Dazed and Confused: What Should Pennsylvania Employers do with Their Drug Testing Programs in Light of Shifting Legal Trends Surrounding Marijuana Use?

August 28, 2017

Pennsylvania is on the cusp of a significant change as the State’s medical marijuana industry becomes fully operational. This summer, Pennsylvania awarded permits to twelve businesses to grow marijuana and twenty-seven businesses to sell medicinal marijuana. By June 2018, residents can start purchasing marijuana from dispensaries for approved medical purposes, and the industry is projecting first-year sales of 150 million dollars. Once the dispensaries open, the consumption of marijuana by Pennsylvania residents may increase substantially. Given the magnitude of anticipated change, Pennsylvania employers should prepare for the likelihood of increased marijuana usage by their employees. As a starting point, employers with mandatory drug testing programs need to closely monitor medicinal marijuana legal developments, not just because of the tension between state disability discrimination laws and the Federal Controlled Substances Act’s prohibition on marijuana use generally, but also because of the conflict between state laws permitting medicinal marijuana use and certain industry-specific regulations banning the use of medicinal marijuana. As an example, the Department of Transportation’s drug and alcohol testing regulation, 49 CFR § 40.151(e), prohibits companies from allowing individuals in safety sensitive positions in the transportation industry to use marijuana for medicinal purposes, even if they live in a state that permits such activity. Most employers have always operated in a world where they could lawfully terminate an employee for failing a drug test, including due to the presence of marijuana. It did not matter whether the drug use occurred during non-working hours. For now, that is the law in Pennsylvania. That used to be the law in Massachusetts, Rhode Island, and Connecticut; it no longer is…..or at least the law is no longer as black and white. In states allowing medical marijuana, employers may have to “accommodate” an employee’s medical marijuana use as a reasonable accommodation for an employee’s disability. Read More

Potential Litigation Uptick Seen From 3rd Circuit’s Workplace Slur Ruling in The Legal Intelligencer

July 31, 2017

Joseph L. Gordon was interviewed in an article titled, “Potential Litigation Uptick Seen From 3rd Circuit’s Workplace Slur Ruling.” Published July 31, 2017 in The Legal Intelligencer. Related Information: Click Here to Read The Legal Intelligencer Article Read More

Religious Colleges Subject to the Jurisdiction of the Pennsylvania Human Relations Commission

May 12, 2017

On April 7, 2017, the Commonwealth Court of Pennsylvania issued its opinion in Chestnut Hill College v. Pennsylvania Human Rel. Commn., 844 C.D. 2016, — A –, 2017 WL 1289250, (Pa. Commw. Apr. 7, 2017), holding, in a case of first impression, that a Catholic college’s decision to expel a student could be challenged under the Pennsylvania Human Relations Act (“PHRA”). During administrative proceedings before the Pennsylvania Human Relations Commission (“PHRC”), Chestnut Hill College (“the college”) claimed that the PHRC lacked jurisdiction over the matter because, the college asserted, it was not a “public accommodation” under the PHRA and, moreover, that any exercise of jurisdiction would violate the college’s First Amendment rights.  The PHRC rejected those arguments and the appeal followed. The Commonwealth Court affirmed.  The Court noted that the scope of “public accommodations” under the PHRA is broad.  Accordingly, “[p]rovided the College accepts . . . the patronage of the general public, and is not in its nature distinctly private, it constitutes a public accommodation as defined by the Act.”  The Court rejected the college’s position that it was “distinctively private” given its religious affiliation.   The Court noted that unlike a parochial school, which is heavily focused on indoctrinating students in the relevant religious faith, religious colleges remain largely secular in their educational functions.  The Court also rejected the college’s position that the First Amendment precluded jurisdiction.  While the Court recognized that, under the First Amendment, “generally courts must defer to church hierarchy in the resolution of any ecclesiastical matter,” the Court concluded that the expulsion decision could be reviewed under “neutral principles of law” and thus the judiciary would not be tasked with delving into religious doctrine. Chestnut Hill broadens the scope of the PHRA and PHRC.  Prior to Chestnut Hill, many religious colleges and universities could rely on established precedent holding that parochial grade schools are not “public accommodations” to argue that their institutions are outside the scope of the PHRA and PHRC.  Read More

Are Restrictive Covenants Enforceable when an Employee Converts to “at-will” Employment?

May 3, 2017

To attract high caliber employees, employers sometimes commit to employment for a fixed period through an employment contract.  Not surprisingly, those employees with the leverage to command an employment contract typically represent a serious competitive threat once they leave the company.  Given that dynamic, most employment contracts include restrictive covenants, such as non-solicit or non-compete agreements.  The recent case of Metalico Pittsburgh Inc. v. Douglas Newman, et al., __ A.3d __ (2017), 2017 WL 1398882 (Pa. Super. Ct., April 19, 2017) dealt with the question of what happens to the restrictive covenants in an employment contract when an employee converts to at-will status. In Metalico, an employer entered into three-year contracts with two high-level executives.  After the three-year period ended, Metalico continued to employ the executives as at-will employees, with some corresponding changes to the conditions of their employment.  After working at-will for a year, the two executives departed to a competitor and solicited Metalico’s customers to move their business from Metalico to their new employer.  They also solicited Metalico employees to resign and join the new employer.  In response, Metalico sought a preliminary injunction to enforce the restrictive covenants. The executives argued that they were no longer bound to the restrictive covenants because the three-year term of their employment contracts had expired.  The trial court agreed and ruled that the restrictive covenants did not carry forward because the transition from a term employee to an at-will employee constituted the commencement of a new instance of employment.  The Pennsylvania Superior Court, however, rejected that rationale citing the following provision of the employment contracts: If the Executive’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or appropriate to enforce the covenants and agreements of the Executive in [§] 8[, which contains the restrictive covenants]. Read More

Employers Feel Heat Following Summer’s Arbitration Agreement Cases In The Legal Intelligencer

September 26, 2016

Joseph L. Gordon authored “Employers Feel Heat Following Summer’s Arbitration Agreement Cases” which was published in The Legal Intelligencer on September 28, 2016. Related Information: Employers Feel Heat Following Summer’s Arbitration Agreement Cases Read More

U.S. Supreme Court Restores Plaintiff’s Pregnancy Discrimination Claim

March 27, 2015

On March 25, 2015, the U.S. Supreme Court, in a suit by former employee Peggy Young under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”), sent the issue of whether UPS had a “legitimate, nondiscriminatory, nonpretextual justification” for treating employees differently back to the 4th Circuit.  Young claims UPS violated the PDA by improperly denying her light-duty work requested due to a doctor-recommended lifting restriction during her pregnancy.  She was not given the same light-duty accommodation as non-pregnant employees with similar limitations.  The 4th Circuit found that UPS’ refusal to accommodate was not discrimination, since Young did not prove UPS’ policies were intended to discriminate against pregnant women or resulted in different treatment. In an opinion authored by Justice Breyer and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor and Kagan on a 6-3 vote with Justice Alito concurring, the Court agreed that Congress likely did not intend to grant pregnant workers a “most-favored nation” status by requiring employers to accommodate all pregnant employees irrespective of other criteria.  The Court also recognized that employers can implement policies that are not intended to harm members of a protected class, even if implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. The Court held that, if an employer presents a legitimate, nondiscriminatory reason for its actions, a worker can reach the jury on the issue of pretext by providing sufficient evidence (1) that the employer’s policies impose a “significant burden” on pregnant workers and (2) that the employer’s reasons are not “sufficiently strong” to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.  The Court also explained that a plaintiff can “create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”   Read More

Legal Briefing: A Survey of Employment Practices Law and Insurance Practices Bad Faith

March 11, 2015

P. Brennan Hart will be moderating the presentation,” Legal Briefing: A Survey of Employment Practices Law and Insurance Practices Bad Faith” in Kansas on March 11, 2015. Phillip R. Earnest and Christopher E. Ballod will present “Survey of the Interplay Between Unfair Insurance Practices Acts and Bad Faith Litigation.” Presented at: AIG 17200 West 119th Street Olathe, KS 66061 Live Simulcast at: Intercontinental Hotel Kansas City at the Plaza 401 Ward Parkway Kansas City, Mo 64112 Course registration available here. AIG location full. Attend at Live Simulcast location. Read More

U.S. Supreme Court Watch – Pending Labor & Employment Cases

January 26, 2015

The U.S. Supreme Court continues to tackle labor and employment issues.  Employers must be ready to react as the decisions roll out. Young v. UPS, No. 12-1226 Issue: Whether the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”), requires an employer to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”  Young claims UPS violated the PDA by improperly denying her light-duty work requested due to a doctor-recommended lifting restriction during her pregnancy.  Young was not given the same light-duty accommodation as non-pregnant employees with similar limitations. The 4th Circuit found that UPS’ refusal to accommodate pregnancy was not discrimination, since Young did not prove UPS’s policies were intended to discriminate against pregnant women or resulted in different treatment.  Although the PDA requires pregnant workers to be treated the same as others who are “similar in their ability or inability to work,” UPS has argued that this does not require special treatment for pregnant workers. Mach Mining v. EEOC, No. 13-1019 Issue: Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (“EEOC”) mandatory duty to conciliate discrimination claims before filing suit.  The EEOC sued Mach Mining under Title VII, asserting it engaged in systemic hiring discrimination against women, but Mach Mining sought dismissal, arguing that the EEOC did not first engage in statutorily-mandated good faith conciliation efforts before filing suit.  The 7thCircuit held that the EEOC’s conciliation efforts were not subject to review by the courts, however, other federal courts have held the EEOC’s conciliation process is subject to court review, but the type and level of scrutiny varies between the circuits.  The Supreme Court’s decision regarding statutory interpretation of Title VII’s requirements will affect whether failure to engage in the conciliation process is available as an affirmative defense to employers and the decision may define just how aggressive the EEOC will conduct itself during the conciliation process. Read More

Potential Conflict In Accommodating Pregnant Employees

July 16, 2014

On July 1, 2014, the Supreme Court agreed to hear an appeal from the Fourth Circuit Court of Appeals in Young v. United Parcel Service, Inc., a case brought by a former UPS delivery driver who claims UPS violated the Pregnancy Discrimination Act (“PDA”) contained in Title VII, when it improperly denied her request for light duty work because of a recommended lifting restriction during her pregnancy.  Young was not given the same accommodation as non-pregnant employees with similar limitations, in that UPS offered light duty only to employees with on-the-job injuries, employees with permanent impairments entitled to accommodation under the Americans with Disabilities Act (“ADA”) and employees who lost Department of Transportation certification to drive commercial vehicles.  Pregnant employees (women) were deemed ineligible for light duty work for any limitations arising solely as a result of their pregnancy. On July 14, 2014, only 13 days after the Court agreed to hear Young’s appeal, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues.  The EEOC sets forth a comprehensive list of questions and answers regarding pregnancy and provides a list of recommended best practices in terms of hiring and other employment decisions.  Most notably, the guidance addresses employers’ duties under the PDA and ADA and provides that employers are to provide reasonable accommodations, and specifically light duty, to pregnant employees with work restrictions, even if the employee does not qualify as an individual with a disability under the ADA. The guidance discusses matters that relate directly to the facts and issues to be examined and decided by the Supreme Court in Young v. UPS.  However, the guidance does not have the force of law and the Supreme Court’s decision in Young could directly contradict the EEOC guidance.  If this occurs, the EEOC will face vociferous criticism.  This potential for conflict creates some uncertainty for employers regarding their obligations.  Read More

Firm Newsletter, Winter 2014

June 26, 2014

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