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

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.

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The New York Times article Tattoos Gain Even More Visibility discusses the rising popularity of body art and challenges facing employers in regulating employee dress. The article focuses on tattoos but raises the larger issue of employer dress code standards and their challenges in terms of both employee retention and legal compliance.

Jon Hyman at the Ohio Employers Law Blog notes that Employment decisions based on tattoos are not discriminatory and I would add “per se”. In fact, most courts defer to an employer’s evaluation of dress standards focusing on whether the policy is discriminatory or fails to reasonably accommodate religious practices. For example, in Coulter v. Costco Wholesale Corp., a court determined that “Costco has made a determination that facial piercings, aside from earrings, detract from the "neat, clean and professional image" that it aims to cultivate. Such a business determination is within its discretion. As another court has explained, ‘Even assuming that the defendants' justification for the grooming standards amounted to nothing more than an appeal to customer preference, . . . it is not the law that customer preference is an insufficient justification as a matter of law.’"

Courts may not question the business reason for the dress code standard, but the application of the standard across the pool of applicants and employees is clearly, where discrimination can occur. Discrimination is more likely to occur where managers are called upon to subjectively evaluate compliance. As noted in the NYTimes article, “Defining what the courts in the Cloutier case called a “neat, clean and professional” workplace image becomes more challenging when you consider that in 2006, a Pew Research Center survey found that 36 percent of people age 18 to 25, and 40 percent of those age 26 to 40, have at least one tattoo.” The difficulty arises from both the prevalence of tattoos and the excessive subjectivity of the standard.

Human Resource Professionals and managers loathe their role as fashion policy, but the subjectivity of some dress code standards invites claims of discrimination. For example, an employer requires all applicants to have a “neat, clean and professional appearance”. If hiring managers are called upon to describe this qualification standard, it is likely that all will have different measures.  If the subjective dress standard disproportionately disqualifies applicants in a protected class, it may be challenged as discriminatory.

Kris Dunn at the HR Capitalist gives a great perspective on customer preference in his post  Your Employee's Tattoo Is Causing a Consumer Confidence Issue....John Phillips at The Word on Employment Law also comments on the subject in his post  Coming to Your Workplace: Visible Tattoos.

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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. 

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“Small Employer” minimum wage increases to $7.15 per hour effective July 1, 2008 

All employers in Pennsylvania must pay the state’s minimum wage of $7.15 per hour based on the expiration of the Small Employer exemption. Previously, an employer who had an employee complement composed of the equivalent of 10 or less full-time employees had a lower minimum wage rate of $6.65 per hour until July 1, 2008.

Pennsylvania's Training Wage Increases to $6.55 per hour effective July 24, 2008

Pennsylvania’s training wages is scheduled to increase from $5.85 to $6.55 effective July 24, 2008. The training wage is no longer allowed after July 23, 2009. A 60-day training wage may be paid to employees under 20 years old effective January 1, 2007. This wage matches the current federal minimum wage. Eligible employees may be paid the training wage up to the day before the employee’s 20th birthday. On and after the employee's 20th birthday, pay must be raised to the regular Pennsylvania minimum wage even if the 60-day period has not expired.

The 60-day period starts on the first day of work. The 60-day period is counted as consecutive days on the calendar, not as days worked or business days. A break in employment (e.g. vacation, school year, etc.) does not affect the calculation of the 60-day period of eligibility and does not allow the employer to “restart” the 60-day period.

A youth under 20 may be paid the training wage for up to 60 consecutive calendar days after initial employment with any employer, not just the first employer. The fact that an eligible youth may be employed at the same time by more than one employer (unrelated to each other) does not affect either employer’s right to pay the training wage.   An employee may be “initially employed” only once by any one employer even if there are breaks in employment.

Employers must notify these employees at the time of hire of this wage and their right to receive the regular Pennsylvania minimum wage after 60 calendar days. Current employees may not be displaced, have their hours reduced or have their wages or employment benefits reduced to allow hiring of persons eligible for the training wage. Employers do not have to meet any training requirements to pay an eligible youth this training wage.

Pennsylvania’s Mandatory Minimum Wage Poster

FAQ on Pennsylvania Minimum Wage

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