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Posts in Pennsylvania.

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.

Although sex discrimination claims are often met with explanations that the alleged offender didn’t realize what they said or did was offensive, or that the recipient misinterpreted the words or actions of the alleged offender, these types of dismissive explanations are becoming more carefully scrutinized the world of workplace discrimination lawsuits. In dicta, the United States District Court for the Middle District of Pennsylvania found that an employer’s “subtle” discriminatory comments could support an inference of discrimination based on a plaintiff’s protected class. The “subtle” comments presented to the court as part of a recent lawsuit included: reference to a woman’s “new husband” being able to support her if she was fired; commenting on the distance the woman lived from her job while not knowing if this factor would matter with respect to a male employee; and commenting on a woman’s ability to be single and raise four children, again, while admitting to not knowing if this factor would matter with respect to a male employee. See Rosencrans v. Quixote Enterprises, Inc., et al., Case No. 17-CV-00055 (M.D. Pa. January 19, 2018) (J. Conaboy).

            Despite the court’s dicta with respect to these types of harmful remarks, the plaintiff nonetheless failed to support her discrimination claims because these statements were made by the company owner – who was not involved in the decision to terminate the plaintiff’s employment. Rather, the decision to terminate the plaintiff’s employment was made by two of the plaintiff’s supervisors who did not seek or need the approval of the company owner to make firing decisions. This finding highlights the other critical takeaway from this case – it is important to define who the decision-makers are and to define what exactly each of those decision-makers knew, didn’t know, said, or didn’t say. Even though the plaintiff in this instance failed to prove her claims, the importance of the court’s language with respect to “subtle” discriminatory comments is not lessened.

            For those interested in more of the factual and legal underpinnings of the case, the defendant company terminated the plaintiff’s employment based on her lateness, playing on her personal computer during work hours, and general poor attitude. The plaintiff brought a Title VII discrimination suit against the defendant company claiming that she was held to a different standard than male employees and that she was fired because she got married. This type of legal theory is known as a “sex-plus” theory – which is a claim of sex discrimination premised on an additional factor such as marital status. To prove a “sex-plus” claim of sex discrimination, a female employee usually must demonstrate that she was treated less favorably than a married male employee. Absent this type of evidence – which was absent in the Rosencrans case – a plaintiff must raise an inference of sex discrimination by presenting evidence such as “subtle” discriminatory comments or impermissible sexual stereotyping. The plaintiff was indeed able to prove the existence of these types of factors, however, as noted above, the bad behavior was not attributable to the decision-makers nor did the decision-makers know about it.

            Rosencrans is a decision that will be kept on our watch-list. If you have any questions please consult your Fisher Phillips attorney with any questions.

Late last year, Pennsylvania legislators introduced House Bill 1938, the “Freedom to Work Act” (the “Act”), an outright ban on “covenant[s] not to compete” in Pennsylvania. Under the Act, “a covenant not to compete is illegal, unenforceable and void as matter of law.”

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