The Commonwealth Court of Pennsylvania recently held that employees on strike were entitled to unemployment compensation (“UC”) benefits for the duration of their work stoppage because their employer had taken steps not expressly authorized by the applicable (though expired) collective bargaining agreement (“CBA”) and plan documents. ATI Flat Rolled Prods. LLC v. UCBR, 332 A.3d 901 (Pa. Cmwlth. 2025).

 

Under Section 402(d) of the Unemployment Compensation Act, eligibility for UC benefits depends on whether a work stoppage resulted from an employer-forced lockout or from a different type of labor dispute, such as a strike. In determining whether a work stoppage results from a lockout, Pennsylvania courts consider whether the employees have offered to continue working for a reasonable time under pre-existing terms and conditions, and whether the employer agreed to permit work to continue under pre-existing terms and conditions. If the employer does not offer to permit work to continue under pre-existing terms and conditions, the employer has failed to maintain the status quo, and the result is a conversion of a voluntary strike to a lockout whereby the employees may be eligible for UC benefits. In determining the status quo, Pennsylvania courts look only to the pre-existing terms and conditions of employment embodied in the expired agreement and do not consider the previous conduct of the parties.

 

In ATI Flat Rolled Prods. LLC, the employer refused to allow striking employees to take loans against their 401(k) retirement accounts, arguing that the company had a consistent past practice of denying plan loans to employees in an unpaid status. Therefore, the employer contended, its refusal of plan loans to striking employees did not constitute a change in the status quo giving rise to a lockout.

 

However, the Court noted that the relevant plan document and CBA stated only that employees who had retired or were terminated were ineligible for plan loans. The Court found no memorialized agreement between the employer and union to permit the denial of plan loans to all employees in an unpaid status. Because the Court determined the employer had changed the status quo by denying plan loans to the striking employees, the Court held the employees were eligible for UC benefits under Section 402(d) of the UC Law.

 

This case serves as a reminder that an employer’s misstep during a labor dispute can result in striking employees becoming eligible for UC benefits, which can impact the parties’ relative bargaining positions.

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document titled, “What You Should Know About DEI-Related Discrimination at Work.”  The document is comprised of a series of Frequently Asked Questions (FAQs) that provide guidance on what workplace diversity, equity and inclusion (“DEI”) policies and programs may be considered “illegal” by the EEOC.

The guidance document makes clear that, while DEI is not specifically defined in Title VII, DEI policies and programs may be unlawful if they involve “an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.”  A summary of the key takeaways from this FAQ-based guidance is provided below.

  • FAQ numbers 1 and 2 provide clear instructions on what an employee can do if they believe they have experienced unlawful DEI-related discrimination in the workplace, including how to file a Charge of Discrimination with the EEOC.

 

  • FAQ number 4 states that the protections afforded by Title VII apply to all workers equally and that the concept of “reverse” discrimination does not exist. In short, any policy or practice that treats employees differently “based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed.”

 

  • FAQ number 7 expands upon what may be considered “illegal” DEI-related discrimination in the workplace. It provides that, employers are prohibited from engaging in disparate treatment with respect to any term, condition or privilege of employment.  The phrase “term, condition or privilege of employment” is defined broadly to include, not just hiring/firing, promotion/demotion, job duties, compensation and fringe benefits, but also the following:
      • access to or exclusion from training and leadership development programs;
      • access to mentoring, sponsorship, or workplace networking groups;
      • internships, fellowships and summer associate programs; and
      • selection for interviews, including placement or exclusion from a candidate pool.

FAQ number 7 further explains that DEI programs that limit membership based on a protected characteristic, such as an employee resource group or other employee affinity group (e.g., a Women’s Leadership/Networking Group) can be unlawful segregation.  Instead, employers should focus on ensuring that employees of all backgrounds have equal access to workplace training, mentorship and networking programs and groups.

 

  • Finally, FAQ numbers 10 and 11 warn employers that, in certain situations, DEI training can create a hostile work environment and that opposition to DEI training and other programs can be considered protected activity if an employee believes the program violates Title VII.

What Does this Mean for Employers?

Based on this new guidance, employers must evaluate any existing DEI-related policies and programs to ensure they do not create any preferential treatment or limitations based on race, sex or any other protected characteristic.  Additionally, given the specific focus on what to do in the event an employee believes they have experienced DEI-related discrimination, employers should be aware of the potential for increased complaint activity relating to workplace DEI policies or programs.  As discussed in previous posts, it is strongly recommended that audits or assessments of DEI-related programs are conducted with the assistance of counsel to ensure that the work product is protected by the attorney-client privilege.

If you have any questions on the EEOC’s recent guidance or need assistance in reviewing any DEI-related policies or programs, please contact an attorney in our Labor & Employment Group.

On March 25, the Department of Homeland Security announced its intent to terminate the Cuba, Haiti, Nicaragua, and Venezuela parole program in 30 days (April 24).  The Biden-era CHNV program granted certain individuals from Cuba, Haiti, Nicaragua, and Venezuela lawful, non-citizen status allowing them to be present in the US for designated terms.  Many were also given authorization to work in the US under this program.  The March 25 notice indicates that individuals who are present in the US as CHNV parolees will lose lawful status on April 24, 2025.  The notice encourages parolees to self-deport as soon as possible.

The notice contains important information for employers who employ CHNV parolees.  Specifically, the notice states:

“Parole-based employment authorization under 8 CFR 274a.12(c)(11) automatically terminates upon (1) the expiration date specified on the employment authorization document, (2) DHS’s institution of removal proceedings against the alien, or (3) a grant of voluntary departure. See 8 CFR 274a.14(a). Such employment authorization may also be revoked on notice consistent with the procedures in 8 CFR 274a.14(b). DHS has determined that, after termination of the parole, the condition upon which the employment authorization was granted no longer exists and thus DHS intends to revoke parole-based employment authorization consistent with those revocation on notice procedures. 8 CFR 274a.14(b).”

….

“Third parties, including employers, landlords, and others, may also have indirect reliance interests in the availability of individual CHNV parolees, but even if DHS had allowed the grants of parole to expire at the end of their designated terms, such third parties would have experienced the effects of such expiration. By providing 30 days’ notice, DHS balances the benefits of a wind-down period for aliens and third parties with the exigency of promptly enforcing the law against those aliens lacking a lawful basis to remain in the United States. For the same reasons set forth above, DHS finds the U.S. government’s interest in terminating these grants of parole outweigh any reliance interest of third parties.”

 

If the DHS’s CHNV parole program termination initiative is not enjoined prior to April 24, those present and working in the US under the program will lose authorization to be present and to work in the US (hence the 30 day “wind-down period” for parolees and third parties – i.e., their employers – to prepare for compliance).

DHS’s announcement that it will pursue “revocation on notice procedures” is also noteworthy.  Under 8 CFR 274a. 14(b), DHS district directors are authorized to serve written notice on parolees of DHS’s intent to revoke their work authorization.  Parolees have 15 days to submit countervailing evidence contesting the revocation of their work authorization. Afterwards, the DHS district directors have authority to make a final, binding decision on work authorization revocation.

Now is the time to prepare for compliance if you employ individuals who are present and working in the United States under the CHNV parole program.  Many Executive Branch actions have been challenged in court and enjoined during the first two months of the Trump Administration.  Employers who employ parolees under the CHNV parole program should carefully monitor any legal updates following today’s DHS notice.  Absent an injunction, we expect the DHS to follow through on the initiatives outlined in it.  If you have any questions about compliance with the DHS’s notice, please contact an attorney in our Labor & Employment Group.

As winter turns to spring, the NCAA men’s and women’s college basketball tournaments are in full swing. March Madness is often viewed as an excellent way to build team spirit in the workplace — a little friendly competition never hurts anyone … right?  

Impact on Workplace Productivity 

There is a stigma that March Madness detrimentally impacts productivity in the workplace. Because games are played during the workday, employees attempt to “multitask” by balancing their screen time for both basketball and work. This behavior is obviously not encouraged but may pose difficulty for employers to track or manage during this season, especially because most employees are within arm’s length of a personal cell phone during the workday. Employees may also be more likely to request time off. Employers should continue to enforce their workplace policies regarding electronics and time off during this time.  

Embracing March Madness for Team Building 

There is no simple solution to avoid taking a hit to productivity. Instead, many employers lean into March Madness in the workplace to at least create camaraderie and boost morale amongst employees during this time. Employers may consider having designated approved zones and times for watching the games during normal work hours so long as employees are able to still get their work completed. Examples of this would be workplace lunches or “happy hours.” 

While employers may not be able to control productivity challenges completely, they can control their own legal risks that may occur due to “office pools” in the workplace.  

Sports Betting Laws and Office Pools 

Sports betting is a highly regulated activity — The Professional and Amateur Sports Protection Act of 1992, the Interstate Wire Act of 1961, and the Unlawful Internet Gambling Enforcement Act of 2006 outlaw betting on professional or amateur sports. However, most states allow sports betting in some form. For example, in Pennsylvania, sports betting is permitted through authorized sports wagering outlets for individuals aged 21 or older. In fact, Pennsylvania law permits volunteer organizations and clubs with small games of chance licenses to offer sports betting pools; if the entry fee is $20 or less, there are no more than 100 participants, and all proceeds are awarded to the contestants.  

Most employers are not authorized to conduct gambling under these laws. In fact, it is a first-degree misdemeanor to engage in unauthorized sports wagering, and the second offense is a second-degree felony, each carrying hefty fines. However, law enforcement has not historically enforced anti-gambling laws for office pools.  

State Laws and Anti-Gambling Policies 

Employers should pay attention to their state law regarding sports gambling as the implications may largely differ from state to state. If a workplace has an anti-gambling policy, employers should enforce it like any other policy.  

Non-Monetary Alternatives for Office Pools 

Ultimately, the decision to permit office pools in the workplace is one based on risk tolerance. While increased camaraderie and morale are not guaranteed, if an employer feels strongly about permitting these office pools for that reason, employers may also want to consider alternatives to traditional sports gambling. Instead of money, office pools could incorporate a non-monetary prize – a donation to the charity of the employee’s choice, lunch with the CEO, or a chance to choose the next company outing. 

Preventing Discrimination and Ensuring Respect 

To the extent an employer permits March Madness viewing or office pools, employers should ensure employees behave civilly and prevent potential alienation or harassment of employees with gambling addictions or who may oppose gambling for religious reasons. Reminding employees of sexual harassment and discrimination policies is always a good practice. 

Employers with questions about legal issues related to March Madness in the workplace can contact the McNees Labor and Employment Group. 

Did you know that you do not need to mail Form 1095-Cs if a notice is posted by March 3, 2025?

At the end of last year, a new law was enacted that would allow employers to provide Form 1095-C only if requested, so long as the employer complied with the IRS guidance.  The IRS has issued guidance which requires that the employer provide a clear and conspicuous notice, in a location on its website that is reasonably accessible to all participants, stating that they may receive a copy of their statement upon request. The notice must include an email address, a physical address to which a request for a statement may be sent, and a telephone number that the participant may use to contact with any questions.

The notice must be posted by March 3rd this year and must remain up until October 15th. The form must be provided to the participant within 30 days of their request.

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

With the election of President Trump, we have begun to see the removal of undocumented aliens from the country. Many of our clients are seeing removal operations occurring in major cities being reported daily in the news. We have received numerous calls from clients who are concerned about the possibility of enforcement actions by ICE agents at their facilities. The idea of ICE enforcement actions in workplaces is not new. These actions took place during the Obama administration as well. Here are some tips that may be helpful to concerned employers and their employees.

  • If ICE shows up at your workplace, employees should contact management at their earliest opportunity so that management is aware of what is occurring at the facility.
  • If ICE comes to your facility asking for access to non-public areas of your workplace without a warrant, you can deny access to those private areas. Agents may enter public areas of the workplace without a warrant. Employees should not interfere with agents in public spaces, as interference will an ICE enforcement action is a crime and could subject your employees to prosecution.
  • If ICE has gone so far as to come to your facility to conduct an enforcement action, they likely already have a warrant. If an ICE agent presents a warrant to search the facility you should not make any effort to resist the search. It is sensible to ask the agents who they are looking for and offer to bring that person to the office to avoid workplace disruption. It is certainly of no value to your organization to have ICE agents randomly roaming through your workspace.
  • Keep good attendance records and be sure that you know who is at work. Managers should pay attention to attendance daily. If a raid occurs, agents may or may not inform you of who they have detained. Take attendance again after enforcement action is completed to be sure you know who was taken into custody.
  • Prepare now by making sure your emergency contacts are up to date for all employees. If employees are taken from your facility, contact their next of kin to ensure arrangements are made for picking up their kids from school, etc. This also gives the next of kin the chance to contact counsel to assist the detainee if they choose to do so.
  • Be sure you have I-9s for all employees and that they are properly prepared. Once employees have been detained, ICE will likely ask for the employees’ I-9s and other employment records. Be sure you are in compliance. Go back and examine supporting documents (if you keep them) to be sure they appear valid on their face.
  • Employees who may be detained need to know they can invoke their right to remain silent. They may refuse to sign any documents presented to them by ICE.
  • If ICE begins asking authorized workers if they know the whereabouts of any undocumented persons, they should invoke the right to remain silent. Mistakenly identifying someone as illegally working in the United States could result in action being taken against the employee by the person mistakenly identified.

There is very little you can do to assist individuals who are in the country illegally. The steps we are recommending are designed to protect your business and your employees. Please contact us with any further questions.

Yesterday, the Trump Administration announced that it offered voluntary buyouts to over two million federal employees.  Employees who voluntarily resign their position will receive payments equal to approximately eight months of their salary.  Obviously, the goal is to reduce the size of the federal workforce and related expenses.

From time to time, our clients ask us about doing similar voluntary exit incentives to shrink their labor-related expenses.  Such voluntary programs often have pros and cons.  Some of those tradeoffs look like this:

Pros

  • By allowing employees to volunteer to resign or retire, the company can accelerate the departure of employees who are planning to leave anyway or who are on the fence about whether to leave. The buyout may provide them the final nudge they need.
  • Employees on the cusp of retirement often elect the voluntary buyouts.  Those same employees tend to be the highest compensated employees.   By capturing those employees in the voluntary buyout, a company can shed some of its most expensive labor.
  • It avoids difficult decisions. If the employee volunteers to leave, the company does not need to make the hard decision about who to keep and who to let go.
  • Voluntary buyouts often come with a severance agreement that includes a general release of all claims. The employees elect the voluntary buyout knowing that they will sign a general release to receive the incentive payments.  So, the risk of post-termination discrimination lawsuits is significantly diminished.

Cons

  • A company-wide buyout offer can lead to critical employees leaving the company. The departure of those key employees can cause serious skill-drain and corresponding loss in productivity/revenue.  As a result, the buyout may be entirely counterproductive.
  • The company may be left with the worst performing employees. A company’s highest performing (and most marketable) employees are typically confident that they can go back into the marketplace and find new employment.  So, they are more inclined to take the buyout.  Conversely, poor performing employees (particularly those who have become comfortable due to lack of supervisory oversight), tend not to elect.
  • A voluntary buyout is not precise enough. It is rare that the effects of a voluntary buy-out are spread evenly across all departments.  A voluntary buy-out risks that the employees who elect to participate are concentrated in a limited number of departments, causing imbalance in the workforce.  For example, let’s say a company’s IT department is lean, and because of that leanness the employees are disgruntled.  In a buyout, all the IT employees elect, leaving no one in the IT department.  At the same time, the marketing department is bloated, and because of the excess headcount work demand is low.  In the buyout, none of the marketing employees elect.  The end result is that the company loses employees it needs and keeps employees it doesn’t.
  • While financial payments are necessary to incentivize anyone to voluntarily resign, the uncertainty surrounding healthcare insurance and related costs often prevents employees from accepting the buyout. Unless there is some continuation of paid healthcare (often through COBRA) for a sufficient period of time to bridge the employee to their next job or to Medicare, the risk is often too great for employees to take the offer.  The cost of continued healthcare certainly impacts the cost-benefit analysis for the company.

 

Upon balancing these pros and cons, companies tend to either skip voluntary buyouts altogether or carefully determine which employees are eligible to participate.  It is not uncommon for companies to go through a two-step process: a narrowly defined voluntary buyout program followed by an involuntary reduction to surgically remove the remaining excess.

We will find out sooner rather than later whether some of these concepts will surface with the federal government voluntary buyout program.

Since 1965, federal contractors have been required to take affirmative action to ensure that they are not discriminating against employees.  The affirmative action requirement stemmed from an executive order (11246) issued during the Johnson Administration.  That executive order related specifically to taking affirmative action to avoid discrimination on the basis of sex, race, and ethnicity.  From Executive Order 11246, the Office of Federal Contract Compliance Programs (OFCCP) was born, and a body of regulation was developed.  Affirmative action was later expanded by legislative action of Congress to include disability and veteran status.  Our federal contractor clients are well aware of these affirmative action requirements, and many have endured audits by OFCCP evaluating their compliance.

Today, the pendulum swung.  As part of his executive order eliminating DEI initiatives, President Trump also gutted affirmative action.  President Trump’s executive order revokes the entirety of President Johnson’s Executive Order 11246, the origin of affirmative action.  As a result, the affirmative action requirements relative to sex and race/ethnicity no longer exist.  Federal contractors are only permitted to continue complying with the current regulatory scheme for 90 days.

President Trump’s executive order does not stop there.  It also orders OFCCP to stop: (1) promoting diversity; (2) “holding federal contractors and subcontractors responsible for taking ‘affirmative action’”; and (3) allowing or encouraging federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.  In effect, OFCCP is severely hamstrung.

Instead of the affirmative action requirements, President Trump’s order simply requires that federal contractors agree that its compliance with existing anti-discrimination laws is material to the government’s issuance of payment on the contract.  The order also requires that a contractor affirmatively certify that it does not operate any DEI programs that violate federal anti-discrimination laws.

Notably, President Trump cannot eliminate by executive order the statutory affirmative action requirements created by Congress related to disability and veteran status.  Unless and until Congress revokes those statutes, federal contractors continue to have affirmative action obligations with respect to those traits.

So, where does that leave you if you are a federal contractor?  Well, if you are collecting data and performing data analyses related to sex and race affirmative action, you need not.  You should, however, continue to comply with disability and veteran affirmative action requirements (though these are somewhat easier than sex and race).

It is clear that the intent behind President Trump’s executive order is to rely on existing federal discrimination laws to address employment discrimination in America.  It will be interesting to see whether a spike in federal discrimination lawsuits, and related burden on the judiciary, is an unintended consequence of today’s executive order.

It’s the most wonderful time of the year! The season’s greetings provide us with time to gather and reflect on the accomplishments and triumphs of ourselves and our peers. With a season so festive and spirits so bright, let’s not have legal nightmares keeping you up at night. You gather as co-workers, friends, and colleagues, but this holiday season, take it easy on the eggnog, please. Make sure to enjoy your holiday season (responsibly), and in doing so, let’s help you stay on the “nice” list this year!

Too much ‘Holiday Spirit?’

It’s important to remember that employment laws don’t take a break for the holidays.  A holiday party can be a great way to celebrate another year gone by and build camaraderie, but employers should remember, and remind their employees, that company policies still apply.  This includes, of course, policies against discrimination and discriminatory harassment.  And, with many employers choosing to serve alcohol at holiday functions, as you may guess, this could increase the odds that things could go sideways.  If the party gets too rowdy, or if a flirtation progresses into an inappropriate sexual advance, you may soon have a whole host of issues on your hands, ranging from the obvious sexual harassment claim to other issues, like workers’ compensation claims, or liability to a third-party for damages caused by one of your merrymaking employees.

As the holiday festivities are shortly starting, it is imperative to provide a helpful reminder to employees (and supervisors) that the company’s policies against harassment and discrimination apply during company-sponsored events, just as they ordinarily apply during the workday.

Remember that Holidays Aren’t the Same for Everyone

It’s also worth remembering that not all employees celebrate the religious aspects of the season.  Diversity makes the workplace a better, more productive place, and a holiday party should reflect the diversity of the workplace.  Beyond the fact that laws like Title VII of the Civil Rights Act of 1964 protect against discrimination on the basis of religion, your holiday party should be a place of inclusion that makes all employees of any or no religious affiliation feel welcomed. Consider these steps:

  • Hold holiday parties off-premises and during non-work hours if possible.
  • Make attendance optional. If the party is held outside of work hours and optional, then employees who may not celebrate holidays for religious or ethnic reasons can miss the party without forfeiting pay or suffering discipline.
  • Consider offering a “holiday party” or “end of year party” instead of a celebration linked to a particular religious observance. Although you may not get sued for simply having a “Christmas Party” or “Hanukkah Party,” adding religious overtones to your celebration may leave some workers feeling alienated or unwelcome.
  • If an employee has a religious or cultural objection to participating in your company’s holiday celebration, explore whether there’s a reasonable accommodation that will alleviate that employee’s concerns.

Don’t Hog the Eggnog!

Many employers choose to serve alcohol to add to the cheer and festive atmosphere at their holiday parties.  There’s usually nothing wrong with this from a legal perspective, and employees often appreciate the ability to enjoy an adult beverage while having a good time with work colleagues.  Serving alcohol at a work function does have its risks, though.  Here are some considerations if you decide to include alcohol at your holiday festivities:

  • Consider offering drinks with lower alcohol content, such as beer, wine, and hard seltzers, and serving food, too, to help slow the absorption of alcohol.
  • Consider having alcohol served by a professional bartender who can better recognize a visibly intoxicated person and/or limit the number of beverages available for each guest.
  • Make transportation available to and from the event.

The holidays are a time of celebration for everyone, and your holiday party should be, too. Remaining cognizant of the liability issues that may be associated with a holiday party can help keep things ‘merry and bright.’ As always, feel free to contact a member of the McNees’ Labor & Employment Group if you have any questions or concerns about your holiday party.  We wish you all a happy and healthy holiday season!

The National Labor Relations Board (“NLRB”) issued a decision finding that an employer violates the National Labor Relations Act (“NLRA”) by requiring employees to attend meetings in which the employer expresses its views on unionization. The decision, Amazon.com Services LLC, was issued on November 13, 2024 and overruled precedent dating back to 1948.

Under the ruling, these meetings—commonly known as “captive audience meetings”— violate the NLRA when the employer requires attendance under threat of discipline or discharge. The NLRB reasoned that these meetings interfere with an employee’s right to freely decide whether, when, and how to discuss unionization. Further, the NLRB stated these meetings can give a “coercive character” to the employer’s message.

Although this decision may take away a very powerful tool for employers facing a union campaign or election, employers can rest assured that the rule is not retroactive.  The ban will only be applied moving forward and will not be applied to meetings that occurred prior to the ruling.

While an employer may currently be prohibited from holding captive audience meetings, even under the Amazon decision, an employer can still meet with employees and discuss its views on unions.  The NLRB offered a safe harbor scenario to avoid violative captive audience meetings. An employer seeking to hold a meeting to express its views on unionization should provide advance notice regarding the following: (1) the subject matter of the meeting; (2) that attendance is voluntary with no adverse consequences for failure to attend; and (3) that the employer will not keep attendance records of the meeting.

In 2022, Jennifer Abruzzo, General Counsel of the NLRB, issued a memo stating her position that similar violations of the NLRA occur when a supervisor approaches an employee during work to discuss unionization and the employee perceives that they cannot walk away. Because that scenario was not at issue in the Amazon case, the NLRB did not take a stance on that argument. Therefore, employers should caution their supervisors not to approach employees to discuss unionization while the employee is working.

The ruling serves as a reminder for employers to consult with legal counsel when dealing with potential unionization efforts or a petition for election to ensure they are operating with the most up-to-date information on what is permissible under the ever-evolving NLRA legal landscape.