Employment Law in Pennsylvania
Employment law covers a wide range of topics including negotiating contracts and severance agreements, wage and overtime disputes, discrimination, wrongful termination, intentional interference with contractual relations, and more. Pennsylvania is an at-will employment jurisdiction, but certain exceptions apply, and you still have certain rights and responsibilities as an employee or an employer.
Employment law can also overlap with (1) intellectual property law, particularly if talented professionals attempt to leave their employment to start a new business, and (2) personal injury for workers’ compensation.
The attorneys at Cornerstone Law Firm, LLC have represented both sides of employment law disputes, so we have the experience and knowledge to help with your case. We are pleased to announce that we represented the plaintiff in Gerald Groff v. Louis DeJoy, U.S. Postmaster General while the case was pending in the trial court. Mr. Groff substituted counsel on appeal and won a favorable outcome from the U.S. Supreme Court.
If you are in the midst of an employment law dispute, call us.
EMPLOYEE OR INDEPENDENT CONTRACTOR?
Many employers try to circumvent employment laws by characterizing their employees as “independent contractors.” Pennsylvania and federal courts have adjusted for that problem. That your contract might have labeled you an independent contractor is not fatal to your claim. The courts will look at the entirety of the facts and circumstances of the relationship, such as the degree that the employer oversaw and controlled your work, whether the employer provided you with all tools and supplies for the job, whether the relationship was ongoing or intermittent, and the manner of compensation for the work performed.
Cornerstone Law Firm has successfully represented clients on both sides of the question: persons who were classified as employees (and were not) and persons who were classified as independent contractors (and were not).
DISCRIMINATION AND ACCOMMODATION
Both State and federal statutory law provide protections to certain classes from workplace discrimination. Significantly, Pennsylvania and federal law permit recovery of attorneys’ fees to the prevailing plaintiff, in addition to other remedies, including monetary damages, reinstatement of employment, and correction or expungement of employment records. Pennsylvania’s Human Relations Act is broader and protects more specific classes.
Who is Protected by Anti-discrimination Laws?
Federal Protected Classes include:
Protected Classes under Pennsylvania’s Human Relations Act include all of the above, with the addition of:
- Ages 40 and older
- National origin
- Retaliation for whistleblowing
- Sexual orientation
- The use of support animals for individuals with a handicap or disability
What Can Discrimination Look Like?
Discrimination in the workplace can take on many forms. It includes refusal to hire as well as termination of employment. It includes exclusion from programs for promotion and training. It can also include hostile workplace if managers refuse to police employee-on-employee harassment. Discrimination also includes the failure to give a reasonable accommodation, such as requesting leave to observe a religious holiday.
You may still have a claim even if you have resigned.
Which Employers are Covered?
Under federal law, employers with at least 15 employees must follow the Equal Employment Opportunity Commission (EEOC) guidelines. In Pennsylvania, the Human Relations Act is generally applicable to employers having four or more employees, but certain exclusions may apply for religious, fraternal, charitable, or sectarian organizations.
Do Employers Have Any Defenses?
Yes. An employer can refuse an accommodation request if it will cause an “undue hardship” in the employer’s business operations. Recently, one of Cornerstone Law Firm’s clients, Gerald Groff, prevailed in the U.S. Supreme Court which clarified the meaning of “undue hardship.” The Court held that a hardship is “undue” if there are substantial costs to the employer, measured by the totality of the employer’s revenue.
If there is more than one way to reasonably accommodate the employee, then the employer has the discretion to choose which accommodation will be applied. But an accommodation must give full relief to the employee.
Do Not Sit on Your Rights—Act Now.
If you believe you have been discriminated against, it is important to file a claim quickly. In most cases, discrimination claims need to be filed within 180 days of the discriminatory act. Contact Cornerstone Law Firm with any questions or for help with filing a claim.
While harassment can be a form of workplace discrimination, it can also be a claim on its own. You have the right to work in a safe and professional environment. Harassment can create what’s known as a hostile workplace. In most cases, harassment may take the form of:
- Insults or derogatory comments
- Surveillance or extra job scrutiny
- Other forms of unfair or unequal treatment
Harassment can also be sexual in nature, though it does not have to be to qualify. It can be based on any of the protected classes mentioned above.
You may have a claim even if you have resigned.
If you are unsure whether or not your case qualifies as harassment, it’s best to speak with an experienced attorney. The attorneys at Cornerstone Law Firm can help. Give us a call and we’ll be happy to review your case.
WRONGFUL TERMINATION AND BREACH OF CONTRACT
Because Pennsylvania is an at-will employment jurisdiction, it can sometimes be difficult to know if you have a wrongful termination case. Outside of unions and contracts, Pennsylvania workers may be fired for a number of reasons. If you are fired as a form of discrimination or retaliation, or have resigned due to discrimination or retaliation, you may have a legal claim.
Employers are not allowed to fire employees based on the protected classes mentioned above. They are also not permitted to fire an employee who suffered a workplace injury and requires paid leave or workers’ compensation benefits, or an employee who filed for unemployment benefits claim due to a reduction in work hours. In some cases, an employer who violates their own handbook in terminating an employee may be liable for a breach of contract.
If an employer contrives a false reason for terminating your employment in order to defeat your ability to obtain unemployment compensation benefits, then you may have a potential claim for wrongful termination.
Finally, the fact that Pennsylvania is an at-will jurisdiction will not defeat any other breach of contract claims that you may have. Did the employer promise certain bonuses or privileges of employment that never materialized even though you properly performed your job? These may give rise to a breach of contract claim, even if the promises were oral.
Most breach of contract claims have a four-year statute of limitations.
If you have questions about whether you’ve been wrongfully terminated, or if the employer breached an oral or written promise, contact the employment law attorneys at Cornerstone Law Firm. We can help you determine if you have a case and file a lawsuit.
You have rights as an employee in Pennsylvania. The attorneys at Cornerstone Law Firm can help you defend those rights and file suit on any employment law claims you have.
Noncompete agreements, sometimes called restrictive covenants, are agreements between employers and employees meant to keep competitors from gaining an unfair advantage. Typically, noncompete agreements are related to a specific time period, geographic area, and scope of work. They serve to protect information about customers, trade secrets, and specific knowledge. While noncompete agreements can be a helpful tool for employers, they can also quickly turn into unfair restrictions for employees.
Employers who choose to use noncompete agreements must keep the terms reasonable. If the agreement is too extensive in geographical scope and duration, it may be considered in restraint of trade. This means that the agreement cannot stop an individual from earning a living. It is also important to note that employers do not need to have a noncompete agreement in place to file suit against former employees who take trade secrets to competitors.
Before signing a noncompete agreement, it’s important for both parties to understand its terms. If you have been asked to sign a noncompete agreement and are unsure of what you are being asked to agree to, contact Cornerstone Law Firm. Our attorneys can review the agreement and negotiate on your behalf.
Similar to noncompete agreements, severance agreements often protect employers. They may include noncompete language. In most cases, a severance agreement is offered to employees to prevent lawsuits, especially in the case of wrongful termination. Before signing, it is important for employees to understand what they are waiving and what they will receive in exchange.
Along with waiving rights to sue employers, severance agreements typically include the amount of severance pay being offered and any conditions which may apply. It’s important for you, as the employee, to understand those conditions and consider them before signing. On average, severance pay looks like either 1 or 2 weeks’ pay for every year you were employed. This amount may vary depending on conditions like your job performance, how well your employer tracked that performance, and the reason behind your termination. If your employment was terminated for failing to perform your job, that may decrease the amount of severance pay you are offered. If, however, you lost your job because of a forced layoff, you may receive a greater amount.
Before signing a severance agreement, be sure to fully review its terms. Severance agreements are enforceable if:
- The agreement does not violate any laws.
- The employee had ample time to review the agreement with a lawyer.
- The employee knew and voluntarily signed the agreement.
- The agreement has reasonable terms in regard to waiving rights to sue.
If you have a severance agreement you are not sure about, contact Cornerstone Law Firm. Our experienced attorneys will be happy to review the terms of the agreement with you and negotiate on your behalf.
WAGE PAYMENT AND OVERTIME DISPUTES
Pennsylvania and federal laws require employers to pay at least minimum wage and overtime rates. Pennsylvania also requires employers to pay the full amount of wages that an employee has earned on regularly scheduled pay days, meaning employers are not permitted to withhold earned wages or give priority status to other persons, such as paying creditors before paying employees.
Significantly, a prevailing employee is entitled to an award of reasonable attorneys’ fees, in addition to the lost wages or overtime compensation.
Legal claims arise when:
- Employees are paid less than minimum wage.
- Employees are denied overtime pay.
- Employers fail to timely pay what is owed to employees under the scheduled pay day.
Pennsylvania uses the federal standard for minimum wage, which is $7.25 an hour. Tipped minimum wage is $2.83 per hour and tipped employees may be paid at that rate as long as they do not spend over 20% of their work week performing tasks that do not generate tips. Exemptions from the minimum wage/overtime requirement include:
- Domestic workers
- Farm workers
- Elected officials
- Golf caddies
- Paper deliverers
- Seasonal camp employees
Pennsylvania and federal laws require employers to pay an overtime rate of 1.5 the regular hourly rate for employees who work more than 40 hours within seven consecutive days. It doesn’t matter if the employee is paid an hourly rate that exceeds minimum wage, if the employee works irregular hours, or the employer defines a work week differently—the required overtime rate still applies.
A regular workweek is measured by seven consecutive days. The employer can vary when the regular workweek begins and ends (e.g., beginning Monday and through Sunday or beginning Sunday and through Saturday), but the employer must adhere to that definition and cannot vary the pay period as anything other than seven consecutive days.
Overtime pay is required even if an employee is salaried rather than paid hourly. In that case, whether the salary is weekly or monthly, it is computed into the equivalent hourly rate. If you are salaried on a monthly basis, then multiply your monthly compensation by 12 (for 12 months) and then divide by 52 (for 52 work weeks in the year) to determine the equivalent hourly rate. If you are salaried on a weekly basis, then divide the weekly compensation by 40 (for 40 hours) to determine the equivalent hourly rate. Once your equivalent hourly rate is determined, then examine your pay stubs to see if you were paid the overtime rate of 1.5 for the number of hours that exceeded 40 within the regular workweek.
If employers do not monitor your work hours for salaried employees, then you must regularly maintain your own timesheets. Include accurate, general descriptions of what tasks were performed during the hours you had worked. Regularly submit those timesheets to your employer if you exceed 40 hours during the workweek and request overtime compensation.
If you have a wage or overtime dispute, call Cornerstone Law Firm. Our attorneys have worked with employees to get the wages they have earned, and we’d be happy to do the same for you.
Whether the claim sounds in discrimination, harassment, workers’ compensation, or unemployment benefits, if you have made a claim against an employer, or if you have supported a co-worker’s claim, and your employer retaliates against you, you may be able to take legal action. Both state and federal laws offer protections to employees who issue complaints of discrimination or harassment, who participate in protected activities, or who blow the whistle on illegal activities.
Retaliation may take the form of:
- Job termination
- Denying promotions or training opportunities
- Unwarranted write-ups, suspensions, or performance evaluations
- Reduction of hours
- Assigning undesirable tasks or shifts, or changing job duties
- Giving negative references
- Exclusion from workplace activities or meetings
- Interfering with rights under things like the ADA, FMLA, and more
Protections against retaliation can vary. If you believe your employer has retaliated against you, contact Cornerstone Law Firm. We can provide you with a consultation to discuss your case and let you know what your options are.
CLASS ACTION LAWSUITS
Most claims under employment law are between an individual and the employer. However, sometimes the claims may be similar enough and there is a numerosity of affected persons that a class action can be brought. Class actions can increase efficiency and help ensure that the employees involved receive consistent treatment. They can be more cost-effective than individual lawsuits and may result in better outcomes.
To file a class action lawsuit, the court must certify the class. The first plaintiff to bring the lawsuit is called the “representative.” The lawsuit will need to meet criteria like:
- A large number of potential class members
- Common legal issues among the class members
- Representative claims being typical of the whole class
- The representative can adequately represent the interests of the class
If successful, class actions have been settled with financial compensation, injunctions (temporary remedies before final verdicts), or changes in employment practices.
If you receive notice that you qualify as part of a class, or if you would like to file a class action lawsuit, contact Cornerstone Law Firm. We can review your case and answer any questions you may have.
FAMILY AND MEDICAL LEAVE
Under federal law, the Family and Medical Leave Act (FMLA) allows qualifying individuals to take unpaid leave from work for up to 12 weeks. During these 12 weeks, an individual’s job is secure and certain benefits, like insurance, stay in place. The following categories can be covered by FMLA:
- Adopting a child
- Giving birth or experiencing pregnancy-related medical problems
- Caring for a family member who recently gave birth
- Caring for a family member or parent during a medical crisis
- Caring for a covered service member
- Grieving the death of a family member
- Having a serious health condition
Under FMLA, employers may not fire employees for taking leave for a qualified reason. Employers with 50 or more employees are generally required to provide job protection. Upon return from FMLA leave, you have the right to be reinstated to your position or an equivalent one with the same pay, benefits, and terms of employment.
You as the employee are usually expected to provide advance notice before taking FMLA leave, but there are exceptions in some circumstances. Your employer may also request certification from your healthcare provider to verify your need for FMLA. You may be eligible for additional time off or intermittent time off depending on the circumstances.
To qualify for FMLA, you must have worked for your employer for at least 12 months, and worked at least 1,250 hours in the last 12 months. Your employer must be either a private sector employer with 50 or more employees, a public agency, or a public/private elementary or secondary school.
However, even if your employer is not covered by the FMLA, there may be workplace-related short-term disability policies which provide comparable benefits. Your entitlement to the benefits of those policies can sometimes arise to a common law claim for breach of contract.
If your employer has violated the FMLA, or if your employer refuses to allow you the benefits of a short-term disability policy, contact Cornerstone Law Firm. We will work with you to file a claim and protect your rights.
Under federal law, the Americans with Disability Act (ADA) seeks to protect individuals with disabilities from workplace discrimination or harassment. The ADA defines a disability as: “a physical or mental impairment that substantially limits one or more major life activities, a history or record of such an impairment (such as cancer that is in remission), or is perceived by others has having such an impairment (such as a person who has scars from a severe burn).” ADA covers a wide range of conditions.
Under ADA, employers are required to provide reasonable accommodations to qualified individuals unless it would impose an undue hardship on the employer. Reasonable accommodations may include things like:
- Accessibility modifications
- Assistive devices
- Changing job duties
- Modifying work schedules
- Other adjustments that do not fundamentally change the nature of the job
Employers are not permitted to discriminate against qualified individuals with disabilities in any aspect of employment including hiring, firing, promotions, pay, benefits, training, and other terms of employment. Decisions must be made based on qualifications and abilities rather than disability. Employers are also not permitted to make disability-related inquiries or require medical exams unless they are job-related and consistent with business necessity. Employers may ask about an employee’s ability to perform specific job functions and request medical documentation to support a request for a reasonable accommodation.
Under ADA, employers may not retaliate against you for asserting your rights or participating in activities protected by ADA. If you have been discriminated against or retaliated against, you may be able to take legal action. Contact the employment law attorneys at Cornerstone Law Firm for help.
UNEMPLOYMENT OR UNDEREMPLOYMENT
Pennsylvania law provides for unemployment benefits if an employee was terminated for reasons other than “willful misconduct.” Not every mistake made by employees rises to that level. It is very important to know that the outcome of the unemployment benefits proceeding will not in any way prevent or hinder any other legal claims the employee may have against the employer. For instance, if the employee sues the employer for a tort, the employer cannot raise a defense that the employee lost on the claim for unemployment benefits even if the facts of the tort claim had overlapped with the reasons the employee was fired.
Benefits may sometimes be available for underemployment, if an employer reduces the number of hours you customarily worked due to adverse market conditions. Some occupations are exempt from the scope of benefits, such as agricultural labor and domestic services.
If you resigned from your employment, you may still qualify for benefits if you can show that your resignation was not voluntary, which is “constructive discharge.” That can happen if the employer harasses and goads an employee to quit, sabotages the employee’s work, or gives unwarranted and false job reviews which created reasonable apprehension that one’s job was in danger. Discriminatory practices and hostile workplace environments can also rise to constructive discharge. Finally, constructive discharges include circumstances where the employer drastically altered the responsibilities of the job, as to amount to deception at the time of hire, as well as failure of commission sales to materialize as the employer had represented.
If an employee receives unemployment benefits, an employer may engage in private investigation to determine if any fraud is committed. That can include verifying that all job applications were actually submitted, as well as hiring a private detective to learn whether the employee is working “under the table” for another employer.
Unemployment benefits is an area where employees often attempt self-representation. However, a consultation with Cornerstone Law Firm may help position you to successfully engage in self-representation. Our attorneys can help you prepare. Additionally, if an employer terminates the employment or retaliates against any employee who sought benefits or helped another person seek benefits, then that may give rise to other legal claims as described above.
Employers have certain rights available to them, as well as employees. If you are an employer, it is important for you to understand the various employment laws and how they affect your business. Some employer rights include:
- The right to hire and terminate employees—You have the right to hire employees based on their qualifications, experience, and suitability for the job. You may also terminate employees who perform poorly or participate in misconduct, or for economic reasons (if in compliance with the law and not as a means of discrimination).
- The right to establish workplace policies—You may establish expectations, attendance requirements, dress code, technology use, and other reasonable policies. You must clearly communicate these policies with employees and update them on any changes.
- The right to protect proprietary information—You are entitled to protect your company’s trade secrets, confidential information, and intellectual property. You can require employees to sign nondisclosure agreements (NDAs) and implement reasonable safety measures.
- The right to take disciplinary action—You may issue warnings, suspend employees, and terminate employment in response to employee misconduct or policy violations. Discipline must be consistent, fair, and in line with your company’s policies.
- The right to manage compensation and benefits—You may establish and change employee compensation and benefit programs in compliance with minimum wage and overtime laws, anti-discrimination laws, and other application regulations.
- The right to manage employee leave—While staying compliant with FMLA and ADA, you can manage employee leave programs.
If you are wrongfully accused of discrimination as an employer, if you are looking to protect intellectual property and other assets, or if you are concerned about establishing workplace policies, contact the employment law attorneys at Cornerstone Law Firm. We can discuss your rights and obligations as an employer, and help you stay in compliance with applicable state and federal regulations.
LEAVING EMPLOYMENT TO START A COMPETING BUSINESS
Many employees at some point in their careers desire to branch out and start a competing business. They should consider reading Cornerstone Law Firm’s article on Intellectual Property. Technology has now vastly improved and many employers can hire professionals to examine a former employee’s computer (or laptop) to determine if company files were downloaded onto a CD or USB drive. Workplace e-mail accounts can also be examined to see if the departing employee made any disparaging statements about the employer, solicited co-workers to leave with them, or transferred proprietary information to another person.
Merely preparing to compete with an employer is not a tort in and of itself. Also, soliciting co-workers to compete with an employer is also not a tort in and of itself. But there are many sensitive facts which, if not handled properly, can easily ripen into a tort claim in those settings. False and disparaging statements of the current or former employer, or taking advantage of the employer’s proprietary information not generally known in the same trade or profession, or inducing a co-worker to violate a confidentiality or noncompete agreement, can all arise into tort claims which can destroy your ability to launch a new business.
Are you looking to start a new, competing business? Consult with Cornerstone Law Firm to examine and mitigate your liability risks and to plan ahead.
OTHER TORT CLAIMS
Current and former employment relationships can sometimes give rise to a variety of other tort claims, such as misappropriation of trade secrets, fraud, trespass to chattels, conversion of property, defamation, commercial disparagement, and intentional interference with contractual relations. Workplace defamation is significant, and co-workers and managers are not shielded if they knowingly make a false statement about a co-worker.
Employees are sometimes very hesitant to sue a former employer. Pennsylvania law, however, has limited circumstances for pre-complaint discovery. That may enable employees to learn additional information from a former employer before filing a civil complaint for state-law claims. Tort claims have a two-year statute of limitations, except for defamation and false light, which are one-year.
Knowledge is power. Even if you don’t wish to litigate, understanding your rights, as well as your own tort risks, can give you peace of mind as you plan your own life and personal affairs. Contact the employment law attorneys at Cornerstone Law Firm to determine if you have any causes of action.