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Winter is coming…still.  Some parts of the state are expected to receive possible snow squalls as well as a potential rain/snow storm in the weeks to come.  Weather conditions such as these often create challenges with business closures and employee absences.  With that in mind, employers should consider the following issues that may arise due to inclement weather:

Are employers required to pay employees when the business is closed because of inclement weather?

If weather conditions cause an employer to shut down operations and close, non-exempt employees need not be paid for time they did not work because of the closing. On the other hand, exempt employees must be paid their salary for the week regardless of the business closure.  An employer may require that exempt employees use accrued paid time off (PTO).

Must employees be paid if they do not report to work due to inclement weather when the business is open?

Non-exempt employees need not be paid for the time they are absent from work.  An employer may, however, at its discretion, allow non-exempt employees to use PTO for the absence. Additionally, exempt employees need not be paid for a whole day’s absence due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off.  If the exempt employee has no accrued paid time off, however, his or her salary may not be docked for a partial day absence.

May an employee be disciplined or discharged for failing to report to work due to weather conditions when the business is open?

Generally, an employer may apply its normal attendance policy to weather related absences. However, there is one major exception. Under Pennsylvania law, an employer may not discipline or discharge an employee who fails to report to work due to the closure of the roads in the county of the employer’s place of business or the county of the employee’s residence, if the road closure is the result of a state of emergency. The law does not apply to the following jobs: drivers of emergency vehicles, essential corrections personnel, police, emergency service personnel, hospital and nursing home staffs, pharmacists, essential health care professionals, public utility personnel, employees of radio or television stations engaged in the gathering and dissemination of news, road crews and oil and milk delivery personnel.

Ultimately, to avoid confusion about how weather-related closures and absences will be handled, employers should have a written inclement weather policy in their employee handbooks.  The policy should be clear that employee safety is the main concern.  The policy should also be clear as to the employees’ responsibility to give notice if they cannot make it to work due to bad weather.

Please feel free to contact any member of the McNees Wallace & Nurick Labor and Employment Practice Group for assistance with labor and employment law issues and/or if you have any questions regarding this article.

The Sixth Circuit Court of Appeals has held that discrimination against transgender/LBGTQ employees is discrimination on the basis of sex that violates Title VII of the Civil Rights Act of 1964.  Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.  Moreover, the court held that the employer could not use the Religious Freedom Restoration Act (RFRA) as a defense to justify such discrimination.

The Plaintiff began work as a funeral director and presented as a male (birth sex).  Eventually, Plaintiff informed the funeral home that she had a gender identity disorder and would transition to female.  Plaintiff was fired when she informed the funeral home she was no longer going to present as a male and would transition and dress as a female.  The funeral home contended that continued employment would harm its business clients and violated the funeral home’s owner’s Christian beliefs.

The federal Equal Employment Opportunity Commission (EEOC) filed suit under Title VII alleging unlawful discrimination on the basis of sex.  The funeral home owner defended the termination under the RFRA.  The RFRA prohibits enforcement of a religiously neutral law that substantially burdens religious exercise, unless the law is the least restrictive way to further a compelling government interest.

The district court held that Plaintiff was discriminated against based upon sex stereotypes, but held the EEOC could not enforce a Title VII claim because it would burden the employer’s exercise of religion in violation of the RFRA.  The court granted summary judgment to the funeral home.

The Sixth Circuit reversed and held that Title VII prohibits discrimination on the basis of LGBTQ status.  Perhaps more importantly, the court held that the funeral home was not entitled to a RFRA defense on the ground that continuing Stephens’ employment would not, as a matter of law, burden the employer’s exercise of religion and, even if it did, the EEOC had established that enforcing Title VII is the least restrictive means of furthering the EEOC’s compelling interest in combating and eradicating sex discrimination.

Keeping up with compliance requirements under Pennsylvania and federal laws can be challenging enough; however, for Pennsylvania employers that do business in multiple states, the compliance burden can grow exponentially.  It is expected that we will see little new federal employment legislation over the next few years.  However, the lack of legislative activity in Washington may prompt some state legislatures to place a greater emphasis on employment issues than usual.  It already appears that 2018 will yield a bumper crop of new state employment laws across the nation.  California, as usual, leads the league in new employment laws with a dozen new state employment laws taking effect on January 1, 2018.  Pennsylvania has no new notable employment laws scheduled to take effect; however, as we previously reported, Governor Wolf is aiming to revise overtime regulations under the Pennsylvania Minimum Wage Act.  Several of our neighboring states (New Jersey and West Virginia) have no new employment laws taking effect in 2018 – while New York has a number of new laws on the books.  Here is a very quick look at new state employment laws taking effect in 2018 among the states that border Pennsylvania.

New York

Paid Family Leave – This law is perhaps the most likely to trip up unwary Pennsylvania employers.  Any employer that employs at least one employee in New York for at least 30 days during the calendar year is covered; however, employees are not eligible for benefits until they have worked 26 consecutive weeks (or 175 days of employment for employees who average fewer than 20 hours per week).  Eligible employees will be eligible for 8 weeks of paid family leave in 2018 and this entitlement gradually increases to 12 weeks by 2021.  Pay during leave is based on a fraction of the state’s average weekly wage.  Employers may purchase coverage or self-insure.  Employees may be charged to cover all or part of the premium via payroll deduction.

Workplace Safety (Smoking) – Effective November 22, 2017, employees are now prohibited from vaping in workplaces (and other public places).

Salary History (New York City Ordinance) – Following suit with the City of Philadelphia, the Big Apple now prohibits covered employers from asking applicants about their salary history and from relying on that history unless the information is offered by the applicant voluntarily.  Note: Philadelphia’s Ordinance is currently being challenged in federal court and enforcement of the Ordinance has been stayed pending outcome of this litigation.

Delaware

Salary History – On December 14, 2017, Delaware’s law prohibiting employers from seeking an applicant’s pay history from current or former employers took effect.  Delaware is the third state to pass such legislation, joining California and Massachusetts.  As noted above, several cities (including Philadelphia) have passed ordinances with similar requirements.

Data Breach Notifications – Delaware was one of several states to update its laws governing notifications in the event of data breaches (i.e. identity theft prevention).  The new requirements take effect April 4, 2018.

Maryland

Data Breach Notifications – Like Delaware, Maryland has updated its law governing notifications in the event of data breaches.  The amendments took effect January 1, 2018.

Paid Sick Leave – Maryland’s “Healthy Working Families Act” is scheduled to take effect February 11, 2018; however, recent legislative efforts have been made to delay the effective date until July 2018.  Under the law, employees who have completed 106 days of employment and who work at least 12 hours per week are entitled to accrue sick leave at a rate of 1 hour per 30 hours worked – subject to a 40 hour annual cap.  For employers with 15 or more employees, the sick leave must be paid.  Smaller employers may provide the leave on an unpaid basis.  Covered employers are required to maintain records of accrual and usage for at least three years.

Ohio

Unemployment Insurance – Ohio’s law governing unemployment insurance has been amended effective January 1, 2018 to require employers to submit quarterly wage and contribution reports electronically.

We hope that this quick summary is helpful.  If you have questions, please contact any member of our Labor and Employment Law Practice Group.

Under the Fair Labor Standards Act (“FLSA”), employers are permitted to pay non-exempt employees a fixed salary to cover straight-time earnings for all hours worked in a week, provided several conditions are met: a) the employee’s hours must fluctuate week to week; b) the employee must be paid the fixed salary in weeks where employee works less than 40 hours; c) there must be a clear understanding that the salary is intended as straight-time compensation for all hours worked; d) the employee’s “regular rate” of pay (calculated by dividing the salary amount by the total weekly hours worked) must be at least the federal minimum wage; and e) for each hour worked in excess of 40 in a week, the employee must be paid an overtime premium of at least ½ the employee’s regular rate for that week.  This pay plan, commonly referred to as the “fluctuating work week” method (“FWW”), was long thought to be lawful in Pennsylvania.  However, in two federal court decisions issued in 2012 and 2014, FWW pay plans were found to violate the Pennsylvania Minimum Wage Act (“PMWA”).  Put another way, a pay practice that is permitted under federal FLSA regulations was found to violate Pennsylvania’s state law governing wages and overtime.

The earlier court decisions striking down FWW pay plans were both authored by federal judges who were interpreting state law.  Some employers have held out hope that the Supreme Court of Pennsylvania might disagree with their interpretation of the PMWA and resurrect FWW pay plans in Pennsylvania.  This issue has not yet reached Pennsylvania’s highest state court.  However, in Chevalier v. General Nutrition Centers, Inc. the Superior Court of Pennsylvania (an intermediate appellate court) considered the status of FWW plans under the PMWA.

In Chevalier, GNC’s store managers and assistant managers were treated as “salaried non-exempt” employees.  That is, they were paid a fixed salary regardless of how many hours they worked.  GNC also paid its managers an overtime premium consistent with the FWW method; i.e., a “regular rate” was calculated for each week (salary divided by total hours worked) and managers were paid ½ of the regular rate as a premium for each overtime hour worked.

Citing the prior federal court decisions referenced above, the plaintiffs argued that GNC’s FWW plan violated the PMWA.  From the plaintiff’s perspective, GNC was required to calculate each manager’s regular rate by dividing his or her weekly salary by 40 hours – and then pay 1 ½ times this rate for each hour worked in excess of 40.

Interestingly, the Superior Court did not side entirely with either party.  The Court found that GNC properly calculated each manager’s regular rate by dividing his or her weekly salary by the total number of hours worked by the manager in the week (and not by 40, as argued by the plaintiffs).  This holding results in a lower regular rate in weeks during which overtime is worked.

However, upon reviewing Section 231.43(b) of PMWA regulations, the Court agreed with the plaintiffs that overtime hours must be paid at a rate of 1 ½ times the regular rate for all hours worked in excess of 40 – or three times more than the ½ time premium that was being paid by GNC to its salaried non-exempt managers.  By way of example, if a non-exempt manager is paid a fixed salary of $1,000 each week, regardless of hours worked – then his or her “regular rate” is $20/hour in a week during which the manager works 50 hours.  Applying the Superior Court’s reasoning, this manager must then be paid $30/hour (1 ½ X $20) for each of the 10 overtime hours worked that week.

Notably, while the Chevalier case was pending, the Superior Court invited the Pennsylvania Department of Labor and Industry (“L&I”) to state its position as to whether the FWW method of calculating overtime pay is permitted under PMWA.  L&I declined to do so, explaining that, by taking a formal position on the issue, the Department would arguably be taking regulatory action without following the required regulatory review process.

In sum, the Chevalier decision makes it clear that employers may realize some wage savings by treating certain employees as “salaried non-exempt.”  However, the PMWA applies a stricter standard for calculating overtime pay than is permitted under FLSA regulations for FWW pay programs.   While Pennsylvania employers may calculate a salaried non-exempt employee’s “regular rate” in the same manner as they would under an FWW, the PMWA requires payment of 1 ½ times that rate for each overtime hour – and not merely payment of a ½ time premium.

Until the Supreme Court of Pennsylvania says otherwise (or the PMWA is amended), employers who employ salaried non-exempt employees in Pennsylvania should be careful to ensure that their overtime pay practices are consistent with the Chevalier decision.  If you have any questions regarding the Chevalier case or any other wage and hour compliance issue, please contact any member of our Labor and Employment Practice Group.

Typically, a drug test cannot be certified as positive until a Medical Review Officer (“MRO”) verifies the result.  For drivers subject to the Federal Motor Carrier Safety Act, Department of Transportation Regulations state that an MRO must verify as positive a confirmed test result for drugs, unless the employee presents a legitimate medical explanation for the presence of the drug in his/her system.  The employee bears the burden of establishing the legitimate medical reason for the positive test.

With the passage of state laws legalizing the use of medical marijuana, including here in Pennsylvania, many have questioned whether the use of medical marijuana, pursuant to state law, constitutes a legitimate medical reason for a positive drug test. In an updated “Medical Marijuana Notice” issued this fall, the Department of Transportation answered the question.  The DOT said “No.”

The DOT’s Notice makes it clear that marijuana, in all forms, remains illegal under federal law and the DOT expects that MROs will treat marijuana, whether used recreationally or medicinally, as illegal.  Accordingly, the Notice provides that “Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use ‘medical marijuana’ . . . It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”

The implications of medical marijuana use for CDL drivers is now clear.

But, what about drug tests for employees not regulated by the DOT?

The reality is that most MROs follow DOT testing guidelines for all drug tests in an effort to ensure consistency.  Accordingly, even when a non-DOT regulated employee tells the MRO that he/she is certified to use medicinal marijuana, the MRO will nonetheless certify the test as positive.  The MRO may include an external note to the employer that the employee claimed medicinal use.  However, the MRO will not seek to confirm the employee’s claim or to otherwise determine if the employee is a certified user.

The take-away is this . . . drug testing facilities will not help employers decide how to handle medical marijuana use.  A positive drug test will be a positive drug test, regardless of whether the employee is certified to use medical marijuana.  Accordingly, at the end of the day, outside of the CDL context the burden remains on the employer to decide, in accordance with its policies, how, if at all, the employee’s medicinal use impacts employment status.

Should you have any questions about your company’s drug testing procedures or your drug testing policies as the Pennsylvania Medical Marijuana Act nears full implementation, do not hesitate to contact us.

That sound you just heard was employers everywhere breathing a sigh of relief, and maybe even high-fiving.  That’s because the newly constituted National Labor Relations Board fired off several pro-employer decisions in the last week. The decisions were released in rapid succession in the days prior the expiration of the term of Board Chairman Phil Miscimarra.

As we reported just this week, the Board decided to modify the standard by which it determines whether employer policies are unlawful under the National Labor Relations Act.  That decision will provide some very welcome relief to employers who saw the Obama-era Board find just about every employer policy unlawful.  We also reported that we anticipate that the Board’s approach to social media will similarly become more fair and predictable.

The Trump-Board also made quick work of one of the Obama-Board’s most controversial decisions, Browning-Ferris, which created a new “joint employer” test.  We reported on the new expansive joint employer test adopted by the Board in Browning-Ferris, and expressed our concern regarding increased liability for employers under the new standard.  Browning-Ferris allowed for a joint employer finding, and increased liability, based on theoretical or “reserved” power/control, even if such control was never exercised.  In Hy-Brand Industrial Contractors, the Board abandoned the Browning-Ferris standard and declared that joint-employer status requires proof that the putative joint employer has actually exercised joint control over essential employment terms, rather than merely having reserved the right to exercise control.

The Board also reversed the Obama-Board’s Specialty Healthcare decision, which allowed unions to form “micro-units.”  That decision essentially required the Board to rubber stamp the union’s definition of the appropriate bargaining unit for purposes of a union election and bargaining.  This approach exposed employers to an increased risk of organizing campaigns, and the possibility of having to negotiate with several different unions.  On December 15, 2017, in PCC Structurals, Inc., the Board abandoned the Specialty Healthcare standard and returned to its prior framework for determining the scope of a bargaining unit.

Also on December 15, 2017, the Board reversed another Obama-era decision, E.I. DuPont de Nemours, Louisville Works, which had overturned 50 years of precedent.  In DuPont, the Obama-Board dramatically expanded the definition of “change” for purposes of determining whether an employer made an unlawful unilateral change to the terms and conditions of employment.  Under DuPont, an employer was found to have engaged in an unfair labor practice charge for simply continuing to do what it had done many times previously—for years or even decades. Last week, in Raytheon Network Centric Systems, the Trump-Board reversed DuPont, and announced the return to the prior standard for determining whether an employer is authorized to make changes to the terms and conditions of employment after the expiration of a collective bargaining agreement.

These decisions are certainly indicative of a return to a more employer-friendly Board.  These decisions reversed some of the more controversial, and problematic, decisions of the Obama-Board.  We are certainly hopeful these are a sign of things to come from the Board.  However, with the expiration of the term of Chairman Miscimarra, we may need to wait some time before we receive another batch of pro-employer decisions.

We have been talking about the National Labor Relations Board’s assault on Employee Handbooks, policies and rules for years now.  Frankly, precious few of these posts have contained good news for employers.  See for yourself!

Then, yesterday, in a 3-2 vote (split along party lines) a Republican majority overturned the NLRB’s 2004 Lutheran Heritage standard governing facially-neutral workplace rules, policies and handbooks.  Under the old standard, the Board could find that an employer violated the National Labor Relations Act simply by maintaining a policy that could be “reasonably construed” by an employee to prohibit the exercise of rights protected by the Act – even if the employer never applied it to restrict employee rights!  What the Board put in that “reasonably construed” category did not seem reasonable to many, many employers and, in my opinion, was extremely one-sided.

In announcing the new standard, in a decision involving the Boeing Company the majority announced that it was providing greater clarity and criticized the prior Board for invalidating “common sense rules and requirements” under the Lutheran Heritage standard.

Not only is there more clarity, there is balance.  Rather than considering only how the facially-neutral policy, rule or handbook provision could be “reasonably construed” the Board will consider two things:

  1. The nature and extent of the potential impact on employee rights protected by the NLRA and
  2. The employer’s legitimate justifications associated with the rule

The Board also categorized the rules:

  1. Category 1. Lawful rules, where the rule does not expressly prohibit or interfere with NLRA rights or the potential adverse impact on protected rights is outweighed by the employer’s justifications for the rule.  Examples offered by the Board in this category are the no-cameras in the workplace rules and the civility rules.  Remember this one on courtesy?  Please and thank you (you can say that now)!
  2. Category 2. Rules which require individualized scrutiny to determine whether any adverse impact on NLRA rights is outweighed by the employer’s legitimate justifications.
  3. Category 3. Unlawful rules that prohibit protected conduct and the impact on those employee rights is not outweighed by employer justification.  Here, is where the policies prohibiting employees from discussing wages and benefits would fall.

This is good news, for union and non-union employers alike.  Seems that the NLRB will be focusing less on policing innocuous handbook policies and, perhaps, the pendulum will begin swinging back.

In days past employees discussed and debated workplace issues around the water cooler. That sentimental past-time has long since been replaced by online social media networking and the reach of social media is stunning.

There are more than 2 billion monthly active Facebook users as of June 2017.  65% of these users on average log into Facebook daily and are considered active users. Five new profiles are created every second. The highest traffic occurs mid-week between 1-3pm. There are 328 million monthly active Twitter users, 100 million daily active tweeters and 500 million Tweets sent every day.

Disgruntled employees now use social media to speak out about employers and co-workers, using Facebook, Twitter, blogs and the like. An on-line attack has the potential to cause harm to the good-will of companies, and negatively impact the morale and reputation of employees.

The National Labor Relations Board (NLRB) regulates the employer-employee relations of private union and non-union workplaces.  In recent years the Board has consistently acted to protect from discipline unhappy employees who resort to social media and has waged an active war with employers to expand the rights of employees to use their employers’ private email systems.

As a result, many employers are asking fundamental questions. Do employees have a right to use social media sites while at work? Can I monitor employees’ social media activity? Do I need a social media policy?

The statistics vary but somewhere between 25% to 50% of companies have a social media policy in place. About 30% have policies that delineate how employees must present themselves when posting on the internet; nonetheless, 75% of the employees of these companies use social media regardless of the company’s policy.

The National Labor Relations Act gives employees the right to act together to address wages, hours and terms and conditions of employment. This is referred to as “protected, concerted activity.” When an employee posts a complaint on Facebook or Twitter about a company policy, such as vacation or flexible work hours, or complains about a work unit’s supervision, the employee may be engaging in protected activity that the NLRB considers to be beyond the reach of disciplinary action.

What are some of the factors that employers need to consider?

  1. Was the post for purely personal reasons?
  2. Did other employees join in or “like” the post?
  3. Did the post concern work-related issues?
  4. Was the post so disloyal or egregious so as to lose protected status?

While an employee may post a comment or observation a company considers disrespectful or objectionable that may qualify as protected, concerted activity, there are recognized limitations.  One such area includes proprietary and confidential information, and trade secrets.  Another area that is off limits includes comments about co-workers that are based on race, age, religion and other unlawful activity, such as sexual harassment.

However, in the absence of evidence of these off-limits areas, comments that companies have considered disrespectful, damaging to the company’s reputation, inappropriate in violation of company policies, or even as flat out false have been found lawful and protected.  And, to add insult to injury, the NLRB also has held the underlying company handbook personnel policies to be illegal.  As a result, employee discipline has been overturned, the employee reinstated with back pay and other lost benefits, and the company ordered to revise the underlying policy.

Now, some relief may be on the horizon for 2018 and beyond.  On December 1, 2017, the new NLRB General Counsel issued a memorandum to field offices directing them to submit cases involving several of these contentious social media, handbook policy and use of company email issues to the Division of Advice for further guidance.  This action acts to essentially freeze regional offices from moving new cases forward.

In the meantime, how does an employer navigate the murky social media waters?

  1. Notify employees that internet use will be monitored and that there is no expectation of privacy in the use of the company’s email and internet system.
  2. Implement a social media policy and train employees on its content.
  3. Designate a person to be responsible for implementing and administering these steps, and monitoring compliance.
  4. Implement a procedure to report policy violations.
  5. Prohibit the use of social media networking during working time.
  6. Review underlying policies (confidentiality, non-disparagement, harassment, etc.) to assure the policies do not infringe on concerted, protected activity.

Last year, OSHA issued a new electronic reporting rule that requires employers with more than 250 employees in industries covered by the OSHA recordkeeping regulations, as well as employers with 20-249 employees in designated “high-risk industries” (including manufacturing, construction, and many healthcare establishments), to electronically submit injury and illness data from their OSHA 300 logs and related forms. Much of the information electronically will be made available to the public on OSHA’s website because, in OSHA’s view, “behavioral economics tells us that making information publicly available will ‘nudge’ employers to focus on safety.”

The original July 1, 2017 deadline by which covered employers were required to submit data from their Form 300A Annual Summary for 2016 was previously extended by OSHA in order to “provide the new administration the opportunity to review the new electronic reporting requirements prior to their implementation and allow affected entities sufficient time to familiarize themselves with the electronic reporting system.”   The deadline is now December 15, 2017. Accordingly, covered employers must log onto OSHA’s Injury Tracking Application (ITA) and submit their 2016 OSHA Form 300A information electronically on or before December 15, 2017.

Whether OSHA will maintain the future electronic reporting requirements under the new rule remains to be seen. A recent OSHA press release indicates that “OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.” Considering the Trump administration’s record of scaling back Obama era government regulations, it would not be a surprise to see a change here as well.

Stay tuned for additional updates in 2018 …

Last November, we explained the decision in the case of U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, P.C., from the U.S. District Court for the Western District of Pennsylvania.  There, the court concluded that Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment based on sexual orientation.  Our previous post on this case can be found here.

To recap, the Equal Employment Opportunity Commission’s (“EEOC”) filed the lawsuit on behalf of a gay, male former employee of Scott Medical, alleging that his supervisor subjected him to anti-gay epithets and a hostile work environment based on his sexual orientation.  The court refused to dismiss the case because, in the words of U.S. District Judge Cathy Bissoon, “discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination ‘because of sex’.”

On September 25, 2017, the court entered a default judgment against Scott Medical on the issue of liability.  The court found that the company had committed an intentional violation of Title VII.  This finding was based on the fact that Scott Medical’s Chief Executive Officer was aware of the supervisor’s harassing actions and refused to take any action to stop the conduct or correct the hostile work environment.

On November 16, 2017, after a trial on issue of damages, Judge Bissoon ordered Scott Medical to pay the employee $5,500.43 in back pay and prejudgment interest.  More importantly, she also ordered Scott Medical to pay the statutory maximum amount of $50,000 as compensatory and punitive damages.  If not for the statutory cap on such damages, Judge Bissoon opined that “punitive damages in the amount of $75,000 would be warranted by the evidence” in this case.

Notably, the supporting evidence cited by the court included the fact that Scott Medical failed to train the harassing supervisor on its anti-harassment policy.  In fact, Scott Medical could not identify anyone who would have provided such training to any of its supervisors.  Similarly, the former employee testified that he never received a copy of the Company’s anti-harassment policy and was never trained about harassment in the workplace.

There are several clear takeaways from this case.  First, as we explained here, regular and effective anti-harassment training is an essential part of preventing harassment in any organization.  This case provides 55,000 reasons to ensure that such training is provided to supervisors and managers, as well as all other employees.

The second takeaway is to revisit your organization’s Equal Employment Opportunity and Anti-Harassment policies, and consider adding sexual orientation as a protected trait.  As you update your policies, keep in mind the importance of responding promptly and appropriately when complaints are raised about harassment – including harassment based on sexual orientation.  It also may be a good time to update your anti-harassment training to specifically address issues of discrimination and harassment based on sexual orientation.

There also may be more to come with the Scott Medical case.  Now that a final judgment has been entered, an appeal to the Third Circuit Court of Appeals may be forthcoming.  If the case is appealed, the Third Circuit likely will be forced to reconsider several prior decisions in which it found that sexual orientation was not protected under Title VII.  We will continue to provide updates as developments in this area occur.