This question today comes up in many contexts. The Commonwealth Court of Pennsylvania, an intermediate appellate court, in D&R Construction v. Workers’ Compensation Appeal Board, had to determine whether the Construction Workplace Misclassification Act (CWMA) 43 p.s. § 933.1-17 was instructive in evaluating the employee or independent contractor question.
Without a doubt sexual harassment has always been a serious issue for employers. Given the recent headlines relating to celebrities such as Harvey Weinstein, Kevin Spacey, Bill O’Reilly, and others, sexual harassment is now front and center in the consciousness of the American public in ways that it was not just a short time ago. After the Harvey Weinstein scandal hit the news, Actress Alyssa Milano took to Twitter and posted the following tweet: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status we might give people a sense of the magnitude of the problem.” Her tweet caught fire and “#metoo” peppers all vehicles of social media. In fact, CBS News reported that more than 45% of U.S. Facebook users had friends who posted #metoo.
Since the Steelworkers Trilogy of 1960, the Supreme Court has furthered the private justice system by liberally interpreting the scope of arbitration agreements. The Third Circuit, in a case applying New Jersey law, however, may have recently narrowed the scope of those decisions within its jurisdiction. In Moon v. Breathless, Inc., the Circuit had to determine whether a statutory claim was covered by an arbitration agreement or could be brought in court. The individual bringing the claim had signed an independent contractor agreement which contained a standard arbitration clause covering all disputes arising under the agreement. Nevertheless, the individual wanted to bring in court a statutory (FLSA) claim based on their asserted employee status. The Circuit was called upon to determine whether, under the breadth of the arbitration clause, the statutory claim, which on its face was inconsistent with the independent contractor agreement, could be brought in court or must be resolved in arbitration.
Like most states, Pennsylvania has a Wage Payment and Collection Law. This law requires employers, on regular pay days designated in advance, to pay wages owed either by lawful money of the United States or by check. The Act defines the term check as a “draft.” While the terms “draft” and “lawful money” are not defined, the common definition of these terms accepted by the courts respectively is an unconditional written order signed by one person directing another to be paid, and officially coined or stamped currency. Obviously, in 1961 when the Act was written, the legislature did not contemplate today’s e-economy or the use of payroll debit cards.
The Fair Labor Standards Act requires that an employee be compensated for all time that he suffers or is permitted to work. The question frequently arises as to when an employee is required to be compensated for times when he is not actually working – i.e., meals/breaks – if there is a restriction placed upon his activities during those times. This question arguably is addressed by the Department of Labor’s regulations which require that the employee be compensated for such periods unless he is completely relieved from all duties.
Non-compete and non-solicitation agreements have become common today for numerous positions at various levels throughout all industries. This is true even though courts look with disfavor on such agreements and seek reasons not to enforce them; viewing such agreements as one-sided, prepared by and favoring employers, and restricting the individual’s ability to work and earn a living. In fact, for such reasons, these agreements are generally unenforceable in California. Thus, when asked to enforce non-compete/non-solicitation agreements, courts examine them to see if the employer has a protectable interest in the matters being restricted and whether the restrictions are narrowly-tailored in terms of both their length and geographic scope.
Pennsylvania recently enacted a medical marijuana statute. This Act clouds the rights of employers and is another hit to Pennsylvania’s employment-at-will doctrine. Nevertheless, even in Pennsylvania, marijuana remains an illegal substance under the Federal Controlled Substances Act, and employers may continue to enforce their drug-free workplace policies for safety and production reasons, as well as compliance with other contractual or statutory obligations. The new Pennsylvania statute does, however, have implications for employers.
Having a solid confidentiality policy can protect your business from liability as well as protect your proprietary information. Thus, all employers should have a policy which governs the confidentiality of personnel information (social security numbers, medical information, etc.) management information (investigations, employee discipline, etc.) and business information (financial information, customer information, proprietary information, etc.).
In Pennsylvania, it is a felony for a person to intercept any wire, electronic, or oral communication unless all of the parties to the communication have given prior consent to such interception. This makes Pennsylvania a two/multiple-party consent jurisdiction. “Interception” is defined as the acquisition of any oral communication through an electronic, mechanical, or other device other than through a telephone or any component thereof. The traditional example of the crime is tape recording a conversation without the knowledge of one of the parties to the conversation.
Historically, Pennsylvania has been a strict employment-at-will state. Very few employee attempts to create a cause of action have been found to implicate a public policy of the Commonwealth and, thus, give rise to a private right of suit. Recently, a former employee was permitted to use the Pennsylvania Prohibition of Excessive Overtime in Health Care Act as a vehicle for such a claim.