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

We are pleased to announce that eleven Cohen Seglias attorneys were selected to this year’s Pennsylvania Super Lawyers list and eight attorneys to the Pennsylvania Rising Stars list in the areas of Construction Litigation, Government Contracts, Employment & Labor, and Employment Litigation: Defense. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state, and no more than 2.5 percent in each state for the Rising Stars list.
Continue Reading Cohen Seglias Attorneys Selected to the 2017 Pennsylvania Super Lawyers List

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

On November 21, 2016, a federal judge in Texas issued a nationwide injunction blocking the Department of  Labor’s new overtime rule, which sought to expand the obligations of employers to pay overtime by, among other things, doubling the minimum salary threshold for the “white-collar” exemption under the FLSA. The decision brings relief to employers who were bracing themselves for the rule’s December 1, 2016 effective date.  Continue Reading Federal Judge Blocks DOL Overtime Rule

In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.

Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations. Continue Reading Does your Employee Handbook stand up to the Supreme Court’s latest decision about accommodations for pregnant workers?

Philadelphia’s 2011 “Ban the Box” lawemployment-applications.jpg, 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.

Continue Reading Attention Philadelphia Employers: New and Important Changes to the “Ban The Box” Law

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. Construction Site Sign

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:

  1. 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.
  2. 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).
  3. 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.
  4. 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).”
  5. 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).
  6. 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 Cohen Seglias’ Labor & Employment Group for a seminar on cutting edge labor and employment law issues impacting your business. Employment Policy Featuring speakers Marc Furman, Jonathan Landesman, Steven Williams, Christopher Carusone and Mark Leavy, the team will present on April 28th at the Union League in Philadelphia, May 5th at the Hershey Country Club and May 12th at The Omni William Penn Hotel.  This year our group will cover retaliation cases, workplace relationships, workplace investigations and a new feature—our first ever interactive panel discussion and Q&A featuring questions from you!  Participate in the debate as our panelists cover the most significant developments in labor and employment law in 2014 and address your concerns about what lies ahead for 2015.

Continental breakfast starts at 8:00AM, the seminar begins at 8:30AM and ends at noon.  The program is approved for 3 CLE & CPE credits.  There is no charge and space is limited. Register here or for questions, please contact Rachel McNally at 215.564.1700 or rmcnally@cohenseglias.com.

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.

By: Melissa C. Angeline

The New Jersey legislature recently enacted a law requiring employers to post and distribute written notices informing employees of their “right to be free from gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under state and federal law. All New Jersey employers with 50 or more employees are subject to this requirement

The written notice must be posted conspicuously in each workplace, in English and Spanish, and provided to all new hires and existing employees. Employers also must re-distribute the notice each year to employees, and at any other time upon request. The law permits employers to deliver the annual notice by various means, including email distribution, paycheck insert, and attachment to the employee handbook. Employers must obtain signed acknowledgments confirming that employees have received, read and fully understand the notice.

Employers should be prepared to post and distribute the notice by November 21, 2012, or if the notice is not available at that time, within 30 days after publication by the New Jersey Division of Labor and Workforce Development.

Melissa C. Angeline is Senior Counsel in the Labor & Employment Group of Cohen Seglias Pallas Greenhall & Furman PC. She concentrates her practice on representing and counseling employers in all aspects of employment law.