Daniel J. McGravey and Sarah R. Lavelle will be presenting at PBI’s Health Law Institute on “Current Employment Issues and Developments Facing the Healthcare Provider Community” in Philadelphia, PA on March 13-14, 2014. Read More
As the topics of workplace bullying, gossip, and harassment have garnered attention, employers must be precise in enacting protective policies. In Laurus Technical Institute and Joslyn Henderson, a National Labor Relations Board Judge rejected a “No Gossip Policy” that prohibited discussing a person’s personal life when they were not present, discussing a person’s professional life without their supervisor present, negative or untrue comments about a person, injuring a person’s reputation, or sharing a rumor about the person.
The ALJ held that the policy would reasonably tend to chill employees in the exercise of their protected rights. Specifically, the ALJ noted that the policy was vague and overly broad, as it precluded both negative and positive comments about managers and the company. The ALJ compared the “No Gossip Policy” to prior Board decisions that invalidated employer policies banning “false and profane statements,” “disrespectful conduct,” “negative conversations,” and “disparaging comments.”
Despite this decision, a carefully drafted anti-gossip or anti-bullying policy can withstand scrutiny. Applying principles previously upheld by the Board, an employer should include the following when drafting a policy:
A preamble to the policy that states its purpose, i.e. eliminating bullying in the workplace.
Clear definitions of any term that may be subject to multiple meanings.
Examples of the activities the policy is designed to prevent. For instance, an anti-bullying policy should include language prohibiting inflammatory comments about an individual’s height, weight, voice, or intelligence level.
Examples of the workplace harm bullying may cause, i.e. lower morale, absenteeism, and creating an unsafe working environment.
A procedure for victims of bullying to seek assistance, including management contacts.
These suggestions are merely a few that should be implemented in an anti-bullying or anti-gossip policy. A company planning to enact or renew a policy should have a thorough understanding of the problems facing its workplace in order to draft a precise policy addressing its specific needs. Read More
In Sandifer v. U.S. Steel Corp., the Supreme Court held that time spent donning and doffing workplace gear by a class of U.S. Steel unionized employees was not compensable under the terms of the parties’ collective bargaining agreement.
Sandifer and others filed a collective action under the Fair Labor Standards Act (“FLSA”), seeking backpay for time spent donning and doffing required protective gear. U.S. Steel argued that this activity, which would otherwise be compensable under the FLSA, was non-compensable pursuant to a collective bargaining provision that time spent changing in and out of “clothes” was non-compensable.
The Court held that “clothes” denotes “items that are both designed and used to cover the body and are commonly regarded as articles of dress.” Further, time spent “changing clothes” includes time spent altering dress. The Court ruled that gear, including a flame-retardant jacket, pants, and gloves constituted clothes as they are designed and used to cover the body, while glasses, earplugs, and respirators failed to qualify. When changing clothes and non-clothes are involved, the Court directed that the inquiry should be whether, “on the whole,” the activity is fairly characterized as time spent “changing clothes.” If so, then the entire period is governed by the collective bargaining arrangement.
Sandifer is a substantial victory for unionized employers who have either expressly negotiated for or established a practice of not compensating for donning and doffing time. For those employers not impacted by the decision, the traditional FLSA rule applies – donning and doffing is compensable if it is “integral and indispensable” to a principal work activity. Read More
Proving the adage “no good deed goes unpunished,” the Sixth Circuit recently held that a voluntary transfer can be an adverse employment action.
In Deleon v. Kalamazoo County Road Commission, et al., No. 12-2377 (6th Cir. Jan. 14, 2014), a superintendent of road maintenance with twenty-eight years of experience, applied for a vacant office position. Although not initially selected for the position, the Commission laterally transferred the Plaintiff into the job the next time that it became available.
After the transfer, Plaintiff took medical leave claiming that the diesel fumes from an adjacent garage made him ill. The Commission eventually terminated his employment after he exhausted all his available leave. Plaintiff brought suit for national origin and age discrimination – citing a pervasive atmosphere of racial insensitivity and derogatory comments. The district court found in favor of the Commission as Plaintiff had failed to show that the transfer was an adverse employment action.
The Sixth Circuit Court of Appeals, however, reversed. It held that the transfer of an employee can constitute an adverse employment action, even when it does not involve a demotion or reduction in pay, and regardless of whether the employee had requested the transfer, if the work environment was “objectively intolerable.” The Court found the transfer was involuntary even though Plaintiff had previously applied for it.
This decision underscores that employers are not insulated from litigation risks simply because they granted an employee’s request for a transfer. It is also a stark reminder that some courts may be sympathetic to employees, such as this one, with substantial tenure and may be more likely to allow them their “day-in-court.” Read More
Substance and alcohol abuse is a serious workforce issue confronting employers. Ramifications range from absenteeism and reduced productivity to increased health care costs, workplace injuries and accidents. To combat substance abuse, employers should consider establishing a drug and alcohol-free workplace with a written policy. Employers also should consider utilizing return-to-work agreements. Under such agreements, an addicted employee, following the completion of a rehabilitation program, agrees to abstain from alcohol or drugs as a condition of returning to work. A return-to-work agreement should specify the employer’s expectations of the addicted employee, as well as the consequences if the expectations are not met. Importantly, courts increasingly are upholding such agreements.
In Ostrowski v. Con-way Freight, No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013), the plaintiff, a driver sales representative, requested a leave of absence to attend an alcohol rehabilitation program. After completing the program, the employer required the plaintiff to enter into a return-to-work agreement as a condition for returning to work. The agreement prohibited alcohol use, regardless of whether the plaintiff was on or off the clock, and warned the plaintiff that any violation of the agreement could result in termination. After signing the return-to-work agreement, the plaintiff relapsed and was terminated. The plaintiff sued, alleging that his termination violated various statues, including the Americans with Disabilities Act (“ADA”).
The U.S. Court of Appeals for the Third Circuit held that the employer did not discriminate against the plaintiff on the basis of his disability (alcoholism) when it fired him for violating the return-to-work agreement. The Third Circuit noted that the Sixth and Eighth Circuit Courts have held that employers do not violate the ADA simply by entering into return-to-work agreements that subject addicted employees to different standards from other employees. The court further noted that the return-to-work agreement did not preclude alcoholic employees from working for the employer; rather, it prohibited alcoholic employees subject to the agreement from consuming alcohol. Read More
Daniel J. McGravey and Sarah R. Lavelle will present, “Managing Employees’ Bad Habits and Crafting Effective Wellness Programs,” at an American Law Institute CLE in Philadelphia, PA on October 8, 2013.
Related Information:
Program Information Read More
Employers have an obligation to exercise due diligence in determining not only who they hire, but also who they allow on their premises to perform work. This includes not only regular employees, but also independent contractors and other contingent workers, including freelancers, consultants and long-term temps. Employers have significantly increased their use of contingent workers in recent years, since such workers enable employers to enjoy savings in terms of tax withholding, Medicare and FICA contributions and unemployment and workers’ compensation premiums when the workers are used and classified properly, and since they offer employers the opportunity to utilize uniquely skilled, top talent in their workforce, all while allowing the worker to enjoy flexibility and work-life balance. Staffing Industry Analysts, a global advisor on contingent work, recently reported that temporary help jobs were up 6.7% from last year. This number can only be expected to rise in light of advancing technology and the globalization of the marketplace.
Use of contingent workers, however, raises the question of whether or not employers are free to conduct background checks on such workers. Indeed, employers’ use of background checks has also increased in recent years. The AAIM Employers Association, a St-Louis-based provider of business services to over 1,600 employers, also recently reported that, of the companies it serves, the number conducting background checks more than doubled last year. That was an overall increase of 166% in the usage of background checks in the past 3 years. This increase has been attributed to the need to protect employer property and assets, other employees and customers, potential liability for negligent hiring and the overall ease of access to information via the Internet.
Federal Law on Background Checks
For some industries, federal law requires background checks of both employees and independent contractors. Truck drivers, including independent contractors, must undergo a background check as required by Federal Motor Carrier Safety Act regulations. Read More
In light of the U.S. Supreme Court’s decision in United States v. Windsor, which struck down certain provisions of the Defense of Marriage Act (“DOMA”), the U.S. Department of Labor (“DOL”) recently revised its regulations pertaining to the Family and Medical Leave Act (“FMLA”). Prior to the Windsor decision, in determining FMLA benefits, the DOL relied on Section 3 of DOMA, which limited marriage only to a legal union between one man and one woman and the word “spouse,” which referred only to a person of the opposite sex who is a husband or wife. Thus, same-sex couples were not entitled to FMLA leave even if they lived in a state that recognized same-sex marriage.
In Windsor, the Court held that Section 3 of DOMA was unconstitutional because the regulation of marriage traditionally rests exclusively with the states. On August 9, 2013, the DOL issued an internal memorandum to DOL staff members advising them that the DOL has revised its guidance documents to remove any reference to DOMA and to clarify that an employee in a same-sex marriage who resides in a state that allows same-sex marriage is entitled to take FMLA leave to care for the employee’s same-sex spouse with a serious health condition.
Notably, the law of the state where the employee resides applies, not the law of the state where the employee works. As of August 9, 2013, the following thirteen states (and the District of Columbia) recognize same-sex marriage: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.
Conclusion
For many employers, particularly those with employees who live in one or more states, the decision regarding FMLA leave becomes significantly more complicated. For instance, an employee who resides in Delaware, which recognizes same-sex marriage, will be entitled to FMLA leave to care for a same-sex spouse (with a serious health condition) while an employee who resides in Pennsylvania, which does not recognize same-sex marriage, will not be afforded a similar opportunity. Read More
As most employers know, complying with the Americans with Disabilities Act can be a challenge. That challenge promises to become more difficult with the release of the latest version of the manual universally recognized to identify and classify mental disorders – the Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5. Newly identified mental disorders will have major implications in the workplace as employers will have to decide whether and how to accommodate these claims.
As an example, the DSM-5 identifies a new condition called Mild Neurocognitive Disorder, characterized by a modest decline in learning or memory. While there is no absolute duty to accommodate the cognitive effects of aging, an older employee may claim that his forgetfulness or difficulty learning new responsibilities is caused by Mild Neurocognitive Disorder.
The DSM-5 also identifies Social Communication Disorder as a condition affecting an employee’s ability to communicate in social settings. Therefore, an employee whose social awkwardness disrupts their performance may claim a disability based on this condition. These are only two examples of the new mental disorders expected to amplify an employer’s exposure to disability discrimination claims.
Employers, however, must remember that an employee’s inability to perform the essential functions of the job even with a reasonable accommodation is a justifiable reason to end the employment relationship. Special care must be taken by employers to make sure that job descriptions are comprehensive and accurate. Indeed, the job description must methodically memorialize the essential functions of the job so it can withstand an employee’s claim that he or she can perform the essential functions of the job. Now – not later – is the time to review, update and modify job descriptions to prepare for an anticipated increase in disability discrimination claims. Read More
November 26, 2025
We are proud to announce that partner Robert D. Weinberg became a Fellow in the American Academy of Matrimonial Lawyers (AAML). Read More
October 20, 2025
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to announce the addition of four new associates to the firm’s Pittsburgh Office. Read More
