Bottom line: There is nothing unlawful about an employer requesting that an applicant voluntarily provide a Facebook password. (Check out the site’s policies though – that practice may violate Facebook’s terms and conditions of use.)

However, such practice may open a Pandora’s box of potential liability for employers who proceed without appropriate policies, procedures and safeguards in place. Among a host of other legal concerns, an applicant may claim that he or she was coerced into providing the log-in information in violation of the federal Stored Communications Act or a state law equivalent.

Best practice? Ensuring that policies and procedures are in place, and flexible enough to protect your organization from the pitfalls of social media in the workplace will be critical to defending claims that may arise following the adoption of these types of practices.

http://www.jdsupra.com/videoembed/?fid=dae1bd56-9c94-485f-84e7-a23469377d94

You can also view this video at www.jdsupra.com. 

 

Should an employee who agrees to resign her employment as part of the settlement of her workers’ compensation claim be eligible to receive unemployment compensation benefits? According to a recent decision from the Commonwealth Court of Pennsylvania, the answer to this question is a firm “no.”

An employee who voluntarily quits her employment will not be eligible to receive unemployment compensation benefits unless she can establish that she had “necessitous and compelling” cause – in other words, good cause – to quit. In Lee v. Unemployment Compensation Board of Review, the plaintiff argued that she should be eligible for unemployment compensation benefits where she agreed to resign her employment in consideration for a workers’ compensation settlement agreement. The Court disagreed, rejecting Lee’s argument that she was under psychological pressure to settle the workers’ compensation claim and that her attorney advised her that the settlement would not happen without the resignation and release. 

Notably, the Court also rejected Lee’s argument that the resignation and release was invalid under section 701 of Pennsylvania’s Unemployment Compensation Law, which states that “[n]o agreement by an employe to waive, release, or commute his rights to compensation, or any other rights under this act, shall be valid.” 43 P.S. § 861. Although the Court noted that a waiver of the right to unemployment benefits is invalid, it emphasized that this provision only becomes relevant once it is established that the claimant has the right to benefits under the Law. Lee failed to establish her right to benefits because her decision to terminate her employment in order to settle the workers’ compensation claim did not amount to good cause under the Law.

This is good news for employers. This decision provides good authority for any unemployment compensation case involving an employee who resigns pursuant to a workers’ compensation settlement agreement.

In Pennsylvania, as in the majority of states, most employees are presumed to be employed “at will.” Under the at-will employment doctrine, an employer does not need “cause” to terminate an employment relationship. Rather, the employer may terminate an employee at any time, for any reason or no reason at all. (At the same time, the employee reserves the right to terminate his or her employment for any reason.) The only caveat is that the employer’s reason for termination cannot be an illegal one.

Federal and state statutes, as well as the courts, have created a number of exceptions to the doctrine of at-will employment. To be sure, an employee cannot be fired (or demoted, transferred, denied a promotion, or subject to any otherwise “adverse employment action”) on the basis of race, religion, gender, national origin, age, or disability, among other things. In addition, under Pennsylvania law, certain employers may not terminate an employee who has reported that his or her employer is engaging in misconduct.

Such retaliation is prohibited by Pennsylvania’s Whistleblower Law, 43 P.S. § 1421 et seq. Specifically, the Whistleblower Law makes it unlawful for an employer to “discharge, threaten or otherwise discriminate or retaliate against” an employee for making a good faith report to a superior or to an “appropriate authority” about an instance of “wrongdoing or waste.” The Whistleblower Law also prohibits retaliation against an employee who has participated in an investigation, hearing, or inquiry into the employer’s alleged misconduct.

While the Whistleblower Law does create a significant carve-out to the at-will employment doctrine, the whistleblower protections afforded do not protect every gripe, objection, or criticism of a dissatisfied employee. Specifically, the Law extends whistleblower protections to only those employees who report “waste” or “wrongdoing.” These terms are narrowly defined to require more than a report of inefficient business practices or violation of internal policies. Rather, the Whistleblower Law requires a report of conduct that is (1) specifically prohibited by a particular federal, state, or local law or regulation; (2) a substantial abuse of public funds or resources; or (3) a breach of professional ethics. Moreover, the employee must report the misconduct internally to a supervisor or externally to a government body or agency with appropriate enforcement or regulatory authority over the subject of the report; a report to a co-worker, the general public, or a member of the media is not protected.

The most significant limitation on an individual’s ability to challenge his termination under the Whistleblower Law is that the statute extends whistleblower protections to only those who are considered “employees” within the meaning of the statute. Unlike many states who extend whistleblower protection to both public and private employees, the Pennsylvania Whistleblower Law narrowly defines “employee” to be an individual performing work for wages for a “public body.” In simple terms, a “public body” is a state or local government agency or department, or any entity “funded in any amount by or through Commonwealth or political subdivision authority.”

What then qualifies as a “public body”? Clearly, state agencies, departments, and commissions; county, city, and township bodies; municipal corporations; and school districts are public bodies. But beyond that, the answer depends on whom you ask. 

Continue Reading Pennsylvania Whistleblower Law Restricts Ability of Public Employers and Non-Profits to Terminate Employees

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Law Practice Group.

As readers of this blog may recall, on August 30, 2011, the National Labor Relations Board (Board) issued its Final Rule, “Notification of Employee Rights under the National Labor Relations Act.” The Final Rule required employers subject to the Act (virtually all private sector employers) to post a rather large conspicuous “Notice of Employee Rights” to inform employees that they have the right to join unions, organize, engage in collective bargaining, strike, picket, etc.

The National Association of Manufacturers (NAM) challenged the Board’s authority to require such posting and filed a lawsuit in federal district court in Washington, D.C. On March 2, 2012, Judge Amy Berman Jackson (appointed to the bench by President Obama in 2011), issued a “split decision” in the matter, upholding the Board’s right to require the notice posting, but finding unlawful and striking those provisions in the Rule which would have (1) automatically deemed the failure to post the notice to be an unfair labor practice (ULP), and (2) tolled the six-month statute of limitations for filing a ULP Charge against an employer who had failed to post the notice.

In finding that the Board had authority to require the notice posting, Judge Jackson found no indication that in enacting the Act, Congress clearly intended to preclude the Board from promulgating such a rule. She went on to find that the Board’s promulgation of the Rule was neither arbitrary nor capricious, and given the lack of Congressional prohibition, the Board had sufficient legal authority to require the notice posting.

But, according to Judge Jackson, the Board did not have the requisite authority to deem failure to post as a new category of ULP under the Act. She did, however, leave that door open a bit, holding that the Board could still find failure to post to be a ULP in an individual case based on the facts and circumstances of that case. The Board just could not make a blanket advance decision that in every case failure to post would automatically constitute a ULP.

Judge Jackson further found that the Board had exceeded its statutory authority by purporting to toll the statute of limitations against those employers who fail to post. The Court noted that it was the Board’s burden to prove, in any individual case, that there are equitable reasons to toll the statute of limitations, and that automatic tolling under the Final Rule would “turn the burden of proof on its head.”

All in all, NAM v. Nat’l Labor Relations Bd. was a disappointing decision for employers and probably for the Board as well. It should be noted, however, that this case was not the only legal challenge to the Board’s Final Rule. The U. S. Chamber of Commerce has a separate suit pending in federal district court in Charleston, SC, and Judge Jackson’s decision will not be binding in the South Carolina court. Additionally, it is quite likely that Judge Jackson’s decision will be appealed to the U.S. Court of Appeals for the D.C. Circuit. In the meantime, unless there is some further judicial action to the contrary, employers subject to the Act are advised to post the Notice of Employee Rights effective April 30, 2012, copies of which can be found and reproduced from the Board’s web site.
 

Recently, members of McNees Wallace & Nurick LLC’s Transportation, Distribution & Logistics Group issued an Alert containing two articles that will certainly be of interest to many employers.  The Alert can be accessed by clicking here.

The first article, by Barbara A. Darkes, summarizes Pennsylvania’s implementation of the new medical certification requirements for individuals holding Commercial Drivers Licenses. 

The second article, by James J. Franklin, summarizes a new law which bans texting while driving on all Pennsylvania roadways effective March 9, 2012. 

Employers should review these developments carefully and revise their policies as necessary. 

The past couple of weeks have been busy ones for the Department of Labor (“DOL”), the Department of Health and Human Services (“DHHS”) and the Department of Treasury (“DOT”) (collectively, the “Departments”). Since February 9, 2012, the Departments have issued two sets of final regulations and a Technical Release bulletin, providing some long-awaited guidance on a variety of requirements under the federal Patient Protection and Affordable Care Act (“PPACA”), the health care reform legislation signed into law under President Obama in early 2010. Links to the regulations, the Technical Release and additional materials can be found on the DOL’s PPACA Regulations and Guidance web page.

Technical Release Regarding Automatic Enrollment, Employer Shared Responsibility and Waiting Periods

On February 9, 2012, the Departments issued Technical Release 2012-01, which provides information regarding the PPACA provisions governing automatic enrollment, employer shared responsibility and the 90-day limitation on waiting periods. The Technical Release provides a Question and Answer discussion on each of these issues, including approaches that the Departments are considering for future regulations.

Importantly, the Departments also announced that the automatic enrollment guidance will not be ready to take effect by 2014. Until final regulations are issued and applicable, employers are not required to comply with this requirement. Keep an eye out for proposed regulations on each of these requirements under PPACA.

Final Regulations Regarding Summary of Benefits and Coverage and Uniform Glossary

On February 14, 2012, the Departments issued final regulations implementing the disclosure requirements under PPACA, which include the requirement to provide a Summary of Benefits and Coverage (“SBC”), notice of material modifications and a uniform glossary. This information is intended to help plan participants better understand their health coverage, as well as other coverage options. 

In part, the regulations set forth 12 required content elements for an SBC, as well as appearance requirements. The Departments also provided supplemental information, including an SBC template, instructions and other related materials, which can be found on the DOL’s PPACA Regulations and Guidance web page.

Review the regulations carefully for additional information on who must provide each required disclosure, when the disclosures are required, what content must be provided, what format disclosures must take, and acceptable methods of disclosure. These requirements become effective on the first day of the first open enrollment period beginning on or after September 23, 2012. Failure to provide the information required can result in a significant monetary penalty, including a fine of up to $1,000 per failure.

Final Regulations Regarding Coverage of Preventive Services

On February 15, 2012, the Departments issued final regulations addressing the exemption of group health plans and group health insurance coverage sponsored by certain religious employers from having to cover certain preventive health services under provisions of PPACA, such as approved contraceptive methods and sterilization procedures.

The final regulations grant the DHHS’ Health Resources and Services Administration the discretion to exempt group health plans established or maintained by certain religious employers from the requirement to cover contraceptive services. For purposes of this exemption, a “religious employer”: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described under the Internal Revenue Code. 

In addition, the regulations provide a temporary, one year enforcement “safe harbor” for employers who are non-exempted, non-profit organizations with religious objections to covering contraceptive services whose group health plans are not grandfathered health plans under PPACA. 

Responding to the most recent controversy regarding PPACA, the Departments are expected to issue additional regulations addressing the religious objections of non-profit religious organizations who do not qualify as a “religious employer” under the narrow exemption. These regulations are expected to require the insurers of such organizations to cover contraception if a religious organization chooses not to do so. In such cases, the insurers would be expected to offer contraception coverage to women directly and free of charge, with no role for their religious employers who oppose contraception.

If you have any questions regarding these recent guidance materials or any other aspect of PPACA, please consult our prior posts or contact any of the attorneys in our Labor and Employment Practice Group.

A recent Third Circuit Court of Appeals decision has made clear that supervisors in public agencies may be subject to individual liability under the Family and Medical Leave Act (FMLA). The court previously has held that public employers, private employers, and supervisors in the private sector may be liable for FMLA violations. Now, for the first time, in Haybarger v. Lawrence County Adult Probation and Parole, the court has extended FMLA liability to supervisors in the public sector.

The facts in Haybarger may seem eerily familiar to many of you. A public-sector employee took FMLA-covered absences for a number of different health issues. The supervisor, who served as the Director of the Probation and Parole Office, believed that the employee was under performing and that her attendance problems contributed to her poor performance. The supervisor wrote in the employee’s performance evaluations that she needed to improve her overall health and cut down on the days that she missed due to illness (red flag!). The supervisor also formally disciplined the employee, placing her on probation for six months, which required weekly formal progress assessments and monthly meetings. While it is unclear who specifically made the ultimate decision to terminate the employee, she was terminated when her performance did not improve.

Not surprisingly, following her termination the employee brought suit raising a number of claims against the County, the Probation and Parole Office, and the supervisor. After many of the claims were dismissed, and a few were settled, all that remained for the court to decide was the FMLA claim against the supervisor. The supervisor argued that he was not liable under the FMLA.

Continue Reading Public Sector Supervisors Can Be Personally Liable for Violations of the FMLA

In June 2011, the Pennsylvania General Assembly enacted a law amending the Pennsylvania Unemployment Compensation Law (“Law”). Many of the amendments’ provisions took effect January 1, 2012. In addition to providing for a severance pay offset against unemployment compensation benefits, the amendments added additional "active search for employment" eligibility requirements for claimants to collect UC benefits.

Specifically, a claimant who applies for UC benefits on or after January 1, 2012 must establish that he is in “active search for suitable employment” or, alternatively, that one of the exceptions to the requirement applies. The Law provides an exception to the active search requirement for a claimant “who is laid off for lack of work and advised by the employer of the date on which the claimant will return to work.”

The Pennsylvania Department of Labor and Industry (“L&I”) established specific steps that a claimant must take to satisfy the active search requirement. L&I also added the caveat that, to be relieved from the active search requirement under the layoff/lack of work exception, the claimant must have a projected return to work date within 28 calendar days of when he last worked. The addition of the 28-day requirement caused significant concern for employers who engage in seasonal layoffs, particularly those in the construction industry. To be sure, these seasonal layoffs often last longer than 28 days. And with the 28-day recall requirement, employees laid off seasonally because of a lack of work would not qualify for the exception and would need to comply with the new active search requirements.

The cause for concern, however, was short-lived.

Continue Reading Labor & Industry Revises New Active Search Requirements for UC Eligibility, Drops “28 Calendar Days” Recall Requirement for Temporary Layoff Exception

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 here, discusses a recent Commonwealth Court of Pennsylvania decision that clarified the scope of coverage under the Pennsylvania Prevailing Wage Act with respect to truck drivers and other workers whose work in relation to a prevailing wage project extends beyond the actual project boundaries.

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