This post was contributed by Rick L. Etter, Esq. of McNees Wallace & Nurick LLC’s Labor and Employment Group.

The Office of Federal Contract Compliance Programs (OFCCP) recently issued scheduling letters from its offices throughout the Mid-Atlantic Region. The OFCCP sends a scheduling letter to notify a government contractor or subcontractor that a particular establishment has been selected for a compliance evaluation. In response to the scheduling letter, the contractor or subcontractor must submit its written Affirmative Action Program (AAP) along with supporting information, including detailed data on compensation, hiring, promotion, and termination decisions. A sample scheduling letter can be viewed here (pdf).

Make no mistake, an OFCCP scheduling letter should be treated in the same manner as a class action lawsuit because that is exactly what it is. A quick review of the OFCCP’s recent press releases highlights the agency’s focus on pursuing high-dollar awards from entry-level failure to hire cases.  The OFCCP uses the information obtained from the scheduling letter to identify personnel decisions that cannot be supported by documentation and then relies on statistics to establish systemic discrimination. For this reason, you should perform your own statistical analyses prior to submitting your response to the OFCCP. More importantly, we strongly recommend that such statistical analyses be coordinated by counsel and protected by the attorney-client privilege. While there are a number of vendors and consultants who offer compliance review support as part of their AAP services, their work is not protected by the attorney-client privilege and is therefore discoverable by plaintiff’s attorneys and may be available to the public under the Freedom of Information Act (FOIA).

McNees Wallace & Nurick can guide you through the OFCCP’s compliance evaluation. If you receive a scheduling letter, you should immediately contact Rick Etter or Schaun Henry because you have only 30 days to submit your response. 

This post was contributed by Jodi M. Frankel, Esq. a new Associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.

Earlier this year the Superior Court of Pennsylvania held that a worker who was fired after he informed his employer that he was proceeding with legal action against a co-worker may maintain an action against the employer under Pennsylvania’s Crime Victims’ Employment Protection Act.

In Rodgers v. Lorenz (pdf), Rodgers—an employee of Carload Express—alleged that he was subject to repeated acts of verbal and physical harassment by a co-worker. After Rodgers reported to management that the co-worker threatened him on numerous occasions and, on one occasion, choked him, Rodgers was moved to a different job site. A few months later, Rodgers and the co-worker were assigned to the same site, but on different shifts. Thereafter, Rodgers alleged that the co-worker began to harass him during shift changes. Rodgers informed management of his intent to report the co-worker’s conduct to the police. Despite the Company’s request that he not call the police, Rodgers filed a complaint with the local authorities against his co-worker for harassment and assault. Carload Express fired Rodgers later that same day.

Rodgers filed a complaint alleging that Carload Express wrongfully terminated him for instituting criminal proceedings against his co-worker.

Continue Reading Pennsylvania Act Protects Employees Who Report Crimes to Police

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

In August, the National Labor Relations Board (NLRB) issued a controversial Final Rule that would require most private-sector employers to notify their employees of their rights under the National Labor Relations Act with a new mandatory workplace poster. The rule’s effective date originally was November 14, 2011.

Groups like the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce filed lawsuits seeking to block the implementation of the rule’s notice-posting requirements. These groups challenged the rule on various grounds, including their position that the rule’s notice-posting requirements exceed the NLRB’s statutory authority.

On October 5, 2011, the NLRB announced that it was delaying the implementation date for the notice-posting rule until January 31, 2012. The NLRB claimed that it postponed the deadline "in the interest of ensuring broad voluntary compliance."  Other reports indicate that the NLRB postponed the implementation date in response to a specific request to do so by the Judge in one of the pending cases challenging the rule.

Regardless of the NLRB’s actual motivation, the decision to delay the notice-posting rule’s effective date gives most private-sector employers a reprieve from posting the controversial notice. Employers should continue to monitor this issue, as courts considering the various challenges to the rule likely will issue decisions between now and January 31 that may affect the posting requirement and/or its effective date.

Please note that the NLRB’s notice-posting rule and the postponement of its effective date do not affect federal contractors, who already are required to post a similar notice under Executive Order 13496 . Executive Order 13496 applies to (1) most contractors and subcontractors who hold a Federal or Federally-assisted construction contract in excess of $10,000; (2) most non-construction contractors and subcontractors who have a government contract or subcontract, or government bills of lading, of $10,000 or more; and (3) any entity that either serves as a depository of Federal funds in any amount or is a financial institution that is an issuing and paying agent for U.S. savings bonds or savings notes in any amount.
 

This post was contributed by Jodi Frankel, a new Associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.  Jodi graduated from the University of Virginia School of Law in May 2011 and sat for the Pennsylvania bar exam in July 2011. 

So your employee recently posted photos of herself lounging poolside with margarita in hand while out on FMLA leave. Can you do something more than just compliment her nice tan?

Earlier this year, in the case of Pellegrino v. Communications Workers of America (PDF), a Pennsylvania federal court answered yes. The court upheld the termination of an employee for violating a work rule that restricted employee travel outside the immediate vicinity while on FMLA leave.

Under a policy in its employee handbook, CWA provided sick pay to eligible employees on approved medical leave. Such wage replacement, however, was subject to certain restrictions. Specifically, employees were required to remain in the immediate vicinity of their homes while on sick leave unless they were seeking treatment or attending to ordinary and necessary personal or family needs. Employees also were permitted to leave the immediate vicinity if they received express permission from CWA.

Denise Pellegrino, a CWA employee, was out on approved FMLA leave following surgery. She also received sick leave pay under the CWA policy. While out on leave, Pellegrino took an unapproved week-long vacation to Cancun, Mexico. CWA learned of Pellegrino’s travels and fired her; at the time of her termination, Pellegrino had yet to return from FMLA leave. Pellegrino sued claiming that CWA had unlawfully interfered with her right to take FMLA leave. CWA claimed that her termination was unrelated to her status under the FMLA, but rather because she violated its leave policies. CWA said it would have terminated Pellegrino regardless of whether or not she was on FMLA leave.

While the court agreed that Pellegrino was entitled to unpaid leave under the FMLA, it found no evidence that CWA’s sick leave policy or its decision to terminate her employment while she was still out on leave improperly interfered with her rights under the FMLA. In fact, the court noted that to the extent the CWA policy provided a wage supplement, it might have actually encouraged employees to take advantage of their rights under the FMLA.

In its ruling, the court noted that "the FMLA does not shield an employee from termination if the employee was allegedly involved in misconduct related to the use of FMLA leave." Similarly, companies have the right to create and enforce leave polices, including policies designed to rein in FMLA abuse, so long as such policies do not abridge an employee’s rights under the FMLA. Where a sick leave policy has been adopted, the employer has the discretion to enforce it through means such as termination. The court further noted that, even in the absence of an explicit policy limiting employee travel while out on FMLA leave, an employer might reasonably terminate an employee for taking a vacation while receiving sick leave pay.

Sick leave policies similar to CWA’s were previously upheld by courts in Pennsylvania. Such policies have included requirements that employees absent on sick leave stay at home during working hours, that employees obtain medical authorization and employer permission to leave the home, and that employees be subject to calls or visits by their employer.

The Pellegrino case underscores the court’s growing concern with FMLA abuse and provides precedent for restrictive sick leave policies. However, an employer who suspects that an employee is abusing FMLA should conduct a thorough investigation and allow the employee to explain his/her conduct before taking immediate employment action.

On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees’ Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

Continue Reading First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

This post was contributed by Rick L. Etter, Esq., an Associate in McNees Wallace & Nurick LLC’s Labor and Employment Group.

Given the increase in major weather events that have impacted Pennsylvania recently, including high winds and substantial flooding, employers should consider the following issues that may arise when closings, delays, and absences are caused by inclement weather.

Must employees be paid when the business is closed because of inclement weather?

Nonexempt employees need not be paid for time when they do not work because the business is closed. Exempt employees must be paid their salary for the week regardless of the business closing. An employer may require exempt employees to use accrued paid time off.

Must employees be paid if they don’t report to work due to inclement weather when the business is open?

Nonexempt employees need not be paid for the time they are absent from work. Exempt employees need not be paid for a whole day absence taken due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off. However, if the exempt employee has no accrued paid time off, 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?

An employer may generally 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 residency, 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.

Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.
 

This post was contributed by James Welch, a Summer Associate with McNees Wallace and Nurick LLC. Mr. Welch will begin his third year of law school at William & Mary School of Law in the fall, and he expects to earn his J.D. in May 2012.

In Borough of Duryea v. Guarnieri, 113 S.Ct. 2488 (2011) (PDF), the United States Supreme Court clarified that, although the Petition Clause of the First Amendment of the United States Constitution provides public employees separate and distinct protections, those protections are essentially the same as those afforded by the Free Speech Clause of the First Amendment.  This is good news for public sector employers, who already face a slew of additional concerns in the area of employee discipline. 

The Petition Clause has been trendy for public employees lately, but its contours have been somewhat unclear.  Generally, the Petition Clause protects the rights of individuals to petition the government to seek redress of grievances.  The courts have held that this provision protects public employees who file grievances against their employers.  In other words, public employers are prohibited from retaliating against an employee who has filed a grievance or other complaint. 

However, like other protections afforded to employees, there are limits to the protections afforded by the Petition Clause.  The issue in Guarnieri was, what types of grievances/complaints are protected? 

Continue Reading United States Supreme Court Clarifies Public Employee Petition Clause Protections

On August 25, 2011, the National Labor Relations Board ("NLRB") announced the issuance of a "Final Rule" that will require employers to notify employees of their rights under the National Labor Relations Act ("NLRA"). The Final Rule will take effect on November 14, 2011.

Which employers are affected by the Final Rule? The Final Rule applies to any employer that is covered by the NLRA. This includes most employers in the private sector; however, certain employers with an annual business volume of less than $500,000 may be excluded. Small businesses should consult with counsel to determine whether they fall under the NLRB’s jurisdiction. Federal contractors who already post a similar notice under Executive Order 13496 are deemed to comply with the Final Rule if they comply with notice posting regulations under the Executive Order.

What are the notification requirements? Covered employers must post the required notice "in conspicuous places" where it is "readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted." The required notice informs employees of their rights under the NLRA. These include the rights to organize a union, bargain collectively, discuss wages with co-workers and to engage in a strike and other "protected concerted activity." The notice also provides information as to how employees may contact the NLRB for more information regarding their rights.

The required poster will be made available on the NLRB website. Employers may post the official color poster that appears on the NLRB website, or a black and white photocopy of it; however, all posted notices must be at least 11" by 17" and the same font as the official notice. In workplaces where 20% or more of the workforce is not proficient in English, special rules apply regarding posting the notice in other languages. Electronic posting on a company’s intranet or Internet site is also required "if the employer customarily communicates with its employees about personnel rules or policies by such means."

What happens if an employer fails to comply? Employees may report employer non-compliance to the NLRB and failure to post the notice may result in the filing of an unfair labor practice charge ("ULP") with the Board. The Final Rule provides detailed instructions to employees on the process for filing a ULP charge. If an employer refuses to comply after receiving notice of non-compliance, the Regional Director for the NLRB may issue a formal complaint and schedule a hearing before a federal administrative law judge who may then issue an order requiring posting. A willful refusal to post the notice may be deemed by the NLRB as evidence of "unlawful motive" in cases where an employee alleges other violations of the NLRA (e.g. discrimination on the basis of union activity). In addition, in such cases where an employer fails to post the notice, the Board may excuse employees from the six-month statute of limitations for filing ULP charges based on other alleged unlawful conduct by the employer.

Why is the Final Rule controversial? The Final Rule is particularly controversial because the threat of union organizing is a hot button issue for many employers and the Final Rule is widely viewed as a political payback to unions by the current Administration. The sole Republican appointee on the Board dissented to the issuance of the Final Rule. Although employers are already required to post notices under several other federal employment laws (e.g. Title VII), those laws typically contain specific notice provisions – the NLRA does not. This is the first posting requirement of general applicability issued by the NLRB since the NLRA was passed in 1935. It remains to be seen whether business groups or political opponents of the Final Rule will take legal or political action to block enforcement.

If you have any questions regarding the Final Rule, you may contact any member of McNees Wallace & Nurick’s Labor and Employment Law Group by clicking here.
 

We are happy to report that we have been nominated as one of the LexisNexis Top 25 Labor and Employment Blogs of 2011!  We are both humbled and honored by our nomination. 

You can comment/vote on the list of nominees by clicking here.  If you have not previously registered you will need to do so by starting here (this is free and quick).

Thanks!