Employers often run background checks as a regular part of the hiring process to evaluate candidates. However, in Pennsylvania, employers must consider their legal obligations under the Criminal History Record Information Act (“CHRIA”) when using an applicant’s criminal history in its hiring decisions. A recent court decision, Phath v. Central Transport LLC, made it clear that CHRIA obligations will apply whenever an employer gets criminal history information—no matter how they obtain it.

What is CHRIA?

Under CHRIA, employers can consider felony or misdemeanor convictions only to the extent that they relate to an applicant’s suitability for the job. For example, if an applicant is applying for an accounting job, a conviction for embezzlement may be relevant, whereas a DUI conviction may not be. If an employer does not hire an applicant based “in whole or in part on criminal history record information,” it must provide written notice to the applicant which explains its reasoning.

The Impact of Phath v. Central Transport, LLC

In Phath v. Central Transport, Mr. Phath applied for a truck driving position with Central Transport. When Central Transport informed him that they would conduct a criminal background check, Mr. Phath voluntarily disclosed that he had been convicted of armed robbery and spent time in prison. Central Transport immediately informed Mr. Phath that he would not be hired due to his conviction.

Mr. Phath filed suit against Central Transport alleging its violation of CHRIA by (1) disqualifying him based on his robbery conviction and (2) failing to provide written notice. Central Transport argued that CHRIA does not apply if criminal background information is obtained directly from the applicant. The Third Circuit Court of Appeals disagreed with Central Transport and found that the criminal history disclosed was clearly part of Mr. Prath’s criminal history file which would have been later uncovered. Therefore, the manner in which Central Transport obtained the information did not matter—CHRIA still applied.

What This Means for CHRIA and Employers

The Phath decision reinforces that Pennsylvania employers cannot abandon their obligations simply because an applicant chose to disclose their own criminal history. Often, applicants will reveal this information knowing it will later be discoverable through their criminal background check. If criminal history information is considered during the hiring process, regardless of how it is obtained, employers must comply with CHRIA. Here are some key steps for employers to follow uniformly—regardless of the source—in order to comply with CHRIA (as well as other federal and local laws):

  1. Analyze criminal history. Only consider convictions that are meaningfully related to the job duties in question. Consider adopting clear criteria for analyzing criminal history information (i.e., nature and severity, time passed, relevance, and any mitigating factors).
  2. Document the decision and notify the applicant. If an employer declines to hire an applicant, in whole or in part, based on their criminal history background, the applicant must be provided with written notice explaining that reasoning.
  3. Comply with federal and state law when using a third-party background screening provider.
    • Fair Credit Reporting Act (FCRA). If criminal history information is learned from a consumer report, this will trigger obligations under the FCRA.
    • Local Ban-the-Box or Fair Chance Laws. Employers should evaluate whether they are subject to any local laws (e.g., Philadelphia’s ban-the-box law) that may restrict employers from inquiring into criminal history during the hiring process.

In case you missed it, at the end of 2025, Governor Shapiro signed House Bill 274 into law. This new legislation—now Act 55 of 2025—is a significant update to Pennsylvania’s Unemployment Compensation Law (“Law”).  Among other things, Act 55 expands unemployment compensation benefit eligibility for claimants affected by domestic violence.

Specifically, Act 55 adds a new provision to the Law by providing that a claimant shall not be deemed ineligible for voluntarily leaving employment  (Section 402(b) of the Law) or for failing to attend work (Section 402(e) of the Law) if, due to a domestic violence situation, the claimant’s continued employment would jeopardize the safety of the claimant or a member of the claimant’s family or household.

Act 55 provides that a domestic violence situation can be verified through any of the following sources:

(1) an active or recently issued protective order (or other order), court records, or police, medical, social service, or child protective services records;

(2) a statement from a qualified individual from whom the individual has sought assistance, such as a counselor, attorney, healthcare worker, member of the clergy, or shelter worker, or similar statement from a friend or relative;

(3) a self-affirming statement from the claimant that continued employment would jeopardize the safety of the claimant or a member of the claimant’s family or household due to the domestic violence situation; and

(4) any other type of evidence that reasonably proves domestic violence.

But that’s not all.

Any verifying documentation submitted to the Pennsylvania Department of Labor and Industry (“Department”) must remain confidential, and the Department may not disclose the existence of a claimant’s domestic violence situation in any notice provided to an employer regarding the claim for unemployment compensation.

Okay, but what is the “Express Lane”?

Once the claimant provides verifying documentation to the Department, and is otherwise eligible under Section 401 of the Law, the claimant is deemed eligible, and the Department is required to expedite a determination of eligibility. This is the central aim of these new provisions: to create an “express lane” for claimants who are affected by domestic violence and to reduce delays in such claimants accessing unemployment benefits when they may need them the most.

Is there anything else employers should know about?

Yes—there is.

There is relief for employers under the domestic violence provisions of Act 55.

Base year employers will automatically receive relief from UC contribution charges with respect to claims determined eligible under these domestic violence provisions. This means that employers’ tax rates will not increase as a result of the Department finding claimants eligible under these provisions.

This employer relief is provided automatically and does not require a request from the employer. The Department may notify the employer of the relief granted via the eligibility determination (or other relevant claim documentation) that is provided to the employer.

Act 55 appears to strike a balance between providing eligibility protection for claimants affected by domestic violence, while offering relief to employers.

These new domestic violence provisions will take time to play out.  If you have any questions about these provisions—or about any of the other updates to the Law under Act 55—our Labor & Employment team is here to help.

Until next time!

With 2025 winding down and the holiday season upon us, many organizations are planning to celebrate another year in the books, boost employee morale, and foster workplace camaraderie. While holiday parties may feel like a break from work, it’s important to remember that company policies, including those against harassment and discrimination, still apply during these festivities. So, let’s make this holiday season merry and bright without any unnecessary legal headaches!

Alcohol and liability: proceed with caution

During holiday celebrations, beer, wine, or your favorite holiday cocktail may help lighten the mood and help colleagues take a load off after a long year. However, with that lightened mood, there’s also potential liability. Remember, a company-sponsored event is still considered a workplace setting, so if a party gets too rowdy, or if a flirtation turns into an inappropriate advance, employers could face serious consequences, including sexual harassment claims, workers’ compensation issues, or even third-party liability if an intoxicated employee causes harm after leaving the workplace event.

These incidents can lead to legal risks and put a serious damper on morale and company culture. Employers should take proactive steps to reduce these risks and prioritize employee safety by:

  • Offering lower-alcohol options and serving food. Choose beer, wine, and hard seltzers instead of hard liquor. Pairing drinks with food can slow alcohol absorption and help maintain a balanced atmosphere.
  • Using professional bartenders. Hiring trained staff can help monitor consumption, recognize signs of intoxication, and enforce drink limits discreetly.
  • Providing safe transportation options. Arrange rideshare vouchers, shuttle services, or designated drivers to ensure employees can get home safely.
  • Setting clear expectations. Remind employees that company policies, including those related to harassment and conduct, apply to all company-sponsored events.
  • Considering alternatives. Offer activities like games, raffles, or recognition awards to shift the focus away from drinking and keep the event engaging for everyone.

Remember to include everyone in the festivities

This is a good time of year to remember that not all employees celebrate the same holidays. Diversity is a great strength of the workplace, and your celebration should reflect that reality.  Beyond the legal protections provided by laws like Title VII of the Civil Rights Act of 1964, which protects against discrimination based on religion, holiday parties should foster an atmosphere of inclusion where all employees feel welcome, regardless of their cultural or religious backgrounds.

To ensure that your holiday party remains inclusive, consider the following:

  • Use neutral terminology. Instead of labeling the event as a “Christmas party” or tying it to a single tradition, use neutral terms like “holiday party” or “end-of-year celebration.” This approach makes it clear that the event is for everyone, regardless of their cultural or religious background.
  • Make attendance optional. Participation should always be voluntary, especially if the event is held outside normal work hours. Allowing employees to opt out prevents any discomfort or the perception that attendance is tied to workplace performance.
  • Avoid exclusive symbols and rituals. Steer clear of religious symbols, music, or practices that may alienate those who do not share those beliefs. The aim is to create a celebration that is welcoming to all employees.
  • Take concerns seriously. If an employee raises a concern related to culture or religion, take it seriously.
  • Consider accommodations. Be mindful of dietary restrictions and accommodations for individuals with disabilities when planning the event.

Inclusivity is not just about maintaining compliance; it’s about cultivating an environment where every employee feels valued and comfortable participating. When done thoughtfully, your holiday celebration can strengthen team connections while ensuring no one feels left out. You may also consider additional festivities to allow all employees to participate equally, even those who may be remote.

Encourage wellness and mental health

The holidays can be a time of joy, but they can also lead to stress and pressure. Employers can support employee well-being by offering flexible scheduling during the peak holiday weeks and reminding employees of available mental health resources, such as Employee Assistance Programs. It’s important to avoid creating an expectation that attendance is mandatory. Encouraging voluntary participation helps reduce anxiety and respects personal boundaries. Simple gestures, such as recognizing achievements and expressing gratitude, can significantly boost morale and foster a positive workplace culture during this busy season.

Holiday party final checklist

Before the party, ensure that you clearly communicate the company’s conduct policies. It’s essential that employees understand that attendance is optional and that transportation plans are in place for those who may require them.

During the event, monitor behavior discreetly and ensure that employees feel included through interactive activities or recognition. These small steps can make a big difference in reducing risk and promoting inclusivity.

The holidays should be a time of celebration for everyone. By planning thoughtfully and staying mindful of legal and cultural considerations, employers can keep festivities merry, bright, and stress-free.

To the extent holiday festivities are hosted during regularly scheduled business hours or have mandatory attendance, employers should be aware of their wage and hour obligations.

For questions or legal guidance, contact a member of the McNees Labor & Employment Group. We wish you a happy and healthy holiday season!

Philadelphia’s Fair Criminal Record Screening Standards ordinance (also known as the “fair chance” or “Ban the Box” ordinance), which applies to most private employers and agencies in the City of Philadelphia, was recently amended to make it more difficult for employers to consider criminal history in employment decisions. The amendments to the ordinance will take effect on January 6, 2026. A summary of the key changes to the ordinance is provided below.

Shortened lookback period for misdemeanor convictions

While employers can still consider felony convictions that occurred within the last seven years, only misdemeanor convictions that occurred in the last four years can be considered. Employers are prohibited from considering summary offenses.

No consideration of expunged or sealed records

Employers cannot consider conviction records that have been expunged or sealed. If such a record appears in a criminal background or driver record check, employers must provide the applicant or employee with the opportunity to present evidence of expungement or sealing.

Expanded notice for background checks

If an employer provides notice of the intention to conduct a background check, including in a job advertisement, the notice must state that any evaluation of a criminal record will be subject to an individualized assessment that considers multiple factors, including the specific record and the duties and requirements of the particular role.

Notification of adverse employment action

An employer who intends to reject an applicant or employee, based in whole or in part on a criminal record, must provide written notice of its decision, identify the specific convictions considered, and provide the applicant or employee with a copy of the specific criminal record. An employer must also provide:

  • A summary of the applicant’s or employee’s rights under the ordinance
  • A statement that the employer will consider evidence of any error in the criminal history records and evidence of rehabilitation and mitigation
  • Instructions on how the applicant or employee can exercise their right to provide evidence directly to the employer
  • At least 10 business days for the applicant or employee to provide evidence of any inaccuracies or explanation of any record before making a final adverse employment decision

Anti-retaliation

The amendments include an anti-retaliation provision that creates a rebuttable presumption of retaliation when an employer takes an adverse employment action within 90 days of any protected activity. To overcome the presumption, employers must show that they acted in good faith and took the adverse action for legitimate reasons.

Employers should review their existing hiring processes and procedures and make any necessary policy changes to ensure compliance with these amendments. If you have any questions on the recent amendments to the ordinance or need assistance in reviewing or updating your existing policies, please contact an attorney in our Labor & Employment Group.

Pennsylvania will soon implement the CROWN Act, a law that prohibits discrimination based on hairstyles, textures, and types, as well as religious head-coverings. Signed by Governor Josh Shapiro on November 19, 2025, the Act amends the Pennsylvania Human Relations Act (PHRA) and takes effect January 24, 2026. Employers across the state should begin preparing now to ensure compliance with these new protections.

The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” amends the definition of “race” and “religious creed” under the PHRA to prohibit discrimination based on hair, as well as head-coverings associated with certain religions. For example, the Act specifically identifies certain hairstyles and types, such as braids, locs, twists, coils, Bantu knots, and afros, that will now be protected in Pennsylvania.

The Act’s co-sponsors, Representatives La’Tasha Mayes and Joanna McClinton, noted in their co-sponsorship memo that employers (as well as schools and other public spaces) historically denied opportunities and access to Black Americans for hairstyles deemed inappropriate, unacceptable, or unprofessional. The CROWN Act provides protections to Black Americans with natural hair or primarily black hairstyles, as well as head-coverings and hairstyles historically associated with religion.

Notably, the CROWN Act does not prohibit employers from enacting hairstyle or head-covering restrictions when such restrictions are for valid workplace health or safety reasons or as part of a bona fide occupational qualification. Employers who maintain such restrictive policies must demonstrate all of the following:

  • Without the adoption of the rule or policy, the health or safety of an employee or other materially connected person may be impaired.
  • The rule or policy is adopted for nondiscriminatory reasons.
  • The rule or policy is specifically tailored to the applicable position and activity.
  • The rule or policy is applied equally to individuals whose positions fall under the applicable position and activity.

With the passage of the CROWN Act, Pennsylvania joins several neighboring states (Delaware, New Jersey, and New York, for example) as well as the cities of Philadelphia and Pittsburgh, which previously enacted CROWN Act laws. Because the Pennsylvania CROWN Act amends the PHRA, it will apply to employers, labor organizations, and employment agencies with four or more employees in Pennsylvania.

This means employers should review their grooming, dress code, and appearance policies to ensure compliance with the updated law. Policies that restrict certain hairstyles or head coverings could expose organizations to discrimination claims unless they meet the Act’s narrow exceptions for health, safety, or bona fide occupational qualifications. Now is the time to audit existing rules and train managers on these new protections.

If you have questions about your current policies regarding hairstyles or head coverings, please contact any member of the McNees Labor and Employment Group.

Under the Biden Administration, the National Labor Relations Board (“NLRB”) was aggressive in expanding remedies available to those allegedly impacted by unfair labor practice charges. On October 31, 2025, the Fifth Circuit Court of Appeals held that certain damages ordered by the NLRB exceeded the scope of the NLRB’s statutory authority. The NLRB had ordered an employer to compensate workers for “direct or foreseeable pecuniary harms” stemming from a National Labor Relations Act (“NLRA”) violation. The NLRB has taken the position that it has the power to redress harms related to various “costs simply to make ends meet” such as interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, loan or mortgage payments, and transportation or childcare costs. The court held that such damages constitute “compensatory” or “legal” damages, whereas the NLRA provides only “equitable remedies” such as back pay or reinstatement.

The Fifth Circuit decision aligns with recent rulings by the Third and Tenth Circuits that the NLRB cannot not award this type of remedy. The Ninth Circuit has taken the opposite position. It remains to be seen whether the United States Supreme Court will resolve the circuit split, as well as whether the new presidential administration will continue to seek compensatory damages. Based on this uncertainty, employers face a difficult task in evaluating the potential liability stemming from an unfair labor practice charge.

The US Court of Appeals for the Eighth Circuit vacated and remanded a 2024 National Labor Relations Board (NLRB) ruling that found Home Depot violated the National Labor Relations Act (NLRA) by prohibiting an employee from wearing a “Black Lives Matter” (BLM) insignia on his apron during working hours.

On February 21, 2024, the NLRB ruled that the employee’s refusal to remove the marking of “BLM” on his apron was protected concerted activity under Section 7 of the NLRA. Home Depot argued that “special circumstances” justified the ban, claiming that the BLM insignia could jeopardize employee safety, exacerbate employee dissension and unreasonably interfere with the company’s established public image. However, the NLRB did not find this reasoning convincing.

On November 6, 2025, the Eighth Circuit Court of Appeals disagreed with the NLRB. While the Court did not directly address whether displaying BLM or engaging in other types of political speech at work qualifies as protected concerted activity, it unanimously concluded that the NLRB did not adequately consider Home Depot’s “special circumstances.”

Home Depot’s circumstances included (1) the store’s proximity to the site of George Floyd’s death (less than seven miles away), (2) heightened community tensions surrounding the BLM movement, and (3) recent civil unrest that caused Home Depot to temporarily close.

Considering these factors, the Court determined that Home Depot’s enforcement of its uniform policy was reasonable. Home Depot’s uniform policy allowed—and even encouraged—employees to customize their aprons with personalized pins, illustrations and written messages. However, its policy prohibited an employee from “displaying causes or political messages unrelated to workplace matters.” In making its decision, the Court heavily weighed the fact that Home Depot consistently enforced its policy equally against employees with BLM insignia as well as employees with Blue Lives Matter insignia.

The case will now be reconsidered by the NLRB. While this ruling supports the neutral application of workplace uniform policies, it remains uncertain whether wearing such insignia qualifies as concerted activity. Furthermore, since the decision is highly specific to the circumstances of this case, it does not clarify employers’ authority to ban all forms of social or political expressions in the workplace. However, employers are encouraged review their dress code/uniform policies to ensure they are applied uniformly and fairly to all employees.

If you have any questions about this recent ruling or how it may impact your business, please contact a member of the McNees Labor & Employment Group.

McNees’ Benefits Group will be issuing a “Did you know?” series throughout the year providing short compliance reminders.

Did you know that the IRS has published cost of living adjustments for retirement plans for the year 2026?

  • The limit on elective deferrals into a 401(k) plan is increased from $23,500 to $24,500.
  • The limit on age 50 and older catch-up contributions is increased from $7,500 to $8,000.
  • The limit on age 60-63 super catch-up contributions stays at $11,250.
  • The total employee and employer contribution that can be made to a defined contribution plan is increased from $70,000 to $72,000.
  • Roth catch-up threshold is increased from $145,000 to $150,000.
  • Highly compensated employee threshold remains at $160,000.
  • The annual compensation amount is increased to $360,000.

For more information regarding compliance for your benefit plans, contact any member of the McNees Labor and Employment Group.

Online interactions often have a more adversarial and less courteous tone than traditional, in-person discussions. In certain instances, an employee’s conduct on social media may escalate beyond mere disagreement and enter the realm of aggressive or hostile behavior.

It’s no surprise that people are more frequently taking to social media to express their viewpoints on contentious societal issues, and that this sometimes spills over into professional environments. Although employees may voice their beliefs on social media in their personal time, there is a growing expectation—both within corporate governance structures and among the general public—that employers exercise oversight and, where appropriate, impose disciplinary measures in response to conduct deemed inappropriate or damaging to the organization’s reputation.

These circumstances frequently compel employers to evaluate the scope of their legal authority to regulate and, if necessary, discipline employees for off-duty social media activity, particularly when their conduct conflicts with company policies or adversely affects the workplace.

Legal Overview

Pennsylvania follows the at-will employment doctrine, meaning employers can (in theory) terminate employees at any time, for any reason—or no reason at all, so long as that reason doesn’t violate the law. Conversely, this also means that employees can quit their jobs at any time, without notice or explanation. While this may appear to suggest that employers can terminate employees for their social media posts without worry, such situations are rarely so simple.

Individuals critical of employer actions in response to employee social media posts often point to the First Amendment, which protects speech from government censorship. Importantly, the First Amendment right to free speech does not extend to private employers.

If an employee works for a private company, the employer can discipline or fire the employee for social media posts—even if made off-duty—without violating the First Amendment (unless the post is protected by other laws such as Title VII, the ADA, the PHRA, etc.)

Types of Social Media Posts That May Result in Termination

While it is difficult to provide a rule of thumb for discipline-worthy social media activity, the following types of social media posts and comments may give rise to discipline from private employers:

  • Content containing offensive, discriminatory, or inappropriate language
  • Disclosure of confidential or proprietary company information
  • Posts that harm or undermine the company’s reputation
  • Threatening language or advocacy of violence
  • Spreading false or misleading statements about the employer

Such posts may be especially concerning if the employee’s profile provides a clear connection to the employer, such as publicly listing their place of employment directly on the profile.

Best Practices for Employers

With the rapid rise of social media and its growing potential to spark controversy, employers should carefully consider whether to respond to employees’ off-duty online comments.

It’s wise for organizations to adopt the following proactive strategies:

  1. Develop a social media policy for employees that clearly outlines the expectations for social media activity and the potential consequences for violating the policy.
  2. Carefully consider whether discipline is appropriate on a case-by-case basis.
  3. Enforce the social media policy consistently across political viewpoints.
  4. Record any disciplinary measures taken and seek legal advice when appropriate.

At McNees, we bring deep expertise in employment law and corporate compliance to help organizations navigate the evolving digital landscape with confidence. We understand that a well-crafted social media policy isn’t just a legal safeguard—it’s a strategic tool that protects your brand, promotes responsible online behavior, and respects employee rights.

Whether you’re building your social media handbook from the ground up or refining existing guidelines, our team is ready to partner with you. We’ll ensure your policies reflect current legal standards, align with industry best practices, and embody your company’s values. From managing online conduct and confidentiality to reinforcing brand representation, McNees delivers practical, enforceable solutions that minimize risk and foster a culture of accountability.

For assistance with any employment law matters, please reach out to the McNees Labor & Employment team.

The Fifth Circuit Court of Appeals recently held that the statutory removal protections for members and administrative law judges of the National Labor Relations Board are likely unconstitutional under separation of powers principles. The Court determined that these protections deprive the President of the necessary level of control over officers of the executive branch. Based on that determination, the Court affirmed the district courts’ granting of preliminary injunctions, which halted NLRB proceedings in several cases. The Court determined that by facing “unconstitutional agency authority[,]” the employers suffered irreparable harm.

This decision has the immediate impact of providing employers facing NLRB proceedings in the Fifth Circuit—which includes Louisiana, Mississippi, and Texas—with the option of petitioning for similar relief. Notably, the decision creates a circuit split with the Tenth, Sixth, and Second Circuits, which have held that aggrieved parties must show that the unconstitutional removal provision interfered with the underlying proceedings in order to obtain injunctive relief. The circuit split may prompt the Supreme Court to consider the matter, which could have a nationwide impact on the NLRB’s enforcement authority so long as the statutory removal protections remain in place, or could result in the President having the authority to unilaterally fire NLRB members and ALJs (along with officials in other agencies who currently enjoy similar protections). When it recently ruled that NLRB Member Gwynne Wilcox could not return to her position pending her legal challenges to her termination, the Supreme Court signaled an inclination to find the removal protections unconstitutional if presented with the issue. In addition to the recent Fifth Circuit decision, Wilcox’s appeal in the D.C. Circuit is a candidate for the case on this issue that ultimately reaches the Supreme Court.

Employers presently involved in NLRB matters should be aware of the potential impact these developments may have on their cases. If you have any questions about this recent ruling or how it may impact your business, please contact a member of the McNees Labor & Employment group.