Category: Employment Law

Can Employees Express Political Views at Work?

By anthony, 11th November 2021

Perhaps nothing can divide the office faster than bringing up political views. Political discussion can affect productivity, and it can also create a hostile work environment. Employees should be aware of common misconceptions regarding political views in the workplace.

A lot of employees may believe that the First Amendment to the U.S. Constitution guarantees freedom of speech at work. The First Amendment applies to government action, it does not limit the ability of private employers to regulate freedom of speech at work. It does not provide any constitutional right for workers to express political views at work. Therefore, there is no constitutionally protected right of free speech at work. Federal law does not protect workers from political discrimination. However, some states do protect employees from different types of political discrimination.

Under Title VII of the Civil Rights Act of 1964, employers cannot discriminate against employees because of their race, color, national origin, religion, and sex. A political discussion could be tied into one of these protected classes. For example, if a female employee participated in a women’s rights movement and is fired, but other employees can participate in movements, rallies, and protests, she may be able to prove she is being discriminated against because of her sex.

Many employers will create policies limiting the discussion of political views due to issues that could arise. Politics can involve discussions on race, sexual orientation, religion, and a litany of other issues that can polarize the workplace. Heated political discussions could result in discrimination claims, wrongful termination, or even retaliation.

Are Employees Allowed to Campaign in the Workplace?

An employer must maintain a workspace that is free of discrimination and harassment, and they can ban activities unrelated to work. An employer can prohibit employees from promoting political campaigns. This includes:

Soliciting coworkers or customers to support political causes.
Using the employer’s computer to email and engage in political discussions.
Wearing buttons, shirts, or other items of clothing with political messages.

It is important to know that employees who violate an employer’s policy may be lawfully disciplined or discharged.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Employees Subjected to Discrimination

As an employee, you should know your rights in the workplace. There are common misconceptions about expressing political views at work, however, political discrimination can link to a protected class. If you believe you were discriminated against at work, speak to our Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. today. 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.

New OSHA Emergency Temporary Standard Requiring All Employers with Over 100 Employees to Ensure All Workers are Vaccinated or Tested Weekly

By , 9th November 2021

Fifth Circuit Issues Stay on New OSHA Emergency Temporary Standard Requiring All Employers with Over 100 Employees to Ensure All Workers are Vaccinated or Tested Weekly

On Saturday November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a stay freezing the November 4, 2021 Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”), which requires all private employers with over 100 employees to ensure, by January 4, 2022, that their employees are 1) either fully vaccinated, unless the employee qualifies for a religious or medical exemption, or 2) wear a mask and participate in at least once-weekly testing. While employers are not required to pay for testing under the ETS, they would be required to provide up to four hours of paid time to receive each primary dose (two doses for Pfizer and Moderna, one dose for Johnson & Johnson), as well as provide reasonable paid time for sick leave for side effects.

The ETS is currently being challenged in courts around the country. However, should the Biden Administration prevail and the stay is lifted, private companies with 100+ employees will be required to comply with the ETS, as described below, or risk financial repercussions.

Covered Employers

The ETS applies to single corporate entities with multiple locations, adding all employees at those locations together to determine if an employer meets the 100-employee threshold. Employers must count both full-time and part-time employees in its calculation, regardless if they work remotely or in the office. While remote workers are counted for purposes of determining the employee threshold, remote workers will not be subject to vaccination and testing requirements. While the ETS is in effect, covered employers that drop below the 100-employee threshold will remain covered, and be required to comply with the ETS.

The ETS does not apply to traditional franchisor-franchisee relationships, as each franchise is considered a separate entity and only that franchise’s employees are counted. Further, the ETS does not apply to staffing agencies or work sites with multiple employers.

Compliance Requirements

Covered employers must obtain proof of their employees’ vaccinations via healthcare provider or pharmacy records, Covid-19 Vaccination Record Cards; medical records, immunization records, or any other official documentation verifying the employee’s vaccination information. Employers must keep their employees’ vaccination status records available within four hours of a request from OSHA.

By December 5, 2021, covered employers must: 1) provide a written vaccination policy to its employees, which may be communicated through team meetings, email, written flyers, or other forms of communication, 2) determine the vaccination status of each employee, provide paid time off for vaccination and recovery, 3) ensure employees with positive tests are removed from the workforce and follow CDC quarantine requirements before they are allowed back at the worksite, 4) ensure that unvaccinated employees are masked when indoors, 5) report work-related COVID-19 fatalities and in-patient hospitalizations as required by the ETS, and prepare a roster of their employees’ vaccination status if requested by OSHA.

If an employer does not comply with the ETS, it can face up to $14,000 per violation.

If you are a large business, and you have questions regarding the new Emergency Temporary Standard, our skilled Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help. For more information and to schedule an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

How can I Avoid Legal Issues When Firing Employees?

By michele, 22nd October 2021

An employer cannot terminate a worker for unjust reasons. That type of termination is unlawful, and some examples of wrongful termination include:

Whistleblowing.
Complaints about violations of employee rights.
Testifying against the company or another employee in legal suits.
Participating in lawful union activities.
Filing claims for Workers’ Compensation or charges of unfair labor practices.
Wage garnishments in order to pay debts.

Employers cannot fire an employee in a manner that violates federal or state laws. As an employer, understanding both state and federal laws regarding employee termination will help you avoid a wrongful termination suit. Anyone in your company who is in a position to make termination decisions should have an idea of state and federal laws so they can avoid firing someone in an unjust manner.

For example you cannot fire an employee through retaliation, and you cannot violate state and federal discrimination laws, employment agreements, and you must be in accordance with the Family and Medical Leave Act (FMLA).

When can I Fire an Employee?

You can fire an employee for numerous reasons, and some of the most common include:

Incompetence
Repeated unexcused absences or tardiness
Sexual harassment
Verbal abuse
Physical violence
Falsification of records
Theft

It is important to note that an employer has the right to fire an employee for any legal reason. At-will employment laws differ from state to state, however, the laws are usually similar.

Keep Employee Performance Documents

Running a business involves many decisions, and those include hiring and firing employees. Often, these decisions are made due to performance issues, and a great way to minimize legal issues is to document how that employee performs.

Documentation should provide detailed information of incidents and any employee write-ups for disciplinary issues. Also, customer complaints and time cards can help give you the credence that you need when it comes to justifiably firing an employee.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Advocate for Employers Fending Off a Wrongful Termination Suit

When you own a company, the prospect that you will one day have a disgruntled employee is high. In this case, you will need our skilled Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. to help you build a case. 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.

Am I Prohibited from Discussing Salary?

By , 17th September 2021

Salary might be one of the most popular topics of workplace speculation. While an employer may suggest employees not talk about salary or have a policy to prohibit them from doing so, the law actually protects an employee’s right to discuss their wages. The National Labor Relations Act (NLRA) states that employers cannot ban employees from discussing salary and working conditions. The NLRA was initially drafted regarding labor unions and organizing. The National Labor Relations Board (NLRB) argued that not allowing employees to organize and discuss workplace issues would give employers an unfair edge in bargaining.

Employees can discuss salary among themselves, and an employer cannot discharge or discriminate against employees who do. It is important to note that the law does not guarantee an employee access to salary information. Only that the employee can reveal their salary. For example, if an employee approaches Human Resources (HR) and demands to know the salary of a colleague, HR does not have to release this information. The employee can only find out the salary from their colleague directly.

An employer can ask an employee to sign a confidentiality or non-disclosure agreement (NDA). An NDA generally prohibits discussion or sharing of the company’s trade secrets, marketing strategies, sales, and other information. However, an NDA cannot prohibit the discussion of salary under the NLRA.

Why Discuss Salary at Work?

While most HR people would not advocate for employees discussing salary, there may be occasions where it is helpful. For example, suppose an employee feels they are significantly underpaid compared to a co-worker doing identical work. In that case, it may be beneficial to discuss salary among a few co-workers in the same job. This scenario could include a female worker who wants to ensure they are paid the same as a male in the same position.

A salary discussion might also be beneficial if many people in the company or a certain department believe they are being underpaid versus market rates. There are many resources employees can use to check average salaries in their geographic location or industry. If a group of employees finds they are being underpaid, they could have the leverage to demand a pay raise across the board.

Why Not Discuss Salary at Work?

There also are many good reasons not to discuss salary at work. Most of these have to do with employee morale. It is easy for someone to feel resentful or jealous of a colleague’s salary. Workplace gossip about a salary could also lead to reduced productivity and diminished teamwork.

Discussing salary could also make HR or a person’s manager feel differently toward the employee. Although management cannot fire someone for discussing salary, they can keep it in the back of their minds at performance reviews or promotion time. Additionally, a worker who makes more than anyone in the department may find themselves the target of resentment or other harmful behavior.

Sharing Salary Information

If there are valid reasons to discuss salary, do so carefully. Talk with only colleagues and co-workers that are trustworthy. Also, make everyone involved agree to confidentiality. Never discuss salary during working hours. Wait until a break or after working hours because the discussion could be risky, and it is important not to waste company time.

What Should I Do if I am Underpaid?

If, after research and discussion, an employee finds they are underpaid, they have certain rights. Their first right is to approach their manager or the HR department, armed with facts and data that show the underpayment. If the company will not budge on salary, the employee can always speak to a lawyer for legal counsel.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Protect Workers’ Rights

Employees have rights under the law, including fair payment. If you feel your rights have been violated, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We help employees get fair and just treatment in the workplace. For an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Should I be Paid for My Summer Internship?

By , 16th June 2021

Internships are almost always a win-win. Employers get needed help and potential future hires, while the intern gets valuable work experience that looks great on a resume. It may not be common knowledge that legal guidelines stipulate whether an internship must be paid or unpaid, but there are. Therefore, anyone considering an internship should know if their position qualifies for a paycheck.

After years of study of internships, the U.S. Department of Labor realized that many employers take advantage of interns by not paying them. While interns often volunteer to work for free, they should not do this if they legally should be paid. According to guidelines under the federal Fair Labor Standards Act (FLSA):

Interns in a qualifying paid position must earn at least the federal minimum wage for internships in the for-profit or private sector.
They also must be paid overtime.

What Criteria Do Interns Have to Meet to be Paid?

The FLSA specifies criteria to determine whether the intern is a trainee who does not need to be paid or an employee that must be paid at least the federal minimum wage:

Intern does not replace regular employees but works under close supervision of existing staff.
Employer and intern both clearly understand there is no expectation of compensation during or at the end of the internship.
Internship is similar to training that would be given in an educational environment despite occurring in the employer’s facility.
Internship accommodates the intern’s schedule and commitments, such as school attendance.
Internship benefits the intern and their formal education; it ties in coursework or provides academic credit.
Internship is limited to the actual time the intern is provided beneficial learning.

If the internship meets all the criteria above, the FLSA does not consider it to be an employment relationship. Employers are then exempt from paying the minimum wage and overtime. While the criteria are open to interpretation, employers who do not want to pay their interns must provide skills and opportunities that truly benefit them.

Moral and Ethical Considerations

While the law provides legal guidelines regarding payment for internships, there are moral and ethical considerations too. Many studies show that paid interns are loyal and happy interns. They are often more enthusiastic, often hoping to be hired. Interns will also feel valuable if they are earning a paycheck and be more willing to contribute. Additionally, paying is good for the employer as well; they can set the intern’s schedule and the number of work hours.

Ethical considerations come into play as well. Employers must consider the intern’s responsibilities. Are they getting an authentic educational experience with a valuable mentor-mentee relationship, or are they making copies and getting coffee? If the intern’s work contributes in any way to the company’s successful operations, they should be paid.

An employer who expects an intern to work many hours for free or does not give them a valuable educational experience should not hire the intern to begin with. Interns should not be considered free labor. Instead, they should be regarded as contributing members of a work team that deserve to be paid for their time and effort.

The FLSA guidelines regarding internships are not easily enforced, and some employers are not even aware of them. Many interns are willing to work for free. However, when they do, the employer has the moral responsibility to give them a significant learning and skill-building experience that will benefit them in their future careers.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Protect Interns’ Rights to Fair Pay

Interns and employees have rights under the law. Wage and hour issues are common among those who contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We have helped numerous employees get fair and just treatment in the workplace. For an initial consultation about your case, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

What are the Differences Between Non-Compete and Non-Solicitation Agreements?

By , 9th June 2021

Every business owner, executive, manager, and employee has heard of or even signed a non-solicitation or non-compete agreement. These documents are common pieces of employment agreements and offer letters. Understanding the differences between these agreements and their enforceability makes achieving business goals easier.

Both of these agreements are restrictive covenants. That means each party agrees to be restricted by the terms contained in the agreement or clauses of the contract. However, just because the parties agree, does not mean a court will automatically uphold the restrictions in the document.

Non-Compete Agreements

As a business, a non-compete is often the more difficult of the two restrictive covenants to enforce. This is the case because the business has a high burden to prove unfair competition. To enforce a non-compete, the company must show that a former employee has confidential information about the business interests, and the company has restricted the employee from working for a competitor for a reasonable period of time and in a reasonable geographic area. Absent this proof by the company, enforcing a non-compete presents difficulty. Ultimately, it is up to a court to decide the reasonableness of the restrictions placed on the former employee.

That does not mean all hope is lost. In many cases, a court will modify the non-compete to be less restrictive to the former employee while still protecting legitimate business interests. An important point to note about non-compete agreements and clauses is that they should only apply to employees. Any business that attempts to use a non-compete with an independent contractor may face an audit and be subject to fines and penalties from the government for employee misclassification.

Non-Solicitation Agreements

A non-solicitation agreement restricts a former employee in a different way. They cannot solicit any existing, prospective, and sometimes former clients to come work with them at their new company. While easier to enforce than a non-compete, there are still challenges.

The biggest of these enforcement challenges is that the business must prove that a former employee solicited an existing, prospective, or former client to leave. Businesses are not often aware of the specific reason why a client leaves, making enforcement difficult but not impossible.

Possible Clauses

To help businesses understand the distinction between these restrictive covenants, there are key pieces that may help a company enforce these clauses. The exact needs of every business will vary. For that reason, and to have a complete understanding and review of a company’s restrictive covenants, it is advisable to speak with a skilled business lawyer.

For non-compete terms::

Restrict the former employee to working in a similar position with a client or competitor.
Only restrict the former employee within a geographic area around the company’s office.
Lift restrictions after a reasonable period of time, such as two years.

For non-solicitation terms:

Restrict the former employee from soliciting existing and potential clients and current employees.
Limit the restriction to no more than two years.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Non-Compete and Non-Solicit Agreements

If your business is facing non-compliance from current or former employees, or if you want to understand whether your restrictive covenants are enforceable, we can help. Your business is important to you, and you need guidance you can trust. The Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. can help you with your business needs. Contact us online or call us at 215-574-0600 for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Can Employers Ask Job Applicants About Salary History?

By anthony, 20th May 2021

Applying for a job can be a long and difficult process. Many job seekers will respond to dozens of job posts weekly, hoping one will call back and offer an interview. After weeks and possibly months of waiting, one sticking point can ruin chances: salary expectations.

While most employers are legally allowed to ask candidates about their past salaries, there is a growing movement to stop this uncomfortable practice. Many states have passed laws to bar the question. A study published last year by researchers at Boston University and Boston University School of Law has shown that this shift has helped black and female workers, often suffering from pay gaps, to garner more compensation.

This debate has become increasingly important, as millions wait to re-enter the workforce following massive layoffs from the Coronavirus (COVID-19) pandemic. Many are leaving low-paying jobs in customer service and trying to find more lucrative positions. As companies compete to fill these roles, asking about salary history will face increased scrutiny.

Where Have Legislators Banned Salary History Questions?

Since 2017, there has been a trend of legislatures prohibiting or dissuading employers from asking job applicants to disclose their previous salaries. Some of these states include:

Alabama
California
Colorado
Connecticut
Delaware
District of Columbia
Georgia
Illinois
Louisiana
Maine
Maryland
Massachusetts
New Jersey
New York
North Carolina
Oregon
Pennsylvania
Virginia

In addition to some form of statewide bans, cities like Philadelphia, New Orleans, Salt Lake City, and Louisville have enacted local laws to keep employers from asking about salary history. It is recommended that job applicants inform themselves about what the laws are when applying in certain places, especially when considering moving to a different state or metro market.

Why Do Salary Histories Matter?

Employers have used salary histories in the past to discriminate and exclude certain candidates and potentially save money by offering less salary than what is budgeted. This practice has also been cited as a major factor in maintaining and furthering the pay gap between races and genders. Disclosing a below-market wage would likely encourage future employers to continue undervaluing a worker, offering a less significant pay increase with a new position.

What can Applicants Do to Avoid Salary History Questions?

There are a few ways to work around the question if applicants are uncomfortable. When responding to an online post, leave the entry blank if not required, or enter $0 or $1 if an entry is needed. During an interview, there are tactful ways to avoid answering or politely refusing. If the position is in an area where the question is banned, it should not be asked at all.

More job postings now include salary ranges. A great way to avoid the question is to know what is expected in the industry or position. Noting what someone at a rival company makes can help when salary is not disclosed. Applicants are encouraged to ask employers during the interview process about salary if not provided upfront.

If disclosing salary voluntarily, do so if comfortable. If moving to a larger market with a higher cost of living, it might help to determine if the position offers fair value. Also, do not lie about previous salaries. Employers can usually spot that easily and will likely dismiss dishonest applicants. For further help, it is important to speak to a lawyer.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Employment-Based Predicaments

Job seekers have enough to worry about without dealing with illegal and underhanded practices by potential employers. Sometimes, it takes a skilled advocate to help resolve issues. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have the experience to fight for your rights. Call us at 215-574-0600 or contact us online for an initial consultation. Based in Philadelphia, we proudly serve clients throughout Pennsylvania and New Jersey.