Recently in Pennsylvania Category

July 16, 2014

Another PA court concludes that "fluctuating workweek" is dead in PA

It's been a rough year for RadioShack. One that, for me, came out of nowhere.

That Super Bowl commercial was freaking brilliant! (Second only to this one).

So, of to a great start in February, I thought things were looking up for RadioShack. But, then they announced they were closing 1,100 stores and one analyst later cut RadioShack's stock price target to $0. ZERO!

And, then, last week, in this opinion, a Pennsylvania federal court delivered a swift kick to the RadioShack's you know what, when it held that RadioShack use of the "fluctuating workweek" method for calculating overtime violates the Pennsylvania Minimum Wage Act.

We've talked about the fluctuating workweek here before, in a post I trust maybe three of you read. Because wage-and-hour posts appeal to my readers about as much as Paula Deen likes kale and quinoa.

Maybe, now would be a good time to cue up the music.

For those who care -- hey, welcome back you three -- basically, the fluctuating workweek method of calculating overtime compensation allows an employer to pay a non-exempt employee a fixed, weekly salary, regardless of the number of hours worked. OT is then paid out at one-half times the regular rate of pay (rather than one and one-half times the regular rate, as is the default for payment of OT). The regular rate of pay is determined by dividing the fixed salary by the total number of hours worked in a workweek. This method of paying OT benefits the employer if employees generally work more than 40 hours per week (because the effective hourly rate is driven down).

But, unlike under federal law, the supporting regulations to the PMWA require that even if an employer reaches an agreement with its employees before work is performed as to a regular rate of pay, the employer must still pay OT at a "rate not less than 1 ½ times the rate established by the agreement."

Between the regulations two prior cases (this one and this one), which both held that the fluctuating workweek method of overtime calculation is impermissible under the PMWA, the Court concluded that RadioShack too had violated the PMWA by not paying out OT at one and one-half times the regular rate.

At this point, it's safe to say that PA employers who utilize the fluctuating workweek are just asking for trouble.

May 21, 2014

How yesterday's federal court strike of PA's same-sex marriage ban affects employers

parainbow.jpgICYMI, yesterday, the United States District Court for the Middle District of Pennsylvania ruled in this opinion that PA's same-sex marriage ban is unconstitutional.

How fitting that the first gay couple in Philadelphia to obtain a marriage license was Kerry Smith and Rue Landau, who serves as the Executive Director of the Philadelphia Commission on Human Relations (PCHR). Congratulations, Rue and Kerry!

So, now that, for the time being, gay marriage is legal in the Keystone State, how does this impact local employers? Find out after the jump...

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Continue reading "How yesterday's federal court strike of PA's same-sex marriage ban affects employers" »

May 20, 2014

Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep.

Thumbnail image for youarefired.jpgThe thing about this law-blogging gig, other than the money, power and women, of course, is the pride of being first to post about a crazy new case.

Last week, I missed out on the nude sunbather who sued an elementary school-employer for retaliation. Well, Jon Hyman at the Ohio Employer's Law Blog, I see your nude sunbather and raise you two white guys and a native american who dressed as klansmen at work, allowed themselves to be photographed, and then sued for race discrimination. Boom!

Yes, this really happened.

More on this one after the jump...

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Continue reading "Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep." »

May 15, 2014

PA Superior Court closes non-competition-agreement loophole

In Pennsylvania, a company and an employee can enter into an agreement whereby, in exchange for some form of consideration, the employee agrees not to compete with the company after the employment ends.

Consideration can come in a variety of forms; for example, a raise, bonus, promotion, or sugar. Initial employment can also be sufficient consideration.

However, in Pennsylvania, continued employment won't cut it. That is, a non-competition agreement will be invalid if an employee signs it after commencing employment -- even if you tell the employee that he/she will lose his job by not signing.

However, some smart lawyer out there -- even smarter than I am -- figured out that, by inserting the language "intending to be legally bound" into a non-competition agreement, Pennsylvania's Uniform Written Obligations Act ("UWOA") would validate the agreement -- even without any additional consideration.

Until now, son.

Earlier this week, in Socko v. Mid-Atlantic Systems of CPA, Inc. (opinion here; Socko here), the Pennsylvania Superior Court said the UWOA exception be like this won't save a non-competition agreement otherwise lacking in consideration:

"Language in an employment contract that the parties intend to be legally bound does not constitute valuable consideration in this context....Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee."

While the Pennsylvania Supreme Court has yet to weigh in on this issue, employers would be wise to play it safe and offer employees sufficient consideration to support a covenant not to compete: either initial employment or, if the employee signs the agreement after employment begins, something else of sufficient value.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

May 7, 2014

Yes, you can have a hostile work environment based on sexual stereotyping.

We've talked a fair amount about sexual stereotyping at the ole Handbook.

Here I discussed the cluster created by offering crap assignments to a male employee because he fails to conform to a male stereotype.

And of course, we have my "Ravishing Rick Rude" theory of same-sex harassment, which a federal appellate court crapped all over.

And on Monday, while some of you were out celebrating Cinco de Mayo -- I'm a Siete de Mayo guy myself, so hold my calls -- a federal court in Pennsylvania determined (here) that a male plaintiff can state a valid sexual stereotyping claim by alleging that his same-sex harasser believed that the plaintiff did not conform to the stereotype of a heterosexual male.

Put another way, the plaintiff claimed that his failure to laugh at his co-worker's infantile penis jokes and other oversexed comments, in conformity with how a "real man" should react, caused his co-worker to make additional lewd, hostile and unwelcome actions and comments.

Well, are you thinking what I'm thinking?

Putting sea salt on the fried Oreos I had for breakfast was a master stroke of genius.

Why did the Defendants argue that, because the harasser allegedly told plaintiff "you gotta get it in," he was "attempting to encourage and support plaintiff, not demean or tease him?"

(Yeah, no strikethrough there. The defendants actually made that argument with a straight face. ***facepalm***)

How is it that the plaintiff here is being sexually harassed "because of" his gender -- especially if the co-worker makes the similar sexual comments to other female co-workers?

Ah yes, the old equal-opportunity-pervert defense. Perfectly viable. 

But, the plaintiff in this case did not allege that his harasser was bringing sexy back with both men and women. Rather, he alleged that his male-coworker's comments and behavior were heterosexual in nature, but that he expected men, such as the plaintiff, to join in the lewd, promiscuous and predatory talk.

Add in allegations that the comments were pervasive and offensive and that complaints to management went unanswered and that, my friends, was enough to survive a motion to dismiss.

On a more complete record, the plaintiff's case may well fall apart. However, employers should use this decision as a reminder to their workforce that lewd comments of any kind, directed at any person, are forbidden.

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If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.

April 21, 2014

There is no right to be completely left alone while on FMLA leave

Thumbnail image for fmla.jpegOne of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?

I'll get to that in a second.

#HelpShaneFightCancer

For the folks who missed my blog post on Friday, we're trying to raise some money for an eight-month-old baby with cancer. Please take a few minutes, read the post, donate if you can, and spread the word (hashtag #HelpShaneFightCancer). Thank you!

Now, back to the FMLA.

Over the weekend, I read this recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.

Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.

This deadline came and went without the employee signing the non-compete. So, she was fired.

And then she sued for FMLA interference.

And she lost because I basically took the lede right from the Third Circuit's opinion:

"Passport imposed the requirement that O'Donnell sign the offer letter and the non-compete agreement before she took FMLA leave...Thus, O'Donnell knew that she needed to sign the forms well before she invoked her FMLA rights....As this Court has previously explained, 'there is no right in the FMLA to be left alone,' and be completely absolved of responding to the employer's discrete inquiries....There is no evidence showing that Passport in any way hampered or discouraged O'Donnell's exercise of her right to medical leave, or attempted to persuade her to return from her leave early.

Generally, you should be communicating with employees on FMLA leave. 

This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.

Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.

But, the only way you'll ascertain that is by communicating with your employee.

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P.S. - And speaking of communicating, if you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group

April 14, 2014

This is one badass labor and employment law roundtable

Recently, several local lawyers and I participated in a labor and employment law roundtable for The Legal Intelligencer.

Actually, the table was rectangular. But, the coffee and muffins were free, so I didn't complain.

Well, not until I dropped my pants and mooned the employee-rights lawyers on the panel. Trust me, they had it coming. 

Actually, they were quite polite and articulate. So, fortunately, they edited my butt-cheeks out.

I'm a real peach.

What were we talking about again?

Right, the roundtable. We debated several topics:

  • background checks
  • social media in the workplace
  • employee leave issues
  • dating in the workplace
  • BYOD
  • my 28 inch blog pythons

Here is the transcript.

April 10, 2014

What's hot at the EEOC? Plus, a legal roadmap for managing the aging workforce.

Thumbnail image for bagelcreamcheese.jpg

Whatcha doin' two weeks from today?

Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?

In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.

The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.

Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.

If you are interested in attending, click here for more details and to RSVP.

Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.

After all, I take care of my VIPs.

March 19, 2014

That's what she said: How to navigate the pitfalls of the FCRA

whatshesaid.jpgWhen the Fair Credit Reporting Act comes a knock knock knockin' on HR's door, who among you, will answer the call?

Fear not, kids. Cinch on your big boy/girl underpants! My colleague, Stacey Schor, in this post, has outlined a recent federal court decision that provides valuable guidance on how employers can comply with the strict requirements of FCRA, so that your hiring decisions are FCRA-bulletproofed.

This one goes out to all out FCRA freaks fans. Holler if you hear me!

March 3, 2014

Choking a female co-worker and telling her she likes it rough could be sexual harassment

But, faced with those facts, that didn't stop one employer from moving for summary judgment and asking the court to dismiss a female employee's claims of sexual harassment.

Could the company have possibly prevailed? Find out after the jump...

caveman.jpgOh wait, before we jump, I left out the part where the plaintiff claimed that her male co-worker also told her, "I'll have you cum before you get your pants off."

And then there's the time when that same co-worker said, "Hey! we got your Christmas present!" whereby he held up a vibrating tool and thrust it towards the plaintiff's genitals.

And what about the other male co-worker who would routinely come up from behind the plaintiff, lean in and smell her in a sexual fashion while pushing his groin into her?

Or when another male co-worker said to the plaintiff, "I just like fucking with you, why would I want to get you fired? I would miss watching that ass of yours!"

Ok, now we can jump and play did the employer get the case dismissed on summary judgment?

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Continue reading "Choking a female co-worker and telling her she likes it rough could be sexual harassment" »

February 11, 2014

An employee sued her employer for involuntary servitude. Yep, slavery.

publcienemy.jpgYesterday, I read a post over at Business Management Daily about an employee who sued for involuntary servitude.

Yes, folks. The plaintiff claimed that her former employer had treated her like a slave. 

Specifically, the plaintiff, a trainee of some sort, alleged that she was never provided with a job description or adequately trained.

(Stop me if this sounds familiar)

The plaintiff next alleged that her supervisor specifically told her that normal working hours were Monday through Friday from 9:30 a.m. to 5:00 p.m.

(I don't know about you, but I just stepped away for five minutes to update my resume to submit to the defendant)

The plaintiff further alleged that she worked in less than ideal working conditions, where she wasn't compensated for any work performed in excess of forty hours per week, including the work she was required to take home with her and perform on the weekend.

(Ok, maybe not resume worthy, and a possible FLSA violation to boot. But slavery?)

No slavery according to the United States District Court for the Middle District of Pennsylvania (opinion here):

In the present case, plaintiff alleges challenging working conditions. Plaintiff's work environment, however, does not evoke in the court's mind the burdens endured by the African slaves in the cotton fields or kitchens of the antebellum south. Moreover, the general defense against oppressive hours, pay, working conditions or treatment is the right to change employers. Plaintiff never claimed that the defendants physically restrained her or prevented her from leaving work. Rather, she always maintained the right to walk away from defendants' employment. In short, plaintiff has not alleged that her employment with defendants rose to the level of involuntary servitude.

What's the takeaway here? Oh, I dunno. Don't violate the 13th Amendment.

December 19, 2013

PA Gov. Corbett announces support for ban on LGBT workplace discrimination

Thumbnail image for LGBT_flag_map_of_Pennsylvania.svg.pngOver the Summer, I reported here that about companion Pennsylvania bills introduced in the House and Senate that would outlaw both sexual orientation and gender identity discrimination in the workplace.

Each bill had bipartisan support, but it was unclear how Governor Corbett (R) would act if a bill was placed on his desk for his signature.



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Yesterday, The Philadelphia Inquirer reported here that Gov. Corbett said that he would support legislation banning discrimination based on sexual orientation in employment, housing, and public accommodations.

The Inquirer story notes that 33 Pennsylvania municipalities have nondiscrimination laws that include sexual orientation and gender identity, while 23 Fortune 500 companies based in Pennsylvania have similar nondiscrimination policies.

Neither bill has moved out of committee since being introduced in August. The Inquirer reports that Rep. Daryl Metcalfe (R., Butler), chairman of the state government committee, who controls the movement of the bill in the House, is against it.

We'll just have to wait and see what comes of it.

December 13, 2013

Your President/CEO may have to pay your company's wage and hour debts herself

MacGyver.jpgWell, that certainly sucks. Even worse than the time I found out that Santa Claus MacGyver wasn't a real person.

(My psychiatrist says that there's a light at the end of the tunnel. I'm not so sure...)

But seriously, I thought that the purpose of a limited liability company was to insulate members from the debts of the company.

After the jump, see how that rule doesn't necessarily apply when an LLC fails to pay minimum wage or overtime...

Continue reading "Your President/CEO may have to pay your company's wage and hour debts herself" »

December 11, 2013

FACT OR FICTION: Employers may discriminate based on family status

Fact or Fiction?That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

Yesterday, I read this opinion about a white man who claimed that he lost out on a middle school boys basketball coaching job because the school didn't like the fact that he was married to an Asian ethnic Chinese woman and they have seven mixed race children.

The plaintiff claimed that the school violated Title VII of the Civil Rights Act of 1964. The school filed a motion to dismiss, claiming that the man could not state a claim under Title VII. The school prevailed because, well, I'll let the court tell you:

The plaintiff alleges that he was discriminated against, not because of his own race, but because of the race or his wife and children. He is basing his discrimination claims on his family status. Viewing the allegations in the light most-favorable to the plaintiff, it is possible that he was treated differently from white males who did not have mixed race families. However, discrimination based on family status alone is not actionable under Title VII. Simply stated, Mr. Blasi is not a member of a protected class for Title VII purposes. Because he is not a member of a protected class, he cannot establish a prima facie case of direct discrimination under Title VII. His claims under this legal theory have no merit.

Therefore, the answer to today's QATQQ is fact.

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It's also a fact that this blog -- the one you read religiously for the compliance content, humor and hidden satanic messages is hella-awesome! So, please vote for it today in the ABA Journal's Blawg 100 Amici contest. You can cast your vote for The Employer Handbook here, by clicking the banner to the right, or tweeting your support.

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November 14, 2013

New bill in PA House would erase many local paid-sick-leave laws

sickleave.jpg

Earlier this year, the City of Philadelphia got this close to passing a bill requiring local employers to provide paid sick leave to employee.

PA Rep. Seth Grove (York County-R), wants to make sure there are no such close calls in the future.

Late last month, Rep. Grove introduced this bill in the PA House of Representatives, geared towards "providing statewide uniformity regarding vacation and other forms of leave mandated by political subdivisions." 

Specifically, Rep. Grove's bill, if passed, will prohibit PA municipalities from "requiring an employer to provide an employee or class of employees with vacation or other forms of leave from employment, paid or unpaid, that is not required by Federal or State law, and may not require an employer to compensate an employee for any vacation or other forms of leave for which Federal or State law does not require the employee to be compensated."

(The bill, if passed, would not affect paid-sick-leave laws for municipal employees, such as the one presently in effect in Philadelphia. Although, Philly's law is broad enough to affect employers who do business with Philadelphia. So, who knows?)

In a September 16 memo, Rep. Grove lamented that local paid-sick-leave laws "create an uneven playing field for the businesses located inside the municipality," while "businesses with more than one location are forced to comply with a variety of different and changing mandates."

Brendan Fischer at PRWatch.org reports here that this bill is on the fast track in PA. Right now, the bill sits in Committee.

I'll add updates as the bill advances through the House.