Employee Handbooks - Work Rules - Employee Conduct: Pennsylvania
Federal law and guidance on this subject should be reviewed together with this section.
Author: Celia M. Joseph, Fisher Phillips
- Pennsylvania is an employment at-will state. See Nature of Employment.
- Pennsylvania's employment discrimination laws protect additional classes of individuals other than those included in federal law. See Discrimination.
- Pennsylvania employers must comply with unique notification requirements before monitoring employee telephone conversations. See Computers and Electronic Communications.
- Pennsylvania law requires employers to set a schedule for wage payment and provide that schedule to employees prior to the start of employment. See Wage Payment.
- Pennsylvania common law has few restrictions on drug testing; its statutory requirements pertain to unemployment compensation claims, and its motor carrier transportation law incorporates DOT drug and alcohol regulations. See Substance Abuse Testing.
- Pennsylvania law does not dictate when employers must provide employees with meal breaks or other breaks, with the exception of workers ages fourteen through seventeen years. See Meal and Other Breaks.
- Pennsylvania law prohibits smoking in any indoor workplace, with a few exceptions. See Smoking.
- Philadelphia has requirements pertaining to employee handbooks, work rules and employee conduct. See Local Requirements.
Nature of Employment
Employment in Pennsylvania has long been at-will. Absent a contract, as a general rule, employees are at will, and may be terminated at any time, for any reason or no reason. Unless expressly stated otherwise, a contract for employment is presumed to be at-will in nature. See Stumpp v. Stroudsburg Municipal Authority +540 Pa. 391 (1995); Employment At-Will: Pennsylvania.
Under Pennsylvania law, employee handbooks may be considered unilateral employee offers subject to the policy terms included in an employee handbook. See Bauer v. Pottsville Area Emergency Medical Services,+758 A.2d 1265 (Pa. Super. 2000). It is suggested that Pennsylvania employers in the handbooks contract disclaimers, the right to modify or eliminate any portion of the handbooks, employees are considered at-will employees whose employment may be terminated at any time, and that employees sign and date their acknowledgement of having read and understood the handbook.
The failure by Pennsylvania employers to follow their stated policies can be the basis for an employee's allegation that the employer's reason for discharge was a pretext for illegal discrimination. See White v. Community Care, Inc., +2008 U.S. Dist. LEXIS 108444 (W.D. Pa. 2008).
In addition to the characteristics protected by federal law, Pennsylvania law prohibits discrimination against any individual on the basis of additional characteristics:
- Possession of a diploma based on passing a general education development test;
- Willingness or refusal in a hospital or healthcare setting to participate in abortion or sterilization; or
- Due to the use of a guide or support animal because of the blindness, deafness or physical handicap of any individual or independent contractor.
Employers must provide equality of opportunity in apprenticeship and training programs by prohibiting discrimination based on race, color, religion, national origin or sex. The Apprenticeship and Training Act, +43 P.S. § 90.4.
Local requirements may also apply. See Local Requirements.
Computers and Electronic Communications
Pennsylvania law prohibits the interception, disclosure or use of any wire, electronic, or oral communication without consent of all participants. As such, employers should provide rules in their employee handbooks consistent with this law. Pennsylvania Wiretapping and Electronic Surveillance Control Act, +18 Pa.C.S. § 5701.
Intentionally or knowingly and without authorization giving or publishing a password, identifying code, personal identification number, or other confidential information about a computer, computer system and/or database, worldwide web site, or telecommunication device is a criminal offense. +18 Pa.C.S. § 7611.
Employers and prospective employers may not require applicants or employees to take a polygraph test or any type of mechanical or electrical lie detector test as a condition of employment. This law does not apply to employees or other individuals in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs. A violation of this law is a second-degree misdemeanor. +18 Pa.C.S. § 7321.
No minor under eighteen years of age shall be employed for more than six consecutive days in any one week, or more than forty-four hours in any one week, or more than eight hours in any one day. Child Labor Law, +43 P.S. § 41. See Meals and Other Work Breaks.
As mandated by the Department of Labor and Industry, every Pennsylvania business governed by the Child Labor Law must post the Pennsylvania Hours of Work for Minors Under Eighteen poster.
As mandated by the Pennsylvania Department of Labor and Industry, employers of minors must post the Pennsylvania Abstract of the Child Labor Act Hours Provisions poster.
Pennsylvania employers must pay all wages, other than fringe benefits and wage supplements, due to employees on regular paydays designated in advance by the employer.
- Overtime wages may be considered as wages earned and payable in the next succeeding pay period.
- All wages, other than fringe benefits and wage supplements, earned in any pay period shall be due and payable within the number of days after the expiration of the pay period as provided in a written employment contract, or, if not so specified, within the standard time lapse customary in the trade or within 15 days from the end of such pay period.
Pennsylvania's Wage Payment and Collection Law, +43 P.S. § 260.1.
Under this law, employers must notify their employees at the time of hiring of the time and place of payment and the rate of and the amount of any fringe benefits or wage supplements to be paid to the employee, a third party or a fund for the benefit of the employee and any change with respect to items prior to the time of the change.
Substance Abuse Testing
Pennsylvania has no law restricting an employer or prospective employer from conducting applicant or employee substance abuse testing; substance abuse testing for current employees is not limited to safety sensitive positions. If employers want to establish applicant and/or current employee substance abuse testing, employers should consider publishing, as part of the employee handbook, the rules or guidelines regarding such testing.
Pennsylvania law specifically incorporates into its regulations regarding substance abuse testing for transportation employees the provisions of the US Department of Transportation's drug and alcohol testing regulations. Pennsylvania's Public Utility Commission's Motor Carrier Transportation Regulations. +52 Pa. Code § 37.201 .
A former employee who has been terminated from employment is not eligible to receive unemployment compensation benefits if he or she was discharged or suspended due to a failure to submit to or pass a drug test performed under the employer's established policy for substance abuse testing. Pennsylvania's Unemployment Compensation Act, +43 P.S. § 802 (e) (1).
Pennsylvania requires employers to provide various types of leave. See Other Leaves: Pennsylvania.
Employees who fail to report to work due to road closures will be allowed unpaid leave, and will not be terminated or disciplined for failing to report for work if the absence is the result of emergency declared by the Governor. +43 P.S. § 1481.
Employers (except those in the retail industry with fewer than fifteen employees or those in the manufacturing industry with fewer than 40 employees) may not take adverse taken against employees because they serve as jurors.
Employers are not required to pay employees wages while they are on jury duty. Protection of Employment of Petit and Grand Jurors, +42 Pa.C.S. § 4563.
Employers may not take adverse action against employees who are volunteer firefighters, or volunteer fire police or ambulance service or rescue squad and, in the line of duty, have responded to a call prior to the time they were due to report to work resulting from his or her employment. +35 Pa.C.S. § 7421.
Employers have numerous requirements regarding chemical identification of substances on its premises, such as posting the identity of these substances, labeling of chemicals, and training employees. The Worker and Community Right-to-Know Act, +35 P.S. § 7301.
Where applicable,employers must follow Pennsylvania law regulating industrial homework.This law generally relates to the performance of industrial work conducted in homes, and prohibits certain industrial homework such as the manufacture or the performance of work pertaining to drugs, poisons, explosives and fireworks.
As mandated by the Department of Labor and Industry, public sector employers must post the Pennsylvania Worker and Community Right to Know Act poster.
Pennsylvania law prohibits smoking in most workplaces, with a few exceptions, such as in eating and/or drinking establishments where 20% or less of sales come from food and individuals under 18 years of age are not allowed, and retail tobacco shops. Local governments in Pennsylvania, with the exception of Philadelphia, are not allowed to regulate smoking more stringently than the Pennsylvania state law. Pennsylvania's Clean Indoor Air Act, +35 P.S. § 637.1.
As mandated by the Pennsylvania Department of Health, every employer subject to the Clean Indoor Air Act of 2008 must post the Pennsylvania No Smoking Sign poster.
Local requirements may also apply. See Local Requirements.
Meal and Other Work Breaks
Pennsylvania employers are not required to provide breaks for employees eighteen and over. However, if employers decide to provide breaks to employees, the break must be paid if it lasts less than 20 minutes. If employers provide meal breaks, such breaks do not have to be paid if the employee does not work during the meal period and the break lasts longer than 20 minutes. +34 Pa. Code § 231.1.
Pennsylvania employers must provide a 30-minute break to employees ages fourteen through seventeen who work five or more consecutive hours. Child Labor Law, Child Labor Law, +43 P.S. § 46.
Philadelphia Domestic Violence Leave
Employers with one or more employees who do business in Philadelphia are required by the Entitlement To Leave Due To Domestic Or Sexual Violence law to provide unpaid leave for an employee who is a victim of domestic or sexual violence (including stalking) or has a family or household member who is a victim of domestic or sexual violence.See Other Leaves: Pennsylvania.
Every employer in Philadelphia subject to the city's Domestic Violence and Unpaid Leave Ordinance should post the Philadelphia, Pennsylvania Domestic Violence Unpaid Leave Poster.
Philadelphia Paid Sick Leave
Philadelphia has enacted a sick leave ordinance, the Promoting Healthy Families and Workplaces Ordinance.
Employers with 10 or more employees must provide paid sick leave. Employers with fewer than 10 employees for at least 40 weeks in a calendar year must provide unpaid sick leave. In determining the number of employees for a given week, full-time, part-time and temporary employees must be counted. Chain establishments are required to provide paid sick time regardless of the number of employees in the establishment. See Other Leaves: Pennsylvania.
Philadelphia Clean Indoor Air Act
The Philadelphia Clean Indoor Air Act bans smoking in all enclosed workplaces, except for bars where: 1) food accounts for less than 10 percent of sales; 2) alcohol accounts for more than 90 percent of sales, and 3) individuals aged under 18 are prohibited. Further, in Philadelphia, smoking outdoors must occur at least ten feet from the entrance of an employer's worksite. The Clean Indoor Air Worker Protection Law, amending Chapter 10-600 of The Philadelphia Code, entitled Public Places - Prohibited Conduct.
A measure amended the law to prohibit the use of electronic smoking devices, including e-cigarettes, in public places and in the workplace, and providing for penalties, all under certain terms and conditions.
Philadelphia Fair Practices Ordinance
Philadelphia employers may not discriminate based on sexual orientation, gender identity, marital status, genetic information, domestic or sexual violence victim status, and familial status, including life partners. The Philadelphia Fair Practices Ordinance, Phila. Code § 9-1100.
Reasonable Accommodations for Pregnant and Breastfeeding Employees
Under an amendment to the Philadelphia Fair Practices Ordinance, employers with one or more employees working in Philadelphia must, upon request, provide a reasonable accommodation to an employee due to pregnancy (including a healthy, nondisabling pregnancy), childbirth or a related medical condition. A leave of absence may be a form of reasonable accommodation. An employer may be excused from providing leave as an accommodation if the employer can show that:
- Providing the requested leave would cause an undue hardship (i.e., significant difficulty or expense) on the employer's business; or
- Even with a leave of absence, the employee still cannot satisfy the requirements of the job.
Philadelphia's Fair Practices Ordinance requires employers to reasonably accommodate an employee's need to express breast milk. Reasonable accommodations include providing paid or unpaid break time to express milk and providing a private, sanitary space that is not a bathroom where an employee can express breast milk. Accommodations are not required if they would impose an undue hardship on the employer.
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