By Paul N. Lalley, Esq. and Richard D. Miller, Esq.
Published on: Fri 19th Apr, 2024 By: Campbell Durrant, P.C.
On April 15, 2024, the U.S. Equal Employment Opportunity Commission issued the “Final Rule” regulations that interpret and implement the Pregnant Workers Fairness Act (the PWFA). The regulations will be officially published on April 19, 2024 and will become effective 60 days later.
The PWFA applies to employers who have 15 or more employees. The law requires employers to provide “reasonable accommodations” to employees who have known limitations due to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.
O...
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The decision preserved the ability of a Receiver appointed under Act 47 to do what is necessary to restore a municipality to fiscal and operational health in the future.
Published on: Fri 5th Apr, 2024 By: Campbell Durrant, P.C.
By: Ben Patchen, Esq.
In Siger v. City of Chester, the Pennsylvania Supreme Court for the first time reviewed the extent of a Receiver’s authority under Act 47. The Siger Court could have limited the effectiveness of Receivership under Act 47, as it has done in the past with other Act 47 provisions. Instead, relying upon a record that established that the City was operationally dysfunctional, the Supreme Court’s decision preserved the legislature’s intent behind Act 47 and reinforced an Act 47 Receiver’s ability to implement initiatives that the Receiver has determined to be neces...
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By: Allison N. Genard, Esq.
Published on: Fri 5th Apr, 2024 By: Campbell Durrant, P.C.
During the pandemic, municipalities were trying to keep their employees safe while dealing with the challenges of staffing and an ever growing to do list. Many municipalities struggled with disciplining employees when health recommendations were changing daily and becoming increasingly politicized. There was very real concern about whether arbitrators and the courts would uphold discipline related to masking and other health-related rules and policies. The courts previously upheld municipalities’ right to require vaccines and testing measures, but the courts have not issued many rulings on...
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By: John P. McLaughlin, Esq. and Joshua C. Hausman, Esq.
Published on: Tue 26th Mar, 2024 By: Campbell Durrant, P.C.
The United States Supreme Court has established a new, two-part test for determining whether a public official violates the First Amendment when the official blocks or deletes comments on the public official’s social media account. In this pair of unanimous decisions, the Court brought clarity to the question of when such action by the public official constitutes “state action” which could create liability under 42 U.S.C. §1983.
Resolving that question requires a fact-intensive analysis. The Court stated that if the public official: (1) possessed actual authority to speak on the s...
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By: Joshua C. Hausman, Esq.
Published on: Mon 19th Feb, 2024 By: Campbell Durrant, P.C.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a protected classification. It also prohibits discrimination which occurs as a result of a facially neutral policy or practice that has a disproportionate adverse effect on the members of a protected class. Physical abilities testing for job applicants has been a common source of Title VII litigation under this “disparate impact” theory. A recent Seventh Circuit decision emphasizes the importance of ensuring that abilities testing truly measures the applicant’s ability to perform the job in quest...
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By: Peter J. Halesey, Esq.
Published on: Mon 19th Feb, 2024 By: Campbell Durrant, P.C.
If your municipality has ever been a party to litigation, then it is likely that it received a letter instructing it to preserve documents pertaining to the litigation. These letters, commonly known as litigation hold letters, are routinely sent to parties in litigation and provide instructions as to the types of documents that must be preserved and instructions for doing so. Normally, these letters will caution that failure to preserve pertinent documents may result in negative consequences.
A recent employment discrimination case in the Northern District of Texas serves as a warning to...
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By: Gabrielle D. Campbell, Esq.
Published on: Fri 5th Jan, 2024 By: Campbell Durrant, P.C.
The EEOC recognizes that the use of employment tests can be an effective means for determining the qualification of job applicants or employees for a particular job. In fact, many employers routinely use employment tests to screen applicants for hire and employees for promotion. So, what’s the problem? Well, the EEOC cautions that the use of employment tests can violate federal anti-discrimination laws if not properly assessed and validated.
In a recent lawsuit initiated by the EEOC against Walmart, the EEOC challenged the use of an employment test because of its disparate impact on d...
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By: Allison N. Genard, Esq.
Published on: Fri 5th Jan, 2024 By: Campbell Durrant, P.C.
On October 2, 2023, the Equal Employment Opportunity Commission (“EEOC”) released its updated Proposed Enforcement Guidance on Harassment in the Workplace. When the proposed guidance becomes final, it will supersede several of the EEOC’s previous guidance documents including, Compliance Manual Section 615: Harassment (1987); Policy Guidance on Current Issues of Sexual Harassment (1990); Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990); Enforcement Guidance on Harris v. Forklift Sys., Inc. (1994); and Enforcement Guidance on Vicarious Liability for Unla...
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By: Jonathan F. Whalen, Esq.
Published on: Fri 5th Jan, 2024 By: Campbell Durrant, P.C.
Federal Courts Weigh in on Post-Pandemic Requests for Remote Work as a “Reasonable Accommodation” -
Recent federal court decisions provide insight on when employees’ physical presence at the job represents an “essential function,” and how pandemic-era policies might be viewed moving forward.
Although the days of widespread uncertainty, strict lockdowns and mask mandates seem to be behind us, it is evident that remote work is here to stay, at least in some form. In the wake of the COVID-19 pandemic, many employers have moved to “hybrid” systems involving both in-office and re...
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Published on: Thu 4th Jan, 2024 By: Joshua C. Hausman
Employer Pays $365,000 Where Automated Screening Software Excludes Older Applicants
The recent settlement serves as a cautionary tale for employers making use of artificial intelligence, as such tools may cause employers to run afoul of nondiscrimination law based on a disparate impact theory.
By: Joshua C. Hausman, Esq.
Artificial intelligence (“AI”) has been a hot topic since the release of “ChatGPT” late last year. While use cases of this technology are often flippant and silly—a recent AI-produced example of Frank Sinatra singing a song by the band ‘Green Day’ comes to...
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By: Allison Genard, Esq.
Published on: Thu 28th Sep, 2023 By: Campbell Durrant, P.C.
Summary Deck:
• Pennsylvania Supreme Court holds that a township may not have to pay for an employee’s off duty misconduct, even if the employee is found to be acting under color of law.
• Pennsylvania Supreme Court clarifies the difference between acting under the color of law for the purposes of civil rights lawsuits and acting within the scope of an employee’s duties under the Political Subdivision Tort Claims Act.
• Townships need to act promptly and appropriately when an employee engages in off duty misconduct that could result in potential liability for the township....
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By: Richard D. Miller, Esquire and Ben R. Patchen, Esquire
Published on: Tue 12th Sep, 2023 By: Campbell Durrant, P.C.
On August 30, 2023, the United States Department of Labor (“DOL”) issued a notice of proposed rulemaking that would significantly increase the minimum salary required to qualify for one of the three Fair Labor Standards Act’s white-collar exemptions (executive, administrative, and professional). The proposed rule would require employees to make more than $55,068 in order to qualify for one of the white-collar exemptions. As such, any employee who is making less than $55,068 and not otherwise exempt from the FLSA must be paid overtime for all hours worked over 40 hours per week.
Gen...
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by Tiffany R. Allen, Esquire
Published on: Mon 7th Aug, 2023 By: Campbell Durrant, P.C.
Fluctuations in employment trends is a story as old as time. However, current shifts in the employment landscape resulting from employees’ desire for greater flexibility have had a longer lasting impact than expected. In response, employers have been revamping their recruitment efforts to answer for a shrinking workforce. However, just as employers are finding innovative methods to recruit qualified candidates, there is a demographic of prospective employees that remains overlooked: neurodivergent individuals.
Neurodivergence is more commonly associated with individuals on the autism spec...
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Paul N. Lalley, Esquire
Published on: Mon 7th Aug, 2023 By: Campbell Durrant, P.C.
The need to fully investigate all inappropriate employee misconduct -- even those involving the most blatantly discriminatory and abhorrent communications -- before taking disciplinary action was recently highlighted in a decision by the United States Court of Appeals for the Third Circuit. The failure to do so could lead not only to prolonged and costly litigation but even monetary liability.
In Fenico v. City of Philadelphia, the City disciplined several police officers after they posted comments and images on Facebook which were revealed by the Plain View Project. The Plain View Projec...
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Patrick J. Harvey, Esq. and Joshua C. Hausman, Esq.
Published on: Thu 6th Jul, 2023 By: Campbell Durrant, P.C.
The US Supreme Court in Groff v. DeJoy has tightened the undue hardship standard for reviewing religious accommodation requests. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of protected classifications, including sincerely held religious observances and practices. The law requires an employer to reasonably accommodate such observances or practices that do not create an “undue hardship” on the conduct of the employer’s business. Many courts and employers had interpreted a 1977 United States Supreme Court Case (Hardison) as standing for the...
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By Michael A. Palombo, Esquire Paul N. Lalley, Esquire and Rebeca R. Chieffallo
Published on: Tue 20th Jun, 2023 By: Campbell Durrant, P.C.
Following the termination of the COVID-19 public health emergency on May 11, 2023, the EEOC released updated COVID-19 guidance. These updated guidelines continue to allow some employer practices regarding COVID-19 inquiries that were permitted during the public health emergency. Overall, the EEOC emphasizes that the guidelines are subject to change based on the findings and determinations of health agencies like the CDC.
Employers are still expected to comply with ADA requirements, such as keeping employee medical information confidential and meeting the “business necessity” standard...
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By: Joshua C. Hausman, Esquire
Published on: Tue 20th Jun, 2023 By: Campbell Durrant, P.C.
On May 2, 2023, the U.S. Department of Transportation ( "DOT ") published a notice of final rulemaking which should be of great interest to all employers with DOT-regulated drug testing programs. Effective June 1 of this year, the final rule adds "oral fluid testing "—i.e., saliva testing—as an alternative drug testing method. With this new rule, a more modernized and less intrusive form of workplace drug testing is now in spitting distance.
Previously, the only form of drug testing authorized under the DOT’s workplace d...
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By Allison N. Genard, Esquire
Published on: Tue 20th Jun, 2023 By: Campbell Durrant, P.C.
Dealing with difficult elected officials (and in particular those that create employment-based liability) is challenging and there is no magic cure to solve this circumstance. The Commonwealth Court recently confirmed this obstacle in a case that involved a referendum passed by the community electorate. In April, the Commonwealth Court ruled that Section 402(e) of the Second Class Township Code violated Article VI, Section 7 of the Pennsylvania Constitution when it was used to prematurely end the term of two (2) Township Supervisors. Martin v. Donegal Township, --...
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