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

This post was contributed by Tony D. Dick Esq., an Associate in McNees Wallace & Nurick LLC’s Labor and Employment Practice Group in Columbus, Ohio.

More and more employers are recognizing what employment attorneys have long known. The most prevalent type of employment discrimination claim is not one based on race, sex, religion, disability or age. Rather, it is one alleging unlawful retaliation. In fact, in 2010, for the first time ever, retaliation claims surpassed race discrimination claims to become the most common type of claim filed with the Equal Employment Opportunity Commission (EEOC). This trend is not expected to end anytime soon.

Just before the holidays, the United States Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Each of these statutes contain specific provisions prohibiting employers from taking adverse employment actions against employees for asserting rights covered under these laws.

Fact Sheet #77A: Prohibiting Retaliation Under the FLSA, provides general information concerning the FLSA’s prohibition of retaliating against any employee who has filed a complaint or cooperated in an investigation where an FLSA violation is alleged. The fact sheet also incorporates last year’s U.S. Supreme Court decision in Kasten v. Saint-Gobain. There, the Court held that an employee’s verbal complaint about alleged wage and hour violations can be sufficient to trigger the anti-retaliation protections under the FLSA.

Fact Sheet #77B: Protection for Individuals under the FMLA, reiterates that employers are prohibited from retaliating against employees who exercise their right to take FMLA leave or any other FMLA right, complain about or oppose any unlawful practices under the FMLA, or participate in proceeding concerning FMLA rights. In addition, the fact sheet provides specific examples of prohibited retaliatory conduct under the FMLA. Examples include: refusing to authorize FMLA leave for an eligible employee, discouraging an employee from using FMLA leave, manipulating an employee’s work hours to avoid responsibilities under the FMLA, using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, and counting FMLA leave under “no fault” attendance policies.

Fact Sheet #77C: Prohibiting Retaliation Under the MSPA articulates that certain agricultural employers may not “intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any migrant or seasonal agricultural worker” who files a complaint under the MSPA, participates in any proceeding under the Act, or exercises any MSPA right. The fact sheets also identifies what employers are subject to the statute and outlines the MSPA’s enforcement mechanisms.

As you can see, retaliation is hot topic,and retaliation claims are trendy.  Now more than ever, employers, and more importantly supervisors and managers, must be aware of the risks of retaliation claims.

The year 2011 saw a number of employee-friendly changes to the laws governing the workplace. The U.S. Supreme Court expanded the scope of retaliation claims under Title VII and under the Fair Labor Standards Act. The Equal Employment Opportunity Commission (EEOC) implemented regulations further broadening the definition of “disability” under the ADA. The National Labor Relations Board actively protected employee social media use. And the EEOC has cracked down on inflexible leave of absence and attendance policies.

Pennsylvania courts have not shied away from the action. In 2011, the Pennsylvania Superior Court upheld one of the largest awards in a wage and hour class action in the state’s history. In Braun v. Wal-Mart, the court awarded $187.6 million in back wages, damages, and fees to employees of Wal-Mart stores throughout Pennsylvania for paid rest breaks they were not permitted to take. Approximately 187,000 current and former hourly Wal-Mart employees claimed that the employee handbook promised paid rest breaks, but they were forced to work during those breaks and were not compensated for the missed breaks.

The employees brought their claims under Pennsylvania’s Wage Payment and Collection Law (WPCL). The WPCL does not entitle employees to wages or fringe benefits, but rather provides a remedy when an employer fails to pay for wages or benefits due under the terms of a contract or agreement. According to the court in Braun, payment associated with paid rest breaks pursuant to a contractual agreement between an employer and employee constitutes wages as that term is broadly defined in the WPCL. And the court ultimately found such a contractual agreement for paid rest breaks under the facts before it.

Continue Reading Pennsylvania Court Finds Employee Handbook Creates Contract, Upholds $187.6 Million Award

This post was contributed by Adam R. Long, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Group.

As a reminder, amendments to the Pennsylvania Unemployment Compensation Law that provide for severance pay offsets against unemployment compensation benefits take effect January 1, 2012. We discussed in a prior post the amendments’ definition of "severance pay" and how the severance pay offset will be calculated.

Please note that severance agreements reached between an employer and employee in 2011 should not impact the employee’s unemployment compensation benefits, even if the severance pay continues into 2012. The offset will apply, however, to agreements reached on or after January 1, 2012.

Some questions still exist regarding how exactly the offset will be calculated and implemented. For example, it is unclear how the Pennsylvania Department of Labor and Industry will treat payments made by an employer directly to a former employee’s attorney as part of a separation or settlement agreement. We expect that some of these questions will be answered in the near future through implementation, the issuance of additional guidance from the Department of Labor and Industry, or litigation. In the meantime, employers and employees alike should be aware of the new rules regarding severance and unemployment compensation benefits when making post-employment plans that include severance.

On December 23, 2011, the National Labor Relations Board announced that it had agreed to again postpone the effective date of its controversial Employee Notice Posting Rule.  In the news release announcing the postponement, the Board confirmed that the postponement was agreed to at the request of the federal court in Washington, D.C., which is hearing one of the legal challenges to the Notice Posting requirement. 

On October 6, 2011, we discussed the requirements of the Notice Posting Rule and the Board’s announcement that it was delaying the implementation date for the Notice Posting Rule until January 31, 2012. 

The Notice Posting Rule will now become effective on April 30, 2012, if the challenges to the Rule are unsuccessful. 

 

This post was contributed by Michael R. Kelley, Esq., Chairperson of McNees Wallace & Nurick LLC’s Insurance Recovery & Counseling Group.

Let’s say that you are having a Holiday party (with alcohol served) at your home, or you are a business owner and you are having a voluntary "company" party for your employees. If someone becomes "visibly intoxicated" at your party, are you as the host of the party liable if the visibly intoxicated guest leaves your party and injures himself or someone else? Does your homeowners or commercial liability policy cover you for defense costs and for a settlement or judgment if you get sued? What about workers’ compensation coverage for your employees?

The answers are complicated, I’m afraid.

In Pennsylvania, the courts have ruled that the Dram Shop Act (which covers alcohol-related liabilities) limits liability for serving intoxicated persons to only those who serve for money, unless the servee is under 21. So, social and business hosts that are not in the business of providing alcohol for money can definitely be civilly liable for serving persons under 21 years of age.

However, social and business hosts are generally not liable under the Dram Shop Act for serving alcohol to those 21 and older. But, courts leave open the possibility of a common law action for negligence if a social or business host serves a visibly intoxicated person and knows or should know that the person will be driving, or engaging in some other dangerous activity.

The answer to the insurance coverage question is a little clearer. In many cases, unless you specifically purchased liquor liability coverage, your homeowners and commercial liability policies will not cover you if you are sued under either the Dram Shop Act or the common law. Check your insurance policy. We recommend having insurance for liquor liability claims if you plan to spike the egg-nog this holiday season.

If an employee becomes intoxicated and is subsequently injured after attending a "voluntary" company party, there is a question as to whether your workers’ comp. policy will cover it. If the party is truly voluntary, the claim may not be covered. If, despite being "voluntary," employees are expected to attend the party and it is seen by employees has having an impact on their employment status, workers’ comp. coverage likely will cover the injuries. Based on experience, courts look to find workers’ comp. coverage in these scenarios and only deny coverage if employees clearly were not required to attend and attendance had no bearing on employment status.

So, what is a good social or business host to do? Make sure that your guests don’t have too much to drink this Holiday season, and, if they do, make sure that they have a safe ride home. It’s not only good sense, it’s good insurance sense too. Also, make sure you have liquor liability coverage on your homeowners or commercial liability policy – just in case.

The McNees Insurance Recovery and Counseling Group helps clients understand their insurance coverage, submit claims and, where appropriate, helps ensure insurance companies honor legitimate claims. 
 

Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement?  Does your company charge “attendance points” against employees regardless of the reason for the absence?  Does your company require employees to be released to work without restrictions before they are permitted to return from a medical leave?  If so, beware: “inflexible” leave of absence and attendance policies are being targeted by the Equal Employment Opportunity Commission (“EEOC”) and plaintiffs under the Americans with Disabilities Act (“ADA”). 

Recently, McNees Wallace & Nurick LLC’s Labor and Employment Group developed and distributed an Employer Alert warning employers about the risks in these areas and providing valuable guidance.  To read the Employer Alert click here. 

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

On November 30, 2011, by a vote of 2-1, a bitterly divided National Labor Relations Board (Board) resolved to move forward with some, but decidedly not all, of the procedural changes it had proposed on June 22. While the Board’s Democratic majority referenced its desire to reduce “unnecessary, expensive, and time-consuming litigation for the Board and all parties,” the dissenting Republican Member, and most observers, have more accurately described the measure as another effort to shorten the time from the filing of an election petition to the date of the election. This would make it more difficult for employers to communicate with employees prior to the vote, and make it easier for unions to win more elections (although unions are already winning elections at a historically high rate of around 70%!).

The Board’s resolution will result in the drafting of a Final Rule, which will then have to be circulated to the Board Members for approval, and if passed (very likely given the November 30 resolution), will then be published in the Federal Register. So, despite considerable publicity given to the November 30 vote, the changes are not yet imminent.

The changes would apply to those cases where the employer and union are unable to agree on the terms of a voluntary election agreement, circumstances which then require the Board to conduct a hearing. One change would be to substantially limit the issues which can be litigated at the pre-election hearing, depriving the employer of the right to litigate issues related to voter eligibility prior to the election. Indeed, such issues would be relegated to the challenged ballot procedure, with resolution by the Board after the election has been held.

But suppose the voter eligibility issue involves the common question of who is to be excluded from voting on the basis of supervisory status?

Continue Reading NLRB Votes To Change Union Election Procedures (But Doesn’t Go All The Way!)

This post was contributed by Eric N. Athey, Esq., Co-Chair of the McNees Wallace & Nurick LLC Labor and Employment Group. 

Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services. However, to date, there is no OSHA general industry standard addressing this serious hazard.

Although there is presently no OSHA general industry standard for preventing workplace violence, OSHA has cited some employers for failing to address serious known risks under Section 5(a)(1) of the Occupational Safety and Health Act – also known as the "general duty clause." Basically, the general duty clause requires employers to provide a workplace free from recognized hazards. Citations under the general duty clause may arise where an OSHA inspector discovers evidence that an employer knew (or should have known) of individual or industry-specific risks of violence and failed to take feasible steps to prevent or minimize them. Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.

On September 8, 2011, OSHA issued an "Instruction" to its Regional Offices titled "Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents." The Instruction is intended to facilitate a uniform approach to workplace violence inspections that are triggered due to: (1) a complaint, referral, or a fatality or catastrophic event in the workplace; or (2) as part of a programmed inspection where there is recognition of the potential for violence in the industry or where the hazard is identified and existing. The OSHA Instruction makes clear that inspections generally won’t be considered in response to a single co-worker threat of violence and that such individualized issues should be referred to the appropriate government agency.

The OSHA Instruction lists three basic criteria that Regional Offices must consider when determining whether a workplace violence inspection is appropriate: (1) whether there are known risk factors in the particular workplace; (2) evidence of employer and/or industry recognition of the potential for workplace violence in OSHA-identified high risk industries, such as late night retail, healthcare and social services; and (3) whether there are feasible abatement methods available to address the risks.

The "known risk factors" listed in the OSHA instruction are:
 

Continue Reading OSHA Publishes Game Plan for Workplace Violence-Related Inspections