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.

By Mark J. Leavy and Marc Furman

On July 5, 2012, Pennsylvania Governor Tom Corbett signed into law the Public Works Employment Verification Act. The law will take effect January 1, 2013.

The law requires contractors and subcontractors on “public work” construction projects, i.e., those subject to the prevailing wage rate laws, to use the federal government’s E-Verify website to confirm that their employees are authorized to work in the United States. This law adds yet another level of administrative compliance for contractors performing public work.

The penalty for failure to utilize the E-Verify system as required under the law is severe. A contractor or subcontractor can be debarred for between 30 days to 3 years depending upon whether the offense is found to be “willful” and if there is a prior history of offenses.

The Pennsylvania Department of General Services shall enforce this law, and is charged with investigating “any credible complaint” of a violation of this law. The Department of General Services is also empowered to conduct random audits to ensure compliance with the law.

Mark J. Leavy is an Associate with Cohen Seglias Pallas Greenhall & Furman PC and a member of the Labor & Employment Practice Group. He can be reached at 215.564.1700 or mleavy@cohenseglias.com.

Marc Furman is the Chair of the Labor & Employment Practice Group at Cohen Seglias Pallas Greenhall & Furman PC. He can be reached at 215.564.1700 or mfurman@cohenseglias.com.

By: Melissa Angeline

The Supreme Court of Pennsylvania recently limited application of the prevailing wage law to multi-phase construction projects involving a mix of private and public funding. In 500 James Hance Ct. v. Pa. Prevailing Wage Appeals Bd., 33 A.3d 555 (Pa. 2011), the project was bifurcated into two phases, with private funding for the “shell” phase, and public funding for the interior “fit out” of the building. The Prevailing Wage Appeals Board held that prevailing wages were required for both phases of construction. The Commonwealth Court later reversed the Board’s decision, holding that splitting the project into “shell” and “fit out” phases was not an unlawful evasion of prevailing wage rates. The Supreme Court agreed, and ruled that where a bifurcated construction project is financed by private and public funding, and at least one phase is financed entirely by private funds, prevailing wages need only be paid on those phases that receive public funding.

The Court also rejected the Board’s current test for screening out “artful drafting of contracts to evade” payment of prevailing wage rates. Instead, the Court held that “risk allocation” should be a prominent consideration under the Prevailing Wage Act.

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.

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.

By: Mark Leavy and Marc Furman

On November 29, 2011, Mayor Michael A. Nutter signed Executive Order No. 15-11: “Public Works Project Labor Agreements”. The Order strongly recommends – but does not strictly require – the use of project labor agreements (PLAs) on public building projects.

Under the Executive Order, a project is “appropriate” for a PLA if it includes any of “the following characteristics”: a) high construction costs, b) multiple crafts or trades, c) “complex labor requirements” that “conflict with existing collective bargaining agreements”, d) completion without delay, and e) the project furthers “urgent City goals.”

All City Agencies are to issue a “Project Review” to the Mayor’s office regarding these “criteria” on building projects with estimated construction costs of $5 million or more. However, the Executive Order declares that projects with lower costs may also be “appropriate” for PLAs and “encourages” City Agencies to review those projects, too.

The Executive Order “does not require” the use of a PLA on any particular Project. However, it does grant the Mayor’s office the authority to “determine that a [PLA] is appropriate” and enter into negotiations with labor organizations “in consultation with the City Agency”.

Such PLAs must have: a) “guarantees” against strikes or lockouts, b) “binding procedures” for jurisdictional disputes between unions, and c) “diversity goals” for labor organizations and contractors. The Mayor’s Office can also require a third-party “Monitor” on the project to review the opportunities provided for “qualified City Residents, minorities, and women.”

This Executive Order has been the subject of both praise and scorn. Either way, both union and non-union contractors alike that are vying for work on public projects must be aware of this development and understand the implication of entering into a PLA.

If you have any questions or would like more information about the Executive Order and its potential impact, please contact Marc Furman or Mark J. Leavy at 215.564.1700 or at mfurman@cohenseglias.com or mleavy@cohenseglias.com.

Marc Furman is the chair and Mark Leavy is an associate in the Labor & Employment Group of Cohen Seglias Pallas Greenhall & Furman PC.

 

By: Melissa C. Angeline

On November 7, 2011, the New Jersey Department of Labor and Workforce Development (DOL) released a new 6-page workplace notice for all New Jersey employers. The Employer Obligation to Maintain and Report Records Regarding Wages, Benefits, Taxes and Other Contributions and Assessments Pursuant to State Wage, Benefit and Tax Laws, contains a detailed description of employer recordkeeping requirements under state employment laws and provides contact information for employees or their representatives to report potential violations.

Importantly, the notice went into effect immediately for all new hires. The DOL requires that anyone hired on or after November 7, 2011 receive a copy of the notice “at the time of hire.” Thus, New Jersey employers should distribute copies of the notice to anyone hired on or after November 7, 2011.

As for existing employees, the DOL has established a December 7, 2011 deadline for distributing copies of the notice, either in hard copy or by e-mail, and for posting the notice. Employers must post the notice in hard copy at a conspicuous location in the workplace, and must post the notice electronically on any intranet or internet systems to which all employees have exclusive access.

Employers that typically buy pre-packaged posters covering various federal and state employment laws should contact their vendor immediately to obtain posters updated as of November 7, 2011. In the meantime, employers can download the 6-page notice from the DOL’s internet site and post it alongside their other mandatory notices.

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.