Employment Law Archives

High Swartz | February 14, 2017

Breaking Down “BYOD” Policies

February 14, 2017

The explosion of smartphones, tablets and technology generally, has inevitably resulted in employees performing work tasks on their personal devices. In the age of the ever present smartphone, and for many, the accompanying compulsion to stay constantly connected, employers and employees find themselves balancing the benefits and pitfalls of employees using their personal phones to conduct their employer’s business. This has resulted in increased productivity and flexibility and oftentimes resulted in lowering a companies technology costs. With these benefits, however, come certain risks that a prudent employer should consider and provide for. The most popular means of addressing these issues is in the implementation of a Bring Your Own Device (“BYOD”) Policy.

While there are many concerns an employer must consider in crafting the most appropriate BYOD policy, some of the most common include: data security, employee privacy, theft or loss of device, non-exempt employee usage, and employer liability for employee misconduct.

Data Security

Data security is a huge concern for employers and as such this element is crucial to alleviate company concerns that an employee could potentially compromise company data through lax or nonexistent device security. Similarly, employers justifiably have concerns regarding employees connecting to unsecured Wi-FI hotspots or sharing their devices with other individuals leading to compromised data. Accordingly, employers should consider requiring password protection, automatic locking after a certain period of inactivity, mandating regular backups, restricting access to especially sensitive company information or even using software to create a virtual partition in devices to keep personal data separate from work data.

Employee Privacy

A good BYOD policy will clearly set forth the employees expectation of privacy on their personal device that is being used for business purposes. It is important that after signing the agreement the employee understands what their rights are as to the device and information thereon.

Theft/Loss

Because phones are lost or stolen with unfortunate frequency, it is important that there be a policy in place that requires employees to immediately report a lost or stolen device. This section of the agreement may also contain a provision regarding the company’s decision to install software that would allow the company to remotely wipe the device in the event it is lost or stolen. Ultimately, all parties should be aware of what will happen to the device in the event it is lost or stolen.

Non-exempt employees

Because the Fair Labor Standards Act requires that non exempt employees be paid for all hours worked, a comprehensive BYOD policy will include a prohibition against off-the-clock email access/work by non exempt employees unless specifically authorized This ensures that all work performed on the company’s behalf is compensated. Accordingly, deciding what classifications of employees will be able to use their personal devices for business is crucial. A company must proactively determine how it will handle such situations to avoid exposure under federal and state labor laws.

Employee misconduct

Finally, an employer wants to consider its potential liability if an employee uses his or her personal device to send harassing emails, even outside of work hours. Because the device is the employee’s personal property, employees may feel more comfortable engaging in inappropriate conduct than they would on company owned property. This could potentially lead to an employee using social media, texting, or phone calls to defame, harass or otherwise inappropriately treat the company, co-workers, or other related parties. To address such concerns a policy should reaffirm that the company’s policies prohibiting such conduct apply with equal force to all devices covered under the BYOD policy.

There is no one size fits all BYOD policy. What a Company needs by way of a BYOD policy will be controlled by the type of business, type of information contained on employee’s device and the availability of IT support to the employer. Additionally, due to the number of laws that intersect and impact BYOD policies, consulting an attorney to draft such a policy is crucial to the its success.

If you have any questions about BYOD policies, please contact us at 610-275-0700 or via email at main@highswartz.com.

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.

Thomas Panzer | August 5, 2016

Independent Contractor Doctrine Affirmed

August 5, 2016

By: Thomas E. Panzer

The High Swartz workers’ compensation defense group recently earned a favorable ruling from the Pennsylvania Commonwealth Court. In the matter of, Edwards v Epicure Home Care, Inc. (Workers’ Compensation Appeal Board), 134 A3d 1156, Pa. Cmwlth Ct 2016, the Commonwealth Court affirmed our client’s use of independent contractors in the context of a workers’ compensation claim.

The Epicure Home Care case is important for any business utilizing independent contractors as part of its business model. Use of independent contractors has been under attack and presently is viewed with some suspicion in a number of venues. Epicure Home Care affirms the ongoing viability of the independent contractor doctrine. Continue reading "Independent Contractor Doctrine Affirmed"

Jim Shrimp | April 19, 2016

The NLRB Takes Aim at Employee Handbooks Affecting Employment Law

April 19, 2016

By: James B. Shrimp

The National Labor Relations Board (NLRB) and it’s field offices continue to seek to influence the non-unionized, private sector workplace. Last week, an administrative law judge in an NLRB proceeding involving Quicken Loans, and affiliated companies, Fathead and One Reverse Mortgage, ruled that over 20 provisions of an employee handbook, known as the “Big Book,” violated the National Labor Relations Act. Specifically, the judge ruled that these Big Book provisions violated more than 15,000 employees’ rights to engage in concerted activity. Continue reading "The NLRB Takes Aim at Employee Handbooks Affecting Employment Law"

Thomas D. Rees | January 28, 2016

Just Hang Up! The Perils of Pocket Dialing and Accidental Calls.

January 28, 2016

By: Thomas D. Rees, Esq.

Dialing mistakes are no longer just material for late night comedy. Several recent employment cases show the consequences of “pocket dialing” on cell phones. The mistaken calls disclosed plans to fire executives, disrespect for management, conflicts of interest, and affairs with co-workers. The misdialing employees and supervisors emerged from the incidents with lost jobs and lost respect- and then lost lawsuits over use of information from the mistaken calls. Continue reading "Just Hang Up! The Perils of Pocket Dialing and Accidental Calls."

Jim Shrimp | December 18, 2015

Ban the Box: Hiring Just Got More Complicated in the City of Philadelphia

December 18, 2015

By: Jim B. Shrimp, Esq.

For decades, private employers have used a number of tools to analyze and evaluate candidates for positions, including requiring resumes, work and personal references and the completion of an application. Two tools that have also been used are credit checks and criminal background checks. I wrote an article back in September on the use of credit reports in hiring and the fact that Federal legislation has been introduced to significantly limit the use of credit checks. To date that legislation has not advanced toward becoming law. Continue reading "Ban the Box: Hiring Just Got More Complicated in the City of Philadelphia"

Jim Shrimp | November 16, 2015

Facebook and Employee Discipline: Employers “Dislike” the NLRB

November 16, 2015

By James B. Shrimp, Esq.

Can an employer get into trouble for firing an employee over something the employee wrote on Facebook? Apparently, yes.

The United States Second Circuit Court of Appeals recently agreed with the National Labor Relations Board (NLRB) that an employer violated the National Labor Relations Act “by taking certain actions against its employees, including discharge, for their Facebook activity.” The Second Circuit further found that the employer’s social media policy violated the Act.

Importantly, this decision applies to both union and non-union shops. In fact, over the last several years the NLRB has increasingly used its enforcement powers against non-union employers.

An Employee’s Protections Under the Act

The Act guarantees that “employees shall have the right to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of … mutual aid of protection…” The Act protects an employee’s rights by prohibiting an employer from interfering with, restraining, or coercing employees in the exercise of these rights.

An employee’s rights have to be balanced against an employer’s interest in preventing disparagement of its products or services and protecting the reputation of the business. Thus, an employee’s communications may lose protection if they are sufficiently disloyal or defamatory. Importantly, if an employee relays in good faith what he has been told by another employee, reasonably believing it to be true, the fact that the initial report was inaccurate does not eliminate the employee’s protection.

The Triple Play Sports Bar - Facts

The NLRB’s decision in a case at the Triple Play Sports Bar serves as a cautionary tale for employers. Here are the details of the case, which can be ound at 361 NLRB 31 (August 22, 2014). I have cleaned up the language a bit for family consumption, just in case you want to read this to your kids at bedtime.

“The employer employed Jillian Sanzone as a waitress and bartender, and Vincent Spinella as a cook. In approximately January 2011, Sanzone and at least one other employee discovered that they owed more in State income taxes than they had expected. Sanzone discussed this at work with other employees, and some employees complained to the employer. In response to the complaints, the employer planned a staff meeting for February with its payroll provider to discuss the employees’ concerns.

Sanzone, Spinella, and former employee Jamie LaFrance, who left the employer’s employ in November 2010, have Facebook accounts. On January 31, LaFrance posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!

The following pertinent comments were posted to LaFrance’s page in response:

DESANTIS (a Facebook “friend” of LaFrance’s and a customer): “You owe them money...that’s f*%&ed up.”

* * *

LAFRANCE: “The state. Not Triple Play. I would never give that place a penny of my money.

Ralph [DelBuono] f*%&ed up the paperwork…as per usual.”

DESANTIS: “yeah I really dont go to that place anymore.”

LAFRANCE: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

(At this juncture, employee Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued as follows.)

* * *

SANZONE: “I owe too. Such an a**hole.”

Sanzone added her comment from her cell phone on February 1. On February 2, when Sanzone reported to work, the employer told her she was being discharged. When Sanzone asked why, the employer, having learned of the Facebook post, responded that she was not loyal enough to be working for the employer because of her Facebook comment.

When Spinella reported for work on February 3, he was summoned to a meeting. The Facebook comments from LaFrance’s account were displayed on a computer screen in the office. After asking Spinella if he “had a problem with them, or the company,” he was interrogated about the Facebook discussion, the meaning of his “Like” selection, the identity of the other people who had participated in the conversation, and whether Spinella had written anything negative to say about the employer. Spinella was told that because he “liked the disparaging and defamatory comments,” it was “apparent” that Spinella wanted to work somewhere else. Spinella was then discharged.”

In the case there were two instances of employee conduct at issue.

Spinella, “Lik[ing]” the post of Ms. LaFrance, which stated “maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!”
Sanzone, commenting on the LaFrance post stating “I owe too. Such an a**hole.”

The Triple Play Sports Bar – Legal Decision

The Court and the NLRB both determined that Mr. Spinella and Ms. Sanzone’s conduct on Facebook was concerted activity under Section 7 of the Act, because it involved an “ongoing sequence of discussions that began in the workplace about [the] calculation of employees’ tax withholding.” The Court and the NLRB further determined that the statements were not defamatory, even though profanity was used, because the conversation wasn’t directed at customers and did not relate to the employer’s brand. The Court also determined that the employer violated the Act by (1) threatening employees with discharge for Facebook activity; (2) interrogating employees about their Facebook activity; and (3) informing employees that they were being discharged for their Facebook activity.

In addition, the Court determined that the employer social media policy violated the Act. The employer maintained the following work rule as part of its Internet/Blogging policy in its employee handbook:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

The Court determined that “employees would reasonably interpret [this] rule as proscribing any discussions about their terms and conditions of employment deemed ‘inappropriate’ by the employer.”

Takeaways for Employers

“Concerted activity” is being interpreted very broadly by the NLRB. Any statements, expressions or shows of support by employees about terms and conditions of employment and/or support for union activities, even if the employer is non-union, should be deemed concerted activity by the employer.
Employers must view any social media, including Facebook, as an extension of the workplace. If something is said by an employee on social media that would be protected if it were said in the workplace, it is likely protected on social media.
Employers must review and reevaluate their social media policies. Many of these policies were drafted near the beginning of the social media explosion and did not contemplate the assertion of NLRB authority in the social media space.
In reviewing social media policies focus on the protection of the employer’s product and/or brand. Statements by employees disparaging or defaming an employer’s product or brand can still lead to the lawful termination of an employee.
Realize that many employees under 35 (Gen Xers) complain about everything on social media – work, food, people, TV shows, etc… Whereas an employee currently in their 50s used to complain about their boss or working conditions to others around the water cooler, younger employees do so on social media – social media is their water cooler. Unfortunately, social media provides more publicity to discussions about issues at work, but the NLRB deems social media to be the equivalent of the water cooler. With that said, the torts of defamation, tortious interference, and invasion of privacy still provide some protection to the employer.

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 the firm’s Employment Law page.

Jim Shrimp | October 9, 2015

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).

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:

she was qualified for her job at the time of the termination;
she was terminated;
at the time of the termination, plaintiff was known by her employer to have a relative or an associate with a disability; and
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.

Jim Shrimp | October 2, 2015

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.

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.

Jim Shrimp | August 25, 2015

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?

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.

Rich Sokorai | August 21, 2015

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

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.