High Swartz attorney Thomas Rees to present at the National Business Institute’s Seminar, “Employment Law: 2015 Comprehensive Guide”

88October 28, 2015

Thomas Rees will be presenting at the National Business Institute‘s Employment Law: 2015 Comprehensive Guide seminar. The seminar will discuss the human resource best practices to ensure employer compliance and mitigate potential liabilities. Mr. Rees will be speaking on the topics, “Understanding Legislative Changes: A Brief Overview” and “Monitoring Employees: Privacy Issues and Employer Risks.”

Who Should Attend

  • Attorneys
  • HR personnel
  • Accountants
  • Presidents and Vice Presidents

Course Content

  1. Understanding Legislative Changes: A Brief Overview
  2. Drafting Must-Have Policies for Today’s Handbooks
  3. Avoiding Wage and Hour Violations
  4. Managing Employee Leaves of Absence
  5. Monitoring Employees: Privacy Issues and Employer Risks
  6. Dealing with the Troubled/Troubling Employee
  7. Utilizing Alternative Dispute Resolution Tactics in Employment Matters

This seminar is a continuing legal education course and offers the following CLE credit:

  • CLE: 7.20 – NJ, 6.00 –  PA
  • Certified Payroll Professionals: 6.00
  • Human Resource Certification Institute (HRCI): 6.00
  • International Association for Continuing Education Training (IACET): 0.60
  • National Association of State Boards of Accountancy: CPE for Accountants: 7.00 *
  • Professional Achievement in Continuing Education (PACE): 7.00 *

* denotes specialty credits

To learn more about the seminar or to register, click here.

THOMAS D. REES is a partner with High Swartz LLP and heads the firm’s litigation and employment practice. He focuses his tom_webpractice primarily on employment law, where he represents employers in litigations over employment terminations; restrictive covenants, trade secrets, and other employee mobility issues; employment discrimination and sexual harassment matters; employment contract disputes; and defamation and privacy related matters. Mr. Rees also serves employers in a wide variety of non-litigation matters, including contract negotiation, preparation of policies and procedures, and hiring and termination. These services help employers to avoid and resolve disputes without resorting to the courtroom. Mr. Rees is a frequent presenter on employment law matters to various professional groups. He is a member of the Montgomery Bar Association (past chair and co-chair of the Employment Law Committee; Employment Law course planner and lecturer; past chair of the Real Estate and Land Use Planning Committee), the Pennsylvania Bar Association (past chair of the Municipal Law Section), and the Pennsylvania Bar Institute (Employment Law course planner and lecturer). Mr. Rees earned his A.B. degree, with honors, from Stanford University and his J.D. degree from the University of Pennsylvania Law School.

 

Date: November 18, 2015

Time: 9:00 a.m. – 4:30 p.m.

Location: Homewood Suites by Hilton Philadelphia-Valley Forge

681 Shannondell Boulevard

Audubon, PA 19403

 

Employer Firearms Policies in light of Bring Your Gun to Work Laws

October 27, 2015

By James B. Shrimp, Esq.

Preventing violence in the workplace is (or should be) a major concern for every employer. After all, the business is the owner’s livelihood; it and the employees who keep the business running should be carefully guarded. Workplace violence can take many forms, including physical threats, bullying, verbal and physical abuse and the use of weapons, from knifes to firearms.  In their quest to keep their workplaces and their employees safe, it’s important that employers understand what they can or cannot do when it comes to restricting firearms in the workplace.

Background on Workplace Homicides

The Bureau of Labor Statistics (“BLS”) Census of Fatal Occupational Injuries reported that from 1992 to 2012, 14,770 individuals were the victim of homicide in the workplace, an average of more than 700 individuals per year.  In 2014, there were 403 people killed in the workplace, including 307  killed by a gun.

Studies show that workplace homicides due to shootings are not limited to any specific industry or type of job.  The chart below shows that workplace homicides occurred in eleven different industries in 2010.

Workplace homicides due to shootings, by industry, 2010

The Second Amendment of the United States Constitution sets forth the Right to Bear Arms as follows: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  This article will not argue the reach of the Second Amendment, except to say that the Right to Bear Arms is subject to some regulation by the Federal government and some State governments as to where you may lawfully carry your gun.

For instance, Federal law prohibits the carrying of a gun, or having a gun in one’s car within any designated “school zone,” a United States post office, a Federal Courthouse, Federal cemeteries and commercial aircraft.  Many states also prevent an individual from carrying a gun into schools and government buildings, including courthouses.

So, the question is what, if anything, can a private employer do regarding its employees carrying guns onto its property or into the workplace?

Most employers attempt to promote a safe work environment by instituting workplace anti-violence policies. In many, if not most of these policies, employers prohibit the carrying of a firearm onto the property of the employer. Such a policy will not prevent a premeditated homicide in the workplace, where the worker will carry a weapon onto the employer’s property to immediately commit murder, but it may prevent an impulsive or heat-of-passion act of violence.  These are good policies which I recommend and include in all employee handbook/policies that I prepare.

Private employer policies preventing firearms on the property, are not recognized or enforced by any Federal law.  On the contrary, a couple dozen states have passed laws that prohibit employers from restricting employees from carrying firearms or keeping them in their automobiles.

Bring Your Gun to Work Laws

In 2004, Oklahoma passed a law that prohibited employers from preventing workers from storing firearms in their locked vehicles on the employer’s premises. Since then, at least twenty-one other states have passed similar laws, specifically Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Missouri, Mississippi, Nebraska, North Carolina, North Dakota, Tennessee, Texas, Utah and Wisconsin.  These laws are all nuanced, with some preventing discrimination against gun owners, others permitting prohibition of firearms in parking lots, so long as notices are posted, and others restricting or preventing the search of employees’ automobiles in employer parking lots.

The stated purpose behind these laws is that workplace shootings will be reduced if the potential shooter knows that other employees have firearms in their automobiles. This justification presumes several things:

  1. That the potential shooter is thinking logically.
  2. That the employee can get to his/her car during the shooting to utilize the firearm in self-defense.
  3. That the employee is trained to effectively and safely use his/her firearm in such a trying situation, without wounding or killing innocents.  Moreover, it’s hard enough for law enforcement to respond to an active shooter scene when there is one person with a gun; just imagine if five employees also had guns – who’s the bad guy and what innocents might get killed in the crossfire?

Putting aside the reasonableness of such laws, these state-by-state laws create special challenges for multi-state companies that attempt to keep their employee policies and procedures as consistent as possible.  Moreover, these laws create potential expense for employers, as some of these laws include provisions regarding parking lot safety/security and the provision of locked storage areas on the employer’s premises.

Best Practices Moving Forward

For employers in states where a Bring Your Gun to Work Law has not yet been passed, I encourage you to continue to prohibit your employees from bringing firearms onto the employer’s premises, and if they do, to make it an offense that leads to suspension or termination.

For employers in states where there is a Bring Your Gun to Work Law, I encourage you to review the law to determine what obligations you have and whether there is anything under the statute you can do to legally limit or prevent firearms in your workplace.

If you are an employer with locations in both types of states, I encourage you to have two different policies.  Although I am a believer in having one policy throughout the company whenever possible, I believe this is a time when it is not possible.

Other best practices include:

  • Conduct pre-employment criminal background checks
  • Address all “minor” conflicts in the office, as minor slights or arguments can lead to more significant incidents if not dealt with promptly and fairly
  • Implement and enforce an anti-bullying and anti-violence policy in the workplace
  • Train supervisors on conflict avoidance and the anti-bullying and anti-violence policies, as frequently as anti-discrimination training
  • If legally permissible, prohibit firearms on the employer’s premises, including any company owned vehicles, and at any employer events
  • Properly secure the employer premises, if possible, limiting entrance to one or two locations

For some employers, this may be a Constitutional Right to Bear Arms issue, and for those employers there is nothing to prevent you from permitting firearms throughout your workplace.  However, the best practice policy for safety and to minimize liability, is to prohibit firearms on the employer’s premises which, unfortunately, is itself prohibited in nearly half the country.

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

Visit the firm’s Employment Law page.

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.

When and Why you should Trademark or Copyright your Work

October 23, 2015

By Joel D. Rosen, Esq.

Every artist, entrepreneur, and small business owner reaches a place in their business or creative vision where they must ensure that they protect their logo and/or body of work. It’s important for entrepreneurs to realize when it’s time to take protective action, but it’s just as important that they understand what action to take. While they are not interchangeable, it is common to hear copyright and trademark used incorrectly without a clear understanding of their different meanings and the scope of the protections granted under the applicable laws.

Trademark and Copyright

A trademark legally registers or establishes a logo, a symbol, a word or set of words, a color, almost anything that represents a company or a product. Trademarks, unlike copyrights, are protected by both common law and statute. Its purpose is to avoid confusion as to the distributor of goods or the provider of services, and to deter others from misleading consumers about the source of a good or service. Under common law, trademark protection begins the moment it is created, while statutory protection under the Lanham Trademark Act begins once it is registered with the United States Patent and Trademark Office. While common law does provide some level of protection, a registered trademark, provides the greatest level of protection. The Trademark Act provides greater enforcement rights and greater damages for infringement. The Trademark Act, also defines the following as marks protected under the Trademark Act:

  • Service marks, which are used to distinguish the services of one person or organization from those of another person or organization.
  • Collective marks, which are used by used by organizations to identify membership.
  • Certification marks, which are used to certify the region or other origin, material, mode or manufacturing, quality, accuracy, or other characteristic of goods or services.

Essentially, a trademark helps establish your brand and protects it by preventing others from using similar distinguishable marks.

Copyrights on the other hand are governed exclusively by the Copyright Act of 1976 (the Act). The Act specifically provides that a copyright protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicates, either directly or with the aid of a machine or device.”

This includes original works such as:

  • literary works
  • musical works
  • dramatic works
  • choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audio visual works
  • sound recordings, and
  • architectural works

In each instance the work must be registered within three months of first publication. Unlike a trademark, which only protects a logo or name used by an organization, a copyright protects the content or body of work used by a business or organization in providing its services or goods from being copied without the author/owner’s authorization. In addition, unlike a trademark, a copyright is owned upon creation, but is not enforceable unless registered with the United States Copyright Office, which is a relatively simple and cost effective process. Once registered a copyright secures an author/owner’s exclusive ownership rights over a body of work. Notably, an author/owner has no legal right to enforce a copyright in the event it is infringed upon, unless it is registered.

Trademarks and copyrights protect two equally important types of tangible and intangible property. Entrepreneurs who don’t understand the difference may not get the protection they need. When the choice is unclear, an intellectual property attorney can help guide you in the right direction.

For more information about trademark and copyright law, feel free to contact Joel D. Rosen at (610) 275-0700 or by email at jrosen@highswartz.com or visit the firm’s Trademark and Copyright Law page.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. 

Full Reference or Directory Reference? That is the Question!

Providing References About Former Employees

October 15, 2015

By Thomas D. Rees, Esquire

What should employers say about an ex-employee seeking a new job, particularly after letting the employee go?  Many employers use only “directory references”- name, hire and departure dates, duties, and perhaps final compensation. Other employers describe duties and performance, either in an individual letter or a more general “to whom it may concern” letter. A third possibility, recognized by Pennsylvania’s statutes, is to obtain the employee’s prior consent to the reference in exchange for the employer’s immunity from suit.

None of these options is defect-proof.  To paraphrase the Miranda warnings, any reference statement or omission may be used against an employer.

Employee References

In discrimination cases, too little information can create liability for discrimination if the employer provides more detail  for different classes of ex-employees, but a favorable letter can undermine employer defenses in a discrimination claim.

In tort law, too little information may lead to liability if an ex-employee is dangerous, but negative information can create liability for defamation.

Even the immunity statutes require employers to provide truthful information. (Since truth is a defense to defamation, these statutes do not expand the protection against defamation claims.)

In recent years, negative references have also led to claims under the Fair Credit Reporting Act.

Though directory information is the safest policy, this policy may not fit all situations. A directory  information policy can hinder an ex-employee’s job search, exposing the ex-employer to longer unemployment claims. A more complete description of duties and skills may make sense where the employee leaves because of economics, timing, or fit rather than poor performance or conduct. Additionally, a full reference may be necessary for certain jobs.

The directory reference policy can also be sidestepped. Prospective employers can first ask if an ex-employer has a policy against re-hiring ex-employees. If the answer is no, the inquirer can then ask whether the ex-employer would re-hire a specific ex-employee. A negative answer to the second question yields a negative reference, without the need for any more comment.

In all events, an employer must honor any agreement or understanding with the departing employee on what will be said in any reference. Employment law is a field in which words and actions have to be consistent. This is particularly true in providing references. It is important for employers to establish a reference policy, or to agree on a specific type of reference in an individual case, and then stick to the policy or agreement.

For more information about employment law, feel free to contact Thomas D. Rees at (610) 275-0700 or by email at trees@highswartz.com. Visit his attorney profile here.

Visit the firm’s Employment Litigation 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.

James Shrimp to Present at the American Bar Association Forum on Franchising

October 9, 2015High Swartz partner, James Shrimp, along with Christopher Wallace and Susan Grueneberg, will be presenting the program, Walking the Line: Best Practices for Advising Franchise Client on Avoiding Employment Risks, at the American Bar Association Forum on Franchising next week in New Orleans. The program will examine recent changes to the joint employer doctrine and how those changes will impact franchisors and franchisees in employment relations – from union relations to employment discrimination cases.For more information about this program, click here.The Soul of Franchising Email Header

Association Discrimination: Another Consideration When You Cut One (an employee that is)

October 9, 2015

By James B. Shrimp, Esq.

This past weekend, I was thinking about blogging, while standing in my kitchen cutting the cheese (I was cutting the cheese for a party I was having). I concluded that there are some blogs that you need to hold in because you aren’t quite sure the audience can handle it. Then, there are other blogs that you have to let loose, because if you hold it in your stomach just won’t feel right. Well, this is one of those blogs that I had to let rip, because staying silent on this issue could be deadly for employers (well, not really deadly).

Discrimination

Last month, a Trenton, New Jersey business was sued for violations of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”). The Plaintiff in the lawsuit was a part-time employee of the business, who assisted and was the wife of the business’ comptroller.

According to the Complaint, Plaintiff’s husband was obese, weighing 420 pounds and in October of 2010, Plaintiff’s husband underwent gastric bypass surgery. Also, according to the Complaint after the surgery, Plaintiff’s husband suffered the side effects of extreme flatulence and uncontrollable diarrhea. These symptoms allegedly worsened over time and caused the Plaintiff significant disruption in the workplace.

Plaintiff’s employer aired its concerns about the side effects and asked that Plaintiff’s husband work from home. Plaintiff’s employer also allegedly made statements to Plaintiff about her husband’s side effects and whether there was anything that could be done to alleviate the issue.

About three and a half years after the surgery, Plaintiff’s husband was terminated. Instead of just letting one go, the business also terminated Plaintiff. Plaintiff brought the lawsuit alleging that she was terminated for associating with her husband, who allegedly has a disability.

In reading this, many employers might think it stinks, thinking how can an employee bring a claim under the Americans with Disabilities Act when they don’t have a disability. Well, the fact is that in some instances an employee without a disability can bring a claim under the ADA, as the Plaintiff has done, for association discrimination.

The ADA’s anti-discrimination by association provision prohibits:

excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

In order to establish a case of association discrimination in the case of a termination, a plaintiff must prove that:

  1. she was qualified for her job at the time of the termination;
  2. she was terminated;
  3. at the time of the termination, plaintiff was known by her employer to have a relative or an associate with a disability; and
  4. the termination occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

Notably, the ADA refers to terminations (or other adverse actions) motivated by ‘the known disability of an individual’ with whom an employee associates, as opposed to actions occasioned by the association. For instance, being terminated for missing work related to someone else’s disability is not actionable under the ADA (although it may be under the Family and Medical Leave Act). The termination must be because of the relationship or association itself.

In passing, just because an employee is not disabled, does not mean that the ADA might not provide protection for an employee, should that employee have associated with a disabled individual. Employers, be alert, because the last thing you want is to get a whiff of an association claim after its already been let loose.

For more information about employment law, 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.

What is a Restraining Order or Protection Order?

October 5, 2015

By Melissa M. Boyd, Esq.

The fact remains that divorces have the potential to get nasty. While the unpleasantness commonly amounts to tension, spiteful conversations, and difficulty reaching agreements on custody and asset division, some situations escalate until one spouse feels unsafe. If you find your wellbeing threatened during the separation process, it’s important to be aware of your options so you can quickly take the right actions to protect yourself.

Restraining Orders and/or Protection Orders are orders handed down by the court intended to protect you and your properties from someone before something happens.

In general, there are three types of restraining orders:

  • Emergency, which goes into effect immediately to prevent imminent harm,
  • Temporary, which lasts for a short period of time, usually to cover the time between filing and when a permanent order can be obtained,
  • Permanent, which is held after a hearing and is typically referred to as “a Restraining Order.”

In some jurisdictions, emergency and temporary orders are synonymous.

The laws around obtaining a Restraining Order differ from state to state. However, as a general rule you must be able to prove that the order is necessary for your safety. There must be evidence of an imminent threat or prior acts to support your claim.  A practicing family law or domestic relations attorney can help you obtain a Restraining Order.

A Restraining Order states that the defendant must do, or not do, certain things to avoid endangering the other party. If the defendant defies any parts of the order there are legal consequences. At the most basic level, Restraining Orders keep the defendant away from you to eliminate the opportunity for violence to occur.

With a Restraining Orders and Orders of Protection, a person can be ordered not to have any contact with you. Contact can include texting, phone calls, emails and traditional mail. The defendant can also be ordered against contacting any member of your family, including your children. If you are still living with your spouse, the order can force them to leave the residence, regardless of their level of ownership. Typically, the court will grant custody of minors to the parent being protected. Some states may require the defendant to pay support or to pay court fees associated with the protection, and to pay any damages you incurred as a result of their actions. Ultimately, orders can be customized to fit the particular needs of each unique situation as long as the terms are reasonable.

In any case, it’s important that if you feel you are in any type of danger you reach out to the police or to an attorney, depending on the urgency. Remember, laws, law enforcement and officers of the Court are in place to help you, and they have the expertise to do so.

Workplace Conflict: Management Lessons from Jonathan Papelbon

By James B. Shrimp, Esq.

This past weekend Jonathan Papelbon, the talented and unpredictable closer for the Washington Nationals, had a heated discussion with MVP-candidate Bryce Harper about Harper’s failure to run hard after hitting a fly ball. The heated discussion quickly turned physical, when Papelbon grabbed Harper around the neck and pushed him up against the dugout wall. Papelbon and Harper were then separated by their teammates. In response, the Nationals have suspended Papelbon for four games.

work conflict

As a life-long Phillies fan, I take some degree of warped pleasure in seeing how Papelbon, a Phillie until two months ago, has apparently unsettled the Nationals. The Nationals were one game ahead of the Mets at the time of the trade and are now nine games behind the Mets and have been eliminated from playoff contention. My twisted interest aside, this incident does raise the issue of how an employer should deal with conflict and fights at work. Importantly, this is conflict that does not rise to the level of unlawful discrimination or harassment.

No workplace is utopian. We are all human, so if you employ more than just yourself, the ingredients are present for conflict, and if allowed to simmer, fights. The conflicts can range from high-school style “clique” drama, to manufactured power-play disputes, to professional disputes. Many of these conflicts cannot be avoided, but what an employer can do is address and manage the conflict so it does not disrupt workplace harmony, or simmer into a physical altercation, both of which are bad for the employees involved, bad for morale and could lead to potential legal liability.

Although inevitable, there are some things employers can do to manage workplace conflict.

Accept Conflict and Manage It

As stated above, conflict happens in the workplace, whether it be conflict derived from “drama” or whether it is serious decision-based conflict. In either case, the employer cannot take the position that conflict “cannot happen in my workplace.” The employer must not dismiss out-of-hand the position of one employee over another. Listening, not just hearing, is key to managing conflict. Moreover, the employee and employer must understand that the goal is not circling around the campfire signing kumbaya. One does not have to like who you work with, but you have to function in the workplace in a respectful manner. The key for the employer is to manage the conflict so the parties can move forward in a respectful manner.

Look for Personality Conflicts

Oil and water. It happens. Sometimes you have two good employees who work hard and there is something that just does not work between them. It could be present from the first interaction, or it could develop later. If those individuals with the conflict cannot recognize and accept those conflicts between them, which would allow them to move forward in a respectful manner, the management of the conflict may well include the separation of the two individuals. Personality conflicts, as opposed to “workplace drama” or professional conflict, can quickly and seriously infect the morale of a workplace.

Open Door Policy/Communication

Your employee handbook should contain, and management should make clear, that an open door policy exists, and that employees should feel comfortable raising and discussing the conflict in hopes of resolving the matter.

Don’t Be Afraid to Discipline or Terminate

If the conflict is continuous, or if the conflict extends beyond verbal disagreement, the employer must not be hesitant to take disciplinary action, including termination if the circumstances require it.

Most employers have, and I would recommend, a zero tolerance policy with respect to physical fighting, or threats of bodily harm. For instance, if an employee punches or threatens physical harm with an instrument (e.g., knife, gun, etc…) the employer should contact the police and the employee should be terminated.

If the employer fails to take disciplinary action regarding an employee with a propensity for intense conflict and violence, the employer may be liable for negligent supervision and other torts. In short, in the real world of everyday employment, Papelbon would have been terminated, not just suspended for four games.

For more information about employment law, 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.