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.
Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
The NLRA requires employers whose employees are represented by a union to maintain the employee’s existing terms and conditions of employment and to negotiate with the union before implementing any changes to those conditions. Even fundamental changes in the business itself, which are exclusively the prerogative of management and not subject to bargaining, will give rise to a bargaining obligation over the effects of those decisions on unionized employees.
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.
Employers tend to like certain aspects of arbitration. Often it provides a faster and more economical resolution to a dispute than litigation. Parties can represent themselves, without the need for counsel, before an impartial decision maker chosen by them. Most arbitrators have some level of experience or expertise in the subject matter of the controversy they will be deciding. Courts and juries generally will have no such experience. Employers also believe that an arbitrator’s economic self interest, the desire to be selected for future cases, will prevent an arbitrator from entering a “runaway jury” size adverse award significantly beyond the actual, documented losses and, where appropriate, prevailing party attorney fees.
Retaliation against an employee who has filed a complaint, testified, or exercised any right under OSHA is a violation of that Act. OSHA, however, has a small window of opportunity for an employee who believes he has been retaliated against by his employer to bring a claim before OSHA. To be timely, an employee must file his whistleblower complaint with OSHA within thirty days from the date of an adverse action.