As explained in Part 1 of this four-part series, we are exploring some of the more recent state law developments addressing sexual harassment in the workplace. Since the #MeToo movement began over a year ago, there have been various reactions from employees, employers and state legislatures. Employees have reacted by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment. The data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017. In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017. You can find more information on the EEOC’s report here.

Employers have reacted to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  Going forward, employers need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In Part 1 of this series we explored the recent flurry of legislation enacted in the State of California. In Part 2 we look at the recent developments under Delaware law.

DELAWARE

On August 29, 2018, Delaware passed a law that includes mandatory distribution to employees of a state-created information sheet on sexual harassment. Employers with four or more employees in the state of Delaware will be required to distribute the information sheet to new employees at the commencement of employment and all existing employees by July 1, 2019 at the very latest. The sexual harassment information sheet can be found here.

In addition, much like California’s training requirements, Delaware requires employers with at least 50 employees in the state of Delaware to provide interactive sexual harassment training and education. However, unlike California’s training requirements, the new Delaware law requires that both non-supervisory and supervisory employees receive the training.

Employers covered by the new law must provide interactive sexual harassment training to employees that includes the following components:

  • Addresses the illegality of sexual harassment;
  • Defines sexual harassment with the use of examples;
  • Describes the legal remedies and complaint process available to employees;
  • Provides directions to employees on how to contact the Delaware Department of Labor; and
  • Instructs employees that retaliation is prohibited.

The training must be conducted for new employees within one year of the commencement of their employment. Current employees must receive the mandatory training by January 1, 2020.

New supervisors must receive additional interactive training within one year of the commencement of their employment in a supervisory role and existing supervisors must receive training by January 1, 2020. The additional training for supervisors must also include: (1) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (2) the legal prohibition against retaliation.

For employers who provide – or have already provided – training that meets the requirements of the law prior to January 1, 2019, are not required to conduct additional training until January 1, 2020. After January 1, 2020, both the employee and supervisor training programs must be repeated every two years.

Stay tuned for Part 3 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement. In the meantime, if you or your organization have any questions regarding compliance with state laws in the area of sexual harassment, please contact any member of our Labor and Employment Practice Group.

While most Americans prepared for the Thanksgiving holiday, the Pennsylvania Supreme Court issued an opinion that establishes new precedent in the ever-developing area of cybersecurity law, and also limits a longstanding tort doctrine that had previously barred a large subset of negligence claims where the plaintiff claimed only economic loss (not bodily injury or property damage).  As a result of this decision, Pennsylvania businesses and employers face increased exposure to liability.

The case, Dittman v. UPMC, arose after UPMC experienced a data breach where employee data was compromised and then used to file fraudulent tax returns.  After suffering financial loss as a result of the breach, UPMC employees sued UPMC for negligence, alleging that UPMC owed its employees a duty of reasonable care to protect their electronically stored information, and that UPMC breached that duty. The Court held that an employer who collects and stores employee information on its internet-accessible computer system has a common law duty to protect that data from any foreseeable risk of harm. The Court also held that the employees’ claims of economic loss were not barred by the longstanding economic loss doctrine, which generally prevents a party from recovering solely economic damages under a negligence theory of liability.  The Court provided much needed clarification on the doctrine’s scope, stating that it does not preclude all negligence claims where the loss is solely financial, but does bar solely financial claims where the duty arises from a contract between the parties.  Because the plaintiffs in Dittman alleged breach of a common law duty separate, apart, and independent from any contractual duty, the economic loss doctrine did not bar UPMC employees’ claims.

The Dittman ruling is significant for two major reasons.

  1. It Establishes a Common Law Duty to Protect Personal Information. Before Dittman, it was very difficult for a data breach victim to recover due to the difficulty of tracking down the ultimate wrongdoer and a lack of precedent allowing recovery from those who collected and stored the compromised personal information.  By establishing a duty of reasonable care for employers who collect and store their employees’ personal and financial information on internet-accessible computer systems, the Pennsylvania Supreme Court created a clear method of recovery for employee data breach victims.  While the Court only imposed this duty on employers who collect and store employee information on internet-accessible computer systems, it is likely that the Court’s reasoning will be extended to other contexts where one party collects and stores another’s information, such as the business-consumer context or the university-student context.

Companies with employees in Pennsylvania should take immediate action to evaluate existing data security measures or impose data security measures if none are in place.  Since data breach victims will likely attempt to extend Dittman to other contexts, any business or entity that collects and stores data of Pennsylvania residents should evaluate their data security measures in order to avoid liability.

  1. It Is Much Easier for Plaintiffs to Bring Negligence Claims Seeking Solely Economic Damages. Before Dittman, defendants relied on the economic loss doctrine to quickly dispose of negligence claims seeking solely economic damages (as opposed to physical injury or property damage).  Now, negligence actions seeking solely economic damages cannot be dismissed as quickly or easily.  Instead, defendants will be tasked with proving that the plaintiff alleges a breach of a purely contractual duty, not a duty separate and apart from any contractual relationship.  By clarifying and limiting the economic loss doctrine in this way, the Court has opened the door to increased litigation and slower resolution of negligence claims seeking only economic damages.

As recognized by the trial court, the Supreme Court’s decision is certain to spark increased litigation. Indeed, in dismissing UPMC employees’ claims, the trial court noted that the creation of a private cause of action for victims of data breaches would likely trigger the filing of hundreds of thousands of lawsuits each year and overwhelm Pennsylvania’s judicial system.  Interestingly, in overturning the trial court’s decision and reviving UPMC employees’ claims, the PA Supreme Court did not address the impact of its decision.

Carol Steinour Young and Sarah Dotzel practice in McNees Wallace & Nurick’s Litigation Group.

The Fair Credit Reporting Act (“FCRA”) has been a fertile area for lawsuits against employers.  Recently, the Third Circuit Court of Appeals provided yet another warning for employers regarding compliance with the FCRA.  In Long v. SEPTA, the court held that an employer violates the FCRA when it fails to provide a copy of the applicable consumer report to prospective employees before taking an adverse employment action.  This decision serves as an important reminder of employer obligations under the FCRA and also provides clear and direct guidance on the steps an employer must take before it rejects an applicant on the basis of information contained in a consumer report or background check.

In Long v. SEPTA, SEPTA denied employment to three applicants who had been convicted of drug offenses.  Prior to making that decision, however, SEPTA did not send the plaintiffs copies of their background checks, nor did it send them notices of their rights under the FCRA.  The plaintiffs, in turn, filed a class action lawsuit, alleging that SEPTA violated the FCRA by taking an adverse employment action against them without providing copies of their background check reports or notices of their rights under the FCRA.

SEPTA argued that it made no difference whether the plaintiffs’ consumer reports were provided before or after its decision not to hire them because the reports were accurate.  Therefore, according to the employer, the plaintiffs suffered no legal injury under the FCRA.

The court rejected the employer’s argument and instead interpreted the statute based on its plain language as establishing two fundamental requirements: (1) that an employer must provide a consumer report and FCRA rights disclosure; and (2) that it must do so before it takes any adverse action.  The court explained that doing so “allows [the prospective employee] to ensure that the report is true, and may also enable him to advocate for it to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”  The court went on to note that the “required pre-adverse-action notice of FCRA rights provides the individual with information about what the law requires with regard to consumer reports….It helps ensure that reports are properly used and relevant for the purposes for which they are used.”

Accordingly, a prospective employee has the right to receive their consumer report and a description of their rights under the FCRA before an employer takes any form of an adverse action against them on the basis of information discovered in the report—regardless of how accurate the background check may be.  The court has made it explicitly clear that prospective employees have the right to know of and respond to such information prior to an employer’s adverse action.

If you have any questions regarding FCRA compliance, please contact any member of our Labor and Employment Practice Group.

On October 17, the Pennsylvania Senate signed the previously approved House Bill 1840, known as the “Protz Workers’ Compensation Legislative Fix,” which is expected to be signed into law by Governor Tom Wolf within the next several days.

Why is a “Protz Fix” necessary? Employers in Pennsylvania suffered a major blow, when the Impairment Rating provisions of Act 57, were invalidated by the Pennsylvania Supreme Court in the 2017 case of Protz v. WCAB. The Impairment Rating Evaluation (“IRE”) process reduced WC costs by limiting temporary total disability benefits (“TTD”) to 104 weeks, so long as the degree of impairment under the American Medical Association Guidelines to the Evaluation of Permanent Impairment was less than 50%. The Supreme Court in Protz found that the IRE provisions were an unconstitutional delegation of legislative power under Article II, Section 1 of the Pennsylvania Constitution, since impairment was to be determined “pursuant to the most recent edition of the AMA Guidelines to the Evaluation of Permanent Impairment.” The AMA Guidelines are revised every few years, and accordingly, the Court found that the Impairment Rating provisions allowed the measurement standards for impairment to “automatically” change every few years, without any ongoing legislative oversight.     

The Protz Fix, which hopefully will be signed by Governor Wolf, corrects this problem by specifying the use of the Sixth Edition of the AMA Guidelines. In a compromise gesture to injured workers, the Bill would also lower the impairment threshold from 50% to 35%, for entitlement to ongoing TTD benefits.

Although the Protz Fix, if signed, will certainly be challenged by plaintiff attorneys, the new law would seem to satisfactorily address the Constitutional concerns raised by Protz.

We will keep you posted concerning further developments and naturally, if you have any questions or concerns, please contact a member of our WC group, including Denise Elliott, Micah Saul or Paul Clouser.

There have been a variety of responses to the #MeToo movement since it began a little over a year ago. Employees have responded by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment.  Among other things, the data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.  In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017.  You can find more information on the EEOC’s report here.

Employers have responded to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  This year, employers will need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In this four-part series, we explore some of the more recent state law developments addressing sexual harassment in the workplace.  We will start our exploration with the State of California.

CALIFORNIA

Limitations on Settlements of Sex-Based Harassment and Discrimination Claims

On September 30, 2018, a new law was enacted that prohibits the inclusion of language in settlement agreements that prevent the disclosure of factual information related to:

  • Acts of sexual assault;
  • Acts of sexual harassment as defined under Section 51.9 if the California Civil Code;
  • Acts of workplace harassment and discrimination based on sex;
  • Failure to prevent acts of workplace sexual harassment or sex discrimination; and
  • Retaliation against a person for reporting harassment or discrimination based on sex.

The new law applies to any settlement agreement entered into on or after January 1, 2019 settling a claim filed in a civil or administrative action. If a settlement agreement contains a provision prohibiting disclosure of the information listed above, the provision will be considered void as a matter of law and against public policy.

As a result of this new law, employers with operations in California should consider the impact on potential settlement of sex-based harassment and discrimination claims. The new prohibitions on certain confidentiality provisions of a settlement may create a greater risk for damage to the employer’s reputation even after settling a sex-based claim with an employee or former-employee.

Increased Sexual Harassment Training Requirements

Since 2005, California employers with at least 50 employees have been required to provide two hours of sexual harassment prevention training to all supervisory employees once every two years. On September 30, 2018, legislation was approved that will require California employers with at least five employees to provide sexual harassment training and education to all employees (both supervisory and non-supervisory).  This new law requires employers to provide at least two hours of sexual harassment prevention training and education to all supervisory employees and at least one hour of such training to all non-supervisory employees by January 1, 2020.  Thereafter, the training and education must be provided once every two years.

As a reminder, the sexual harassment training required since 2005, must address all of the following:

  • The definition of sexual harassment under the California Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
  • The statutes and case-law prohibiting and preventing sexual harassment;
  • The types of conduct that can be sexual harassment;
  • The remedies available for victims of sexual harassment;
  • Strategies to prevent sexual harassment;
  • Supervisors’ obligation to report harassment;
  • Practical examples of harassment;
  • The limited confidentiality of the complaint process;
  • Resources for victims of sexual harassment, including to whom they should report it;
  • How employers must correct harassing behavior;
  • What to do if a supervisor is personally accused of harassment;
  • The elements of an effective anti-harassment policy and how to use it;
  • “Abusive conduct” under California Government Code section 12950.1, subdivision (g)(2).

This training must be provided in a classroom setting, through interactive E-learning, or through a live webinar. E-learning training must provide instructions on how to contact a trainer who can answer questions within two business days. All training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Additional information on the requirements related to California’s mandatory sexual harassment training can be found here.

Stay tuned for Part 2 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement.

The Occupational Safety and Health Administration (OSHA) has rolled back Obama-era guidance on safety incentive programs and post-accident drug testing. OSHA has a rule prohibiting employer retaliation against employees for reporting work-related injuries or illness. In its latest guidance (a memorandum published October 11, 2018), OSHA clarified that workplace safety incentive programs and post-accident drug testing do not violate that anti-retaliation rule. This differs from OSHA’s approach in previous guidance, where OSHA took the position that, in some circumstances, safety incentive policies and post-accident drug and alcohol testing could be a retaliatory practice for deterring employees from reporting work-related injuries and illnesses. OSHA has changed its course, but the latest guidance is still not a model of clarity.

Specifically, OSHA most recently stated that most incentive programs and instances of workplace drug testing are permissible. However, OSHA warned that such programs can be unlawful and retaliatory if they seek “to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” The new guidance supersedes any other interpretive documents, to the extent they are inconsistent.

Safety Incentive Programs

OSHA clarified and reinforced that incentive programs can be an important tool to promote workplace safety and health. Positive programs, such as those that reward workers for reporting near-misses or hazards or encourage involvement in a safety and health management system, are always permissible, according to the memorandum.

However, the line is less clear regarding rate-based incentive programs (e.g., rewards with a prize/bonus for an injury-free month) and negative action against an employee (e.g., withholding a prize/bonus because of a reported injury). OSHA’s position is that rate-based incentive programs are permissible so long as they are not implemented in a manner that discourages reporting. OSHA claims it would not cite the employer if the employer has implemented “adequate precautions” to ensure that employees feel that they are free to report an injury or illness. The question becomes whether the employer has “adequate precautions” to counterbalance any inadvertent deterrent effect under a rate-based incentive program.

Workplace Drug Testing

OSHA has provided more definitive guidance for drug testing. The following will be deemed permissible:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

OSHA has clarified that if an employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee(s) who reported injuries.

The attorneys of the McNees Labor & Employment Group are ready to assist your Company with developing OSHA-compliant safety incentives and drug testing policies.

We have been tracking the status of the proposed changes to the white-collar overtime exemptions in the Pennsylvania Minimum Wage Act (PMWA) regulations. In January 2018, Governor Wolf announced that the Pennsylvania Department of Labor and Industry (DLI) would be proposing new regulations to amend the PMWA regulations that govern its overtime and minimum wage exemption requirements for executive, administrative, and professional salaried employees. DLI submitted a proposed rulemaking in June 2018 for new regulations.

As we outlined in a prior blog post, the DLI’s proposed regulations included both big increases to the minimum salary requirements and changes to the duties tests for the PMWA’s white-collar overtime exemptions.

After their publication on June 23, 2018, DLI accepted written public comments on the proposed regulations through August 22, 2018. Not surprisingly, public comments on the proposed regulations were mixed, with employer groups being sharply critical of the proposed changes, while employee groups generally expressed favor.

The state’s Independent Regulatory Review Commission (IRRC) is tasked with examining proposed regulations before they can take effect. On September 21, 2018, the IRRC published its comments on the proposed regulations. The IRRC concluded that DLI needed to do more to justify the proposed regulations and outlined a number of questions and concerns. The IRRC noted the large number of employees, businesses, and non-profit organizations that will be affected by the changes contained in the regulations should they take effect. The IRRC flagged the fact that the proposed salary increases would greatly exceed the national average for salary increases and the actions with undesirable consequences that employers may take in response to the changes. The IRRC also expressed concern about the effect a change to PMWA’s regulations may have in advance of possible changes to the FLSA regulations, which could create even more confusion and compliance difficulties. The IRRC concluded that, based on the explanation of the proposed regulation in its Preamble, it was unable to determine if the regulation would be in the public interest.

It is unclear at this stage what effect, if any, the IRRC’s negative comments on the proposed regulations will have on the process and any final regulations issued. Pennsylvania law directs the DLI to respond to all comments received from the IRRC and any other source, and we await DLI’s responses to the IRRC’s comments.

The ball is now in the DLI’s court to address the comments provided by the public and IRRC and to determine (1) whether to issue final regulations and, (2) if so, the contents of the final regulations.

We will continue to monitor the progress of the DLI’s efforts in this area and provide updates as warranted.

In March 2016, OSHA published its standards for respirable crystalline silica in general industry/maritime (29 C.F.R. § 1910.1053) and in construction (§ 1926.1153), both of which have been phased in.  OSHA has been enforcing the construction standard for about a year (since September 23, 2017), and this summer the standard for general industry/maritime became enforceable (as of June 23, 2018).  Employees in general industry can be exposed to small silica particles during manufacturing (e.g., glass, pottery, ceramics, brick, concrete, and artificial stone) and during other non-construction activities that use sand (e.g., abrasive blasting and foundry operations).   Employers who are involved in such activities, or in construction work, may be affected by the silica standards.

Consequences of noncompliance are serious for employers, not only in terms of potential health risks to their employees, but also risks of enforcement actions by OSHA (and states with OSHA-approved programs).  OSHA has been conservative and generally modest in penalties issued to date, but that is likely to change.  For example, in August 2018, a construction company was cited for violations of the silica construction standard, with a proposed penalty of over $300,000.  Employers in construction and, now, general industry, should heed this warning as a sign of things to come.

Although the two silica standards differ in certain respects, both generally require employers to develop a written exposure control plan, perform an exposure assessment and periodic monitoring, implement feasible engineering and work practice controls, ensure respiratory protection and medical surveillance where necessary, comply with housekeeping measures, and maintain recordkeeping.  The general industry standard also requires demarcation of regulated areas.  It is important that silica hazards are incorporated into an employer’s hazard communication program, as the OSHA Hazard Communication Standard is also incorporated by reference and expanded upon in the silica standards.

Both standards are now subject to enforcement, except for some general industry/maritime requirements for employees exposed at or above the action level, and some requirements for hydraulic fracturing operations in the oil and gas industry.  For enforcement of the general industry/maritime standard, OSHA gave employers an additional 30-day grace period (until July 23, 2018), as long as they were making good-faith efforts to comply.  But the time has come for compliance, inspections, and enforcement.

Employers should be prepared accordingly, consider how to handle an inspection, and consult OSHA’s guidance.  OSHA recently issued various compliance materials on its general industry/maritime webpage, including interim enforcement guidance.  Additional resources  added by OSHA to its construction work webpage include a slide presentation for training construction workers, a five-minute video on protecting workers, a series of short videos for various construction tasks, and an FAQ page.

Even with these compliance materials, the silica standards can be complex and difficult to implement in a practical manner.  Employers should consult professionals to ensure compliance and mitigate any enforcement actions that may arise.

Perhaps the most significant EEO issue percolating through the federal court system right now is whether Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.  There is now disagreement among federal appellate courts on this issue and the U.S. Supreme Court will likely decide the question at some point.  In the interim, the Equal Employment Opportunity Commission has taken the position that Title VII does prohibit discrimination on the basis of sexual orientation and gender identity.  In addition, several federal courts sitting in Pennsylvania have agreed with the EEOC’s position. See EEOC v. Scott Medical Center (W.D.Pa. 2016).

Amidst all the recent focus on how federal courts are interpreting Title VII, little attention has been paid to whether the Pennsylvania Human Relations Act (PHRA) extends protection to the LGBTQ community.  In guidance issued on August 2, 2018, the Pennsylvania Human Relations Commission (PHRC) made its position on the issue clear.  The PHRC’s “Guidance on Discrimination  on the Basis of Sex Under the Pennsylvania Human Relations Act” states that the “prohibitions contained in the PHRA and related case law against discrimination on the basis of sex…prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.”  The Guidance further states that the Commission will accept sex discrimination complaints based on this expanded definition of the term.  The PHRC does not address some of the more thorny related questions, such as whether employer health plans must cover gender transition surgery as a matter of state law.

Notably, the PHRC Guidance further states that respondents (e.g. employers) who believe the PHRA violates their free exercise of religion “are free to avail themselves of the protections found within the Religious Freedom Protection Act (RFPA).”  The Guidance outlines how a respondent should go about raising an objection under the RFPA.  Some may remember that the RFPA was the statutory basis for the Supreme Court to limit the scope of the Affordable Care Act’s “contraception mandate.”

In light of the PHRC’s recent guidance, employers should carefully consider whether it’s time to revise their policies governing harassment and equal employment opportunity.  In addition, it may be advisable to revamp harassment prevention training programs to specifically address LGBTQ concerns.  If you have any questions regarding the PHRC’s Guidance, please don’t hesitate to contact any member of our Labor and Employment Practice Group.

The Third Circuit Court of Appeals, the appeals court that has jurisdiction over federal cases in Pennsylvania, New Jersey, Delaware and the U. S. Virgin Islands, recently held that a public employer violates the First Amendment of the United State Constitution when it retaliates against an employee based on the employee’s union membership.  In reaching its conclusion, the Court distinguished between First Amendment “free speech” claims and First Amendment “association” claims.

Palardy v. Township of Millburn involved a claim by a former police officer, who alleged that the Township refused to promote him to Chief, because of his affiliation with the police officers’ union.  In support of his claim, the former officer presented testimony that the Township’s business administrator made a number of derogatory comments about his role as a union leader.  Interestingly, the former police officer retired before the Chief position actually became vacant, because he believed that he would not be selected for the position.

The Township defended the claim and argued that union affiliation is not a matter of public concern, and therefore not protected by the First Amendment.  The trial court agreed, holding that speech on behalf of the union and association with the union were not constitutionally protected conduct. On appeal, the Third Circuit analyzed and rejected the trial court’s opinion, which also happened to be the same opinion reached by the majority of other circuit courts throughout the United States.

Instead, the Third Circuit adopted the minority view, and concluded that union affiliation is protected by the First Amendment freedom of association clause.  The Court agreed with the Fifth Circuit, which had previously held that the union activity of public employees is always a matter of public concern, and therefore, no additional proof is necessary to establish that the union affiliation is protected.

Accordingly, when an association claim arises from a public employee’s union affiliation, the employee or former employee need not establish that his association was a matter of public concern or that an specific free speech issues are implicated.

Keep in mind that First Amendment claims still require that the plaintiff establish three things: (1) that he engaged in constitutionally protected conduct; (2) the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a casual link between the protected conduct and the retaliatory action.  In Palardy, the court only considered the first question, finding conclusively that union-affiliation is constitutionally protected conduct.  The court remanded the case for consideration of the additional two elements.

While we certainly believe that this decision will result in an increase in First Amendment “association” claims (anyone who is a member of a union can now establish the first element), whether any particular plaintiff will be successful will depend on whether he or she can establish the other necessary elements of the claim, and that will still depend on the specific facts of each case.