This post was contributed by Joseph S. Sileo, Esq., a new addition to McNees Wallace & Nurick LLC’s Labor and Employment Law Practice Group. McNees recently welcomed Joe, Jennifer LaPorta Baker and Jennifer J. Walsh in Scranton, Pennsylvania.
As employers know all too well, an employee who is injured in connection with work can receive…
In 2011, the Third Circuit held that a pre-certification offer of judgment made by a defendant-employer to an individual plaintiff would not require dismissal of the plaintiff’s entire FLSA collective action, even if the offer of judgment would fully satisfy the plaintiff’s own individual claims. Before this decision, employers increasingly had used offers of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure to “pick off” individual plaintiffs and defeat FLSA collective actions early in the litigation before they could be certified. The Third Circuit held that even though an offer of complete relief could moot the plaintiff’s individual claims (regardless of whether the offer was accepted), it would not defeat the broader FLSA collective action. In June 2012, the Supreme Court agreed to review the Third Circuit’s decision on this issue.
Continue Reading Supreme Court Reverses Third Circuit Decision Precluding Early Use of Offer of Judgment to Defeat An FLSA Collective Action
Earlier this month, a federal judge in Pennsylvania ruled that the protections of the Pennsylvania Human Relations Act (“PHRA” or “Act”) do not extend to employees who neither live nor work in Pennsylvania. The PHRA is Pennsylvania’s comprehensive anti-discrimination law that promotes equal opportunity and prohibits discrimination in employment based on race, color, sex, age, religion, disability, and other protected traits.
In Blackman v. Lincoln National Corp., plaintiff Kathy Blackman filed an employment discrimination case against her former employer alleging she was subject to discrimination on the basis of sex and age in violation of the PHRA. At the time of the allegedly discriminatory act, Blackman lived in Illinois and worked in the Illinois office of a company headquartered in Pennsylvania. The judge dismissed Blackman’s PHRA claim after concluding that the PHRA does not apply to non-resident, out-of-state workers.
Continue Reading Nonresident, Out-of-State Workers not Protected by PHRA
Let’s say that you are having a Holiday party (with alcohol served) at your home, or you are a business owner and have 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 worker’s comp coverage for your employees?
Continue Reading Are You Liable for Serving Alcohol at Holiday Parties?
On October 31, 2012, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued two advice memoranda addressing at-will provisions in employee handbooks. In both cases, the NLRB concluded that the specific at-will provision could not reasonably be interpreted to restrict protected activity and, therefore, was permissible under federal labor law.
Continue Reading NLRB Provides New Guidance on At-Will Employment Provisions
Mitt Romney recently drew criticism for commenting to the National Federation for Independent Business (NFIB) that employers should weigh in on the upcoming election when speaking to employees. Specifically, Romney told NFIB members: “I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections.” Romney went on to say that there is “[n]othing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.” These comments likely had many HR professionals across the country asking, “Can employers really do that?”…
Continue Reading Bringing Politics into the Workplace during Election Season: A Wise Move for Employers?
As readers of this blog surely are aware, the National Labor Relations Board (NLRB) has embarked on a crusade against overbroad social media policies and handbook language. Notably, in a trio of social media reports, the NLRB’s Office of General Counsel suggested that prohibitions on offensive, demeaning, and inappropriate comments or statements that could damage the reputation of the company or its employees are unlawfully vague and could have a chilling effect on employee communications critical of the terms and conditions of their employment. Moreover, the Office of General Counsel expressed its opinion that the inclusion of a Section 7 disclaimer would not save an ambiguous policy. Recent decisions, however, signal that the NLRB has adopted a contrary position.
Continue Reading NLRB Decisions Suggest that Section 7 Disclaimer Could Save Vague Policies
Under the Pennsylvania Workers’ Compensation Act (“Act”), employers are required to maintain workers’ compensation insurance coverage. Generally, the employer’s obligation extends only to maintaining coverage for its employees, as that term is defined by law. Independent contractors are not eligible for workers’ compensation benefits under the Act.
However, Section 302(a) of the Act provides that an entity may be deemed a “statutory employer” as to independent contractors of a subcontractor who fails to maintain workers’ compensation insurance. Specifically, an entity that subcontracts with another entity to perform work regularly a part of the entity’s business is secondarily liable for that payment of workers’ compensation benefits to the subcontractor’s employees. Earlier this year, the Pennsylvania Supreme Court issued an opinion expanding the scope of statutory employer liability under the Act.
Continue Reading State Supreme Court Extends Workers’ Compensation Liability to Subcontractor’s Employees
On July 5, 2012, Pennsylvania Governor Tom Corbett signed into law the Public Works Employment Verification Act (“Act”), which requires state public works contractors and subcontractors to use the E-Verify program operated by the Department of Homeland Security. The E-Verify program is a free online system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to government records to instantly confirm employment eligibility.
Continue Reading New Law to Mandate Use of E-Verify by Public Works Contractors and Subcontractors
In recent weeks, identical bills were proposed in the House (H.R. 4123) and Senate (S. 2145) to eliminate the so-called “safe harbor” in the federal tax code that protects businesses that have misclassified employees as independent contractors and, thus, have avoided paying payroll taxes, unemployment insurance, workers’ compensation premiums and other costs. These bills mark the second time in 18 months that such legislation has been put forward. Though unlikely to pass, especially in this gridlocked Congress, the bills are just the latest in a number of recent endeavors by state and federal lawmakers and law enforcement agencies to curb independent contractor misclassification.
While the bills recognize that many workers are properly classified as independent contractors, the U.S. Department of Labor estimates that as many as 30% of employers are misclassifying employees as independent contractors. According to the IRS, approximately $54 billion in tax revenues are lost annually because of independent contractor misclassification. These agencies are now taking action to police misclassification and curb abuse.
Continue Reading Independent Contractor Misclassification in the Crosshairs
