Recently, Andrew L. Levy, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Law Practice Group published an article titled: Truck Drivers Hauling Material Between a Turnpike Construction Site and a Borrow Pit Adjacent to the Project Are Entitled to be Paid the Prevailing Wage.
The article, which can be accessed by clicking…
Recently, the Commonwealth Court of Pennsylvania issued an interesting decision involving the appeal of a grievance arbitration decision filed by a Commonwealth Agency – the Pennsylvania Department of Corrections. The decision, Department of Corrections v. Pa. State Corrections Officers’ Association (pdf), offers unionized employers a reminder of the difficult hurdle that they face when appealing a grievance arbitration decision. But the decision also demonstrates that such appeals can be successful.
The decision resolved a conflict between the Department and the union that represents the Department’s corrections officers regarding how positions, or posts, would be filled at state correctional facilities. The union was seeking to have all (or nearly all) posts be designated as “bid posts.” A bid post is one where, upon vacancy, the position would be filled according to a seniority bidding procedure that, in effect, left the choice to the officers. The Department, on the other hand, was trying to limit the number of bid posts so as to retain its right to assign employees to posts at its discretion. Bid posts had been a point of contention between the parties for some time and had been the subject of many prior disputes. In the past, the individual correctional facilities were left to determine through negotiations with the local union which posts would be designated as bid posts at the particular institution. This approach lead to a great deal of inconsistency in the designation of bid posts across the Department.
The parties continued to struggle over the bid post designation, and eventually an arbitrator defined the criteria to be used to designate jobs as "bid post" positions. The arbitrator’s definition of bid post was incorporated into the parties’ 2008-2011 Collective Bargaining Agreement (“CBA”). The CBA also directed the parties to review all existing posts and mutually determine whether each post satisfied the arbitrator’s definition for a bid post. Not surprisingly, the parties could not agree on the application of the definition to the posts. In fact, the parties were unable to reach agreement on a single post designation. To break the logjam, the parties again turned to an arbitrator, who was asked to review every post in every correctional facility to determine whether it was a bid post.
This second arbitrator reviewed every post and, applying the original arbitrator’s definition, determined which posts would be bid by seniority. Interestingly, the arbitrator ordered that any post that previously had been designated as a bid post at the local level, whether it met the new definition or not, was also to remain a bid post. As this approach significantly increased the number of bid posts, the Department appealed this portion of the arbitrator’s decision to the Commonwealth Court. On appeal, the Department argued that the arbitrator, by grandfathering the bid post designation for certain posts regardless of whether they met the new definition, contradicted the language of the CBA.
Those with experience in grievance arbitration know that attempting to overturn an arbitrator’s decision can seem nearly impossible.Continue Reading Appealing an Arbitration Decision – A Success Story
More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). This trend is not expected to end anytime soon.
Just before the holidays, the United States Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).
Continue Reading Department of Labor Issues New Fact Sheets on Retaliation
As a reminder, amendments to the Pennsylvania Unemployment Compensation Law that provide for severance pay offsets against unemployment compensation benefits take effect January 1, 2012. We discussed in a prior post the amendments’ definition of “severance pay” and how the severance pay offset will be calculated.
Please note that severance agreements reached between an employer and employee in 2011 should not impact the employee’s unemployment compensation benefits, even if the severance pay continues into 2012. The offset will apply, however, to agreements reached on or after January 1, 2012.
Continue Reading REMINDER: Severance Pay Offset to Unemployment Compensation Benefits Takes Effect January 1, 2012 In Pennsylvania
On December 23, 2011, the National Labor Relations Board announced that it had agreed to again postpone the effective date of its controversial Employee Notice Posting Rule. In the news release announcing the postponement, the Board confirmed that the postponement was agreed to at the request of a federal court in Washington, D.C., which is hearing one of the legal challenges to the Notice Posting requirement.
On October 6, 2011, we discussed the requirements of the Notice Posting Rule and the Board’s announcement that it was delaying the implementation date for the Notice Posting Rule until January 31, 2012. The Notice Posting Rule will now become effective on April 30, 2012, if the challenges to the Rule are unsuccessful.
Continue Reading NLRB Again Postpones Employee Notice Rule’s Effective Date
Let’s say that you are having a Holiday party (with alcohol served) at your home, or you are a business owner and you are having a voluntary “company” party for your employees. If someone becomes “visibly intoxicated” at your party, are you as the host of the party liable if the visibly intoxicated guest leaves your party and injures himself or someone else? Does your homeowners or commercial liability policy cover you for defense costs and for a settlement or judgment if you get sued? What about workers’ compensation coverage for your employees?
The answers are complicated, I’m afraid.
Continue Reading Are you liable for serving alcohol at holiday parties in Pennsylvania? Does your insurance policy cover you?
Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement? Does your company charge “attendance points” against employees regardless of the reason for the absence? Does your company require employees to be released to work without restrictions before they are permitted to return from a medical …
On November 30, 2011, by a vote of 2-1, a bitterly divided National Labor Relations Board (Board) resolved to move forward with some, but decidedly not all, of the procedural changes it had proposed on June 22. While the Board’s Democratic majority referenced its desire to reduce “unnecessary, expensive, and time-consuming litigation for the Board and all parties,” the dissenting Republican Member, and most observers, have more accurately described the measure as another effort to shorten the time from the filing of an election petition to the date of the election. This would make it more difficult for employers to communicate with employees prior to the vote, and make it easier for unions to win more elections (although unions are already winning elections at a historically high rate of around 70%!).
Continue Reading NLRB Votes To Change Union Election Procedures (But Doesn’t Go All The Way!)
Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services. However, until now, there was no systematic approach to addressing this serious hazard.
The new OSHA Instruction regarding workplace violence does not change the law pertaining to workplace violence; however, it provides OSHA inspectors with a framework for analyzing this hazard in the workplace and for issuing citations under the general duty clause. Employers in industries with an inherent risk of violence, particularly those who employ workers that are exposed to the “known risk factors,” are well advised to study the OSHA Instruction and implement appropriate abatement measures.
Continue Reading OSHA Publishes Game Plan for Workplace Violence-Related Inspections
Recently, a National Labor Relations Board (Board) Administrative Law Judge (ALJ) found that an employee who was discharged for posts he made on his Facebook page was not discharged in violation of the National Labor Relations Act. In Knauz Motors, Inc., the ALJ found that the employee’s Facebook posts contained both protected and non-protected activity, but that the employee was terminated for only the non-protected activity. As a result, the ALJ refused to find that the employee’s discharge was unlawful.
Interestingly, when the terminated employee was confronted by management with the Facebook posts, the employee reacted as many employees may react. He stated that his Facebook page was “none of [their] business.” However, while it may appear that the Board will go to great lengths to protect employee social media activity, not all employee social media activity is protected by the National Labor Relations Act. Some employee posts may, in fact, be an employer’s business.
Continue Reading NLRB Administrative Law Judge Issues Another Social Media Decision
