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.
According to the late great Tom Petty, “the waiting is the hardest part.” The United States District Court for the Eastern District of Pennsylvania (the “Court”), however, begs to differ with The Heartbreakers’ leading man. After waiting for over a year to receive a decision from the aforementioned Court with respect to the constitutionality of Pennsylvania’s Wage Equity Ordinance (the “Ordinance”), employers are left with more questions than answers.
 On December 8, 2016, Philadelphia City Council passed Philadelphia Bill No. 16084 which was the Ordinance in its original iteration. The Ordinance was signed into law by Mayor Jim Kenney on January 23, 2017. It was to take effect on May 23, 2017. On April 6, 2017, The Chamber of Commerce for Greater Philadelphia filed a federal lawsuit challenging the Ordinance as unconstitutional in violation of businesses’ First Amendment rights, and also sought a Preliminary Injunction enjoining enforcement of the Ordinance. Thereafter, the Court entered a stay as to enforcement of the Ordinance, and, after extensive briefing and oral argument on the matter, the Court issued its ruling on April 20, 2018.
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.
The national and international spotlight on pay equity is getting brighter by the day. By way of illustration, this post explores two laws that took effect on January 1, 2018, one in California and one in Iceland, and a wage equity ordinance in Philadelphia that is currently being challenged on constitutional grounds. These are just examples of the much larger trend at the local and state level in the United States, as demonstrated by the Fisher Phillips Pay Equity Map. This trend can be seen around the world as more countries introduce some form of pay equity measures. Overall, the major question that all companies should be thinking about is: does the salary reflect the job position, not the person who is filling the position?
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.”
On December 11, 2017, the NLRB ruled that an ALJ in Pittsburgh properly accepted a partial settlement offered by University of Pittsburgh Medical Center (UPMC) despite objections from the agency’s general counsel and the charging party. The decision swiftly reverses Obama-era policy and restores the “reasonableness” settlement standard.