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Updated FCRA Summary of Consumer Rights Form and DOL FMLA Forms

As Published in the October, 2018 Issue of the PELRAS Newsletter


Published on: Tue 9th Oct, 2018 By: Julie Aquino


In September 2018, the Consumer Financial Protection Bureau (“CFPB”) issued an interim rule that updates an important disclosure form under the Fair Credit Reporting Act (“FCRA”). Employers must start using the new model disclosure form when taking adverse action against an applicant or employee based on information contained in a background check performed by a third party.

The FCRA applies whenever an employer uses a third party (referred to under the FCRA as a “consumer reporting agency”) to obtain a background check on an applicant or employee. The background check is referred to under the FCRA as a “consumer report”, which includes any information on the applicant’s or...

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Well, Well, Well: DOL Soothes Wellness Program FLSA Anxieties and Provides Guidance on No Fault Attendance Policies

As Published in the October, 2018 Issue of the PELRAS Newsletter


Published on: Tue 9th Oct, 2018 By: Joshua Hausman

Many employers have adopted wellness programs to incentivize healthy habits on the part of their employees. While the individual benefits to improving one’s health are obvious, employers can also benefit in the form of lower health care costs and a healthier, more productive workforce. Although these wellness programs can take several forms, most offer incentives or rewards to employees who participate in wellness-related activities. Since both employers and employees derive benefits from these activities, a simple question has left some employers feeling ill: am I required to compensate my employees for their time spent participating in our wellness program? Fortunately, the Department of Labor has administered a dose of medicine wh...

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It’s Time for Managers and Human Resource Professionals to Learn a New Language: “Emoji.”

As Published in the October, 2018 Issue of the PELRAS Newsletter


Published on: Tue 9th Oct, 2018 By: Tiffany R. Waskowicz

What did that winking emoji sent by a supervisor to a subordinate really mean? Does a winking face, shocked face, sick face, broken heart, clouds, etc., mean different things to different people? To the chagrin of employment attorneys, communication in the digital age has become increasingly informal. You have probably heard our warning in the past not to send e-mails or text messages that you would not want enlarged and used as a trial exhibit in a court case or an arbitration hearing. How does the use of emojis fit into this cautionary advice? Merriam-Webster’s Dictionary defines an emoji as, “any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social me...

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Get Over Here and Give Me a Hug! What the Third Circuit Says About Responding to Inappropriate Behavior in the Workplace

As Published in the August, 2018 Issue of the PELRAS Newsletter


Published on: Fri 10th Aug, 2018 By: Julie Aquino

The Third Circuit recently issued a precedential opinion in a sexual harassment case involving a part-time secretary, Sheri Minarsky, who alleged that the Susquehanna County Director of Veterans Affairs, Thomas Yadlosky, made unwanted sexual advances toward her over a span of almost four years. Minarsky and Yadlosky worked alone on Fridays, and she alleged that he would approach her from behind and try to embrace her, as well as try to massage her shoulders and touch her face. She alleged that these advances occurred weekly and were unwanted, and that he also sent explicit emails to her. She alleged other troubling non-sexual conduct, such as questioning her whereabouts during lunchtime and calling her while off duty under the pretense of a...

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Pennsylvania Moves Closer to Increasing the Minimum Salary Threshold under the Minimum Wage Act

As Published in the August, 2018 Issue of the PELRAS Newsletter


Published on: Fri 10th Aug, 2018 By: Martin Glynn

You may have heard recently that the Pennsylvania Department of Labor has released proposed rules to raise the state minimum salary threshold for the “white collar exemptions” under the Pennsylvania Minimum Wage Act. According to the Pennsylvania Department of Labor’s announcement, the changes are expected to result in 460,000 more Pennsylvania employees, or roughly seven percent more of the workforce, being eligible for overtime pay. Municipalities should know, however, that the Pennsylvania Minimum Wage Act has been interpreted to not apply to Pennsylvania local governments. Therefore, these proposed changes should not impact your municipality, and there has been no indication that the U.S. Department of Labor (“U.S. DOL”) will ...

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Recent Court Cases Highlight Employer Use of “Rounding” Time Entries

As Published in the August, 2018 Issue of the PELRAS Newsletter


Published on: Fri 10th Aug, 2018 By: Brad Betack

Despite federal regulations authorizing the use of “rounding” for purposes of capturing employee time, if not closely monitored, such practices can attract unnecessary legal risk and expensive lawsuits challenging the practice as improper. The Fair Labor Standards Act (“FLSA”) requires employers to pay employees for all time worked. As a result, it is imperative for employees to accurately keep track of employee time. Due to the long-standing difficulty in tracking insubstantial periods of time, such as when an employee clocks in for work a minute or two before or after a scheduled shift, the FLSA has permitted the process of “rounding.” The practice of “rounding” adjusts, for payroll purposes, an employee’s punch time...

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Commonwealth Court Rejects Officer’s Attempt to Double His DROP Retirement Pension by Claiming a Disability Benefit after the End of His DROP

A unanimous decision just made by the Pennsylvania Commonwealth Court


Published on: Tue 24th Jul, 2018 By: Brad Betack

A unanimous decision by the Pennsylvania Commonwealth Court highlights that precise language and careful attention to detail is necessary whenever a municipality agrees to adopt a Deferred Retirement Option Plan (“DROP”). The decision in Massi v. City of Chester Aggregated Pension Bd, underscores the fact that if a municipality does agree to a DROP, it should do so only after having labor counsel draft language that protects the pension plan from an inflated pension benefit and guaranteeing the DROP pension amount cannot be increased by a later converting the benefit into a service connected disability benefit. To say that this decision was a significant victory for the taxpayers of the City of Chester and the City of Chester Police...

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Fair Share' Fees Ruled Unconstitutional

Recommended Immediate Steps


Published on: Fri 29th Jun, 2018 By: Patrick Harvey

In a widely anticipated blow to public sector unions, the U.S. Supreme Court ruled today that “fair share” fees collected from non-union members are unconstitutional under the First Amendment. Specifically, the Court held in a 5-4 decision that these fees violate “the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” The Court also stated that an employee must affirmatively consent to any payment to a public sector union before any attempt is made to collect such a payment. Public employers who are currently deducting fair share fees should immediately cease fair share payroll deductions in consultation with labor counsel. To briefly recap the case, in Janus...

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Pennsylvania Supreme Court Rules that an Employee Who Claims Constructive Discharge Has Resigned

As Published in the June, 2018 Issue of the PELRAS Newsletter


Published on: Fri 8th Jun, 2018 By: Paul Lalley

The ending of the relationship between public employer and employee can be murky when an employee alleges some form of harassment; stops showing up to work; has not actually been terminated for cause; but claims (of course, in the lawsuit complaint) that he or she was “constructively discharged.” What is that person’s employment status? The Pennsylvania Supreme Court recently addressed that question in Kegerise v. Delgrande. In that case, Dr. Susan Kegerise was appointed as the Superintendent of the Susquehanna Township School District. A few years into her employment, she alleged that school board members engaged in “hostile actions” towards her, including “physical intimidation” and “verbal abuse.” She went on med...

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Ability to Work Rotating Shifts Upheld By First Circuit as an Essential Job Function

As Published in the June, 2018 Issue of the PELRAS Newsletter


Published on: Fri 8th Jun, 2018 By: Julie Aquino

The operator of a Burger King franchise recently prevailed in a lawsuit under the Americans with Disabilities Act (“ADA”) involving an assistant manager who was unable to work a rotating schedule due to psychological conditions incurred during a robbery. Sepulveda-Vargas v. Caribbean Rests. LLC, 888 F.3d 549, 552 (1st Cir. 2018). Although this decision by the First Circuit Court of Appeals is not controlling in Pennsylvania, it provides some helpful perspectives under the ADA. While making a bank deposit on behalf of his employer, the assistant manager was attacked at gun point, hit over the head and had his car stolen. Thereafter, he requested a fixed work schedule at a Burger King located in a safer neighborhood, asserting PTSD an...

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Navigating the Minefield of Asking a Prospective Employee His/Her Salary History

As Published in the June, 2018 Issue of the PELRAS Newsletter


Published on: Fri 8th Jun, 2018 By: Tiffany R. Waskowicz

You are interviewing a job applicant. He or she has duly informed you of his/her strengths, weakness, past experiences, etc. Things are going well. You sense the job applicant would be an excellent addition to your team. You are ready to talk turkey. So you ask what would seem to be the next logical question: “What is your current or prior salary?” No so fast. Some employers use salary history to determine a new hire’s starting pay; or as a point of reference for salary negotiations; and/or as a means to evaluate an applicant’s experience and achievements. However, there is an emerging viewpoint that relying on salary history often results in the unintended consequence of perpetuating unequal pay between men and women. Female...

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Pennsylvania Court Adopts Standard for Authenticating Social Media Posts

As Published in the April, 2018 Issue of the PELRAS Newsletter


Published on: Wed 11th Apr, 2018 By: Brad Betack

As a matter of first impression, the Pennsylvania Superior Court recently held that social media posts must be authenticated if they are going to be introduced as evidence in criminal cases. In Commonwealth v. Mangel, a three-judge panel affirmed a decision made by an Erie County trial court judge, denying the prosecution’s motion in limine to introduce into evidence Facebook posts and messages allegedly authored by one of the defendants. The defendants in the case were charged with aggravated assault, simple assault and harassment for an incident occurring at a graduation party. In the affidavit of probable cause, the victim stated that he was struck in the back of the head, knocked to the ground and repeatedly kicked and punched by ...

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EEOC Lawsuit Claims Pregnancy Discrimination By Imposing New Job Requirements that a Pregnant Woman Could Not Meet

As Published in the April, 2018 Issue of the PELRAS Newsletter


Published on: Thu 5th Apr, 2018 By: Joshua Hausman

It is always good practice to review your written job descriptions to ensure that they accurately set forth the requirements, qualifications, and expectations of your workforce, and to update those descriptions if they are out of date or lacking. Written job descriptions are an important piece of evidence in establishing the essential functions of a given position. Of course, updating a job description does not serve as a shield from liability when a job requirement is being added as an act of unlawful discrimination against an employee. As one Michigan company is about to find out: dealing with the EEOC is no easy lift. On March 27, 2018, the EEOC filed suit against Simplicity Ground Services, LLC, a Michigan company, based on allega...

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Recent Cases Prove Changing Tides in Workplace Discrimination Based on Sexual Orientation

As Published in the April, 2018 Issue of the PELRAS Newsletter


Published on: Thu 5th Apr, 2018 By: Martin Glynn

Courts across the country have failed to find consensus on whether Title VII of the Civil Rights Act of 1964 (“Title VII”) creates a protected class for individuals discriminated against because of their sexual orientation. The applicable language of Title VII is: “It shall be unlawful… for an employer to… discriminate… because of... sex.” Led by the Equal Employment Opportunity Commission (“EEOC”), however, the prevailing opinion appears to be shifting in favor of increased protections. The federal courts in Pennsylvania offer an interesting review of these changing tides. Within a year of each other, two separate courts landed on opposing sides – in Coleman v. Amerihealth Caritas, the federal court for the Eastern D...

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The #MeToo Movement and Why Employers Should be Paying Attention

As Published in the February, 2018 Issue of the PELRAS Newsletter


Published on: Thu 8th Feb, 2018 By: Jessica Michael

With the #MeToo movement’s resurgence on social media, sexual harassment scandals abound in the media spotlight. From top Hollywood executives to sports figures and politicians, the impact of this national media attention likely will trickle down to the municipal level. The only question is, what can employers do to prevent becoming the next breaking news story? Despite all the salacious headlines, nothing has changed an employer’s legal obligations to its employees. Employers still must provide a workplace that is free of discrimination, harassment and retaliation. There are, however, lessons to be learned from #MeToo and the pace at which allegations of harassment are resolved in the public forum. The biggest lesson may be that if...

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Pennsylvania Governor Wolf Proposes Increases in Minimum Salary Levels for Salaried Exempt Employees

As Published in the February, 2018 Issue of the PELRAS Newsletter


Published on: Thu 8th Feb, 2018 By: David E Mitchell

Pennsylvania Governor Tom Wolf has proposed increasing the minimum salary levels for salaried exempt employees under the Pennsylvania Minimum Wage Act (“MWA”) as part of his “Jobs That Pay” initiative, but in a more gradual way than the increases previously proposed under the federal Fair Labor Standards Act. Under the Governor’s proposal, the minimum salary amounts for salaried exempt employees would increase from the current $455 per week (or $23,660 per year), which matches the current amounts in the federal FLSA regulations, to $610 per week (or $31,720 per year) on January 1, 2020. The Pennsylvania minimum salary threshold would further increase to $766 per week ($39,832 per year) in 2021 and $921 per week ($47,892 per y...

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Are Public Officials’ Facebook Posts Public Records? The OOR says, “Yes.”

As Published in the February, 2018 Issue of the PELRAS Newsletter


Published on: Thu 8th Feb, 2018 By: Shon K Worner

While it may not seem readily apparent that an elected official’s Facebook posts might be considered a “public record,” that is exactly what the Office of Open Records (OOR) determined in a recent ruling. In Purdy v. Borough of Chambersburg, the requester sought copies of all Facebook posts and associated comment threads from the Facebook page of the then Mayor which related to or mentioned in any way a rail trail mural proposal that had been presented to the Borough Council at a prior meeting. Purdy v. Borough of Chambersburg, Docket No. AP 2017-1229 (2017). The request specifically included all related posts and comments that had been deleted from the Facebook page, as well as emails and Facebook Messenger messages relating to ...

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The Opioid Epidemic and Employer Drug Testing

As Published in the December, 2017 Issue of the PELRAS Newsletter


Published on: Wed 6th Dec, 2017 By: Julie Aquino

In order to address the nationwide epidemic of prescription painkiller abuse, the U.S. Department of Transportation (“DOT”) announced last month that it will issue a final rule expanding its drug test panel for drivers of commercial motor vehicles to include the following four semi-synthetic opioid drugs: (1) hydrocodone, (2) hydromorphone, (3) oxycodone, and (4) oxymorphone. Common names for these semi-synthetic drugs include OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid, and Exalgo. After having received public comment during 2017 on the proposed new rule, DOT’s new regulations will go into effect on January 1, 2018. Currently, DOT regulations only allow employers to drug test CDL drivers for the following five...

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Employer Use of Employee’s Social Media in Unemployment Compensation Appeals

As Published in the December, 2017 Issue of the PELRAS Newsletter


Published on: Wed 6th Dec, 2017 By: Martin Glynn

You don’t have to be Anthony Weiner or Donald Trump to fall victim to social media’s endless trappings. Just ask Joseph Gumpher. In a recent Commonwealth Court ruling, Gumpher v. Unemployment Compensation Bd. of Review, the Court upheld the use of Gumpher’s Facebook post as evidence against him in an unemployment compensation case. Gumpher’s employer, a metals company, found the Facebook post after he ceased coming to work after having been assigned to a night shift. The Facebook post read: “Time for a change, Work decided to have 2nd shift, (Picked for that) don’t like, so chose not to… it’s a choice you can make when retired. There are other jobs. Time to relax for a while [sic].” When Gumpher filed for unemploymen...

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Third Circuit Confirms Employees Entitled to Pay During Short Breaks at Work

As published in the December, 2017 Issue of the PELRAS Newsletter


Published on: Wed 6th Dec, 2017 By: Brad Betack

In a recent case the Third Circuit affirmed the Department of Labor’s long held interpretation of the Fair Labor Standards Act (“FLSA”) that employers are required to compensate employees for breaks of 20 minutes or less, even if they are performing no work for the employer. In Secretary, U.S. Dep’t of Labor v. American Future Systems, Inc., the Plaintiff (Progressive) is a publisher of business publications. Progressive employed sales representatives, who are paid an hourly wage and receive bonuses based on the number of sales generated per hour while logged onto the company’s computer system. Progressive instituted a “flex time” policy, which allowed the sales representatives to log off of the computer system at any tim...

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Pennsylvania Supreme Court Holds Former Employees Have No Rights under Personnel Files Act

As Published in the August Issue of the PELRAS Newsletter


Published on: Mon 4th Dec, 2017 By: Brad Betack

In a recent decision, the Pennsylvania Supreme Court held that employers are not obligated under the Personnel Files Act to allow former employees, even those recently separated, to inspect their personnel file. Haubrich v. Thomas Jefferson University Hospital, 2017 WL 2651980 (Pa. June 2017). The case centered on the definition of “employee” under the Act which is “[a]ny person currently employed, laid off with reemployment rights or on leave of absence.” The term “employee” does not include applicants for employment or any other person. 43 P.S. § 1321. The Personnel Files Act provides an “employee” with the right to inspect his/her personnel file for the purpose of determining qualifications for employment, promotio...

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Winter is Coming: How the FLSA Applies to Leave During ‘Snow Days’

As Published in the October, 2017 Issue of the PELRAS Newsletter


Published on: Thu 12th Oct, 2017 By: Jessica Michael


There’s no escaping that winter is coming, and with it, snow, ice, sleet and freezing temperatures. Inclement weather can shut down offices or cause employees to miss work, but the Fair Labor Standards Act (“FLSA”) never takes a day off. How an employer handles this absence in terms of employee compensation, however, can pose a trap for the unwary. Even in winter, nothing can be more chilling that facing an FLSA violation.

Non-Exempt Employees
For non-exempt (hourly) employees, the application of the FLSA is straightforward. First, employers must check whether they are bound by any contractual provisions pertaining to compensation for office closur...

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EEOC Files Suit Where Employer’s Policies Favored Mothers Over Fathers In Duration

As Published in the October Issue of the PELRAS Newsletter


Published on: Tue 10th Oct, 2017 By: Shon K Worner

As stereotypical gender roles continue to change, employers would do well to review their policies to ensure that they comply with applicable law which, in many cases, supports those changes. Case in point: on August 30, 2017, the EEOC filed a lawsuit against Estee Lauder in the United States District Court for the Eastern District of Pennsylvania alleging that Estee Lauder discriminated against male employees in violation of Title VII and the Equal Pay Act. The suit alleges that biological fathers received lesser benefits for the purpose of bonding with their child than did biological mothers. Estee Lauder provided four paid parental leave benefits: maternity leave, adoption leave, primary caregiver leave, and secondary caregiver leave....

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Workers’ Compensation Settlement Does Not Preclude a Subsequent FMLA Suit

As Published in the October Issue of the PELRAS Newsletter


Published on: Tue 10th Oct, 2017 By: John P. McLaughlin


A Compromise and Release Agreement (“C&R”) executed under the Pennsylvania Workers’ Compensation Law (“WCL”) settling a workers compensation claim does not preclude a subsequent suit under the Family Medical Leave Act (“FMLA”) or Pennsylvania common law.  The Third Circuit Court of Appeals, which has jurisdiction over all Pennsylvania municipalities, recently issued the decision in Zuber v. Boscov’s.  The decision clarifies an issue that has a direct impact in disputes involving medical issues that are common for many Pennsylvania public employers.

The dispute arose out of a work-related injury suffered for which the employee, Zuber, immediately filed a workers...

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Supreme Court Again Hears Challenged to Fee-Collecting from Non-Union Employees

As published in the Pennsylvania Insider Newsletter, October 2017


Published on: Tue 10th Oct, 2017 By: John P. McLaughlin

Decades after the Supreme Court of the United States first upheld the constitutionality of “agency fees” – the right of public sector unions to charge non-union members a fee as a condition of employment – the Court has agreed to hear another challenge to such fees. The Court agreed to hear the case that targets a law in Illinois that compels workers to pay a reduced fee to a union regardless of whether the employee elects to join the union. Approximately forty years ago, in Abood v. Detroit Board of Education, the Supreme Court upheld a Michigan law that compelled employees, who had opted out of union membership, to the pay a fee to the local union that collectively bargained for terms and conditions of employment that impacte...

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Obama Administration’s Overtime Rule Killed by Texas Court

As Published in the Pennsylvania Insider Newsletter, September 2017


Published on: Wed 13th Sep, 2017 By: John P. McLaughlin

The Obama-era proposed overtime regulations that would have doubled the salary threshold under which employees would eligible for overtime compensation under the Fair Labor Standards Act (FLSA) have been struck down by the United States District Court for the Eastern District of Texas. The new regulations were estimated to make almost four million workers eligible for overtime compensation and higher wages. Under the FLSA, employers are required to pay workers overtime at a rate of one and one-half times the worker’s regular rate of pay for all hours worked over 40 hours in a week. The law also empowers the U.S. Department of Labor (DOL) to adopt regulations to implement the law and to determine which workers should be exempt from o...

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Law Enforcement Audio and Video Recordings: How the New Law Impacts Your Police Department

As Published in the August 2017 Issue of the PELRAS Newsletter


Published on: Tue 8th Aug, 2017 By: Julie Aquino

On July 7, 2017, Governor Wolf signed new legislation into law (Act 22) that goes into effect on September 5, 2017. The new law enacts significant legal changes with respect to police audio and video recordings, including body camera recordings. The law amends the Pennsylvania Wiretap Act, as well as state law pertaining to public requests for police audio and video recordings. Below is a summary of the areas of law changed under Act 22. 1. Amendments to the Wiretap Act Prior to passage of Act 22, the Pennsylvania Wiretap Act provided only a limited exception for police audio recordings of interactions with the public. The limited exception required a uniformed officer, in close proximity, to announce “as soon as reasonably practic...

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Recent Court Filing Sheds Light on DOL’s Overtime Stance under Trump Administration

As Published in the August Issue of the PELRAS Newsletter


Published on: Tue 8th Aug, 2017 By: Brad Betack

Employers have been keeping a close eye on the Department of Labor as to what stance the Trump Administration would take on the revised overtime regulations originally planned to go into effect under the Obama Administration. In a June 30, 2017 filing with the Fifth Circuit Court of Appeals, the Department of Labor disclosed its intentions to re-write the Obama-era overtime regulations. Background In 2016, under President Barack Obama, the Department of Labor introduced rules increasing the minimum salary level for employees to qualify for many of the white collar exemptions under the Fair Labor Standards Act. The rules, which were set to be implemented on December 1, 2016, would have raised the minimum weekly salary level for exem...

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The Third Circuit Confirms a First Amendment Right to Record Police Officers

As published in the Pennsylvania Insider Newsletter July, 2017


Published on: Fri 14th Jul, 2017 By: Joshua Hausman

Last Friday, the Third Circuit issued its opinion in the case of Richard Fields v. City of Philadelphia, in which it confirmed that the recording of police officers by private citizens is protected by the First Amendment. The Third Circuit has now joined a growing consensus of other circuit courts in holding that the act of recording police officers performing their official duties in public—whether through videos, photographs, or audio recordings—is protected conduct. After this decision, Pennsylvania municipalities are officially on notice: ensure that your policies and training recognize the right of the public to record police officer activities, or a First Amendment lawsuit could be the next big thing on your Twitter feed. The...

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Smile, You’re On Body Camera! Pennsylvania’s New Law Clears Hurdles For Wider Adoption of Police Body Cameras, and Changes How Requests for Recordings Will Be Handled

As published in the Pennsylvania Insider Newsletter July, 2017


Published on: Fri 14th Jul, 2017 By: Joshua Hausman

On Friday, July 7, Governor Tom Wolf signed into law Act 22 of 2017. The law changes dramatically how police body camera footage is treated under Pennsylvania law. That same day, the Governor announced that the Pennsylvania State Police have received a $52,000 federal grant to help fund a pilot program for body-worn cameras. The timing is not coincidental. Act 22 encourages more widespread adoption of police body cameras by removing body camera footage from Pennsylvania’s Wiretap Act. Under the Wiretap Act, it is a felony of the third degree for any person to intentionally intercept, disclose, or use any wire, electronic, or oral communication. 18 Pa.C.S. § 5703. The Act also generally prevents the disclosure of the contents of th...

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Independent Contractors: What you Need to Know About DOL Interpretation

As published in the Pennsylvania Insider Newsletter June, 2017


Published on: Fri 14th Jul, 2017 By: Julie Aquino

On June 7, 2017, the U.S. Department of Labor (“DOL”) announced a change with respect to its interpretation of the law pertaining to independent contractors and joint employment. To understand the changes, we have to revisit 2015. As part of the Obama administration’s “push to give America a raise”, the DOL in July 2015 announced a new interpretation regarding independent contractors. The DOL took the position in 2015 that “most workers are employees under the Fair Standard Labors Act’s broad definitions” and found that employers increasingly were misclassifying workers as independent contractors. Recall that in 2015 companies such as Uber and Lyft were emerging as a part of the new so-called “gig” economy. The DOL...

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Pennsylvania Supreme Court holds that Minimum Staffing Requirements are Not a Managerial Prerogative

As Published in the Pennsylvania Insider Newsletter, April 7, 2017


Published on: Fri 7th Apr, 2017 By: John P. McLaughlin


In the City of Allentown v. International Association of Fire Fighters Local 302, No. 24 MAP 2016 (March 28, 2017), the Pennsylvania Supreme Court reversed the Commonwealth Court and ruled the issue of shift manning for fire fighters is not a managerial prerogative but a valid subject of collective bargaining. 
   
The Court’s opinion, authored by Justice Todd, found that the issue of shift manning has a closer nexus to firefighter safety than its effect on the City’s managerial responsibilities of budgeting and overall staffing.  As a result, minimum shift manning requirements are not a per se managerial prerogative and may be within the power of an Act 111 interest arbit...

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Affordable Care Act Update

As published in the April Issue of the PELRAS Newsletter


Published on: Fri 7th Apr, 2017 By: David E Mitchell

The Affordable Care Act recently survived another challenge, but changes will continue to be considered at the federal level. A vote was scheduled for March 23, 2017 on a potential replacement bill that would have repealed and replaced significant parts of the Affordable Care Act. That vote was ultimately canceled due to differences of opinion regarding the contents of the bill that left it without enough votes to pass in the House of Representatives. For now there are no immediate plans to bring an ACA repeal bill to a vote in Congress, but it is likely there will be in the future. The proposed replacement bill, entitled the American Health Care Act (“ACHA”), would have repealed parts of the Affordable Care Act, but left some oth...

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Website Accessibility for Individuals with Disabilities

As Published in the April Issue of the PELRAS Newsletter


Published on: Fri 7th Apr, 2017 By: Shon K Worner

Is your municipal website or mobile application accessible to people with disabilities? If a disabled person who uses assistive technology tried to access your municipal website, such as a visually impaired person who uses a screen reader or a physically disabled person who uses voice recognition software to control their computers with verbal commands because they cannot manipulate a mouse, would your municipal website and the services provided through it be accessible to these individuals? These are questions that you may not have previously considered, but in light of a recent spate of lawsuits in the private sector revolving around these issues, they are something to which you should direct your attention. Not only does the American...

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Are Your Volunteer Firefighters Municipal Employees?

As published in the April Issue of the PELRAS Newsletter


Published on: Fri 7th Apr, 2017 By: Brad Betack

In Emmaus v. Pennsylvania Labor Relations Board, the Commonwealth Court, by a 4-3 vote, recently affirmed a Pennsylvania Labor Relations Board (PLRB) decision, finding that an employer-employee relationship existed between the Borough of Emmaus and members of its local volunteer fire department. As a result, the firefighters, long believed to be volunteers, now have the right to unionize and engage in collective bargaining with the Borough over wages and other terms and conditions of their newly confirmed employment by the Borough. Despite the designation as a “volunteer” fire department, the Commonwealth Court found that the Borough Council’s actions, in paying hourly wages to the firefighters and structuring the Fire Departmen...

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Essential 2017 Contract Negotiation - Steps You Should Be Taking Now

As published in the Pennsylvania Insider Newsletter, March 2017


Published on: Wed 29th Mar, 2017 By: Patrick Harvey

Your preparation for 2017 contract negotiations should begin now with the below listed essential steps. These steps apply to all contract negotiations and will lead to the achievement of your bargaining goals. For unions that have the ability to request contract interest arbitration (police, fire, etc.) completion of these steps will prepare your municipality for any arbitration. Step 1: Have experienced labor counsel review the contract that is expiring along with the pension plan and pension ordinance. Labor counsel should first identify any illegal contractual provisions or pension benefits that should be eliminated such as minimum shift manning or pension benefits in excess of pension laws. Counsel should next identify contractua...

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Asking for Salary History: Are you Violating the Equal Pay Act?

As Published in the January, 2017 Issue of the PELRAS Newsletter


Published on: Fri 3rd Feb, 2017 By: Joshua Hausman

In January 2017, the City of Philadelphia passed legislation prohibiting employers from inquiring about salary history from job applicants. In the same month, the City of Pittsburgh passed legislation that prohibits the City of Pittsburgh from making the same inquiries during its hiring process and encourages other employers to follow suit. Why the sudden interest in restricting use of salary history? The answer lies in a decades-long effort to close the wage gap between the genders starting with passage of the Equal Pay Act in 1963, which prohibits employers from discriminating between employees on the basis of gender in relation to wages paid. 29 U.S.C. § 206. Fast forward to a 2016 Congressional Report to the Joint Economic Committee, ...

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The EEOC Issues Updated Guidance on National Origin Discrimination

As Published in the January, 2017 Issue of the PELRAS Newsletter


Published on: Fri 3rd Feb, 2017 By: Brad Betack

On November 21, 2016 the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance on national origin discrimination, its first such update on the issue since its 2002 compliance manual. The Guidance provides in-depth information as to how “national origin discrimination” is defined, explains how the law would apply in specific workplace situations, and provides a question and answer publication on the guidance. The Guidance defines national origin discrimination as discrimination “because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” The EEOC broadly defines “certain place” as includi...

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Preliminary Injunction Halts Implementation of New FLSA Overtime Rules

As Published in the January, 2017 Issue of the PELRAS Newsletter


Published on: Fri 3rd Feb, 2017 By: Brad Betack

Just days prior to its implementation, a federal judge granted a preliminary injunction, stopping enactment of the Department of Labor’s new overtime rules, which would have increased the salary threshold for employees under the Fair Labor Standards Act, potentially making millions of employees eligible for overtime compensation.

The rules, which increased the overtime FLSA salary threshold for employees to qualify for many of the white collar exemptions (bona fide executive, administrative or professional exemptions) were set to be implemented on December 1.  The new rules would have raised the minimum weekly salary threshold for exempt white collar employees from $455 ($23,660 on an annual basis) to $9...

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EEOC Releases Data Regarding Discrimination Charges Filed in 2016

As Published in the January, 2017 Issue of the PELRAS Newsletter


Published on: Fri 3rd Feb, 2017 By: Julie Aquino

The U.S. Equal Employment Opportunity Commission (EEOC) recently released data for 2016, including data on the number of charges received. According to the report the EEOC received 91,503 charges of discrimination for fiscal year 2016. Below is a breakdown of the charges filed by category—notably, retaliation remains at the top of the list. · Retaliation: 45.9% · Race-Based Discrimination: 35.3% · Disability-Based Discrimination: 30.7% · Sex-Based Discrimination: 29.4% · Age-Based Discrimination: 22.8% · National Origin-Based Discrimination: 10.8% · Religion-Based Discrimination: 4.2% · Color-Based Discrimination: 3.4% · Equal Pay Act Violation: 1.2% · Genetic Information Non-Discrimination Act Violation: 0.3% W...

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Anti-Harassment Training: Are Your Employees Getting the Message?

As Published in the January, 2017 Issue of the PELRAS Newsletter


Published on: Fri 3rd Feb, 2017 By: Julie Aquino

According to the Equal Employment Opportunity Commission, decades of employer-required sexual harassment training has done little to decrease the volume of administrative charges filed each year alleging workplace sexual harassment. In a publication released in June 2016 titled SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE (EEOC June 2016), the EEOC noted that one-third of the 90,000 charges it received in 2015 included a harassment allegation. As the federal entity responsible for investigating and remediating workplace harassment, the EEOC rightfully became concerned and commissioned a task force to investigate the effectiveness of antidiscrimination training. The Task Force identified several ways in which employ...

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Health Insurance Opt-Out Payments Could Make Coverage Unaffordable

As Published in the October, 2016 Issue of the PELRAS Newsletter


Published on: Sun 1st Jan, 2017 By: David E Mitchell

On July 8, 2016, the Internal Revenue Service issued proposed regulations detailing the rather remarkable position that opt-out or waiver payments to employees who decline employer-provided health insurance are a form of salary reduction for employees who take the coverage instead of the payment and therefore must be counted when determining whether the coverage is affordable under the Affordable Care Act. Fortunately the regulations outline a strategy to avoid this strange result if certain conditions are met.

The Affordable Care Act (“ACA”) provides that if health care coverage offered by Large Employers to employees who average 30 or more hours of paid service per week is not affordable the employer will potentially be subj...

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