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James R. Redeker
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Just in case you have not noticed, the Labor Board has created a popular, new protected class – workplace complainers. Complainers may be a cancer in your workforce, but for the very reason they are a cancer, they are protected by the National Labor Relations Act. All that is necessary is that their complaint concerns some term or condition of their employment ( including how they are treated by their supervisor) and a “like” by another employee.

Whether it’s being discharged allegedly in retaliation for complaining or for violating a newly-found unlawful rule, such as “you must deal respectfully with all employees,” parasitic plaintiff’s lawyers are forsaking the civil rights agencies and finding a new way to extort undeserved severance pay from employers, the Labor Board. The ppls (predatory/parasitic plaintiff’s lawyers) don’t have to prove anything, just allege retaliation or unlawfulness of a rule in a way that is based on credibility and the Labor Board will accommodate by filing a complaint, taking over the prosecution and scheduling a trial within three months. Bingo!

Labor Board trials before an Administrative Law Judge are real trials with rules of evidence, witnesses, cross examination, transcripts, briefs and all of the other trappings. Most of all, they are expensive. A single employee Labor Board trial can easily cost an employer $50,000, let alone the cost of an appeal to an unsympathetic and biased Board.   It is no wonder why a ppl will file to get a quick hit – it’s too expensive for most employers to fight. It’s prudent business to settle.

If for no other reason, supervisors must be trained how to deal with the complainers and create a document trail that will successfully combat “credibility” cases.. HR professionals must take seriously the Board’s decisions that traditional codes of conduct and many new electronic communication and social media policies are unlawful. Paying attention matters. Not paying attention is expensive.

About James R. Redeker
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James R. Redeker represents both organized and unorganized companies in their personnel and labor relations. In that connection, he becomes directly involved in equal employment, wage and hour, occupational safety and health, collective bargaining, contract administration and National Labor Relations Act issues, representing companies before all enforcement agencies concerned with these matters as well as the courts.
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Jonathan A. Segal
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I am pleased to share with you a blog my colleague, Linda B. Hollinshead @lhollinshead1, and I collaborated on concerning the Pope’s visit to Philadelphia and the wage and hour issues it may cause.

We have been asked a lot of questions about the Pope’s visit to Philadelphia in terms of wage and hour and other laws. Here are the some of the questions and the general answers:

1. If we shut down for a day or two, do we have to pay exempt employees? The general answer is “yes.” However, you generally can require that the exempt employee use PTO to cover a day on which you shut down.

2. If we shut down for a day or two, do we have to pay non-exempt employees? The general answer is “no,” unless: (1) you have a policy that says you will pay; (2) there is collective bargaining agreement that obligates you to pay; or (3) the employee is paid on fluctuating work week basis. Reminder: the fluctuating work week is not recognized in Pennsylvania but it is in other states. Even if there no duty to pay, please think of employee relations since you must pay exempt employees.

3. Can you require an employee to work at home? Generally, yes. However, you don’t want to create “precedent” under the ADA to suggest that working at home is a viable option as a general rule. Document that this is “unique” situation and that allowing an employee to work at home does not mean the employee generally can perform the essential functions of his or her job at home. Additional considerations include confirming whether your workers compensation coverage covers work from home arrangements mandated by the employer and that you have sufficient IT support to handle system demand and the protection of your organization’s confidential information. The benefit of a few hours working from home may be outweighed by the risk of a security breach if employees send files to their home computers in order to have access Lots of nuances that go beyond this brief summary.

4. Can we make employees sleep on our premises or in the City knowing that they may not be able to get in and out of Philadelphia each day? The answer is generally “yes.” There may be legal exceptions, such as reasonable accommodations for medical reason. There also may be human reasons independent of the law, such as a single parent with no one else to take care of child.

5. Do you have to pay the non-exempt employee if you require that he or she stays on your premises? Under federal law, the answer is “yes.” However, there are limited exceptions under federal law for sleeping and certain other time. Please note there are not comparable exceptions under Pennsylvania law. General rule in Pennsylvania: you must pay for the entire time you require an employee to be on your premises. So be thoughtful on how much time you require a non-exempt to be on your premises and make clear freedom to do what and where they want outside of designated sleeping hours.

6. Do I have to pay non-exempt employees if I offer them the option to stay at a hotel in or near town at company’s pay but it is not a requirement? The answer should be “no” if you are clear that this is being offered solely for the convenience of the employee and there are no restrictions on when or where the employee must be at any time.

7. Do I have to pay non-exempt employees if I mandate that they stay at a hotel in or near town? The answer here is less clear. Although not absolute, a strong argument can be made that you have to pay only “extra” commute time (that is, checking in and out of hotel on first and last day). No matter what: make clear the employee is free to come and go and do what he or she wants, except for a limited number of sleeping hours.

8. What about union employees? Can we change the rules under the collective bargaining agreement (“CBA’) during the Pope’s visit? Where possible, try to work with the union as a business partner. If not, you will need to assess whether you can make changes to the CBA without the union’s agreement. Of course, every change differs but the answer is generally that, if CBA is on point, you cannot act inconsistently with it without union’s agreement.

9. What if an employee objects for religious reasons to working on any event you may plan for the celebration? Now, you have a different version of, the “Kentucky clerk.” You may need to consider allowing the employee to opt out due to sincerely held religious beliefs. But what if the employee’s job is special events? In other words, can an employee opt out of an aspect of the employee’s essential function? Answer: not entirely clear. It may depend on frequency. Compare the one-time nature of this event with relatively-more frequency of same-sex marriages in Kentucky.

While we hope this is of some help, we want to make clear that this is not legal advice pertaining to specific factual situations.

Follow @Jonathan_HR_Law on Twitter for more important employment law updates.

 

About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .