Pennsylvania Employer Alert: Ogletree Deakins Examines Latest Legal Trends

Pennsylvania legislators and judges continue to present new challenges for HR and employers. Alexander Nemiroff, a shareholder in the Philadelphia office of the international labor and employment law firm, Ogletree Deakins, shared his legal and professional insights with XpertHR regarding recent changes and proposed changes affecting Pennsylvania employers.

What is the biggest challenge facing HR in Pennsylvania today?

Employers in Pennsylvania must comply with hundreds of federal and state employment laws and local employment ordinances. Every year the number of employment laws and regulations increases. Small employers struggle just to keep up with new developments and are often sued by employees because they are unaware of the law. Large employers may have additional resources and more in-house knowledge, but with numerous employees to contend with, they struggle with developing procedures and training their employees and supervisors about the many scenarios that arise in the employment context.

Have there been any notable new Pennsylvania laws or high court rulings in the last nine months that will have a big impact on the workplace?

On June 26, 2013, the United States Supreme Court decided in United States v. Windsor that the portion of the Defense of Marriage Act (DOMA) that established the federal definition of marriage as a legal union only between one man and one woman was unconstitutional. The decision had immediate tax and employee benefit plan implications for Pennsylvania employers.

The Supreme Court's decision also paved the way for new legislation as well. For example, the Family and Medical Leave Inclusion Act (FMLIA) is currently pending in Congress. It would expand the Family and Medical Leave Act (FMLA) to permit an employee to take up to 12 weeks of unpaid leave from work, if his or her domestic partner or same-sex spouse has a serious health condition.

In addition, the Employment Non-Discrimination Act (ENDA) has been reintroduced in Congress. It would provide additional protections against workplace discrimination on the basis of sexual orientation or gender identity. The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The ENDA prohibits employers from using an individual's sexual orientation or gender identity as the basis for employment decisions.

Locally, the Philadelphia City Council passed a bill amending the Philadelphia Code to foster equal treatment of individuals regardless of gender identity or sexual orientation by providing a definition of "Life Partnership" and "Life Partner." This bill provides a tax credit incentive to employers that offer employee health plans including same-sex partners. It also requires employers to allow employees to dress consistently with their gender identity.

Are there any bills and/or proposed rules currently pending in Pennsylvania (or in Congress) that are likely to pass and that would have a big effect on HR?

One of the major trends in proposed legislation both nationally and locally are bills requiring employers to provide paid sick leave to their employees. Recently, a paid leave bill dubbed the Family and Medical Insurance Leave Act (FMILA) was introduced in Congress which provides an insurance plan to provide paid family and sick leave to employees. The FMILA would provide workers with up to 12 weeks of partial income when they take time off for their own serious health condition, including pregnancy and childbirth recovery or to care for a family member with a serious health condition. Workers would be eligible to collect benefits equal to 66 percent of their typical monthly wages up to a capped monthly amount. The FMILA bill is modeled on state programs already in existence in California and New Jersey.

City of Philadelphia Mayor Michael A. Nutter vetoed a bill that would require most large employers in the City to provide their employees with paid sick leave. However, Philadelphia's 21st Century Minimum Wage and Benefits Ordinance (enacted on July 1, 2012) already requires certain employers to provide their employees with paid sick leave (i.e., the amount of paid sick leave varies depending on the employer's size). The ordinance applies to:

• For-profit service contractors and subcontractors with annual gross receipts in excess of $10,000 over a 12-month period;
• Nonprofit service contractors and subcontractors on contracts with the City in excess of $100,000 over a 12-month period;
• Recipients or subcontractors of city leases, concessions or franchises that employ more than 25 employees;
• City financial aid recipients; and
• Employees of the City of Philadelphia (including all agencies and departments).

While paid leave for all employees in Philadelphia may not come to fruition in the near future, the Philadelphia City Council has devised alternative ways to provide additional leave to employees. On October 13, 2013, three Philadelphia City Council members introduced legislation to further protect pregnant employees from workplace discrimination. This bill would make it unlawful for a Philadelphia employer to refuse to provide reasonable accommodations for pregnancy, childbirth or a related medical condition. The sponsors of the bill believe that federal and state laws do not go far enough to protect healthy pregnant employees who need accommodations to perform their duties. To learn more about pregnancy accommodation in the workplace, please register for a free webinar, scheduled for January 9, 2014 at 2pm (ET), hosted by XpertHR and presented by Ogletree Deakins.

There are also social media bills pending that would affect HR. Pennsylvania and the City of Philadelphia are poised to join a growing list of states and municipalities that have enacted so-called "Facebook laws," which prohibit employers from requiring prospective or current employees to disclose their social media usernames and passwords. In less than two years, social media in the employment context has garnered so much national attention that it sparked the passage of Facebook laws in five states in 2012 and in six states in 2013 (36 other states have proposed similar legislation).

To complicate matters, these laws vary from jurisdiction to jurisdiction, which creates a tangle of inconsistent protections. For example, Pennsylvania prohibits retaliation against employees who make "good faith" reports of alleged violations, whereas Philadelphia does not expressly provide this protection. These types of laws can also do more harm than good.

The proposed Facebook laws in Pennsylvania and the City of Philadelphia may also interfere with an employer's legal obligation to conduct thorough workplace investigations. Employers in Pennsylvania who receive complaints about workplace misconduct involving online communications may be hindered in their investigations and, therefore, may have problems appropriately correcting misconduct.

In the event that workplace investigations are hindered by Facebook laws, a conflict may arise between such laws and anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, which require thorough workplace investigations.

Are there any employment and labor enforcement trends to watch in Pennsylvania?

The Equal Employment Opportunity Commission (EEOC) and Pennsylvania Human Relations Commission (PHRC) have sharpened their focus on employer use of criminal background checks. The EEOC and PHRC believe that an employer's use of an individual's criminal history in making employment decisions may, in some instances, result in employment discrimination.

The EEOC's guidance recommends that employers reconsider their job application questions about criminal convictions and not deny employment to applicants based upon arrest records. The EEOC wants employers to avoid bright line policies and conduct an individualized assessment when an employee has a criminal background. The EEOC has brought class action lawsuits against employers that have systematically ignored its guidance.

In addition, heightened scrutiny of criminal background checks, in the form of new ban-the-box laws, has become a national trend. As of January 1, 2014, 10 states and more than 50 municipalities have now banned the box on employment applications that requests information about whether an applicant has been convicted of a crime. Attorneys who represent employees have picked up on this trend and are bringing more lawsuits against employers for failure to comply with these laws and regulations. Philadelphia was one of the first municipalities in the country to enact such a law - the Fair Criminal Record Screening Standards Ordinance. It prevents Philadelphia employers from asking job applicants about prior arrests and convictions on employment applications.

What is the number one mistake employers operating in Pennsylvania are making?

Many employers in Pennsylvania are reactive rather than proactive when it comes to complying with employment laws. Some are unable to keep abreast of new laws, others do not maintain appropriate policies and procedures, and many do not conduct appropriate training of their staff. If employers would obtain legal advice early enough, they often would be able to eliminate, or at least minimize, employment claims from being filed against them.

Ogletree Deakins is one of XpertHR's premier contributing author firms, having written over 20 articles. Mr. Nemiroff, regularly advises Ogletree clients and litigates in the areas of employment discrimination, workplace technology law, social media, non-competition and other related matters. Mr. Nemiroff can be reached at alexander.nemiroff@ogletreedeakins.com