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 7 years, only misdemeanor convictions that occurred in the last 4 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; and
    • 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 which 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.

On Wednesday, November 19, 2025, the Pennsylvania Legislature passed the CROWN Act by an overwhelming majority. The Act has been sent to Governor Shapiro and he is expected to sign it before Thanksgiving.

The CROWN Act, which amends the definition of “race” and “religious creed” in the Pennsylvania Human Relations Act (PHRA), prohibits discrimination based on hair types, styles and textures that are associated with race as well as head coverings associated with certain religions. For example, the Act calls out certain hair styles and types—braids, locs, twists, boils, Bantu knots and afros—that will now be protected in Pennsylvania. The title of the Act is an acronym, which stands for “Creating a Respectful and Open World for Natural Hair.”

The Act’s co-sponsors, Representatives Mayes and 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.  For employers who maintain such restrictive policies, they 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; and
  • 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, who previously enacted CROWN Act laws.  By way of reminder, 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.  The Act will become effective 60 days after it is signed by the Governor.

If you have questions about your current policies as they relate to hairstyles or head coverings, please reach out to 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.

Nearly all employers maintain confidential or protected personal information, and many also maintain trade secrets and other confidential business information. Most of these employers also should – and typically do – enact policies to protect and limit access to such information, which their employees must follow or face discipline. Federal and state laws also exist to protect confidential information stored electronically by imposing civil and criminal penalties upon anyone who accesses, or attempts to access, confidential information without authorization.

But how, if at all, do employer policies and federal/state laws interact? Might an employee who violates an employer’s computer use policy also face criminal or civil penalties? With these questions in mind, below are some best practices for employers to consider.

Recently, the United States Court of Appeals for the Third Circuit clarified the relationship between policy violations and the Computer Fraud and Abuse Act (CFAA), the Federal Defend Trade Secrets Act (FDTSA) and the Pennsylvania Uniform Trade Secrets Act (PUTSA). Spoiler alert – violation of an internal policy will not automatically equate to a violation of state or federal law.

First, analyzing the CFAA, the Court noted that the Act was passed to “stem the tide of criminal behavior involving computers.” The CFAA imposes civil and criminal penalties upon anyone who accesses a protected computer without authorization or who exceeds their authorized access. The Court was clear that the activity prohibited by the CFAA is hacking activity; merely obtaining information, to which the employee has the means to access, for improper purposes or through improper means, is not a violation of the Act. The Court further explained, “if workplace [policy] violations were cognizable under the CFAA, an employee who sends a personal email or reads the news using their work computer would violate the CFAA.” In other words, a policy violation alone is not enough.

The Court also examined the FDTSA and the PUTSA, which protect information that satisfies four conditions: (1) the owner has taken reasonable measures to keep the information secret; (2) the information derives independent economic value from being kept secret; (3) the information is not readily ascertainable by proper means; and (4) if the information is disclosed or used, it would have economic value to those who cannot readily access it. Again, a policy violation alone will not be a breach of these Acts.

So, what are the takeaways from this case?

  • Federal and state laws that prohibit hacking and protect trade secrets are not automatically violated when an employee violates an employer’s internal computer use policies.
  • Federal and state laws guard against more egregious behavior than what is contemplated by most computer use policies.
  • Employers have every right to enact policies to safeguard confidential information and limit access to such information. These policies act as the first line of defense to prevent more egregious conduct or data breaches. Accordingly, employers should continue to prohibit activities that fall well short of violating the law.
  • As a supplement to their policies, Employers should also implement technology access controls to further safeguard confidential information and trade secrets. Such controls should, for example, keep confidential information behind firewalls and restrict employees from accessing data outside of what they need to perform their job duties. Using two-factor authentication and training employees regarding the risks and consequences of disclosing confidential information are also highly recommended.

Should you have any questions or concerns about your organization’s data protection or computer use policies, please do not hesitate to reach out to a member of the McNees Labor and Employment or Data Privacy and Protection groups.

With the passage of President Trump’s signature One Big Beautiful Bill, all the chatter about eliminating tax on tips and overtime wages has become something of a reality.  However, the details of how the elimination of these taxes will work, and what obligations this may impose on employers, are worth a closer look.

What do employers need to know about the elimination of tax on tips and overtime?  For starters, employers should continue to pay ordinary employment taxes on tips and overtime wages.  The elimination of the tax comes in the form of an exemption employees will now be eligible for – up to $25,000 for tipped employees and up to $12,500 for qualifying overtime compensation – which employees may claim on their personal income taxes beginning with tax year 2025.

For overtime wages, the Beautiful Bill permits employees to deduct up to $12,500 in “qualifying overtime compensation” from their taxable income.  You may ask, “What is ‘qualifying overtime compensation?’”  It is overtime that is mandated by the Fair Labor Standards Act.  In other words, it is not overtime that is paid to an employee because of an employer’s policy to pay overtime for weekend work, for instance, or for daily overtime that might be paid pursuant to a collective bargaining agreement.  It is only overtime that is legally required by the FLSA.  Employers will be required to identify this specific overtime pay separately on employee W-2s, beginning with tax year 2025.

Similarly, the Big Beautiful Bill permits employees who “customarily and regularly” receive tips to deduct up to $25,000 of tips from their taxable income.  This amount is reduced by $100 for each $1,000 that an employee’s adjusted gross income exceeds $150,000 (or $300,000 for joint filers).  The Bill also expands employers’ ability to take tip credits on FICA taxes beyond food service employees, and now includes tipped employees in the beauty service business.

We hope to get more guidance soon on how these tax credits will work and how employers must identify these now tax-exempt wages on their W-2s.  If you have questions about the One Big Beautiful Bill or how it may impact your organization, you should reach out to any member of the McNees Labor & Employment Group.