Tuesday, December 11, 2018

Third Circuit on compensation for commuting requirements

Black letter law dictates that time spent commuting is generally not compensable. But are there exceptions? The Third Circuit issued an interesting (albeit, not precedential) opinion on a quirky commuting scenario in Smith v. Allegheny Technologies, Inc.

Not official use.
The employer began a lockout of its union employees, who responded by creating a picket line. The employer hired a temporary workforce, and allegedly required them to take company vans from their hotel to cross the picket line - roughly a 45-minute commute each way. Some of the employees filed a lawsuit claiming they were entitled to compensation for the commuting time under the Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage Act (PMWA) (also, some Oregon law, which for purposes of this case was identical to the FLSA).

The Court actually reached a split decision - the employees could proceed under the PMWA, but not the FLSA. The Portal-to-Portal Act specifically excludes mandatory compensation under the FLSA for time spent "traveling to and from the actual place of performance of the principal activity," unless the travel was "integral and indispensable" to their principal activity of making steel. The Court held that taking the van to work was "at least two steps removed from making steel." Thus, no FLSA claim.

The PMWA has no express portal-to-portal provision though. Instead, Pennsylvania regulation requires compensation for "time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work.” 34 Pa. Code § 231.1. The plaintiffs alleged that they were required to cross the picket lines in company vans, and that they were to follow specific instructions as a "term and condition of their employment." That was good enough for the Third Circuit to allow them to proceed with their PMWA claims.

Monday, November 26, 2018

PA Supreme Court recognizes employer duty to safeguard employee data

Right before Thanksgiving, the Supreme Court of Pennsylvania (SCOPA) issued its opinion in Dittman v. UPMC.

UPMC employees alleged that "a data breach had occurred through which the personal and financial information, including names, birth dates, social security numbers, addresses, tax forms, and bank account information of all 62,000 UPMC employees and former employees was accessed and stolen from UPMC’s computer systems." They further alleged that the data was used to file fraudulent tax returns. Do they have a valid claim?

Two primary issues: (1) Did UPMC actually owe them a duty recognized by law? and (2) Does the "economic loss doctrine" preclude the lawsuit?

The Court held that "an employer has a legal duty to use reasonable care to safeguard its employees’ sensitive personal information that the employer stores on an internet-accessible computer system." We don't know exactly what that means yet - but a duty to use reasonable care exists.

For the second issue, the Court addressed the economic loss doctrine, which precludes negligence lawsuits where the only damage is economic (i.e. no physical injury or property damage). The Court ultimately concluded that "recovery for purely pecuniary damages is permissible under a negligence theory provided that the plaintiff can establish the defendant’s breach of a legal duty arising under common law that is independent of any duty assumed pursuant to contract."

The big takeaway here is that employers must use reasonable care to protect employee data - and, if they don't and the data gets compromised, those employees have a leg to stand on in court.

Tuesday, November 13, 2018

Does Pennsylvania's Medical Marijuana Act only protect status and not use?

Why is it so hard to write a clear and easy-to-understand statute? Pennsylvania has a fairly new Medical Marijuana Act (MMA). The statute protects "an individual who is certified to use medical marijuana."

I have heard, however, some conjecture that employers may still maintain zero tolerance policies and terminate employees (or rescind offers to applicants) based solely on a positive (for marijuana) drug test - even if the employee is an MMA cardholder. The gist of the argument is that the statute protects the employee's status as a MMA cardholder, but not their use of marijuana. Under the language of the statute, there's certainly some room for that argument:
(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana. 35 P.S. §  10231.2103(b)(1).
Emphasis on "solely" and status." But, that is tough to square with the next subsection of the statute:
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position. 35 P.S. §  10231.2103(b)(2).
Why would the legislature create these carve-outs - focusing on workplace use and impairment - if all use could be banned? It would render subsection (2) meaningless surplus, which we try to avoid in statutory construction.

I'm not aware of any Pennsylvania courts weighing in on this issue. But, a Connecticut federal court ruled on precisely this argument (under a very similar Connecticut medical marijuana law). Pardon the lengthy bloc quote, but it's right on point:
Defendant next argues that PUMA prohibits discrimination only on the basis of one's status as an approved medical marijuana patient but not on account of one's use of medical marijuana in accordance with a PUMA program. For this argument, defendant relies on the language of the statute that forbids an employer from refusing to hire someone "solely on the basis of such person's or employee's status as a qualifying patient." Conn. Gen. Stat. § 21a-408p(b)(3). But the language and purpose of the statute make clear that it protects employees from discrimination based on their use of medical marijuana pursuant to their qualifying status under PUMA. Under defendant's restrictive interpretation of the statute, employers would be free to fire status-qualifying patients based on their actual use of medical marijuana—the very purpose for which a patient has sought and obtained a qualifying status. That makes no sense and would render the statute's protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.  
Moreover, the statute provides that "[n]othing in this subdivision shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours." Ibid. By negative implication, this language makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.
Noffsinger v. SSC Niantic Op. Co., LLC, No. 3:16-cv-01938 (D. Conn., Sept. 5, 2018).

To be clear, in my humble opinion, this issue is not resolved under Pennsylvania law, but employers should tread carefully.

Wednesday, November 7, 2018

Ninth Circuit's Revenge: SCOTUS on ADEA definition of "employer"

The 6th, 7th, 8th, and 10th Circuits held one way . . . and then the 9th Circuit held another way, creating a circuit split. The Supreme Court granted certiorari, which means the 9th Circuit will surely get reversed right?

That would be the conventional wisdom. But, the 9th Circuit had the statutory text on its side.

The Supreme Court issued its first opinion of the term yesterday in Mount Lemon Fire Dist. v. Guido. The ADEA generally only covers employers with 20 or more employees, but does that 20-employee cutoff apply to state entities (including political subdivisions)? Let's go to the text of the ADEA:
The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .
In a unanimous opinion (minus Justice Kavanaugh, who was not yet on the Court when the case was argued), Justice Ginsburg focused on the text. In particular, the words, "also means." This suggests that the statute is creating additional categories aside from the 20-employee prelude. Thus, the Court held "state and local governments are “employer[s]” covered by the ADEA regardless of their size."

Tuesday, October 23, 2018

Job interviews and expunged criminal records in Pennsylvania

Pennsylvania law limits employers' use of criminal records:
Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied. 
18 Pa.C.S. § 9125.

What about an expunged record? The gist of expungement is that (in most cases) it is like the criminal conviction never happened. So, what about when an employer asks an applicant with an expunged record if (s)he has ever been convicted of a crime?

Well, technically, as a matter of historical fact the applicant has been convicted. But, as a matter of law, that conviction no longer really counts. It's a no-win situation for applicants:
  • Answer historically correct (disclose the expunged record) and the employer knows about the record (defeating the purpose of getting it expunged); or
  • Answer technically correct (no convictions) and the employer may find out about the expunged record and feel like the applicant was dishonest. 
An individual required or requested to provide information [about expunged convictions, outside of a few exceptions] may respond as if the offense did not occur.
18 Pa. C.S. ¶ 9122.5. The amendments appear to become effective on June 28, 2019.

In other words, Pennsylvania will have a statute stating that generally job applicants with an expunged record may respond "as if the offense did not occur." As always, detecting employer violations and enforcement will be challenging.

HT: Dan McKenrick, who gave a great presentation about the amendments at Centre County Bench Bar Day. 

Thursday, October 18, 2018

Has #MeToo had an impact?

We have some early indicators that the #MeToo movement has had an impact - not just culturally, but in the actual field of employment law. 

Here in the Third Circuit, the Court of Appeals specifically recognized the #MeToo movement while issuing a very employee-friendly take on the Faragher-Ellerth defense (effectively making it easier for plaintiffs to prevail).

Two weeks ago, the EEOC released its preliminary data on sexual harassment claims, and guess what? They saw a 12% increase in sexual harassment charges filed by employees, and the EEOC itself filed 50% more sexual harassment lawsuits. 

We should also keep an eye out for the EEOC's long-awaited harassment guidance

So, we have: 
  • more people coming forward to file claims; 
  • more enforcement actions from the EEOC; 
  • courts taking notice and issuing opinions that (arguably) make it easier for harassment plaintiffs to win in court; and
  • employers will get some guidance on how to address harassment (hopefully) soon. 
While we've seen lots of action, what we're still waiting for is results. Will these steps have the intended effect?

Wednesday, October 3, 2018

SCOTUS kicks off new season with ADEA case

On Monday, the Supreme Court kicked off its new season with only 8 Justices (with a 9th possibly, maybe, on the way). The Court heard oral arguments in Mt. Lemmon Fire Dist. v. Guido (transcript here). The case presents an interesting ADEA issue.

Generally, the ADEA covers employers with 20 or more employees. Does that 20-employee minimum apply to states (and their political subdivisions, agencies, and instrumentalities)? The statutory text:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year…. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b).

Most circuit courts that have examined this issue have held that yes, the 20-employee minimum applies. So, that's where my money is on this case - but we'll see.

Mt. Lemmon Fire Dist. v. Guido SCOTUSblog page.