Tag Archives: Pennsylvania

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.

 

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.

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.

Medical Marijuana is Legal Pennsylvania. How does that impact employers?

On April 21, 2016, Pennsylvania Governor Tom Wolf signed “The Medical Marijuana Act” (Senate Bill 3) into law. This new law legalizes the use of marijuana for certain medicinal purposes. This law will go into effect on May 21, 2016.

Under the new law, patients suffering from ALS, autism, cancer, Crohn’s disease, nerve damage, epilepsy, glaucoma, HIV/AIDS, Huntington’s Disease, inflammatory bowel syndrome, intractable seizures, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, severe chronic or intractable pain and sickle cell anemia are permitted to use marijuana for medicinal purposes. In order for the patient’s use of marijuana to be lawful, the patient must have a certification from his/her health care provider and an identification card.

Impact Of The Medical Marijuana Act On Pennsylvania Employers

This new law impacts Pennsylvania employers in several ways.

The law prohibits discrimination against individuals who are certified to use medical marijuana. Specifically, employers are prohibited from

discharging, threatening, refusing to hire or otherwise discriminating or retaliating against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

While employers are prohibited from discriminating against an employee who is certified to use medical marijuana, employers are not required to accommodate the employee’s use of marijuana at work. In addition, employers are permitted, under the law, to discipline employees who are “under the influence” of marijuana at work.

Finally, the law also provides protections to employers of workers in “safety-sensitive” positions. Specifically, for certain safety-sensitive positions, the law prohibits the following:

  • Operating or physically controlling chemicals which require a permit issued by the federal government, state government, federal agency or state agency while under the influence with a blood content of more than 10 ng/ml,
  • Operating or physically controlling high-voltage electricity or any other public utility while under the influence with a blood content of more than 10 ng/ml,
  • Performing any employment duties at heights or in confined spaces while under the influence of medical marijuana,
  • Performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical marijuana, and
  • Performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.

It is recommended that employers in Pennsylvania review their current drug policies and revise those policies to comply with the new law.

The Boss Is Not Alone, Pennsylvania Governor Also Responds To Recent North Carolina And Mississippi Laws

On April 8, 2016, Bruce Springsteen (aka “The Boss”) issued a statement cancelling his Sunday, April 10, 2016 concert in Greensboro, North Carolina in protest to North Carolina’s recent enactment of the Public Facilities Privacy and Security Act (HB2), which dictates which bathrooms transgender people are permitted to use in public buildings.

Well, the Boss is not alone in his protest. On April 7, 2016, Pennsylvania Governor Tom Wolf signed two anti-discrimination executive orders related to the rights of transgender people. In a statement released on April 6th, the Governor’s office made it clear that these orders were in response to the North Carolina and Mississippi laws, saying that “What happened in North Carolina, and what is going on in other states, should be a call to pass non-discrimination legislation in Pennsylvania now.” (For our previous discussion on the North Carolina and Mississippi laws, please see “Does North Carolina’s New Public Facilities Law Impact Private Employers?” and “Impact of Mississippi’s New Religious Freedom Law on Mississippi Employers”)

The first (Executive Order: 2016-04 – Equal Employment Opportunity) bans discrimination against employees or job applicants based on gender expression or identity in addition to the other protected categories set forth in the order (race, color, religious creed, ancestry, union membership, age, gender, sexual orientation, national origin, AIDS or HIV status, or disability.

The second (Executive Order 2016-05 – Contract Compliance) requires any company that has a contract with the state to eliminate discrimination in hiring employees and requires the companies to treat them fairly.

Employers doing business in Pennsylvania should review their policies and practices verify that they are not discriminating against applicants/employees on the basis of gender identity.

Prohibiting Workplace Recordings in Pennsylvania May be Permissible

In the face of the December 2015 NLRB decision (Whole Foods Market, Inc.), where the NLRB determined that an employer’s policy prohibiting workplace recordings violated the NLRA (see our previous post), employers have wondered if there is a way to prohibit workplace recordings. There may be a glimmer of hope for Pennsylvania employers, following a recent Pennsylvania Supreme Court decision (Commonwealth of Pennsylvania v. Smith), where the Court found that an employee’s act of surreptitiously recording a conversation with his former boss violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act.

The Facts

The employee had filed an internal complaint with the Company. The employee was later called into his supervisor’s office for a meeting (unrelated to his complaint) and the employee saw a copy of the complaint on the supervisor’s desk. Concerned that he may be terminated for “whistleblowing,” the employee decided to record the conversation with the supervisor using his iPhone. The conversation was recorded without the supervisor’s knowledge or consent.

As it so happens, during that meeting, the employee was terminated and he later filed a lawsuit for wrongful termination. During the course of the lawsuit, the employer learned about the recording and reported the former employee’s conduct to the State. The state subsequently filed charges against the former employee. The former employee was prosecuted for violating Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, which makes it a felony for a person to intentionally record another person’s oral communications without the other person’s consent.

Impact on Pennsylvania Employers

In the Whole Foods Market decision, the NLRB acknowledged that certain states have laws prohibiting the recording of another person without his or her consent. In recognizing this, the NLRB conceded that employer policies consistent with such laws would be lawful – provided that those policies were narrowly tailored and specifically referenced the relevant state law.

Pennsylvania employers that currently have a policy banning workplace recordings (or who are considering prohibiting unauthorized workplace recordings), should ensure that any policy they have (or create) is narrowly tailored and that it set forth the specific bases for this policy – noting not only privacy and confidentiality concerns (among others), but also specifically referencing the Pennsylvania Wiretapping Act and any other Pennsylvania statute that prohibits nonconsensual recordings.