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Archive for the ‘Employment Law Blog – PA and NJ’ Category

Hot Off The Press: PHRC Will Accept LGBT Complaints

Posted on: September 7th, 2018

By: Jennifer Ward

On August 2, 2018, the Pennsylvania Human Relations Commission (PHRC), which enforces Pennsylvania’s anti-discrimination law (Pennsylvania Human Relations Act (PHRA)), issued guidance documents clarifying that the PHRC will accept charges that allege discrimination on the basis of “sex,” including sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and/or gender expression.  Although the PHRA has always prohibited “sex” discrimination, it did not expressly prohibit “sexual orientation” discrimination. As such, it was previously unclear whether the PHRC would entertain LGBT discrimination complaints. However, the new guidance documents confirm that the PHRC will accept and investigate LGBT discrimination complaints.

Prior to this announcement by the PHRC, only certain municipalities and states, such as Philadelphia County, New Jersey, and Delaware included “sexual orientation and/or gender identity” in the definition of “sex” as a protected group in their anti-discrimination laws. The PHRC’s new guidance requires all covered employers, places of public accommodation, housing, and institutions of secondary education to review their policies and practices and to make changes accordingly.  As a result of this recent clarification by the PHRC, we expect to see an increase in LGBT discrimination claims in 2019.

So, what is the takeaway for employers? Make sure you update your EEO Policy to reflect the extended protections and relay the new protections to your employees through your regular training programs.

For more information regarding this or other labor and employment issues, please contact Jennifer Ward, Esq. at [email protected] or 267.507.1736.

 

Read the full guidance documents here:

Guidance on Discrimination on the Basis of Sex Under the Pennsylvania Human Relations Act
Guidance on Discrimination on the Basis of Sex Under the Pennsylvania Fair Educational Opportunities Act

 

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

Discrimination Suit Over Service Dog Revived By Third Circuit

Posted on: August 23rd, 2018

By: Barry Brownstein

The Third Circuit has revived a lawsuit by the parents of an epileptic girl who claim a Pennsylvania school discriminated against her by barring her service dog.

In 2014, Traci and Joseph Berardelli sued the Allied Services Institute of Rehabilitation Medicine, which operates a school with a specialized program for dyslexic students, after it barred their daughter from bringing her service dog to school to help alert staff to her epileptic seizures. The school claimed the dog would be a distraction, and the Berardelli’s daughter missed many school days when her seizures were bad. When the school finally permitted the service dog to accompany her, the reprieve did not last long, as school officials required that it wear a “special therapeutic shirt designed to decrease allergens” that caused the dog to overheat. The parents’ lawsuit alleged that the school violated the ADA, the Rehabilitation Act, and a Pennsylvania discrimination law.

The United States District Court for the Middle District of Pennsylvania dismissed the ADA and state discrimination claims, ruling that they improperly sought damages.

On appeal, Traci and Joseph Berardelli argued that “reasonable modifications” required under the ADA are substantively the same as “reasonable accommodations” provided for in the Rehabilitation Act, and thus, service animal requirements in the ADA apply to both laws.

The Third Circuit ruled that the district court erred in its instructions to the jury about the Rehabilitation Act claim and improperly disallowed testimony about ADA service animal regulations because that was not the law being considered.  In its enforcement of the ADA, the Department of Justice has ruled that service animals are reasonably permitted to be used by disabled persons in public places as long as they are housebroken, not out of control, and pose no risk to the public.

The Third Circuit ruled that the Rehabilitation Act of 1973 and its progeny the Americans With Disabilities Act of 1990 must be interpreted the same way with respect to reasonable accommodations that must be provided to those with disabilities, including the use of service animals. Thus, under the Rehabilitation Act just as under the ADA, a covered actor ordinarily must accommodate the use of service animals by individuals with disabilities. The Third Circuit also overturned dismissal of the claim made under Pennsylvania discrimination law, ruling that the district court erred because that law does permit damages as a remedy.

If you have any questions or would like more information, please contact Barry Brownstein at [email protected].

Can You Fire An Employee While On Maternity Leave?

Posted on: June 19th, 2018

By: Jennifer Ward

An employee goes on leave and, during the leave, the employer discovers (for the first time) deficiencies in the employee’s work performance.  What can an employer do in response?

Well, the 6th Circuit Court of Appeals recently found that an employer did not violate the law when it terminated an employee on the day the employee returned from leave based upon the deficiencies it discovered while she was on leave.  Bailey v. Oakwood Healthcare, Inc., No. 17-2158 (April 23, 2018).

In essence, the 6th Circuit confirmed that an employee is not shielded from termination for poor performance and other unacceptable conduct simply because the conduct was discovered while the employee was on leave.

While this opinion is good news for employers who struggle with what to do when they discover misconduct (or simply poor performance) while an employee is on leave, employers should be very cautious in using this approach.  As employees likely will be ultra-sensitive to disciplinary actions shortly after they return from leave and courts will closely scrutinize such disciplinary actions, an employer should be fully prepared to identify (with supporting evidence) the business reason the employer relied upon to terminate the employee at that time.  Be mindful, however, that even with objective evidence – such as a falsified employment application in this case – the employer could still be liable for discrimination or retaliation if, for example, it knew of other employees who engaged in similar activity but terminated only the one who took leave.

If you have any questions or would like more information, please contact Jennifer Ward at 267.758.6012 or [email protected].

Philadelphia’s “Salary History Ban Law” Gets Banned!

Posted on: May 7th, 2018

By: Jen Ward and John McAvoy

More than a half-century after President JFK signed the Equal Pay Act, the gender pay gap is still with us. Women earn 79 cents for every dollar men earn, according to the Census Bureau.  What will it take to bridge that stubborn pay gap? Well, some believe we can and will reduce the impact of previous discrimination by not asking new hires for their salary history. Several cities and states agree with this approach and have passed legislation that prohibits employers from asking questions about an applicant’s salary history. In the cities and states where such laws have been passed, they are not without controversy.

Philadelphia passed a similar law last year. In response, Philadelphia’s Chamber of Commerce, backed by some of Philadelphia’s biggest employers, including Comcast and Children’s Hospital of Philadelphia (CHOP), filed suit against the City of Philadelphia challenging the constitutionality of the salary history ban law, arguing the portion of the law that prevents companies from inquiring about an applicant’s wage history violated an employer’s free speech rights.

On Monday, April 30, 2018, the Eastern District of Pennsylvania made two rulings with respect to Philadelphia’s salary history ban law in the matter of Chamber of Commerce for Greater Philadelphia v. City of Philadelphia, docket no. 2:17-cv-01548-MSG (E.D. Pa. Apr. 30, 2018) (Goldberg, J.).

First, the court found that the law as written violated the First Amendment free speech rights of Philadelphia employers. In sum, the court’s ruling is that employers can ask salary history questions.

Second, the court upheld the ‘reliance provision’ of the salary history ban law, which makes it illegal to rely upon that wage history to set the employee’s compensation.  This means that Philadelphia employers can ask salary history but cannot use it as a basis to set salary.  The purpose of this is to encourage employers to offer potential candidates what the job is worth rather than based on prior salary which could have been set based on discriminatory factors.

There is a prevailing trend nationwide for salary history ban laws. To date, California, Delaware, Massachusetts, Oregon, Puerto Rico, New York’s Albany County, New York City, and San Francisco have enacted salary history ban laws, and at least 14 other states are considering following suit.  Although we anticipate future and continued legal challenges, it seems likely that laws banning salary history inquiries will continue to gain ground, particularly in more progressive states or areas where the pay disparity directly impacts a large segment of eligible voters. As such, prudent employers should prepare themselves to address this new workforce right through smart planning and proper training of employees, including managers, supervisors and HR personnel responsible for ensuring a lawful hiring process.

Want to learn more about what Philadelphia’s salary history ban law means for your business? Let us help you by analyzing your hiring practices. Please call or email the employment experts Jen Ward (267.758.6012 [email protected]) and John McAvoy (215.789.4919 [email protected]). Our firm motto and goal is “Your Problem Solved!”