Employers likely recall the ill-fated federal overtime rule that was proposed during the Obama administration and was struck down last year. Even though the changes to the Fair Labor Standards Act’s overtime salary threshold never came to fruition at the federal level, Pennsylvania employers should be prepared for possible changes at the state level.
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.
A recent National Labor Relations Board decision – Circus Circus Casinos, Inc., 366 NLRB No. 110 (June 15, 2018) – has shed new light on what constitutes a unionized employee’s request for Weingarten assistance in an investigatory interview or disciplinary hearing. According to the long-established precedent set forth in NLRB v. J. Weingarten, Inc., an employee is entitled to assistance from a union representative when the employee reasonably believes that disciplinary action may result. This right to a union representative arises “only in situations where the employee requests representation.”
Fear of creatures that lurk in deep water is pretty universal – for confirmation, look no further than the numerous summer movies featuring unexpected attacks by fierce underwater predators with sharp teeth. Inevitably, none of the victims seem to have any tools that will actually save them. One after another, their tools break, and their escape attempts fail pitifully. Unfortunately, such movies give the impression that the only protection from these predators is staying out of the water altogether.
Although 401(k) plans are intended to accumulate savings for participants’ retirement, the reality is that when unexpected expenses arise, participants may ask whether they can get a distribution from their 401(k) account. Federal tax rules permit a hardship distribution if (a) the participant experiences an “immediate and heavy financial need,” and (b) the distribution is no greater than the amount “necessary to satisfy the financial need.” If a plan administrator permits a hardship distribution that does not fit within the hardship rules, the result is an operational error that must be corrected in accordance with IRS rules. To avoid the time and expense involved with corrections, plan administrators should stay current with rules in this area. In recent legislation, Congress has loosened restrictions on hardship distributions in some ways and tightened them in others.
The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest. Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them. If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn.
Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits. What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision. In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment.
Public Employees Have The Right To Refrain From Union Membership and Compelled Union Dues
In a 5-4 ruling split evenly along party lines, the United States Supreme Court bolstered the right of public sector employees to abstain from union membership and compulsory dues payment. The ruling in Janus v. AFSCME provides that public sector unions cannot require employees to pay dues and fees associated with the negotiation of labor agreements and administration of grievances under such agreements, although those employees will be covered by the bargaining agreement. Public sector employers have been a final stronghold of the American labor movement. While only 6.5% of private sector employees are unionized, unionization of public sector employees is currently 34.4%. To put public sector’s union activities into context, of the $64.6 million spent by these unions during the 2016 election cycle, 90% of those funds went to Democratic candidates.
It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?