By: Melissa M. Hall, Esquire mmh@muslaw.com and Jane Lewis Volk, Esquire jlv@muslaw.com
In June 2008, the Ninth Circuit Court of Appeals issued a decision regarding an employee’s right of privacy in text messages. Although the decision is not binding in Pennsylvania, the case presents an interesting issue of which employers should be aware.
In Quon v. Arch Wireless Operating Co., Inc., the Court held that an employee did have a reasonable expectation of privacy in text messages sent via an employer-provided pager. The employer contracted with Arch Wireless to provide text messaging services and distributed pagers to its employees. The contract provided for a certain number of characters per pager, per month after which the employer required the employees to pay for any overages. Quon exceeded his character limit on several occasions and, as required, paid for the overage charges. The employer informed Quon that, so long as he continued to pay for any overages, his text messages would not be audited. Notably, although the employer had a “Computer Usage, Internet and E-mail Policy” in place which put employees on notice that they had no expectation of privacy in the use of those devices, the written Policy did not include the pagers. The employer did, however, verbally inform employees that the text messages sent from the pagers were considered e-mail under the Policy.
Despite the employer’s assurance that it would not review the content of text messages, the employer did audit Quon’s text messages and determined that, aside from being over the allotted number of characters, many of the messages were personal and not business related. Quon subsequently sued the employer for violations of their Fourth Amendment right to privacy. The Court held that the employees had a reasonable expectation of privacy in the content of the text messages because (1) the employer had a practice of not reviewing text messages for content and (2) text messages were not significantly different from email, which had been afforded privacy protections. However, the Court noted that the employees had no privacy interest in the address or phone number used to send the text messages.
This decision is an important reminder to employers to issue and enforce consistent policies reminding employees that, even if personal use of company communication devices is permitted, there should be no expectation of privacy.
For more information about this decision or other employee policy issues, contact Melissa M. Hall at mmh@muslaw.com or Jane Lewis Volk at jlv@muslaw.com.
Monday, December 29, 2008
Monday, November 10, 2008
Business Workshop: Part-time is optional, Cash or accrual?
By: Tony J. Thompson, Esquire tjt@muslaw.com
A federal appeals court recently confirmed that employers do not have to accommodate employees who want to return from Family and Medical Leave and switch from full-time to part-time work.
In the case in question, the employee requested and received leave from a manufacturer after suffering a nervous breakdown.
After using up her 12 weeks of FMLA leave, the employee said she still could not work full time and asked to go on a part-time schedule.
The company insisted that she could get only her full-time job back and fired her. The employee sued, alleging the company interfered with her FMLA rights and discriminated against her because of her disability.
The district court dismissed the case after the company proved that it did not have any part-time positions that were comparable to the employee's full-time work.
The appeals court agreed, stating that the FMLA does not require accommodation when the employee cannot return to the same or a comparable job.
During FMLA leave, an employer may have to provide reduced schedule leave to eligible employees.
But once employees have exhausted FMLA leave, the law does not require employers either to hold the job open or to change a full-time position into a part-time one.
The FMLA covers employers with 50 or more employees and entitles eligible employees to take unpaid leave of up to 12 weeks for the care of a newborn child or an immediate family member with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition.
A federal appeals court recently confirmed that employers do not have to accommodate employees who want to return from Family and Medical Leave and switch from full-time to part-time work.
In the case in question, the employee requested and received leave from a manufacturer after suffering a nervous breakdown.
After using up her 12 weeks of FMLA leave, the employee said she still could not work full time and asked to go on a part-time schedule.
The company insisted that she could get only her full-time job back and fired her. The employee sued, alleging the company interfered with her FMLA rights and discriminated against her because of her disability.
The district court dismissed the case after the company proved that it did not have any part-time positions that were comparable to the employee's full-time work.
The appeals court agreed, stating that the FMLA does not require accommodation when the employee cannot return to the same or a comparable job.
During FMLA leave, an employer may have to provide reduced schedule leave to eligible employees.
But once employees have exhausted FMLA leave, the law does not require employers either to hold the job open or to change a full-time position into a part-time one.
The FMLA covers employers with 50 or more employees and entitles eligible employees to take unpaid leave of up to 12 weeks for the care of a newborn child or an immediate family member with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition.
Monday, November 3, 2008
Supreme Court Declines To Make Definitive Ruling on Admissibility of “Me Too” Evidence
By: Elaina Smiley, Esquire es@muslaw.com
Often in discrimination cases, employees attempt to introduce evidence of alleged discriminatory acts against other employees to bolster their claims. The Supreme Court in Sprint v. Mendelsohn, declined to make a determinative ruling on whether or not this type of evidence is admissible. Mendelsohn was terminated by Sprint as part of an company-wide reduction in force and then sued Sprint for age discrimination. In support of her claim, Mendelsohn sought to introduce the testimony of five other former Sprint employees who claimed that their supervisors had discriminated against them because of their age. None of the five employees worked in the same group as Mendelsohn or under the same supervisors. The District Court ruled that the evidence was not admissible because the five employees were not similarly situated to the plaintiff. The Tenth Circuit found that the District Court abused its discretion. The case was appealed to the U.S. Supreme Court which found that the question of whether evidence of discrimination by other supervisors is relevant to Mendelsohn’s age claims depends on many factors, including “how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Supreme Court concluded that such evidence is “neither per se admissible nor per se inadmissible.” The Supreme Court remanded the case to the District Court to clarify its ruling. The Supreme Court’s decision leaves the door open for plaintiffs in all types of discrimination claims to attempt to bring in evidence of discriminatory conduct against employees who are not part of the lawsuit. This ruling leaves much discretion to the trial court in making the determination of the admissibility of “me too” evidence.
Often in discrimination cases, employees attempt to introduce evidence of alleged discriminatory acts against other employees to bolster their claims. The Supreme Court in Sprint v. Mendelsohn, declined to make a determinative ruling on whether or not this type of evidence is admissible. Mendelsohn was terminated by Sprint as part of an company-wide reduction in force and then sued Sprint for age discrimination. In support of her claim, Mendelsohn sought to introduce the testimony of five other former Sprint employees who claimed that their supervisors had discriminated against them because of their age. None of the five employees worked in the same group as Mendelsohn or under the same supervisors. The District Court ruled that the evidence was not admissible because the five employees were not similarly situated to the plaintiff. The Tenth Circuit found that the District Court abused its discretion. The case was appealed to the U.S. Supreme Court which found that the question of whether evidence of discrimination by other supervisors is relevant to Mendelsohn’s age claims depends on many factors, including “how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” The Supreme Court concluded that such evidence is “neither per se admissible nor per se inadmissible.” The Supreme Court remanded the case to the District Court to clarify its ruling. The Supreme Court’s decision leaves the door open for plaintiffs in all types of discrimination claims to attempt to bring in evidence of discriminatory conduct against employees who are not part of the lawsuit. This ruling leaves much discretion to the trial court in making the determination of the admissibility of “me too” evidence.
Tuesday, October 21, 2008
Social Network Indiscretions
By: Beth A. Slagle, Esquire bas@muslaw.com
A new study of Internet social networks finds that there are 120 million profiles on the four most popular social networks.
While many are high school and college students, there are millions of employees, and offensive material or images in these profiles may hurt their employers.
It's more than the embarrassing or graphic photograph.
For example, if an employee makes discriminatory comments about another employee or posts confidential information about the company in a social network profile, the employer could be held liable for the actions, particularly if the employee posts during work hours or through the employer's computer system.
An employer's power to discipline or terminate employees for their private Internet postings is not absolute.
One way that some companies attempt to balance their legitimate business interest against an employee's right to free speech is to provide social networking guidelines in a technology policy.
The guidelines should include:
In disciplining an employee for something on a social network profiles, employers should proceed with care to make sure they are not retaliating against a whistle-blower or punishing an employee for engaging in protected activities such as union organizing.
A new study of Internet social networks finds that there are 120 million profiles on the four most popular social networks.
While many are high school and college students, there are millions of employees, and offensive material or images in these profiles may hurt their employers.
It's more than the embarrassing or graphic photograph.
For example, if an employee makes discriminatory comments about another employee or posts confidential information about the company in a social network profile, the employer could be held liable for the actions, particularly if the employee posts during work hours or through the employer's computer system.
An employer's power to discipline or terminate employees for their private Internet postings is not absolute.
One way that some companies attempt to balance their legitimate business interest against an employee's right to free speech is to provide social networking guidelines in a technology policy.
The guidelines should include:
- A disclaimer of employer responsibility for private employee profiles.
- A warning that employees making personal comments about the employer's products or services or other employees in a profile (or blog) will be subject to disciplinary action.
- A warning not to use company equipment or networks to create or update a profile, except if it is part of company business.
- A specific statement that social networkers must abide by company policies on confidential information and trade secrets.
In disciplining an employee for something on a social network profiles, employers should proceed with care to make sure they are not retaliating against a whistle-blower or punishing an employee for engaging in protected activities such as union organizing.
Monday, October 13, 2008
Prevent 401(k) Lawsuits
By: Joseph A. Vater, Jr., Esquire jav@muslaw.com
When the stock market goes down, so do 401(k) assets.
The result: employees look for someone to blame, and the fiduciaries of their 401(k) plan, which often include the employer, are the target.
While there is no way to make a company's 401(k) plan lawsuit-proof, the United States Department of Labor recommends some basic steps that companies can take to avoid liability when their employee's 401(k) assets go south:
When the stock market goes down, so do 401(k) assets.
The result: employees look for someone to blame, and the fiduciaries of their 401(k) plan, which often include the employer, are the target.
While there is no way to make a company's 401(k) plan lawsuit-proof, the United States Department of Labor recommends some basic steps that companies can take to avoid liability when their employee's 401(k) assets go south:
- Review or have a consultant review fund performances periodically and consider replacing underperforming funds.
- Offer an investment education program for employees who participate in the 401(k) plan, but make sure you follow the guidelines set forth in the Pension Protection Act so you don't inadvertently assume fiduciary responsibility for the information provided by the consultants.
- Disclose all direct and indirect fees associated with the 401(k) plan and all investment choices. Most 401(k) plans do not disclose all fees.
- Enable employees to select mutual funds from more than one fund family and make sure low-fee funds are included in the choices.
Friday, October 10, 2008
Executive Education Seminar: Privacy in the Workplace
November 13, 2008 at the Rivers Club - Pittsburgh, PA
Presented by: Douglas M. Hottle and Quinn A. Johnson
Seminar Description: Privacy in the Workplace: What Employers Need to Know About Getting, Using and Protecting Employee Information
Nearly three-quarters of major U.S. firms report that they record and review their employees’ communications and activities on the job, including their phone calls, e-mail, Internet connections and computer files. While employers have a legitimate business interest in tracking their employees’ workplace activities to protect safety, ensure productivity, and even to comply with anti-discrimination laws, employers need to avoid inappropriate and unreasonable invasions of employees’ privacy interests.
This seminar will help employers who find themselves asking:
Presented by: Douglas M. Hottle and Quinn A. Johnson
Seminar Description: Privacy in the Workplace: What Employers Need to Know About Getting, Using and Protecting Employee Information
Nearly three-quarters of major U.S. firms report that they record and review their employees’ communications and activities on the job, including their phone calls, e-mail, Internet connections and computer files. While employers have a legitimate business interest in tracking their employees’ workplace activities to protect safety, ensure productivity, and even to comply with anti-discrimination laws, employers need to avoid inappropriate and unreasonable invasions of employees’ privacy interests.
This seminar will help employers who find themselves asking:
- Can I monitor my employee’s cell phone conversations throughout the work day?
- Can I search an employee’s purse or personal belongings?
- Can I access their personal E-mail account during work hours?
- Can I censor my employee’s blog?
- Can I monitor an employee’s location throughout the day?
Congratulations to our “2009 Best Lawyers in America”
This year fourteen Meyer, Unkovic & Scott LLP attorneys have been selected for inclusion in The Best Lawyers in America, 2009 edition, published by Woodward/White. Inclusion is widely considered a significant honor because lawyers are selected on the basis of peer evaluations.
Those named include Kevin F. McKeegan, the firm’s Managing Partner, Robert Mauro, W. Grant Scott and Richard G. Kotarba all for their practice of real estate law. Kevin F. McKeegan was also recognized for his work in land use & zoning law. Richard G. Kotarba and James R. Mall were both selected for their work in construction law. Also named were Dennis Unkovic, for his international trade and finance law practice, Joel Pfeffer for his work in immigration law, Joel M. Helmrich for his practice in creditor-debtor rights, Thomas A. Berret for his work in personal injury litigation, Laura A. Candris for her labor and employment law practice, John W. Powell for his work in trusts and estates, David G. Oberdick for his work in commercial litigation and intellectual property law, Patricia L. Dodge and Russell J. Ober for their work in commercial litigation. Patricia L. Dodge was also recognized for her product liability litigation practice.
Those named include Kevin F. McKeegan, the firm’s Managing Partner, Robert Mauro, W. Grant Scott and Richard G. Kotarba all for their practice of real estate law. Kevin F. McKeegan was also recognized for his work in land use & zoning law. Richard G. Kotarba and James R. Mall were both selected for their work in construction law. Also named were Dennis Unkovic, for his international trade and finance law practice, Joel Pfeffer for his work in immigration law, Joel M. Helmrich for his practice in creditor-debtor rights, Thomas A. Berret for his work in personal injury litigation, Laura A. Candris for her labor and employment law practice, John W. Powell for his work in trusts and estates, David G. Oberdick for his work in commercial litigation and intellectual property law, Patricia L. Dodge and Russell J. Ober for their work in commercial litigation. Patricia L. Dodge was also recognized for her product liability litigation practice.
Wednesday, September 10, 2008
Independent Contractor Relationship - Seminar
Please join us on Monday, October 6, 2008 from 11:45 am - 1:30 pm for a seminar on Independent Contractor Relationships: Independent Contractors versus Employees.
Please RSVP to rsvp@muslaw.com by October 1st if you would like to attend.
Additional Seminar Information:
In today’s workplace, there is an ever-increasing trend for employers to consider filling vacancies with independent contractors as opposed to committing to a full time employee. A maze of regulations exist that may or may not make this question easy to answer.
During this roundtable our attorneys will help you answer your questions about independent contractor relationships and discuss the advantages and disadvantages to these relationships. This important roundtable will also outline the pros and cons of completing your workforce with employees and independent contractors as well as the unforeseen circumstances involving benefits for improperly classifying independent contractors.
Please RSVP to rsvp@muslaw.com by October 1st if you would like to attend.
Additional Seminar Information:
In today’s workplace, there is an ever-increasing trend for employers to consider filling vacancies with independent contractors as opposed to committing to a full time employee. A maze of regulations exist that may or may not make this question easy to answer.
During this roundtable our attorneys will help you answer your questions about independent contractor relationships and discuss the advantages and disadvantages to these relationships. This important roundtable will also outline the pros and cons of completing your workforce with employees and independent contractors as well as the unforeseen circumstances involving benefits for improperly classifying independent contractors.
Religious Discrimination Complaints Up
By: Elaina Smiley, Esquire es@muslaw.com
The number of complaints to the Equal Employment Opportunity Commission about workplace discrimination against employees because of their religion has doubled in the last 15 years. Filings complaining about religious discrimination jumped to a record 2,880 last year. On July 22, 2008, the EEOC issued a new compliance manual on religious discrimination, which offers a comprehensive review of the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also offers a “Best Practices” book to assist employers.
The Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing or conditions of employment. Employers cannot treat employees of one faith more or less fairly than other employees, nor can they force employees to participate in or not participate in any religious activity.
One of the most difficult issues for employees is the concept of “reasonable accommodation.” Employers must reasonably accommodate the sincerely held religious practices of employees unless to do so would proved to be a hardship to the employer. For example, in a recent Pennsylvania lawsuit, a federal court found that asking an employee to find her own replacement for Sunday work may not be a reasonable accommodation if the reason the employee needed to switch shifts is religious.
Employers should make sure that their anti-discrimination policies specifically define and prohibit religious discrimination and harassment and provide an effective procedure for reporting, investigating and correcting such acts. Employers should also establish policies in dealing with religious accommodation requests and train supervisors and managers on how to best handle religious issues in the workplace.
The number of complaints to the Equal Employment Opportunity Commission about workplace discrimination against employees because of their religion has doubled in the last 15 years. Filings complaining about religious discrimination jumped to a record 2,880 last year. On July 22, 2008, the EEOC issued a new compliance manual on religious discrimination, which offers a comprehensive review of the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also offers a “Best Practices” book to assist employers.
The Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing or conditions of employment. Employers cannot treat employees of one faith more or less fairly than other employees, nor can they force employees to participate in or not participate in any religious activity.
One of the most difficult issues for employees is the concept of “reasonable accommodation.” Employers must reasonably accommodate the sincerely held religious practices of employees unless to do so would proved to be a hardship to the employer. For example, in a recent Pennsylvania lawsuit, a federal court found that asking an employee to find her own replacement for Sunday work may not be a reasonable accommodation if the reason the employee needed to switch shifts is religious.
Employers should make sure that their anti-discrimination policies specifically define and prohibit religious discrimination and harassment and provide an effective procedure for reporting, investigating and correcting such acts. Employers should also establish policies in dealing with religious accommodation requests and train supervisors and managers on how to best handle religious issues in the workplace.
Tuesday, August 26, 2008
Computer Sabotage
By: Jane Lewis Volk, Esquire jlv@muslaw.com
Most employers may not know that courts began applying the Computer Fraud and Abuse Act to civil cases a few years ago.
What that means is that employers can now collect damages in court when employees cause damage to a computer system.
Employers typically file civil lawsuits under the act when employees or former employees access computer data to gain a competitive edge at their new place of business.
But the law also enables employers to get restitution for a wide scope of other damages, including for destruction of proprietary information and for knowingly downloading a program that damages computers or computer networks.
To recover damages the employer may sue in federal court, and the damages must be at least $5,000.
Possible damages include:
Most employers may not know that courts began applying the Computer Fraud and Abuse Act to civil cases a few years ago.
What that means is that employers can now collect damages in court when employees cause damage to a computer system.
Employers typically file civil lawsuits under the act when employees or former employees access computer data to gain a competitive edge at their new place of business.
But the law also enables employers to get restitution for a wide scope of other damages, including for destruction of proprietary information and for knowingly downloading a program that damages computers or computer networks.
To recover damages the employer may sue in federal court, and the damages must be at least $5,000.
Possible damages include:
- Time and resources spent to hire a computer expert
- Cost of hiring the expert to determine and remedy the damage
- Cost of hiring the expert to create a method to prevent future damage
- Loss of confidential or trade secret information.
Employers cannot include loss of revenue and good will or interference with customer relations in its calculation of damages.
Friday, August 15, 2008
GINA May Prove Challenging to Employers
By: Elaina Smiley, Esquire es@muslaw.com
A new law that prevents employers from making employment decisions based on genetic information will place another burden of regulatory compliance on employers.
The Genetic Information Nondiscrimination Act of 2008 (GINA), recently signed into law by President Bush, makes it illegal for employers, unions and insurance providers to discriminate on the basis of an individual’s genetic information and prohibits disclosure of such information except in very limited circumstances.
Called by some “the first major civil rights act of the 21st,” GINA prohibits employers from using genetic information when making decisions regarding hiring, firing, compensation, promotions and other terms and conditions of employment.
GINA prohibits employers from requesting genetic information from employees and their families. GINA provides some limited exceptions, such as information employers obtain under the Family Medical Leave Act. However, GINA does not address genetic information that employers may inadvertently receive under other employment laws. For instance, an employer engaging in discussions with an employee who requests an accommodation under the American with Disabilities Act could acquire genetic information covered by GINA.
The U.S. Department of Labor and the Equal Employment Opportunity Commission are in the process of developing the regulations that will tell employers what they must do to comply with GINA. The GINA provisions related to employers do not go into effect until November 2009.
A new law that prevents employers from making employment decisions based on genetic information will place another burden of regulatory compliance on employers.
The Genetic Information Nondiscrimination Act of 2008 (GINA), recently signed into law by President Bush, makes it illegal for employers, unions and insurance providers to discriminate on the basis of an individual’s genetic information and prohibits disclosure of such information except in very limited circumstances.
Called by some “the first major civil rights act of the 21st,” GINA prohibits employers from using genetic information when making decisions regarding hiring, firing, compensation, promotions and other terms and conditions of employment.
GINA prohibits employers from requesting genetic information from employees and their families. GINA provides some limited exceptions, such as information employers obtain under the Family Medical Leave Act. However, GINA does not address genetic information that employers may inadvertently receive under other employment laws. For instance, an employer engaging in discussions with an employee who requests an accommodation under the American with Disabilities Act could acquire genetic information covered by GINA.
The U.S. Department of Labor and the Equal Employment Opportunity Commission are in the process of developing the regulations that will tell employers what they must do to comply with GINA. The GINA provisions related to employers do not go into effect until November 2009.
Wednesday, July 23, 2008
More Employees Sue Over Pay
By: Elaina Smiley, Esquire es@muslaw.com
Lawsuits related to wage disputes have increased by 77% over the past four years, according to the National Employment Lawyers’ Association. (NELA), an organization of attorneys who help employees file lawsuits and other actions against employers.
It was about four years ago that the U.S. Department of Labor (DOL) toughened the overtime rules under the Fair Labor Standards Act (FLSA) and since that time, wage-related FLSA lawsuits have ballooned. Besides the dramatic increase in lawsuits, NELA found that DOL has amplified its wage enforcement actions by 11%.
Some common causes for wage-related lawsuits have been:
Lawsuits related to wage disputes have increased by 77% over the past four years, according to the National Employment Lawyers’ Association. (NELA), an organization of attorneys who help employees file lawsuits and other actions against employers.
It was about four years ago that the U.S. Department of Labor (DOL) toughened the overtime rules under the Fair Labor Standards Act (FLSA) and since that time, wage-related FLSA lawsuits have ballooned. Besides the dramatic increase in lawsuits, NELA found that DOL has amplified its wage enforcement actions by 11%.
Some common causes for wage-related lawsuits have been:
- Unpaid overtime when employers misclassify employees. Employers often incorrectly assume that paying employees a salary means they do not need to pay them overtime pay.
- Making employees use their own money to buy uniforms or equipment or for other company purposes.
- Not accurately recording time worked or requiring employees to work off the clock.
- Not paying employees for putting on (“donning”) and taking off (“doffing”) safety equipment.
The best thing that employers can do to avoid these costly lawsuits is to closely analyze how employees are being paid, confirm that those employees classified as exempt from overtime pay are actually performing job duties that qualify them as exempt under the FLSA. Employers should also conduct regular audits of their policies and procedures to make sure that they are following all FLSA regulations and ensure that all supervisors and managers routinely receive training in what is and is not allowed under FLSA.
Wednesday, March 19, 2008
Big Change in Employment Eligibility Verification
By: Joel Pfeffer, Esquire jp@muslaw.com
The U.S. Citizenship and Immigration Services has just made a change that affects every employer in western Pennsylvania and across the country.
In early November, the immigration service changed the list of documents that it will allow employers to accept as proof of legal residency for form I-9, which verifies employment eligibility. The change is noted on a brand new I-9 form. The new regulation removes five documents that were previously on the list as okay to accept as proof of identity and employment eligibility. The new form does add one document to the list of approved proofs of identity, the new form I-766, which is a card issued to aliens who are authorized to work temporarily in the United States. Other approved documents include an expired or unexpired U.S. passport and a permanent residence card, among others.
Every employer must have new employees fill our a I-9 form, and then keep it on file for three years after the employee starts or, if the employee leaves before three years is up, an additional year after employment ends. Failure to have completed I-9 forms on file can lead to stiff penalties.
The new form will become effective as soon as a notice is published in the Federal Register, but the immigration service wants employers to start using the new form and protocol right away.
The U.S. Citizenship and Immigration Services has just made a change that affects every employer in western Pennsylvania and across the country.
In early November, the immigration service changed the list of documents that it will allow employers to accept as proof of legal residency for form I-9, which verifies employment eligibility. The change is noted on a brand new I-9 form. The new regulation removes five documents that were previously on the list as okay to accept as proof of identity and employment eligibility. The new form does add one document to the list of approved proofs of identity, the new form I-766, which is a card issued to aliens who are authorized to work temporarily in the United States. Other approved documents include an expired or unexpired U.S. passport and a permanent residence card, among others.
Every employer must have new employees fill our a I-9 form, and then keep it on file for three years after the employee starts or, if the employee leaves before three years is up, an additional year after employment ends. Failure to have completed I-9 forms on file can lead to stiff penalties.
The new form will become effective as soon as a notice is published in the Federal Register, but the immigration service wants employers to start using the new form and protocol right away.
Monday, February 18, 2008
Time Off to Care for Vets
By: Antoinette Oliver, Esquire aco@muslaw.com
When President Bush signed the National Defense Authorization Act (NDAA) early this year, it marked the first ever expansion of the Family and Medical Leave Act (FMLA).
NDAA says that employees who need time off to care for a recovering service member are eligible for up to 26 weeks within a single 12-month period, more than twice as long as the standard 12 weeks of FMLA leave.
The new law defines recovering service member as a member of the armed forces who falls ill or is injured during active duty, and as a result is unable perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.
An employee also can get leave because of “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Employees who take leave for this “qualifying exigency” reason will be entitled to 12 weeks of FMLA leave. The Department of Labor has not yet announced regulations defining “qualifying exigency”, but employers must act in good faith to comply with the provision until the regulations are released.
The amendments are effective immediately, so employers should update their handbooks and company procedures to comply.
When President Bush signed the National Defense Authorization Act (NDAA) early this year, it marked the first ever expansion of the Family and Medical Leave Act (FMLA).
NDAA says that employees who need time off to care for a recovering service member are eligible for up to 26 weeks within a single 12-month period, more than twice as long as the standard 12 weeks of FMLA leave.
The new law defines recovering service member as a member of the armed forces who falls ill or is injured during active duty, and as a result is unable perform his or her duties. To qualify for leave, the employee must be the spouse, parent, child or nearest blood relative of the injured service member.
An employee also can get leave because of “any qualifying exigency” that arises out of a family member’s service in the Armed Forces or because a family member is called to duty. A family member under this provision is limited to spouse, parent or child. Employees who take leave for this “qualifying exigency” reason will be entitled to 12 weeks of FMLA leave. The Department of Labor has not yet announced regulations defining “qualifying exigency”, but employers must act in good faith to comply with the provision until the regulations are released.
The amendments are effective immediately, so employers should update their handbooks and company procedures to comply.
Thursday, January 31, 2008
10 Ways to Get an Employer Sued
Join attorney Jane Lewis Volk and paralegal Cherie Mezynski on February 12, 2008 as they present "10 Ways to Get an Employer Sued" at the Pennsylvania Association of Housing and Redevelopment Agencies Legislative Conference. The conference will be held in Harrisburg, Pennsylvania at the Hilton & Towers February 10-13, 2008. To register for the conference please contact the PAHRA at 412-247-0699.
Thursday, January 17, 2008
Individual Liability: Under Employment Laws
Please join us on Thursday, February 21, 2008 for our Executive Education Series Roundtable.
Joseph Vater, Jane Lewis Volk and Quinn Johnson of our Employment Law & Employee Benefits Group will lead this interactive roundtable discussion of individual liability under the Pension Protection Act of 2006, Title VII of the Civil Rights Protection Act, Fair Labor Standards Act, Pennsylvania Wage Payment & Collection Law, Pennsylvania Human Relations Act and Family and Medical Leave Act.
Contact Beth Ansell at eaa@muslaw.com or 412.456.2552 for time and location.
Joseph Vater, Jane Lewis Volk and Quinn Johnson of our Employment Law & Employee Benefits Group will lead this interactive roundtable discussion of individual liability under the Pension Protection Act of 2006, Title VII of the Civil Rights Protection Act, Fair Labor Standards Act, Pennsylvania Wage Payment & Collection Law, Pennsylvania Human Relations Act and Family and Medical Leave Act.
Contact Beth Ansell at eaa@muslaw.com or 412.456.2552 for time and location.
Wednesday, January 16, 2008
Recent Decision Concerning Health Care Insurance Coverage for Medicare-eligible Retirees
By: Jane Lewis Volk, Esquire jlv@muslaw.com
Joseph A. Vater, Esquire jav@muslaw.com
In February 2007, the Third Circuit Court of Appeals issued a decision which affects an employer’s options with respect to the providing of health care coverage for retirees. In AARP v. EEOC, the Court upheld an EEOC regulation that permits an employer to coordinate retirement benefits with Medicare (or comparable state plan) or even eliminate such coverage when government coverage becomes available. The AARP argued that the regulation violated the Age Discrimination in Employment Act (“ADEA”) by making benefit distinctions on the basis of age. The Court ruled that this regulation was reasonable and therefore within the EEOC’s rule-making authority. The regulation was promulgated in reaction to the reality that employers were reducing benefits available to all, rather than bearing the expense of maintaining pre-Medicare benefits for retirees. The EEOC argued that employers are more likely to continue offering retiree benefits to employees under age 65 if they are able to reduce or eliminate benefits for Medicare-eligible retirees. The Court recognized “with some dismay” that the new regulation will allow employers to reduce health benefits to retirees over the age of 65, but saw it as a reasonable exemption from the ADEA which will ultimately “likely benefit all retirees.”
This regulation and the decision upholding it represent a reversal of a 2000 Third Circuit decision, Erie County Retirees Ass’n v. County of Erie.
For more information about the impact of this decision on your health care benefits plan, contact Jane Lewis Volk at jlv@muslaw.com or 412-456-2840 and Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
Joseph A. Vater, Esquire jav@muslaw.com
In February 2007, the Third Circuit Court of Appeals issued a decision which affects an employer’s options with respect to the providing of health care coverage for retirees. In AARP v. EEOC, the Court upheld an EEOC regulation that permits an employer to coordinate retirement benefits with Medicare (or comparable state plan) or even eliminate such coverage when government coverage becomes available. The AARP argued that the regulation violated the Age Discrimination in Employment Act (“ADEA”) by making benefit distinctions on the basis of age. The Court ruled that this regulation was reasonable and therefore within the EEOC’s rule-making authority. The regulation was promulgated in reaction to the reality that employers were reducing benefits available to all, rather than bearing the expense of maintaining pre-Medicare benefits for retirees. The EEOC argued that employers are more likely to continue offering retiree benefits to employees under age 65 if they are able to reduce or eliminate benefits for Medicare-eligible retirees. The Court recognized “with some dismay” that the new regulation will allow employers to reduce health benefits to retirees over the age of 65, but saw it as a reasonable exemption from the ADEA which will ultimately “likely benefit all retirees.”
This regulation and the decision upholding it represent a reversal of a 2000 Third Circuit decision, Erie County Retirees Ass’n v. County of Erie.
For more information about the impact of this decision on your health care benefits plan, contact Jane Lewis Volk at jlv@muslaw.com or 412-456-2840 and Joseph A. Vater, Jr. at jav@muslaw.com or 412-456-2827.
Pennsylvania Supreme Court Addresses Unwanted Sexual Advances in a Workers’ Compensation Case
By: Benjamin D. Kerr, Esquire bdk@muslaw.com
Jane Lewis Volk, Esquire jlv@muslaw.com
Under Pennsylvania Workers’ Compensation law, if a claimant is to obtain benefits for a “psychic” injury, he must demonstrate that his injury resulted from abnormal working conditions, not for his subjective reaction to normal working conditions. In January 2007, the Pennsylvania Supreme Court held in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board that unwanted sexual advances may constitute abnormal working conditions. The Court held that a western Pennsylvania coal miner who was exposed to unwelcome sexual advances by a same-sex supervisor was entitled to workers’ compensation benefits for psychic harm.
The Supreme Court held that there was no support in the record for the finding that this challenged conduct was “normal in the mining industry.” This decision of the Pennsylvania Supreme Court is significant for, among other principals, reaffirming the need for firm enforcement of an employer’s sexual harassment policy. Workers’ compensation claims may result from failure to prohibit effectively inappropriate sexual activity in the workplace.
For more information about this case or other employment law issues, contact Benjamin D. Kerr at bdk@muslaw.com or 412-456-2589 and Jane Lewis Volk at jlv@muslaw.com or 412-456-2840.
Jane Lewis Volk, Esquire jlv@muslaw.com
Under Pennsylvania Workers’ Compensation law, if a claimant is to obtain benefits for a “psychic” injury, he must demonstrate that his injury resulted from abnormal working conditions, not for his subjective reaction to normal working conditions. In January 2007, the Pennsylvania Supreme Court held in RAG (Cyprus) Emerald Resources v. Workers’ Compensation Appeal Board that unwanted sexual advances may constitute abnormal working conditions. The Court held that a western Pennsylvania coal miner who was exposed to unwelcome sexual advances by a same-sex supervisor was entitled to workers’ compensation benefits for psychic harm.
The Supreme Court held that there was no support in the record for the finding that this challenged conduct was “normal in the mining industry.” This decision of the Pennsylvania Supreme Court is significant for, among other principals, reaffirming the need for firm enforcement of an employer’s sexual harassment policy. Workers’ compensation claims may result from failure to prohibit effectively inappropriate sexual activity in the workplace.
For more information about this case or other employment law issues, contact Benjamin D. Kerr at bdk@muslaw.com or 412-456-2589 and Jane Lewis Volk at jlv@muslaw.com or 412-456-2840.
Employment Law Decisions from the Supreme Court of the United States
By: Laura A. Candris, Esquire lac@muslaw.com
Ledbetter v. The Goodyear Tire & Rubber Co., Inc. is one of the most important employment decisions of the U.S. Supreme Court in recent years. In Ledbetter, the Court ruled (5-4) that each decision about an employee’s pay is a “discrete act” and that any Title VII claim based on such a decision must be filed with the EEOC within the same short period (300 days in Pennsylvania, but 180 days in some other states) allowed for filing other Title VII claims. Importantly, the Court rejected Ledbetter’s arguments — and the rulings of a number of federal courts of appeals - that she and other claimants have 180 (or 300) days from any paycheck resulting from a pay-setting decision to file an EEOC charge, even if that decision was made years earlier.
During most of Ledbetter’s career at Goodyear, pay increases were granted or denied based on performance evaluations. Shortly before she retired, Ledbetter filed an EEOC charge alleging that years earlier, her supervisor gave her poor evaluations because of her sex and, consequently, she was paid significantly less than any of the men holding the same job. Thus, Ledbetter claimed intentional gender discrimination. Ledbetter did not claim that Goodyear adopted its performance-based pay system in order to discriminate on the basis of sex or that it applied the system to her discriminatorily during the period allowed for filing EEOC charges or that Goodyear failed to communicate its allegedly discriminatory pay decisions to her at the time.
In its May 29, 2007 opinion, the Court made clear that old acts of intentional discrimination cannot be the basis for new claims under Title VII, even when the effects of such discrimination continue. However, the Court also pointed out that if an employer uses a discriminatory pay structure, then each paycheck based on that structure violates Title VII and triggers a new EEOC filing period. Additionally, the Court observed that the Equal Pay Act (“EPA”) –- which has a much longer claim-filing period - does not require proof that any pay discrimination was intentional or require a filing with the EEOC. Justice Alito, who wrote the majority opinion, observed “[i]f Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles she now confronts.” Justice Ginsberg, writing for the dissenting justices, solicited Congress to overturn the decision legislatively.
While the Ledbetter decision offers employers valuable protection from stale claims of intentional discrimination under Title VII, its benefits are limited because it does not affect other types of Title VII claims or claims under other federal or state statutes, and it may be legislatively overturned. Consequently, employers should continue diligently to monitor the design and administration of their pay systems to prevent intentional and adverse impact discrimination and reduce the incidence of claims.
Other decisions of interest.
In Long Island Care at Home, LTD v. Coke, the Supreme Court upheld a Department of Labor regulation which provides that persons employed to work in private homes providing companionship services for the aged or infirm are exempt from the minimum wage and overtime pay provisions of the federal Fair Labor Standards Act (“FLSA”), even when the employer who pays them is an entity, not the family or household using the services. This ruling means that home healthcare agencies and entity employers of workers providing these services need not comply with the FLSA with respect to workers. Employers must still comply with any state or local laws requiring overtime pay or setting a minimum wage for such workers.
In Davenport v. Washington Education Association the Court ruled that, while unions representing public workers may assess fees against nonmember workers covered by collective bargaining, states may require such unions to obtain authorization from those workers before using their fee money for election purposes.
In Beck v. PACE International Union, the Court reiterated its prior decisions that terminating a single-employer pension plan is a decision of the employer and not subject to the fiduciary obligations under the Employee Retirement Income Security Act (“ERISA”). The Court also ruled that merger with a multi-employer pension plan is not a permitted method of terminating a single-employer defined benefit pension plan. As a result, an employer which is considering terminating a defined benefit pension plan is not required by ERISA to consider a proposal by the union to merge the single employer plan with a multi-employer plan.
For more information about these cases and their impact, contact Laura A. Candris at lac@muslaw.com or 412-456-2891.
Ledbetter v. The Goodyear Tire & Rubber Co., Inc. is one of the most important employment decisions of the U.S. Supreme Court in recent years. In Ledbetter, the Court ruled (5-4) that each decision about an employee’s pay is a “discrete act” and that any Title VII claim based on such a decision must be filed with the EEOC within the same short period (300 days in Pennsylvania, but 180 days in some other states) allowed for filing other Title VII claims. Importantly, the Court rejected Ledbetter’s arguments — and the rulings of a number of federal courts of appeals - that she and other claimants have 180 (or 300) days from any paycheck resulting from a pay-setting decision to file an EEOC charge, even if that decision was made years earlier.
During most of Ledbetter’s career at Goodyear, pay increases were granted or denied based on performance evaluations. Shortly before she retired, Ledbetter filed an EEOC charge alleging that years earlier, her supervisor gave her poor evaluations because of her sex and, consequently, she was paid significantly less than any of the men holding the same job. Thus, Ledbetter claimed intentional gender discrimination. Ledbetter did not claim that Goodyear adopted its performance-based pay system in order to discriminate on the basis of sex or that it applied the system to her discriminatorily during the period allowed for filing EEOC charges or that Goodyear failed to communicate its allegedly discriminatory pay decisions to her at the time.
In its May 29, 2007 opinion, the Court made clear that old acts of intentional discrimination cannot be the basis for new claims under Title VII, even when the effects of such discrimination continue. However, the Court also pointed out that if an employer uses a discriminatory pay structure, then each paycheck based on that structure violates Title VII and triggers a new EEOC filing period. Additionally, the Court observed that the Equal Pay Act (“EPA”) –- which has a much longer claim-filing period - does not require proof that any pay discrimination was intentional or require a filing with the EEOC. Justice Alito, who wrote the majority opinion, observed “[i]f Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles she now confronts.” Justice Ginsberg, writing for the dissenting justices, solicited Congress to overturn the decision legislatively.
While the Ledbetter decision offers employers valuable protection from stale claims of intentional discrimination under Title VII, its benefits are limited because it does not affect other types of Title VII claims or claims under other federal or state statutes, and it may be legislatively overturned. Consequently, employers should continue diligently to monitor the design and administration of their pay systems to prevent intentional and adverse impact discrimination and reduce the incidence of claims.
Other decisions of interest.
In Long Island Care at Home, LTD v. Coke, the Supreme Court upheld a Department of Labor regulation which provides that persons employed to work in private homes providing companionship services for the aged or infirm are exempt from the minimum wage and overtime pay provisions of the federal Fair Labor Standards Act (“FLSA”), even when the employer who pays them is an entity, not the family or household using the services. This ruling means that home healthcare agencies and entity employers of workers providing these services need not comply with the FLSA with respect to workers. Employers must still comply with any state or local laws requiring overtime pay or setting a minimum wage for such workers.
In Davenport v. Washington Education Association the Court ruled that, while unions representing public workers may assess fees against nonmember workers covered by collective bargaining, states may require such unions to obtain authorization from those workers before using their fee money for election purposes.
In Beck v. PACE International Union, the Court reiterated its prior decisions that terminating a single-employer pension plan is a decision of the employer and not subject to the fiduciary obligations under the Employee Retirement Income Security Act (“ERISA”). The Court also ruled that merger with a multi-employer pension plan is not a permitted method of terminating a single-employer defined benefit pension plan. As a result, an employer which is considering terminating a defined benefit pension plan is not required by ERISA to consider a proposal by the union to merge the single employer plan with a multi-employer plan.
For more information about these cases and their impact, contact Laura A. Candris at lac@muslaw.com or 412-456-2891.
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