​The United States Equal Employment Opportunity Commission (“EEOC”) recently published a guidance piece that is useful for both employees and employers. One particular article of interest is a description of the legal rights for pregnant workers under federal law. If you’re an employer, it’s important to recognize that you may be required to provide further accommodations now than in the past to your pregnant employees.

The EEOC’s guidance article has three major directives. First, an employer cannot discriminate on the basis of a past or present pregnancy, an ability or intent to become pregnant, a medical condition related to pregnancy, or an abortion. Similarly, an employer cannot harass an employee based on these same considerations. Finally, and potentially most importantly, the employer appears to now be under a heightened expectation to make accommodations for a pregnant employee.

In providing guidance on the issue of a heightened right to accommodations, the EEOC delivered its message in the form of a hypothetical question and answer format as reproduced below:

Q: What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.”  Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

                                                                  –           –           –

You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific.  However, you should know that the Americans with Disabilities Act (“ADA”) doesn’t require your employer to make changes that involve significant difficulty or expense.  Also, if more than one accommodation would work, the employer can choose which one to give you.

Q: What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation.  You may also qualify for leave under the Family and Medical Leave Act.

Q: What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy.  You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA.  An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one.  The employer also cannot charge you for the costs of an accommodation.  Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it.  Your health care provider might also be asked whether particular accommodations would meet your needs.

Q: What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true and that your provider has considered the option of an accommodation that would allow you to do your job safely.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the Pregnancy Discrimination Act (“PDA”).  Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a strategy on how to ensure you are compliant with both the regulations of the Americans with Disabilities Act and the Pregnancy Discrimination Act, call now to arrange for a free consultation at 215-947-6240 or visit us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

This past May, the Obama administration issued final rules requiring employers to make overtime payments (time-and-a-half) to perhaps millions of workers not currently eligible. The rules will go into effect on December 1, 2016, giving employers approximately six months from the announcement of the final rules to prepare. The goal of these rules is to update the salary and compensation levels needed for executive, administrative and professional salaried workers to be exempt from overtime pay eligibility. The hourly threshold for overtime payments remains at 40 hours per week.

It should be noted that overtime payment is automatic for those employees who are paid hourly, as opposed to those on salaries, regardless of their actual earnings.

So while these new rules only impact salaried employees, they still have the potential to expand coverage to over four million salaried workers nationwide within the first year of implementation. Here is why: the central component of the new rules is the pay level at which salaried employees are presumed eligible for overtime pay. Under the old rule governing overtime, enacted twelve years ago as the only adjustment to overtime regulation since 1975, only workers making less than $23,660.00 in salary qualified to receive overtime pay when working more than forty (40) hours in a week. Under the new rules, the qualifying salary is increased to $47,476.00 per year, a rather large jump indeed. These rules allow salaried workers, including managers, who earn below the $47,476.00 threshold to collect overtime pay for any time spent working over forty hours.  Those workers earning above that amount are exempt.

It is also important to highlight that the new rules, as opposed to the old rules, are set up so that a new dollar amount for overtime eligibility will adjust every three years. This was included to ensure workers’ ability to earn overtime will keep up with inflation.
If you’re an employer, the time to start developing a plan in response to these new regulations is now. Here are some potential options available to employers to manage this change, as proffered by employment experts nationwide:

• Keep those salaries which would qualify for overtime the same while eliminating overtime or reducing it greatly.
• Raise the salaries of salaried employees over the new minimum threshold ($47,476.00), which will allow employers to continue generating unpaid overtime work from now-exempt employees.
• While not very creative, employers may opt to simply keep the salaries the same while paying overtime. While it may seem an easy option, employers will be tasked with tracking employee hours to ensure they’re not abusing the system.
• Keep salaries the same, but hire more employees on an hourly basis. This seemingly goes hand in hand with option one. However, if your type of work involves constantly generating overtime from employees, hiring additional workers to be paid hourly to pick up any potential slack from those employees actively avoiding overtime may be a worthwhile option to explore.

The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a strategy on how to handle the changes sure to come with this new rule on overtime pay, call now to arrange for a free consultation at 215-947-6240 or visit us online.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

As it pertains to non-compete clauses in an employment agreement in Pennsylvania, there is no bright line rule which states definitively the validity or“enforceability” of these provisions. In fact, Pennsylvania has no statute specifically addressing the issue of whether these sections of an employment agreement are enforceable. As a result, it has largely been left to the courts of the Commonwealth to provide clarity.

For reference, a non-compete clause typically includes the following language: “Employee agrees that for a period of “X” months after the Employee is no longer employed by Company Y, the Employee will not engage in the same or similar activities as were performed by the Employee for Company Y in any other business within a 50 miles radius of Company Y.”

Generally speaking, restrictions on a former employee’s right to work are not favored in Pennsylvania. Omicron Sys., Inc. v. Weiner, 860 A.2d 554 (Pa. Super. 2004). However, the Courts in Pennsylvania are willing to enforce non-compete covenants but only to the extent reasonably necessary for the protection of the employer’s interests. Id. In order to be deemed reasonable, and therefore enforceable, the non-compete provision must be reasonably limited in regards to (1) duration of time the non-compete provisions applies (can’t generally be for former employee’s lifetime, for example) and (2) geographical extent of the non-compete (must be limited to certain radius, can’t generally be all of the country).

So, if you’re an ex-employee seeking employment in the same field and in the same general area in violation of your employment agreement with your former employer, what should you expect? Well, if you find another job which fits these features, your former employer may file a lawsuit against you to attempt to force you to quit this new job.

As an employer, it must be clear in your non-compete clause that your sole goal is to protect your business interests. As previously stated, while these type of provisions are not necessarily favored in Pennsylvania, courts will uphold and enforce them provided they stand up to a level of scrutiny which is fairly strict. If a court is in the position of reviewing your agreement and concludes that the non-compete clause is broader than necessary to protect a legitimate business interest or simply not reasonable, they have the right to invalidate it and remove it from the employment contract.

Additionally, if you’re an employer, it’s important to take note that the inclusion of such a provision must be incident to an employment relationship between yourself and your employee. While this may seem obvious, there are minor subtleties regarding consideration for the making of a new contract. For instance, Pennsylvania Courts have ruled that if an employee is already employed and later an employer asks the employee to sign a non-compete, there must be some mutually exchanged benefit. Therefore, the employer could be required to offer additional salary or some other form of consideration in order for an agreement under such circumstances to be deemed enforceable.

If you’re an employer or employee confronting legal issues concerning a “non-compete” provision in your employment contract, the Business and Corporate Law attorneys at Howland Hess O’Connell are willing and able to assist you in handling this matter.

Call for a free consultation at (215)-947-6240 or contact us online to schedule a meeting.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

In December, 2015, then Philadelphia Mayor Michael Nutter signed an amendment to the city’s “Ban the Box” law which took effect Monday, March 14, 2016. The goal of the amendment is to make job opportunities available for the approximately 300,000 residents of Philadelphia with a criminal past. 

This amendment adds to the already burdensome hiring restrictions on Philadelphia employers. Philadelphia is now recognized as having one of the most restrictive policies in the country for employers seeking to perform background checks.

To understand the amendment to the law, it’s important to compare the new policy with the original 2012 “Ban the Box” legislation. When the law first went into place, it was limited to private employers with at least ten employees. Now, any employer (public or private) in Philadelphia with even as few as one other employee is subject to the law. This is a huge change to the reach of this law and burden on employers. It essentially mandates that unless you work entirely by and for yourself, you must now comply with this law for any and all applicants in your hiring process.

Under the previous version of the law, the main obstacle for Philadelphia employers was that they were barred from asking an applicant about his or her criminal history on the application itself or during the initial interview. However, under the previous law, there was no bar on employers conducting these background checks after the initial interview and before making any conditional offer of employment.

Now, the most impactful change is that employers can only conduct criminal background checks after the employer makes a conditional offer of employment to an applicant.

Additionally, under the new law, employers are restricted to a window of seven years prior to the application to investigate an applicant’s criminal record. Under the previous version of Philadelphia’s “Ban the Box” legislation, an employer had the ability to conduct background checks as far back as they desired.

Finally, the new addition to the law mandates that an employer notify the applicant and send to the applicant a copy of their criminal background check if the applicant is rejected. From that point, the applicant is provided ten (10) days in which to contest the employer’s decision and three-hundred (300) days to file a complaint with the Philadelphia Commission on Human Relations.

PRACTICAL: If you’re an employer in Philadelphia, big OR small, you need to be fully aware of this amendment to the “Ban the Box” Law. If either you or an employee of yours (such as an HR Manager) is charged with interviewing potential candidates for hire, it is critical to cover all bases to demonstrate you complied with the law and engaged in a holistic analysis of the individual before rejecting him or her.

The Law Firm of Howland, Hess, Guinan, Torpey, Cassidy & O’Connell is well versed in Business and Corporate Law. If you’re an employer in Philadelphia seeking to determine how best to defend yourself from claims by rejected applicants who are claiming you violated the “Ban the Box” legislation, the attorneys at Howland Hess O’Connell are ready and able to guide you through this new policy.

Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.

For businesses in today’s job market, avoiding claims of employment discrimination is a constant struggle. Whether based on race, sex, national origin, disability, religion, color, or age, discrimination claims are taken very seriously in both state and federal court. While you, as an employer, may have done absolutely nothing wrong, a great majority of employment discrimination claims cost employers money and always cost them time.
However, there are ways to limit your exposure to allegations by discharged or disgruntled employees. Today, we list 5 policies to consider implementing intended to prevent and subsequently defend claims of employment discrimination. Without further ado:

• Have a Written Policy Defining Grounds for Termination in the Workplace: What do I mean when I say a “termination policy”? Provide your employees, in writing, with a pamphlet or document which explains your expectations and lays out the procedure for terminating an employee. If you have a “one-strike” policy, make it clear. If you base terminations on the number of warnings or suspensions, be sure to publicize it [perhaps post it in the break room] and rely upon it to justify an immediate termination. The only caution I will provide is that if you’re going to put a termination policy in writing, you better follow that process you describe in all cases!
  
  
• Document the File: This tip ties in directly with the first policy listed above. Documenting employee performance and any instances of misconduct can be a critical piece of evidence if later accused of discrimination. If you’ve had problems with an employee, it should be reflected in performance reviews, and any performance deficiencies should be documented immediately. Some employers even go so far as avoiding performance reviews altogether and instead only putting to paper instances of misconduct or under-performance. Here’s the key: don’t think you can rely solely on what you’ve said to employees verbally, put it in writing!
  
  
• Have a Fair Hiring Policy: People often believe discrimination claims come only from current or former employees. Au contraire my friends! The majority of federal statutes dealing with discrimination in the workplace define employees as those currently employed, formerly employed, and also job applicants. If you have a policy or pattern of refusing/failing to hire applicants from a certain protected class (age, disability, religion, race, color, etc.), expect a call from the Equal Employment Opportunity Commission. Be careful about asking any questions which could be viewed as an attempt to determine if the applicant is in a protected class, and be conscientious of all job postings to ensure they don’t demonstrate bias in your hiring process.
  
  
• When Firing, Don’t Do It Alone: This is critical. While terminating an employee is often a difficult, emotional experience, having a third party witness who can attest to your version of the events can go a long way in discrediting an employee’s later version of the events. If you have a HR manager, they should be the first person you consider. Alternatively, unless there are union or contractual provisions dictating otherwise, do not allow an employee to bring anyone else into the meeting.
  
  
• Be Careful in Not Heaping Too Much Praise on an Employee: While company and employee morale are both critical components to any successful business, good luck explaining to a judge that a now terminated employee has been a problem for years when he or she has in her hands glowing performance evaluations for the same time period. Avoid the temptation to exaggerate your review of your employees and be very careful in how often you hand out that “exceeds expectation” cookie!

Five tips alone cannot possibly cover the myriad of ways to prevent and defend against claims for discrimination in the workplace. One thing is certain, however: every company with more than three employees should have an employment policy manual. Creating an effective and legally sufficient manual is no easy task, so employers would be wise to consider seeking the assistance of competent legal professionals in the drafting process.
The attorneys at Howland, Hess, Guinan, Torpey, Cassidy & O’Connell, LLP are skilled in employment and business law. If you are interested in creating a policy to better insulate yourself from potential discrimination lawsuits, call now to arrange for a free consultation at 215-947-6240 or visit us online.

​Legal Disclaimer: The contents of this website are intended solely for informational purposes. They neither constitute nor imply an official legal opinion on behalf of Howland, Hess, Guinan, Torpey, Cassidy and O’Connell nor do they establish an attorney-client relationship of any kind. Howland Hess O’Connell encourages all readers to seek and consult professional counsel before acting upon the information contained on this site.