I’m a management-side employment lawyer. It’s my job to go to court and defend employers and executives accused of all different types of misconduct, including sexual harassment. Over the last 20 years, I have seen it all. Some of my cases involve relatively tame allegations, like telling dirty jokes around the watercooler. And I have also been involved with cases involving extremely serious accusations, including indecent exposure, unwanted touching, and sexual assault. I spent a fair amount of time watching the Kavanaugh hearings. Like everyone else I know, I have a strong opinion on whether or not the nomination should be approved, but I did not write this article to share my personal opinions. There are enough political commentators on cable news shows doing that already. From an employment litigation and human resources perspective, there are several important lessons to be learned.
Jonathan Landesman is Co-Chair of the Labor & Employment Group of Cohen Seglias and a member of the Firm’s Executive Committee. He aggressively represents his clients in all areas of labor and employment law.
This article was originally published in the 2017 edition of the Utility and Transportation Contractor Association’s Magazine.
If you are a union contractor, you are probably making contributions into one or more union pension funds every month. These pension funds, known as multi-employer pension plans (MEPs), rely on a number of employers paying their share toward a common fund. Notably, because of the nature of these pension plans, many (if not all) of them are underfunded and do not presently have enough assets to cover their expectant liabilities. However, despite underfunding, employees are still entitled to their full pension benefits. But who is responsible for this unfunded amount, and what happens if you exit the fund? Continue Reading What Every Contractor Needs to Know About Withdrawal Liability
On January 23, 2017, Philadelphia Mayor Jim Kenney signed into law a wage equity ordinance that makes it unlawful for an employer in the city of Philadelphia to ask about the wage history of a prospective employee at any stage of the hiring process. Under the new law, an employer may not condition employment on the job candidate’s disclosure of their wage history (which includes fringe benefits) or refuse to hire a candidate because of their refusal to respond to an inquiry about their past wages. The ordinance also prohibits employers from relying on a candidate’s wage history in order to determine the amount that it will offer a candidate unless the candidate has “knowingly and willingly” disclosed such information to the employer during the hiring process. Continue Reading Philadelphia Becomes First City to Prohibit Employers from Inquiring About Prospective Employees’ Past Earnings
Philadelphia’s 2011 “Ban the Box” law, which restricts an employer’s ability to inquire into a job applicant’s criminal history at the initial stages of the application process, is “old news” – but the recent changes that went into effect on March 14, 2016 are anything but. Our firm will be getting into the details of this recent development at its 8th Annual Labor and Employment Seminar (April 27, May 4, and May 12).
In short, every Philadelphia employer needs to make the necessary changes to its job application procedures to comply with the broader requirements of the law that former Mayor Michael Nutter signed into law before leaving office in December 2015.
The 2011 Version
As enacted in 2011, Philadelphia employers with 10 or more employees could not include the “box” on a job application asking about criminal records. Employers were not permitted to ask about criminal records at an initial interview, but could do so after the first interview. And, when asking about a criminal background, employers were prohibited from asking about arrests or anything other than criminal convictions. Violations of the law carried up to a $2,000 penalty.
The U.S. Department of Labor (DOL) issued guidance on July 15 aimed at curbing the misclassification of employees as independent contractors. The guidance provides several examples of workers in the construction industry. It is now clear that the DOL is bent on targeting contractors and subcontractors. If you have mechanics, installers, estimators, or any workers functioning as an independent contractor, you are probably at risk.
The DOL’s guidance begins by stating that most workers should be classified as employees and not independent contractors. According to the DOL, only workers that are genuinely in business for themselves may be classified as independent contractors. The DOL uses six factors to determine whether someone is in business for him/herself:
- Is the worker’s work an “integral part” of the employer’s business? According to the DOL, “for a construction company that frames residential homes, carpenters are integral to the employer’s business because the company is in business to frame homes, and carpentry is an integral part of providing that service.” Therefore, hiring an individual who uses the tools of the trade as an independent contractor is risky business for almost any construction company.
- Does the worker’s managerial skill affect the worker’s opportunity for profit and loss? According to the DOL, a true independent contractor has the opportunity not only to make money but to lose it by making poor business decisions. The DOL is looking for independent contractors to exercise business judgment (not just decide how many hours they are going to work or how many projects they are going to accept from the employer).
- How does the worker’s relative investment compare to the employer’s investment? In order to be a true independent contractor, the worker must make a substantial investment (and therefore undertake some risk for a loss). The DOL’s view of what qualifies as a substantial investment may surprise you. Merely purchasing hand tools and other equipment is not enough. The DOL even cited a case where a group of rigging welders had invested in equipped trucks costing between $35,000 and $40,000 as being too small of an investment.
- Does the work performed require special skill and initiative? For this factor, the DOL focuses on business skills and not technical skills and uses the following example: “A highly skilled carpenter provides carpentry services for a construction firm; however, such skills are not exercised in an independent manner. For example, the carpenter does not make any independent judgments at the job site beyond the work that he is doing for that job; he does not determine the sequence of the work, order additional materials, or think about bidding the next job, but rather is told what work to perform where. In this scenario, the carpenter, although highly skilled technically, is not demonstrating the skill and initiative of an independent contractor (such as managerial and business skills).”
- Is the relationship between the worker and the employer permanent or indefinite? According to the DOL, a worker who works for the same employer for a sustained period of time is not showing the business initiative that one would expect from a true independent contractor. Workers who work until they are terminated look like at-will employees (not independent contractors).
- What is the nature and degree of the employer’s control? According to the DOL, in order to qualify as an independent contractor, the worker must control meaningful aspects of his own business and stand as a separate economic entity. This means that imposing quality control measures and schedules on a worker will likely render him/her an independent contractor.
In sum, the DOL’s guidance marks a clear signal to those in the construction community that using independent contractors carries significant risks. Mitigating measures, like issuing 1099 Forms and entering into written independent subcontractor agreements, will more often than not fail to save the day. These rules hold true for workers in the field and those performing office/non-manual work.
We have worked with dozens of contractors on classification issues. If you have any questions about the proper classification of someone who performs work for your company, please contact Marc Furman or Jonathan Landesman.
Join our Labor & Employment Group and the Firm’s newest partner, Honorable Gene D. Cohen (Ret.), for a fast-paced seminar on cutting edge labor and employment law issues impacting your business. Far from an academic discussion, attendees will get real world, practical guidance from our experienced litigators and a former Philadelphia Common Pleas Judge.
Topics included in this half-day seminar are:
Labor and Employment Developments from 2012, and an Analysis of What to Expect with Four More Years of the Obama Administration
In this fast-paced session, our panel of experienced Cohen Seglias labor attorneys will discuss the most recent labor and employment law developments, including leading court decisions, key legislative developments, and recent Labor Board initiatives affecting union and non-union employees.
A Judge’s Perspective: Enforcing Non-Competition Agreements
While serving as a Court of Common Pleas Judge from 1988 to 2005, Judge Gene D. Cohen (Ret.) regularly presided over cases involving non-competition agreements, trade secrets, and unfair competition. This session offers attendees a unique opportunity as Judge Cohen will share his candid thoughts on drafting and litigating non-competition agreements, and protecting your company from disloyal employees.
Managing Employee Attendance: the Interplay Among the Family and Medical Leave Act, Americans with Disabilities Act, and Workers’ Compensation
In today’s challenging economy, maximizing employee productivity – and improving employee attendance rates – is more important than ever. In this session, our panel will provide step-by-step practical advice, in plain English, so that you can get your employees either back to work or off your payroll as quickly as possible, without finding yourself in court.
Fire at Will: Ten Common Mistakes Employers Make During the Termination Process
The overwhelming majority of employment-related litigation stems from terminations. In this session, our panel of labor attorneys will review the top ten mistakes employers make when firing employees. Far from an academic lecture, we will place a high premium on nuts-and-bolts advice so that you can learn from the mistakes of others and push the odds in your favor.
Dates & Locations
March 5, 2013
The Union League
140 South Broad Street
Philadelphia, PA 19102
March 13, 2013
The Duquesne Club
325 6th Avenue
Pittsburgh, PA 15222
March 20, 2013
The Hilton Harrisburg
1 North 2nd Street
Harrisburg, PA 17101
This program has been approved for 3 CLE and CPE credits.
For more information or to register, please visit the Cohen Seglias website.
Please join us for the 4th Annual Labor & Employment Law Seminar, scheduled for March 13th in Philadelphia, March 27th in Harrisburg and April 11th in Pittsburgh.
This year’s topics will include:
Cutting-Edge Developments in Labor & Employment Law
In this fast-paced session, we will review recent developments in several areas of the law, including the most common ways employees are challenging their terminations; increased legal protection for employee social media activities; recent case law on drafting employment-related arbitration agreements; the latest on the NLRB’s “quickie” elections rule; and New Jersey’s recently enacted trade secrets statute.
Creating a “Bullet Proof” Employee Handbook
In order to minimize your exposure to employee lawsuits and comply with an ever-increasing maze of federal and state laws and regulations, employers need to make sure that their employee handbook is comprehensive and up-to-date. In this session, we’ll review the key ingredients to include in your handbook. We will also discuss those topics where “less in more” and employers should exercise restraint to avoid compliance issues.
Wage & Hour Law: A Primer on the Fair Labor Standards Act
The Fair Labor Standards Act is the federal wage and hour law which governs the payment of minimum wages and overtime. Even though this law has been around since the New Deal, many employers are still struggling with thorny issues such as classifying employees as “exempt” or “non-exempt”, and calculating overtime in light of bonuses, rest periods, telecommuting, and on-call time. Consequently, there has been an explosion of wage and hour litigation in federal and state courts – particularly with costly class action lawsuits. In this nuts-and-bolts session, we will review the law in plain English so that you can avoid getting caught in the jaws of a nasty lawsuit or Department of Labor audit.
Hot Issues In Discrimination Law
With a heavy emphasis on addressing day-to-day real life situations, we will review the hottest issues in discrimination law, including: what is your obligation to provide a religious accommodation for body art and Muslim religious practices; when will your company be liable for the discriminatory acts of a rogue supervisor; how can you improve employee attendance without violating the FMLA and ADA; best practices to avoid retaliation claims; and what is GINA and why should you care.
For additional information, or to register, please see the event invitation.
On March 24, 2011, Cohen Seglias Pallas Greenhall & Furman’s Labor & Employment Group hosted the 3rd Annual Labor & Employment Law Seminar, at the Four Seasons Hotel in Philadelphia. About 70 people attended the half-day seminar to learn about topics such as, social media in the workplace, non-competes and unfair competition and traditional labor law. The event also included a look back at the year that was and ahead to 2011 in form of a legislative and case law update.
Case Law/Legislative Update
Partners Marc Furman and Jonathan Landesman gave a brief overview of the impactful labor and employment case law in 2010. It is important to note that a study conducted by the United States Equal Employment Opportunity Commission (EEOC) confirmed that individuals are bringing more charges of workplace discrimination against private employers than ever before.
Topics of interest included Genetic Information Nondiscrimination Act (GINA), “Cat’s Paw Liability”, Medical Leave and the Construction Workplace Misclassification Act.
Social Media in the Workplace
Senior Counsel Melissa C. Angeline gave an overview of social media, and the consequences it can have on workplace productivity. A study produced by Nucleus Research shows that the average employee spends two work hours every day on social media sites. Melissa stressed that simply blocking access to these sites is no longer sufficient, since most employees now have an iPhone, or other device that can easily access the internet. Employers, she said, need to take a proactive approach to policing their employees activities, and monitor what they do in the office.
Unfortunately, simply controlling the issue at work does not release employers from liability. Employees who keep personal social networking profiles on sites like Facebook, and identify themselves with your company, leave you at risk as well. Employers need to establish a social media policy, and enforce strict guidelines for what is and is not acceptable in world of social media, keeping in mind the position of the National Labor Relations Board (NLRB) on the issue of employee free speech,
Protecting Your Business Against Unfair Competition
Partner Roy S. Cohen joined Jonathan Landesman in speaking about how to protect your company’s confidential information and how to create an effective non-competition agreement. The main take away from the presentation was that every employer needs to have a thorough and up-to-date employee handbook, and also employment agreements, where appropriate, setting forth non-competition/non-solicitation rules. In our ever changing world, every company should have their attorney review their handbooks annually, to ensure it is in compliance with the latest guidelines.
Traditional Labor Law
Marc Furman presented an update on traditional labor law. Through real life examples, Marc highlighted what employers need to be aware of when it comes to dealing with the NLRB and National Labor Relations Act, especially when filing unfair labor practice charges.
If you would like to obtain a copy of the seminar materials, please email your request to firstname.lastname@example.org.
Each spring, Cohen Seglias Pallas Greenhall & Furman, PC provides employers with an annual review of the prior year and an update on various labor and employment law topics. Please join our labor and employment attorneys for a half-day briefing on developments in case law, statutes and regulatory trends that could have an impact on your business.
The 3rd Annual Labor & Employment Law Seminar, scheduled for March 24, 2011 in Philadelphia and March 30, 2011 in Pittsburgh, will address the following topics:
Case Law and Legislative Update
Discussion and analysis of significant trends and developments in 2010 in labor and employment law, with particular emphasis on how cases decided in the past year affect your business from a practical perspective.
Social Media in the Workplace
The growth of social networking sites such as Facebook, LinkedIn and Twitter, has exploded in recent years. However, employers have been slow to adopt policies for appropriate use of these web sites; thereby exposing themselves to risks such as harassment, dissemination of trade secrets and lost productivity. A recent case decided by the Labor Board, in which a woman was terminated after posting critical remarks regarding her supervisor on Facebook, may serve as a template for future legal opinions, as it is one of the first cases in this evolving area. Learn the do’s and don’ts of social networking and how to implement best practices to help minimize your risk.
Protecting Your Business Against Unfair Competition
How can you protect your business when a trusted employee suddenly quits and joins forces with your direct competitor? In this session, we will discuss the nuts and bolts of trade secret law and non-compete agreements, how to be proactive and what can be done after you discover employee disloyalty.
What Every Employer Needs to Know About Traditional Labor Law
With the Labor Board now up to its full complement of members, insight will be provided on recent developments, cases and trends. We will discuss topics such as “protected and concerted activities” and “employee suggestion committees” which affect every union and non-union employer.
For additional information and to register, please click here.