Q: As an employer of a non-union workforce, do I have to be concerned about the application of the National Labor Relations Act (NLRA)?
A: Yes. Recently, the National Labor Relations Board (NLRB) has broadly interpreted the “other concerted action” language found in Section 7 of the NLRA. As a result, non-union employers who would not consider NLRA implications must now take this into consideration. For instance, in the Phoenix region, the NLRB argued, and an administrative law judge ruled, that at-will employment language found in an employee handbook which prohibits any change in the terms of employment except via a written document signed by a company executive violates the NLRA’s Section 7 right to participate in union activities. Also, the NLRB recently argued that instructing a non-union employee not to speak about a workplace investigation is a violation the NLRA. Be mindful of these interpretations when making employment decisions.
James B. Shrimp, September 2012
Q: I have an employee who is volunteering to go to a military class associated with his National Guard/Reserve service. This is a busy time for my company. Do I have to let him go?
A: The law applies to any military service, regardless as to whether it is in a time of peace time or a time of war, whether it is for a class or for combat, and whether the service is completely voluntary or required by the military. This protection can generally last for up to five (5) years of military service, either consecutively or cumulatively during the time the employee has worked for you.
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) protects the employment of citizen-soldiers. An employee who takes a leave of absence for uniformed service is entitled to return to his or her job. There are very few exceptions to the employee’s right to keep their job, such as a disabling injury during their military service that prevents them from doing their normal job with a reasonable accommodation.
Richard C. Sokorai, July 2012
Q: What is the ministerial exception?
A: The ministerial exception is a legal doctrine that prevents court interference in religious institutions’ employment decisions, particularly for employees who perform religious duties. The rule originates in the First Amendment to the United States Constitution and its guarantee of the free exercise of religion. The goal behind the ministerial exception is the prevention of state control over religious institutions. Despite the term “ministerial”, the exception applies to all religions and extends beyond employees in houses of worship. In early January 2012, the United States Supreme Court held unanimously that the ministerial exception barred employment discrimination claims by a teacher in religious school, who had church training and a commissioned minister’s title, and whose duties included teaching religious courses and leading religious exercises.
Thomas D. Rees, January 2012
Q: If an employer dismisses an employee for cause, may the employee still receive unemployment compensation (“UC”)?
A. In Pennsylvania, employees discharged for performing poorly, but to the best of their ability, may receive UC, but those fired for willful misconduct are not eligible. Willful misconduct is conduct that violates a known rule, falls below the employer’s standards, deliberately disregards the employer’s interests, or is so negligent that it shows an intentional disregard for work duties. The employer must prove willful misconduct in hearings before a UC Referee and in appeals to a UC appeals board. Challenging an employee’s UC claim takes time and effort and is likely to anger the ex-employee; therefore, an employer should weigh the costs of any challenge against the benefits of a successful challenge that results in controlling costs or deters future misconduct and meritless claims.
Thomas D. Rees, December 2011 Book of Lists
Q: I have an employee who was deployed to Iraq with his Army National Guard unit but his deployment is now ending. I hired someone to replace this employee. Do I have to re-employ this person?
A: The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment of citizen-soldiers. An employee who takes a leave of absence for uniformed service is entitled to return to the employee’s pre-mobilization employment, at the level that the employee would have achieved with reasonable certainty had the uniformed service not occurred. Certain limited circumstances can excuse compliance with the re-employment requirement, such as layoffs that otherwise would have included the employee’s position. However, the hiring of a replacement worker or additional expenses will not suffice. Courts traditionally construe USERRA liberally in favor of the employee. Non-compliance with USERRA can result in a court award for significant damages, including lost pay and benefits; double damages, attorney’s fees and an order to comply with the law.
Richard C. Sokorai, September 2010
Q: What is “employment at will”?
A: “Employment at will” exists when no employment contract specifies the employment’s duration or limits employers’ or employees’ reasons for terminating employment – either party may end the relationship at any time, for any (or no) reason. The rule does not allow loose hiring or summary firing. At-will employers should not promise employment tenure, because oral employment contracts are enforceable in some states (e.g., Pennsylvania). Employee handbooks should state the at-will rule, particularly in New Jersey where handbooks may otherwise override the at-will relationship. Good cause should support all employment decisions, to prevent both discrimination and public policy/whistleblower claims- an important point in states like New Jersey whose whistleblower statutes (unlike Pennsylvania’s) cover both private and publicly funded bodies.
Thomas D. Rees, 2010 Book of Lists
Q: What are state wage payment and collection laws (“WPCL”)?
A: State WPCLs require payment of employee wages on regular paydays or shortly after an employee leaves. WPCLs may impose liability on both employers and managerial decision-makers for unpaid wages and penalties. WPCLs can define wages to include vacation pay, bonuses, commissions, stock options, and severance or disability pay. WPCLs usually deal only with earned wages and do not create rights to future employment. Besides imposing penalties and personal liability, Pennsylvania’s WPCL requires payment of attorneys’ fees to employees who win WPCL claims. WPCLs may exempt certain employers; Pennsylvania exempts local governments and school districts. Pennsylvania’s WPCL does not cover independent contractors. State WPCLs vary and the law of the state where the employee works will typically govern any wage dispute.
Thomas D. Rees, April 2010
Q: What is Pennsylvania’s New Mini-COBRA Law?
A: 1986’s federal Comprehensive Omnibus Budget Reconciliation Act (COBRA) requires employers with at least 20 employees to continue health insurance for most ex-employees and dependents. Pennsylvania’s July 2009 “mini-COBRA” law requires most employers with 2 to 19 employees to also provide continuation of health insurance for most ex-employees and their dependents. Like COBRA, mini-COBRA eligibility starts when group coverage ends through a “qualifying event,” including employment loss except through gross misconduct; work hour reduction below benefit thresholds; divorce; separation; Medicare eligibility; or employer bankruptcy. Mini-COBRA coverage continues for 9 months, shorter than COBRA’s 18 to 36 months. Insurers subsidize 65% of mini-COBRA premiums for 9 months for involuntarily terminated eligible employees. This subsidy ends January 1, 2010 unless extended by federal law.
Thomas D. Rees, September 2009
Q: What is a restrictive employment covenant?
A: There are several types of restrictive employment covenants. Non-competition covenants prohibit ex-employees’ work for a competitor. An alternative to the non compete allows work for a competitor but prohibits serving the ex-employer’s customers. Non-solicitation covenants prohibit the ex-employee from initiating contact with customers or former co-employees for a new employer. An employer must provide a benefit to the employee in return for signing a restrictive covenant, typically through new employment or more generous employment terms. The covenant must also have reasonable time and geographic limits. An employer may not use a restrictive covenant simply to stop competition; the covenant must be needed to protect interests such as goodwill, special skills or training, or trade secrets. Nondisclosure agreements are separate restrictions that prohibit ex-employees’ use of confidential information.
Thomas D. Rees, January 2009