Barley Snyder 2020 Employment Law Year in Review

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

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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.

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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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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

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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

To Learn More about our Attorneys & Paralegals, please visit: www.BARLEY.com

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EMPLOYMENT LAW | 2020 REVIEW

Coming soon!

Virtual Employment Law Seminar May 2021

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More details to be announced

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