On March 19, 2020, Governor Tom Wolf issued a broad executive order requiring the closure of “all businesses that are not life sustaining.” Simultaneously, the secretary of Pennsylvania’s Department of Health issued a similar order, explaining “the closure of non-life sustaining businesses is necessary to protect the public’s health.”
California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.
On January 31, 2020, the Pennsylvania Independent Regulatory Review Commission approved the Pennsylvania Department of Labor and Industry’s (DLI) amendments to 34 Pa. Code Chapter 231, the regulations that exempt executive, administrative, and professional (“white collar”) salaried workers from overtime requirements under the Pennsylvania Minimum Wage Act of 1968.
On February 6, 2020, the U.S. Court of Appeals for the Third Circuit vacated U.S. District Judge Mitchell S. Goldberg’s prior order partially blocking the City of Philadelphia’s pay equity ordinance from going into effect.
In late 2019, Pennsylvania defected from the traditional use of the fluctuating workweek method used to calculate overtime rates for employees working fluctuating hours.
After a lengthy journey through the Pennsylvania legal system, the City of Pittsburgh’s Paid Sick Days Act is now on course to go into effect. The Act was signed by the Pittsburgh mayor in 2015, but its implementation was delayed due to legal challenges.
On December 20, 2018, Mayor Jim Kenney signed an ordinance that will raise the minimum wage for all Philadelphia municipal government workers, contractors, and subcontractors from the current rate of $12.20 per hour to $15.00 per hour by 2022.
Philadelphia enters the predictive scheduling mix with its newly signed Fair Workweek Employment Standards Ordinance, which will become effective January 1, 2020.
In 2019, a number of states’ minimum wage rates will increase.
If an employee in Pennsylvania is paid a salary, as opposed to by the hour, that employee is not eligible for overtime no matter how low the salary or how high the number of hours he or she works in a particular week, right? Wrong!
Twenty years ago, on a warm summer day, Hawaii enacted a restriction on employer inquiries into an applicant’s work history until after a conditional offer of employment. Intended to give applicants with criminal histories a fair shot at employment, the law—the first state “ban the box” law—crystalized a movement that, in time, would yield similar restrictions in 12 states and 17 localities (for private employers). The result is a crisscrossing jumble of requirements with little uniformity, putting employers in a difficult position when dealing with applicants (and sometimes even existing employees) in different jurisdictions.
On February 2, 2018, we reported that General Nutrition Centers, Inc. (GNC), the employer in a case brought by a class of salaried, nonexempt, current or former Pennsylvania store managers, assistant managers, or senior managers under the Pennsylvania Minimum Wage Act (PMWA) (43 P.S. Secs. 333.101–333.115) had asked the Pennsylvania Supreme Court to hear its appeal of a 2–1 decision issued by the Pennsylvania Superior Court on December 22, 2017.
Employers with operations in Pennsylvania may want to take note of significant changes in the pipeline to the state’s wage and hour rules.
The Third Circuit Court of Appeals recently issued an opinion in Minarsky v. Susquehanna County, No. 17-2646 (July 3, 2018). The decision, which vacated the entry of summary judgment in favor of an employer that had asserted the Faragher-Ellerth defense to a sexual harassment claim based upon a hostile work environment, provides some important lessons for employers.
On October 30, 2017, Governor Tom Wolf of Pennsylvania signed into law Act 43 of 2017. This new law provides that beginning July 1, 2018, Pennsylvania businesses that pay at least $5,000 in Pennsylvania-source nonemployee compensation or business income to a nonresident individual (or disregarded entity that has a nonresident member) are required to withhold from such payments the current applicable income tax rate (currently 3.07 percent).
On April 30, 2018, Judge Goldberg of the U.S. District Court for the Eastern District of Pennsylvania issued an order granting in part and denying in part a motion brought by the Chamber of Commerce for Greater Philadelphia for a preliminary injunction seeking to block the City of Philadelphia’s wage equity ordinance.
On December 22, 2017, a three-judge panel of the Superior Court of Pennsylvania ruled two to one that the Pennsylvania Minimum Wage Act (PMWA), 43 P.S. Secs. 333.101-333.115, requires payment of a higher rate for each overtime hour worked than does the federal Fair Labor Standards Act’s (FLSA) fluctuating workweek (FWW) method. The court held that the PMWA requires one and one half times the regular rate for each overtime hour, instead of the half-time rate allowed under the FWW. Instead of filing a request with the Superior Court of Pennsylvania for reargument en banc, on January 22, 2018, the company filed a petition with the Pennsylvania Supreme Court for allowance of an appeal.
On January 17, 2018, Pennsylvania Governor Tom Wolf announced an initiative to “modernize” Pennsylvania’s overtime rules.
In Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (October 13, 2017), the Third Circuit Court of Appeals considered whether an employer’s failure to compensate employees for periods of 20 minutes or less time when they were relieved of all work-related duties violated the Fair Labor Standards Act (FLSA).
Since January 6, 2016, almost 18 months ago, in accordance with a decision by the Commonwealth Court of Pennsylvania, employers in the state of Pennsylvania have been required to allow recently separated employees access to their personnel files on the same footing as current employees. That 2016 decision reversed the common thinking among employers in Pennsylvania that only current employees had the right to access their personnel files, and that former employees—no matter how long ago they had been separated—were not entitled to such access.
In Jones v. SCO Silver Care Operations LLC, No. 16-1101 (May 18, 2017), the Third Circuit Court of Appeals addressed whether several certified nursing assistant plaintiffs were entitled to pursue their claims for violations of the Fair Labor Standards Act (FLSA) in court or were required to submit the claims to an arbitrator in accordance with the collective bargaining agreement (CBA) between their union and their employer.
On April 6, 2017, the Chamber of Commerce for Greater Philadelphia filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking to block Philadelphia’s recently-enacted wage equity ordinance. The ordinance, which prohibits employers from inquiring about prospective employees’ wage histories, was set to go into effect on May 23, 2017.
In Carvalho-Grevious v. Delaware State University, No. 15-3521 (March 21, 2017), the Third Circuit Court of Appeals addressed an important evidentiary question: What evidence must a plaintiff adduce as part of a prima facie case of retaliation to survive a motion for summary judgment? The court held that a plaintiff alleging retaliation has a lesser burden at this stage, namely to produce sufficient evidence to raise the inference that the protected activity was the “likely reason” for the adverse employment decision.