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Keystone Employment Law Blog

Posts in Pennsylvania.

A federal appeals court just resurrected the salary history ban that will now prevent Philadelphia employers from asking job applicants about how much they are paid or setting new salaries based on pay history. Thanks to February 6th 3rd Circuit Court of Appeals ruling, employers in Philadelphia must immediately alter their hiring practices and cease the practice of asking questions about compensation history on applications, in interviews, and at any stage during the hiring practice. You must also ensure that you do not use this forbidden information when setting new salary levels. What do employers need to know about today’s ruling and how best to come into compliance?

On December 6, 2018, Philadelphia City Council approved the Fair Workweek Ordinance by a vote of 14-3. Following its passage by City Council, Mayor Kenney reiterated his support and his intention to sign the Ordinance into law. Even if Mayor Kenney vetoed the Ordinance, City Council could override the veto with 12 votes- which it currently has. In sum, it appears that Philadelphia will have a Fair Workweek for 130,000 employees in the retail, food service, and hospitality industries.

In our October 3rd entry, we addressed the pending Fair Workweek Ordinance, currently being considered by Philadelphia City Council. The proposed Ordinance aims to provide predictable work schedules for Philadelphia’s 130,000 employees in the retail, food service, and hospitality industries and to help reduce the 26% poverty level in Philadelphia.    

In June 2018, Philadelphia City Councilmember Helen Gym introduced legislation designed to improve predictability in scheduled shifts for employees in the retail, hospitality, and food services sector – the second largest sector of the Philadelphia economy. The proposed “Fair Workweek” ordinance requires employers to provide advance notice of work schedules; pay additional compensation for changes to an employee’s scheduled shift; permit employees to take 11 hours off between shifts; and offer work to existing employees before hiring new employees. Employers would also be prohibited from retaliating against an employee for invoking any of these rights. The Fair Workweek Ordinance would apply to large businesses in the retail, hospitality, and food services sector that employ 250+ people and have at least 20 locations worldwide.

For the first time, a court used a civil rights law to hold a school district financially accountable in a case of student bullying.

On June 12, 2018, the Pennsylvania Department of Labor and Industry (“DLI”) submitted a proposed rulemaking to amend the regulations that exempt executive, administrative, and professional (EAP) salaried workers from overtime requirements under the Minimum Wage Act of 1968.

Last month, the Pennsylvania Superior Court weighed in on its position regarding overtime calculation under the “fluctuating workweek” method. The Court affirmed that the use of this method to determine the amount of overtime owed violates the Pennsylvania Minimum Wage Act (PMWA), even though this method is permitted under the Fair Labor Standards Act (FLSA). This dichotomy is sure to raise questions for Pennsylvania employers paying non-exempt employees a weekly salary.

The Pennsylvania Supreme Court (the “Supreme Court”) has taken the “whistleblowers be made whole” purpose of the Pennsylvania Whistleblower Law, 43 P.S. §§1421-1428, (the “PAWL”) to the next level in its March 27, 2018 decision in Bailets v. Pennsylvania Turnpike Commission, No. 126-2016, ___ A.3d ____, 2018 WL 1516785 (Pa. 2018).

Last Month, in Gateway Sch. Dist. V. Gateway Educ. Ass’n, 783 C.D. 2017 (Pa. Commw. Ct. Feb. 28, 2018), a Pennsylvania court affirmed an arbitration decision holding that a retired teacher could add his same-sex spouse to his retirement benefits after his retirement.

Last month, the 3rd Circuit Court of Appeals held that an employee’s protected activity must be the “but for” cause of an adverse action to support a claim for retaliation under the False Claims Act (“FCA”). The Court further affirmed that the plaintiff’s constructive discharge claim did not establish an adverse employment action as a matter of law.

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