Pennsylvania’s Medical Marijuana Act was enacted in May 2016 (the “Act”). Under the Act, patients with serious medical conditions, such as cancer, HIV/AIDS, Parkinson’s Disease, Multiple Sclerosis, and severe chronic or intractable pain, are authorized to use medical marijuana to treat their condition after obtaining a certification from a physician and an identification card issued by the Pennsylvania Department of Health. Medical marijuana may only be issued to an individual or an individual’s caregiver who has received the certification and identification card. Medical marijuana may not be smoked and may only be dispensed in certain enumerated forms.

Continue Reading What Does PA’s Medical Marijuana Act Mean for My Company?

An individual who is out of work in Pennsylvania may qualify for unemployment compensation benefits through the state government. The Pennsylvania Department of Labor & Industry Office of Unemployment Compensation Benefits is responsible for processing benefit requests and determining whether you are eligible to receive benefits.

Continue Reading Out-of-Work Employees Can Seek Unemployment Compensation Benefits in Pennsylvania

If you were previously convicted of a crime and served your time, this will show up on your criminal record. Most employers require each job applicant undergo a criminal record check, which can mean the difference between securing a new job and losing the position to a competitor. One way to prevent this issue is to have the conviction removed from your criminal record through a process called expungement. While the law in Pennsylvania makes it difficult for individuals to have a past crime removed from their record, in some cases, it is possible.

Currently, Pennsylvania permits the expungement of misdemeanors or felonies where:

  1. The individual is 70 years of age and has been free of arrest or prosecution for 10 years following their final release from confinement or supervision; or
  2. The individual has been dead for 3 years; or
  3. The individual was convicted of a summary offense and has been free of arrest or prosecution for 5 years following the conviction.

Continue Reading Expungements in Pennsylvania

As life, work, and the economy have changed over the last several decades, so has the age of retirement. Unfortunately, for many people retiring at 65 is no longer an option in today’s world. Due to this fact, we have seen a corresponding rise in the number of workplace age discrimination cases in the past few years.

Considering people are working well past the traditional age of retirement, employers must be mindful in their succession planning practices and in their communications with their more seasoned employees. It can be very easy for an employer to start what was intended to be a legitimate succession planning discussion with an employee, only for it to turn into an improper conversation about retirement.

Now, whether or not an individual will prevail in a claim for age discrimination will most likely depend on the employee’s status and the motivating factor behind their termination, among other factors. While age discrimination cases tend to be harder to prove than a disability, gender, or race discrimination case, this does not mean that employers should start suggesting that their older employees consider retirement. In other words, put down the engraved plaques and watches, and as always be thoughtful in your communications with employees.

If you feel you have been discriminated against in the workplace because of your age, it is recommended that you seek legal counsel immediately to discuss your options.

Immigrants who receive provisional legal status under President Obama’s new executive orders may be eligible for Social Security and Medicare or Medicaid benefits.  Under the President’s plan, U.S. residents can apply for provisional legal status if they have  lived in the U.S. for at least 5 years, can pass a criminal background check and have paid their share of taxes.

Provisional legal status, which must be renewed every 3 years, would allow qualified residents to obtain legal work permits and a Social Security number.  Consequently, they would pay into Social Security and Medicare through payroll taxes and thusbe eligible for benefits. Only those years after they obtain provisional legal status would count towards Social Security benefits and these individuals would have to work at least 10 years, legally, in the U.S., to receive Social Security Retirement benefits.

Many individuals take an early retirement, at age 62, the youngest age at which you can currently receive your Social Security retirement benefit, thinking that they can get a better return on their money by investing the amount they receive from Social Security.  Most retirement experts do not advise this course of action.  First of all, if you take your retirement benefits before age 66 (the current “full retirement age” for Social Security) you will receive a lower amount than if you wait until age 66.  In addition, you will be stuck at this lower amount as long as you receive benefits.  Any higher return you might anticipate receiving from investing in the stock or bond market, relative to the amount you receive from Social Security, is not without risk.  If you invest in a safe asset, such as a Treasury bill, you are unlikely to get more than the approximately 3% return that Social Security incorporates when it raises your benefits as a reward for delaying in taking them.

If you wait until age 70 to take your retirement benefit, your Social Security benefit will increase by 8% for every year between age 66 and age 70 that you postpone taking the benefit.  In addition, if you continue to work beyond age 66, you will continue to contribute to your retirement fund, thereby increasing the base amount of your monthly income benefit.

On March 13, President Obama directed the Labor Department and its secretary, Thomas E. Perez, to modify existing Federal Overtime Regulations under the Fair Labor Standards Act (“FLSA”).

Currently, workers are entitled to overtime pay of no less than time and a half (1.5 times the regular hourly rate of pay) for hours worked in excess of forty in a week, unless the worker falls within one or more of several exempt categories. Under existing law, an employee would be exempt from the overtime requirements of the FLSA if the employee is paid on a salary basis and in an amount of at least $455 per week, or $23,660 on an annual basis, and the employee’s duties are of an executive, administrative, or professional in nature or which involve outside sales – jobs termed “white-collar” by some. For example, lawyers and doctors compensated on a salary basis in excess of $23,660 per year are exempt from overtime pay requirements, and their employers can lawfully refuse to pay them overtime wages for hours worked in excess of forty hours in a week.

Although it is unclear as to what the regulatory changes will be, analysts believe that the Labor Department will seek to raise the wage threshold for exempt employees above the current $23,660 mark and tighten the requirement that exempt employees’ duties be executive, administrative, professional or sales-related in nature. They believe that this move is targeted at minimizing the practice by employers of classifying employees as “managers” due to limited supervisory, administrative or executive duties and for whom the majority of their job duties are indistinguishable from other non-exempt co-workers.

For example, an employer that hires an employee to be a manager of a retail operation, pays him or her in excess of $23,660 per year, and grants limited supervisory authority over hourly workers, but still requires the employee to perform stocking, cashiering, and other non-executive duties may require that the employee work in excess of forty hours per week, and refuse to pay the employee overtime wages for hours worked in excess of forty in a week. After the Rules changes, it is predicted that this practice will be curtailed, or that employers may have to hire additional employees to perform duties which are not executive or administrative in nature rather than requiring this work from salaried “white-collar” employees in addition to their executive and administrative duties.

The Pennsylvania Senate approved legislation on Tuesday, May 24, 2011 that would require contractors and subcontractors to verify legal employment status for all employees working on public building projects.

Senate Bill 637, which passed 47-7, makes use of the federal E-Verify system, operated by the Department of Homeland Security, mandatory to confirm that all employees are eligible to work in the U.S.

Employers would be required to submit employment verification statements to the Pennsylvania Department of Labor and Industry prior to beginning work on any public contract.  The Secretary of Labor and Industry will provide the form of the verification.  Additionally, Contractors will be required to provide to the public entity with the verification statement before it can commence work for the public entity.  Any subcontractor will be required to provide a verification statement to the Contractor prior to commencing work on a public building project and the Contractor will provide a verification statement to the public entity for all subcontractors it uses or intends to use on the public building project.  The verification statements will contain a certification signed by the Contractor or Subcontractor, as the case may be, that the information in the verification is true and correct and that submission of false or misleading information shall subjection the person signing the verification to sanctions.

The following constitutes a violation of this provision:

  1. Employment of an employee on a public works project whose eligibility has not been verified through the federal E-Verify system.
  2. Use by a Contractor of a Subcontractor on a public works project prior to the submission by the Subcontractor of a verification statement.
  3. Commencement of work by a Subcontractor on a public works project prior to the submission by the subcontractor of the verification statement.
  4. Making a false statement or misrepresentation in a verification statement.

Penalties for violation of this provision can be a fine, cancellation of the contract and possible debarment or suspension for one year. A Contractor will be immune from sanctions if it in good faith relies upon the federal E-Verify system and was provided with incorrect information.

We will follow this legislation and advise of any amendments and if the Governor signs this legislation into law.

A downturn in an industry can often highlight the least productive of a company’s employees at a time when it also becomes necessary to run a much leaner operation in order to remain in business. As an employer, you may be tempted to reduce the compensation of particular employees in order to maintain overall financial viability. At the same time, you should also be mindful that a reduction in compensation that constitutes a “substantial reduction” can give an employee a “necessitous and compelling” cause to voluntarily terminate employment without waiving the employee’s eligibility for unemployment compensation.

There is no bright line in Pennsylvania that gives an employer clear guidance as to what constitutes a “substantial reduction” in pay – in fact, cases applying the “substantial” reduction test have been clear in stating and restating only that there is no numerical test defining what constitutes “substantial,” and that each and every Unemployment Compensation Claim asserting a necessitous and compelling cause for voluntary separation in response to a reduction in compensation will be measured by its own facts and circumstances. What is clear is that the Courts do not want to give employers a hard numerical “safe harbor,” which would likely encourage employers to reduce employee compensation by the full allowable amount regardless of the facts and circumstances of each case, advantaging management over employees in the ongoing battle over compensation.

Ultimately, the overwhelming majority of Unemployment Compensation Claims cases are won or lost at the Unemployment Compensation Board of Review level. This means that it is vital that an employer meticulously and regularly document position-specific employee duties, individual employee performance and compensation arrangements in order to establish a factual record supportive of the employee’s position at a Review Hearing. Although the law in Pennsylvania regarding “substantial reduction” in employee compensation is unclear, when it becomes necessary to reduce employee compensation, an employer can take preemptive countermeasures to put a company in the most favorable position to avoid the negative aspects of a successful Unemployment Compensation claim against the company.  

On November 17, 2008, the United States Department of Labor issued final regulations that made significant changes to the Family Medical Leave Act (“FMLA”). Employees are covered by FMLA if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within a 75 mile radius. What follows is a summary of new regulations that took effect January 16, 2009.

Notice Provisions
Employers covered by FMLA are required to notify employees that they are a FMLA covered employer. This can be done by providing a notice to the employee upon hiring the employee or by providing some other form of written notice.

When an employee requests leave under FMLA or the employer has reason to believe that the nature of employee’s leave may qualify under FMLA, the employer must provide the employee with an eligibility notice, a rights and responsibility notice and a designation notice. Sample forms are provided in the final regulations. The final regulations state that the eligibility and designation notices must be provided within 5 days of the request of the employee or when the employer had reason to believe that the employee’s leave may qualify under FMLA.

The final regulations also make some changes to the time frame by which employees must give notice to their employer.  Employees must still provide 30 days’ advance notice of the need for leave, however, if 30 days is not possible, the employee must give the employer notice as soon as possible, which is defined as the same day or the next business day after the need for leave becomes known to the employee.

Breaks in Service by Employee
In determining whether or not the employee meets the 12 month employment requirement set forth above to be eligible for FMLA leave, employment periods preceding a break in service of more than seven years are not counted, unless the employee’s break in service was because of a required military service obligation, or because an agreement by and between the employer and the employee guarantees the employer will rehire after the employee experiences a break in service.

Defining the Twelve Month Period in Which an Eligible Employee Can Take the Twelve Weeks of FMLA Leave
The employer can use one of the following four methods for defining the 12-month period for FMLA leave:

  • The calendar year;
  • Any fixed 12-month period;
  • A 12-month forward period measured forward from the date of an employee’s first day of FMLA leave; or
  • A rolling 12-month period measured backward from the date of an employee’s first day of FMLA leave.

Military Leave Regulations
The final regulations define what constitutes “qualified exigency” and “military caregiver” leave.

Qualified Exigency Leave
This leave allows an employee to take up to 12 work weeks of leave arising out of the employee’s spouse, son, daughter or parent being on active duty or having been notified of an impending call or order to active duty in the armed forces. The regulations define the term “qualifying exigency” to include eight specific activities: short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities where the employer and employee agree to the leave.

Military Caregiver Leave
Eligible employees are entitled to take up to 26 work weeks of leave in any 12-month period to care for a spouse, child, parent or next of kin who is a covered service member with a serious injury or illness incurred in the line of duty on active duty. A “next of kin” is a service member’s nearest blood relative (other than the individual’s spouse, parent, son or daughter) in the following order of priority: blood relatives who have been granted legal custody of the service member, brothers, sisters, grandparents, aunt, uncles and first cousins.

Conclusion
Employers should immediately incorporate the changes for nonmilitary and military leave into their existing FMLA policies, adopt the new certification forms and general, eligibility, rights and responsibilities, and designation notices, and ensure that key personnel understand the changes to FMLA to ensure company compliance in the future.