Franchise Businesses Beware: The NLRB in Browning-Ferris Expands the Joint Employer Doctrine

September 1, 2015

By James B. Shrimp, Esq.

You might think it’s easy to figure out who’s an employer and who’s an employee, but the definitions are changing and things are getting complex. Last week, the National Labor Relations Board (NLRB) changed the definition of a “joint employer,” a decision that will likely cause widespread impacts in the franchising, subcontracting and temporary staffing industries.joint employer

The joint employment doctrine is a legal concept utilized by several Federal agencies to determine what “employers” are legally responsible to employees for certain statutory obligations – such as collective bargaining, payment of overtime, workplace safety and employment conduct (discrimination, harassment and retaliation).

Last week,  in a case involving Browning-Ferris Industries, the NLRB expanded the application of the joint employer doctrine.  For the last thirty (30) years the NLRB has only held employers responsible for obligations under the National Labor Relations Act if the employers had direct control over employees.  More specifically, under the prior standard, the employer had to have direct control over the employees’ pay, schedule, discipline and termination.

In the Browning-Ferris decision, the NLRB expanded this standard to find that two or more entities are joint employers of a single workforce if:

  • they are both employers within the meaning of the common law,
  • they share or codetermine the essential terms and conditions of employment.

Moving forward, the NLRB will consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary (or whether it has reserved the authority to do so) when it evaluates whether the employer has sufficient control over employees to qualify as a joint employer. These terms includes wages and hours, the size of the workforce, scheduling, seniority and overtime and determining the manner and method of work performance.

In its decision to expand the doctrine, the NLRB stated that the expanded standard is designed “to better effectuate the purposes of the [National Labor Relations] Act in the current economic landscape.” The NLRB describes the current economic landscape as one becoming significantly impacted by temporary, subcontracted employment; as of August 2014, 2,870,000 of the America’s workers were employed through temporary agencies.  The NLRB concluded that its previous joint employer doctrine had failed to keep pace with changes in the workplace and economic circumstances.

Understanding the Browning-Ferris case

Browning-Ferris Industries (“BFI”) owns and operates a recycling facility.  BFI has 60 direct employees.  BFI entered into a temporary labor services agreement with Leadpoint for Leadpoint to provide approximately 150 additional employees to work at the recycling facility.  The Leadpoint employees are screened, hired, disciplined and supervised by Leadpoint employees.  However, the temporary labor services agreement gave BFI the ability to “step in” on matters of hiring, discipline, scheduling and wages.  As a result, the NLRB found that BFI was a joint employer of both its own employees and Leadpoint’s employees, and therefore BFI will have to collectively bargain with Leadpoint’s employees, if the employees vote to form a union.

How it applies to franchises

As for franchises, a case currently before the NLRB is involving 291 charges against McDonalds’ franchises and whether corporate locations and franchisees are engaging in “discriminatory discipline, reduction in hours, discharges and other coercive conduct directed at employees in response to union and protected concerted activity.”

If the NLRB determines that McDonalds corporate maintains indirect control over the employees, it could order that McDonalds corporate is responsible for the actions of its franchisees. It may even require McDonalds to collectively bargain with employees of local McDonalds franchisees.

Moreover, should the expanded joint employer doctrine be adopted by other Federal agencies, such as the Fair Labor Standards Agency, the Occupational Health and Safety Administration or the Equal Employment Opportunity Commission, franchisors could become responsible for safety issues, overtime issues, or employment discrimination by the franchisee.  This would fundamentally alter the design and advantages of the franchise system.  The International Franchise Association (“IFA”), which represents the franchise industry, believes there will be a significant adverse impact on the franchise system. The IFA released a statement saying “the [NLRB]’s tortured analysis will undoubtedly be met with skepticism and will be rejected by local franchise owners, legislators, and ultimately, the courts.”

There is no doubt that the Browning-Ferris decision will be subject to court review and will likely be heard in the Supreme Court in the next couple of years.  In the meantime, however, if you are in a franchise business (franchisor or franchisee) or utilize temporary staffing, it is worth reviewing your contracts to determine whether revisions need to be made to the relationship to protect against a finding of joint employer.
For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

How to Prevent Back to School from Bringing you back to Court

August 28, 2015By Melissa M. Boyd, Esq.

I developed this post as one in a series to help parents and their attorneys plan for the slew of legal co-parenting complications the summer brings. Without the structure of school, even the tightest co-parenting plans are challenged.

Whether an uncoupling was friendly or not, it takes a concentrated effort to find what works for each couple to co-parent successfully. Though every situation is different, and there is no recipe to guarantee positive family outcomes, this is practical advice for how to handle the legal aspects of commonly faced issues…

shared custody agreement

Every year, around the beginning of August, we are all hit with the same wave of shock when we see the first back to school commercials on TV. As the students dance across the screen in their new sneakers and outfits, parents are reminded of their long to-do lists to get their kids ready for another school year. For divorced and single parents, this time of year may present new challenges.

Some parents may use the summer break to consider sending their child to a new school. If a parent has sole legal custody, he or she can make major decisions, such as what school the child attends, without consulting the other parent. For those with shared legal custody, the school the child attends may have been outlined in the shared custody agreement. Whether it was or was not, parents who share legal custody have to agree on the school or, perhaps, seek court intervention. Mediation or arbitration may be an ideal alternative to seeking judicial intervention. In cases where alternative dispute resolution is not available, the court will decide. Understand that the longer you wait to seek the court’s assistance regarding the school choice, especially if you wait until the end of summer, the less likely the court will have dates to make a decision in advance of the new school year. Whenever possible, the court will choose the option that is best for the child. Parents should gather as much information about the school as they can to support their decision.

Once you’ve decided which school your child will attend, it’s time to let those commercials sway you into back to school shopping. But for parents with shared custody, who pays for the supplies? This can get expensive, so if your custody agreement does not reach this level of minutia, it’s okay to ask your co-parent to chip in. Remember to purchase enough supplies and distribute them evenly so the child will be able to complete their homework in either parent’s home.

Before waving goodbye to your child on the first day, stop in and introduce yourself to his or her new teacher. Be honest with the teacher and let them in on your situation at home. You can make the teacher aware if you were recently divorced, if your child is still emotionally affected by it, and if there is any difficulty co-parenting without giving away too much personal information. This communication helps your teacher better understand your child, and you.

Soon enough, your child will want to join an after school activity. This means new pick up and drop off schedules and sharing the sidelines or auditorium with your co-parent. If you and your co-parent can’t communicate regularly, or be in the same location, work out a schedule right away so you can both be supportive and your child is not stuck in the middle.

Just when you feel back in the swing of things, a school holiday will roll around. This begs the question, which parent gets to spend breaks with the child or children? This too should be outlined in your custody agreement. If it’s not, if it’s vague, or if personal schedules are causing changes, its best to try to communicate effectively with your co-parent to resolve. Try to have all communication in advance so last minute changes do not lead to increased tension.

Navigating the school year productively helps your child adjust to life with separated parents. It may seem far away now, but just like those back to school commercials, the bathing suit ads will sneak up on you. Before you know it, you will have successfully survived another school year through smart planning, effective communication and thoughtful consideration.

Working at Amazon: A Demanding Workplace or Just Normal?

August 25, 2015

By James B. Shrimp, Esq.

Many of you likely had the opportunity to review the New York Times expose on employment attitudes and conditions within Amazon. It makes a good summer beach read. The article paints a picture of aggressive and uncaring management, employer sanctioned back-biting among coworkers, long hours, few vacations and a lot of time away from family. White collar workers at other computer-based companies, such as Netflix, Facebook, Microsoft and Google are likely shocked. However, blue collar workers in America, that work one or two jobs, totaling 60+ hours per week away from their families and who don’t get the chance to take a vacation, are unmoved and not crying in their milk. The real question is whether there is anything abnormal or unlawful about what is going on at Amazon?

Working at Amazon: A Demanding Workplace or Just Normal?

Is it Abnormal?

Before deciding to never work for Amazon or purchase any products from Amazon, it makes sense to take a moment to look at the article from a distance. The Times states that it interviewed approximately 100 individuals for the article and there are about 20 individuals identified in the article that have had issues with management. Let’s presume for sake of argument that the individuals the Times spoke to represent one-half of one percent of those employees at Amazon that have issues with management – that would mean a total of 4,000 employees have issues with Amazon management. Amazon has a total of 180,000 employees. Therefore, the 4,000 disgruntled employees equal 2.2 percent of Amazon’s workforce. With that said, would anyone be surprised if a workforce of fifty had one disgruntled worker, or a workforce of 1,000 had 22 disgruntled workers?

Admittedly, my statistics are unscientific and of course everyone wants to work at a place where there is no discord. But if there is discord caused by unfair treatment the employee has the freedom to leave and find another job. Importantly, the Times article does not say these employees are underpaid, in fact, the article infers the opposite. The next question is whether Amazon’s conduct is lawful.

Is Amazon’s Conduct Unlawful?

The Times interviewed local employment lawyers in the Seattle area (where Amazon is headquartered) and those lawyers stated that for the most part what Amazon is doing may be unfair, but it is not unlawful. There were some circumstances within the article regarding the application of Family and Medical Leave and the management-sanctioned employee versus employee “rat-out” line that concern me as a lawyer that represents employers. However, there was nothing in these employees’ stories that made me conclude with certainty that something unlawful is occurring.

Employees may think it’s unfair, but there is nothing per se unlawful about requiring employees to work long hours and to judge those who don’t harshly. Employees may think it’s unfair, but there is nothing per se unlawful about requiring employees to log-in during vacation. Employees may think it’s unfair, but there is nothing per se unlawful about asking employees to report poor performance by coworkers (although in my opinion this is terrible for morale). Employees may think it’s unfair, but there is nothing per se unlawful about memorizing 14 leadership principals and punishing those who don’t. As long as Amazon is complying with wage and hour and discrimination statutes the employee must decide whether to stay at Amazon or leave.

Conclusions

The Times positioned its article on Amazon as whether Amazon’s experiment to push white collar workers to the brink will succeed or fail. The Times, however, fails to recognize that there are plenty of industries and employers that push white collar workers just as far as Amazon’s employees. Many doctors, lawyers, stockbrokers and IT professionals work 60 plus hours per week, are often away from family and have limited vacations. Amazon’s “experiment” is limited to a specific sector of the American economy.

Amazon is a quasi-technology and retail company. The real question for Amazon is whether, as a technology company, it can push its white collar workers when other technology companies such as Google, Facebook and Microsoft have much more employee-friendly workplaces. For example, Netflix recently announced that it will provide one year of paid maternity leave (although Netflix has received flak for not extending that benefit to those employees in its DVD division).

If Amazon’s poor treatment of employees is real and widespread, Amazon will begin having issues hiring new employees. Jeff Bezos, CEO of Amazon, recognizes this market force, and in a response to Amazon’s employees, Mr. Bezos stated that Amazon would not tolerate the “shockingly callous management practices” described in the article. Mr. Bezos urged employees who knew of “stories like those reported” in the Times to contact him directly.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.Visit the firm’s Employment Law page here.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Why Do I Need an Operating Agreement for My LLC?

August 24, 2015

By Joel D. Rosen, Esq.

In a recent blog post, I offered guidance to emerging companies who are selecting a legal structure for their business. A common form of business structure is a limited liability company (LLC).  An LLC is an entity that combines aspects of a partnership or sole proprietorship with the limited liability of a corporation. In that post, I listed creating an operating agreement as one of the essential things you need to do when establishing an LLC. Here’s why that is so important.

Why do I need an Operating Agreement for my LLC?
Why do I need an Operating Agreement for my LLC?

An operating agreement serves as a contract binding the company’s owning members to the LLC’s business, financial and managerial duties. The operating agreement gets the member/owners to agree from the start on many of the business’ important financial and operational arrangements and typically should include:

  • Who owns what percentage of the LLC
  • What happens if a member faces a drastic life change such as death, divorce or filing for bankruptcy
  • Voting powers and managerial responsibilities
  • How the sale price of membership interests is determined
  • When someone can sell their interests and who they can sell to; and, do the other members get right of refusal
  • When and how can new members be added to the LLC
  • How LLC profits and losses will be distributed
  • How to resolve a dispute among the members

As an LLC, the operating agreement addresses various issues typically governed by the law that enables LLC’s in the jurisdiction of formation.  It is these laws that also include the provisions that  provide members with protection from personal liability for the debts of the business. The operating agreement satisfies the requirements of state laws that certain provisions of an operating agreement be in writing.  While there may be jurisdictions where a written operating agreement is not required, not putting these matters in writing at the time of start-up is a singularly bad idea.

Importantly, operating agreements serve to prevent future conflicts and disagreements about major business decisions since terms around most major functions and opportunities have already been outlined in a contract. Even if you feel as though you’ve already come to verbal agreements with co-owning members, misunderstanding may arise as years pass or complications are added.  It’s best to have terms outlined upfront.

Ultimately, operating agreements should be suited to the needs of each unique business and are created in accordance with the laws of the particular state in which the business operates.

For more information, feel free to contact Joel D. Rosen at (610) 275-0700 or by email at jrosen@highswartz.com. Visit his attorney profile here.Visit the firm’s Business Law page here.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

An Employer’s Responsibility to Returning Military Veterans

August 21, 2015

By Richard C. Sokorai, Esq.

When an employee has to take a leave from his or her job because of a military deployment, the send-off can be very moving.  Sometimes the patriotic employer will even throw a thoughtful send-off party, express how the employee will be missed and assure the employee that his job will be there when the employee gets back.

However, as time goes by, the employer’s situation may change.  Deployments can sometimes take longer than expected.  Perhaps the employer will experience a downturn in business or otherwise re-organize.  Perhaps the employer will find what was intended to be a temporary replacement for the deployed soldier, but after time due to performance or continuity, wants to keep that employee in lieu of the deployed soldier.  Patriotism aside, the employer has a business to run and these circumstances can create difficult situations upon the employee’s return from the deployment.  How is the employer to handle these difficult issues?

An Employer’s Responsibility to Returning Military Veterans
An Employer’s Responsibility to Returning Military Veterans

These situations are covered by Federal law, specifically, the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Under USERRA, employees that are called up for Reserves or National Guard duty are considered a protected class, and can’t be discriminated against based upon their military service or obligation.  There are also very strict requirements that cover the re-employment of these individuals.

So, as an employer, what are your responsibilities to that employee?

For the most part (there are exceptions not covered in this article), employers are required to re-employ workers who have been honorably discharged or who’ve satisfactorily completed their military service in the Reserves or National Guard, as long as the employee requests reinstatement in a timely manner.

Even if you have a new employee that replaced the deployed employee, one that you may like better or who you may think does a better job, you have an obligation to re-employ the returning soldier, even at the expense of terminating the replacement employee.

For employees that suffer a disabling injury while on active duty, the employer is required to reasonably accommodate the returning employee and allow him or her to perform the duties of the job they would have had had they not been called up. If that job doesn’t exist, the employer must make every reasonable effort to find a job the employee can perform that is the nearest approximation to the previous position.

If there was a reduction in force while the employee was deployed, or the job was merely temporary, and the employee would have lost their job even if they had not been deployed, the organization doesn’t have to rehire the employee.  But understand that this decision may be closely scrutinized.

It is also important to understand that when you rehire your employee, you must treat them as if they have never left.  This means that any promotions, seniority or raises that they would have received had they not been deployed, must be afforded to them upon their return.

Lastly, depending on the length of the call-up, the employee may also be exempted from Pennsylvania’s “at-will” employment doctrine, meaning they may enjoy a period of time following their deployment where they can only be discharged “for cause.”

There certain procedural and technical requirements that apply and which may modify or eliminate some or all of the above requirements.  Close consultation with your attorney prior to making any such employment decisions will offer you significant protection in navigating this legal minefield.

Most American citizens agree that those that serve in the military are vitally important to our way of life, and therefore should be protected for the sacrifice they make. Most American employers are patriotic and support their military employees, but also have competing interests, such as the protection of their business, their families and duties to shareholders. USSERA is the framework that ensures the employer makes such employment decisions with the appropriate balance.

For more information feel free to contact Rich Sokorai at (610) 275-0700 or by email at rsokorai@highswartz.com.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Suspension with Pay is Not Discrimination

August 18, 2015

By James B. Shrimp, Esq.

When an employer investigates potential wrongdoing by an employee, there are a number of potential landmines. One is the issue of how to treat the employee during the internal investigation; it’s possible the treatment of the employee could lead to liability under various employment discrimination statutes. In a decision last week, the United States Third Circuit Court of Appeals provided clarity on one common aspect of that treatment: “suspension with pay.”In the case Jones v. Southeastern Pennsylvania Transportation Authority the court was asked to determine for the first time whether a suspension with pay can be considered discrimination under Title VII. The Third Court held that, absent unusual circumstances, a suspension with pay cannot support a discrimination or hostile environment claim. The Third Circuit did not decide whether a suspension with pay could support a retaliation claim.suspension with payThe details of this caseThe plaintiff in Jones began working as an administrative assistant with SEPTA in 2001. In 2010, Jones’ supervisor suspended her with full pay after discovering apparent fraud in her timesheets, and referred the investigation to SEPTA’s office of inspector general. Within days, the plaintiff filed a complaint against the supervisor alleging that the supervisor sexually harassed and retaliated against her. She had never filed any complainst against him before.After a nearly three month investigation, SEPTA’s office of inspector general concluded that the plaintiff had in fact submitted fraudulent timesheets. SEPTA suspended her without pay, and formally terminated her approximately two months later. In March 2011, the plaintiff filed a complaint with the Pennsylvania Human Relations Commission and thereafter filed an action in Federal court.Here’s what employers need to considerSubstantive Discrimination – In order to establish a substantive discrimination claim, a plaintiff must prove that she suffered an “adverse employment action.” The Third Circuit has described an adverse employment action as “an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Based on this definition and a review of decisions from other Federal Circuit Courts of Appeal, the Third Circuit held that “a paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” To circumvent this bright line rule, a plaintiff must prove that the suspension with pay is somehow “atypical.”In Jones, the Third Circuit held that there was nothing “atypical” about the plaintiff’s suspension with pay. Notably, the plaintiff’s suspension with pay lasted three months, and therefore it can be concluded that an extended period of suspension with pay does not create an atypical situation.Hostile Environment – In hostile environment cases, even if a plaintiff establishes severe and pervasive hostile conduct, the employer can defend against such a claim if the plaintiff suffered no “tangible employment action.” The Third Circuit held that the suspension with pay is not a tangible employment action, which is akin to adverse employment action, and therefore the plaintiff in Jones could not bring a hostile environment claim.What it means for employersThe Third Circuit has provided clarity for employers in Pennsylvania, New Jersey and Delaware on when, or if, to incorporate a suspension with pay into a progressive discipline policy. In Jones, the court declared that a suspension with pay cannot support a discrimination or hostile environment claim unless it is atypical. To avoid a finding of an atypical suspension with pay, I recommend that an employer specifically incorporate a suspension with pay into its progressive discipline policy and that suspension with pay be neutrally applied among protected classes.For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.Visit the firm’s Employment Law page here.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz Attorneys Selected to the Best Lawyers in America 2016

NORRISTOWN, Pa. (August 18, 2015) –The law firm of High Swartz is pleased to announce that its attorneys have been selected by their peers for inclusion in The Best Lawyers in America 2016, one of the most respected guides to the legal industry.Gilbert P. High Jr. was listed in the Municipal Law category. Mary Cushing Doherty and Melissa M. Boyd were listed in the Family Law category, and Kenneth R. Myers – in the fields of Environmental Law and Environmental Litigation. Gilbert HighGilbert P. High Jr. has more than 50 years of legal experience in the area of municipal law. He has devoted his career primarily to the practice of Municipal, Real Estate, Land Use Law and Estate Administration. He has extensive experience in legislative drafting, subdivision and land development, zoning litigation, local taxation, public contracting, and the law of easements and rights of way. He regularly speaks on issues pertaining to municipal liability, particularly regarding the maintenance of the Urban Forest, a subject on which he has lectured nationally. mary cushing dohertyMary Cushing Doherty has more than 35 years of legal experience in the area of family law. She concentrates her practice on all aspects of marital dissolution and family law issues including divorce, child support, visitation, custody, spousal support and maintenance, asset protection, complex property division, protection from abuse matters, and more.   MMBMelissa M. Boyd concentrates her practice in the area of domestic relations, including, but not limited to, divorce, pre-nuptial and post-divorce agreements, child custody and support, equitable distribution, alimony, adoptions, protection from abuse and juvenile law. She has dedicated much of her professional career to preserving the rights of children and their families.   kenneth_r_myersKenneth R. Myers practices in the areas of environmental, real estate development, administrative, and public utility law. He has represented clients in regulatory matters before city, state and federal public utility commissions and appeals courts. He has worked with major electric, gas, pipeline, telephone, water and sewer companies as well as interveners and protestants.  Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”Having hit its 100th anniversary last year, High Swartz LLP has a track record of legal excellence in representing clients in Pennsylvania, Southern New Jersey, and other Mid-Atlantic states.

The Catholic Prenup

August 17, 2015By Mary Cushing Doherty

The mere mention of the word “prenup” can incite a gasp and an inquisitive raise of the eyebrow. Requesting a prenuptial agreement is commonly viewed as planning for divorce before a marriage even begins.

But that is not the only  purpose of a prenup; rather, it can be  about creating understanding of each other’s finances. There is nothing wrong with couples discussing and documenting their financial plans. In fact, it would be foolish not to discuss it; entering the marriage with a clear understanding of each other’s financial goals, and of any bad habits, prevents surprises and possible disappointment down the road. Therefore, prenuptial agreements are not necessarily executed with an eye to an exit plan, but rather a marriage based on communication about finances to avoid problems.

Prenuptial Agreement
Prenuptial Agreement

When you consider parties who may raise an eyebrow at a prenup, the Catholic Church naturally comes to mind as they remain honorably committed to the union of marriage. However, the Church also recognizes the importance of smart marriage preparation, and it is possible – and may be wise – for Catholic couples to have a Catholic Prenup drafted by an attorney.

Wise pre-marriage planning should address how to pay off “separate debt”; clean up a poor credit history; preserve some separate money; and identify how to manage the couple’s pooled funds.  In fact, Catholic Pre-Cana classes, which are taught by married couples and attended by engaged couples, URGE couples to communicate about finances.

It is widely known that arguments about money are common in marriages. When couples meet at the end of the aisle they each may have brought with them varying levels of debt and financial responsibilities. Once those bank accounts combine, how much each spouse brings in and how much they spend, and what they spend it on, may become excruciatingly clear. Couples who don’t understand each other’s fiscal personality and haven’t discussed how to divvy up debts, bills and spending money are in for some tough conversations.

Where Pre-Cana classes can start the conversation around financial planning, a prenuptial agreement can document the decisions made without creating an expectation of divorce. The astute family lawyer can assess couples’ unique needs and concerns, including those that are religious, and take the right measures in creating pre-marital agreements. The agreements will be drafted without mentioning “divorce”, and not subject to disapproval by the Church.

This “Catholic Prenup” memorializes in writing a couple’s financial plans, addressing their liabilities and assets as they embark on their marriage commitment. A lack of communication can lead to heartache and too often a ruined marriage.  Preemptive measures like Pre-Cana classes, other counseling methods, and supporting documentation such as prenuptial agreements can help to strengthen unions, rather than set them up to fail.

To learn more, contact Mary Cushing Doherty at (610) 275-0700 or by email at mdoherty@highswartz.com. Visit her attorney profile here.

Visit the firm’s Family Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

OSHA Blames Worker Error for Pennsylvania Industrial Accident

August 10, 2015OSHA - worker errorIn 2015, the Occupational Safety and Health Administration (OSHA) concluded that the Mersen USA plant, near Pittsburgh, should pay a fine for a fatal accident that occurred last winter.The Mersen USA plant was the site of an explosion on January 30th, 2014, when a worker mistakenly placed wrong parts into an electrical oven. The parts had a flammable coating, and caused an explosion that injured a plant production supervisor and killed Arwed Ralf Uecker, the Mersen USA Bn Group’s global director of research and development. Continue reading “OSHA Blames Worker Error for Pennsylvania Industrial Accident”

Legal Marijuana Use, Disability and Employment Discipline

August 4, 2015

By James B. Shrimp, Esq.

An emerging and very hazardous area of the law for employers is the intersection of legal marijuana use, disability and employment discipline. This intersection is hazardous for employers, because it can involve employees with legitimate physical injuries/disabilities, who have a legal right to use medicinal marijuana, but whose use of marijuana would typically not be permitted by the employer.

Legal Marijuana Use, Disability and Employment Discipline

This area of law that will grow over the coming years as states that have legalized recreational marijuana and/or medicinal marijuana continue to expand. Currently, twenty-three (23) states and the District of Columbia have legalized medicinal marijuana in some form:

Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

Recreational marijuana is legal in Oregon, Washington, Colorado and Alaska. For those reading this in Pennsylvania, at the end of June 2015, Republicans in the House introduced a bill, HR1432, that would legalize medicinal marijuana use.

Truck drivers are used to navigating hazardous intersections involving blind spots, unexpected dangers and speeding cars. The key to avoiding an accident (and potential liability) is for the truck driver is to anticipate those potential hazards before they occur. Employers must similarly look ahead to navigate potential liability.

In Colorado, a truck driver (plaintiff) with Lumbar Degenerative disease utilized medicinal marijuana and was on Colorado’s medical marijuana registry. Steele v. Stallion Rockies Ltd., __ F.Supp.3d __, 2015 WL 33396417 (D.Colo. May 26, 2015). The employer maintained a drug and alcohol policy which prohibited off-the-job use of controlled substances interfering with job performance and testing positive for such substances at work.

In March of 2013, the plaintiff took a company-wide drug test and his results were indeterminate due to a malfunction of the test mechanism. The plaintiff was asked to re-take the test and prior to that test, the plaintiff informed a regional safety manager of the employer that he was a medical marijuana participant and had been since the start of his employment. The safety manager immediately terminated plaintiff’s employment for violation of the employer’s drug and alcohol policy. The plaintiff sued the employer for among other things violation of the Americans with Disabilities Act (ADA).

The court, in dismissing the plaintiff’s ADA claim, held, inter alia, that:

*          use of medical marijuana alone does not establish a disability under the ADA; and

*          an antidiscrimination law (e.g., ADA) does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.

Importantly, the plaintiff in the Steele case failed to allege that his Lumbar Degenerative disease substantially limited one or more of plaintiff’s major life activities and/or that the employer knew of the disease and its affects, or knew that plaintiff was on Colorado’s medical marijuana registry. If plaintiff had alleged one or both of those facts his case may not have been dismissed. For instance, if the employer knew of the disability or the medicinal marijuana use prior to the test and termination, the employer’s termination decision would necessarily become more complicated. With respect to a truck driver, the employer would have to consider Commercial Drivers License regulations, public safety and whether any non-driving light duty positions exist.

However, the uncertain area that exists for the employer is whether it can take action against the employee for after-hours and off-site use of marijuana if the employee has a valid prescription or if the state permits recreational use. Some states have attempted to answers those questions by statute. For instance, employers are prohibited from terminating employees for a positive drug test in Arizona, Delaware, and Minnesota, if that employee has a marijuana prescription. In other states where marijuana use is permitted either recreationally or medicinally (e.g., California, Oregon, Washington and Colorado), statute or case law permit an employer to have and implement a zero-tolerance drug use policy. Remember, however, even in states where zero-tolerance enforcement is permitted, remember that the zero-tolerance enforcement must not disproportionately target a protected class (e.g., the Equal Employment Opportunities Commission will review the application of zero-tolerance criminal background check hiring decisions).

Multi-state companies and companies located in the states listed above must closely review the case law and statutes of the states within which they operate to ensure that its drug policies and employment decisions are lawful.

For more information feel free to contact James B. Shrimp at (610) 275-0700 or by email at jshrimp@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Law page here.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.