You may recall that, in late June 2015, the U.S. Department of Labor issued a Notice of Proposed Rulemaking seeking public comment on proposed changes to the Fair Labor Standards Act’s  “white-collar” overtime exemption regulations. The DOL’s proposed rule changes would more than double the minimum salary required for the FLSA’s white-collar exemptions from the current $455 to approximately $970 per week, with additional potential increases each year based on inflation.  Also, while the DOL did not propose specific changes to the exemptions’ duties tests, it invited public comment on the subject, hinting that changes to the duties tests likely would be forthcoming in the final regulations.

The period for public comment on the proposed rules closed in September.  Since September, observers have speculated about when the DOL would issue final binding regulations.  Many commentators believed that we would see final rules likely sometime in late 2015/early 2016.  Employers have begun reviewing their pay practices to being planning for the implementation of the final regulations, which likely will require conversion of many employees currently treated as overtime exempt to non-exempt status or significant changes to the pay of these employees to meet the anticipated increased minimum salary requirement.

Earlier this month, the DOL finally indicated when we could expect the final FLSA overtime exemption regulations, and the answer came as a surprise to many.  As reported by the Wall Street Journal last week, Solicitor of Labor Patricia Smith said during a panel discussion at the American Bar Association’s Labor and Employment Law conference in Philadelphia that the DOL did not expect to issue the final regulations until “late 2016.”  (The WSJ article noted that this comment elicited “gasps” from the attendees in the audience, confirming that the wage and hour laws can be much more exciting than we think!)

This news is a bit surprising, as the DOL seems to be waiting until the very end of the Obama administration to issue the final regulations.  That said, employers now know that they will have more time than initially expected to prepare for the likely sweeping changes we anticipate to the FLSA white-collar overtime exemption regulations.

Because of the significance of the expected changes to the exemption tests, this delay does not mean that employers should put off thinking about these issues.  Now is still the time to begin developing a strategy to access and address the exempt status of many white-collar workers.  This delay is good news for employers, but not an excuse to avoid the issue.  Advance planning and preparation will only help employers address what likely will be the most significant changes to the overtime exemption tests we have ever seen.

Pennsylvania Governor Tom Wolf recently signed a bill into law amending the Pennsylvania Crimes Code. The law eliminates the “union intimidation” loophole and removes certain exceptions that had applied to crimes committed during the course of or in connection with a labor dispute.

Sections 2709(e), 2709.1(e), and 2715 (c.2) of the Crimes Code deal with the crimes of harassment, stalking, and threatening to use a weapon of mass destruction. Prior to the recent amendments, a perpetrator could escape conviction for one of these crimes merely by relying upon the fact that his or her misconduct was committed in furtherance of a union’s labor dispute with an employer.

The impetus for this much-needed legislation may have been the announcement in February 2014 of federal indictments against 10 Ironworkers Local 401 leaders related to the December 2012 burning and vandalism of a Quaker meetinghouse construction site in Philadelphia.  The U.S. Attorney alleged that Local 401 representatives set fires, started riots, and took crowbars to non-union contractors who had ignored threats against hiring non-union employees.  Several union leaders had earlier been acquitted of charges brought under the state crimes code based upon their reliance on the labor dispute exceptions referenced above. In July 2015, a Philadelphia labor leader was sentenced to over 19 years in prison for his role in overseeing this “years-long campaign of sabotage, arson, and intimidation to keep members of his Ironworkers Local 401 employed.”

It is anticipated that the recently-enacted amendments will be of great assistance to those employers, typically, though not always, non-union, who have been subjected in the past to extreme acts of misconduct as exemplified by the Philadelphia incidents.  Too often innocent employers and employees have suffered the consequences of vandalism, violence, stalking, etc., merely because they have lawfully desired to maintain their non-union status.  Hopefully, as these changes to the law become publicized and better known to union leaders and members, the new law will deter such individuals from committing such serious crimes and acts of violence against innocent persons.

The City of Pittsburgh recently became the second city in Pennsylvania to enact a paid sick leave law, with Mayor William Peduto signing the Paid Sick Days Act into law on August 13, 2015.  While the Act is facing legal challenges, Pittsburgh’s City Controller recently posted notice  that the Act is effective January 11, 2016.  The City Controller also posted to the city’s website two documents employers are required to post where employees can easily read them.

The Act is applicable to employers situated in or doing business in the City of Pittsburgh with one or more employee, and requires those employers to provide paid sick time to both full-time and part-time employees.  Similar to the Philadelphia law, the Act exempts several categories of workers from the term “employee,” including independent contractors, state and federal employees, members of construction unions covered by a collective bargaining unit, and seasonal employees.

A few key provisions of the law:

  • Employees of employers with 15 or more employees accrue a minimum of 1 hour of paid sick time per 35 hours worked in Pittsburgh, up to 40 hours of paid sick time per year, unless the individual employer designates a faster accrual rate or higher amount.
  • Employees of employers with fewer than 15 employees also accrue a minimum of 1 hour of paid sick time for every 35 hours worked in Pittsburgh, unless a faster accrual rate is designated by the employer, accruing up to 24 hours of unpaid sick time during the first year in which the Paid Sick Leave Act is effective and 24 hours of paid sick time thereafter, unless the individual employer designates a higher amount.
  • Accrual begins on the effective date of the Act for those currently employed, and upon commencement of employment for new employees. Employees can begin to use their accrued time beginning on the 90th calendar day following the commencement of employment.
  • Employees may use sick time in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.
  • Accrued time shall carry over to the next calendar year (as defined in the Act) unless at least the maximum amount of paid sick time is provided at the beginning of each calendar year.
  • Employers with collective bargaining agreements or paid leave policies which meet the Act’s paid leave accrual requirements and make such leave available for use in accordance with the purposes and conditions of the Act need not provide additional sick time.
  • Employers are not required to pay out any accrued but unused paid sick time upon the end of employment, and are not required to compensate employees for lost wages or commissions as a result of using paid sick time.
  • Sick time can be used to care for the employee’s or employee’s family member’s mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition, or need for preventative medical care; when an employee’s place of business is closed or to care for a child when the child’s school or place of care is closed by order of a public health official due to a public health emergency; or to care for a family member whose presence in the community jeopardizes public health due to exposure to a communicable disease, as determined by health authorities.
  • Retaliation is prohibited, and employers must provide written notice to employees that retaliation is prohibited and that employees may file a complaint with the designated agency if they are retaliated against or denied sick time as required by the Act.
  • Employers must provide written notice that employees are entitled to sick time and the amount of sick time, as well as the terms of use guaranteed by the Act.

Although the Act is facing legal challenges, companies with operations in Pittsburgh should consider reviewing their current sick and paid leave policies to ensure they are compliant when the Act goes into effect and should stay tuned for further updates.

This week would have marked the return of Tom Brady, had his four game suspension not been reversed by the United States District Court for the Southern District of New York.  Much ink has been spilled over Brady’s suspension for his [alleged] involvement in using deflated footballs and the subsequent cover up, and Brady’s appeal of that suspension.  But is there really anything of real value to learn from this case?

Yes, if you are a unionized employer, there are some valuable lessons to be learned.  Here are four (one for each game Brady would/should have served) key takeaways for unionized employers.

  1. Employees must be on notice that conduct is inappropriate. Although it is laughable that Brady did not know he was doing anything wrong by encouraging the use of deflated footballs, the court held that Brady was never advised that he could be subject to disciplinary action for being aware of the use of deflated footballs and not reporting it.  As many of you know, work rules take on a whole new meaning in a unionized setting.  Often, these work rules are litigated and take on their own unique meaning.  In the Brady case, the rules regarding inflation of footballs was apparently given to the NFL clubs, not the players.  The court found that Brady was not put on notice that his knowledge of the deflated footballs could result in discipline; and therefore, he should not have been disciplined for that conduct. The takeaway: draft a clear and concise code of conduct and make sure every employee signs an acknowledgement of receipt of the code.
  2. Employees must be on notice of possible disciplinary penalties.  The court also concluded that even if Brady knew he could be subjected to discipline for failing to report the deflated footballs, he was not on notice that he would be suspended four games for such conduct.  The level of discipline was based on the NFL’s performance enhancing drug policy, but Brady argued that his conduct was more in line with an equipment or uniform violation, which would only result in a fine. The takeaway:  make sure you have a well crafted discipline policy that grants you significant discretion with respect to disciplinary action for violations of your code of conduct.
  3. Employees must be required to cooperate fully in an internal investigation.  Brady apparently destroyed his cell phone, which held relevant evidence, almost immediately after his initial meeting with the NFL’s outside investigators.  That is absolutely shocking and outrageous.  It is also shocking that the court did not take issue with this conduct.  But the court found that no NFL player had ever been disciplined for failing to cooperate with an internal investigation in the past. The takeaway: although we question that such a rule is really necessary (like a specific written rule against theft or fighting), make sure your code of conduct requires cooperation during internal investigations.
  4. Prior to issuing disciplinary action, employees should be afforded some level of due process.  Although a formal hearing will not be necessary in every case, some level of due process should be provided before discipline is rendered.  In many instances, employers benefit from these informal meeting by obtaining key information.  Employees should be advised, generally, of the nature of the charges against them and should be afforded the opportunity to respond to those charges.  In addition, any subsequent appeal process should not only be impartial, but should avoid even the appearance of impropriety.  A review of the court’s decision leaves one with the impression that the court had an issue accepting the NFL’s role as both prosecutor and judge, even though the NFL Players Association had specifically agreed to that approach.  

Please keep in mind that some of the changes recommended above will require prior negotiation with the appropriate union.  But now would be a good time to review your code of conduct and your disciplinary policies and procedures to determine what if any changes you would like to make.

Also, it does appear that the court’s decision may have confused the role of the arbitrator, NFL Commissioner Roger Goodell, and the NFL’s discipline issuing office. In several instances the court appears to indicate that it was Goodell himself that issued the discipline, rather than Troy Vincent, the Executive Vice President in charge of discipline.  As a result, there may have been confusion regarding the appropriate standard of review for evaluating Goodell’s role as the arbitrator reviewing Vincent’s imposition of discipline.  One could argue that the decision lacks the appropriate deference to be afforded an arbitrator under federal labor law. The NFL has appealed the court’s decision, and the NFL may take up this issue on appeal.

English-only rules are not as common as they once were, but many employers still require employees to speak English only in the workplace.  Justifications for these rules vary, but the Equal Employment Opportunity Commission has long given such requirements a wary eye.  The National Labor Relations Board has now weighed in on the legality of English only rules, and has concluded that an employer’s English only rule violated the National Labor Relations Act.

The employer was a hospital.  Among other things, the hospital’s employee handbook required employees to communicate only in English in the work environment when conducting business at the hospital or with each other, and when patients were present. The Board’s Office of General Counsel took the position that the English-only rule was so overbroad that it inhibited non-native English speaking employees from being able to communicate freely about working conditions and/or other terms and conditions of employment.

The hospital countered that its policy was lawful in accordance with guidance provided by the EEOC, which allows English-only rules if justified by business necessity.  Such rules will be justified, according to the EEOC, if the rule will allow for safe and efficient operations.

A Board Administrative Law Judge began the analysis by noting that the Board was not bound by the EEOC guidance.  The ALJ went on to note that she would follow the Board’s precedent, and essentially ignore the EEOC guidance. Although the ALJ repeated three times that she was not bound by the EEOC’s guidance on English only rules, interestingly the ALJ noted that she did not believe that the hospital had a business necessity which would justify the English only rule.

The ALJ applied the Board’s test for evaluating workplace polices and concluded that employees would reasonably interpret the rule to restrict them from engaging in protected activity under the Act, and as such, the rule was unlawful. The ALJ noted that the rule required employees to speak English not only in patient areas, but also at any time while on duty, between themselves, staff, customers, visitors and in non-patient areas.

The ALJ’s decision to ignore and basically contradict the guidance provided by the EEOC is yet another frustration for employers.  We previously discussed the Board’s holding that a rule requiring confidentiality during a workplace investigation contradicted EEOC guidance regarding internal investigations.

This decision is just the latest attack in the Board’s all out assault on employer policies.  While this decision was only the decision of an ALJ, we believe that based on the Board’s track record, the decision will likely be upheld. As a result, if you have an English only rule, now would be the time to revisit that need for the rule.

In a long-awaited decision, a split National Labor Relations Board has adopted a new test to determine joint-employer status, expanding the possibility that an employer utilizing staffing or temporary workforce agencies may be considered a joint-employer.  In Browning-Ferris Industries of California, Inc., the NLRB determined that both the recycling facility and the staffing agency providing labor to the facility were employers under the new, employee-friendly test.

The NLRB’s decision held that a joint-employer relationship may be found if two or more entities “are both employers within the meaning of common law, and if they share or codetermine those matters governing the essential terms and conditions of employment,” such as wages, hours, work assignments, and control over the number of workers and scheduling.  The Board further found that a joint employer is not required to exercise its authority to control terms and conditions of employment, and recognized that control may be “reserved, direct and indirect.”

Here, the relationship between the staffing agency and the facility was controlled by a temporary labor services agreement, which specifically indicated that the staffing agency was the sole employer of the laborers, and that the agreement did not create an employment relationship between the laborers and the facility.  The agreement set forth required qualifications for the laborers and a wage rate schedule, including a provision which indicated the laborers could not be paid a higher rate than that of a similar facility employee without approval.  The agreement further provided the facility with the authority to discontinue use of any laborer at any time.  The facility determined the schedule of working hours, overtime, and break times, as well as the number of laborers needed and productivity standards.  Facility managers and supervisors communicated with staffing agency supervisors regarding the positions to be occupied, daily operating plans, and concerns regarding productivity and job performance and at times addressed these concerns directly to the laborers.

The laborers were to comply with the facility’s safety policies, procedures and training requirements, and received occasional training and education from facility managers.  Additionally, staffing agency laborers were only to be assigned to the facility for six months, but that provision of the agreement was never invoked.  Further, although the agreement provided the facility the ability to review the staffing agency’s records regarding the laborers, the facility had never asked to inspect personnel files.  The agreement further provided sole responsibility for disciplinary action to the staffing authority, although the agency was prompted to take such action in two instances after being notified by the facility of misconduct.

Based upon a careful review of the facts in light of the new standard, the NLRB found the recycling facility to be a joint-employer of the temporary staffing agency employees.  Specifically, the majority found that the facility had significant control over employment-related decisions such as hiring, firing and discipline as well as employee wages and wage increases as detailed by the agreement.  The majority further found that the facility exercised direct and indirect control over operational decisions and productivity standards.  Additionally, the facility exercised “near-constant oversight of employees’ work performance,” at times directly communicating with the laborers and using staffing agency supervisors to communicate directives in other circumstances.

The NLRB justified its new standard by noting changes in today’s workplace arrangements and pointed towards these changes as “reason enough” to adopt a new joint employer test.  This new standard is employee-friendly, and may expose employers to potential liability as joint employers under the NLRA.  Employers should carefully review this decision for its potential impact on any arrangements they may have with temporary staffing agencies and other contractual arrangements which provide workforce assistance.

As previously reported on this Blog, recent news reports indicated that President Obama would be issuing an Executive Order mandating paid sick leave for the employees of federal contractors. The President did just that on Monday (Labor Day). We have read the Executive Order and our analysis regarding its contents remains the same as when we reported on this issue last month. The Executive Order can be read here. The Executive Order is broad and much about the Order remains unanswered. We expect to have more answers to these questions when regulations are released by the Department of Labor on or around September 30, 2016. The requirements of the Executive Order will not go into effect until 2017.

We did notice one change from the draft Executive Order. In addition to “paid sick leave” including absences related to domestic violence, sexual assault, or stalking, if the time absent from work is for medical treatment/diagnosis, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, the final Executive Order also allows individuals to use paid sick leave to “assist an individual related to the employee . . . in engaging in any of these activities.” Recall from our prior post that an “individual related to the employee” is quite broad and includes “a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

Questions? Call me, Schaun Henry, or your usual McNees Attorney contact.

In 2010, the Pennsylvania Legislature enacted the Construction Workplace Misclassification Act (CWMA), which, in part, attempted to clarify who is and is not an independent contractor (in the construction industry) for the purposes of workers’ compensation coverage.

Section 3(a) of the CWMA provides: “For purposes of workers’ compensation . . . an individual who performs services in the construction industry for remuneration is an independent contractor only if: (1) the individual has a written contract to perform such services; (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. §933.3(a).

To the extent an individual does not meet such definition, the individual will be deemed an employee and the general contractor/employer will be responsible for maintaining and providing workers’ compensation coverage for such individual.  Recently, in Staron v. Workers’ Compensation Appeal Board (Farrier), the Commonwealth Court clarified the first prong of the definition – the “written contract” requirement.

In Staron, the claimant responded to an advertisement by Lee’s Metal Roof Coatings and Painting (“Lee’s”) for a painter.  Claimant was allegedly a self-employed subcontractor with 20 years experience in painting and roof work.  Claimant began working for Lee’s, using his own tools and equipment and taking very minimal direction from Lee’s.  Approximately two months into the relationship, claimant fell off a roof and was injured.  Lee’s presented claimant with a written independent contractor agreement upon his release from the hospital, which claimant freely signed.  Claimant nonetheless sought workers’ compensation benefits from Lee’s, which were granted by the Workers’ Compensation Judge and affirmed by the Workers’ Compensation Appeal Board on the basis that claimant was an employee of Lee’s and not an independent contractor.  On appeal, the Commonwealth Court found that claimant was not an independent contractor, as defined by the CWMA, because there was no written contract between Lee’s and the claimant at the time claimant was injured.  It did not matter to the Court that claimant voluntarily signed the agreement after his injury.  According to the Court, the written independent contractor agreement contemplated by the CWMA must be in place prior to any injury being sustained in order to satisfy the “written contract” requirement of the Act.

Note, the Court did not say that the contract must be signed before any work is commenced in order to render the contractor an independent contractor.  The Court simply said that the agreement must be signed prior to the contractor sustaining an injury.  Nonetheless, the best practice would be for businesses employing independent contractors and sub-contractors, particularly in the construction trades, to ensure that Independent/Subcontractor Agreements are executed prior to the commencement of any work being performed.  Remember though that the existence of a written agreement will not necessarily carry the day in a dispute over the classification of an injured worker.  The written agreement is only one part of the test.  Accordingly, businesses in the construction trade should be mindful of the other CWMA requirements for independent contractor classification and should periodically review all independent contractor and subcontractor relationships to ensure compliance with the CWMA.

We recently learned that President Obama plans to issue an Executive Order mandating paid sick leave for employees of federal contractors and subcontractors. This comes as no surprise as the President has utilized his power over the contracting community in recent years to further his policy goals that have stalled in Congress (such as increasing the minimum wage of federal contractors to $10.10 per hour and prohibiting discrimination based on sexual orientation and gender identity). We took a look at the proposed Executive Order. Here are the key takeaways:

  • Contractors would be required to provide a minimum of 56 hours of paid sick leave per year and employees would be able to accrue at least 1 hour of paid sick time for every 30 hours worked. Any accrued paid sick time would carry over from year to year.
  • Paid sick leave could be used for an employee’s medical condition, obtaining care from a doctor, or caring for a child, parent, spouse, domestic partner, “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” While the Executive Order is still in draft form, it seems that one could arguably take paid sick leave to care for a close friend.
  • Paid sick leave could also be used for absences “resulting from domestic violence, sexual assault, or stalking, if the time absent from work is to seek medical attention, obtain counseling, seek relocation, seek assistance from a victim services organization, or take related legal action, including preparation for or participation in any related civil or criminal legal proceeding.”
  • Employers paying employees fringe benefits under the Service Contract Act and Davis-Bacon Act would not be able to receive credit toward prevailing wage or fringe benefit obligations by providing sick leave to satisfy the Executive Order.
  • Contractors would only be able to require certification from an employee (such as a doctor’s note) if 3 or more consecutive workdays were missed.
  • Here is one employer-friendly provision: contractor’s would have no obligation to pay out the value of unused sick time to employees upon separation of employment.
  • Detailed regulations would be issued by the Department of Labor no later than September 30, 2016.

Will this Order apply to your company? If you have federal service or construction contracts or subcontracts, the answer is almost definitely yes.

We stress that the above anakysis is based off of a draft Executive Order obtained by The New York Times. While it seems likely that the President will soon issue an Executive Order, nothing is set in stone. The new regulations would go into effect on January 1, 2017, just 20 days before the end of President Obama’s second term.

We’ll keep you updated. Stay tuned. In the meantime, if you have concerns, please consider contacting your local Chamber of Commerce, Representative, or Senator.

In 2003, the Pennsylvania General Assembly amended Section 601 of the Workers’ Compensation Act to expand the definition of the word “employee” to include employees who, while in the course and scope of their employment, provide aid to a person in order to (1) prevent the commission of a crime, (2) apprehend someone suspected of having committed a crime or (3) render emergency care, first aid or rescue at the scene of an emergency.  77 P.S. §1031(a)(10).  This amendment is commonly referred to as the Good Samaritan amendment and has historically been limited in its application – applying to volunteer emergency personnel only.  Recently, however, the Commonwealth Court rejected this limitation and effectively expanded the Good Samaritan amendment to apply to any employee who provides “Good Samaritan” type aid while in the course and scope of his or her employment.

In Pipeline Systems, Inc. v. WCAB (Pound), the Claimant was injured when he responded to a call for help – “man down. Jack fell.”  Claimant was assisting with the installation of pipelines and manholes at a borough sanitation plant.  Near the pipeline installation was a concrete pit.  On the day of the incident, Claimant and others responded to the call for help and found a borough employee lying at the bottom of the pit.  Claimant and others descended a ladder into the pit in an effort to help the man, but unfortunately discovered that the man had died in the fall.  While climbing out of the pit, Claimant lost consciousness and fell 20 feet, injuring his left leg, knee, foot, ribs, back and lung.  He sought workers’ compensation benefits, but the employer denied that he was entitled to benefits, arguing that Claimant went outside the course and scope of his employment when he decided to be a Good Samaritan.  Employer relied on the Supreme Court’s decision in Kmart Corp. v. WCAB (Fitzsimmons).   In Kmart Corp., the Supreme Court held that a Kmart employee was not in the course and scope of her employment when she was injured while rendering aid to a fellow employee, who was in the Kmart food court on her lunch break and was being attacked by her estranged boyfriend.  In litigation, the employer also argued that the Good Samaritan amendment to the Act did not apply to Claimant, as Claimant was not volunteer emergency personnel.

The Commonwealth Court, in Pipeline Systems, rejected the employer’s arguments, citing the Good Samaritan amendment, which was adopted three years after the Supreme Court decided the Kmart case.  The Court found that the amendment was not limited to volunteer emergency personnel and could apply to any employee who renders aid to another while in the course and scope of his/her employment.  In this case, the Court found that Claimant was within the course and scope of his employment when he was injured, because he was “in the midst of his work” when he responded to the call for help, climbed into the pit, and fell.

In light of this ruling, employers will be unable to deny benefits for injuries sustained by Good Samaritan employees (as defined in Section 601), unless they can show that the employee was outside the course and scope of employment when the Good Samaritan aid was provided.  Under most circumstances, this will be a difficult burden for the employer to meet.  Accordingly, it is our recommendation that employers consider adopting Good Samaritan policies.  Employees should be told to refrain from putting themselves or others at risk and instead follow protocols for contacting emergency personnel and reporting the emergency to the appropriate person within the company.  Having such a policy in place may not preclude an employee from receiving benefits if he or she violates the policy, provides aid and is injured but it could dissuade employees from intervening in dangerous situations that they are not trained to deal with, thereby helping to reduce the possibility of an injury being suffered.  Additionally, under the right set of facts, the employee could be disciplined for violating a positive work rule, which may preclude him or her from receiving workers’ compensation wage loss benefits.