Legal Update in Labor and Employment Issues

1. LEGAL UPDATE IN LABOR AND EMPLOYMENT ISSUESMarch 19, 2019Presented by:Renee C. Mattei Myers, Esq.Eckert Seamans Cherin & Mellott, LLC213 Market Street – 8th FloorHarrisburg, PA 17101(717) 237-7163 *No statements made in this seminar or in the written materials/powerpoint should be construed as legal advice pertaining to specific factual situations.

2. EEOC Statistics • EEOC received 554,000 calls and emails and handled over 200,000 inquiries. • 30% Increase. • Resolved over 90,000 private sector charges. • Obtained $505 million through settlement, mediation, conciliation. • Filed 199 Lawsuits.

3. Legislation • Guidance On Discrimination On The Basis Of Sex Under The Pa. Human Relations Act: • Released August 2018. • Clarifies definition of sex to include “assigned at birth, sexual orientation, transgender identity, gender transition, gender identity and Gender expression.” • No statutory or regulatory authority/precedent.

4. Legislation (cont.) • Clean Slate Law: • Signed by Gov. Wolf June 2018. • Purpose: Give rehabilitated criminal offenders a second chance. • Can petition to have records sealed if: • Free from conviction for 10 years that resulted in 1 or more years in prison. • All court related debts paid.

5. Clean Slate Law (cont.) • No sealing for more serious crimes like sexual offenses, firearms crime, murder, kidnapping, child endangerment etc. • Automatic sealing for: • Arrests that did not result in conviction in 60 days. • Summary convictions after 10 years. • Some second/third degree misdemeanors if no other convictions within 10 years.

6. Clean Slate Law (cont.) • Once sealed may only be viewed by: • Law enforcement entities. • Employers required to review records via federal law. • Employers who utilize FBI background checks. • Will go into effect between June 2019 and June 2020.

7. Legislation • Executive Order 2018-18-03: • Signed by Gov. Wolf June 2018. • Purpose: Combat the gender pay gap. • Directs state agencies: • No longer to inquire about a job applicant’s salary history. • Salaries to be based on job responsibilities, knowledge skills and abilities.

8. Legislation (cont.) • Fair Workweek Ordinance • Philadelphia Adopted December 2018. • Effective 2020. • Covered employers: • Must provide employees a written work schedule 10 days in advance. • Provide new employees a written good faith estimate of schedule. • Mandatory rest periods between shifts. • Offer open shifts to existing employees before hiring.

9. Recent Cases of Interest • Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc.(6th Cir.): • Discrimination on the basis of sex under Title VII includes discrimination against Transgender/LBGTQ employees. • Circuit Split. Likely to be reviewed by U.S. Supreme Court.

10. EEOC v. Harris • Evans v. Georgia (11th Cir.): • Discrimination based on sexual orientation not protected. • Hively v. Ivy Tech (7th Cir.): • Discrimination based on sexual orientation protected. • Zarda v. Latitude Express: • Discrimination based on sexual orientation protected.

11. Dittman, et al. v. UPMS • PA. Supreme Court: • Cyber Security. • Employers have a legal duty to safeguard the sensitive personal information of employees: • 2014 data breach compromised the information of 62,000 employees. • Allegations that stolen data was used inter alia to file fraudulent tax returns. • Criminal behavior on part of a third party does not eliminate the duty.

12. Pittsburgh Logistics v. BeeMach Trucking, LLC • Contract between logistics provider and shipping company contained no-hire/no-solicitation language. • “No-Hire” language in company contracts invalid on public policy grounds for imposing non-competes on employees without their consent/ consideration. • Petition for Appeal pending to PA Supreme Court.

13. Epic Systems Corp. v. Lewis • U.S. Supreme Court (May 21, 2018). • An individual arbitration agreement with an employee, requiring the employee to waive rights to class and collective proceedings is enforceable under the Federal Arbitration Act ("FAA") and is not circumvented or overruled by the National Labor Relations Act: • This case underscores that the use of arbitration agreements is on the rise.

14. Medical Marijuana Update • There are now 25 jurisdictions with laws that legalize use of marijuana for medical purposes. • Five of those jurisdictions—Colorado, Washington, Oregon, Alaska, and the District of Columbia—have gone so far as to legalize the drug for recreational use, with similar legislation pending or under consideration in a number of other states. • We are now starting to see issues/cases involving its use.

15. Medical Marijuana • Under the federal Controlled Substance Act ("CSA"), marijuana is designated a Schedule I controlled substance. 21 U.S.C. § 802(16). (It is illegal for physicians to prescribe Schedule I controlled substances.) • The U.S. Supreme Court clarified over a decade ago that there is no exception to the CSA's prohibitions on manufacturing and distributing marijuana for medical necessity, holding that the states do not have the authority to legalize what Congress has deemed unlawful. United States v. Oakland Cannabis Buyers Co-Op, 532 U.S. 483 (2001); Gonzales v. Raich, 545 U.S. 1 (2005).

16. Pennsylvania’s Medical Marijuana Act Pennsylvania’s Medical Marijuana Act or "MMA" allows patients suffering from a variety of ailments, including HIV/AIDS, autism, cancer, and post-traumatic stress disorder, to use marijuana to treat their conditions.

17. Pennsylvania’s Medical Marijuana Act (cont.) • Under the Medical Marijuana Act, patients who are residents of the Commonwealth and have a serious medical condition as certified by a physician will be able to obtain medical marijuana at approved dispensaries that are located in the Commonwealth and have a validly-issued permit from the Department. • Smoking marijuana is still illegal under the MMA, and marijuana may only be dispensed using alternative delivery systems such as pills, oils, topical gels, creams or ointments.

18. Pennsylvania’s Medical Marijuana Act (cont.) • The MMA prohibits employers from discharging, threatening, refusing to hire, discriminating or retaliating against employees "solely on the basis of such employee's status as an individual who is certified to use medical marijuana."  • In other words, taking adverse action against an employee based solely on the individual's status as a medical marijuana cardholder would likely be considered discrimination under the MMA.

19. Pennsylvania’s Medical Marijuana Act (cont.) • The MMA does not, however, require employers to accommodate the use of marijuana on the job "when the employee's conduct falls below the standard of care normally accepted for that position," and allows employers to discipline employees who are "under the influence" of medical marijuana at work.  • The law is silent as to whether an employer can rely upon a positive drug test as a reason for an adverse employment action in itself, or as evidence of impairment • Additionally, Pennsylvania employers are not required "to commit any act that would put the employer or any person acting on its behalf in violation of Federal law," such as federal contractors. Id.

20. Minarsky v. Susquehanna County • Third Circuit July 2018 • Employee only ever complained directly to her supervisor/harasser about his inappropriate conduct. • Harasser terminated after comment to co-worker was overheard by management.

21. Minarsky(cont.) • Lower court: Relying on Farragher/Ellerth– granted Summary Judgment for employer, finding that the employee’s failure to make a complaint about the behavior per company policy was unreasonable. • 3rd Cir. Reversed. Held: Due to the egregious and widespread misconduct on the part of the harasser—it was up to the jury to decide if the failure to report was unreasonable.

22. #MeToo • Takeaway: • Company Policies not enough. • Train employees and supervisors regularly. • Have effective complaint and investigation process. • Enforce policy violations with "real" penalties.

23. Hot Topics In Wage And Hour Law • PA Minimum Wage: • Unchanged since 2008. • Annual Proposals by Gov. Wolf to increase • Current proposal—gradual increase to $15. • Future increases tied to inflation. • Similar 2018 Executive Order implementing increases for employees under Governor’s jurisdiction.

24. FLSA Proposed Rulemaking • March 2019! • Replaces 2016 Final Rulemaking. • Increases minimum salary to $679/week for exempt employees ($35,308). • Allows employers to include certain nondiscretionary bonuses and incentives into the minimum salary calculations. • Eliminates automatic increases.

25. FLSA Proposed Rulemaking (cont.) • Currently in 60 day comment period. • Target implementation January 2020.

26. Thank you!

27. Questions?