Wednesday, March 31, 2010

Health Care Bill Easter Eggs

Easter is this Sunday so it's the perfect time for an Easter egg hunt. You may have heard (just maybe) that Congress passed a new health care law that was signed by President Obama last week. Well, not surprisingly, within the thousands of pages of new legislation, some lesser-known items were tucked away. People are starting to find them now, so let's look at a few of them.

Reasonable Break Time for Nursing Mothers
One provision of the new health care law amends the Fair Labor Standards Act (FLSA) to generally require employers to provide:
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
The law does not require compensation for this time and some employers are excluded.

I'd like to recognize those bloggers who came before me on this topic (links go to their posts covering this topic):
Tax Deduction Reduction for Retiree Drug Benefits
Some major companies are announcing major losses. As a Denver Post op-ed explains, AT&T "announced it would take a $1 billion, non-cash, first-quarter loss because the bill ends an exemption on benefits for retirees." And other large companies announced additional hundreds of millions of dollars in hits. Now, Rep. Henry Waxman wants the CEOs of those companies to come to D.C. and explain it.

Twenty-Six Year Old "Children"
Parents will be able to keep their children on the parents' health insurance plan up to age twenty-six. As the St. Petersburg Times explains:
"In six months, health plans would be required to allow young adults to remain on their parents' health policies until age 26, with their parents' agreement. This would apply to almost all existing plans. But it's only for adult children who aren't offered coverage through their employers, and grandchildren aren't eligible."
No doubt welcome news to recent college grads bombarded with the harshness of the "real world" in a down economy.

Restaurant Menus
OK, I don't know how employment law-y this is, but it's near and dear to my fast food-loving heart. Chain restaurants must provide calorie information on their menus and promotional signs.

Keep Looking...
I'm sure there are plenty of Easter eggs still tucked away so keep looking!

Image: Public Domain from Library of Congress - The prize basket at the Easter egg rolling at the White House, April 2, 1923.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, March 29, 2010

University Sexual Orientation Nondiscrimination Debate in Virginia

There's an interesting little dust-up down in Virginia. It's particularly interesting to me because it involves my law school alma mater, George Mason University. It also involves Ken Cuccinelli, the current Attorney General of Virginia, who also obtained his J.D. from Mason.

Earlier this month, Cuccinelli issued a letter to Virginia's public colleges and universities (.pdf).The letter provides in part:
"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification, as a protected class within its nondiscrimination policy, absent specific authorization from the General Assembly."
The gist of the letter is that Virginia's General Assembly has the sole power to add protected classes.

His (and my) alma mater isn't biting. Last week, George Mason's Board of Visitors reaffirmed the University's commitment to nondiscrimination. Technically, they committed to "equal treatment... in any and all contexts," but the explicit reference to the contributions of "lesbian, gay, bisexual and transgender faculty, students, administrators and staff" left little doubt as to their purpose. They also cited concerns over violation of the Equal Protection Clause of the Fourteenth Amendment absent a sexual orientation nondiscrimination policy.

Indeed, some courts have explicitly recognized that the Equal Protection Clause protects public employees from sexual orientation-based discrimination (see, for example, Quinn v. Nassau County Police Department). It's not just the Constitution but also Title VII that should be of some concern to the universities. I know, technically Title VII does not cover sexual orientation or gender identity, but we've seen a blurring of the line lately. There was a Transgender claim worth half a million in a D.C. District Court, and a gay man protected by Title VII in the Third Circuit under a gender stereotyping theory.

Adding to the confusion, Virginia Governor Bob McDonnell issued an executive directive stating that discrimination "based on factors such as one’s sexual orientation or parental status" will not be tolerated. And Cuccinelli issued a follow-up op-ed, stating:
"Critics of my advisory seem to ignore the fact that individuals are already protected from irrational discrimination by a governmental body under the equal protection clause of the Fourteenth Amendment to the United States Constitution."
But he stands by his analysis and points out that adding classes may create a new contractual basis for lawsuits against universities.

I suspect the colleges and universities will keep their policies anyway. Cuccinelli recognizes that the U.S. Constitution protects individuals from "irrational discrimination" (is it assuming too much to think that extends to sexual orientation-based discrimination?). So his advice is that universities can't create their own policies to comply with the U.S. Constitution (and possibly Title VII), absent an act of the Virginia General Assembly? That strikes me as odd, but we'll see what happens.

Image: That's me! That picture was taken on George Mason University's campus in Fairfax, Va by the statue of George Mason on my graduation day. Although, the law school is actually in Arlington, Va.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Saturday, March 27, 2010

Child Labor Constitutional Amendment

America's Constitution: A BiographyI finished reading America's Constitution - A Biography by Akhil Reed Amar this weekend. It's a great history of the Constitution as a document from its ratification through the XXVIIth and latest Amendment. I found Amar's detailing of failed amendments in a footnote near the end to be particularly intriguing.

The Child Labor Amendment provided:
Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.
From 1924-1937, twenty-eight states ratified the amendment, falling short of the thirty-six then needed.

Interestingly, the Amendment contains no sunset clause. That means the 28 ratifications remain effective and should enough additional states ratify it, it becomes an amendment! Maybe then, Congress will have the authority to prohibit child labor and preempt state law. Wait... doesn't that already happen? As Amar notes:
"When, in the late 1930s and early 1940s, the New Deal Court itself began to recognize congressional power to regulate child labor and analogous aspects of the national economy, the proposal was in effect overtaken by events."
The Commerce Clause underwent some changes over the 20th century, none of which involved actually changing the clause itself, or extending it through amendment. I suspect we'll hear quite a bit about that issue as Americans debate whether the new health care law is Constitutional.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Friday, March 26, 2010

Lycoming County and M.D. Pa. Added to Pennsylvania Courthouses Photo Album

I went to the Lycoming County Court of Common Pleas this morning. By now, you know the drill... pictures for the Pennsylvania Courthouses Photo Album!

The Lycoming County Courthouse is in Williamsport, Pennsylvania. Right down the street from there is the United States District Court for the Middle District of Pennsylvania. I got some photos of that too. Depending on how much you enjoy being questioned by an FBI agent, I recommend checking with security before taking pictures of federal courthouses. The guys there were courteous and professional (and vigilant).

I was sworn in to practice in the Middle District of Pennsylvania in that courthouse by Judge Malcolm Muir (a mere 96 years old and still working - received his Ll.B. from Harvard in 1938!).

Click here to view the photo album on Picasa.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, March 24, 2010

Civil Litigation Retreat - Cross Examination

The Pennsylvania Bar Association Civil Litigation Section is holding its annual retreat on April 16-18, 2010 in Baltimore's Inner Harbor. The event will focus on cross examination and ethics.

View PBA Civil Litigation Section Annual Retreat Brochure (.pdf)

Registration Form

The scheduled events include:
  • "The Stress and Success of Cross Examination" by Hon. Mark Bernstein & Larry Bendesky, Esq.
  • "Sidebar Encounters: Avoiding Everyday Ethical Dilemmas" by Marc L. Bogutz, Esq. & Jay N. Silberblatt, Esq.
  • KEYNOTE: Pennsylvania Supreme Court Justice J. Michael Eakin
There are other fun events scheduled as well. Not to mention, I will be in attendance! If you're interested, it's not too late to register.

Sidenote: The Civil Litigation Section publishes a quarterly Update. The Winter 2010 issue features a cover story by yours truly.

Tuesday, March 23, 2010

2-Member NLRB Hits SCOTUS

No, not literally. The Supreme Court heard oral arguments today in New Process Steel v. National Labor Relations Board (NLRB). The issue before the Court was whether a two-member NLRB can decide cases under the National Labor Relations Act (NLRA). I previously blogged about the two-member situation here.

The Supreme Court published a transcript of the arguments. There's a nice breakdown of the arguments over at Workplace Prof Blog by Paul Secunda. His prediction? "9-0 in reversing the 7th Circuit and upholding the 2-member Board decisions."

We shall see...

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, March 21, 2010

March Madness and Unemployment Compensation

If you try hard enough, you can spot employment law lessons anywhere... even March Madness. The biggest controversy in the NCAA Men's Basketball Tournament thus far is a lane violation call in the Michigan State - New Mexico State game in the first round.

The Free Press compiled a collection of some of the criticism of the call: "Ridiculous;" "The official should have pocketed the whistle;" and "horrendous, horrendous call." Here's video of the call in question. A New Mexico State player puts his foot in the lane before the foul shot... this is a violation.

So what's the problem? Chris Chase, quoted in the Free Press article, hits the nail on the head: "Lane violations happen on a majority of free throws and are almost never whistled." That really bothers us for some reason. Even though the call was likely correct under NCAA rules, it just doesn't seem fair because it's not usually called. Which brings us to the Unemployment Compensation (UC) lesson.

Under Pennsylvania UC law, an employee who is terminated for willful violation of an employer's rule has committed "willful misconduct" and is generally ineligible for UC benefits. We like rules, and expect people to follow them. But when an employer applies a rule inconsistently, we feel the same sense of unfairness that provoked outrage over the lane violation call.

Take the case of Remcon Plastics v. UC Board of Review, 651 A.2d 671 (Pa. Cmwlth. 1994). The Claimant,
"candidly admitted that, contrary to Employer policy prohibiting fighting, he and a co-worker freely entered into and participated in an altercation on Employer's premises."
The Claimant was terminated, the co-worker was not. The claimant argued that "an employer must enforce rules equally in order to establish a standard of conduct."

The Court stated that it, "must consider whether similarly situated people are treated differently, based upon an improper criteria." The employer offered no evidence of proper criteria necessitating the different treatment of the two employees. Hence, the employee was granted UC benefits, despite his clear violation of the employer's rule.

We dislike inconsistent application of rules, whether it's basketball or employment. Simple lesson for employers: Apply your rules consistently.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, March 18, 2010

McQuaide Blasko Launches New Web Site

Today, a new web site took the legal world by storm. Of course, I'm talking about the brand new McQuaide Blasko website. Ok, I suppose a few people were talking about the new Supreme Court website, which also launched today.

But back to the MQB site. New features include:

  • News and Events page with awards, published articles, community service, and more;
  • Attorney Listings by name, office location, and practice group; and
  • Enhanced bios - See mine for an example, now including personal interests, community service, and background information... also note that it now links to Lawffice Space!
It's a big improvement. Take some time to check it out!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Wednesday, March 17, 2010

FMLA Established Through Lay and Expert Testimony - 3rd Circuit

Last week, in a matter of first impression, the Third Circuit Court of Appeals decided:
"whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by the FMLA’s implementing regulations."
Schaar v. Lehigh Valley Health Services, Inc. (.pdf), No. 09-1635 (3d Cir. March 11, 2010). I'll cut to the chase: Yes.

The facts are a little confusing... the employee missed four consecutive days of work, but two were previously scheduled vacation days. And on the two sick days, she did not call in, but rather taped a note from her doctor to her supervisor's door. The doctor's note said the employee was too sick to work for two days. The doctor later testified that the employee should have been better after a day or two, but it was "possible, although very unlikely" that she would not be recovered after three days.

The employer terminated the employee who later filed suit, claiming interference and discrimination in violation of the FMLA. At the trial level, the employer won on summary judgment. The District Court held that the employee did not qualify for FMLA since she:
"did not establish a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days."
That was the sole issue on appeal.

The Third Circuit noted that various courts have employed one of three standards:
"(1)the evidence of incapacitation must come exclusively from a medical professional;
(2) lay testimony, on its own, is sufficient; or
(3) lay testimony can supplement medical professional testimony or other medical evidence."
The Third Circuit officially adopted the third option. Notably, the Court explicitly rejected the notion that lay testimony in itself is sufficient to avoid summary judgment. The opinion also cites and discusses decisions from other Circuits (Fifth, Seventh, Eighth, and Ninth) on this issue starting on p. 10 of the opinion (.pdf).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Blair County Added to Pennsylvania Courthouses Photo Album

I went to the Blair County Court of Common Pleas this morning, mostly to do real work, but I also grabbed some pictures for the Pennsylvania Courthouses Photo Album!

Click here to view the photo album on Picasa.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Monday, March 15, 2010

Vague Affirmative Defenses and Motions to Strike Them

The new issue of the Pennsylvania Bar Association Civil Litigation Update features as its cover story, my latest article, Vague Affirmative Defenses and Motions to Strike Them (.pdf). A "vague" affirmative defense is merely an affirmative defense asserted in the New Matter section of the Defendant's Answer with no material facts pleaded in support thereof. A brief excerpt:
"This article will address vague affirmative defenses, motions to strike them under Pennsylvania law, and factors to consider in deciding whether to file such a motion to strike. First, we will start with the procedural rules that make such vague affirmative defenses nearly inevitable, and then follow with an analysis of a motion to strike under these circumstances. The analysis will address the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.), Pennsylvania case law, and the logical policy implications for and against striking vague affirmative defenses. Finally, this article will identify some of the practical considerations a party faced with a vague affirmative defense should weigh before submitting a motion to strike them."
It's not an employment-law specific issue, but it's helpful for anyone litigating in Pennsylvania state courts.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, March 14, 2010

Concentrate Your Fire; Guard Your Reputation

Making Your Case: The Art of Persuading Judges An unabridged reading by the authors on audio CDThis past week, I read Making Your Case by Justice Antonin Scalia and Bryan Garner. It contains plenty of helpful advice for attorneys and anyone seeking to master the art of persuasion. One particularly insightful piece of advice is to "concentrate your fire" by focusing on your best arguments. As the authors describe:
"On the surface, it might seem that a ten-point argument has been overanalyzed. In reality, it has been underanalyzed. Counsel has not taken the trouble to determine which arguments are strongest or endured the pain of eliminating those that are weakest."
P. 23. Sage advice for anyone seeking to make an argument, including in the employment law context.

Certainly, there will be times when it behooves counsel to cast a broad net. For example, plaintiffs certainly don't want to foreclose potentially viable claims by failing to assert them in the early going. Generally though, concise argument is a virtue.

This can be particularly challenging in the employment law context. Why? Because the employer and employee likely have a long history together. The employee can no doubt recount any number of petty slights or grievances. Similarly, the employer can likely identify even the most minor missteps along an employee's entire tenure. Often, though not always, such gripes will not advance either side's main point. Further, they may obfuscate stronger points.

Finally, attorneys in particular must take heed of the closing words of Making Your Case: "Argue not just for the day but for reputation." P. 206. A reputation as a "shotgunner," somebody who sprays their fire, is not something attorneys seek. As the book states, this "gives the impression of weakness and desperation." P. 22. A skilled persuader identifies the winning arguments and concentrates his or her fire where it counts.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Saturday, March 13, 2010

Ledbetter, Compensation Docs, and Me on The Proactive Employer 4/2

On Friday, I confirmed with Stephanie Thomas that I will appear on her podcast, The Proactive Employer, on April 2, 2010. Per the official announcement, the topic will be:
"[C]ompensation decisions . . . [and] how the Ledbetter Fair Pay Act has affected recordkeeping and document creation and retention."
Did I mention the show will be LIVE!?

I don't want to show my hand too much but I have gone on the record regarding some of these issues. For example, in Employers Urged to Save Pay Documents, I am quoted as saying:
"Employers should be looking at how they document their compensation decisions, with an eye toward building a record that can be used many years down the line. Today's compensation decision could result under the Fair Pay Act in a claim several years down the road, and long after the people involved in the compensation decision have moved on. It may be the only thing they have."
And then, in Ledbetter Fair Pay Law Hasn't Flooded Courts, I'm again quoted:
"[It is difficult to] support your side of the story when you may not have the people or the documentation to support your side of the argument . . . . I would definitely say it's still an issue for employers and it's really going to be an ongoing issue . . . . It's something they're really going to have to continuously prepare for by creating and maintaining documentation."
Both articles appear in Business Insurance. That's just a sneak preview. Ms. Thomas and I will delve further into these issues on April 2, 2010. Be sure to tune in!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, March 11, 2010

Pennsylvania Courthouses Photo Album

Last weekend I started a project I have been meaning to begin for some time now: Photographing the courthouses of Pennsylvania. Below is an embedded Picasa photo album. If you can't see the slideshow below then click here to view the album in web Picasa.

Check back for updates!

Currently included:
- Centre County Court of Common Pleas in Bellefonte, Pennsylvania
- Centre County Bar Association (CCBA) office in Bellefonte, Pennsylvania
- CareerLink in State College, Pennsylvania
- Blair County Court of Common Pleas in Hollidaysburg, Pennsylvania (added March 17, 2010)
- Lycoming County Court of Common Pleas in Williamsport, Pennsylvania (added March 26, 2010)
- United States District Court for the Middle District of Pennsylvania, Williamsport Division (added March 26, 2010)
- Juniata County Court of Common Pleas in Mifflintown, Pennsylvania (added May 21, 2010)
- Clearfield County Court of Common Pleas in Clearfield, Pennsylvania (added July 13, 2010)
- Cambria County Court of Common Pleas in Ebensburg, Pennsylvania (added July 30, 2010)
- Mifflin County Court of Common Pleas in Lewistown, Pennsylvania (added September 15, 2010)
- Tioga County Court of Common Pleas in Wellsboro, Pennsylvania (added October 17, 2010)
- Jefferson County Court of Common Pleas in Brookville, Pennsylvania (added November 4, 2010)
- Lancaster County Court of Common Pleas in Lancaster, Pennsylvania (added November 20, 2010)
- Lackawanna County Court of Common Pleas in Scranton, Pennsylvania (added December 15, 2010)
- United States District Court for the Middle District of Pennsylvania, Scranton Headquarters (added December 15, 2010)
- Huntingdon County Court of Common Pleas in Huntingdon, Pennsylvania (added February 16, 2011)
- Clinton County Court of Common Pleas in Lock Haven, Pennsylvania (added May 31, 2011)
- Potter County Court of Common Pleas in Coudersport, Pennsylvania (added October 18, 2011)
- Dauphin County Court of Common Pleas in Harrisburg, Pennsylvania (added April 23, 2011)
- Pennsylvania Supreme Court in Harrisburg, Pennsylvania (added April 23, 2011)
- Adams County Court of Common Pleas in Gettysburg, Pennsylvania (added April 11, 2013)

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Tuesday, March 9, 2010

Extensions Galore - UC and COBRA

COBRA subsidized premiums just keep getting extended. First, Congress extended it to February 28, 2010. Last week, Obama signed another extension until March 31, 2010 (Temporary Extension Act of 2010 (.pdf)). Now, Business Insurance reports that Congress is poised to extend the COBRA subsidy through the end of the year.

What COBRA subsidy, you ask? Per the Department of Labor's COBRA web site:
"premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit....and lasts for up to 15 months."
COBRA's not the only unemployment assistance program that seems to keep going and going.

The Washington Post ran an article today, Are Unemployment Benefits No Longer Temporary? It addresses both sides of an ongoing debate over whether the unemployment compensation extensions are too long. UC previously lasted about six months, but in response to the current downturn has been extended to 99 weeks in some states. The article reports that 11.4 million people are collecting UC at a cost of $10 billion a month.

The article is worth a read in its entirety, but in short - Detractors argue UC is becoming a new entitlement program, acting as a disincentive to search for work, and costing more than we can afford. Supporters argue it's necessary for those who have lost their jobs, reasonable given the lack of available jobs, and some people put money in for years, now they need it.

Image: Photograph (taken by me) of the State College, Pennsylvania CareerLink. Among other things, it's where Unemployment Compensation referee hearings are held.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Sunday, March 7, 2010

Price of Time - Naked Economics IV

This is the fourth and final entry in a series of posts on Naked Economics by Charles Wheelan.

It is axiomatic that time is money. This underlies the very premise of employment: employees exchange their time for the employer's money. Sure, there are some subtleties, like specialized skills or property from the employees and benefits beyond money from the employer (although for enough money you could buy the parking spot with your name on it and the health insurance). Wage and salary are the answer to the question: What is your time worth?

This is not a static number. There are several factors but the two most prominent are the diminishing return of money and the increased value of your time as it becomes scarcer. As you get more money, the same amount is worth less to you. If you were literally starving to death, five bucks for a sandwich would mean everything to you. That second five bucks for dessert would mean a little less. Five bucks to Bill Gates is hardly worth stopping to put in his pocket.

Your time works the same way, although we experience it in reverse. That is, as work begins to take up more of our lives, we have less time and therefore we value each free moment that much more. The result of these two phenomena is that we will work some hours for a given wage but at some point we stop. The same wage will not entice us to work more hours. This often leads to increased incentives - for example, bonuses for hitting a certain number of hours, or time and a half for overtime.

In Naked Economics, Charles Wheelan presents an economic theory about the correlation between wages and the number of hours people will work:
"There is something in labor economics called the 'backward-bending labor supply curve' . . . . Economics theory predicts that as our wages go up, we will work longer hours-up to a point, and then we will begin to work less. Time becomes more important than money. Economists just aren't quite sure where that curve starts to bend backward, or how sharply it bends."
Here is a chart depicting this theory (Public Domain via Wikimedia Commons):
The higher end seems obvious if you take an extreme example. If you made a million dollars an hour wouldn't you work less so you could go out and enjoy your riches more?

Alright folks, that's the end of the Naked Economics series. I enjoyed the book as an entertaining introduction to economics. I have studied economics previously (B.S. in Business, and a J.D. from a law school (George Mason) that heavily incorporates Law & Economics into its curriculum). Despite already knowing the major economic principles, I still found enough interesting new tidbits to make the read worthwhile.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Thursday, March 4, 2010

Job Fair for Felons

CNN reports that more than 3,000 people turned out in Houston, Texas for a job fair. In this down economy, it's certainly not unusual to have a job fair, and it's practically the norm for there to be a line around the block. What makes this one interesting is that it was designed for convicted felons.

The job market is brutal right now, but particularly rough for those with criminal records. Both employers and potential employees with criminal records should familiarize themselves with the law regarding hiring criminals. Pennsylvania has a statute governing this very issue:
"(b) Use of information.--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. There is also a provision requiring employers to notify employees when a hiring decision is based on criminal history.

In short, employers are generally free to grant second chances to candidates with criminal records. Employers that don't wish to take a chance on an individual's second chance may take prior convictions into consideration to the extent they relate to the position.

There's another side to this equation though. That is, employers must be aware of when they can consider criminal convictions and situations in which they must. The Pennsylvania Human Relations Commission (PHRC) has invited comments on its Policy Guidance Concerning the Disparate Impact Discrimination Implications of a Denial of Employment Based on a Criminal Record. Disparate impact liability is one consideration, but I actually linked to the guide because it contains a helpful appendix.

The appendix highlights employment prohibited by law. For example, airports may not hire individuals convicted of federal hijacking, and child care may not hire individuals with convictions for kidnapping. The appendix also highlights issues concerning the implications of criminal convictions for Pennsylvania occupational licensing.

If the embedded video does not display properly, click here to view.
Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Lawffice Space a Favorite on Workplace Prof Blog

Workplace Prof Blog asked its readers for their favorite labor/employment blogs. Check out the final list, including Lawffice Space! And before you even ask, no I did not nominate myself! In all seriousness, it's an honor to be recognized. As of this writing (and quite consistently), Workplace Prof Blog is the single absolute #1 most popular employment law blog (as ranked by Justia). Definitely check them out, and check out the rest of the list. It includes some of the "usual suspects," but a few of the lesser knowns as well.

Wednesday, March 3, 2010

First Child Labor Law in U.S.

Can you imagine those lazy eleven year-olds and their mere ten hour work days? And don't even get me started on those nine year-olds that don't even have jobs yet! Alright, that was (hopefully obvious) sarcasm, and so detached from our societal norms that no one would take me seriously.

I'm actually poking fun at nineteenth century America. Today marks the anniversary of the first child labor law in the United States, enacted in 1842. The law reportedly "established the 10-hour day for children under 12; [and then in] in 1867, it forbade employment for children under 10."

Keeping in mind that slavery was still in effect in much of the United States at this time, it's probably not surprising that there were not yet laws forbidding child labor. In less than a century from the enaction of the first child labor law we saw the abolition of slavery up through the Fair Labor Standards Act of 1938. It's amazing how radically our labor laws have changed over a fairly short period of time.

Image: "Coal Breaker Boys" from Library of Congress (1890-1910) - Call No: LC-D4-32069.

Tuesday, March 2, 2010

SCOTUS Guns Down "Employment Law Blockbuster"

The Supreme Court heard oral arguments in McDonald v. City of Chicago today (transcript here .pdf). Although the case involves the right to keep and bear arms as applied to state and local governments, I previously wrote that this could be an "employment law blockbuster." The employment law aspect arises from the possibility that the Supreme Court could revive the all but defunct 14th Amendment Privileges or Immunities clause.

Every indication is that the Supreme Court gunned down (corny pun fully intended) this legal theory. The National Law Journal reports "Justices Shoot Down 'Privileges' Argument in Gun Case." Apparently they like gun puns too. Josh Blackman's initial reaction after attending oral arguments was that "The Court was not at all receptive to arguments on Privileges or Immunities but incorporation on Due Process is a slam dunk." And the Business Insider writes, "The court pretty much put the heat on ice by signaling they are not giving the Privileges or Immunities clause argument any serious consideration."

Oh well, it remains an interesting academic theory and maybe one day the Privileges or Immunities clause will rise again. It doesn't appear as though that day is upon us.

Image: Handgun Collection by Joshuashearn licensed under Creative Commons Attribution ShareAlike 3.0 License.