Category Archives: Pennsylvania

NEW LAW: Predictive Scheduling Coming to Philadelphia

Philadelphia Mayor Jim Kenney recently signed the Fair Workweek Employment Standards Ordinance into law. The new law, which goes into effect on January 1, 2020, will impact employee scheduling if the employer:

  • Is in the retail, hospitality, or food service industries;
  • Has 250 or more employees (including full and part-time); and
  • Has 30 or more locations worldwide in.

Employers must provide newly hired employees a “Good-faith” estimate of their work schedule which includes:

  • The average number of work hours the employee can expect to work each week over a typical 90-day period.
  • The expectation to work any on-call shifts,
  • Days and times the employee can typically expect to work and when they can expect to be off work.
  • A written work schedule through the end of the currently posted work period (provided before the first day of work).

Continue reading NEW LAW: Predictive Scheduling Coming to Philadelphia

NEW LAW: Pennsylvania Human Rights Commission Expands Protections Of Pennsylvania Human Relations Act To Include LGBT Bias

In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.

What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.

Philadelphia May Set the Stage for Other Constitutional Challenges to Salary History Bans

In a recent twist in the cascade of state and municipal laws prohibiting employers from asking about an applicant’s salary history, a federal judge has ruled that Philadelphia’s salary history ban violates the First Amendment of the US Constitution by limiting employers’ free speech rights.  This ruling may have a significant impact on other state and municipal laws that seek to similarly restrict what employers may ask applicants.

The Ruling

Following passage of Philadelphia’s ordinance prohibiting inquiries into applicant’s salary histories, the Chamber of Commerce for Greater Philadelphia filed a federal lawsuit challenging the constitutionality of the ordinance based on its limitation of employers’ First Amendment rights.  The court agreed in part.

In partially ruling for the Chamber of Commerce, the court held that the ordinance is unconstitutional in its prohibition relating to employers asking applicants about their salary history because that prohibition implicates the First Amendment’s free speech clause.  At the same time, the court held that the second part of the ordinance, which prohibits employers from relying on salary history information at any time in the employment process to determine an employee’s salary, is constitutional and enforceable.

Thus, the court’s ruling enables Philadelphia employers to ask about an applicant’s salary history but leaves in place strict limitations on how they may use that information. Continue reading Philadelphia May Set the Stage for Other Constitutional Challenges to Salary History Bans

2018 MINIMUM WAGE CHECK-UP

With various cities and counties having enacted local minimum wages and 18 states (Alaska, Arizona, California, Colorado, Florida, Hawaii, Maine, Michigan, Minnesota, Montana, Missouri, New Jersey, New York*, Ohio, Rhode Island, South Dakota, Vermont, Washington) are increasing their own minimum wages on January 1st (December 31st for New York), employers should take time to verify that they are meeting the minimum wage requirements of their state/city/county.

The below chart sets forth the minimum wage effective January 1, 2018.

employer PAYS $1.50/hr towards medical benefits$11.91

Federal $7.25
State City/County  Amount?
Alabama  $7.25
Alaska*  $9.84
Arizona* — all cities/counties except …  $10.50
Flagstaff* $11.00
Arkansas  $8.50
California* — all cities/counties except …                                  small employer (25 or less) $10.50
large employer (26 or more) $11.00
Berkeley  $13.75
Cupertino* $13.50
El Cerrito*  $13.60
Emeryville                                           small employer (55 or less) $14.00
large employer (56 or more) $15.20
Los Altos* $13.50
Los Angeles                                         small employer (25 or less) $10.50
large employer (26 or more) $12.00
Malibu                                                  small employer (25 or less) $10.50
large employer (26 or more) $12.00
Milpitas* $12.00
Mountain View* $15.00
Oakland $12.86
Palo Alto* $13.50
Pasadena                                             small employer (25 or less) $10.50
large employer (26 or more) $12.00
Richmond*                                             employer does NOT pay $1.50/hr towards medical benefits $13.41
employer PAYS $1.50/hr towards medical benefits $11.91
Sacramento*                                      small employer (100 or less) $10.50
large employer (101 or more) $11.00
San Diego $11.50
San Francisco $14.00
San Jose* $13.50
San Leandro $13.00
San Mateo*                                                 For-profit organizations $13.50
Non-profit organizations $12.00
Santa Clara* $13.00
Santa Monica                                       small employer (25 or less) $10.50
large employer (26 or more) $12.00
Sunnyvale* $15.00
Los Angeles County                            small employer (25 or less)

unincorporated areas                            large employer (26 or more)

$10.50

$12.00

Colorado* $10.20
Connecticut $10.10
Delaware $8.25
Florida* $8.25
Georgia $7.25
Hawaii* $10.10
Idaho $7.25
Illinois — all cities/counties except … $8.25
Chicago $11.00
Cook County

(except for the Village of Barrington)

$10.00
Indiana $7.25
Iowa $7.25
Kansas $7.25
Kentucky $7.25
Louisiana $7.25
Maine* — all cities/counties except … $10.00
Portland $10.68
Maryland — all cities/counties except … $9.25
Montgomery County $11.50
Prince George’s County $11.50
Massachusetts $11.00
Michigan* $9.25
Minnesota* — all cities/counties except … “small employers” (employers with an annual sales volume of less than $500,000) $7.87
“large employers” (employers with an annual sales volume of $500,000+) $9.65
Minneapolis                                         large employer (101 or more) $10.00
Mississippi $7.25
Missouri $7.85
Montana* $8.30
Nebraska $9.00
Nevada $8.25
New Hampshire $7.25
New Jersey* $8.60
New Mexico — all cities/counties except … $7.50
Albuquerque*                                             employer provides benefits $7.95
employer does NOT provide benefits $8.95
Las Cruces* $9.45
Santa Fe $11.09
Bernalillo County*unincorporated areas                                             employer provides benefits $7.85
employer does NOT provide benefits $8.85
Santa Fe County unincorporated areas $11.09
New York**  “Upstate” employers (excluding fast food employees) $10.40
“Downstate” employers (excluding fast food employees) $11.00
“Small” NYC employers (excluding fast food employees $12.00
Fast food employees outside NYC $11.75
“Large” NYC employers (excluding fast food employees) $13.00
Fast food employees inside NYC $13.50
North Carolina $7.25
North Dakota $7.25
Ohio* $8.30
Oklahoma $7.25
Oregon — all cities/counties except … $10.25
Portland $11.25
Nonurban Counties 

(Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klmath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa Wheeler counties)

$10.00
Pennsylvania $7.25
Rhode Island* $10.10
South Carolina $7.25
South Dakota* $8.85
Tennessee $7.25
Texas $7.25
Utah $7.25
Vermont* $10.50
Virginia $7.25
Washington* — all cities/counties except … $11.50
City of SeaTac* (hospitality and transportation workers) $15.64
Seattle* $14.00
small employer who does not pay towards medical benefits

(500 or less)

small employer who does pay towards medical benefits

(500 or less)

$11.50
large employer who does not pay towards medical benefits

(501 or more)

$15.00
large employer who does pay towards medical benefits

(501 or more)

$15.45
Tacoma* $12.00
Washington DC $12.50
West Virginia $8.75
Wisconsin $7.25
Wyoming $7.25
 * = increase in minimum wage effective January 1, 2018

** = increase in minimum wage effective December 31, 2017

 

Caveat: Please be advised that this information is being provided as a courtesy and that ePlace Solutions, Inc. does not track local laws and ordinances and will not update this information with changes in local laws and ordinances.

 

 

NEW LAW – Pennsylvania Now Allows Payment of Wages Via Payroll Debit Cards

Late last year, the Pennsylvania Supreme Court ruled (Siciliano v. Mueller) that an employer requiring employees to accept payment of wages via payroll debit card is unlawful and violated the state’s Wage Payment Collection Law. (see our previous article Mandatory Payroll Debit Cards Unlawful in Pennsylvania”)

In an effort to modernize the Pennsylvania Wage Payment and Collection Law, Pennsylvania governor Tom Wolf signed Act 161 into law. This law reverses the Court’s decision in Siciliano and expressly permits employers to pay employees using payroll debit cards – provided that the following conditions are met:

  • Employees must be given the option of receiving their wages via paper checks or direct deposit if they prefer;
  • Employees must be properly notified (in writing or electronically) of their wage payment options and of the terms and conditions of the payroll card account option, including:
    • The fees that may be deducted from the employee’s payroll card account by the card issuer,
    • A notice that third parties may assess fees in addition to the fees assessed by the card issuer,
    • The methods available to the employee for accessing wages without fees.
  • Employees must affirmatively authorize use of the card;
  • The card must allow one free withdrawal each pay period and one in-network ATM withdrawal at least weekly;
  • The employee must have the ability to check the card’s balance electronically or via telephone without cost; and
  • There must be no fees associated with the issuance, replacement (one per year), transfer of wages, or non-use (for up to twelve months) of the card.
  • Employees must be given the opportunity to request (either in writing or electronically) to change the employee’s method of receiving wages from a payroll card account to direct deposit or negotiable check.
    • The change must take effect as soon as practicable, but no later than the first payday after 14 days from receipt by the employer of the employee’s request and any information necessary to implement the change.
  • Employees must be provided with written or electronic statement of earnings and deductions each pay period in accordance with Pennsylvania law.

Employers seeking to pay employees via payroll debit cards should review the new law to ensure compliance.

 

Former Employees Have No Right to Inspect Personnel Files in Pennsylvania

In a recent decision (Thomas Jefferson University Hospital, Inc. v. Pennsylvania Department of Labor and Industry), the Pennsylvania Supreme Court has held that former employees have no right to access their personnel files. This decision reverses a 2016 decision by the Commonwealth Court of Pennsylvania where the lower court had found that employers are required to allow recently separated employees access to their personnel files.

The Pennsylvania Supreme Court’s decision focused on the definition of the term “employee” in the Pennsylvania Inspection of Employment Records Law (Personnel Files Act). The law defines employees as “[a]ny person currently employed, laid off with reemployment rights or on leave of absence.  The term ‘employee’ shall not include applicants for employment or any other person.”

The Court found that “former employees, who were not laid off with re-employment rights and who are not on a leave of absence, have no right to access their personnel files pursuant to the Act, regardless of how quickly following termination they request to do so.”

Mandatory Payroll Debit Cards Unlawful in Pennsylvania

In a recent decision (Siciliano v. Mueller), the Pennsylvania Supreme Court has ruled that an employer requiring employees to accept payment of wages via payroll debit card is unlawful. This ruling does not impact an employee’s voluntary use of a payroll debit card.

The Case

In this case, the plaintiffs worked for a McDonalds where the franchise owner required all employees to received payment of wages via payroll debit card. There were many fees imposed on employees with respect to their use of the card. The plaintiffs filed a class action lawsuit against the employer claiming that requiring employees to accept payment of wages via payroll debit card violated Pennsylvania’s Wage Payment and Collection Law, which requires that employees’ wages “be paid in lawful money of the United States or check.” .

In response, the employer argued that payment of wages via payroll debit card was “the functional equivalent” of money and a “check” for purposes of the Wage Payment and Collection Law and claimed that its practice was lawful.

The Pennsylvania Supreme Court disagreed and found that under the Wage Payment and Collection Law, “a debit card is not ‘lawful money’ and is not a ‘check’.” As a result, the Court found that a practice where the employer requires employees to accept payment of wages via payroll debit card is unlawful in Pennsylvania. However, the Court did clarify that the voluntary use of payroll debit cards may be an appropriate payment method.

Take home for employers

Pennsylvania employers who require employees to accept payment of wages via a payroll debit card must change that practice immediately. Instead, employers must make any use of a payroll debit card voluntary.

Employer Dos and Don’ts for Elections

In a previous article (Does Your State Require Voting Leave?), we broke down which states require employers to provide employees with time off to vote. In addition to these voting leave laws, many states have other laws in place that regulate what employers can, and more importantly, what an employer cannot do with respect to an election.

Below is a summary of the applicable laws for each state:

Alabama Employers may not:

·         Use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election and

·         Seek to examine an employee’s ballot.

Alaska Employer may not threaten to inflict damage, harm, or loss to induce an employee to vote or refrain from voting in an election.
Arizona Employers may not

·         Coerce employees to support (or not) a referendum or recall;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Arkansas Employers may not use threats or efforts to intimidate individuals with respect to whether and how they choose to vote.
California Employers may not

·         Prevent an employee from participating in politics;

·         Direct the political activities or affiliations of an employee; or

·         Threaten to discharge an employee for engaging or refusing to engage in certain political activity.

Colorado Employers may not

·         Threaten to discharge employees because of their political party affiliation;

·         Create or enforce a policy to prevent an employee from participating in politics; or

·         Discharge an employee for voting in an election or advocating for a particular candidate or political viewpoint while off duty.

Connecticut Employers may not discipline or discharge employees for exercising their First Amendment rights.
Delaware Employers may not coerce any employee with respect to his political activity.
Florida Employers may not

·         Discharge or threaten to discharge employees for how they voted in an election.

·         Use coercion to get an employee to register to vote or support a certain candidate.

Georgia Employers may not

·         Coerce employees to support (or not) a recall;

·         Use threats or efforts to intimidate individuals with respect to whether and how they choose to vote.

Hawaii Employers may not use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election.
Idaho Employers may not use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election.
Illinois Employers may not

·         Use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election

·         Keep records relating to employees’ off-duty political activities, unless the employee gives authorization and/or provides those records to the employer

·         Punish an employee for his off-duty use of “lawful products” (which could include comments made on social media).

Indiana Employers may not

·         Coerce employees to support (or not) a referendum or recall;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Attempt to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Iowa Employers may not use coercion to get an employee to register to vote, to support a certain candidate, or to sign a petition.
Kansas Employers may not coerce any employee with respect to his political activity.
Kentucky Employers may not

·         Use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election

·         Distribute any materials stating that employees are expected to vote for a particular candidate; or

·         Attempt to induce employees to vote a certain way in a state election.

Louisiana Employers may not

·         Threaten to discharge employees or otherwise intimidate employees because of their political party affiliation;

·         Allow an employee’s political contributions to affect his employment (including compensation)

Employers with 20+ employees may not

·         Prevent employees from participating in politics;

·         Control employees’ political activities or affiliations; or

·         Threaten to discharge employees if they support certain political parties or activities

 

Maine No laws relating to politics in the workplace
Maryland Employers may not

·         Influence employees’ voting activity through intimidation or bribery;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace

Massachusetts Employers may not coerce any employee with respect to his political activity.
Michigan Employers may not

·         Use coercion (e.g. Threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation) to influence an employee’s vote in an election

·         Keep records relating to employees’ off-duty political activities, unless the employee gives authorization and/or provides those records to the employer or the records pertain to activities that took place at work

Minnesota Employers may not coerce any employee with respect to his political activity.
Mississippi Employers may not interfere with the political rights of employees.
Missouri Employers may not

·         Coerce any employee with respect to his or her political activity or

·         Prevent employees from engaging in political activities.

Montana Employers may not coerce any employee with respect to his political activity.
Nebraska Employers may not

·         Coerce any employee with respect to his political activity or

·         Close the business as a result of election results.

Nevada Employers may not

·         Prohibit employees from engaging in politics or serving in public office

·         Punish an employee for his off-duty use of “lawful products” (which could include comments made on social media).

New Hampshire Employers may not coerce any employee with respect to his political activity.
New Jersey Employers may not

·         Coerce any employee with respect to his political activity;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees;

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace; or

·         Require employees to attend employer-sponsored political meetings.

New Mexico Employers may not coerce any employee with respect to his political activity.
New York Employers may not punish an employee for his off-duty political activities.
North Carolina Employers may not

·         Coerce any employee with respect to his political activity;

·         Punish an employee for his off-duty use of “lawful products” (which could include comments made on social media).

North Dakota Employers may not punish an employee for his off-duty political activities.
Ohio Employers may not

·         Coerce any employee with respect to his political activity; or

·         Attempt to influence an employee’s political beliefs.

Oklahoma Employers may not coerce any employee with respect to his political activity.
Oregon Employers may not coerce any employee with respect to his political activity.
Pennsylvania Employers may not

·         Coerce any employee with respect to his political activity;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Rhode Island Employers may not

·         Coerce any employee with respect to his political activity;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

South Carolina Employers may not coerce any employee with respect to his political activity.
South Dakota Employers may not

·         Coerce any employee with respect to his political activity;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Tennessee Employers may not

·         Coerce any employee with respect to his political activity;

·         Distribute materials intended to coerce employees to vote in a certain way

Texas Employers may not coerce any employee with respect to his political activity.
Utah Employers may not

·         Coerce any employee with respect to his political activity;

·         Include with employees’ paychecks any statements to influence the political opinions or actions of employees; or

·         Display any notice within 90 days before an election that attempts to influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Vermont Employers may not coerce any employee with respect to his political activity.
Virginia Employers may not

·         Require employees to donate money to political action committees as a condition of employment; or

·         Coerce any employee with respect to his political activity.

Washington Employers may not

·         Interfere with an employee’s efforts to support or oppose a political effort

·         Use payroll contributions or salary increases for the purposes of funding political activities; or

·         Coerce any employee with respect to his political activity.

Washington DC Employers may not coerce any employee with respect to his political activity.
West Virginia Employers may not

·         Require employees to donate money to political action committees as a condition of employment; or

·         Influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Wisconsin Employers may not

·         Coerce any employee with respect to his political activity; or

·         Influence employees to support (or not) a particular candidate by stating that if a candidate succeeds, there will be consequences in the workplace.

Wyoming Employers may not coerce any employee with respect to his political activity.

 

Does Your State Require Voting Leave?

With the 2016 Election under three weeks away (Tuesday, November 8, 2016), employers should anticipate that employees will request time off to vote. Depending on the state, an employer may be required to provide voting leave to an employee.

The below table shows which states provide voting leave and which states do not.

No Voting Leave Provided Unpaid Voting Leave Paid Voting Leave
·         Connecticut ·         Alabama ·         Alaska
·         Delaware ·         Arkansas ·         Arizona
·         Florida ·         Georgia ·         California
·         Idaho ·         Kentucky ·         Colorado
·         Indiana ·         Massachusetts ·         Hawaii
·         Louisiana ·         Mississippi ·         Illinois
·         Maine ·         New Mexico ·         Iowa
·         Michigan ·         North Dakota ·         Kansas
·         Montana ·         Ohio ·         Maryland
·         New Hampshire ·         Wisconsin ·         Minnesota
·         New Jersey   ·         Missouri
·         North Carolina   ·         Nebraska
·         Oregon   ·         Nevada
·         Pennsylvania   ·         New York
·         Rhode Island   ·         Oklahoma
·         South Carolina   ·         South Dakota
·         Vermont   ·         Tennessee
·         Virginia   ·         Texas
·         Washington   ·         Utah
·         Washington DC   ·         West Virginia
    ·         Wyoming

In states where voting leave is required, state law dictates the conditions under which voting leave must be provided, if at all. The laws also set forth the amount of time that an employee must receive for this type of leave. As demonstrated above, depending on the state, the leave may be paid or unpaid.

It is recommended that all employers check the voting leave laws in their states prior to election day and provide training to managerial employees on compliance with this law.

DOL Partnership regarding worker misclassification — 34 States and Counting

Thirty-five states have agreed to “team up” with the US Department of Labor to investigate worker misclassification. Is your state one of them?

In 2015, Department of Labor launched an initiative to combat the misclassification of employees as independent contractors. As a part of this initiative, the Department of Labor sought to partner with the state agencies and agree to share information and conduct joint investigations regarding independent contractor misclassification. To date, 35 states have entered into a memorandum of understanding regarding worker misclassification issues.

These states are:

  • Alabama
  • Alaska
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Florida
  • Hawaii
  • Idaho
  • Illinois
  • Iowa
  • Kentucky
  • Louisiana
  • Maryland
  • Massachusetts
  • Minnesota
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • New Mexico
  • New York
  • North Carolina
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Dakota
  • Texas
  • Utah
  • Vermont
  • Virginia
  • Washington
  • Wisconsin
  • Wyoming

What does this mean for employers in these states?

Employers in the above-listed states should expect collaborative efforts between their state agencies and the Department of Labor during a investigation into potential employee misclassification as the state and the Department of Labor will share information. This could lead to simultaneous, multi-agency investigations into worker classification. It is recommended that companies have qualified legal counsel review any existing independent contractor arrangements. In addition, before entering into an independent contractor relationship, speak with an HR Professional or qualified legal counsel to verify that the worker truly is an independent contractor.