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Department of Labor Publishes Final Rule Affecting Overtime Exemptions Under the Fair Labor Standards Act

Published in the September, 2019 PA Insider Newsletter Articles


Published on: Mon 30th Sep, 2019 By: Joshua C. Hausman

On September 24, 2019, the Department of Labor published a final rule which, when it becomes effective on January 1, 2020, will increase the salary threshold necessary for an employee to be considered exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (“FLSA”). Beginning next year, employees earning less than $35,568 per year, or $684 per week, will become entitled to overtime pay. The Department of Labor estimates that 1.2 million employees who are currently exempt will gain overtime eligibility under the new rule. Section 13(a)(1) of the FLSA exempts from its statutory minimum wage and overtime provisions those employees “employed in a bona fide executive, administrative, or professional ca...

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Prepare for the Act Prepare for the Act 111 Interest Arbitration Deadline

Published in the August, 2019 PA Insider Newsletter Articles


Published on: Thu 29th Aug, 2019 By: Paul N. Lalley

Don’t look now, but September 12th is right around the corner. To most people, September 12th is just another day on the calendar, but for municipal managers and elected officials, it is the all-important deadline for demanding interest arbitration under Act 111, and as such, one of the most important dates of the calendar year relating the municipality’s budget and fiscal health. With that date fast approaching, municipalities that are bargaining with uniformed personnel must be thoroughly prepared to take action by either properly demanding interest arbitration or responding in a timely and proper manner to a union’s demand for interest arbitration. Either the municipality or the union can demand impasse and interest arbit...

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Plain View Project Social Media Scandal Calls For Immediate Action

Published in the August, 2019 PA Insider Newsletter Articles


Published on: Thu 29th Aug, 2019 By: Patrick J. Harvey

Scores of Municipalities across the Commonwealth are being called by reporters and asked to comment on offensive police officer social media posts including posts encouraging vigilantism, racist postings, anti-gay and anti-Muslim postings. Spurred on by the work of the Plain View Project (https://www.plainviewproject.org), which resulted in over 72 Philadelphia officers being suspended and 13 fired due to offensive social media posts, reporters are reviewing and reporting on inappropriate social media postings by police officers. The potential reach of this issue was highlighted last week when 22 law enforcement agencies in Montgomery County received press inquiries regarding the social media posts of their officers. The resulting ar...

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Is the PA Supreme Court About to Make it Easier to Appeal Act 111 Arbitration Awards?

Published in the August, 2019 issue of the PELRAS newsletter


Published on: Tue 27th Aug, 2019 By: Hobart J. Webster

On July 3, 2019, the Pennsylvania Supreme Court granted Northern Berks Regional Police Commission’s (the “Commission”) Petition for Allowance of Appeal in Northern Berks Reg’l Police Comm’n v. Berks County Fraternal Order of Police, 196 A.3d 715 (Pa. Commw. 2018). The Commission appealed a Commonwealth Court decision overturning a Berks County Court of Common Pleas’ order vacating an arbitration award that reinstated a police officer who had been terminated after permanently losing access to the Pennsylvania Justice Network (“JNET”), Commonwealth Law Enforcement Assistance Network (“CLEAN”) and PennDOT’s systems. In Northern Berks, the Pennsylvania Supreme Court will address two questions: (1) Whether the Comm...

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Nationwide Scrutiny of Police Officer Social Media Posts Raises Concerns for Pennsylvania Municipal Employers

Published in the August, 2019 issue of the PELRAS newsletter


Published on: Tue 27th Aug, 2019 By: Brad J. Betack

Municipal police departments are facing intense scrutiny after a nationwide database was compiled, collecting thousands of violent and offensive social media posts by police officers, raising questions of credibility and bias of the officers and potential liability concerns for their municipal employers. The database was created by a group of attorneys who discovered, in 2016, numerous postings on Facebook from several Philadelphia police officers, which supported and endorsed violence, racism and bigotry. As a result, the group created the database, known as the Plain View Project, for the intended purpose of identifying social media postings by current and formers police officers which could “erode civilian trust and confidence i...

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IRS Enforcement of ACA Employer Penalties Accelerates

As Published in the June, 2019 Issue of the PELRAS Newsletter


Published on: Mon 17th Jun, 2019 By: David E. Mitchell


Although the government shutdown that ended in late January 2019 temporarily slowed enforcement of Affordable Care Act employer shared responsibility penalties, the Internal Revenue Service has renewed its efforts to collect those penalties.  The IRS is currently collecting penalties for calendar year 2016 and employers will soon begin receiving notices relating to calendar year 2017.  One public employer recently received an IRS notice asserting that owed over $700,000 in ACA penalties.  

If a Large Employer (50 or more full-time employees or full-time equivalents, based on a 30 hour per week standard) fails to offer coverage to at least 95% of its full-time employees an...

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As Published in the June, 2019 Issue of the PELRAS Newsletter


Published on: Mon 17th Jun, 2019 By: Joshua C. Hausman


It would be hopelessly anachronistic to begin this update by pointing out that websites and web-based services (such as “apps”) have become the primary mediums by which many of us seek information, order goods and services, or engage with others.  The same holds true for our interactions with local governments.  Whether a person wants to know the date and time of the next council meeting, pay their taxes, or submit a complaint about the noisy neighbors next door, municipalities are increasingly choosing to provide these services over the internet.  When municipal services are offered online, the result is often increased municipal efficiency and improved access for residents.  However, if the...

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As Published in the June, 2019 Issue of the PELRAS Newsletter


Published on: Mon 17th Jun, 2019 By: Paul N. Lalley


The U.S. Supreme Court’s decision last year in Janus v. AFSCME, Council 31 ended fair share fees for public sector unions as unconstitutional.  A group that has supported litigation against public sector unions in Pennsylvania—the Fairness Center—has taken aim at the constitutionality of the maintenance of membership provision in Act 195, in a lawsuit filed on March 27, 2019 in federal court, Wessner v. AFSMCE, Council 13.

As a quick refresher, Act 195 authorizes “maintenance of membership” provisions in collective bargaining agreements.  This means that the public employer and the union that represents the bargaining unit employees can agree that a bargaining-unit employ...

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As Published in the April, 2019 Issue of the PELRAS Newsletter


Published on: Thu 2nd May, 2019 By: Hobart J. Webster


The Medical Marijuana Act (the “Act”) took effect on May 17, 2016, making Pennsylvania the twenty fourth state to legalize medical marijuana.  35 P.S. § 10231.101 et. seq.   Although it’s been almost two years since the law went into effect, employers in Pennsylvania still have more questions than answers. The Pennsylvania Department of Health (the “Department”) is responsible for implementation and administration of the Act, but to date, the Department has only issued temporary regulations and none address employment issues.  There have not been any Pennsylvania court decisions that squarely address the Act’s employment provisions. 
 
While we await imp...

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As Published in the April, 2019 Issue of the PELRAS Newsletter


Published on: Thu 2nd May, 2019 By: Julie A. Aquino


The Federal Department of Labor (“DOL”) recently issued an Opinion Letter, FMLA 2019-1-A, concluding that employers must designate leave as FMLA leave once the employer knows that the leave is FMLA qualifying, rather than allow an employee to first use accrued paid time off. The DOL also concluded in the Opinion Letter that employers may not designate more than 12 weeks as FMLA leave (or 26 weeks of military caregiver leave). While we have typically urged clients to designate qualifying leave as FMLA leave even if the employee is not requesting FMLA leave and to not delay such designation, this is the first time the DOL has opined that employers must indeed make such designation, even if the employee would prefe...

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As Published in the April, 2019 Issue of the PELRAS Newsletter


Published on: Thu 2nd May, 2019 By: Ian B. Everhart


Recent amendments to the Protection From Abuse (“PFA”) Act, and the Pennsylvania Uniform Firearms Act, will soon take effect, imposing stricter requirements on gun owners subject to court ordered PFAs and assigning new responsibilities to law enforcement agencies. Many provisions of Act 79 of 2018 took effect on April 10, 2019 (180 days after the law was signed by Governor Tom Wolf).  For purposes of employment, individuals who are required to carry firearms as a requirement of their job and who are subject to prohibitions of the revised PFA Act may be barred from continuing to work during the terms of a final PFA.
  
Under the previous version of the PFA Act, courts had discretion ...

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Published in the March, 2019 PA Insider Newsletter Articles


Published on: Fri 1st Mar, 2019 By: Gretchen K. Love

In a highly anticipated announcement, the Department of Labor has issued a proposed rule expanding the number of workers eligible for overtime pay. The proposed rule increases the salary threshold for exempt employees under the Fair Labor Standards Act (”FLSA”) to $35,308 a year ($679 per week), up from the current level of $23,660 ($455 per week), which has been in effect since 2004. The rule change would mean that employees with an annual salary below $35,308 must be paid overtime, if they work more than 40 hours in a week, regardless of the nature of the work performed. The proposed threshold of $35,308 would expand overtime eligibility to approximately 1 million additional employees, according to the Trump Adminizstration. ...

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Published in the February, 2019 PA Insider Newsletter Articles


Published on: Tue 12th Feb, 2019 By: John P. McLaughlin

If your municipality has a collective bargaining agreement expiring in 2019, your preparation for bargaining should begin now. This article will outline the essential steps that apply to all contract negotiations between Pennsylvania municipal employers and any union representing both uniformed and non-uniformed employees. The collective bargaining process is an opportunity for the municipality to determine how it will allocate its resources in the short term and for years to come. It is thus imperative that the municipality enters into negotiations as informed, and as prepared, as possible. The following steps are equally applicable to negotiations with a uniformed bargaining unit in which binding interest arbitration is possible (...

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As Published in the February, 2019 Issue of the PELRAS Newsletter


Published on: Mon 11th Feb, 2019 By: Brad J. Betack


In a recent decision, the National Labor Relations Board (“NLRB”) made it easier for employers to consider certain workers to be independent contractor, and thereby preventing those workers from unionizing or accessing other protections provided by the National Labor Relations Act (“NLRA”).
The January 25, 2019 decision, Supershuttle DFW, Inc., overturned Obama-era precedent, which sought to put the primary emphasis on whether workers were “economically dependent” on the organization.  The Obama-era precedent greatly narrowed the number of workers who could be classified as independent contractors, directly resulting in the dramatic increase of the number of individuals eligible to unioniz...

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Published in the December, 2018 PA Insider Newsletter Articles


Published on: Sat 1st Dec, 2018 By: Brian P. Gabriel

The Pennsylvania Supreme Court recently held that employers have a common law duty to use reasonable care in storing employees’ personal information and data on internet-accessible systems and that negligence is now a viable cause of action where an employer fails to provide adequate data security. The Court’s decision opens a new avenue for plaintiffs’ lawyers that requires all employers to review and ensure that their data security measures adequately prevent against any type of data breach and the significant liability that may follow. In 2014, the University of Pittsburgh Medical Center (UPMC) suffered a data breach which led to the theft of names, Social Security numbers, addresses, tax information, bank account information...

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As Published in the December, 2018 Issue of the PELRAS Newsletter


Published on: Sat 1st Dec, 2018 By: Shon K. Worner

On October 17, 2018 the Pennsylvania Supreme Court in City of Philadelphia Fire Department v. Workers’ Compensation Appeal Board (Sladek) determined that a firefighter who develops cancer must only demonstrate that it is possible that a known carcinogen caused the type of cancer with which the firefighter is afflicted in order to create a presumption of coverage under the Workers’ Compensation Act (hereafter “the Act”). See City of Phila. Fire Dept. vs. W.C.A.B. (Sladek), No. 13 EAP 2017, 2018 WL 5046516 (Pa. October 17, 2018). In this case, the City of Philadelphia had hired Sladek as a firefighter in 1994. Prior to his service, Sladek had not been treated for cancer and had passed a physical examination confirming that he wa...

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As Published in the December, 2018 Issue of the PELRAS Newsletter


Published on: Sat 1st Dec, 2018 By: David E. Mitchell

As the days grow colder and darker, many employers focus on changes in Affordable Care Act (“ACA”) enforcement that will take effect in the New Year. In some welcome news for employers, the IRS has announced that the affordability limit, which measures the percentage of an employee’s household income that the employee can be required to contribute towards healthcare before coverage is deemed to be unaffordable, has increased from 9.56% in 2018 to 9.86% for 2019. The ACA itself defines unaffordable coverage as that which involves an employee contribution that exceeds 9.5% of an employee’s household income. Related regulations permit adjustments in that amount and allow employers to measure affordability by using rate of pay,...

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As Published in the December, 2018 Issue of the PELRAS Newsletter


Published on: Sat 1st Dec, 2018 By: Paul N. Lalley

Managers from municipalities with a small number of employees are probably aware from prior PELRAS presentations that some federal statutes may not fully apply to them. For example, Title VII of the Civil Rights Act of 1964 applies only to local governments that employ at least 15 people, and although the Family and Medical Leave Act’s notice requirements apply to all local governments, actual FMLA leave rights only apply when a municipality has at least 50 employees. But what about the Age Discrimination in Employment Act of 1967, which applies to private employers that have at least 20 employees? In a decision issued on November 6, 2018, Mount Lemmon Fire Dist. v. Guido (No. 17-587), the United States Supreme Court ruled that t...

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As Published in the October, 2018 Issue of the PELRAS Newsletter


Published on: Tue 9th Oct, 2018 By: Julie A. Aquino


In September 2018, the Consumer Financial Protection Bureau (“CFPB”) issued an interim rule that updates an important disclosure form under the Fair Credit Reporting Act (“FCRA”). Employers must start using the new model disclosure form when taking adverse action against an applicant or employee based on information contained in a background check performed by a third party.

The FCRA applies whenever an employer uses a third party (referred to under the FCRA as a “consumer reporting agency”) to obtain a background check on an applicant or employee. The background check is referred to under the FCRA as a “consumer report”, which includes any information on the applicant’s or...

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As Published in the October, 2018 Issue of the PELRAS Newsletter


Published on: Tue 9th Oct, 2018 By: Joshua C. Hausman

Many employers have adopted wellness programs to incentivize healthy habits on the part of their employees. While the individual benefits to improving one’s health are obvious, employers can also benefit in the form of lower health care costs and a healthier, more productive workforce. Although these wellness programs can take several forms, most offer incentives or rewards to employees who participate in wellness-related activities. Since both employers and employees derive benefits from these activities, a simple question has left some employers feeling ill: am I required to compensate my employees for their time spent participating in our wellness program? Fortunately, the Department of Labor has administered a dose of medicine wh...

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