility, where he checked in, received his assignments for the day and picked up his equipment. He then spent the rest of the day traveling to and working at various customer locations. Employer allowed Claimant to take a company vehicle home each evening and then use it to return to work in the morning. Claimant was prohibited from using the vehicle for any purpose other than commuting or traveling between customer locations.

On the morning of August 13, 2010, on his usual commute to work, Claimant was seriously injured when his vehicle ran off the road and struck a utility pole. He was life-flighted to the hospital and was unable to return to work following the accident.

The WC Judge and Appeal Board both denied benefits, on the basis of the familiar "going and coming rule," and since Section 301(c)(i) of the Act specifically states that injuries are not compensable if those "injuries [are] sustained while the employee is operating a motor vehicle provided by the employer if the employee is not otherwise in the course of employment at the time of injury." However, the Commonwealth Court reversed and awarded benefits, noting that Claimant was more accurately described as a "traveling employee," despite the fact that he briefly reported to the employer's office each morning, before beginning to make his rounds. Accordingly, the "going and coming" rule was inapplicable and Claimant's morning "commute" to the office was presumed to be part of his work and the resultant injuries compensable.

In Simko v. WCAB (U.S. Steel Corporation), the WC Judge awarded benefits for a severe brain injury sustained by Claimant, while he was commuting to the employer's premises for a safety meeting. Claimant was a member of the safety committee and was required, on a monthly basis, to report to work one and one-half hours before the start of his regular shift. Attendance was mandatory and Claimant was paid for this time. Additionally, "stand-down" meetings were held less frequently, when serious accidents or fatalities would occur. Testimony established that on the morning of the accident, Claimant was heading into a combination monthly meeting/stand-down meeting.

The WC Judge held that although Claimant was a stationary employee and therefore subject to the "going and coming rule," an exception to the rule exists for "special missions" that further the interests of the employer. Claimant was engaged in such a "special mission" when he left his home on the morning of the accident, to meet with management and other safety committee members for a "stand-down" meeting, prior to his regularly scheduled shift.

The Board and Commonwealth Court reversed, however, holding that meeting attendance is deemed to be a part of an employee's regular work duties, and that traveling to or from such meetings is not a special mission. Also rejected, was Claimant's argument that the "special circumstances" exception to the going and coming rule applied. In other words, Claimant argued that he was in fact furthering the interests of his employer by commuting to work for a meeting on workplace safety, which by definition promotes the employer's safety goal. Once again, however, the Court noted that although attendance at such meetings may further the employer's safety goal, it is still a part of Claimant's regular work duties. Further, Claimant did not dispute that the safety meetings were treated as a part of his regular duties and pay, and that the meetings were held on the same premises where he performed his regular job as a strand operator.

If you have any questions or concerns as to whether an employee was truly in the "course and scope" of his or her employment, thus entitling the employee to payment of WC benefits, please contact Paul Clouser or Denise Elliott in our Lancaster office.

Mailing FMLA Notices to Employees? Not So Fast

This post was contributed by Gina E. McAndrew, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Scranton, Pennsylvania.

Recently, the United States Court of Appeals for the Third Circuit issued an opinion analyzing the so-called "mailbox rule" in a case which centered on the receipt of an FMLA notice. In Lupyan v. Corinthian Colleges, Inc., Lupyan, the employee, submitted a request for leave from her position as an instructor with Corinthian Colleges, Inc. ("CCI"). Based on a suggestion by her supervisor to apply for short-term disability, she obtained a Certification of Health Provider form from her doctor. Pursuant to this form, CCI determined that she was eligible for FMLA leave. Lupyan met with CCI's Supervisor of Administration, who instructed her to indicate FMLA on her Request for Leave form, and changed her projected return-to-work date to a date in excess of twelve weeks based on the Certification form. Lupyan claimed she was never told of her rights under FMLA during the meeting; however, CCI claimed that it sent correspondence to Lupyan that same afternoon indicating that her leave was designated as FMLA leave and explaining her rights. Lupyan denied receiving the letter, and further denied any knowledge of actually being placed on FMLA.

More than twelve weeks after her leave began, Lupyan received a full release to return to work from her doctor. Lupyan was terminated shortly thereafter, in part because she did not return from her FMLA leave within the twelve weeks allotted for such leave. Lupyan claimed this was the first time she became aware she was placed on FMLA. She filed suit, alleging CCI interfered with her FMLA rights by failing to provide notice that she was on FMLA leave (and thus was unaware of the requirement to return to work within twelve weeks), and further alleging she was terminated in retaliation for taking such leave. The District Court for the Western District of Pennsylvania granted CCI's motion for summary judgment and Lupyan appealed.

Under the FMLA, employers are required to provide both general and individual notice to its employees. In terms of individual notice, the employer must give an individual employee written notice that the employee's absence falls under the FMLA and is governed by it. Once the employer is on notice of FMLA-qualifying leave it must take specific action, including notifying the employee of FMLA eligibility within five business days and notifying the employee in writing whether leave is designated as FMLA leave, the obligations and consequences for not meeting those obligations under the FMLA, and the amount of leave which will count against FMLA entitlement. Failure to provide this notice may constitute an interference claim; prejudice occurs when this failure renders the employee unable to exercise the right to leave in a meaningful way. 

The legal presumption under the "mailbox rule" is that if a letter is proved to have been put into the mail (by way of the post office or by delivery to the mailman), it is presumed that "it reached its destination at the regular time" and was received by the addressee. The Court noted that certified mail provides a stronger presumption of receipt, since it "creates actual evidence of delivery." Regular mail is a weaker presumption, since no receipt or proof of delivery exists. The Court acknowledged that such receipt can be proven by introducing evidence of the practices relating to the mail, such as a sworn statement from someone with "personal knowledge of the procedures in place at the time of mailing." The presumption is not conclusive- once a party has proven mailing, the other party has the burden of producing evidence, which can be minimal, to rebut the presumption.

Here, the letter was sent by regular mail, with no return receipt or tracking requested by the employer. Further, while CCI provided sworn statements by two individuals with actual knowledge of mailing procedures, the affidavits were submitted almost four years after the purported date of mailing. The Court found this to be a weak presumption of receipt under the mailbox rule and not enough to establish actual receipt. Additionally, the Court found that Lupyan's statement alone denying she received the letter was enough to create a genuine issue of material fact, reversing the lower court's order granting summary judgment and remanding the proceedings.

The Court summed up the key takeaway here, noting that "[i]n this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice." In other words, when sending an FMLA notice to an employee, use certified mail!

New Whistleblower Protections Now in Effect For Federal Contractors

By now, most federal contractors are aware of the new regulations that go into effect on March 24 requiring federal contractors and subcontractors to take affirmative action to recruit, hire, promote, and retain protected veterans and individuals with disabilities

What many contractors may not realize is that as of July 1, 2013, they also became covered by federal whistleblower regulations. The National Defense Authorization Act for Fiscal Year 2013 created a pilot program mandating that all employees working for contractors, grantees, subcontractors, and subgrantees be protected by federal whistleblower law for all federal grants and contracts entered into after July 1, 2013.

Essentially, contractors and subcontractors may not discharge, demote, or otherwise discriminate against an employee as a reprisal for disclosing to a government agent or body information about behavior that the employee reasonably believes constitutes:

• Gross mismanagement of a federal contract or grant;
• A gross waste of federal funds;
• An abuse of authority related to federal funds;
• A substantial and specific danger to public health or safety; or
• A violation of law, rule or regulation.

Contractors are required to inform their employees, in writing, of the rights and remedies provided under the whistleblower laws and that employees are subject to whistleblower rights and remedies. This four-year pilot program applies to all grants, contracts, subgrants, and subcontracts issued through January 1, 2017.

In order to be protected under the law, the employee must make a report to a Member of Congress, a representative of a Congressional Committee, an Inspector General, the Government Accountability Office, a federal employee responsible for contract or grant oversight at the relevant agency, an authorized official of the Department of Justice or other law enforcement agency, a court or grand jury, or a management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate discover, or address misconduct.

Employers with grants, contracts, and subcontracts from the federal government should take the time to make sure that their employees know they may report suspected fraud, waste, or abuse to the government without fear of retaliation by their employers.

Serving Alcohol at Your Holiday Party

We here at the McNees Wallace & Nurick Labor and Employment Law Group have been busy preparing for the holiday season. Just last week we were able to celebrate with family and friends at our annual holiday party.

While holiday parties can be great fun, hosting a holiday party or placing holiday decorations in or around the office can raise a whole host of legal concerns including religious discrimination or harassment claims, sexual harassment claims, or workers compensation concerns. Michael R. Kelley, Esq., Chair of McNees Wallace & Nurick LLC's Insurance Recovery & Counseling Group has written in the past about serving alcohol at holiday parties and we wanted to take a few moments to remind you about the potential legal ramifications of serving alcohol at your holiday party.

Let's say that you are having a holiday party (with alcohol served) at your home, or you are a business owner and have a voluntary "company" party for your employees. If someone becomes "visibly intoxicated" at your party, are you as the host of the party liable if the visibly intoxicated guest leaves your party and injures himself or someone else? Does your homeowners or commercial liability policy cover you for defense costs and for a settlement or judgment if you get sued? What about worker's comp coverage for your employees?

In Pennsylvania, the courts have ruled that the Dram Shop Act (which covers alcohol-related liabilities) limits liability for serving intoxicated persons to only those who serve for money, unless the servee is under 21. So, social and business hosts that are not in the business of providing alcohol for money can definitely be civilly liable for serving persons under 21 years of age. However, social and business hosts are generally not liable under the Dram Shop Act for serving alcohol to those 21 and older. But, courts leave open the possibility of a common law action for negligence if a social or business host serves a visibly intoxicated person and knows or should know that the person will be driving, or engaging in some other dangerous activity.

The answer to the insurance coverage question depends on your specific coverages. In some cases, unless you specifically purchased liquor liability coverage, your homeowners and commercial liability policies will not cover you if you are sued under either the Dram Shop Act or the common law. Check your insurance policy. If "liquor liability" is a specific exclusion, you are not covered. If the policy is silent on this, you are covered. This is an area of coverage that has evolved over time, so make sure to check your policy. We recommend having insurance for liquor liability claims if you plan to spike the egg-nog this holiday season.

If an employee becomes intoxicated and is subsequently injured after attending a "voluntary" company party, there is a question as to whether your worker's compensation policy will cover it. If the party is truly voluntary, the claim may not be covered. If, despite being "voluntary," employees are expected to attend the party and it is seen by employees as having an impact on their employment status, worker's comp coverage likely will cover the injuries. Based on experience, courts look to find worker's comp coverage in these scenarios and only deny coverage if employees clearly were not required to attend and attendance had no bearing on employment status.

So, what is a good social or business host to do? Make sure that your guests don't have too much to drink this holiday season, and, if they do, make sure that they have a safe ride home. It's not only good sense, it's good insurance sense too. Also, make sure you have liquor liability coverage on your homeowners or commercial liability policy – just in case.

From everybody in the Labor & Employment Group, we wish you a happy and healthy holiday season!

Contractors Beware: Raising the Stakes in Davis-Bacon Compliance

This post was contributed by Andrew L. Levy, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group.

A recent decision by a Pennsylvania district court lends support for a growing trend of filing claims under the Federal False Claims Act based on allegations that contractors on federally funded construction projects submitted "false claims" to the U.S. government due to prevailing wage violations.  In United States ex rel. International Brotherhood of Electrical Workers, Local Union No. 98 v. The Farfield Co. (available here), the electrical workers union filed a complaint in federal court alleging that the contractor had violated the False Claims Act by submitting false certified payrolls that misclassified certain workers on public works projects in the Philadelphia area.  Although this type of complaint would normally fall within the exclusive jurisdiction of the U.S. Department of Labor, the judge nonetheless allowed the union’s case to proceed in court on a False Claims Act theory. With judicial recognition of this type of legal claim, not only does the DOL have the ability to investigate contractors for prevailing wage violations under the Davis-Bacon Act, but private citizens can also attack alleged violations under the False Claims Act.  

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Supreme Court Issues Two Title VII Decisions Favorable for Employers

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

At our recent Labor and Employment Law Seminar, we highlighted a number of outstanding legal cases that have the potential to have a significant impact on employer liability. On Monday, the U.S. Supreme Court issued decisions in two closely watched Title VII employment discrimination/retaliation cases. In each case, the Court clarified previously unsettled legal questions in favor of employers.

In Vance v. Ball State University, a 5-4 majority of the Court held that an employee qualifies as a "supervisor" for purposes of Title VII harassment liability only if the employee "is empowered by the employer to take tangible employment actions against the victim." In its analysis, the Court expressly rejected the EEOC's more expansive definition of "supervisor," which included any employee who had "the ability to exercise significant direction over another's daily work," even if the employee lacked the authority to take tangible employment actions.  

In University of Texas Southwestern Medical Center v. Nassar, the same 5-4 majority confirmed that to establish a Title VII retaliation claim, an employee must prove that the alleged protected activity was a "but for" cause of the employer's alleged adverse action. With this decision, the Court rejected the lower standard of proof used in Title VII discrimination claims, which requires proof only that the retaliation was a "motivating factor" in the employer's action. The "but for" causation standard is the same standard endorsed by the Court in 2009 for discrimination claims arising under the Age Discrimination in Employment Act.

Both Vance and Nassar will assist employers when defending against Title VII discrimination and retaliation claims. The Court in Vance limited the scope of employees who will qualify as "supervisors" for purposes of Title VII's harassment liability. If the alleged harasser does not qualify as a "supervisor," the plaintiff will need to prove that the employer was negligent in allowing the harassment to occur, a showing not necessary for supervisor-based harassment. With its Nassar decision, the Court made it more difficult for plaintiffs to prove Title VII retaliation claims by necessitating proof of but-for causation. In light of the ever increasing number of Title VII retaliation claims filed with the EEOC and in court, the Nassar decision could have a significant impact for litigants moving forward.   

Employers Can Use Disclaimers to Protect Customers from Employee Personal Injury Lawsuits

 This post was contributed by Joseph S. Sileo, Esq., a new addition to McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.  McNees recently welcomed Joe, Jennifer LaPorta Baker and Jennifer J. Walsh in Scranton, Pennsylvania.

As employers know all too well, an employee who is injured in connection with work can receive workers' compensation benefits simply by establishing that the injury occurred in the course of employment and resulted in a loss of wages. Proof of employer negligence or fault is not required. In exchange for this benefit, workers' compensation is generally the "exclusive remedy" for employees who sustain work-related injuries.   In other words, injured employees are not permitted to sue their employers for negligence in connection with their injuries. This exclusive remedy reflects the public policy bargain between employers and employees underlying Pennsylvania's workers' compensation system, by which workers give up the right to bring personal injury suits against their employers in court in exchange for the guaranty of workers' compensation benefits for work-related injuries. 

Pennsylvania's Workers' Compensation Act does not, however, prevent injured employees from taking legal action against third parties, such as an employer's clients, customers or vendors. For example, an employee who is injured while working on the property of an employer's client may, in some circumstances, file a workers' compensation claim against his or her employer and file a lawsuit against the client for negligence. 

A recent decision by Pennsylvania's Supreme Court confirms that employers can take steps to prevent such employee-initiated third party lawsuits relating to injuries covered by workers' compensation. In Bowman v. Sunoco, a security guard employee was injured during work when she fell on an icy sidewalk at a facility owned by her employer's client. In addition to filing a claim with her employer for workers' compensation benefits, the employee also sued the client for negligence. The Court held that a disclaimer signed by the employee when she was hired – stating that she waived her rights to sue the employer's clients for injuries covered by workers' compensation – was valid and precluded the employee's lawsuit against the employer's client.   

For obvious reasons, employers have an interest in protecting their clients, customers and vendors from embarrassing, costly and time-consuming employee lawsuits. In light of the Bowman decision, employers should consider using disclaimers to prevent employee lawsuits against third parties relating to work injuries covered by workers' compensation. Such disclaimers may be particularly useful in the case of employees who routinely have direct interaction with an employer's customers and vendors, or who perform work at client facilities or other remote locations.

Feel free to contact any member of the McNees Wallace & Nurick Labor and Employment Practice Group for assistance with labor and employment law issues and/or if you have any questions regarding this article.    

Supreme Court Reverses Third Circuit Decision Precluding Early Use of Offer of Judgment to Defeat An FLSA Collective Action

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

In 2011, the Third Circuit held that a pre-certification offer of judgment made by a defendant-employer to an individual plaintiff would not require dismissal of the plaintiff's entire FLSA collective action, even if the offer of judgment would fully satisfy the plaintiff's own individual claims. (Third Circuit opinion available here.) Before this decision, employers increasingly had used offers of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure to "pick off" individual plaintiffs and defeat FLSA collective actions early in the litigation before they could be certified. The Third Circuit held that even though an offer of complete relief could moot the plaintiff's individual claims (regardless of whether the offer was accepted), it would not defeat the broader FLSA collective action.

In June 2012, the Supreme Court agreed to review the Third Circuit's decision on this issue. In Genesis Healthcare Corp. v. Symczyk, a 5-4 decision announced earlier this week, the Supreme Court reversed the Third Circuit's decision and held that if the individual plaintiff's own claims were made moot by an offer of judgment prior to certification of the FLSA collective action, the broader FLSA collective action must be dismissed. (Supreme Court opinion available here.) Justice Thomas, writing for the majority, noted that both the District Court and Third Circuit found that the defendant-employer's unaccepted offer of full remedy made pursuant to Rule 68 had mooted the sole plaintiff's individual FLSA claims. Justice Thomas explained that because Symczyk, the plaintiff, had not challenged this finding in a timely manner, the question of whether an unaccepted offer of complete relief mooted Symczyk's individual claims was not properly before the Court. The Court simply accepted the Third Circuit's position on this issue and assumed that the Rule 68 offer mooted Symczyk's own claims. Based on this unchallenged assumption, the Court held that the FLSA collective action must be dismissed because the only plaintiff's individual claims were moot.

In her dissent, Justice Kagan maintained that the majority decision had no effect beyond the specific case at issue, because she believed that the Third Circuit's underlying decision on the mootness of Symczyk's individual claims was clearly erroneous. In the view of Justice Kagan, the assumption on which the majority decision was built (i.e., an unaccepted offer of complete relief mooted the plaintiff's individual claims) was faulty, making the Court's holding meaningless.

Unfortunately, the Supreme Court's decision in Genesis did not provide litigants with a definitive answer on the viability of the Rule 68 "pick off the plaintiff" strategy in FLSA collective actions. While the majority expressly held that the strategy can defeat a pre-certification collective action if the individual plaintiff's claims truly were made moot, it did not address the underlying question of whether an unaccepted offer of complete relief actually would moot the individual plaintiff's own claims. Justice Kagan and the three other dissenting Justices believe that such an offer would not moot the individual claims. While the Genesis decision breathes new life into the Rule 68 offer strategy for defendant-employers, the individual claims/mootness issue seemingly will continue the uncertainty for courts and litigants in FLSA collective actions.

Nonresident, Out-of-State Workers not Protected by PHRA

Earlier this month, a federal judge in Pennsylvania ruled that the protections of the Pennsylvania Human Relations Act (“PHRA” or “Act”) do not extend to employees who neither live nor work in Pennsylvania. The PHRA is Pennsylvania’s comprehensive anti-discrimination law that promotes equal opportunity and prohibits discrimination in employment based on race, color, sex, age, religion, disability, and other protected traits.

In Blackman v. Lincoln National Corp. (pdf), plaintiff Kathy Blackman filed an employment discrimination case against her former employer alleging she was subject to discrimination on the basis of sex and age in violation of the PHRA. At the time of the alleged discriminatory act, Blackman lived in Illinois and worked in the Illinois office of a company headquartered in Pennsylvania. The judge dismissed Blackman’s PHRA claim after concluding that the PHRA does not apply to non-resident, out-of-state workers.

In reaching this conclusion, the judge noted that the sections of the PHRA addressing discrimination in employment are silent as to their application to nonresidents not working in Pennsylvania. Finding no guidance in these sections of the PHRA, the judge looked to the purpose and intent of the statute as a whole. Because the Act clearly provides that the intent of the PHRA is to protect “the inhabitants of” and “the people of the Commonwealth,” the court ruled that the PHRA does apply extraterritorially (i.e., outside of the state’s border).

In nonetheless attempting to come within the scope of the PHRA, Blackman argued that the statute applies because (i) her employer’s corporate headquarters and principal place of business are located in Pennsylvania, (ii) she worked in Pennsylvania on occasion and frequently communicated with Pennsylvania employees, and (iii) the decision to take adverse employment action against her was made by a Pennsylvania-based decision-maker. The judge rejected all of these arguments. Specifically, he noted that the relevant location for determining the application of the state anti-discrimination law is where the employee works, not the employer’s location or the location where the alleged discriminatory decision occurred. Furthermore, attending quarterly meetings in Pennsylvania and having daily interactions with employees located in Pennsylvania is not sufficient contact with the state to trigger application of the PHRA.

While Blackman forecloses extraterritorial application of the PHRA to nonresident, out-of-state workers, one important question remains outstanding: whether the Act protects only those who live in Pennsylvania or also those who work in the state but reside elsewhere. The Philadelphia-based judge declined to answer this question, but not before noting that limiting the scope of the PHRA to only those who live in the state could result in an unfair result to many New Jersey residents who come to the Commonwealth for work.

Are You Liable for Serving Alcohol at Holiday Parties?

This post was contributed by Michael R. Kelley, Esq., Chair of McNees Wallace & Nurick LLC's Insurance Recovery & Counseling Group.

Let's say that you are having a Holiday party (with alcohol served) at your home, or you are a business owner and have a voluntary "company" party for your employees. If someone becomes "visibly intoxicated" at your party, are you as the host of the party liable if the visibly intoxicated guest leaves your party and injures himself or someone else? Does your homeowners or commercial liability policy cover you for defense costs and for a settlement or judgment if you get sued? What about worker's comp coverage for your employees?

In Pennsylvania, the courts have ruled that the Dram Shop Act (which covers alcohol-related liabilities) limits liability for serving intoxicated persons to only those who serve for money, unless the servee is under 21. So, social and business hosts that are not in the business of providing alcohol for money can definitely be civilly liable for serving persons under 21 years of age. However, social and business hosts are generally not liable under the Dram Shop Act for serving alcohol to those 21 and older. But, courts leave open the possibility of a common law action for negligence if a social or business host serves a visibly intoxicated person and knows or should know that the person will be driving, or engaging in some other dangerous activity.

The answer to the insurance coverage question depends on your specific coverages. In some cases, unless you specifically purchased liquor liability coverage, your homeowners and commercial liability policies will not cover you if you are sued under either the Dram Shop Act or the common law. Check your insurance policy. If "liquor liability" is a specific exclusion, you are not covered. If the policy is silent on this, you are covered. This is an area of coverage that has evolved over time, so make sure to check your policy. We recommend having insurance for liquor liability claims if you plan to spike the egg-nog this holiday season.

If an employee becomes intoxicated and is subsequently injured after attending a "voluntary" company party, there is a question as to whether your worker's comp policy will cover it. If the party is truly voluntary, the claim may not be covered. If, despite being "voluntary," employees are expected to attend the party and it is seen by employees has having an impact on their employment status, worker's comp coverage likely will cover the injuries. Based on experience, courts look to find worker's comp coverage in these scenarios and only deny coverage if employees clearly were not required to attend and attendance had no bearing on employment status.

So, what is a good social or business host to do? Make sure that your guests don't have too much to drink this Holiday season, and, if they do, make sure that they have a safe ride home. It's not only good sense, it's good insurance sense too. Also, make sure you have liquor liability coverage on your homeowners or commercial liability policy – just in case.

EEOC Releases Strategic Enforcement Plan

This post was contributed by Kelley E. Kaufman, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group. A version of this post appeared in an Employer Alert published by McNees Wallace & Nurick LLC's Labor and Employment Group in October 2012. The Employer Alert can be accessed here.

The Equal Employment Opportunity Commission ("EEOC" or the "Agency") recently released a draft of its Strategic Enforcement Plan for Fiscal Years 2012 through 2016.  The Agency has requested public comment on the Plan, which describes its strategy for targeted enforcement and the integration of administrative and legal enforcement activities.  These efforts that are meant to help the Agency meet its responsibilities in the face of increasing demand and limited resources.

Most notably for employers, the EEOC's Plan outlines the nationwide priorities for its enforcement efforts in private, state and local government, and federal sectors.  These priorities include:

  • Eliminating systemic barriers in recruitment and hiring, which includes targeting not only class-based intentional hiring discrimination, but also facially-neutral hiring practices that have an adverse impact on certain protected groups (e.g., race, age, gender).  Those topics of particular interest to the EEOC under this initiative will include pre-employment testing, background screening, date of birth screenings in Internet applications.
  • Protecting immigrant, migrant and other vulnerable workers by targeting practices such as disparate pay, job segregation, harassment and trafficking, as well as policies that may include discriminatory language.
  • Targeting retaliation, as well as policies and practices that are designed to discourage or prohibit the exercise of rights under the anti-discrimination laws.  Retaliation claims represent the largest category of EEOC charges filed.  The Plan indicates that this initiative will, in part, also target over-broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information in EEOC and other legal proceedings, and the failure to retain records as required under the EEOC regulations. 
  • Addressing "emerging employment issues" including a variety of issues under the Americans with Disabilities Act, as amended, and those involving pregnancy leave.  Another emerging issue in the EEOC's crosshairs include coverage for lesbian, gay, bisexual and transgender individuals under the anti-discrimination laws.  Most recently, the Agency has taken the position that discrimination based upon an individual because he or she is transgender is discrimination because of sex.  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
  • Continued targeting of harassment, including a renewed focus on national education and outreach for both employees and employers.

As the EEOC notes in its Plan, this targeted approach on clearly-identified issues and strategies "shifts the enforcement paradigm from complaint-driven to priority-driven." 

Employers should take note of the target areas, which highlight the areas on which the Agency will be focusing in the coming years – and areas on which employers should be focusing now.  Taking time to review company policies, procedures and training in these target areas now may help avoid costly and time-consuming claims in the future. 

NLRB Provides New Guidance on At-Will Employment Provisions

On October 31, 2012, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued two advice memoranda addressing at-will provisions in employee handbooks. In both cases, the NLRB concluded that the specific at-will provision could not reasonably be interpreted to restrict protected activity and, therefore, was permissible under federal labor law.

The NLRB’s guidance follows a controversial decision earlier this year from an NLRB administrative law judge (ALJ). In that decision, the ALJ held that an at-will disclaimer adopted by an American Red Cross regional unit was unlawfully overbroad to the extent it conveyed that at-will status could never be changed. Notably, Red Cross employees were required to sign a form stating “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” In the Red Cross matter, the ALJ found the language to be unlawful because it implied any concerted effort undertaken by employees to alter the at-will status would be futile. (We previously commented on the Red Cross decision in our October 2012 Employer Alert.)

The ALJ’s ruling in Red Cross generated significant attention and raised concerns that more challenges to the at-will language commonly included in employee handbooks would follow. The NLRB’s recent advice memos, however, provide welcome guidance and serve to allay these concerns.

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Bringing Politics into the Workplace during Election Season: A Wise Move for Employers?

This post was contributed by Eric N. Athey, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group.

Mitt Romney recently drew criticism for commenting to the National Federation for Independent Business (NFIB) that employers should weigh in on the upcoming election when speaking to employees. Specifically, Romney told NFIB members: "I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections." Romney went on to say that there is "[n]othing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well." These comments likely had many HR professionals across the country asking, "Can employers really do that?"

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Employer Takeover of Employee's LinkedIn Account Does Not Violate Federal Computer Hacking Law, Question of Ownership Remains

Given the popularity of Facebook, Twitter, and LinkedIn, more and more organizations are resorting to social media sites to promote their brands and manage their public profiles. Employers are also encouraging employees to open social media accounts to carry out marketing and networking objectives. As corporate and professional social media use increases, so is the frequency of lawsuits challenging just who owns such social-networking accounts and content—the company or the employee who maintains them. A federal judge is being asked to address this very issue in a case involving a Pennsylvania woman’s claim that her former employer violated the Computer Fraud and Abuse Act (CFAA) when it took control of her LinkedIn account after she was fired (pdf).

Linda Eagle was co-founder and president of Edcomm, a bank consulting and training company. In 2008, Eagle created a LinkedIn profile; she used the profile to promote Edcomm’s services, foster her reputation, reconnect with friends and colleagues, and build her personal and professional network. Eagle shared the account password with another employee, who assisted Eagle in maintaining the LinkedIn profile. In 2011, following a change in ownership, Eagle was fired. After her termination from Edcomm, Eagle attempted to access her LinkedIn account, but was unsuccessful. Edcomm, using Eagle’s password, had accessed her account and changed her password so as to restrict Eagle’s access. In addition, Edcomm removed Eagle’s name and picture and posted information on the new executive who was hired in her place. Three weeks later, Eagle was able to regain access to her LinkedIn account.

Eagle then sued, claiming that the unauthorized takeover of her LinkedIn account violated the CFAA, caused her to lose potential business contacts and future revenue, and damaged her reputation. In response, Edcomm filed a counterclaim alleging that it had maintained and monitored the LinkedIn profile for the company’s benefit, that it was the rightful owner of the account, and that Eagle misappropriated the account for personal use.

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NLRB Decisions Suggest that Section 7 Disclaimer Could Save Vague Policies

As readers of this blog surely are aware, the National Labor Relations Board (NLRB) has embarked on a crusade against overbroad social media policies and handbook language. Notably, in a trio of social media reports, the NLRB’s Office of General Counsel suggested that prohibitions on offensive, demeaning, and inappropriate comments or statements that could damage the reputation of the company or its employees are unlawfully vague and could have a chilling effect on employee communications critical of the terms and conditions of their employment. Moreover, the Office of General Counsel expressed its opinion that the inclusion of a Section 7 disclaimer would not save ambiguous policies. Recent decisions, however, signal that the NLRB has adopted a contrary position.

In September, the NLRB issued two decisions striking down two such anti-disparagement policies as overbroad. In both decisions, though, the NLRB was critical of the fact that the policy in question did not include language excluding protected Section 7 communications from its broad reach. While the NLRB rulings do not go as far to say that a disclaimer of restrictions on Section 7 activity would cure a vague policy, the NLRB’s analysis suggests that a disclaimer could be effective. Specifically, the NLRB reasoned that such limiting language would reduce the likelihood that employees could reasonably construe the policy as applying to protected concerted activity.

In light of these recent decisions and the flurry of NLRB activity in this area, both unionized and non-unionized employers should revisit their social media policies and employee handbooks to ensure they could survive the NLRB’s scrutiny. In policies prohibiting disparaging comments, whether at work or on social media, employers would do well to include specific examples of what is not allowed—e.g., language that is vulgar, obscene, threatening, harassing, or malicious. In addition, employers should incorporate into their policies language disclaiming an intent to interfere with an employee's Section 7 rights, including the right to discuss wages, hours, or other terms and conditions of employment.

Federal Appeals Court Gives Wellness Program a Clean Bill of Health

This post was contributed by Eric N. Athey, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group.

Employers and wellness advocates have long been confounded by the complex gauntlet of federal laws and regulations that must be considered when structuring wellness programs. HIPAA's non-discrimination requirements, the Genetic Information Nondiscrimination Act ("GINA") and, perhaps most daunting, the Americans with Disabilities Act ("ADA") are among the laws that come into play when an employer is considering its wellness plan options.

Perhaps the most closely watched legal issue concerning wellness programs is this: May an employer offer a health coverage premium discount to those employees who complete a "health risk assessment" ("HRA")? Or, put another way, may employees who choose not to complete an HRA be subject to a premium surcharge? HIPAA regulations clearly allow employers to offer "bona fide wellness programs" with limited premium discounts; however, tying a discount to completion of an HRA presents a potential rub under the ADA. 

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State Supreme Court Extends Workers' Compensation Liability to Subcontractor's Employees

Under the Pennsylvania Workers’ Compensation Act (“Act”), employers are required to maintain workers’ compensation insurance coverage. Generally, the employer’s obligation extends only to maintaining coverage for its employees, as that term is defined by law. Independent contractors are not eligible for workers’ compensation benefits under the Act.

However, Section 302(a) of the Act provides that an entity may be deemed a “statutory employer” as to independent contractors of a subcontractor who fails to maintain workers’ compensation insurance. Specifically, an entity that engages a subcontractor to perform work regularly a part of the entity’s business is secondarily liable for the payment of workers’ compensation benefits to the subcontractor’s employees.

Earlier this year, the Pennsylvania Supreme Court issued an opinion expanding the scope of statutory employer liability under the Act. The case was Six L’s Packing Company v. Workers’ Compensation Appeal Board (Williamson) (opinion).

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New Law to Mandate Use of E-Verify by Public Works Contractors and Subcontractors

On July 5, 2012, Pennsylvania Governor Tom Corbett signed into law the Public Works Employment Verification Act (“Act”), which requires state public works contractors and subcontractors to use the E-Verify program operated by the Department of Homeland Security. The E-Verify program is a free online system that compares information from an employee's Form I-9, Employment Eligibility Verification, to government records to instantly confirm employment eligibility.

Under the Act, a contractor must, as a precondition of being awarded a contract for a public work, submit verification that it checked the status of all new employees with the E-Verify program and that, according to the program, such employees are legally permitted to work in the United States. Subcontractors who perform work for public works contractors must provide the same verification prior to starting subcontracting work. Material suppliers are not subject to the Act. 

For purposes of the new law, public works projects are those covered under the Pennsylvania Prevailing Wage Act—construction, reconstruction, demolition, alteration and/or repair work, other than maintenance work, done under contract, and paid for in whole or in part by state, municipal, or county funds where the estimated cost of the total project is in excess of $25,000.

Contractors and subcontractors who fail to verify the employment eligibility of their new employees through the E-Verify program will face sanctions, which range from a warning for a first offense to a ban from publicly funded projects for up to three years for willful violations. In addition, contractors and subcontractors who fail to submit the verification will face fines of up to $1,000. The Department of General Services is tasked with creating a verification form, enforcing the Act, investigating complaints, and conducting complaint-based and random audits of contractors and subcontractors. 

The Act goes in to effect on January 1, 2013; public works contracts executed after the effective date will be subject to the verification requirements. 

For state contractors and subcontractors, as well as other employers, who do not already use the E-Verify program, the Labor and Employment Group at McNees Wallace & Nurick is available to provide additional guidance concerning the process.

Independent Contractor Misclassification in the Crosshairs

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

In recent weeks, identical bills were proposed in the House (H.R. 4123) and Senate (S. 2145) to eliminate the so-called “safe harbor” in the federal tax code that protects businesses that have misclassified employees as independent contractors and, thus, have avoided paying payroll taxes, unemployment insurance, workers’ compensation premiums and other costs. These bills mark the second time in 18 months that such legislation has been put forward. Though unlikely to pass, especially in this gridlocked Congress, the bills are just the latest in a number of recent endeavors by state and federal lawmakers and law enforcement agencies to curb independent contractor misclassification.

While the bills recognize that many workers are properly classified as independent contractors, the U.S. Department of Labor (DOL) estimates that as many as 30% of employers are misclassifying employees as independent contractors. According to the IRS, approximately $54 billion in tax revenues are lost annually because of independent contractor misclassification.

In light of these large numbers, this past September, the IRS and DOL announced a joint initiative aimed at businesses that misclassify employees as independent contractors. Under the agreement between the two agencies, the IRS and DOL will begin to share information with each other and coordinate vigorous efforts to crack down on the misuse of the independent contractor designation. The agencies will also provide educational materials to businesses using independent contractors and to employees who may be misclassified. 

For employers who cannot take advantage of the safe harbor, the IRS also announced an employment tax “amnesty” program that allows businesses to rectify past independent contractor misclassifications at a reduced cost. 

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Go ahead and ask for the Facebook password, IF...

Bottom line: There is nothing unlawful about an employer requesting that an applicant voluntarily provide a Facebook password. (Check out the site's policies though - that practice may violate Facebook's terms and conditions of use.)

However, such practice may open a Pandora's box of potential liability for employers who proceed without appropriate policies, procedures and safeguards in place. Among a host of other legal concerns, an applicant may claim that he or she was coerced into providing the log-in information in violation of the federal Stored Communications Act or a state law equivalent.

Best practice? Ensuring that policies and procedures are in place, and flexible enough to protect your organization from the pitfalls of social media in the workplace will be critical to defending claims that may arise following the adoption of these types of practices.

You can also view this video at


Pennsylvania Whistleblower Law Restricts Ability of Public Employers and Non-Profits to Terminate Employees

In Pennsylvania, as in the majority of states, most employees are presumed to be employed “at will.” Under the at-will employment doctrine, an employer does not need “cause” to terminate an employment relationship. Rather, the employer may terminate an employee at any time, for any reason or no reason at all. (At the same time, the employee reserves the right to terminate his or her employment for any reason.) The only caveat is that the employer’s reason for termination cannot be an illegal one.

Federal and state statutes, as well as the courts, have created a number of exceptions to the doctrine of at-will employment. To be sure, an employee cannot be fired (or demoted, transferred, denied a promotion, or subject to any otherwise “adverse employment action”) on the basis of race, religion, gender, national origin, age, or disability, among other things. In addition, under Pennsylvania law, certain employers may not terminate an employee who has reported that his or her employer is engaging in misconduct.

Such retaliation is prohibited by Pennsylvania’s Whistleblower Law, 43 P.S. § 1421 et seq. Specifically, the Whistleblower Law makes it unlawful for an employer to “discharge, threaten or otherwise discriminate or retaliate against” an employee for making a good faith report to a superior or to an “appropriate authority” about an instance of “wrongdoing or waste.” The Whistleblower Law also prohibits retaliation against an employee who has participated in an investigation, hearing, or inquiry into the employer’s alleged misconduct.

While the Whistleblower Law does create a significant carve-out to the at-will employment doctrine, the whistleblower protections afforded do not protect every gripe, objection, or criticism of a dissatisfied employee. Specifically, the Law extends whistleblower protections to only those employees who report “waste” or “wrongdoing.” These terms are narrowly defined to require more than a report of inefficient business practices or violation of internal policies. Rather, the Whistleblower Law requires a report of conduct that is (1) specifically prohibited by a particular federal, state, or local law or regulation; (2) a substantial abuse of public funds or resources; or (3) a breach of professional ethics. Moreover, the employee must report the misconduct internally to a supervisor or externally to a government body or agency with appropriate enforcement or regulatory authority over the subject of the report; a report to a co-worker, the general public, or a member of the media is not protected.

The most significant limitation on an individual’s ability to challenge his termination under the Whistleblower Law is that the statute extends whistleblower protections to only those who are considered “employees” within the meaning of the statute. Unlike many states who extend whistleblower protection to both public and private employees, the Pennsylvania Whistleblower Law narrowly defines “employee” to be an individual performing work for wages for a “public body.” In simple terms, a “public body” is a state or local government agency or department, or any entity “funded in any amount by or through Commonwealth or political subdivision authority.”

What then qualifies as a “public body”? Clearly, state agencies, departments, and commissions; county, city, and township bodies; municipal corporations; and school districts are public bodies. But beyond that, the answer depends on whom you ask. 

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Pennsylvania Court Finds Employee Handbook Creates Contract, Upholds $187.6 Million Award

The year 2011 saw a number of employee-friendly changes to the laws governing the workplace. The U.S. Supreme Court expanded the scope of retaliation claims under Title VII and under the Fair Labor Standards Act. The Equal Employment Opportunity Commission (EEOC) implemented regulations further broadening the definition of “disability” under the ADA. The National Labor Relations Board actively protected employee social media use. And the EEOC has cracked down on inflexible leave of absence and attendance policies.

Pennsylvania courts have not shied away from the action. In 2011, the Pennsylvania Superior Court upheld one of the largest awards in a wage and hour class action in the state’s history. In Braun v. Wal-Mart, the court awarded $187.6 million in back wages, damages, and fees to employees of Wal-Mart stores throughout Pennsylvania for paid rest breaks they were not permitted to take. Approximately 187,000 current and former hourly Wal-Mart employees claimed that the employee handbook promised paid rest breaks, but they were forced to work during those breaks and were not compensated for the missed breaks.

The employees brought their claims under Pennsylvania’s Wage Payment and Collection Law (WPCL). The WPCL does not entitle employees to wages or fringe benefits, but rather provides a remedy when an employer fails to pay for wages or benefits due under the terms of a contract or agreement. According to the court in Braun, payment associated with paid rest breaks pursuant to a contractual agreement between an employer and employee constitutes wages as that term is broadly defined in the WPCL. And the court ultimately found such a contractual agreement for paid rest breaks under the facts before it.

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Are you liable for serving alcohol at holiday parties in Pennsylvania? Does your insurance policy cover you?

This post was contributed by Michael R. Kelley, Esq.Chairperson of McNees Wallace & Nurick LLC's Insurance Recovery & Counseling Group.

Let's say that you are having a Holiday party (with alcohol served) at your home, or you are a business owner and you are having a voluntary "company" party for your employees. If someone becomes "visibly intoxicated" at your party, are you as the host of the party liable if the visibly intoxicated guest leaves your party and injures himself or someone else? Does your homeowners or commercial liability policy cover you for defense costs and for a settlement or judgment if you get sued? What about workers' compensation coverage for your employees?

The answers are complicated, I'm afraid.

In Pennsylvania, the courts have ruled that the Dram Shop Act (which covers alcohol-related liabilities) limits liability for serving intoxicated persons to only those who serve for money, unless the servee is under 21. So, social and business hosts that are not in the business of providing alcohol for money can definitely be civilly liable for serving persons under 21 years of age.

However, social and business hosts are generally not liable under the Dram Shop Act for serving alcohol to those 21 and older. But, courts leave open the possibility of a common law action for negligence if a social or business host serves a visibly intoxicated person and knows or should know that the person will be driving, or engaging in some other dangerous activity.

The answer to the insurance coverage question is a little clearer. In many cases, unless you specifically purchased liquor liability coverage, your homeowners and commercial liability policies will not cover you if you are sued under either the Dram Shop Act or the common law. Check your insurance policy. We recommend having insurance for liquor liability claims if you plan to spike the egg-nog this holiday season.

If an employee becomes intoxicated and is subsequently injured after attending a "voluntary" company party, there is a question as to whether your workers' comp. policy will cover it. If the party is truly voluntary, the claim may not be covered. If, despite being "voluntary," employees are expected to attend the party and it is seen by employees has having an impact on their employment status, workers' comp. coverage likely will cover the injuries. Based on experience, courts look to find workers' comp. coverage in these scenarios and only deny coverage if employees clearly were not required to attend and attendance had no bearing on employment status.

So, what is a good social or business host to do? Make sure that your guests don't have too much to drink this Holiday season, and, if they do, make sure that they have a safe ride home. It's not only good sense, it's good insurance sense too. Also, make sure you have liquor liability coverage on your homeowners or commercial liability policy – just in case.

The McNees Insurance Recovery and Counseling Group helps clients understand their insurance coverage, submit claims and, where appropriate, helps ensure insurance companies honor legitimate claims. 

OSHA Publishes Game Plan for Workplace Violence-Related Inspections

This post was contributed by Eric N. Athey, Esq., Co-Chair of the McNees Wallace & Nurick LLC Labor and Employment Group. 

Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services. However, to date, there is no OSHA general industry standard addressing this serious hazard.

Although there is presently no OSHA general industry standard for preventing workplace violence, OSHA has cited some employers for failing to address serious known risks under Section 5(a)(1) of the Occupational Safety and Health Act - also known as the "general duty clause." Basically, the general duty clause requires employers to provide a workplace free from recognized hazards. Citations under the general duty clause may arise where an OSHA inspector discovers evidence that an employer knew (or should have known) of individual or industry-specific risks of violence and failed to take feasible steps to prevent or minimize them. Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.

On September 8, 2011, OSHA issued an "Instruction" to its Regional Offices titled "Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents." The Instruction is intended to facilitate a uniform approach to workplace violence inspections that are triggered due to: (1) a complaint, referral, or a fatality or catastrophic event in the workplace; or (2) as part of a programmed inspection where there is recognition of the potential for violence in the industry or where the hazard is identified and existing. The OSHA Instruction makes clear that inspections generally won't be considered in response to a single co-worker threat of violence and that such individualized issues should be referred to the appropriate government agency.

The OSHA Instruction lists three basic criteria that Regional Offices must consider when determining whether a workplace violence inspection is appropriate: (1) whether there are known risk factors in the particular workplace; (2) evidence of employer and/or industry recognition of the potential for workplace violence in OSHA-identified high risk industries, such as late night retail, healthcare and social services; and (3) whether there are feasible abatement methods available to address the risks.

The "known risk factors" listed in the OSHA instruction are:

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Pennsylvania Act Protects Employees Who Report Crimes to Police

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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NLRB Settles Facebook Complaint

On November 11, 2010, we reported that the Hartford, CT Regional Office of the National Labor Relations Board (NLRB) issued a Complaint alleging that an employer illegally terminated an employee who mocked her supervisor on her personal Facebook page. Our post can be viewed by clicking here.

On February 7, 2011, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.

While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media. Therefore, all employers, both unionized and non-union, should review and consider revising their electronic resources and Internet postings policies to ensure that those policies would not be viewed as overly broad or overly restrictive if challenged. 

U.S. Supreme Court Widens the Scope of Retaliation Claims under Title VII

This post was contributed by Anthony D. Dick, Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

The number of retaliation-based charges of discrimination filed with the Equal Employment Opportunity Commission (the “EEOC") has doubled from approximately 18,000 to 36,000 in the last ten years.  Last week, the United States Supreme Court issued a decision that surely will cause this trend to continue.  In a unanimous decision, the Court held in Thompson v. North American Stainless (pdf) that an employee who claimed he was terminated because his fiancée engaged in protected activity, could bring a retaliation claim against their mutual employer under Title VII of the Civil Rights Act of 1964 ("Title VII").

Plaintiff Eric Thompson met and eventually became engaged to Miriam Regalado while both worked for North American Stainless (“NAS”).  Subsequently, Regalado filed a charge of discrimination with the EEOC, claiming NAS discriminated against her because of her sex. Approximately three weeks later, NAS fired Thompson.  Thompson filed suit, alleging his termination was in retaliation for his fiancée’s protected activity.

Both the U.S. District Court for the Eastern District of Kentucky and the Sixth Circuit Court of Appeals ruled that Thompson did not have standing to sue for retaliation under Title VII because he had not engaged in any protected activity under the law.  The Sixth Circuit reasoned that the plain language of Title VII did not contemplate third-party retaliation claims.  The statute specifically provides that:  “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.” 

In an opinion written by Justice Scalia, the Supreme Court determined that NAS’s alleged conduct was prohibited by Title VII.  The Court ruled that the anti-retaliation provision of Title VII must be construed broadly to prohibit any employer action that would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Applying this rule, the Court found that a reasonable employee certainly would be dissuaded from engaging in protected activity if she knew that the consequence would be her fiancé’s termination from the company.

NAS argued unsuccessfully that this standard will force employers into an unenviable position of having to try to identify whether an employee who is about to be terminated has a close relationship with someone who recently engaged in protected activity before taking an adverse action that could expose it to a third-party retaliation claim.  In rejecting this argument, the Court noted that, "[a]lthough we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII." 

The Court refused to articulate a bright-line rule concerning how close a relationship must be to afford third-party retaliation protection, stating in pertinent part, “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

In analyzing Thompson’s standing to sue under Title VII, the Supreme Court went on to find that the term “person aggrieved” under the statute includes a plaintiff who falls within the "zone of interests" sought to be protected by Title VII.  Thus, if Title VII “arguably sought” to protect that person’s rights, he or she has standing under Title VII; however, if the individual has interests that are only “marginally related to or inconsistent” with the purposes of law, no standing to sue exists.

According to the Supreme Court, Thompson had standing to pursue his own retaliation claim against NAS because he fell within the amorphous “zone of interests” contemplated by Title VII.

It should be clear that this case expands the bounds of employers’ potential liability under Title VII.  Now, more than ever, employers should use caution when taking adverse action against an employee whose spouse, family member, domestic partner or fiancé(e) recently engaged in protected activity.  And, as always, employers should document the specific reasons for employee terminations and follow established company policies to limit later arguments by a terminated employee that he or she was terminated because of a retaliatory motive on the part of the employer.

New Pennsylvania Law Imposes Penalties for Misclassification of Independent Contractors in the Construction Industry

Independent contractor arrangements have come under fire lately from both state and federal governments. Pennsylvania recently went a step further, enacting legislation governing independent contractor arrangements in the construction industry. On October 13, 2010, the Construction Workplace Misclassification Act (the “Act”) was signed into law. The Act provides criteria for classifying independent contractors within the construction industry and imposes a variety of penalties for misclassifying employees as independent contractors. 

I. What Are the Criteria for Independent Contractor Classification Under the Act?

The Act specifies that, in order to be properly classified as an independent contractor under the Act, and also for purposes of Workers’ Compensation and Unemployment Compensation, an individual must:

1.       Have a written contract to perform services in the construction industry for remuneration;

2.       Be free from control or direction over the performance of such services – both under the contract and in fact; and

3.       Be engaged in an independently established trade, occupation, profession or business with respect to such services.

Further, in order to meet the third part of the requirement, above, the individual must:

·         Possess the essential tools, equipment and other assets necessary to perform the services;

·         Be able to sustain a profit or a loss as a result of performing the services;

·         Perform the services through a business in which he or she has a proprietary interest;

·         Maintain a business location separate from the location of the person for whom he or she performs the services;

·         Previously have performed the services for another while free from direction or control and under a contract of service and in fact; or hold him or herself out as an independent contractor; and

·         Maintain liability insurance during the term of the contract of at least $50,000.

The failure to withhold income taxes or to pay unemployment contributions or workers’ compensation premiums may not be considered as a factor in the independent contractor analysis. 

II. What Constitutes a Violation Under the Act – and What Are the Penalties?

An employer – or an officer or agent of an employer – may be subject to a variety of penalties under the Act if he or she fails to properly classify an individual as an employee for purposes of the Unemployment Compensation Law or the Workers’ Compensation Act and fails to provide coverage required under those laws. Penalties may include both civil and criminal sanctions, as well as the possibility of a stop work order. 

Civil penalties can range from $1,000 per violation to $2,500 per violation for first-time and repeat violations, respectively. In addition, a stop-work order may issue as a result of violations of the Act. Such an order requires misclassified individuals to cease work within 24 hours of the order, which may result in the cessation of all of the employer's business operations at each site where a violation occurred. Employers will be subject to an added $1,000-per-day penalty for each day that they conduct business operations in violation of an order. The order will continue until a subsequent court order releases it. 

The Act also provides for criminal penalties. Under the Act, each violation of independent contractor classification requirements will be graded as a second or third degree misdemeanor or a summary offense, depending upon whether the violation is found to be intentional or negligent. A summary offense conviction will require payment of $1,000 or less. 

Importantly, these penalties apply for violations separately – meaning each individual instance of independent contractor misclassification will be considered a separate violation under the Act. In addition, a non-employer third party who intentionally contracts with an employer knowing that the employer intends to misclassify employees also will be subject to the Act’s penalty provisions.

The Act goes into effect on February 10, 2011. In the interim, construction industry employers should carefully review their independent contractor arrangements for compliance with the Act’s criteria and take the necessary steps to ensure compliance on February 10, 2011 – and moving forward.  

NLRB Issues Complaint Over Facebook Posts Mocking Supervisor

In what the National Labor Relations Board's (the "NLRB") Acting General Counsel called a "straightforward case" under the National Labor Relations Act ("NLRA"), the Hartford Regional Office of the NLRB issued a Complaint (pdf) alleging that an employer illegally terminated an employee who posted disparaging remarks about her supervisor on her personal Facebook page. While the October 27, 2010 Complaint is only an accusation, and not a formal ruling from the NLRB, the repercussions of this action are critically important for both unionized and non-union employers.

Employees of the employer, American Medical Response of Connecticut, Inc., are represented by Teamsters Local 443. One of those employees posted negative, critical comments mocking her supervisor on her personal Facebook page. Other employees commented on the posts, which prompted the employee to make further negative statements. The employee was subsequently terminated by the employer for posting the disparaging comments on the Internet, because the posts violated the employer's social media policy. The NLRB conducted an initial investigation, and determined that there was enough evidence to warrant a hearing to determine whether the employer violated the NLRA.

The Complaint alleges that the termination violated the NLRA's prohibition against punishing employees for engaging in concerted protected activity. The NLRB Regional Director has taken the position that the employee's disparaging comments about her supervisor were protected activity under the NLRA because the employee was discussing her working conditions. Under the NLRA, employers are prohibited from punishing employees for concertedly discussing wages, benefits and other working conditions. In the NLRB's view, the fact that other employees commented on the employee's post meant that there was concerted activity by the employees.

Importantly for both unionized and non-union employers, the Complaint also alleges that the employer's policies were overly broad and restricted employees from discussing working conditions. In the view of the NLRB Regional Director, the policies alone violate the NLRA.

While this matter is only at the Complaint stage, the Complaint itself is an eye-opener for many employers and may be another sign of things to come from the NLRB. On September 9, 2010, we added a post about President Obama's appointments to the NLRB, and the likelihood that the NLRB would continue to pursue a decidedly pro-union agenda.

Unionized and non-union employers alike must be sure to review all of their policies, including their social media and internet posting policies, to ensure that the policies do not restrict employees' abilities to discuss wages, hours and other working conditions. Also, we will continue to provide updates as this case unfolds, so employers should also be sure to check back for further posts.

New ADA Public Accommodation Regulations Provide a Good Opportunity for Businesses to Review Their Policies and Procedures

This post was contributed by Anthony D. Dick, Esq., an Associate and a member of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

Most employers have at least some basic understanding of the Americans with Disabilities Act’s (ADA) prohibition against discrimination on the basis of an employee’s disability. Fewer are aware that the ADA contains separate provisions concerning public accommodation requirements for businesses open to the public. In its most basic form, Title III of the ADA requires virtually all facilities open to the public - including restaurants, hotels, motels, retailers, medical facilities, health clubs, museums, libraries, parks, day care facilities and entertainment venues - to remove architectural and communications barriers from their facilities to ensure access to persons with disabilities. The driving force behind the statute is to allow persons with disabilities to participate equally in the goods and services offered by places of public accommodation.

In conjunction with the 20th anniversary of the ADA’s enactment, the Department of Justice recently rolled out several new revisions to the ADA public accommodation regulations. In implementing the new regulations, the Department of Justice has made clear that the new standards should be viewed as “more than incremental changes” to the previously applicable 1991 standards. To that end, in many ways, the new regulations create heightened accessibility requirements for public accommodations.

It is important to note that the new rules contain a “safe harbor” provision. Covered entities that were built or altered in compliance with the 1991 standard will not be required to comply with the 2010 standards unless or until existing facilities are altered in the future. However, new requirements that were not a part of the 1991 standards are not subject to the safe harbor provision. Businesses should begin planning now to achieve compliance with the 2010 standards with regard to these new elements.

The new regulations modify the 1991 standards with respect to single toilet user rooms, reach ranges, assembly areas, common use circulation paths in employee work areas, fitting rooms, disbursement of accessible guest rooms in places of public lodging, accessible parking, urinals, and sales and service counters – just to name a few. Additionally, the new regulations address a number of brand new accommodation requirements for golf and miniature golf courses, amusement park rides, playgrounds, swimming pools, exercise equipment and other public accommodations.

The latest regulations targeting barriers to places of public accommodation specifically include the following:

Service Animals
The new ADA regulations now make clear that only dogs (and in limited circumstances miniature horses) can act as service animals. To qualify as a service animal, the dog must be individually trained to do work or perform tasks for the benefit of a disabled individual. Under the new rules, animals that merely provide emotional support and comfort to their owners do not qualify as service animals. The new rules also contain provisions regarding what questions a provider of a public accommodation may ask a person purporting to be with a service animal.

Wheelchair and Other Mobility Device Accessibility
The regulations mandate that public accommodations allow the use of wheelchairs and manually powered mobility aids in all areas open to the public. According to the new rules, public accommodations must also permit the use of “other power-driven mobility devices” (e.g. golf carts, Segways, etc.) unless they can show the use of such devices would create a safety hazard to others. The burden is on the provider of the public accommodation to show that the mobility device creates a safety hazard if it wishes to limit or exclude their use on the business’ premises.

Lodging Reservations
The regulations also contain new provisions that will have a significant impact on how hotels and other places of lodging do business. Key provisions include a requirement that hotels and other places of public lodging hold back accessible rooms until they are the last to sell. Additionally, handicap accessible rooms may no longer be double booked by hotel staff. Further, hotel reservation systems must identify the accessible features of the hotel and its guest rooms so that disabled persons may make an informed decision when choosing where to seek lodging.

The new regulations implementing the above-described changes are tedious and contain a multitude of caveats and intricacies. Business owners should sit down with legal counsel, designers and key personnel to develop a full understanding of the new regulations so that policies and practices can be appropriately modified to ensure ADA compliance. A failure to do so could lead to substantial expense in the form of avoidable lawsuits and civil penalties to the business.


Big Brother, Big Implications: Creating an Employee Monitoring Policy Without Creating Additional Legal Liability

This post was contributed by Samuel N. Lillard, Of Counsel, and Anthony D. Dick, an Associate, members of McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

According to recent estimates, upwards of 90 percent of employers monitor employee workplace activity in some way or another. The appeal is obvious. When done properly, monitoring can help companies increase productivity and efficiency, protect assets and proprietary information, and identify and hopefully prevent harassing conduct, libel, employee theft, vandalism, hacking, and other inappropriate behavior. But when companies overstep permissible boundaries, their monitoring efforts can have severe legal and financial consequences. There are a substantial number of cases, including several recent decisions, where companies have learned the hard way that their right to monitor employees’ work activities has limits.

For example, in Hernandez v. Hillsides, Inc., 47 Cal.4th 272 (2009) (pdf), the employer, in a legitimate effort to determine who may have been viewing pornography on a work computer late at night, placed surveillance cameras in certain employees’ offices without the employees’ knowledge. Instead of catching the offender, the employer captured images of employees changing their clothes for post-work workouts, female employees viewing their pregnancy scars, and other private activities. In ruling against the employer, the California Supreme Court held that although employees’ right to privacy in work offices is not absolute, they have “a reasonable expectation of privacy under widely held social norms that the employer would not install video equipment capable of monitoring and recording their activities – personal and work-related – behind closed doors without their knowledge or consent.”

In a recent New Jersey case, Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009) and Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), two restaurant servers created a password protected MySpace page where they and certain fellow co-workers could go to vent about the trials and tribulations of working in a restaurant. A supervisor learned of the MySpace page and pressured an employee with access to give him the password. Once on the site, the supervisor found messages that included sexual remarks about members of management and customers and references to violence and illegal drugs. The two servers who created the page were terminated and subsequently sued under stored communications laws that limit which individuals may access stored electronic communications. The trial court denied summary judgment to the employer holding that the restaurant’s employee monitoring authority did not include private online communications on a social network outside of work. The two employees subsequently won a small jury verdict.

The U.S. Supreme Court is set to decide a public sector employee monitoring case in its current session. In City of Ontario v. Quon, 529 F.3d 892 (9th Cir. 2008), cert. granted Dec. 14, 2009 (pdf), City of Ontario SWAT officers were given police-department-owned pagers that allowed them to send text messages. They were told in a meeting that the text messages would be treated like e-mails under the City’s employee monitoring policy and that the City would have the right to review such messages at any time to determine whether the pagers were being used for personal purposes. Despite the representations made in the meeting, officers received mixed messages from supervisors and other staff members as to whether the City would actually ever review the messages. Sgt. Jeff Quon, an officer who was issued a pager, used it on numerous occasions to send sexually explicit text messages to his wife and mistress. At some point, the City of Ontario requested Quon’s transcripts from the wireless provider without his permission and read the personal messages. Quon sued claiming the City violated his Fourth Amendment right against unreasonable searches. The lower court ruled in favor of the City. The appellate court reversed. The Supreme Court recently heard oral arguments and a decision is expected in the coming months.

These cases should serve as a warning to employers. While there are no hard and fast rules to ensure that your business does not find itself involved in litigation concerning workplace surveillance and employee privacy issues, adhering to a few basic principals can help minimize the potential liability.

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Pennsylvania Supreme Court Rules that Small Employers may not be Liable for Employment Discrimination

In Weaver v. Harpster, the Pennsylvania Supreme Court ruled that small employers (three or fewer employees) may  not liable for acts of employment discrimination. Under the Pennsylvania Human Relations Act (PHRA), employers with four or more employees are prohibited from discriminating against their employees on the basis of sex.  At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements. In this case, the Court  addressed the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA's prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex. Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, the Court concluded that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers.

The Court's seven justice majority continued its support for the employment at-will presumption by declining to recognize an additional public policy exception based on Pennsylvania's statutes or Constitutional protections. The  two justice dissent would have found a public policy exception to the at-will employment presumption based on both the PHRA and Pennsylvania Constitution. Small employers should keep in mind that they escape coverage of the PHRA, but may be covered by local ordinances prohibiting employment discrimination.

President Obama focuses on Immigration Compliance and Enforcement

The President and Vice President met with a bipartisan group of Congressional leaders in late June to discuss one of today's most contentious issues – immigration – and how to go about reforming the broken immigration system. One of the White House's focal points for immigration reform is enhanced enforcement efforts. The President noted that the Department of Homeland Security and the Department of Labor are working to crack down on employers who are exploiting illegal workers.

U.S. Immigration and Customs Enforcement (ICE) is launching a new audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

The Department of Homeland Security announced that the Administration will push ahead with full implementation of the rule requiring use of E-Verify by government contractors, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009. The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. DHS also announced it will scrap the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system. On July 8, the U.S. Senate adopted an amendment to the Fiscal Year 2010 Department of Homeland Security appropriations bill that will require federal contractors to use the government’s voluntary electronic employee verification system known as E-Verify. The spending bill also extends E-Verify for three more years.

U.S. Citizenship and Immigration Services (USCIS) also recently announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved.   Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

Who is a "Management Level Employee" for Imputing Notice of Co-worker Harassment to an Employer?

An employer's liability for co-worker harassment exists if the employer knew or should have known of the harassment and failed to take prompt remedial action. In other words, an employer may be liable for non-supervisory co-worker harassment if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of harassment. Knowledge of a sexually hostile work environment arises when a "management level employee" obtains enough information to raise the probability of sexual harassment in the mind of a reasonable employer.

In its decision in Huston v. The Proctor & Gamble Paper Products Corp., the Third Circuit Court of Appeals concluded that an employee’s knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer in two circumstances:

  1. "where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments. The employee’s knowledge of sexual harassment is then imputed to the employer because it is significant to the employee’s general mandate to manage employer resources, including humanresources;" or
  2. "where the employee is specifically employed to deal with sexual harassment. Typicallysuch an employee will be part of the employer’s human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment."

The court went on to clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status unless the worker has  a mandate generally to regulate the workplace environment. This reasonably bright line test should help employers to avoid allegations of constructive knowledge of workplace problems; provided, job descriptions clearly define the employee's job duties. Employers should examine generalized policy statements that create a "duty" to report workplace harassment or mistreatment.

Lessons Learned from the almost Pandemic: 2009 Novel Influenza A H1N1 a/k/a Swine Flu

The swine flu is thankfully less severe than anticipated and certainly not the "pandemic" that was feared and even predicted. The Centers for Disease Control and Prevention reports at least 5,469 cases of swine flu in the United States with Pennsylvania accounting for 55 cases. Six deaths are linked to the outbreak.   The CDC continues to warn that, "we are not out of the woods."

Managing communications about a potential pandemic is a "no win" situation for government agencies. The risks of over and under communicating are evident when one compares the approaches of the Mexican and U.S. governments. Commentators are already analyzing the swine flu "overreaction overreaction" and its impact on the next potentially real pandemic.

The communication and response from the Human Resource department can create the same credibility gap that governments face. Human Resource Professionals should book mark some of the resources that emerged from this go round some of which we identified in our prior post as well as the EEOC's Guidance "ADA-Compliant Employer Preparedness for the H1N1 Flu Virus." 

Employers should view the pandemic false alarm as an opportunity to plan for all manner of business "disasters." The following are some addition areas of planning  and development of an action plan include the following:

Time to Re-evaluate Employment Practice Liability Insurance

Employment Practices Liability Insurance (EPLI) can provide valuable protection; particularly,  given the predicted rise in employment related legal claims and enhanced government enforcement initiatives. Furthermore, EPLI remains a relative bargain in the continued “soft” insurance market and employers should consider adding or increasing insurance coverage to protect against employment claims. EPLI insurance is somewhat quirky and the following are some considerations when evaluating policies:

1.         Coverage: EPLI policies usually cover claims of wrongful discharge, workplace harassment and discrimination. Many offer a more comprehensive list of covered acts, including negligent hiring/supervision/evaluations, invasion of privacy, defamation and intentional infliction of emotional distress. Coverage typically applies to claims made by full time employees so as to exclude those by part-timers, temporary, seasonal and independent contractors. In comparing policies, look for one that has the most expansive coverage. 

2.         Exclusions: EPLI policies exclude many claims based on the statute that creates the legal right or the activity that gives rise to the claim. Exclusions apply to the Fair Labor Standards Acts; the National Labor Relations Act; the Worker Adjustment and Retraining Notification Act (WARN); the Consolidated Omnibus Budget Reconciliation Act (COBRA); the Employee Retirement Income Security Act (ERISA); the Occupational Safety and Health Act (OSHA); the costs associated with providing "reasonable accommodation" under the Americans with Disabilities Act (ADA); as well as claims arising out of downsizing, layoffs, workforce restructurings, plant closures or strikes. Punitive damages are always excluded. Carefully evaluate the excluded claims in light of your business practices. In the case of multi-state operations, be aware that some state laws create substantial employment rights that must also be evaluated under the policy language.

3.         Policy Limits and Deductibles: Policy limits and deductibles usually apply on a per claim and aggregate basis. For example, coverage may be limited to $250,000 for each separate claim with an overall aggregate cap of $1 million for all claims. Employers must formulate their insurance goals in setting the appropriate deductibles and limits. Some employers view EPLI insurance as catastrophic coverage and are willing to accept a high deductible that allows them to handle smaller claims themselves. However, other employers are looking for more blanket coverage.

4.         Defense Costs, Selection of Counsel and Settlement: Defense costs are usually included within the EPLI policy’s limits, which has good and bad points. Many times, the legal expense is the largest cost to an employer in dealing with merit less claims. However, including defense costs means that every dollar an employer spends defending a claim reduces the amount available for settlement or to pay a judgment. Since the existence of insurance coverage must be disclosed as part of discovery in most law suits, a plaintiff’s attorney will factor insurance coverage into his or her case evaluation. The defense cost feature may influence plaintiffs’ counsel to try to settle early, rather than force an employer to incur litigation costs that will only erode the insurance dollars available for potential settlement. Employment claims often have significant employee relations ramifications making settlement a particularly important issue. Insurers view employment claims the same as any other insurance matter by evaluating only the potential for liability and the amount of damages. The employer and insurer may be at odds over settling a case. EPLI policies address this stalemate by either giving the insurer the right to settle without the employer’s approval or, more frequently, giving an employer control over settlement, but adding a “hammer clause”. These clauses are designed to limit the insurer’s potential exposure if the policyholder passes up an opportunity to settle a claim recommended by the insurer. Hammer clauses provide that if there is an offer to settle a claim that the policyholder refuses accept, then the insurer will not be liable for a subsequent settlement or judgment in excess of a rejected settlement amount.  

5.         Policy Types and Insurance Company Notification: EPLI policies are typically written on a “claims made” basis meaning that the claim must be incurred during the coverage period and reported to the insurer during an extended reporting period. Employers who have already experience significant layoffs prior to the effective date of coverage will not have claims arising from those actions covered by new insurance; however, if an employer increases coverage, it may be able negotiate a retroactivity for the larger policy limits. Since employment actions may take years to turn into a claims, an employer may be left with no coverage if the policy is dropped or tail coverage isn’t purchased. Untimely notice to an insurance carrier can void coverage for and employment claim.

New COBRA Model Notice for ARRA Compliance Published by DOL

The Department of Labor Published Model Cobra Notices implementing the provisions of the American Recovery and Reinvestment Act of 2009. 

Individuals eligible for the special COBRA election period described above also must receive a notice informing them of this opportunity. This notice must be provided within 60 days following February 17, 2009. Plan administrators must provide notice about the premium reduction to individuals who have a COBRA qualifying event during the period from September 1, 2008 through December 31, 2009. Plan administrators may provide notices separately or along with notices they provide following a COBRA qualifying event. This notice must go to all individuals, whether they have COBRA coverage or not, who had a qualifying event from September 1, 2008 through December 31, 2009.

Individuals involuntarily terminated from September 1, 2008 through February 16, 2009 who did not elect COBRA when it was first offered OR who did elect COBRA, but are no longer enrolled (for example because they were unable to continue paying the premium) have a new election opportunity. This election period begins on February 17, 2009 and ends 60 days after the plan provides the required notice. This special election period does not extend the period of COBRA continuation coverage beyond the original maximum period (generally 18 months from the employee's involuntary termination). COBRA coverage elected in this special election period begins with the first period of coverage beginning on or after February 17, 2009. This special election period opportunity does not apply to coverage sponsored by employers with less than 20 employees that is subject to State law.

UPDATE:  IRS Notice 2009-27 clarifies many issues related to implementation of the COBRA subsidy.

Title VII's Antiretaliation Protections can extend to an Employee's Involvement as a Witness in an Employer's Internal Investigation

In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

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Ledbetter Fair Pay Act passed by Senate and awaiting Obama Signature

The Senate passed the Lilly Ledbetter Fair Pay Act of 2009 by a vote of 61 to 36 with both Pennsylvania Senators supporting the legislation.   President Obama has previously stated he will sign the law.

The Ledbetter Fair Pay Act redefines the "accrual" of a compensation discrimination claim as follows:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Violations of the law entitle employees to recover compensatory and punitive damages including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

The law is retroactive to the May 28, 2007 (the date of the Supreme Court's Ledbetter decision) effectively reviving all claims that are pending or after that date.

Forces employers to modify their pay practices and evaluation procedures including the following:

  • Better justify and document their compensation decisions.
  • Review promotion procedures which may fall under the law because of the attendant compensation adjustment.
  • Create an institutional memory that captures the basis for compensation and promotion decisions.
  • Design a record retention system that allows for the defense of claims.

Next on the Senate Agenda will likely be the Paycheck Fairness Act (S. 182).

Thanks to the Connecticut Employment Law Blog for insights.

Bad News: Ledbetter Fair Pay Act and Paycheck Fairness Act Pass the House.

Congress has passed The Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11) and The Paycheck Fairness Act (H.R. 12). Anaylsis of the new legislation to come.

The Ledbetter Fair Pay Act is discussed in a prior post on Record Retention Nightmare Created by Ledbetter Fair Pay Act .  The Paycheck Fairness Act changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex. Employers who cannot meet this burden face unlimited compensatory and punitive damages. The EEOC would be required to collect employer payroll information based on sex, race, and national origin thereby targeting its enforcement activities. The Bill also changed rules on class actions automatically including employees in such claims unless they specifically opt out.  PFA subjects employers to wage related class actions with unlimited damages and makes it easier for employees to prove such claims.

Ann Bares analyzes the impact of the new law from a compensation perspective in her post: Dear Legislators: A Missing Link to Paycheck Fairness?


Human Resources Legal Compliance Checklist for 2009

Human Resource Professionals face a demanding legal compliance year in 2009. The following five items should be added to your "To Do" list for the first quarter of '09:

ADA Amendments Act Compliance (effective 1/1/2009):  The amendments greatly expand the definition of disability refocusing compliance on determining whether the employee is "qualified" and evaluating reasonable accommodations. Employers should consider the following:

  • Revising job descriptions to define essential job functions and minimum qualifications.
  • Formalizing the interactive process for assessing disability issues.
  • Educating supervisors on the expanded ADA coverage.

E-Verify Registration and Immigration Compliance (effective 1/15/2009):  Government contractors and subcontracts may need to register for and use the E-Verify System for new and existing government contracts. Employers who may be covered should inventory their existing contracts and review prospective contracts and subcontracts to determine whether they are covered by the regulations.

U.S. Citizenship and Immigration Services (USCIS) has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. There are other changes to the types of acceptable documents. Employers must use the revised Form I-9 (not yet issued) for all new hires and to re-verify any employee with expiring employment authorization beginning January 31, 2009. The current version of the Form I-9 will no longer be valid as of February 2, 2009.


FMLA Regulations Implementation (effective 1/16/2009):  Amendments to the FMLA's regulations require action by employers in the following areas:

EFCA and RESPECT Act Planning:  This pending legislation has enormous potential consequences for employers. Developing an action plan should include the following items:

Wage & Hour Self-Audit:  As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims particularly in the following areas;

  • Employee classification (exempt vs. non-exempt)
  • Off the clock work (starting times, breaks and meal periods)
  • Donning and Doffing
  • Child labor

Department of Labor Issues FMLA posters and Forms

The DOL issued a revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule which is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.  

The Department provides optional forms for use by employers and employees during the FMLA process.  The Department has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).  In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The poster and forms become effective on January 16, 2009.  Additional compliance assistance materials are also available on our FMLA Final Rule Web site at Employers must also amend handbook provisions to reflect the new regulations.

Managing the Holiday Cheer at this Year's Office Party

In these difficult economic times, the traditional holiday office party may be particularly important to promoting positive employee relations.  On the other hand, the event could also become a forum for criticism, particularly when a business has undergone dramatic changes like layoffs or compensation scale backs.  Whatever approach your business decides to take, managing the "holiday cheer" may be more important than ever.

Mixing alcohol and employees can result in a wide spectrum of possible negative outcomes ranging from mildly embarrassing to catastrophic. Like all good lawyers, we'll focus on the catastrophic: the automobile accident and the discrimination lawsuit. 

In Pennsylvania, there is little difference in liability between an employer/host and the social host of a private party in a home. Whether the party is thrown by an employer or an individual, there is generally no liability for an adult host when an adult employee, guest or someone else is injured by an adult drunk driver who may have been served at the party. Courts reason that "it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage". However, there is liability for any host (whether an employer or a private person) who knowingly serves alcohol to anyone under age 21. 

Employer's may also face claims from employees injured by the consumption of alcohol under employee benefit programs like workers' compensation insurance, medical and accident policies. Employee benefit plan and insurance exclusion for injuries arising from operating a vehicle while intoxicated are generally upheld.  

Work parties are generally considered as arising out of or in the course of an employee's job, even if attendance is not mandatory. Although workers' compensation law bars recovery for injuries or death caused by violation of law (i.e. driving under the influence), it also requires that the intoxication be the proximate cause of the accident causing the injury. In some cases, employees have recovered worker's compensation benefits because the employer could not prove that the accident would not have happened unless the employee was intoxicated. 

Employers may also spend their post-holiday hours sorting out employee disciplinary actions which sometimes ferment into claims of sexual harassment and disability discrimination. Alcohol consumption has been known to cloud judgment and blur the clear line between welcome and unwelcome conduct. Alcohol related misconduct can also bring to light an employee's alcoholism. Although alcoholism is a "disability" under discrimination laws, it does not insulate an employee from discipline or discharge for the conduct arising from his or her impairment. 

Managing alcohol consumption at employer events can mitigate liability and reduce the risk of accidents. The following is a partial list of ideas to incorporate into your next office party:

  • Circulate to employees a kindly worded reminder about drinking and driving and the consumption of alcohol by employees under the age of 21.
  • Consider engaging professional bartenders if they are not already part of your event.
  • Give bartenders rules on serving minors and intoxicated employees.
  • Avoid self-serve alcohol or long periods of "open bar."
  • Don't allow drinking to become the focus of the event.
  • Don't allow individuals to be pressured into drinking.
  • Monitor conduct and don't be afraid to intervene if conduct or alcohol consumption become inappropriate.
  • Have a designated driver or call a cab for someone who shouldn't be driving.

Wishing you a safe and happy holiday season!

E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

Federal government contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting Jan. 15, 2009 (now 5/21/09), to verify their employees’ eligibility to legally work in the United States.  The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.  E-Verify must be used to verify all new employees and all employees who work on the covered government contract unless the employees were previously verified or commenced work for the employer before the June 6, 1986 the effective date of the Immigration Reform and Control Act.  Contract Officers will insert clauses in new contracts and solicitations.  In addition, certain existing government contracts may be amended to include the requirements.

E-verify provisions on covered contracts apply to all government contractors and subcontractors with limited exceptions detailed in the final regulations. Each covered contractor and subcontractor must: 

  • Enroll in the E-Verify Program within 30 days of the award of a contract, if not already enrolled.
  • Those employers already enrolled in E-Verify for 90 days as of the effective date of the new regulations must verify all new employees with 3 days of hire.
  • Those employers not enrolled in E-Verify must begin to verify all new employees within 90 calendar days of E-Verify enrollment whether or not such employee performs work on the government contract or subcontract within 3 days of the date of hire.
  • Verify each existing employee assigned to the contract within the later of 90 calendar days of E-Verify enrollment or 30 calendar days after the employee's assignment to the contract
  • Employees previously verified through E-Verify are exempt.
  • Elect to verify all employees hired after June 6, 1986 whether or not assigned to the contract.
  • The phrase “employee assigned to the contract” refers to individuals who were hired after June 6, 1986 who are “directly performing work under the contract,” and to exclude employees who normally perform support work, or who do not perform any substantial duties applicable to an individual contract.
  • Subcontracts must include a clause requiring compliance by the subcontractor.
  • A new Memorandum of Understanding (MOU) will be published shortly.

The Final Regulations are summarized by the Office of Acquisition Policy and appear on the DHS website with a Small Entity Compliance Guide.

Final Regulations in .pdf: FAR Employment Eligibility Verification

DHS Website: Frequently Asked Questions: Federal Contractors and E-Verify


UPDATE:  Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

Will Your Employees be some of the 5 million Workers Unions expect to add to their Membership under the Employee Free Choice Act?

Change is coming to Washington and to America's workplaces. President Elect Obama launched a new website where he explains his labor agenda which included passage of the Employee Free Choice Act. The Obama Administration's transition views are summarized at the Connecticut Employment Law Blog.
Unions are on board too. After their push for Obama, Unions seek new rules for organizing workforces through the EFCA, as observed by Steve Greenhouse of the NYTimes:

With union membership sliding to 7.5 percent of the private-sector work force, one-third the rate in 1983, unions see enactment of the bill as the single most important step toward reversing their loss of membership and power. Some labor leaders predict that if the bill is passed, unions, which have 16 million members nationwide, would add at least five million workers to their rolls over the next few years.

The impact of the EFCA will be monumental so we will be dedicating a lot of blog time to this topic. Look for future posts in the following areas:

  • Nuts and Bolts of EFCA: examines the specifics of the proposed legislation.
  • Employer's Guide to Authorization Cards: looks in detail at authorization cards, their legal significance and how they are solicited by unions.
  • Identifying and Training Supervisors to Maintain your Union-Free Status: outlines the role of supervisors in disseminating the employer's message including the impact of the RESPECT Act.
  • Employee Engagement Surveys as a Tool to Combat Union Organizing: keeping your finger on the pulse of employee.
  • Becoming Politically Active in Response to EFCA: making your business's voice heard in Washington and particularly by the one Republican Senator, Arlen Specter of Pennsylvania, who has co-sponsored the EFCA.
  • How to Avoid Unfair Labor Practices when you are an Organizing Target: negotiating the legal landscape of traditional labor law.


Employer's Strategic Planning for an Obama Administration

President-Elect Obama told his hometown crowd that "Change has come to America." Through his election speeches, website and co-sponsorship of Senate Bills there is a road map of what changes will likely be coming to the American workplace.

Employers would be well served by examining the impact of likely legislation on their business and planning accordingly. The most significant changes will likely come from the Employee Free Choice Act  and RESPECT ACT which will reshape union organizing. The building trades, healthcare, and manufacturing will be the first to feel the effects, but so will business that were not traditionally union targets like financial services.  The balance of Senator Obama's legislative agenda involves expanding existing areas of employment protection through the Paycheck Fairness Act, Ledbetter Fair Pay Act, Employment Non-Discrimination Act.

Prior posts have summarized the content of these bills and their impact on the workplace. In the coming weeks, we will provide more extensive guidance on planning to meet the changes posed by these and other legislative initiatives.

Related Posts:
Employer's Guide to the Election
Obama Victory may give rise to Unprecedented Unionization of the American Workplace

Bosses do not Deserve RESPECT

Injunction "No-Match" for DHS Rulemaking

On October 23, 2008, the Department of Homeland Security (DHS) released an advance copy of its supplemental final no-match safe harbor regulation initially issued in August 2007. The original regulation was set to take effect in September 2007 but was enjoined by the U.S. District Court for the Northern District of California. The revised regulation is expected to be published in the Federal Register any day, and will take effect immediately. Of course, it is possible (even likely) that another lawsuit may be filed seeking to block this final regulation.

While the substance of the regulation has not changed, DHS did address the two main concerns that lead the court to enjoin the original regulation. First, the preamble of the new regulation clarifies that employers will be considered to have constructive knowledge only if they receive a no-match letter from the Social Security Administration (SSA). That is, DHS will not impute constructive knowledge based on any other communication from the SSA. Second, DHS explained that it would not take action based on no-match letters involving employees hired before November 6, 1986 (the date the Immigration Reform and Control Act was enacted).

The revised regulation outlines the steps an employer must take in order to benefit from a “safe harbor” if the employee named in a no-match letter turns out to be an unauthorized worker. Upon receipt of a no-match letter, the employer should check internal records and either make appropriate corrections or ask the employee to correct the discrepancy within 90 days. Once the discrepancy is resolved, the employer should update the relevant I-9 paperwork and notify agencies of the correction. If the discrepancy cannot be resolved within 90 days, the employer must complete a new I-9 form for the employee by the 93rd day. In completing this new I-9, the employer may not accept any document with the social security number contained in the no-match letter. In addition, the new verification document must include a photo. If the employer is still unable to verify the identity and employment authorization of the employee, the safest course of action is to terminate the employee, or risk facing charges.

Employers should develop and implement a policy to ensure compliance with the process described in our August 2007 Employer Alert. Employers should note, however, that no-match letters were not issued in 2007 and will most likely not be issued in 2008.

ADA Amendments may Open the Door for Nicotine Addiction Claims

Today’s smokers [are] more addicted to nicotine according to a new study, which notes that 73% of those trying to quit are “highly dependent”. The Center for Disease Control and Prevention estimates that 20.2% of Americans are smokers. Pennsylvania has a slightly higher rate of smoking at 21.5 % with 51.9% attempting to quit. Many of these smokers are also employees.

Smokers are feeling the heat in the workplace through smoke-free workplace policies. Jon Hyman at the Ohio Employer’s Law Blog has a post asking Are there legal risks with smoking bans?  He notes that pushing back on these employer initiatives are  29 states which have enacted laws protecting employees who smoke from discrimination.

Pennsylvania has no law protecting smokers from discrimination. To the contrary, Pennsylvania’s new Clean Indoor Air Act mandates smoke-free workplaces and precludes employees from smoking indoors. However, the law allows employers to prohibit smoking anywhere on company property; it does not prevent the continuation of outdoor smoking areas. Employers are left with the sometimes delicate task of crafting a policy concerning outdoor smoking and monitoring the break schedules of employees who wish to smoke. In addition, many wellness programs have targeted smoking with cessation programs coupled with both financial incentives and penalties.

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.  In the only published case of which I am aware, the court in Brashear v. Simms set forth the following rationale in dismissing a smoker’s ADA claim:

…[E]ven assuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as “nicotine addiction” or not, is not a “disability” within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of “disability,” which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and “nicotine addiction” are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum. If the smokers' nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.

Pennsylvania employers can and must adopt policies prohibiting smoking in the workplace. However, employers may well be required to reasonably accommodate nicotine-addicted employees much as they would need to do so with other addictions, like drugs and alcohol. The scope of such accommodations must be explored. Section G of the EEOC’s Guidance on Applying Performance Standards to Employees with Disabilities may prove helpful.


UPDATE:  How will this new wrinkle weigh in the mix: Under Obama will smoking become  "cool" again?

Prohibition of Excessive Overtime in Health Care Act will Exacerbate Nursing Shortage

Clinical staffing problems for Pennsylvania healthcare facilities created by shortages of nursing professionals will be greatly exacerbated by a new law prohibiting mandatory overtime for employees engaged in direct patient care. The Commonwealth is already facing a nursing shortage, which is growing worse. According to the Health Resources and Services Administration (HRSA), an arm of the U.S. Department of Health and Human Services, Pennsylvania health care providers will experience a 41 percent vacancy rate in nursing positions by the year 2020, requiring more than 54,000 nurses to provide adequate patient care. Restrictions on the amount of work time for an already short labor pool will likely increase problems.

The Prohibition on Excessive Overtime in Health Care Act becomes effective on July 1, 2009. Health care facilities covered by the law include hospitals, ASCs, hospices, long-term care facilities and other inpatient facilities, but it excludes private physician offices and group practices. Employees protected by the law include all nonsupervisory employees involved in direct patient care activities or clinical services, including individuals employed through a temporary service or employment agency. Physicians, physician’s assistants, dentists, and job classes with no direct patient care are excluded from the overtime limitations.


A health care facility cannot compel a protected employee to work more than an agreed to, predetermined and regular daily shift exclusive of “on call” time, unless one of the following exceptions applies:

(1)     the employee voluntarily agrees;

(2)     there is an unforeseen emergent circumstance but as a “last resort”, after exhausting other staffing options and giving the employee one hour arrange for family care alternatives;

(3)     the extended work is required to complete a patient care procedure already in progress, but only if the employee’s departure would have an adverse effect on the patient.


Employers are permitted to have agreed upon, predetermined and regular shifts greater than 8 hours; however, an employee who volunteers to work more than 12 consecutive hours shall be entitled to 10 hours off duty but may waive the entitlement. Employers may not retaliate against employees who refuse to accept work in excess of the limits. Employers who violate the law are subject to fines ranging from $100 to $1000 per violation.


The Department of Labor and Industry is to develop regulations within 18 months.  The law received modest press as it was signed by the Governor along with 31 other pieces of legislation.

Employer's Guide to the Election

The election rhetoric has been relatively quiet on employment-related topics, except for the brief mention in the last debate. Candidate Obama has a clear agenda employment legislation based on his co-sponsorship of various bills and other media comments. Candidate McCain’s position is less clear. Detailed below is a summary of the key legislative initiatives considered by Congress in 2008, all of which have passed the House of Representatives except the RESPECT Act.

Employee Free Choice Act (H.R. 800 and S. 1041)

Summary:  The EFCA amends the NLRA to change the procedures for union certification and first contract negotiation. The primary components of the act are as follows:

  • Allows NLRB certification of a relevant bargaining unit upon authorization card showing from 50% plus one of employees bypassing secret ballot election.
  • Mandates initial collective bargaining contract be negotiated within 120 days or first contract is produced by an arbitrator covering employees for 2 years.
  • Provides new fines for employer unfair labor practices.

Impact:   EFCA is a monumental change to the NLRA. Much has been made of the abrogation of the secret ballot election, but equally dramatic are the limitations placed on collective bargaining and contract determination by an arbitrator if no agreement is reached in 120 days of negotiations.   If enacted, EFCA will result in unprecedented organizing activity with employers losing their ability to demand an election and engage in hard bargaining over a first contract.

Candidate Positions:  H.R. 800 passed the House but did not receive enough votes for consideration by the Senate. Candidate Obama is a co-sponsor of the Senate Bill and supports its passage. Candidate McCain opposes the Senate Bill.

Prior Posts:  NOW is the Time for Employers to Gear up for the Employee Free Choice Act (Unions Are)


Employment Non-Discrimination Act (H.R. 3685/ no Senate Bill)

Summary:  ENDA adds sexual orientation to the protected classes under Title VII for all employers except religious organizations. It allows reasonable access to adequate facilities that are not inconsistent with the employee’s identified gender, but does not require domestic partner benefits or protect “gender identity”.

Impact:  ENDA adds a protected class to employment discrimination protections allowing compensatory and punitive damage claims against employers.     

Candidate Positions:  H.R. 3685 passed the House but did not receive enough votes for consideration by the Senate.  No legislative position by either candidate.   Candidate Obama’s website expresses support for the legislation.


Ledbetter Fair Pay Act (H.R. 2831/ S. 1843)

Summary:  FPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim. The bill allows family members and others affected by discrimination to file claims and reinstitutes the Paycheck Rule for determining when a claim accrues. It also allows claims based on paychecks and annuity payments which would allow retirees to bring claims.

Impact:  FPA virtually eliminates the statute of limitations for wage-related claims.

Candidate Positions:  H.R. 2831 passed the House but did not receive enough votes for consideration by the Senate.  Candidate Obama is a cosponsor of the Bill. Candidate McCain has expressed no opinion on the Bill.


Paycheck Fairness Act (H.R. 1338/ S. 766)

Summary:  PFA changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex. Employers who cannot meet this burden face unlimited compensatory and punitive damages. The EEOC would be required to collect employer payroll information based on sex, race, and national origin thereby targeting its enforcement activities. The Bill also changed rules on class actions automatically including employees in such claims unless they specifically opt out.

Impact:  PFA subjects employers to wage related class actions with unlimited damages and makes it easier for employees to prove such claims.

Candidate Positions:  H.R. 1338 passed the House but did not receive enough votes for consideration by the Senate.  Candidate Obama is a cosponsor of the Bill. Candidate McCain has not taken any position on the Bill.


RESPECT ACT (H.R. 1644/ S. 969)

Summary:  The so-called Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act would change the NLRA definition of “supervisor” to exclude “working supervisors” who do not spend a majority of their worktime in strictly managerial duties excluding the tradition duties of assigning work and directing the activities of others.

Impact:  Respect would allow many working or front line supervisors to join a union dividing their loyalties to the company, as they would be permitted to assist in the unionization of the company.

Candidate Positions:  Candidate Obama is a cosponsor of the bill and Candidate McCain has taken no position on the Bill.

Prior Posts: Bosses do not Deserve RESPECT


If there is a Democratically-controlled House, Senate, and President, it is likely that some or all of the above legislation will be enacted in 2009. Others have commented on the HR landscape following the election:

What The Future of HR Looks Like in 2009

Small business owner’s guide to the election

HR GENERALIST RESOURCES: Payroll Tax Withholding from Severance Pay and Other Supplemental Wage Payments

Employers offering severance payment to employees are typically uncertain about the payroll taxes that may apply to these additional payments. Severance pay is treated as “supplemental wages” because it is not a payment for services in the current payroll period but a payment made upon or after termination of employment for an employment relationship that has terminated. As supplemental wages, special payroll tax withholding rules apply. The Internal Revenue Service recently clarified its position on withholding for supplemental wages, including severance pay.  Employers should also make sure that severance payments offered in conjuntion with a waiver and release comply with the ADEA and WARN requirments.

Revenue Ruling 2008-29 addresses nine different situations where supplemental payments are made to employees that require additional payroll tax withholding as follows:

  1. commissions paid at fixed intervals with no regular wages paid to the employee;
  2. commissions paid at fixed intervals in addition to regular wages paid at different intervals;
  3. draws paid in connection with commissions;
  4. commissions paid to the employee only when the accumulated commission credit of the employee reaches a specific numerical threshold;
  5. a signing bonus paid prior to the commencement of employment;
  6. severance pay paid after the termination of employment;
  7. lump sum payments of accumulated annual leave;
  8. annual payments of vacation and sick leave; and
  9. sick pay paid at a different rate than regular pay.

For the supplemental wage payments identified above that do not exceed $1 millon, the amount of income tax withholding is determined under the rules provided in § 31.3402(g)-1(a)(6) and (7). These paragraphs describe two procedures for withholding on supplemental wages: the aggregate procedure and optional flat rate withholding. The Revenue Ruling explains the application of the two procedures to each of the nine payment types. A Supplemental to Circular E also provides guidance on withholding in Publication 15 and Publication15A.

Criminal Background Checks - Act 73's Impact on Pennsylvania Employers

Employers engaging in business where employees have “significant likelihood of regular contact with children” should be paying close attention to the amendments to Pennsylvania’s Child Protective Services Act, also know as Act 73. Act 73 became effective on July 1, 2008, and has taken many employers off guard.

Act 73 expands criminal background check requirements under the Child Protective Services Act beyond its traditional scope, which included employees engaging in child care professions, adoptive parents and foster families. Now, “prospective employees applying to engage in occupations with a significant likelihood of regular contact with children, in the form of care, guidance, supervision or training” must also undergo criminal background checks prior to being employed. Examples of such prospective employees identified by Act 73 include, social service workers, hospital personnel, mental health professionals, members of the clergy, counselors, librarians and doctors. 

What background checks are required for covered prospective employees? A Pennsylvania criminal background check, a Department of Public Welfare clearance and a report of Federal criminal history record information verified by a fingerprint check.   The Federal fingerprint check is new. Applicants with founded reports of child abuse during the five-year period preceding their application are ineligible to be hired. Applicants with any state or Federal convictions related to certain crimes (e.g. homicide, rape, indecent exposure and corruption of minors) are also ineligible to be hired. 

Act 73 is creating some headaches for employers in a couple of areas. The Act’s general statement concerning “significant likelihood of regular contact with children” is not further defined and there are no anticipated regulations coming to give further guidance to employers. Employers, such as hospitals, that provide services to children and adults are struggling to define what employees fall within Act 73’s requirements. For example, housekeeping and environmental services employees may have contact with children simply by being present in the hospital, although childcare is not part of their job.


Another area causing difficulty for employers is the new requirement of a Federal background fingerprint check. Employees are initially responsible for obtaining the Federal background check. These checks can take upwards of sixty days and many applicants are simply unaware of the new requirements at the time they apply. The result has been difficulty in filling needed positions quickly. Employers are permitted to hire employees on a provisional basis provided that the employee provides proof of application for a Federal background check. Provisional hiring periods for in-state applicants cannot exceed 30 days. The period is 90 days for out of state applicants.


Employers should approach Act 73 with an abundance of caution, especially in light of its potentially broad reach. Intentional failure of a person to obtain necessary background checks from a covered applicant is a misdemeanor of the third degree.

Managing Layoffs and Reductions in Force

As the economic meltdown cascades through the financial, banking and related sectors, many employers are planning staff cuts.  Selecting employees for lay off must be collaboration between managers and human resources. HR must be able to influence the process to reduce legal risks and assuage the anxiety of remaining employees:

Establishing Business Justification and Layoff Selection Criteria:

The business justification for the reduction in force or layoff must be established. The justification for layoff typically gives rise to the selection criteria. For example, if a large contract was lost, the production and support functions related to the lost contract will be the focus or the layoff.

Layoff decisions may be challenged under discrimination laws, so it is advisable to develop selection criteria that support the business reasons for selecting one employee over another. Unless dictated by union contract, employers have discretion in developing the selection criteria which can include factors like, seniority, relative skills, performance, and/or disciplinary record.  More than one factor may be used.

Forced Ranking Systems are sometimes utilized to rank employees against one another from the top down based on performance criteria. The subjectivity in forced ranking can be challenged as discriminatory unless uniformly and rationally applied.

Evaluating Impact of Selection Criteria including Bumping, Transfer and Recall Rights:

Once employees are identified for layoff, the results of the section criteria must be assessed in terms of disparate impact and other special circumstances. A disparate impact analysis should be conducted to assess whether the selection criteria have resulted in the disproportionate layoff of members of a protected class. Likewise, special circumstances should be evaluated such as employees with recent employment complaints, union activity, FMLA leaves, etc.  Consider documenting the final layoff decisions, but not the deliberations leading up to them.

Thought must be given to collateral job rights employees may have under employment policies and practices. Typical areas involve shift or department transfers, supervisor demotion in lieu of layoff, and voluntary layoffs. Likewise, the parameters of recall, if any, should be described.

WARNA Obligations:

Federal and state plant closing/mass layoff laws must be considered. Although Pennsylvania has no state law equivalent to WARNA, employers with multi-state operations must assess the application of such laws. Coverage under WARNA can be complex as it has look back rules which aggregate layoffs for determining triggering events. WARNA coverage will trigger the sixty-day notice period which has a tremendous impact on layoff planning raising issues of pay in lieu of notice, retention, and publicity.

Severance Benefits and Releases:

Careful consideration must be given to describing the benefit package, if any, offered to employees. If an employer is offering benefits that exceed those already provided by policy or mandated by law, it should consider obtaining a release. The federal Age Discrimination in Employment Act (ADEA) contains special rules for waivers of rights of claims of age discrimination including a 45-day consideration and seven-day revocation period for such releases. Furthermore, the ADEA contains informational requirements that mandate publication of summary of employee demographic information in connection with the release.

Communications Plan:

Effective communication is paramount in reducing employee legal claims and assuaging the anxiety of remaining employees. Everything that is said about the reasons for the layoff will be scrutinized in litigation. Consider scripting communications for group meetings and avoid individual discussions of the reason for selection. Large layoffs may generate news media interest for which a press release is a helpful way to influence the message.



Jerry Kalish at the Retirement Plan Blog made a great observation about layoffs in his post Does a reduction in force or layoff beget a partial termination of a retirement plan?.  He refers to the IRS rules on partial termination of a retirement plan based on the significant reduction in plan participation resulting from the layoff.  IRS Guidance entitled 401(k) Resource Guide - Plan Participants - Plan Termination includes the following summary:

Although a 401(k) plan must be established with the intention of being continued indefinitely, an employer may (fully) terminate its 401(k) plan at its discretion. In certain cases, a partial plan termination is deemed to occur. Whether a partial termination occurs depends on the individual facts and circumstances of a given case. In general, a partial termination is deemed to occur when an employer-initiated action results in a significant decrease in plan participation. As an example, a partial termination may be deemed to occur when an employer reduces its workforce (and plan participation) by 20%.

Managing a Business and its Employees in Financial Crisis Requires Communication from HR

The specter of business failure and personal financial setbacks wreak havoc on employee morale challenging Human Resources with dual management problems. First, HR needs to formulate a communication strategy to address the concerns of employees surrounding job security and compensation. Employee jitters surround the viability of their employer and the security of their jobs. Retirement savings evaporate as the stock market plummets leading some to forego matching 401k contributions. Compensation packages and incentives tied to stock continue their downward spiral. Wordsmith the message that the CFO might send out: “They are lucky to have a job.”

Second, HR must manage the collateral effects of an employee’s personal financial problems, which can lead to bankruptcy, foreclosure and even divorce, any of which may influence his or her job and job performance. Businesses must be prepared to respond to employee performance issues created by financial problems. Employers should be aware of legal limitations placed on their actions with regard to an employee’s financial problems. In addition, human resource professionals should appreciate the relationship between their performance management program and other resources to address employee issues created by financial distress.


Pennsylvania and federal laws limit actions employers may take against employees that file for bankruptcy or are subject to wage attachments. Many employers, particularly those in the financial sector, face customer relation problems when one of their employees does not pay his or her bills or files for bankruptcy. Legal limitations on employer responses are as follows:

  • Garnishment/Attachment of Wages. Pennsylvania prohibits garnishment/attachment of wages for the repayment of personal debts, except in limited circumstances for child support, alimony or student loans.   Employees may not be disciplined, discriminated against or discharged because of wage garnishments.
  • Employee BankruptcySection 575 of the Bankruptcy Act protects employees and applicants from discrimination if an individual:(1) is or has been a debtor under this title or a debtor or bankrupt under the Act; (2) has been insolvent before the commencement of a case under the Act or during the case but before the grant or denial of a discharge; or (3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Act. Courts have limited the reach of this provision by requiring that the discrimination be "solely because" of the individual's bankruptcy participation.
  • Worries about Temptation for Theft. Businesses may become concerned that an employee in financial distress may be more likely to embezzle and react by trying to find out the scope of an employee’s credit problems. The Fair Credit Reporting Act limits an employer’s use of employee credit information. A business’ usual financial controls should be uniformly applied, but, if inadequate, should be revised for all employees.

Employees experience financial distress are subject to performance problems including declining productivity, absenteeism and depression.  The usual performance management tools can be used: however, special attention should be paid to other resources like the EAP and Debt/Credit counseling.


Pennsylvania Workplaces Must be Smoke-free by September 11, 2008

The effective date of Pennsylvania’s Clean Indoor Air Act is fast approaching leaving many employers with questions about what they should be doing to comply with the new law. Here are some steps that employers may wish to consider in fostering good employee relations and avoiding the civil and criminal penalties associated with violations of the CIAA:

Get Familiar with the Requirements of the Law. An Employer Toolkit is available from the Department of Health setting out the basic requirements of the law. We have posted on the CIAA as follows:

Pennsylvania enacts Clean Indoor Air Act Prohibiting Smoking in most Public Places including Workplaces

Department of Health Issues Guidance for Employer Compliance with the Pennsylvania Clean Indoor Air Act


Post Required Signage Designating Nonsmoking Areas. Employers must post signs prohibiting smoking in the workplace and designating outdoor smoking areas that are not too close to entrances or exits. Downloadable signs for both “No Smoking” and “Smoking Permitted” in English and Spanish are available from DOH.


Adopt a Policy on Workplace Smoking for Employees and Customers. Adopting a policy is not an express requirement of the law but makes good sense for effective employee communications and to establish the employer’s good faith defense to civil and criminal penalties under the law. The DOH (through its partner PACT) has a sample policy, which I do not recommend. At a minimum, a policy should designate the all indoor workplace areas as nonsmoking and, if elected, those outdoor areas where smoking is permitted. Other restrictions on smoking such as time and frequency of breaks should be addressed. The consequences of violating the policy should be set forth along with acknowledgment of the CIAA anti-retaliation provisions for employees who complain about violations.


Conduct Training for Supervisors and Employees. Employers should notify employees of the new law and its restrictions either in conjunction with introduction of the policy or otherwise. Avoid pitting the smokers against the nonsmokers. This is a state law, you don’t have a choice. Mention of the criminal fines and consequences of violation of the law is appropriate.


Consider a Smoking Cessation Program to help Smokers Adapt to the New Law. As mentioned previously, the CIAA may be a chance to offer a wellness program including a smoking cessation component.

Tobacco Free Workplace Policies may be integrated with Wellness Programs


Apply for Necessary Exemptions.  Drinking Establishments, Cigar Bars, and Tobacco Shops should apply for an exemption if they intend to allow smoking under the exemptions provided in the CIAA. 

WARN Act's Faltering Company Exception Clarified

Businesses face increasing uncertainty over the availability of financing because of the economic downturn and tightening of credit markets.   Financially troubled businesses may need to curtail operations through a plant closing or mass layoff if additional financing is not received. Employers need to manage compliance with the Worker Adjustment and Retraining Notification Act (WARN) as their negotiations with financial markets unfold.

WARN provides for an exception to the sixty-day notice requirement when a “faltering company” is confronted with a possible plant closing; however, the exception is a narrow one that requires careful employer analysis. An employer claiming the exception must prove: (1) it is actively seeking capital at the time the 60-day notice would have been required; (2) it had a realistic opportunity to obtain the financing sought; (3) the financing would have been sufficient, if obtained, to enable the employer to avoid or postpone the shutdown; and (4) the employer reasonably and in food faith believed that sending the 60-day notice would have precluded it form obtaining the financing.

A recent court decision in In Re: APA Transport Corp. Consolidated Litigation discussed several critical elements of the faltering company exception including the following:

Consolidation of related companies into a “Single Employer”

Related companies may be treated as a “single employer” for determining whether the employer meets the 100-employee coverage threshold for WARN and to assess whether the company is faltering. The faltering company exception is not available if a related has adequate capital to continue operations and it is treated as a single employer. Five factors are used to determine if related companies are liable under WARN on “single employer” grounds:

  • Common ownership
  • Common directors and/or officers
  • De facto exercise of control, i.e., one company was the decision maker for the employment practice that gave rise to the litigation
  • Unity of personnel policies emanating from a single source
  • Dependency of operations, i.e., interchange of employees or equipment or commingling of finances.

Timing and Proof of “Actively Seeking Additional Financing” 


According to the court, WARN requires that steps to “actively seek financing” be taken “at the time that the 60-day notice would have been required.” Therefore, the actions of the company occurring during the period of time, which is sixty days before the plant closing, must demonstrate active pursuit of financing. The court rejected APA’s argument that a company may qualify for the faltering company defense irrespective of whether it was actively seeking capital at the time the notice was required, so long as it did no foresee the shutdown that occurred sixty days later. Employers must demonstrate the timing and steps it took to secure financing.  The court’s view of the exception places a degree of omniscience on employers to predict exactly when the company will shut down.


Incidentally, the faltering company exception does not apply to mass layoffs under WARN.

Drinking Establishment Exemption Process Detailed by PA Dept of Health

The Department of Health (DOH) released additional Guidance and an application for an exemption for drinking establishments, cigar bars, and tobacco shops under Pennsylvania’s Clean Indoor Air Act (CIAA). The DOH information tangentially addresses the cross over between the prohibition on smoking in “workplaces” that may also be exempt “drinking establishments”.  For example, the law and guidance prohibit individuals less than 18 years of age in an exempt establishment at any time for any reason and require signage to that effect. Obviously, this creates a whole class of jobs that those under 18 may not perform supplementing existing child labor and liquor laws governing employment of minors.

The CIAA preempts local smoking ordinances except it does not apply to the City of Philadelphia, which has its own grandfathered Ordinance regulating smoking in public places.


Other postings on this subject include the following:


Pennsylvania enacts Clean Indoor Air Act Prohibiting Smoking in most Public Places including Workplaces


Department of Health Issued Guidance for Employer Compliance with Pennsylvania Clean Indoor Air Act

Revisiting Baseline Qualifications For Certain Positions: How Objective Qualifications, When Used Properly, Can Save The Day In Defending A Discrimination Claim

In Makky v. Chertoff, the Third Circuit Court of Appeals recently addressed the importance of objective job qualifications in evaluating the merits of a discrimination claim. Employers that establish clear baseline standards for position through their job descriptions, advertisements and other records are better able to defend discrimination claims by showing that the applicant or employee does not meet minimum qualifications for the position.

The Makky case involved the termination of employment of Dr. Wagih Makky who was employed by the United States government in the Federal Aviation Administration and Transportation Safety Administration for fifteen years. In his various positions, Dr. Makky was required to obtain security clearance. A descendant of Egypt, Makky was the only Muslim and only person of Arab descent in his division. Makky's security clearance was suspended due to safety concerns, including his dual citizenship with Egypt, foreign relatives and associates, foreign countries visited, and alleged misuse of his government computer. Makky was placed on paid administrative and subsequently terminated when the TSA issued its final denial of security clearance. Although Makky appealed the determination through the government's processes, the determination was upheld.

Makky filed a lawsuit including a claim for employment discrimination under Title VII of the Civil Rights Act. Makky's Title VII claim was premised on a mixed motive theory of discrimination which recognizes that an employment decision can at times be based on both (1) a legitimate non-discriminatory reason and (2) discriminatory animus. Here, Makky argued that while he was suspended without pay and terminated because he did not pass the security clearance, the TSA's actions were also motivated by discriminatory animus based on his national origin because the agency did not offer him other positions or keep him on paid leave. Although the Court recognized that the analysis is factually sensitive , it held that when a plaintiff does not possess the objective baseline qualifications to do his or her job, the discrimination claim will fail on its face because he or she cannot establish a prima facie case of discrimination. Applying the holding to the facts at hand, the Court found that Makky's inability to retain a security clearance rendered him expressly unqualified for the TSA position. Analogizing Makky's situation to a more mainstream occupation, the Court explained, "if the hospital employing a person who has been performing surgery learns that the employee falsified his or her qualifications and never went to medical school, that employee could not establish a prima facie mixed-motive case irrespective of allegations of racial or ethnic discrimination."

So what can an H.R. specialist take away from Makky? When a position requires a baseline objective qualification, like a license or degree, make sure it is expressly stated in all hiring materials including: (1) job advertisements; (2) position descriptions; and (3) application materials. Notably, if the degree or license it is merely the company's "preference" for someone in the position, it is important to consider whether making the "preference" appear as a "qualification" may lead to problems in the future. For example, suppose that Company X states that a sales position requires a Bachelor's Degree. When Company X interviews its two top choices, however, the female candidate who possess a Bachelor's Degree has the personality of dry toast, while the male candidate who has waitered all his life and does not have a Bachelor's Degree has a dynamic sales personality and will surely do well with Company X. If Company X believes that the male applicant is better suited for the position than the female applicant, should the Bachelor's Degree have been a required qualification in the first place? Probably not. Accordingly, it is important to have a process in place to review your company's job advertisements and position descriptions before posting for openings. While certain baseline objective qualifications can often be beneficial in refuting a prima facie discrimination claim, turning a mere "preference" into a "qualification" can have the opposite result because it may be used as evidence of a discriminatory motive.

First Amendment Free Speech Protections Limit University's Enforcement of its Sexual Harassment Policy

A Federal Appeals Court in Philadelphia enjoined Temple University from enforcing its “facially overbroad” sexual harassment policy because some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. In DeJohn v. Temple University, the Third Circuit Court of Appeals invalidated a public university’s Policy on Sexual Harassment that reads like that of many private employer’s, finding fault with the italicized language:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors,  or other expressive, visual or physical conduct of a sexual or gender-motivated nature when… (c ) such conduct has the purpose and effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.

The court found three areas of the policy language that were overboard so as to potentially stifle protected free speech:

  • The phrase “gender-motivated nature” is too indefinite taking into account the speaker’s motivations not limiting only the affect of speech and possibly inhibiting expression of a broad range of social issues. The Court also cautioned that “we must be aware that ‘gender’ to some people, is a fluid concept.”
  • The phrase “conduct which has the purpose and effect of unreasonably interfering” is too broad as it prohibits speech that “intends” to cause disruption. The university may only prohibited speeches that it reasonably believes will actually and materially disrupt the learning environment. (Interestingly, the “purpose and effect” language used by the EEOC.)
  • The phrase “unreasonably interfere[s] with an individual’s work” is too restrictive because it may encompass speech that creates a hostile or offensive environment but is protected nonetheless. A policy may prohibit speech that “substantially” interferes by using an additional standard like “severe and pervasive.”

Many employees in the private sector believe they have a constitutional right to say whatever they want in the workplace.  This is not the case and employees in the private sector may be disciplined for violating workplace conduct standards.

Private employers are not subject to the free speech protections of the First Amendment.  They can also take solace in the fact that a federal court is less likely to wordsmith their employment policies. The case shows the difficulty that all employers face in regulating workplace speech and conduct.  There are obvious challenges in drafting a harassment policy that is not so replete with legalese that is becomes incomprehensible to the workforce.

Legal System to Blame for Humorless Work Environment?

Hard economic times, perpetual threat of layoffs, workers stretched too thin could all be contributing to the “increasingly humorous American workplace” according to MSNBC author Eve Tahmincioglu in her post No joke! The workplace needs a good laugh. However, others are pointing to our legal system’s clamp down on “hostile work environments” as the cause of a joyless workplace:

What’s exacerbating the joylessness this recession has spawned, some believe, is decades of joke slap-downs in offices and factories. “The whole issue of political correctness has gone too far when it comes to the criteria for determining an offensive comment,” says Thierry Guedj, workplace psychology expert and professor at Boston University. “If anybody is offended, then it’s offensive. The criteria has become much too personalized. It only takes one person being slightly upset at something for it to become offensive.” It started in the 1980s, he continues, got worse in the 1990s and “has now reached its maximum.”

It is true that more claims of workplace harassment are being filed. The EEOC received 27,112 charges of harassment in 2007, up almost 18% from the prior year. Employer’s settlement payments of $65.6 million for these charges are no laughing matter. From a legal perspective, should employees be worried about injecting humor into the workplace and is an employer’s “joke slap-down” necessary? If your humor doesn’t demean people based on their membership in a protected class, then joke away.

It is the “off-color jokes” and other “humor” related to gender, race, national origin, religion or other protected classifications that can be considered harassment. These types of comments always find their way into allegations of discrimination or harassment when a complaint is filed. However, there is an important distinction between remarks uttered by a supervisor (quid pro quo harassment) verses those spoken by a co-worker (hostile environment harassment).

Potentially discriminatory remarks or jokes spoken by a decision maker are evidence of discriminatory motive in adverse employment decisions as noted by the Supreme Court in Ash v. Tyson Foods. A couple of off-color jokes followed up by a disciplinary suspension may give a discrimination charge some merit. On the other hand, mere utterance of a joke or other inappropriate remarks by a co-worker may not sufficiently affect conditions to create a hostile environment as noted in Meritor Savings Bank v. Vinson.   But that’s your risk.

According to EEOC Policy Guidance, a "hostile environment' harassment takes a variety of forms, many factors may affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual. 

Severity and the pervasiveness of alleged hostile activities are the focus of the legal analysis. This is a very fact sensitive inquiry which depends in part on what a reasonable person would find offensive. For example, the New Jersey Supreme Court has held that some racial slurs and jokes are so historically offensive that their use in the workplace, even once, can lead to liability for an employer who doesn’t respond appropriately. A single utterance of an epithet can create a hostile work environment if it is viewed as “severe” and it is aimed at the individual rather than a generalized comment.  

Professor Guedj is correct that workplace humor has changed; but, perhaps the change was needed.  The impact of hypersensitivity is theoretically mitigated by the reasonable person standard.  However, the gray of the law may have led some workplace humorist to abstinence. Alternatively, practicing “safe humor” could include the following prophylactic measures:

  • Evaluate the content of the humor; some words and subjects are never appropriate for the workplace.
  • Know your audience.
  • Save your stand up routine for the comedy club where patrons are willing participants.
  • Don’t make jokes personal by singling out one individual as the butt of your humor.
  • Stop joking with people who seem uncomfortable with it.
  • Don’t ridicule co-workers who don’t like your humor
  • Try ask whether someone is offended by the humor.
  • If a co-worker’s joke offends you, then say something to the jokester.
  • Don’t e-mail jokes to everyone in the office.
  • Take seriously complaints about inappropriate humor, but remember the conduct must offend a reasonable person.


Investigating Employee Misconduct based on Electronic Evidence may be limited by the Weakness of an Employer's Policies

The prevalence of e-mail and texting communications can aid an employer in its investigation of workplace misconduct; provided, the employer’s policy adequately preserves its right to access the data. However, overstepping rights to access e-mail and other electronic communication media can result in criminal prosecution under state and federal law.

Recent high profile firings of Philadelphia TV anchors highlight the role of electronic evidence in an employer’s investigations and the pitfalls of illegal access to private computer data, in this case by an employee. Fired TV newscaster Larry Mendte was charged July 21, 2008 with hacking into the e-mail of his younger co-anchor. Mendte was previously fired based on an independent investigation by CBS as he allegedly hacked into Lane’s e-mail account from work and home and then revealed information to news outlets about Lane’s legal troubles. Lane was fired in January by CBS after she was accused of assaulting a New York City Police Officer and other public gaffes which gained media attention. Lane since sued KYW-TV, claiming that the station exploited her, tore her down and defamed her on her way out the door. She also claims that KYW management failed to investigate leaks of personal information about her and also engaged in a pattern of "deep-seated gender-discriminatory animus" toward her and other female employees.  Undoubtedly, CBS's investigation into the circumstances of both firings will be the critical issues in subsequent lawsuits.

Federal and State laws protect employers and employees from unauthorized access to computers, servers and electronic data. There may be additional limitations on an employer’s access to employee e-mails and text messages sent from employer accounts when the messages are stored on third party provider’s servers and are not stored on employer’s internal network. In Quon v. Arch Wireless Operating Co. Inc., a federal appeals court in California held that a public employer cannot access the content of text messages and e-mails sent at work because the data was stored on a third party service provider’s server and the employees had a reasonable expectation of privacy in these accounts. An employer’s e-mail policy may eliminate the expectation of privacy as to e-mails stored on its servers.  However, the text messages held by “remote computing service” are protected under the Stored Communications Act and cannot be obtained by an employer without the employee’s consent.

Employers must carefully draft policies related to employee use and access to all electronic media so as to preserve its property interest in the data, ensure rights to unfettered access and prevent misuse of the media and information.

Switching to a Paid Time Off Program (PTO) has Practical and Legal Implications

Traditional leave programs segregate time off into categories like vacation, sick time and personal time requiring HR professionals to track both the time off and the reason it is being taken. Sick time abuses are addressed by tightly monitoring the reasons for sickness-related absences and disciplining employees for excessive absenteeism. Many employers have decided to get away from policing the circumstances of an employee's absence by just creating a bank of paid time off that can be used for any reason. Once PTO is exhausted, time off is unpaid and subject to the attendance discipline policy. This certainly sounds like a great idea, but here are some practical and legal considerations in converting from a traditional sick pay program to a PTO plan:

Timing the Change Over to PTO:

Changes in leave policies should be coordinated with either the end of the leave year period or some other workplace change like moving to a four-day workweek. The obvious choice is converting to PTO bank at the end of the year, since most employers administer their time off programs on a calendar/fiscal year. For employers using anniversary date leave years, it is too difficult administratively to run dual programs, so they should pick a date and change over for everyone.

Effect on Four-Day Workweeks

Employers need to remember that a change in workweek from five eight days to four day ten hour days also affects time off policies. A handbook or CBA may describe time off (PTO, vacation, holidays, personal and sick time) in terms of “days”. However,

a workday, which used to be an 8-hour day, is now a 10-hour day. The 8-hour day was 20% or the workweek, but the 10-hour-workday is 25% of the workweek. If a day expands to 10 hours, employees are getting more time off and, as a result, the company is losing 5% productivity. If a day stays at 8 hours then employees can’t cover the whole day off. Converting the whole PTO bank to hours can address this situation. (see Energy Expenses And Gas Prices Motivate Employers To Move To Four Day Workweek: What Are The Legal Issues?)

Addressing the Perception of a "Take Away":

Converting to PTO means combining vacation, sick days, personal days, and other time off into one bank. Employers almost never credit the entire amount of sick time to PTO banks. Therefore, employers need to address the perception that employees are losing sick time. I have found that referring to the statistic mentioned in the prior posting (average 8 sick days, use 5) makes some sense. Based on this ratio, I convert 60% of sick days to PTO and couple it with an explanation about trade offs.

Dealing with Accumulated Sick Time:

Some employers allow the accumulation of unused sick time as an incentive not to use it. (This practice drives accountants crazy). The accumulated time may be used in some of the following ways: to satisfy a waiting period for STD/LTD; as a pay out upon separation, typically at a reduced percentage (50%); or it is simply forfeited. Employers may seize the opportunity to clean up their balance sheet and pay out a portion of the accumulated time or convert it to PTO. This approach softens the blow of the perceived take away mentioned above. However, an employer's flexibility in dealing with accumulated sick time depends on its written policy and practice with regard to payouts. Be careful not to create a claim for unpaid fringe benefits under the Pennsylvania Wage Payment and Collection Law.

Exhausting PTO:

Employees who use all of their PTO are unpaid for additional absences and are subject to discipline under the attendance policy. Some traps for the unwary include: the prohibition on salary docking for exempt employees; additional unpaid leave as an accommodation under the ADA, and discrimination claims under the ADA.

Administering FMLA:

FMLA administration becomes more challenging in a PTO program since the employer is not necessarily aware of the reason for an absence. A serious health condition under the FMLA triggers an obligation to notify an employee of his or her FMLA rights and starts the counting of the time against the 12 weeks of leave. Employers must also address the concurrent use of PTO and FMLA leave in their policies.

Integrating STD and other Leave Programs:

Some sick leave policies were designed to integrate with the waiting period for STD benefits. A move to PTO creates a disconnect. The disconnect can be mitigated by allowing an employee with accumulated sick time to use it to satisfy the waiting period if he or she becomes eligible for STD benefits. Otherwise, PTO or unpaid time is used during the waiting period. Employers might address hardships by creating a PTO donation program where employees may donate unused PTO to a fellow worker who needs additional time.

Contesting Unemployment Claims:

 An employer's proof of willful misconduct to deny unemployment benefits will generally look at the incident that gave rise to the discharge. If the reason is a violation of employer's attendance policy, the employee can show that the violation was not his or her fault. An employee who is fired for excessive absences after "squandering" PTO, may still be eligible for unemployment if the absence that gave rise to termination was for a legitimate illness.

Drafting a Policy:

A written policy on PTO is strongly suggested and it should address at least the following areas:

  • Accrual Basis or Award Basis
  • Notice of Absence
  • Unused PTO carryover or forfeiture
  • Concurrent use of FMLA and PTO
  • Consequences of Exhausting PTO
  • Discipline/Discharge

Violence in the Workplace: A Legal Perspective

HR professionals are reminded of their workplaces’ vulnerabilities every time an episode of workplace violence is reported in the media like this morning’s headline “6 dead in plastics factory shooting rampage.”  The scope of the problem set out in statistics. There were 5734 workplace fatalities reported to OSHA (2005 is the last year statistics are available). Assaults and Violent Acts accounted for 792 workplace fatalities.

Media accounts typically report about the “warning signs” that were missed and speculate on how the incident may have been prevented. There are, of course, psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

  • Previous history of violence, toward the vulnerable, e.g., women, children, animals
  • Loner, withdrawn; feels nobody listens to him; views change with fear
  • Emotional problems, e.g., substance abuse, depression, low self-esteem
  • Career Frustration, either significant tenure on the same job of migratory job history
  • Antagonistic relationships with others
  • Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order.

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and addressing employee conduct that expresses violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

34. When can an employer refuse to hire someone based on his/her history of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.

30. May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

OSHA’s General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA provides some resources to help employers meet this requirement.

Given the legal limitations confronting employers in their efforts to provide a safe workplace, the following are some suggestions in development of a Violence Program:

  • Establish and communicate a written violence policy
  • Consider pre-employment assessments and background checks
  • Establish an Employee Assistance Program
  • Train supervisors to recognize warning signs of employee violence
  • Recognize "at risk" situations like employee discipline or discharge and plan accordingly
  • Consider professional evaluations of at-risk employees based on objective signs of workplace problems
  • Assess workplace security measures
  • Develop and Communicate a Disaster Management Plan


The scenario is a common one. An employee quits or is discharged before the end of the pay period. The employer has the employee's final paycheck, and the employee has certain property belonging to the employer (e.g., a uniform, laptop computer, cell phone). The employer explains to the employee that it will give the employee his/her final paycheck as soon as the employee returns the employer's property.

In Pennsylvania, the employer's proposed swap of paycheck for property may run afoul of the law. The Pennsylvania Wage Payment and Collection Law expressly states that whenever an employee is separated from employment, the wages or compensation earned "shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable." 

Simply put, a employer in Pennsylvania cannot use the final paycheck as leverage to recover its property, even if it is not disputed that the employer is legally entitled to the property. Holding the final paycheck exposes an employer to potential liquidated damages and liability for the employee's attorney fees, in addition to the value of the withheld wages.

Employers essentially have two options (neither of which are ideal) when giving employees property for their use that the employer wants returned at the end of the employment relationship. In the first option, the employer can get written authorization from the employee to deduct the cost of any unreturned equipment from the employee's final paycheck. This option, however, presents some risk. The Wage Payment and Collection Law allows deductions from the paycheck with the employee's written authorization if the deduction is "for the convenience of the employe[e]." It is unclear whether deducting the cost of an unreturned laptop from an employee's final paycheck is a deduction "for the convenience of the employee" and thus permissible. In addition, the final paycheck itself may be insufficient to cover the cost of the unreturned property. This problem is made worse by the fact that the deduction should not take an employee's wages during the final pay period below the statutory minimum wage.

The second option is to pursue legal action against the employee for the cost of the unreturned property. In many cases, such legal action would be in the form of a civil action filed with a District Justice. In many circumstances, an employer spends time and resources pursuing the property in such a legal action well in excess of the value of the property itself.

There exists no perfect solution to the problem of employees failing to return an employer's property upon separation of employment. Despite the lack of good solutions, holding the final paycheck as leverage is not a permissible option and may result in additional liability.

Job Duty of Getting Coffee for Boss is not Sexual Harassment and Early Departure With Pay is Not Actionable Retaliation

The act of getting coffee is not a gender specific act that can form the basis for a sexual harassment claim according to a recent court decision in Klopfenstein v. National Sales and SupplyThe plaintiff had asserted that being compelled to perform what she considered to be a ‘servile task’ was, in and of itself, gender discrimination and gender based harassment so clearly stereotypical as to not specifically require comparator evidence. In essence, the plaintiff was contending that asking a female employee, regardless of the position that she held, to get coffee for her boss was per se because of her gender. Keep in mind that the plaintiff was a receptionist who did not object to getting coffee and refreshments for clients and vendors.

Despite the absence of any contention that she was subject to sexual advances, the plaintiff also sought to characterize her being required to get coffee as what she called “quasi quid pro” harassment.   Rather than being required to submit to a sexual advance, the gravamen of a quid pro quo theory, the plaintiff contended that she was required to conform to an outdated gender stereotype. This theory also rejected.

Finally, the plaintiff sought an expansive interpretation of what may constitute adverse action sufficient to support a claim of retaliation. After being advised that she would be discharged and paid for the rest of her last day, the plaintiff implored her employer to work through the end of the day. When she subsequently indicated that she might file a complaint, she was told to leave but still was paid for the rest of the day. The court noted that this could not constitute materially adverse action by the employer that might well dissuade a reasonable person from making a complaint. If anything, the Court noted, such a worker’s resilience in pursuing a charge or complaint “would likely be emboldened”

The court granted the employer's motion for summary judgment ruling that a female receptionist/data entry clerk could not make out a prima facie case for retaliation, sexual harassment or gender discrimination. National Sales and Supply was represented by Brian F. Jackson and Marcy L. McCullough of McNees Wallace & Nurick LLC.

Sue your Employee?: Self-Insured Health Plans Reimbursement Actions have Public Relations and Legal Concerns

Self-insured medical plans typically contain “subrogation clauses” that allow the plan to claim reimbursement from a personal injury recovery of a participant. The self-insured plan’s reimbursement right exists even if state laws prohibit such attachment as ERISA pre-empts the state limitation. For example, the Supreme Court ruled that ERISA trumped Pennsylvania’s anti-subrogation law allowing a self-insured plan to recoup payments it made for medical expenses from an injured participant’s tort recovery.

Recently in its decision in Sereboff v. Mid Atlantic Medical Services, Inc., the U.S. Supreme Court unanimously affirmed a self-insured health plan’s legal right of reimbursement from a participant’s personal injury recovery. Enforcement of this right requires that the plan sponsor include reimbursement language in both its plan document and summary plan description. Specifically, well-drafted documents should address the following:

  • Identifying the individuals covered by the reimbursement right in addition to the participant (e.g., dependents, heirs, etc.). 
  • Specifically reference the right of subrogation and reimbursement.
  • Specifically reject common law doctrines such as the "make whole" and "common fund" doctrines.
  • State that the plan has a first priority equitable lien with respect to any proceeds (from any source) that will be held in a "constructive trust" for the benefit of the plan and that the participant consents to both the lien and the constructive trust.
  • Require participant cooperation with respect to the plan's ability to enforce its rights, including requiring participants to execute subrogation and reimbursement agreements as a condition to receiving benefits.
  • Specifically reference the plan's right to offset future benefits to the participant.

Properly drafted (and consistent) language in plan documents and summary plan descriptions will serve to thwart any efforts to block the enforcement of a self-insured plan's reimbursement rights. However, a medical plan’s action in seeking reimbursement from an employee or dependent may not be without other repercussions.

Substantial adverse publicity and damage to employee relations could result when medical plans seek to recoup payments from accident victims. Consider the media firestorm that rained down on Wal-Mart after it tried to recoup $470,000 in medical reimbursements from a $1 million tort recovery of an injured employee. Wal-Mart’s was tarred with the title of “Worst Person in the World” from one media pundit. Ultimately, the Wal-Mart plan relented allowing a brain-damaged former employee to keep the money, even though Wal-Mart probably had a clear legal right to reimbursement.

Carnival of HR # 34

The Carnival of HR has its usual compliment of excellent postings on interesting topics.

Leading off is a discussion of the two sides of generational differences in the workforce. Dr. Ira Wolfe from the Perfect Labor Storm 2.0 posts on Gray ceiling disrupts succession plans for Gen Xers which discusses the recruiting challenges created by older workers remaining in the workforce and impeding the career advancement of younger employees. On the other side, Jon Agno of So Baby Boomer: Life Tips posts on Boomer Executive Challenges in which he fears that decades of institutional memory may be wiped out leaving organizations without many of the skills and insider knowledge businesses had taken for granted. 

Blogging is the subject of several of the Carnival submissions. Lisa Rosendahl at HR Thoughts asks the question “Why do you blog?” and answers it by stating that  “In doing so, you may very well be creating your legacy”. Her post is called "Moving Forward While Capturing the Past." Perhaps there is another answer to that question found in a post by Totally Consumed in which he comments On Personal Branding and Anonymous Blogging. The queen of anonymous blogging, The Evil HR Lady, chimes in recognizing that “I Haven’t Complained About Recruiters Lately.”

Legal risks sometimes cross the minds of HR pros.  Jon Ingham’s Strategic Capital Management (HCM) Blog assesses risk in his contribution Human Capital Risk and Reporting which argues that risk is an important area for all HR professionals. Dan Schwartz of the Connecticut Employment Law Blog kicks off our summer with some legal thoughts in his post called Start of the Summer Season: HR Topics to Ponder Now Before They AriseJon Hyman of the Ohio Employer’s Law Blog comes up with another compelling title for his post called Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract.  Most importantly, we should all keep in mind of Marcy McCullough’s post evaluating whether we can be dooced for On-Line Postings And Your Corporate Image: Can You Terminate Employees For Personal Postings?!?

Speaking of minds, Alvaro Fernandez at SharperBrains offers a superb introduction to what working memory is and why it is critical for our productivity, complemented with daily tips on Try Thinking and Learning Without Working Memory. Nina Simosko’s post describes "Comfortable Misery", a state of mind wherein you are miserable, but you have gotten used to it.  She states that far too many people live in "comfortable misery". A subsequent post offers a survey on the topic. If you are looking for a coping mechanism, the Career Encouragement Blog notes that it's okay to acknowledge that sometimes you are irrelevant on a particular project or even in a whole job. That’s Job Search Rule # 30 for those who are counting. I wonder if comfortable misery is one of the “10 Things I Learned About Working in HR” as recounted by Dan McCarthy at Great Leadership when he makes observations about his 18 month develop assignment as an HR generalist.

Employee benefits and compensation are the subjects of several posts. Michael D. Haberman at HR Observations advocates helping employees at the gas pump as an employee benefit in his post Pumping Up Your Employees: No Rah-Rah, Just Help With Gas.   Ann Bares at Compensation Force posits that merit pay systems create a dilemma that occurs when the short-term interests of individuals are at odds with the long-term interests of the grouping her post  “The Tragedy of the Commons and Merit Pay”.  Wayne Turmel who is the host of The Cranky Middle Manager Show submits a post called Lousy Quality and Small Portions in which he confronts the paradoxes of middle managers. Greg Pernula at i4cp writes about a recent survey that found a majority of companies lack various support, training or education when it comes to workplace diversity matters.

There are lots of insights on Talent Management and Employee Empowerment. Wally Block’s Three Star Leadership Blog observes that The best and the brightest are not always the best fit because setting out to hire "the best and the brightest" without attention to ethics, work habits, or organizational fit is just asking for trouble and minimizing your chances for success. Steve Roesler at All Things Workplace writes in his post titled “Making Change? Pay Attention to High Achievers” that, when it comes to making change, the talented people you think will be most helpful just might be the least. Chris Young of Maximizing Possibilities thinks that Talent Management is an increasingly important strategic issue for most organizations.  Given the value placed on effective talent management practices the question must be asked: “Is talent management too important to be left to HR?”   Alice Snell’s at Taleo’s Talent Drives Performance Blog  has a post called “Strategic Is As Strategic Does” that explains how embedding talent management into the business process—facilitated by HR and owned by line managers and employees—puts strategy into action. Susan Heathfield at Guide to Human Resources discusses Employee Empowerment as the goal of forward thinking HR processes and practices in her post Want Empowerment? You Get What You Request and Reward.

To add to our international flair, Frank Mulligan at Talent in China tries to explain the skills shortage for both professionals and workers in a land of 1.3 billion people, with the added contradiction of a shortage of jobs for Chinese graduates in his post "The Ups & Downs of China's Labor Shortage".  Somewhere in Ireland, Rowan Manahan of Fortify Your Oasis conducted a radio interview on job equality somewhat irreverently titled and unlikely to pass prudish US internet filters.

All good stuff for us to consider as we address today’s challenges. Thanks for all those who contributed to this Carnival. Jon Ingham’s Strategic Capital Management (HCM) Blog will host the June 11th Carnival of HR.

On-Line Postings And Your Corporate Image: Can You Terminate Employees For Personal Postings?!?

Freedom of Speech is a right granted by The United States Constitution and enjoyed by all Americans. Employees exercising their free speech rights by blogging, posting on MySpace and YouTube may be surprised to learn limits of their Constitutional protections and should acquaint themselves with the term “dooced”.

Generally, employees of private sector employers have no constitutional “free speech” rights in the workplace and beyond.  A quick civics’ lesson reveals that the Bill of Rights creates limits on the government’s actions to curb constitutional rights but does not typically restrain private employers from restricting an employee's speech and expression.

Employees should pause before reporting to work wrapped solely in a flag, speaking their mind or blogging about the cruelties of their employer. Freedom of speech may only go as far as an employer’s tolerance for commentaryPennsylvania courts have rejected wrongful discharge claims based on First Amendment protections asserted by employees who were terminated for criticisms of their employers. Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D. Pa. 1991).

Every employee owes the employer a duty of loyalty. The duty of loyalty owed by an employee to his or her employer is fairly broad and may encompass: "harmful speech, insubordination, neglect, disparagement, disruption of employer-employee relations, dishonor to the business name, product, reputation or operation, or nondisclosure of important information to the employer." Lee, Konrad, Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of Blogger's Identity Before Service of Process is Effected.

Employee comments need not be made at work. Employees have been fired for blogging and posting on MySpace. In one of the more infamous cases Ellen Simonetti, a flight attendant for Delta Air Lines, was fired in 2004 because of her "Queen of the Sky" blog content. Simonetti posted provocative pictures of herself in a Delta uniform on a Delta airplane.

The airline, concerned for its image, found her inappropriate actions to be grounds for her termination. While the case remains unsettled due to an administrative discharge under bankruptcy laws, Simonetti has gone on to publish a book and is reportedly trying to seal a movie deal—all based on her termination from employment for her blog. 

An employer’s power to terminate an employee for expressions of opinion is not absolute. Notable exceptions exist for “union activity”, anti-retaliation provisions of discrimination laws, and Sarbanes-Oxley Act compliance.  An excellent discussion of the law in these areas appears in a New York Law Journal article by Jeffery S. Klein and Nicholas J. Pappas entitled When Private Sector Employer Fires Worker for Blogging.

Many employers have chosen to adopt policies on employee communications for a whole range of purposes. Policies can be helpful in defining an employee’s actions in the following areas:

  • Authority to comment to news media on official matters
  • Authority to communicate with or about customers and vendors
  • Use of work time
  • Use of employer’s computer and other resources
  • Disclosure of confidential or proprietary information
  • Prohibition on content of communication that is disloyal, discriminatory, inflammatory, threatening, or disparaging of the company, its employees, customers, products, etc.
Since many corporations have blogs, they have also developed blogging policies and guidelines. IBM’s Blogging Policy is an example of one employer’s approach.

Applicants with Criminal Records: The Pros and Cons

Anyone who has spent any time recruiting knows that it is difficult to sift through a pile of applications without finding several job seekers with criminal convictions. About 3.2 percent of the U.S. adult population, or one in every 31 adults, was in the nation’s prisons or on probation or parole at the end of 2006.   Getting Out of Prison and Into a Job posted by Eve Tahmincioglu highlights the job search difficulties for convicted felons. It also reports that 700,000 people are released from prison annually, two-thirds of which are back in prison within 3 years. Similar demographic facts are compiled by Dr. Ira Wolfe in his book The Perfect Labor Storm 2.0 .

Many employers shy away from this pool of available labor even though it might be socially compelling to give someone a "second chance".  Federal and State governments have reacted to this situation by creating tax incentives for employers who hire convicted felons.  A federal tax credit of $2,400 is available for employers who hire ex-felons. Philadelphia offers a $10,000 tax incentive. Both programs have minimum employment periods.

Employers must weigh the following with regard to applicants with criminal convictions:

  • Prohibited Employment: State and federal laws may prohibit employment of a convicted felon in certain jobs such as financial services, teaching, adult and childcare, law enforcement, etc.
  • Negligent Hire:  Many states recognize legal claims by customers and employees when an employer negligently hires an employee when the employer knew or should have known that the employee would pose a safety risk to others. Applicants with criminal convictions for violent crimes may fall into this category.
  • Disparate Impact Discrimination: The EEOC’s guidance on the consideration of arrest records notes that blanket exclusions from hiring will likely have an adverse impact on minorities. Employers should establish a business justification for use of criminal record by evaluating the nature and gravity of the offense, the time that has passed since the offense, and the requirements of the job sought.
  • Limitations on the Use of Criminal History: Section 9125 of Pennsylvania’s Criminal History Record Information Act states that felony and misdemeanor convictions may be considered by an employer only to the extent to which they relate to the applicant's suitability for employment in the position for which he has applied. Employers must give a rejected applicant written notice that the criminal conviction was used in whole or in part as the basis for the employment decision.

Managing Workplace Romance requires more than a "Love Contract"

Kris Dunn at the HR Capitalist has a post on The "Love Broker" - Making Your Employees Sign A Workplace Relationship Prenup... Are such contracts really necessary and do they offer any legal protection? 

While taboos on workplace romance may have eased, legal and morale problems persist.   Office surveys show that 40% of workers admitted they have dated a co-worker. However, the same survey states that 84% of businesses do not have policies on workplace romance. David Javitch notes in his post on Dealing with an Office Romance, that there may be even bigger workplace risks for morale problems created by perceived favoritism and the looming sexual harassment claim. Courts can hold an employer liable for the sexual favoritism created by a supervisor's romantic involvement with a subordinate. Sexual harassment claims remain high with the EEOC reporting over 12,500 claims filed in 2007 resulting in EEOC settlements totaling almost $50 million. Million Dollar verdicts are common.

Love Contracts”  are usually called Consensual Relationship Agreements by the lawyers who draft them.  Agreements are typically used when a supervisor is dating a subordinate but can also apply to co-workers.  The agreements attempt to provide the employer with a defense to a a sexual harassment claim by documenting that the relationship is consensual (not unwelcome).  Employees view them as intrusive and HR managers loath monitoring the workplace rumor mill to determine if a contract is necessary.

Love Contracts have limited utility absent a broader policy and training approach. Employers should consider the following in addressing workplace romances:

Implement a Strong Policy against Sexual and other Harassment

The EEOC has issued extensive guidance on sexual harassment policies and their ability to reduce an employer's liability for harassment.   One of the most critical components of such a policy is an effective complaint procedure to redress claims of harassment. The risk of sexual harassment claims skyrockets when supervisors fish off the company dock.   Sexual harassment by a supervisor means automatic liability for a company, if it culminates in a tangible employment action like termination or discipline.

Develop a Policy on Office Romance without calling it "Fraternization"

The D.C. Court of Appeals in Guardsmark v. NLRB overruled an employer's no fraternization rule because it violated the rights of employees to engage in concerted activities. The court examined an employer’s policy that stated employees must not “fraternize on duty or off duty, date or become overly friendly with client’s employees or with co-employees.”  The court ruled that the generic term “fraternize” was overly broad because employees might infer that it prohibited both romantic relationships (which the employer could reasonably regulate) and fraternal relationships involving the discussion of terms and conditions of employment (that are protected by section 7).

Train Supervisors

Supervisory training on sexual harassment can demonstrate a company's good faith attempts to comply with the law. Such training should explain the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

Proactively Evaluate and Confront Situations

Most employers are content to sit passively and watch an office romance unfold. Many will not act unless it "becomes a disruption". Consider some proactive steps. If the romance is between co-workers, make sure they understand that it cannot affect productivity. If it is between a supervisor and subordinate, evaluate whether there should be changes in the reporting structure. Do not automatically transfer or reassign the female in the relationship or you will risk a discrimination claim.

Company Liability for Employee Cell Phone Use while Driving

Employers may be liable for injuries and damage where an employee’s job-related cell phone use contributed to the accident. Whether the cell phone use is within the scope of employment depends upon many factors including the employee’s job duties, who provided the phone, when the accident occurred, whether it was a business call, and whether the employee was complying with the employer’s policy on cell phone use.

PennDOT statistics show there were 5,715 accidents linked to the use of hand-held phones and 367 accidents attributed to hands-free phones in Pennsylvania from 2002 to 2006. Mark Stuckey of reports on a new study that concludes that hands-free phones can reduce the number of traffic fatalities and accidents. The study by Jed Kolko, a fellow at the nonpartisan Public Policy Institute of California, estimates that the 4,000 annual traffic fatalities in California could be reduced by 300 people as a result of a pending hand-held cell phone ban for California drivers. According to the Insurance Institute for Highway Safety, many states are adopting laws banning hand-held cell phone use. Pennsylvania state laws don’t address cell phone use, but many local ordinances prohibit all but hands-free operation.

A business's liability can be significant.  For example, a Georgia employer paid $5.2 million dollars to settle a claim related to an employee's use of a cell phone while driving.  Businesses should manage their potential liability by adopting a policy on cell phone use and then enforcing it. A policy should consider addressing the following:

  • Banning cell phone use while driving for all employees or classes of employees depending on job responsibilities.
  • Mandating that employees comply with all applicable state and local laws governing cell phone use.
  • Requiring employees to use only hands-free devices while driving.
  • Providing company cell phones with hands-free features.
  • Prohibiting the use of text message and e-mail features while driving.
  • Providing safety training on cell phone use including:
    • Requiring employees to pull off the road to make or take phone calls.
    • Instructing employees to avoid or to terminate phone calls involving stressful or emotional conversations.
    • Prohibiting cell phone use in adverse weather or difficult traffic conditions.
    • Restricting driver cell phone use to brief conversations.

Update:  We need frequent reminders that the policies we write as HR professionals have real life implications.  Here is a link  to bring this point home.  Employees should also consider their own civil, criminal and emotional liability:  Driver Hits, Kills Pedestrian While Texting.

Update 1/12/09:   Ban Cell Phones While Driving, Safety Council Says

Sex may Sell, but Gender-based Employment Decisions are Unlawful Discrimination

The EEOC announced a $1 million settlement for sex discrimination against men arising from a restaurant’s preference for hiring and promoting only women into bartending positions. The lawsuit highlights the tension between a business’s marketing efforts and legal compliance. What marketers may pander to in the name of “customer preference,” employment laws prohibit as discrimination.

Businesses spend millions of dollars to find out what motivates customers to buy by evaluating their preferences. Demographics play an important role in tying the right product to the right market. Also critical is having the “right” salesperson to make the pitch.

A business’s natural, but unlawful reaction may be to make staffing decisions based upon appealing to a target demographic group.  The “customer preferences” for the right salesperson cannot create employer hiring or promotion criteria for someone of a particular gender, religion, age, etc. Courts have universally rejected this form of customer preference, except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ). A BFOQ may exist where it is necessary for the purpose of authenticity or genuineness, such as, a model for gender specific clothing. 

In its lawsuit, the EEOC said that Razzoo's, a Cajun food restaurant chain, refused to hire or promote men to the position of bartender. The EEOC had evidence that the restaurant's management set up and communicated to managers by e-mail, a plan for an 80-20 ratio of women to men behind the bar. Male applicants and servers were told that management wanted mostly “girls” behind the bar. Men who worked as servers at the restaurant were generally denied promotion to bartender because of their gender. The few men who were promoted to bartender were not allowed to work lucrative “girls-only” bar­tend­ing events.

The EEOC’s settlement with Razzoo shows a developing trend in the agency of making an employer improve its approach to human resources. In addition to paying $775,000 to be divided among a class of male applicants, male servers, and male bartenders who were discriminated against, Razzoo's was also required to retain the services of a human resources consultant or to develop an in-house human resources department spending no less than $225,000 for these human resources services.   Razzoo's agreed to injunctive relief requiring training on equal employment opportunity for all its employees, the posting of an anti-discrimination notice, and EEOC monitoring of employee complaints of discrimination.

Suzanne M. Anderson, EEOC supervisory trial attorney and lead counsel on the lawsuit, summed up the EEOC’s position by saying that, "Some may think that sex sells drinks, but gender ratios are illegal… Razzoo's decision to hire and promote by gender is a clear violation of federal law. A hiring ratio is illegal whether it is 80-20 whites to blacks or 80-20 women to men."   It will be interesting to see how far the law will go in policing an employer’s efforts to appease a customer preference. For example, would an OBGYN practice be subject to an EEOC lawsuit if it specifically hired a female doctor based on the preference of its patients?