Employers defend harassment claims not involving a loss of tangible employment benefits (i.e., hiring/firing, promotion, reassignment, changes in benefits) with a two-prong defense. First, they show that they exercised reasonable care to avoid such conduct and eliminate it if it occurs (an effective policy and prompt corrective action). Second, employers show that the complaining employee failed to act with reasonable care to take advantage of the policy. Employers are successful in obtaining summary judgments in such scenarios where the employee flounders on the second prong by either totally failing to use the policy or doing so belatedly – even as short as two to four months after the incident occurred. Complaining employees try to keep their claims alive, often by claiming that their failure to promptly invoke the harassment policy was not unreasonable. A generalized fear of retaliation, unsupported by specific evidence, has not carried the day for employees, and employers have successfully disposed of such cases on summary judgment.
Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.
Personnel policies are designed to inform employees of the types of conduct that are acceptable or unacceptable. They, obviously, can only give a general overview and are subject to interpretation and application by the employer on a case-by-case basis. A recent decision arising out of a Tweet by a Vice President of Human Resources shows that such policies will be strictly construed against employers in Pennsylvania.
Pennsylvania’s Commonwealth Court recently issued an opinion, which, while arising in the unemployment compensation arena, may have broader implications for today’s contingent workforce. In Lowman v. Unemployment Compensation Board of Review (January 24, 2018), the Court was called upon to decide whether a claimant, who had been laid off from his job as a behavioral health specialist, engaged in self-employment by becoming a driver for Uber. To perform his duties for Uber, the Claimant used his own phone and car, paid for all related expenses (fuel and maintenance), had to have insurance, a driver’s license, and vehicle registration, set his own hours, could refuse assignments, and could drive for others. Additionally, he earned approximately $350 per week, showing a frequent and prolonged relationship with Uber—not occasional and limited to earning some extra money on the side.
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.
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.