Recently in Pennsylvania Category

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.

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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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Two days left to vote in the ABA Journal's Blawg 100 Amici contest. Please consider voting for this blog by clicking here, the banner to the right, or by tweeting your support.

Thank you.




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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.

Thank you.

November 14, 2013

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

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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.

November 1, 2013

FACT OR FICTION: You can ban employees from consuming alcohol -- even off the clock.

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."

If you operate a business in PA, NJ, DE or the USVI, then the answer is yes. This is true -- even if the ban extends to alcohol consumption off the job.

So says the Third Circuit Court of Appeals in this opinion from earlier this week, where an alcoholic employee, who had previously checked himself in to rehab, had violated the terms of a subsequent return-to-work agreement with his employer never to consume alcohol again.

The employee claimed that the agreement violated the Americans with Disabilities Act's ADA's prohibition of "qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability." The court; however, disagreed:

As numerous courts have recognized, employers do not violate the ADA merely by entering into return-to-work agreements that impose employment conditions different from those of other employees. Indeed, several of our sister circuits have explicitly endorsed agreements that bar an employee from consuming alcohol--whether at the workplace or otherwise...Although Ostrowski was subject to different standards than other Con-way employees who did not sign an RWA, this difference results from the terms of his agreement rather than disability discrimination.

Ultimately, the plaintiff could not show how the ban on booze singled him out because of his alleged disability (alcoholism) versus regulating his conduct (drinking alcohol).

So, the answer to today's question -- at least in the Third Circuit -- is FACT.

October 23, 2013

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

If only I had a hot tub time machine, I would have gone back a day and a half and scooped Phil Miles at Lawffice Space and posted "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers" before he did.

Except I didn't.

So read his post entitled "New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers." It's really good.

Lesson learned. Now, I'm on my game! So, tonight, my marching band and I are going to do an original tribute to Michael Jackson at halftime of a local high school football game. So, I'll post that here tomorrow.

Wait, WTH!

October 18, 2013

Does the FLSA require paying employees who wait in security lines at work?

True story.

Back in 1999, when I was in law school in Washington DC, I went with my buddy to see The Matrix at the Uptown Theater in Cleveland Park. At the time, the Uptown was one of the best places around to watch an action flick. And what better movie to see than The Matrix -- one of my top 10 movies of all time.

WTH does this have to do with the Fair Labor Standards Act? 

Uh, duh...

[Humor me and click through, would ya?]

Continue reading "Does the FLSA require paying employees who wait in security lines at work?" »

August 20, 2013

New PA bill would ban sexual orientation, gender identity discrimination

LGBT_flag_map_of_Pennsylvania.svg.png

Twenty-one states and the District of Columbia have laws banning workplace discrimination in the private sector on the basis of sexual orientation. The Commonwealth of Pennsylvania, which currently bans discrimination based on sexual orientation and gender identity or expression in public employment, may soon become the latest state to ban it in the private sector as well. 

(The term "gender identity or expression" means actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual's assigned sex at birth).

A bill to amend the Pennsylvania Human Relations Act to add these workplace protections was introduced last week in the PA Senate with some bipartisan (but most Democratic) support. The same bill was introduced in the PA House the week before. Each measure would also carry the same restrictions in housing, credit and public accommodations.

While prior attempts to get similar legislation passed in PA have failed, a recent poll indicates support for this measure throughout the Commonwealth. Plus, many large cities, including Philadelphia and Pittsburgh, have LGBT workplace laws. And, even without a law on the books statewide, many large employers have led by example. According to the Human Rights Campaign, as of April 2013, 434 (88 percent) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 282 (57 percent) had policies that include gender identity.

Governor Corbett's position on these bills is unclear.

Image Credit: By File:Map of Pennsylvania highlighting Philadelphia County.svg: Gay_flag.svg: derivative work: Fry1989 eh? 01:04, 12 January 2012 (UTC) [Public domain], via Wikimedia Commons

August 15, 2013

When it comes to ADA accommodations, reasonable is good enough

Under the Americans with Disabilities Act, an employer must make reasonable accommodation to the known physical or mental limitations of an individual unless the employer can show that doing so how cause it undue hardship.

Generally, an employee will initiate the process by advising her employer that she is disabled and needs an accommodation to perform the essential functions of her job. What then ensues is an interactive dialogue in which both sides work together in good faith to decide on what that accommodation may be.

But here's the rub:

The accommodation need only be reasonable; not the employee's first choice.

patrialmask.jpgHere's an example from a recent decision from the Third Circuit Court of Appeals:

A chemist had a disability that manifested itself when she became exposed to certain solvents. So, the employer offered her a full-mask respirator. It didn't work because she was claustrophobic and it caused her to suffer a panic attack. The employer then offered a partial-mask respirator, which the employee refused without explanation. But, she never suggested that the partial-mask was unreasonable. Instead, she preferred a transfer. Ultimately, she took sick leave and was terminated after she failed to return to work upon exhausting FMLA and her bank of paid time off. So, she sued under the ADA for a failure to accommodation and lost.

Reject the reasonable accommodation at your own risk.

Relying upon an ADA regulation, the Third Circuit reasoned that an individual who rejects a reasonable accommodation "to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified" for the job.

Have a good faith, interactive dialogue.

So, when an employee comes to you requesting an accommodation for a disability, I'm not suggesting that you should wax and twirl your handlebar mustache before offering her an "accommodation." But you don't have to accept her preference either. Instead, truly have an interactive dialogue with the employee to arrive at an accommodation that both sides can live with.

August 14, 2013

A woman sharing topless photos at work prolly isn't an invitation to grope her

sexboard.jpg[Click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click, click]

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Dear Google User Who Got Five Words Into The Lede And Clicked:

Sorry, this is an employment-law blog. From time to time we have some prurient (look it up) content. Like, this one time, I blogged about a former prostitute who sued for sexual harassment. Sure, I've also discussed Playboy-posing cheerleaders, and a place called the Wild Beaver Saloon. And then there was that post about the strip club. Make that posts (plural).

Hey, did I mention that my blog was once named a top Labor and Employment Law Blog by the ABA Journal?

Anyway, to those who got here looking for topless photos, again, I'm sorry. I cannot accommodate (look it up) you. Instead, what I plan to discuss today is this recent PA federal court decision, in which the court shot down another lame attempt by an employer to assert the "she was asking for it" defense in a sexual harassment case.

(Sorry, the court's opinion has no pictures and I've checked the case docket five times -- you know, to be thorough and stuff. No pix there either).

Everyone here engages in inappropriate workplace behavior.

The facts here are fairly straightforward. The defendants claimed that the plaintiff, a former employee, brought topless photographs of herself and others to the workplace, initiated sexual conduct by sharing those photos, sent sexually explicit text messages, and made sexually suggestive comments to male coworkers. For her part, the plaintiff admitted having shown co-workers a photograph of a topless woman who had participated in a "wet t-shirt contest" at a motorcycle rally known as "Mountainfest," but denied showing those employees inappropriate photos of herself.

(Go ahead. I'll pause while you Google.)

However, the plaintiff denied that she welcomed the subsequent groping and vulgar language that followed from her male co-workers. The defendants did not deny that employees behaved inappropriately. Instead, without citing any supporting case law, they argued that the plaintiff invited this reaction by voluntarily showing her co-workers a photograph of a topless woman.

The "she was asking for it" argument never works in defending a sexual harassment case.

Trust me. It ranks right up there with the "exotic dancer" defense and the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense in a race discrimination case. But some folks have to learn the hard way. And this time was no different, as the court denied the defendants' motion for summary judgment.

Takeaway

When conducting anti-harassment training -- you're doing that, right? -- please emphasize that behavior that your mother wouldn't tolerate is no good for the workplace either. It doesn't matter if the "harasser" didn't mean anything by that ass-grab. It only matters whether the "victim" is offended. And even if it appears that the "victim" is not offended, trust me, he or she will be once that lawsuit is filed.