2020 Your Counselors on Call™ We pride ourselves on being your “Counselors on Call™” to provide responsive, coordinated representation in all aspects of labor and employment. We provide effective counsel to public and private sector employers in employment, labor, employee benefits, workers’ compensation and immigration law. Our clients range from family-owned businesses to some of the largest employers in the region.
Employment Law News
We counsel industries including retail, higher education, manufacturing, construction, finance, hospitals and health care, communications and printing, professional services, food processing and non-profit organizations.
Year In Review
page 4
page 8-9
page 10
Multi-State Employers Need to Be Aware of StateSpecific Laws
SCOTUS ends Blockbuster 2020 for Employment Law
More Updates on the DOL’s Joint Employer Rule
Major employment law decisions were issued during the 2019-20 term on subjects ranging from LGBTQ discrimination to immigration.
Check out this article for more insight regarding the U.S. Department of Labor’s Final Joint Employer Rule.
Read this article to ensure your business is complying with laws for employees who may work in another state.
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EMPLOYMENT LAW | 2020 REVIEW
Message from our Employment Practice Group Chair I know it has been said, many times many ways, but 2020 has been a year like no other. Through it all, the members of our Employment Practice Group exemplified our “Counselors on Call™” moniker – deciphering an avalanche of legislation, regulations and orders to advise our clients on COVID-19 developments. We brought you more than 45 client alerts and numerous webinars on the pandemic, culminating in a revamped virtual Employment Law Seminar in August. And our in-house celebrity, David Freedman, hosted 12 podcasts on breaking employment and business topics including Gov. Tom Wolf’s COVID-19 orders, FFCRA leave, the CARES Act and PPP program, unemployment compensation, the COVID-19 vaccine – even the employment issues lurking in the “Tiger King” series. All are accessible on our Barley Snyder website. We trust you have found these helpful as you face the challenges posed by the pandemic.
Jill Sebest Welch, Esquire Labor & Employment Law
jwelch@barley.com
We remain committed to helping our clients get through these difficult times as you endeavor to keep your businesses strong and your employees safe. Sincerely, Jill
Table Of Contents 3 4 5 6 8 10 11
Meet Our New Crisis Management Service Team Multi-State Employers Need to Be Aware of State-Specific Laws NLRB 2021 Predictions A Look Back at Our 2020 Employment Practice Group Client Alerts SCOTUS ends Blockbuster 2020 for Employment Law More Updates on the DOL’s Joint Employer Rule Our Employment Practice Group
Please note that with the new presidential administration and the rapid changes its bringing, the information in this publication is correct as of its release date. Please consult your Barley Snyder attorney to discuss any changes that might have occurred.
BARLEY.COM
Meet our New Crisis Management Service Team Our Crisis Management Service Team, led by partner Jennifer Craighead Carey, is adept at handling a broad range of critical crisis type scenarios, helping businesses develop pre-crisis strategies, mitigating damages and stopping further harm from being done when a crisis strikes.
Salvatore Anastasi
Christopher J. Churchill
Jennifer Craighead Carey
(610) 722-3899 sanastasi@barley.com
(717) 399-1571 cchurchill@barley.com
(717) 399-1523 jcraighead@barley.com
Intellectual Property
Senior Living & Health Care
Employment & Labor
Michael J. Crocenzi
Michael W. Davis
Kimberly J. Decker
(717) 814-5417 mcrocenzi@barley.com
(717) 399-1534 mdavis@barley.com
(717) 399-1506 kdecker@barley.com
Employment & Litigation
Real Estate & Construction
Mergers & Acquisitions and Securities
Timothy G. Dietrich
David J. Freedman
Donald R. Geiter, CIPP/US
(610) 898-7154 tdietrich@barley.com
(717) 399-1578 dfreedman@barley.com
(717) 399-4154 dgeiter@barley.com
Food & Agribusiness
Education & Immigration
Cybersecurity and Finance & Creditors’ Rights
Matthew M. Hennesy
Scott F. Landis
Hon. Stephen P. Linebaugh
(717) 399-1579 mhennesy@barley.com
(717) 399-1503 slandis@barley.com
(717) 814-5926 slinebaugh@barley.com
Litigation
Finance & Creditors’ Rights
Alternative Dispute Resolution
Jeffrey D. Lobach
Timothy P. Malloy
Paul W. Minnich
(717) 852-4979 jlobach@barley.com
(484) 334-8371 tmalloy@barley.com
(717) 852-4976 pminnich@barley.com
Business & Real Estate
Tax & Business
Litigation
Joshua L. Schwartz
Martin R. Siegel
Jill Sebest Welch
(717) 399-1535 jschwartz@barley.com
(717) 718-7581 msiegel@barley.com
(717) 399-1521 jwelch@barley.com
Employment & Workers’ Compensation
Environmental
Employment & Labor
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4
EMPLOYMENT LAW | 2020 REVIEW
Multi-State Employers Need to Be Aware of State-Specific Laws other than the state of the company’s headquarters. An accounting firm may have its headquarters in Pennsylvania and most of its employees work at headquarters, but the firm may have accountants working from home full-time in other states, such as California, New Jersey, Florida, etc. In this situation, the accounting firm cannot automatically assume that Pennsylvania law will apply to the employees working full-time from home in other states. California’s Healthy Workplaces/Healthy Families Michael J. Crocenzi, Esquire Employment & Litigation Law
mcrocenzi@barley.com
With the accelerating trend of employees working fulltime from home because of the coronavirus pandemic, employers must be acutely aware that state-specific employment laws may apply to a small number of employees — or even one employee — that may work in another state. In the absence of any significant employment initiatives from the federal government, many states and municipalities are passing statespecific laws that apply to employees working in that state. Several states have now passed paid sick leave statutes and sexual harassment/ training statutes, and many of these states even require employers to include disclaimers and other information in handbooks that would apply to employees working in that particular state. Service-oriented employers especially are now hiring professionals in states
Act of 2014, as an example, applies to all employees who have worked in California for 30 or more days. It does not matter that the employer’s headquarters or main office is located in another state. According to that law, paid sick leave accrues at the rate of one hour per every 30 hours of work at the employee’s regular wage rate. Employees can carry over a certain number of hours or days to the next year. An employee may use accrued paid sick days beginning on the 90th day of employment. Several states have recently passed laws banning or severely restricting non-compete agreements. The noncompete agreements usually contain a “choice of law” provision indicating that a particular state’s law will be used to interpret the agreement. However, some courts have applied
a choice of law analysis to determine what state law applies. In California, most non-compete agreements are banned. Some employers who have an employee working in California have tried to avoid California’s law by stating in the agreement that another state’s law should control – a state that does not ban or restrict noncompete agreements. In applying a choice of law analysis, some courts have determined that California has the most contacts with the employee working in California and refused to enforce the non-compete.
Even municipalities, such as Philadelphia, Pittsburgh, New York City and Minneapolis, now have paid sick leave ordinances that apply to employees working in those cities. Employers must be diligent in reviewing state laws and even local municipality laws to determine if the laws apply to their employees working in that particular state. Employers should avoid being caught off-guard by failing to comply with out-of-state employment related laws, which can create a compliance nightmare and catch unsuspecting employers in a legal quagmire.
If you need any additional information about your obligation as a multi-state employer, please contact me.
your counselors on call™ BARLEY.COM
NLRB 2021 Predictions The last four years at the National Labor Relations Board proved employer-friendly, but a Democrat in the White House could change all of that. Under Former President Donald Trump’s presidency, much of the Obama-era NLRB employee and union protections were dialed back significantly, not just by NLRB decisions but through memos from Trump’s appointed NLRB General Counsel Peter Robb and with the rulemaking process. The Biden campaign ran on a platform of strengthening worker organizing and worker rights, particularly through the collective bargaining process. The president-elect can appoint key positions at the NLRB, including board members and the general counsel, and can affect policy change through these positions.
Here are some 2021 predictions for the NLRB:
Sarah C. Yerger, Esquire Employment & Labor Law
syerger@barley.com
Biden Will Appoint a Majority on the Board and Start to Reverse Trump Board Decisions
By the end of 2021, Biden will be able to appoint a majority of NLRB members, likely resulting in the overruling of many of the precedents issued during the past few years. Board members are appointed, with Senate consent, by the president to fiveyear terms. One member term expires each year. Currently, there are only four board members – three Republicans, and one Democrat – with one vacant position. Biden will likely appoint a Democrat to the vacant position and then in August of 2021 when Republican William Emmanuel’s terms expires, he will be able to appoint a third member and regain majority control. Once there is a Democratic majority, we will begin to see policy reversals, most likely sometime in 2022.
Biden Will Support Worker-Friendly Legislation but Will Not Have Senate Support to Create Law
Biden has expressed strong support for the Protecting the Right to Organize Act, which would significantly change the union/ employer dynamic in favor of unions. The act would: • Ban employer-mandatory “captive audience” group meetings • Require immediate collective bargaining shortly after a successful union election and if no agreement is reached, require binding interest arbitration of contract terms • Override states’ right-to-work laws • Allow unfair labor practice claims to be brought as civil actions in court • Add fines and liquidated damages as remedies for unfair labor practices Biden also pledged to reinstate and codify into law the Obama administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns and the Obama era’s NLRB rules allowing for shortened timelines of union election campaigns. As a senator, Biden co-sponsored the original Employee Free Choice Act, which allowed workers to form a union if a majority signs authorization cards empowering a union to represent them. Bottom line, it’s going to be an active and busy four years at the NLRB. If you have any questions on how this could affect your business, please contact me.
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EMPLOYMENT LAW | 2020 REVIEW
A Look Back at Our 2020 Employment Practice Group Client Alerts Did Your Employee Contract COVID-19 at Work? Date: June 12, 2020 | By: Joshua L. Schwartz
COVID-19 a Plan Cons
Date: March 23, 202
EEOC: Employers Can Take Temperature of Workers
How the CARES Act Stimulus Pac
Date: March 19, 2020 By: Sarah C. Yerger
Date: March 31, 2020 / By: Christop Randy R. Moyer Joshua L. Schwartz,
DOL: Employers Must Document Paid Leave for Payroll Tax Credit Date: March 31, 2020 By: David J. Freedman and Lori McElroy
Reopening Your Business: 10 Pennsylvania Mandates You Need to Know Date: May 19, 2020 By: Martin R. Siegel
Planning for C A Necessary Bu
Date: June
By: Martin Governor Orders Immediate Closure o
Date: March 19, 2020 / By: Joshua L. Schwa
Defying Governor’s Ord
Date: May 12, 2020 - By: Martin R. Siegel, Lind
Telework: Is Forever a Reasonable Accommodation? Date: September 11, 2020 | By: Kareemah Mayer
BARLEY.COM
This is a visual representation of how our Employment Practice Group responded in full force to COVID-19 with a multitude of client alerts to keep you informed about the ever-changing regulations and help your business weather the pandemic. In 2021 and beyond, we encourage you to reach out to our Crisis Management Service Team for continued legal service — see page 3 for more details.
Temporary to Permanent: Layoffs Trigger WARN Act Date: May 27, 2020 | By: Jill Sebest Welch
and Benefit siderations
20 - By: Mark A. Smith
Avoiding Zoom-Bombing in the New Age of Meetings
ckage Could Affect Your Business
Date: April 2, 2020 By: Katelyn E. Rohrbaugh
pher J. Churchill, Timothy P. Malloy, , Mark A. Smith, and Erica R. Townes
Coronavirus: usiness Exercise
Pennsylvania Issues Guidance to Reopening of Construction Industry
e 11, 2020
n R. Siegel f All “Non-Life-Sustaining” Businesses
artz, Daniel T. Desmond and Brian A. Korman
der is a Risky Proposition
Date: April 24, 2020 By: Jennifer Craighead Carey
U.S. Citizenship & Immigration Services Takes Emergency Step for Employment Verification Date: August 26, 2020 By: Silas M. Ruiz-Steele
dsey M. Cook, Erica R. Townes and Cody Witmer
EEOC Allows Employers to Test Employees for COVID-19 Date: April 24, 2020 | By: Michael J. Crocenzi
8
EMPLOYMENT LAW | 2020 REVIEW
SCOTUS ends Blockbuster 2020 for Employment Law Although the decision finally puts to
challenges by terminated ministers
entitled to federal anti-discrimination
employed them.
rest whether LGBTQ employees are protections, other contentious issues
remain unresolved, such as whether
In its most recent case involving this
employees
Morrisey-Berru, the Court clarified
employers must allow transgender to
use
the
restroom
that the ministerial exemption doesn’t
Title VII liability if they harbor sincere
exemption prohibits federal courts
religious objections to homosexuality. Those issues will have to be decided in future cases. Labor, Employment & Immigration Law
Ministerial Exemption
dfreedman@barley.com
“ministerial
A separate ruling regarding the exemption”
issued
U.S.
Supreme
major
Court
employment
law decisions during its 201920 term on subjects ranging from
LGBTQ
discrimination
to immigration to religious exemptions to federal antidiscrimination laws.
suggests
In a landmark ruling, the Court held, by a 6-3 vote, that Title VII of the Civil Rights Act prohibits discrimination against employees based on sexual orientation or gender identity. Title
VII is the federal law that prohibits discrimination Justice
Neil
“because
Gorsuch,
of
who
sex.” was
appointed to the Court by Former
President Donald Trump, authored the majority opinion, which found that discrimination against LGBTQ
employees constitutes discrimination “because of sex” prohibited by Title VII.
justices might be highly deferential
to employers’ religious beliefs. The
ministerial exemption, derived from
the religious liberty protections found
in the First Amendment to the U.S. Constitution, prohibits courts from
deciding many employment disputes brought by employees of churches and other religious institutions. The
doctrine obtained its name because
most of the early cases involved
Sexual Discrimination
just apply to ministers. Instead, the from
entertaining
employment
discrimination suits brought by many different
employees
institutions.
that a majority of the court’s current
The
doctrine, Our Lady of Guadalupe v.
associated with their gender identities or whether employers are immune to
David J. Freedman, Esquire
against the churches that had once
The
of
religious
decision
arose
from two separate cases in which
schoolteachers at private Catholic schools in Los Angeles lost their jobs
and sued their employers. One of the
employees claimed that the school that employed her had discriminated against her based on her disability
in violation of the Americans with Disabilities Act. The other employee
sued claiming that her employer’s decision to fire her violated the Age
Discrimination in Employment Act. The schools asked the federal courts
to throw the cases out at their outset, arguing that the ministerial exemption
your counselors on call™ BARLEY.COM prohibited the courts from hearing
of which employees play a religious
claimed that the exemption did not
viability of lawsuits against religiously
the cases. The employees, though, apply to them because they were not
ministers; in fact, they mostly taught secular subjects.
role could significantly affect the
affiliated employers, such as many colleges, universities, and healthcare institutions.
arguments, finding that the ministerial
Court invalidated Former President
“who leads a religious organization, conducts
worship
services
or
important religious ceremonies or rituals, or serves as a messenger or
teacher of its faith.” Moreover, the Supreme courts
Court
instructed
evaluating
whether
lower the
ministerial exemption applies that they
must defer to religious employers’ explanation of the employees’ role in the religious tradition.
Although the employees mostly taught secular subjects, the Court held that
could not override the schools’ views regarding the role these employees
played in religious education, which
included leading students in prayer. Writing for the Court’s majority, Justice Samuel Alito stated, “What matters, at
bottom, is what an employee does. And . . . educating young people in
In another major ruling, the Supreme Trump’s attempt to eliminate the Deferred
Action
for
Childhood
Arrivals, or DACA, program. The U.S. Department of Homeland Security, under
former
President
Barack
Obama, had implemented the DACA program, which provides protection
from deportation and employment authorization
to
authorization
before
entered
the
individuals
U.S.
without
their
who
legal
15th
birthday, provided such individuals undergo biometric screening and satisfy other criteria, such as enrolling
in school or enlisting in the U.S. military. After Trump’s inauguration in
2017, the Department of Homeland Security announced that the program would be shut down. Many legal
challenges ensued, with the matter
ending up before the U.S. Supreme Court this past year.
In a 5-4 decision, the Court held that
responsibilities that lie at the very core
the Administrative Procedure Act,
of the mission of a private religious school.” The
Court’s
deferential
stance
toward religious institutions’ views
the attempt to rescind DACA violated a federal law that lays out how the president
and
federal
executive
agencies may adopt legally binding regulations. The Trump administration
justified rescinding DACA by arguing
stay up to date Our employment attorneys regularly offer their insight on breaking issues in client alerts. Sign up for our newsletters and alerts at Barley.com and watch
for them at Facebook.com/BarleySnyder, on Twitter @BarleySnyder and our Barley Snyder LinkedIn page.
regarding
the
circumstances
under which foreign nationals may be authorized to work legally in the
consider adequately the effects that removing
deportation
protections
would have on the almost 800,000 DACA recipients. In Chief Justice Roberts’ words, “DACA recipients
have enrolled in degree programs, embarked
on
careers,
started
businesses, purchased homes, and
even married and had children, all in reliance on the DACA program.” The administration, therefore, would
have to start the process of rescinding DACA over again.
A lot has changed since the Court’s decision this past summer. Most notably,
former
Vice
President
Joe Biden defeated Trump in the presidential election. President Biden
has vowed to keep DACA in place. So
DACA appears safe for the time being. That said, DACA’s fate might end up
before the Supreme Court again, this time addressing whether the Obama administration had the legal authority
their faith, inculcating its teaching, and training them to live their faith are
Act
found that the administration failed to
DACA Program
exemption extends to any employee
in the Immigration and Nationality
U.S. The Court’s majority, however,
The Supreme Court, however, in a 7-2 decision, adopted the schools’
that the program violated restrictions
to adopt the program in the first place. If you have any questions about these cases and how they might affect your business, please contact me.
10
EMPLOYMENT LAW | 2020 REVIEW
More Updates on the DOL’s Joint Employer Rule In an example of how quickly laws and rules can change, we provided an update at our August Employment Law Seminar on the U.S. Department of Labor’s Final Joint Employer Rule, which took effect in April 2020. However, in September, a New York federal court vacated the four-factor vertical
joint employer test implemented in April, declaring it impermissibly narrow, inconsistent with the DOL’s prior interpretive guidance and the significant body of
federal case law interpreting the joint employer factors, and in contradiction with the Fair Labor Standards Act.
In November, the DOL appealed the decision to the U.S. Second Circuit Court of Appeals and businesses face uncertainty in this area once again. Jill Sebest Welch, Esquire Labor & Employment Law
jwelch@barley.com
In August, we explained that in vertical employment scenarios — such as franchisor-
franchisee, as well as general contractor-subcontractor and employer-temporary staffing relationships — the DOL adopted an employer-friendly, four-factor test to determine whether two seemingly separate business entities would be joint employers, and both liable for employment claims.
In determining whether both companies directly or indirectly control the employees, the DOL rule looks to whether the company: •
Hires or fires the employee
•
Determines the employee’s rate and method of payment
• •
Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree Maintains the employee’s employment records
In its final rule, the DOL intended to provide clarity to the joint employer factors amidst varying appellate court interpretations. But then the New York district court upended this clarity by vacating the four-pronged test, and the Biden Administration may not defend the rule on appeal.
Now, in joint employer cases, courts will apply not only the four-factor test, but also other relevant factors of direct and indirect control, to determine whether a business is the joint employer of its contractor’s employees.
Thus, employers should once again carefully review their contracts with third parties, as well as the actual working conditions of
the workers performing under these contracts, to determine the potential risk of a being bound in a joint employer relationship. If so, companies should ensure the wage and hour practices of these third parties comply with the FLSA and state wage and hour laws. Companies should also consider including safeguards in their contracts, such as representations and warranties with respect to wage and hour law compliance, and indemnification provisions, to mitigate risk associated with joint employer liability.
If you have any questions on how this could affect your business, please contact me.
BARLEY.COM
Our Employment Practice Group Lauren D. Berkowitz
Jennifer Craighead Carey
(717) 399-4155 lberkowitz@barley.com
(717) 399-1523 jcraighead@barley.com
David J. Freedman
Kareemah Mayer
Michael J. Crocenzi (717) 814-5417 mcrocenzi@barley.com
Lori McElroy
(717) 399-1578 dfreedman@barley.com
(717) 399-4158 kmayer@barley.com
Keith Mooney
Drake D. Nicholas
Silas M. Ruiz-Steele
(610) 898-7155 kmooney@barley.com
(717) 231-6622 dnicholas@barley.com
(610) 898-7153 sruizsteele@barley.com
Joshua L. Schwartz
Jeffrey W. Sidebottom
Mark A. Smith
(717) 231-6641 lmcelroy@barley.com
(717) 399-1535 jschwartz@barley.com
(717) 399-1502 jsidebottom@barley.com
Robert J. Tribeck
Jill Sebest Welch
Sarah C. Yerger
(717) 237-6701 rtribeck@barley.com
(717) 399-1521 jwelch@barley.com
(717) 231-6612 syerger@barley.com
Anne D. Dellosso
Rebecca W. Munscher
Amy L. Shirk
(717) 399-1532 adellosso@barley.com
(717) 852-4991 rmunscher@barley.com
(717) 399-1526 msmith@barley.com
Paralegals
(717) 553-1053 ashirk@barley.com
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EMPLOYMENT LAW | 2020 REVIEW
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