Recent Study Reveals Extent of Sexual Harassment in Workplace Culture

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A recent survey of 2,120 legal professionals indicated that sexual harassment continues to be a serious problem in the workplace. The study, released by Women Lawyers on Guard, was reviewed in a July 2020 article published in the ABA Journal. The study focused on the effects of sexual harassment, as well as how sexual harassment in the workplace has evolved during the past 30 years. The study concluded that sexual harassment is deeply embedded in workplace culture, and only by changing that culture can progress be achieved.

Survey respondents were asked to characterize sexual harassment incidents in the workplace they experienced in the past 30 years. During that time, the study found a decrease in the percentage of sexual assaults and incidents of threats or bribes in exchange for sexual favors. However, incidents of sexually offensive jokes, sexualized name-calling, and rating women have increased. More than one-third of the incidents today occur in off-site business meetings or at the office, and about one in four occur in private.

Effects of Sexual Harassment

Sexual harassment continues to have negative effects on victims and the workplace environment overall. More than 60 percent of survey respondents reported experiencing anxiety about their careers or workplaces due to sexual harassment. More than one-third believed that the incidents caused a loss in their productivity, and more than one-fourth reported having a negative impact on their careers. Fear of retaliation for reporting sexual harassment was widespread, with 40 percent of respondents replying that this was a concern.

Putting a Stop to Sexual Harassment

It has been more than 55 years since Title VII of the Civil Rights Act outlawed discrimination on the basis of sex. Since that time, most corporations have instituted policies against sexual harassment, requiring employees to attend training courses explaining those policies. Yet, the problem still exists. The Woman Lawyers on Guard study points to several reasons why existing approaches are not working, including the following:

  • Sexual harassment is treated as a compliance issue rather than a workplace culture issue;
  • Sexual harassment is about power; and
  • Unequal power dynamics in corporate structures foster a workplace culture of sexual harassment.

The study suggests that addressing the underlying power imbalance at work must happen first to combat the problem of sexual harassment. Change starts at the top because workplace culture is shaped by the worst behavior the CEO is willing to tolerate, according to the study.

What Steps Can Organizations Take?

The following are steps organizations can take to begin identifying and addressing cultural issues that allow harassment to continue:

  • Gather baseline data about the workplace. This includes identifying the demographics of those in power and surveying employees using a confidential, anonymous reporting tools.
  • Offer meaningful training. Instead of just showing a video once a year, organizations may consider holding group sessions on topics, such as how bystanders can intervene and stop inappropriate behavior.
  • Consider a no-tolerance policy. Rather than let high-performing employees continually get away with inappropriate behavior, organizations should make it clear that all employees must be respectful no matter how much revenue they bring in.

Any type of sexual harassment in the workplace is counterproductive, whether it meets the legal definition of discrimination or creates a hostile work environment. Changing workplace culture is a long process but a necessary one if companies are to move toward positive change.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Respond to Legal Challenges with Experience and Skill

Sexual harassment in the workplace can damage individual productivity and derail careers. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. are familiar with complex legal challenges in cases involving sexual harassment and discrimination. We approach these matters with skill and experience. If you have questions or concerns about sexual harassment in the workplace, discrimination, or any other matter of employment law, call us at 215-574-0600 or fill out our online form. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

What Should Employers Know About Hiring Seasonal Workers?

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Many employers rely on seasonal labor to meet fluctuations in business activity. In the summer, industry sectors hiring seasonal workers include hospitality, landscaping, agriculture, travel, and recreation. Employers with seasonal workers can help ensure legal compliance by understanding the ways in which the temporary nature of seasonal employment impacts the employer-employee relationship.

How Does the Employer-Employee Relationship Change?

When a business hires an individual for seasonal work, the expectations of both employer and employee change in several ways. First and foremost, the employer approaches the employment agreement with the understanding that the demand for work is temporary. Whether it is a 12-week summer camp or a field of crops to be harvested, when the work or time period is complete, the seasonal worker will be terminated.

Aspects of traditional permanent employment, including promotions, raises, and building a career path are typically not part of the expectations of employers or employees. Ideally, the seasonal employee understands this as well. Employers should be clear when explaining to workers the nature of their work and when they can expect it to end. Setting false expectations regarding raises or permanent positions can lead to problems.

What Employer Responsibilities Remain the Same Regarding Seasonal Workers?

Most employment laws that protect the rights of permanent employees also apply to seasonal workers. The following employer responsibilities remain the same regarding seasonal workers:

  • Providing a safe workplace. The Occupational Safety and Health Act of 1970 (OSHA) requires employers to provide hazard-free workplaces that are free of known dangers that could harm their employees.
  • Classifying workers appropriately. Employers may be tempted to misclassify temporary workers as independent contractors to avoid paying payroll taxes; doing so may violate standards set by the Internal Revenue Service.
  • Paying overtime. Under the Fair Labor Standards Act (FLSA), employers must pay time-and-a-half for any hours worked in excess of 40 in a given workweek.
  • Protecting workers from discrimination. Title VII of the Civil Rights Act, as well as state laws in Pennsylvania and New Jersey, prohibit workplace discrimination on the basis of race, color, religion, sex, and national origin. The Americans with Disabilities Act (ADA) also protects workers with disabilities.
  • Providing health care. The Affordable Care Act (ACA) requires employers to provide health care benefits to employees working more than 30 hours per week for more than 120 days.

There are certain exceptions for agriculture and family-owned businesses. The Department of Labor offers guidance to employers of seasonal workers regarding overtime pay, meal breaks, youth employment, and hazardous occupations.

Special Considerations for Agricultural Workers During the Pandemic

The spread of COVID-19 raises additional concerns for employers of seasonal farm labor. To help protect the health of agricultural workers, the state of New Jersey issued the following guidelines:

  • Workplace and housing safety: Workers must wear employer-provided face masks at all times in the presence of others.
  • Social distancing during work time:Employers need to promote social distancing and offer staggered shifts.
  • Sanitation:Employers are to disinfect high-touch areas.

Additionally, employers must screen workers for COVID-19 symptoms prior to work shifts. Workers exhibiting symptoms must be separated from other workers and be seen by a physician.

Sidkoff, Pincus & Green P.C. are Employment Attorneys in Philadelphia That Offer Experienced Counsel Regarding Employment Issues

The relationship between employers and employees is subject to a myriad of state and federal laws. Seasonal workers are covered by most of these laws, even though they are temporary employees. Sidkoff, Pincus & Green P.C. are employment attorneys in Philadelphia that help businesses and workers navigate the legal landscape of employment law. Contact us online or call us at 215-574-0600 for an initial consultation today. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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How has COVID-19 Affected Employee Rights?

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There are numerous federal and state laws guaranteeing the rights of employees with respect to discrimination, privacy of medical records, and safety in the workplace. Since the onset of the COVID-19 pandemic, federal agencies, including the Centers for Disease Control and Prevention (“CDC”), the Equal Employment Opportunity Commission (“EEOC”), and the Occupational Safety and Health Administration (“OSHA”), have issued guidelines affecting these rights. Employees may have many questions regarding the implications of COVID-19 on their rights at work.

How has COVID-19 Impacted Rules on Unsafe Working Conditions?

OSHA regulations protect employees against discrimination if they refuse, in good faith, to expose themselves to dangerous conditions in the workplace.

However, employees who refuse to return to work for fear of contracting COVID-19 are not eligible for Pandemic Unemployment Assistance (“PUA”) under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”). For example, this may include employees of retail stores or restaurants who must interact with the public. In addition to contracting the virus, some employees at retail stores have reported being assaulted by irate customers who refuse to comply with face mask requirements.

Are Employers Still Required to Make Reasonable Accommodations for Disabilities?

Under the Americans with Disabilities Act (“ADA”), employers are required to provide reasonable accommodations for employees with disabilities as long as it does not impose an undue hardship. However, given that many employers are experiencing decreased income, they may have grounds for demonstrating that accommodations provided in the past are now significantly expensive in relation to their current financial status, creating an undue hardship.

Can Employers Require Workers to Submit to Temperature Checks?

Under normal conditions, the ADA prohibits all disability-related inquiries and medical examinations, even if they are job-related. However, current EEOC guidelines allow employers to require workers to submit to testing to determine whether they currently have COVID-19. Furthermore, the EEOC stated that because the CDC and state/local health authorities acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperatures. If a worker is found to have COVID-19, the employer can make the worker stay home. The employer can also disclose the worker’s illness to public health agencies.

However, employers must maintain the confidentiality of temperature check records. Employers in general cannot ask employees about their health; however, the EEOC now states that employers may ask workers if they are experiencing fever, chills, cough, shortness of breath, or sore throat, which are symptoms of COVID-19.

How are Hiring Decisions Affected by COVID-19 Exposure?

Under current CDC guidelines, employers have the right to deny employment to job applicants with active cases of COVID-19 because those persons cannot enter the workplace safely. However, the CDC also said that the use of COVID-19 antibody tests should not be used to make general employment decisions involving hiring or returning workers to a specific job. Persons with antibodies are presumed to have had COVID-19 in the past and may have a degree of immunity. However, if an employer requires a worker to take a COVID-19 test in order to return to work, that would be a violation of the ADA. 

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Keep Pace with Evolving Federal, State and Local Guidelines to Deliver Outstanding Results

The legal protections afforded by employment laws are continually shaped by court rulings and guidance issued by federal, state, and local agencies. Employee rights in the workplace today are subject to change tomorrow. If you have questions about your rights in the workplace, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help. Fill out our online form or call us at 215-574-0600 to arrange a confidential consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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U.S. Supreme Court Shields Religious Schools from Discrimination Lawsuits

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On July 8, 2020, the United States Supreme Court ruled that courts cannot intervene in employment disputes involving teachers at religious schools if those teachers have been entrusted to deliver religious instruction. The ruling has broad implications, potentially stripping away employment law protections from more than 300,000 teachers working at religious schools across the country. It may also impact other employees at Catholic hospitals, camps, and other religious workplaces.

The court reviewed two cases involving job bias claims filed by two Catholic schoolteachers in California. In Our Lady of Guadalupe School v. Morrissey-Berru, the plaintiff alleged age discrimination bias because she was told days before her 65th birthday that her contract would not be renewed. In St. James School v. Biel, the teacher was terminated after she requested time off for surgery and chemotherapy treatment. Biel subsequently died of cancer, and her husband continued with the litigation on her behalf.

In writing the majority opinion, Justice Samuel Alito stated that the First Amendment protects the rights of religious institutions to decide for themselves, free from state interference and matters of church government, as well as those of faith and doctrine. The religion clauses in the First Amendment provide that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Alito referred back to a 2012 Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court ruled that teachers holding the title of minister could not sue for job bias. This ministerial exception bars employees from suing their religious school employers for discrimination.

Justice Alito stated that even though the Catholic schoolteachers in this case did not have the title of minister, their job functions were essentially the same because they were entrusted with providing religious instruction at least part of the week and prayed with the children. Prior to this case reaching the Supreme Court, the Ninth U.S. Circuit Court of Appeals at San Francisco allowed the lawsuits after ruling that the teachers were secular, rather than religious, employees.

In a dissent, Justice Sonia Sotomayor noted that both teachers primarily taught secular subjects and were not required to be Catholic. Justice Sotomayor was joined in her dissent by Justice Ruth Bader Ginsburg.

Implications for Future Employment Discrimination Cases

The ruling represents a win for Evangelical religious schools, as well as Catholic institutions. At the same time, it is a major setback for the LGBTQ community whose members gained protections against employment discrimination in a recent Supreme Court ruling. There are numerous state and federal laws protecting individuals from employment discrimination, including Title VII of the Civil Rights Act and the Americans with Disabilities in Employment Act. These laws and others make it illegal for employers to treat workers unfairly simply because of their race, national origin, sex, religion, age, or disability. Regarding the cases of the two Catholic schoolteachers in California, there was evidence that age and disability discrimination occurred; however, that evidence was not in dispute. The issue was the constitutionality of applying employment law to religious institutions.

In her dissent, Justice Sotomayor noted that, with this ruling, so long as the employer determines that an employee’s duties are vital to carrying out the mission of the church, the employer can make employment decisions based on a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion, permitting religious entities to discriminate widely and with impunity for reasons wholly unconnected to religious beliefs.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Complex Legal Challenges

The recent Supreme Court ruling confirms that the field of employment law is continually being revised. In matters of discrimination, the employer-employee relationship can be extraordinarily complex. Our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help with your employment matter. To arrange an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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Is a Company’s Best Defense the Employee Handbook?

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Every business that maintains an office and team of employees exposes itself to the risk of harassment lawsuits, discrimination claims, and much more. When these claims do arise in the employment context, one of the most important pieces of evidence will be the employee handbook, should one exist. Even if a handbook already exists, they can quickly become outdated based on evolving law.

The employee handbook should be part of every employee’s onboarding process. New hires should be instructed to read the handbook and sign a document stating they have read and understand everything contained therein. Management should answer questions about handbook policies, but the handbook will speak for itself if there is a concern in the office.

How Does an Employee Handbook Handle Investigations?

The employee handbook should list every policy the company has from sick leave to office parties, travel expenses, and lunch breaks. In addition, a large portion of the handbook should explain what happens if misconduct is reported in the office. The handbook should explain that all incidents of harassment should be reported to an immediate supervisor and include that all reports are investigated regardless of merit.

Supervisors should have a handbook that tells them how to open an investigation, investigate claims, and/or report the claims to human resources. The company should investigate any claims of harassment, collect evidence, conduct interviews, and reach a well-documented conclusion.

Why Does it Matter?

If a company is sued by an employee who experienced harassment, management can point to the employee handbook since the company has laid out all the guidelines it uses to manage these cases. Employees who were terminated because of harassment claims should know they will be investigated and employees who do not report harassment are technically in violation of company policy. Management and employees must refer to the handbook for guidance. If a company does not have an established policy for workplace harassment, it can be sued easily because its employees do not know what to do if harassment occurs.

If management is not certain how to word the employee handbook, they may want a Philadelphia employment lawyer to review the document on their behalf. The company may also want the lawyer to craft a verification document that all employees must sign after reviewing any policies, such as a separate sexual harassment policy, fiduciary duties policy, and/or a drug use policy.

To be safe, management should review these documents every year with their staff. The company’s diligence ensures that employees know what is expected of them, and management can point to employees’ yearly reviews if a complaint is filed.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Navigate Issues Related To Employee Handbooks For Both Employers And Employees

If you would like to find out more about employee handbooks or have a potential lawsuit against your employer involving an employee handbook, reach out to our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. For an initial consultation, contact us online or call 215-574-0600 for assistance. We will review your case and discuss the next potential steps. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Sidkoff, Pincus & Green P.C. Successfully Defends Appeal to the Pennsylvania Supreme Court

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In an opinion issued on June 16, 2020, the Supreme Court of Pennsylvania Eastern District upheld an earlier ruling favoring Tel-Stream Inc. and its owner, Yury Karnei, a subcontractor that services cellular towers. Attorney Gary Green of Sidkoff, Pincus & Green P.C. represented Tel-Stream and Mr. Karnei.

Tel-Stream performed work for the appellant Rullex, a telecommunications construction company. Sometime after commencing the work, Mr. Karnei, on behalf of Tel-Stream, signed a master service agreement and non-competition agreement with Rullex. The non-competition agreement prohibited Tel-Stream from working for Rullex competitors. Mr. Karnei has a limited understanding of English and believed his company was free to perform services for competitors after it finished working for Rullex.

Subsequent to completing the Rullex project, Tel-Stream accepted a job from Invertice, a Rullex competitor. Rullex filed a lawsuit claiming that Mr. Karnei and Tel-Stream had breached the restrictive covenant. Rullex also filed a Motion for Preliminary Injunction to stop Tel-Stream and Mr. Karnei from working. During the initial preliminary injunction litigation, the parties testified that the non-competition agreement had been signed at a minimum months after Tel-Stream began working for Rullex. Attorney Gary Green argued that since the non-competition agreement was signed after Tel-Stream began working, and Rullex did not pay Tel-Stream additional consideration, then the non-competition agreement was unenforceable.

The Philadelphia Court of Common Pleas ruled in Tel-Stream’s favor, however, Rullex appealed to the Pennsylvania Superior Court. After the Superior Court ruled in Tel-Stream’s favor, Rullex then appealed to the Pennsylvania Supreme Court. In the Pennsylvania Supreme Court’s decision, Chief Justice Saylor wrote that the Common Pleas Court had acted properly in denying Rullex the motion for injunctive relief because Rullex failed to present evidence that Tel-Stream understood and accepted the terms of the non-competition agreement at the time it started working for Rullex.

Philadelphia Restrictive Covenant Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Non-Compete Agreements

 Non-compete and non-disclosure agreements are the two most common types of restrictive covenants that employers use to protect their business interests. It is not unusual, however, for questions to arise regarding the legality of restrictive covenants. The skilled Philadelphia restrictive covenant lawyers at Sidkoff, Pincus & Green P.C. are familiar with the nuances of these agreements and have been at the forefront of precedents established by Pennsylvania courts. If you have concerns about your restrictive covenant agreement, please call us at 215-574-0600 or contact us online for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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Landmark Supreme Court Ruling Prohibits Discrimination Against LGBTQ Workers

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On June 15, 2020, the U.S. Supreme Court issued a landmark ruling declaring that Title VII of the Civil Rights Act of 1964 unequivocally applies to homosexual and transgender workers. Although about half of the states in the U.S. have laws protecting the rights of LGBTQ citizens in the workplace, this historic decision clarifies that discrimination on the basis of sexual orientation is prohibited nationwide. Title VII of the Civil Rights Act of 1964 protects workers against discrimination during any phase of the employment process, including recruiting, hiring, training, assigning tasks, compensation, promotion, and firing.

According to the Williams Institute of the UCLA School of Law, more than eight million Americans in the workforce identity as LGBTQ, and nearly four million of them live in states that lack laws to protect them from workplace discrimination.

In writing the 6-3 opinion, Justice Neil Gorsuch noted that sex plays a necessary role in the decision, which is exactly what Title VII forbids. In Title VII of the Civil Rights Act of 1964, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.

Cases Considered by the Court

 The Supreme Court ruling considered several cases brought to the U.S. Court of Appeals for the Eleventh Circuit where employers admitted to firing employees because they were homosexual or transgender. These cases included:

  • Bostock v. Clayton, County, Georgia: Gerald Bostock worked as a child welfare advocate. Under his leadership, the county won national awards for its accomplishments. After Mr. Bostock began participating in a gay recreational softball league, he was fired for conduct “unbecoming” to a county employee.
  • Altitude Express, Inc. v. Zarda: Donald Zarda was employed by Altitude Express for several seasons as a skydiving instructor. He was fired several days after mentioning at work that he was gay.
  • G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission: Aimee Stephens worked at Harris Funeral Homes Inc. in Michigan. While undergoing treatment for depression, he was diagnosed with gender dysphoria and began exploring the prospect of transitioning. After six years of service with the funeral home, Stephens wrote a letter to management explaining that she planned to live and work full-time as a woman. She was subsequently fired.

Each employee filed a lawsuit alleging unlawful discrimination on the basis of sex under Title VII. The employers in each of these cases did not attempt to deny that they fired these employees for being gay or transgender. Rather, they contended that Title VII does not apply to discrimination on the basis of being homosexual or transgender. Also, the employers argued that the legislators who drafted Title VII would not have expected the law to prohibit discrimination against homosexual or transgender persons.

In response, Justice Gorsuch wrote that while those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result, Title VII has been expanded in the past to protect the rights of pregnant employees or men subjected to harassment at work. Therefore, Title VII can be interpreted so as to protect the rights of LGBTQ employees.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Defend the Rights of LGBTQ Workers

The Supreme Court has made it illegal to discriminate against LGBTQ employees in the workplace. If you or someone you know endured discrimination at work during any phase of employment, contact the experienced Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We will defend your rights to the fullest extent of the law. Call us at 215-574-0600 or fill out our contact form to schedule an initial consultation. We represent workers throughout Pennsylvania and New Jersey from our Philadelphia office.

Philadelphia Employers Banned from Requesting Salary History from Applicants

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According to a recent federal appeals court ruling, employers in Philadelphia may no longer request salary history information from job applicants. The U.S. Court of Appeals for the Third Circuit partially reversed a lower court’s 2018 decision that allowed employers to ask about salary history but prohibited them from using the information to determine an employee’s new salary.

In 2017, the Greater Philadelphia Chamber of Commerce sued the city, arguing that the Philadelphia law violated the employer’s First Amendment rights. Mayor Jim Kenney, and others who supported the law, said that the practice of requesting a salary history perpetuates the cycle of discrimination resulting in women with lower salaries than men. In fact, studies show that women make only 80 cents for every dollar that a man earns, despite the fact that women make up close to 50 percent of the workforce and are the sole or co-breadwinner in half of families in this country who have children. For women of color, this gap is even higher. They are hopeful that this recent ruling will put an end to that cycle.

Law Expected to be Enforced Soon

It is unclear when city officials will begin enforcing the new law, but it will likely be soon, as they have been given the green light to do so. The law will be enforced by the Philadelphia Commission on Human Relations, and employers who violate the law may face steep fines and litigation. The Chamber of Commerce claims that the law makes it more difficult for companies to determine what a competitive salary offer should be, particularly in such a tight labor market. Although the Chamber can petition the U.S. Supreme Court to review the decision, it is unlikely that it will be overturned.

According to the Philadelphia Commission on Human Relations, Philadelphia has implemented a number of work-protection legislation in recent years. This latest law is about equality and protecting people’s rights. People have argued that the law will not solve the problem of wage inequality, said a former city councilman, but there is no way to know that unless the law is given a chance.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Assist Clients with Employment Issues

 If a prospective employer requested to see your salary history during the interview process, this is a violation of your rights. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have a proven track record in reaching successful outcomes for clients who have a range of employment issues, including those related to fair compensation. To schedule an initial consultation, call us today at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

What is the Department of Labor’s Final Rule on Joint Employer Status?

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In an effort to avoid liability issues, the U.S. Department of Labor (“DOL”) recently updated its joint labor employment status under the Fair Labor Standards Act (“FLSA”). The DOL published its Final Rule in the Federal Register on January 16, 2020, and it was expected to be effective on March 6th. Prior to the ruling, the tests used by the circuit courts to determine joint employer status were inconsistent and confusing, and they often resulted in increased litigation costs for employers. The Final Rule is considered a positive development for employees and the business community.

Highlights of the Final Rule

The FLSA states that an employee of one company may be considered a joint employee of a second company, depending on how much control the employer of the second business has over the employee’s work. As a result, the joint employer may be held jointly liable for minimum wage or overtime payments to non-exempt workers. The Final Rule uses a four-factor balancing test to determine joint employer status in situations in which another employer benefits from an employee’s work. To determine whether a second company is a joint employer, the DOL will consider the following factors:

  • The employer hires or fires the employee
  • The employer is responsible for supervising and controlling the employee’s work schedule or conditions of employment to a substantial degree
  • The employer determines the rate and method of payment
  • The employer is responsible for maintaining the worker’s employment records

The Final Rule states that joint employer status will not be based on one single factor, and the weight given to one of these factors will depend on the specific scenario. In addition, the extent to which an employee depends on a potential joint employer financially will not determine joint employer status unless other factors are involved as well. According to the DOL, the following are factors that are not relevant to determine FLSA joint employer status:

  • The potential joint employer is operating as a franchisor or using a similar business model;
  • The potential joint employer is in compliance with all legal, health, and safety obligations;
  • The potential joint employer’s contractual agreements with the employer require quality control standards to ensure consistent quality of the work, brand, or business reputation; or
  • The potential joint employer provides the employer with an employee handbook, allowing the employer to operate a “store within a store” arrangement, offering an association health plan or retirement plan, jointly participating in an apprenticeship program, or other similar business practices.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Assist Clients with Employment Status Issues

The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have a proven track record of litigating all areas of employment law. Our skilled legal team has a thorough understanding of the Final Rule and the impact it has on joint employer status. To schedule an initial consultation with one of our highly experienced employment lawyers, do not hesitate to call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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Expansion of Paycheck Protection Program Offers Help for Small Businesses

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The Paycheck Protection Program (“PPP”) initially set aside nearly $350 billion in government-backed forgivable loans to help small businesses stay afloat during the COVID-19 pandemic. The loans were made available to small businesses in operation on February 15, 2020 with fewer than 500 employees. In addition, 501(c)(3) non-profits with fewer than 500 workers and other types of organizations are also eligible. To apply, businesses must work through a bank with which they have a relationship and the bank must be a lender approved by the Small Business Administration (“SBA”).

Studies suggest that 80 percent of small businesses in America missed out on the first round of funding because the money was quickly depleted. At least $310 billion in additional funding has now been approved. However, small businesses still face hurdles in applying for the loans, as well as providing proof that they are spending it within prescribed guidelines for the loans to be forgiven.

Small Businesses Face Challenges in Obtaining PPP Loans

Some of the difficulties faced by small businesses applying for the first round of PPP loans include the following:

  • Many banks were overwhelmed by the initial demand
  • Larger banks tended to take care of their biggest clients first
  • Many small businesses did not have a prior relationship with a lending bank

In addition to allocating the additional $310 billion for PPP loans, a significant portion of that money has been set aside for smaller banks, including community-based lenders and credit unions. The goal is to reach smaller businesses, however, many of them still lack a relationship with a lender. One option is to work with a law firm that can facilitate a relationship.

Meeting PPP Loan Requirements

Some businesses applied for a loan but have not yet received the money. If you are a small business waiting for a PPP loan, do not submit a second application if you already applied. If you applied for a loan and received the money, you must meet the following requirements in order for the money to turn into a grant:

  • You must spend all of the money within eight weeks of depositing it into your business bank account
  • You must allocate 75 percent of the money to cover payroll costs
  • The money cannot be used retroactively to pay past debts

If you cannot meet these and other requirements, you will have to pay the money back within two years at one percent interest. Unfortunately, some small businesses are having difficulty meeting the 75 percent threshold because their workers chose to go on unemployment. Businesses are allowed to give their workers raises or bonuses simply to qualify for the 75 percent payroll threshold, as long as each worker makes less than $100,000 on an annualized basis.

In addition to PPP loans, the SBA also administers the Economic Injury Disaster Loan (EIDL) program. Businesses with 500 or less employees may be eligible if they can show that they were affected by a disaster, such as the COVID-19 pandemic. However, EIDL loans are not forgivable.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Small Businesses During the Pandemic

If you are a small business owner impacted by the COVID-19 pandemic and are seeking a loan, the Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. offer trusted legal guidance to help you pursue the best possible course of action. Contact us for an initial consultation by filling out our online form or call us at 215-574-0600. We assist clients throughout Pennsylvania and New Jersey from our office in Philadelphia.

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