Q. I understand that the United States Supreme Court came out with a new decision extending Title VII protections. What are the details?

A.  Delivering a historic victory for the LGBTQ community, the U.S. Supreme Court issued a 6-3 landmark decision on June 15, ruling that Title VII of the Civil Rights Act of 1964 prohibits terminating an employee based on the employee’s gender identity or sexual orientation. In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately. Continue Reading Supreme Court Rules Title VII Protects Gay and Transgender Employees

Q. What is the standard for determining whether an individual is an independent contractor under Pennsylvania’s unemployment compensation law?

A. Following a recent decision from the Pennsylvania Supreme Court, businesses now face a tougher standard under the state’s unemployment compensation law for demonstrating that a worker is an independent contractor and not an employee. In A Special Touch v. Commonwealth of PA, the Court held that, to claim the exemption from tax liability for a self-employed worker, the employer must show that the individual in question is involved in an independent trade or business “in actuality,” rather than “having the mere ability to be so involved.” Continue Reading Pennsylvania Supreme Court Clarifies Independent Contractor Standard For Purposes of Unemployment Compensation Taxes

Q. What is the new deadline to file an EEO-1 report?

A. The Equal Employment Opportunity Commission (EEOC) announced in a press release on May 7, 2020 that it will postpone its annual collection of EEO-1 demographic data until 2021, in light of the circumstances surrounding the novel coronavirus outbreak. This comes at a time when many employers were already waiting for a determination as to when the EEOC would begin collecting reports from 2019. Continue Reading EEOC Delays EEO-1 Data Reporting Deadline to 2021 Due to COVID-19

On Wednesday, April 15, Pennsylvania Governor Tom Wolf, in conjunction with the state’s Department of Health, announced an Order requiring businesses to implement new safety measures in response to the coronavirus pandemic. The Order details a litany of new “social distancing, mitigation, and cleaning protocols” that businesses must observe with respect to both employees and customers. Effective immediately, the Order applies to “life-sustaining businesses” authorized to maintain operations during the crisis under a prior order issued in March, including grocery stores and pharmacies. The Governor has directed a number of state agencies to enforce the new requirements, including the Department of Labor & Industry, the Department of Health, and the Pennsylvania State Police. Continue Reading Employers Should Act Now in Response to New Order from the Pennsylvania Department of Health

Q: My Company’s standard employment settlement agreement includes a no-rehire provision. Can I continue to include that provision for California employees?

A: If the agreement settles an employment dispute with an “aggrieved person,” you may no longer include a no re-hire provision in the agreement for California employees. Assembly Bill No. 749 (“AB 749”), which amends the California Code of Civil Procedure, became effective January 1, 2020 and provides that if an unlawful no-rehire provision is included in a settlement agreement, the provision is void as a matter of law. An “aggrieved person” is defined as a person who has filed a claim against the employer in court, before an administrative agency, in an alternative dispute forum, or through the employer’s internal complaint process. Continue Reading California Now Prohibits No-Rehire Provisions in Certain Employee Settlement Agreements

Q. What should my company be doing to prepare for the spread of the coronavirus?

A. With the number of coronavirus cases topping 90,000 worldwide, resulting in more than 3,000 deaths across 65 countries, it is only a matter of time before the disease has some impact on normal business operations. However, as the virus continues its march around the globe, there are certain actions companies can take today to mitigate potential disruptions and calm employee nerves.

Communication is key. Employees want concrete answers to questions about employer expectations in the event that the crisis reaches their door. If you haven’t done so already, it would be helpful to issue a policy with, at a minimum, some common sense advice about handwashing, coughing and sneezing etiquette, and sanitizing common areas. Employees should be told to leave work and stay home if they have respiratory symptoms or a fever and companies should communicate this directive to staffing agencies that supply the workplace with temporary or contract workers. Consider placing hand sanitizers in strategic locations and suggesting that employees avoid handshakes.

In addition, employers should ensure that their policies on sick leave are compliant with federal, state and local leave laws. Companies should review these policies with workers so that employees are aware of the consequences, if any, if they are unable to come to work due to their own illness or if they are needed to tend to a sick family member. Companies also need to make sure the appropriate personnel are aware of their obligations to maintain confidentiality under the Americans With Disabilities Act with regard to employees who are sick while working with public health officials to notify employees who may have been exposed to the virus.

There may come a time when the virus reduces the ability of even healthy employees to get to work if, for example, schools and public transportation are impacted. Employers should consider and communicate whether and which employees are permitted to work from home under such circumstances and ensure that employees have the tools they need to telecommute. Companies also should set expectations around such work-from-home arrangements and communicate whether they plan to pay workers who are not able to perform their jobs remotely. In that regard, employers need to keep in mind the rules regarding pay for exempt and non-exempt workers.

In terms of business continuity, employers will want to cross-train employees to perform critical job functions in the event that certain staff members fall ill. Companies with multiple facilities also will want to cross-train individuals to take over key business functions in the event that one location is impacted more severely than others. Employers also should have a plan in place to identify alternative sources of supply and services required to maintain business operations in the event of increased absenteeism, supply chain interruptions and shortages of raw materials.

Employers also should consider implementing rules around travel, both business and personal. Some companies already have replaced meetings with videoconferences and advised employees to avoid nonessential business travel to high risk areas. Make sure that employees know that they should notify a supervisor or human resources if they become sick while traveling. With spring break fast approaching, some employees may be planning trips domestically and abroad. Many companies are asking employees to disclose their travel plans and imposing a 14-day ban on entering the workplace after an employee has traveled to a high-risk region.

Preparation rather than panic should be your company motto. Thinking through these important issues and memorializing them in a written disease outbreak response plan will help companies protect their workplaces and ensure continuity of operations to the greatest extent possible.

For assistance in drafting a disease response plan, please contact us.

– Tracey E. Diamond

 

Q. I heard that job postings which impose a maximum experience requirement for external applicants may not violate certain provisions of the ADEA, at least in certain Circuits. Is that true?

A. The United States Supreme Court recently declined to review an en banc Seventh Circuit decision in Kleber v. CareFusion Corporation, which ruled that the Age Discrimination in Employment Act (“ADEA”) does not apply to external job applicants who allege that a neutral hiring policy adversely impacted older workers.

Dale Kleber, then 58 years old, applied for an in-house Senior Counsel position in CareFusion’s legal department. The job description provided that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” At the time, Kleber had accrued more than seven years of relevant experience. The company ultimately did not offer Kleber the job and instead hired a 29-year-old applicant who met but did not exceed the job description’s experience requirement. Kleber filed a lawsuit against CareFusion under the ADEA, which prohibits discrimination against those age 40 or older. One of his main arguments was that, although the company’s maximum experience requirement may have appeared neutral on its face, such requirement had a disparate impact on him as an older attorney.

The Seventh Circuit held that the disparate impact provision of the ADEA only applies to “employees,” and not outside job applicants seeking employment such as Kleber. Section 4(a)(2) of the ADEA, which applies to disparate impact claims, makes it unlawful for an employer “to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The court found that the plain language of this provision only protects those who have a “status as an employee,” and that Kleber did not have such status, since he was an outside applicant. The court also contrasted the disparate impact section with other portions of the ADEA which expressly cover both employees and job applicants, such as the provision which guides disparate treatment claims (i.e. a company intentionally refusing to hire an applicant because of his or her age). A final issue that the Seventh Circuit addressed was whether the ADEA’s text was similar enough to the text of Title VII that it should follow the same interpretation, as Title VII permits applicants to bring disparate impact claims. The court found that the two statutes are distinguishable.

Given the Supreme Court’s decision declining review, the Seventh Circuit’s ruling continues to remain enforceable and provides employers, at least in Indiana, Illinois and Wisconsin, with a sufficient defense to external applicants’ disparate impact claims under the ADEA. The Eleventh Circuit, which covers Alabama, Florida and Georgia, also has ruled in a manner consistent with the Seventh Circuit, refusing to extend the ADEA’s language on disparate impact to outside applicants. No other Circuit has addressed this issue yet.

One note: While employers may be able to successfully escape ADEA disparate impact claims from outside applicants, state and local anti-discrimination laws may extend to protections for outside applicants. In addition, the decisions of the Seventh and Eleventh Circuits have no effect on ADEA disparate impact claims brought by internal applicants already employed within the company. Furthermore, both internal and external job applicants remain protected under the disparate treatment sections of the ADEA. The Seventh and Eleventh Circuit decisions are therefore limited in nature, and employers across the country should continue to regularly monitor their job postings and hiring practices to comply with federal and state anti-discrimination laws.

 

Q. My company has offices in Philadelphia and Pittsburgh. Is Pittsburgh’s new paid sick leave law the same as Philadelphia’s paid sick leave law?

A. Effective March 15, 2020, Pittsburgh will be joining Philadelphia and several other jurisdictions in requiring employers to provide sick leave to its employees. While these laws share the same intent, there are several notable differences in terms of compliance. For companies like yours that operate in both cities, the distinctions between the two laws may necessitate separate policies for employees based on their location.

For example, Pittsburgh’s “Paid Sick Days Act” (PSDA) requires employers to provide each “covered employee” with at least one hour of paid sick time for every 35 hours worked within the City’s geographic boundaries. By contrast, Philadelphia’s “Promoting Healthy Families and Workplaces Act” (PHFW) allows for employees to earn sick leave at the rate of one hour for every 40 hours worked.

Using identical language, both the PHFW and the PSDA provide sick time for “an employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care,” or to provide care for a family member with those same needs.

However, the two laws differ in other ways. Specifically, the PHFW provides additional coverage for absences taken by victims of domestic abuse, sexual assault or stalking, provided the leave is used for medical care, counseling, relocation, or to receive legal services following incidents of domestic or sexual violence. By contrast, the PSDA allows employees to use sick time in the event of a closure of the employee’s place of business by order of a public health official, or to provide for childcare in the event of school closings.

Under either law, the number of employees employed by your company will determine which provisions are applicable. The PHFW requires Philadelphia employers with 10 or more employees to provide paid sick leave, while employers with fewer than 10 employees may provide unpaid sick leave. Under the Pittsburgh law, employers with 15 or more employees must provide paid sick leave. Note that the PSDA allows employers with fewer than 15 employees to provide unpaid sick leave, but only for the first year. Beginning on March 15, 2021, even employers with fewer than 15 employees must provide paid sick leave.  However, the PSDA’s 15-employee threshold affects the accrual cap for paid sick leave. Employers with 15 or more employees must provide up to 40 hours of paid sick leave per calendar year. while employers below the threshold may cap the amount of accrued sick time at 24 hours per year.

The Acts also differ regarding who is considered to be covered employee. In Philadelphia, employees must work within the geographical boundaries of the city for at least 40 hours in a year to be eligible for sick leave. In Pittsburgh, however, employees become eligible for paid sick leave after working 35 hours in the city’s geographic boundaries. Notably, under the PSDA, employers with employees working outside the boundaries of Pittsburgh must count those employees to determine the number of employees. Thus, a Pittsburgh employer with 9 employees working in Pittsburgh and 6 employees working in Philadelphia would meet the 15-employee threshold under the PSDA. While the PHFW does not count employees working outside Philadelphia with regard to its 10-employee threshold, any “chain establishment,” defined as an entity operating “under the same trade name” at 15 or more locations, will be required to provide paid sick leave, regardless of the number of employees working in Philadelphia.

Both Acts exclude independent contractors, seasonal workers and public employees. The PHFW also excludes adjunct professors, employees hired for a term of less than six months, interns, pool employees and employees covered by a collective bargaining agreement. The Pittsburgh law excludes only members of construction unions working under a collective bargaining agreement.

Both laws allow employees to carry over earned, unused sick time to the following year, up to the annual accrual cap. However, to avoid the administrative headaches of calculating unused sick time each year, employers may “front load” employee sick time by providing the required annual allotment at the beginning of each year. Employees are not entitled to a payout for accrued, unused sick time after leaving their employment under either Act.

Conclusion

The distinctions between the Philadelphia and Pittsburgh laws provide just one example of the difficulties faced by national companies in creating one paid sick leave policy that will be compliant across jurisdictions.  Employers seeking one universal policy will have to comply with the most generous of the relevant laws.  To the extent that employers choose to have different sick leave policies in place for each jurisdiction, these companies must keep track of hours worked by employees who regularly work in more than one jurisdiction to determine whether one or more paid sick leave laws apply.

Q. Are employers allowed to ask employees about their salary history in Philadelphia?

A. The U.S. Court of Appeals for the Third Circuit has ruled that a Philadelphia city ordinance that prohibits Philadelphia employers from asking applicants about their current or past pay rates is constitutional. In April 2018, a Philadelphia federal court judge held that the ban was unconstitutional because it violated the free speech clause of the First Amendment. However, this month, the Third Circuit vacated the lower court ruling and held that the ban is constitutional. As a result, Philadelphia employers must immediately begin complying with Philadelphia’s salary history ban.

For more information, click here.

Q. I heard that job postings which impose a maximum experience requirement for external applicants may not violate certain provisions of the ADEA, at least in certain Circuits. Is that true?

A. The United States Supreme Court recently declined to review an en banc Seventh Circuit decision in Kleber v. CareFusion Corporation, which ruled that the Age Discrimination in Employment Act (“ADEA”) does not apply to external job applicants who allege that a neutral hiring policy adversely impacted older workers.

Dale Kleber, then 58 years old, applied for an in-house Senior Counsel position in CareFusion’s legal department. The job description provided that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” At the time, Kleber had accrued more than seven years of relevant experience. The company ultimately did not offer Kleber the job and instead hired a 29-year-old applicant who met but did not exceed the job description’s experience requirement. Kleber filed a lawsuit against CareFusion under the ADEA, which prohibits discrimination against those age 40 or older. One of his main arguments was that, although the company’s maximum experience requirement may have appeared neutral on its face, such requirement had a disparate impact on him as an older attorney.

The Seventh Circuit held that the disparate impact provision of the ADEA only applies to “employees,” and not outside job applicants seeking employment such as Kleber. Section 4(a)(2) of the ADEA, which applies to disparate impact claims, makes it unlawful for an employer “to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The court found that the plain language of this provision only protects those who have a “status as an employee,” and that Kleber did not have such status, since he was an outside applicant. The court also contrasted the disparate impact section with other portions of the ADEA which expressly cover both employees and job applicants, such as the provision which guides disparate treatment claims (i.e. a company intentionally refusing to hire an applicant because of his or her age). A final issue that the Seventh Circuit addressed was whether the ADEA’s text was similar enough to the text of Title VII that it should follow the same interpretation, as Title VII permits applicants to bring disparate impact claims. The court found that the two statutes are distinguishable.

Given the Supreme Court’s decision declining review, the Seventh Circuit’s ruling continues to remain enforceable and provides employers, at least in Indiana, Illinois and Wisconsin, with a sufficient defense to external applicants’ disparate impact claims under the ADEA. The Eleventh Circuit, which covers Alabama, Florida and Georgia, also has ruled in a manner consistent with the Seventh Circuit, refusing to extend the ADEA’s language on disparate impact to outside applicants. No other Circuit has addressed this issue yet.

One note: While employers may be able to successfully escape ADEA disparate impact claims from outside applicants, state and local anti-discrimination laws may extend to protections for outside applicants. In addition, the decisions of the Seventh and Eleventh Circuits have no effect on ADEA disparate impact claims brought by internal applicants already employed within the company. Furthermore, both internal and external job applicants remain protected under the disparate treatment sections of the ADEA. The Seventh and Eleventh Circuit decisions are therefore limited in nature, and employers across the country should continue to regularly monitor their job postings and hiring practices to comply with federal and state anti-discrimination laws.