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Monday, November 7, 2022

Time Off to Vote Laws

Tomorrow is election day! One more day to scroll past your Facebook friends' torrent of insufferable political posts.

CNBC compiled a 50-state survey: A state-by-state guide to where you’re guaranteed paid time off for voting—and where you aren’t. For my Pennsylvania readers, I'll spare you the suspense: "States that don’t mandate any time off to vote . . . . Pennsylvania."

Monday, October 17, 2022

DOL proposes new independent contractor rule

Ah, one of the joys of being an employer (or employment lawyer) . . . the way the law just magically changes depending on who is president. The Fair Labor Standards Act (FLSA) is 84 years old, and yet we still don't quite know how to determine who is a covered "employee." Late last week, the Department of Labor issued a notice of proposed rulemaking (NPRM) for determining employee or independent contractor classification under the FLSA (News Release here).  

Long story, short: more workers will be classified as employees under the new rule. The new rule would apply a "totality-of-the-circumstances" analysis to the "economic realities test." The "ultimate inquiry" is whether the worker is "economically dependent on an employer for work." DOL has identified six factors to use as a "guide" in this analysis:

  • Opportunity for profit or loss depending on managerial skill;
  • Not official use.
    Investments by the worker and the employer;
  • Degree of permanence of the work relationship;
  • Nature and degree of control;
  • Extent to which the work performed is an integral part of the employer's business; and
  • Skill and initiative.
Sound convoluted? Well, wait, there's more! We must also consider "additional factors," which "may be relevant in determining whether the worker is an employee or independent contractor for purposes of the FLSA, if the factors in some way indicate whether the worker is in business for themself, as opposed to being economically dependent on the employer for work."

Thursday, September 8, 2022

NLRB Proposes New Joint Employer Rule

Welp, this is one of those pendulum issues . . . it swings back and forth depending on the administration. Earlier this week, President Biden's National Labor Relations Board (NLRB) issued a notice of proposed rulemaking (NPRM) (News Release | NPRM).

Not official use.
In short, the proposed rule would make it easier for two entities sharing a relationship with employees to be deemed "joint employers" for purposes of the National Labor Relations Act. Think collective bargaining units, union formation, liability for unfair labor practices, etc. The NPRM proposes to rescind the Trump administration's rule that took effect on April 27, 2020. 

So, what does the new rule do? The NLRB summarizes it as:

Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The Board proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.
Comments due by November 7, 2022 and replies to comments by November 21, 2022. We're probably looking at an effective date sometime in 2023. 

Wednesday, August 24, 2022

New Whitepaper: New Pennsylvania Wage and Hour Regulations

Apologies for the brief blogging hiatus - I plan to ramp back up for the Fall. For now, please check out this new whitepaper: New Pennsylvania Wage and Hour Regulations. The new regs primarily address tipped employees and the calculation of the regular rate (for calculating overtime) for nonexempt salaried employees. 

Friday, July 1, 2022

SCOTUS: No state sovereign immunity for USERRA claims

Justice Breyer issued his final Supreme Court opinion in Torres v. Texas Dept. of Public Safety. Torres served in the United States Army Reserve in Iraq, where he was exposed to toxic burn pits. He returned with constrictive bronchitis, which prevented him from returning to his employment as a state trooper. So, he sought to enforce his rights under USERRA by asking his employer to accommodate him by reemploying him in a new role. His employer refused. He sued.

Justice Breyer
Now, his employer was the state of Texas. This matters because generally states have sovereign immunity and, as the dissent describes it, the Federal Government does not have the "power to subject nonconsenting States to private suits" in their own courts. In Torres, however, the Court held that the federal government did have that power in the context of its war powers - specifically, the powers to raise an army and a navy found in Art. I, §8, cls. 1, 12-13 of the Constitution. 

Congress enacted USERRA pursuant to those powers and therefore the states are not immune from lawsuits under USERRA. 

Sidenote: I made this same argument on a motion to dismiss in one of my cases about 10 years ago... and lost. The Court noted the lack of precedent supporting my position. Now, we have the ultimate precedent on the issue, a Supreme Court opinion. The case ultimately resolved without the need to revisit the issue on appeal, but I remember thinking it was a fascinating one. 

Tuesday, June 28, 2022

SCOTUS on Establishment Clause, Free Speech, Free Exercise, and prayer on the 50-yard line

Yesterday, the Supreme Court issued its opinion in Kennedy v. Bremerton Sch. Dist. This case has a long and convoluted fact pattern, including a high school football coach leading locker room prayers and post-game religious talks. The school told him to knock that off, and he did. 

He would later pray on the 50 yard line, and the school suspended the coach for three specific incidents, which the Court described as "praying quietly without his players." He did so during a time when coaches were generally permitted to have private conversation, make phone calls, and other secular non-work-related activities. There appears to be some disagreement about the underlying facts. While that is surely important to the parties in this case, it is irrelevant to the precedent this case establishes.

Justice Gorsuch
Obviously, terminating a public employee for praying raises significant free speech and  free exercise concerns. The school raised its own concerns though that allowing the prayer would create Establishment Clause concerns - i.e., the coach's prayers could be viewed as school-sponsored or coercive prayer. 

Ultimately, the Court sided with the coach, and the free exercise/speech concerns. When public employees are on their free time, even if they are only on the field due to their employment, their religious prayers cannot be disfavored in comparison to their non-religious activities:

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” This Court has long recognized as well that “secondary school students are mature enough . . . to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense . . . does not equate to coercion.”

(Internal citations omitted).  

Monday, June 27, 2022

Abortion and Employment Law in Pennsylvania

For obvious reasons, I'm revisiting some posts about abortion-related employment issues. First, in 2010, I noted a Pennsylvania employment law that addresses abortion and unlawful discriminatory practices. The Pennsylvania Human Relations Act (PHRA), includes the following provision:

It shall be an unlawful discriminatory practice . . . . For any public or private agency . . . [to] impose any burdens in terms of conditions of employment upon, or otherwise discriminate against any applicant . . . or any physician, nurse, staff member, student or employe thereof, on account of the willingness or refusal . . . to perform or participate in, abortion or sterilization by reason of objection thereto on moral, religious or professional grounds, or because of any statement or other manifestation of attitude by such person with respect to abortion or sterilization.

43 P.S. §955.1. There is, however, a carveout for clinics that operate "exclusively for the performance of abortion or sterilization or directly related procedures."

I also addressed some federal protection under Title VII. The Pregnancy Discrimination Act provisions under Title VII prohibit discrimination "on the basis of pregnancy . . . or related medical conditions." The Third Circuit has held that "related medical conditions" includes abortion:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.  

Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008).