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November 2020

PERSPECTIVES

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November 2020

PERSPECTIVES

Table of Contents

PHRA President’s Message

Announcing the 2021 Board of Directors

Don’t Get Stuck in the Weeds: 11 Tips for Complying with the New Title IX Regulations

Employers Must Vigilantly Evaluate WARN Obligations As Pandemic Continues

Good-Faith Defense Affirmed as to Claims Against Unions Representing Pennsylvania Public Employees

Workplace Safety: An Ounce of Prevention is Worth a Pound of Cure

Do I Need to Pay Overtime? Department of Labor Proposes New Rule Making it Easier to Classify Workers as Independent Contractors

New Members/On The Move

2020 Events

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EMPLOYMENT LAW MONTH

Let PHRA be your guide to understanding the  legal landscapethat affects your organization. You'll gain an insider's look at thecurrent public policy issues that impact the workplace. Whenyou ensure that you are operating in compliance with legislativeregulations, you’re creating a better workplace by protectingnot only your employer, but also your entire staff.

 This is a multi-level conference that willbe of value regardless of your degree of

experience!

This year's Annual Labor and Employment LawConference will take place the month of DecemberSessions wil be held weekly.

During the month, you will have the opportunity

to confer with top practitioners representing

employees, employers, unions and government

agencies.

9.5 PHR, SHRM-CP & SHRM-SCP CREDITS

Investment:  $199 PHRA Members | $219 Non Members

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PHRA President’s MessageDr. Peter Gabriel, ACC, President, PHRA

Dear PHRA Members,

When it was announced in 2019 that I’d be taking on the role of the Presidency at PHRA, no one knew that our world was going to change so considerably. But my vision for our membership has remained the same: now more than ever we need to serve and advance the HR profession. After watching our PHRA family take on

the challenges of the last few months, I know that together we can and will continue achieve that vision.

This Thanksgiving season, I want to say how thankful I am to you for your commitment and continuous hard work leading PHRA’s most important resource, our members! Together we are building Pittsburgh leaders in our businesses, one member at a time!

We began the year with an aggressive list of things to accomplish and I’m proud to say we have been adaptable and creative and delivered on them all. A special thanks goes out to our Committee Chairs, Directors and Staff for all of their hard work and dedication. I believe the PHRA, through our collective performance this year, has taken another strong step in the journey to better serving the Pittsburgh HR community.

Here are some of the 2020 Highlights: • PHRA received the Chapter of the Year Award from the Pennsylvania State Council. This award recognizes

outstanding achievement in chapter initiatives, major accomplishments, strategic activities, and tactical initiatives that elevate the profession of human resources.

• The Society for Human Resource Management (SHRM) awarded the PHRA its prestigious EXCEL Platinum Award.

“So much of SHRM’s impact on the world of work can be traced back to the dedication and hard work of our chapters and state councils like The Pittsburgh Human Resources Association. These leaders took the initiative and drove changes to make workplaces where employers and employees can thrive together,” said Johnny C. Taylor, Jr., SHRM-SCP, president and chief executive officer of SHRM. “ The Platinum EXCEL Award is not only a celebration of the great work done by PHRA it’s also a recognition of the grit it took to do it.”

• Created the HR Rescue Package Scholarship. The HR Rescue Package Scholarship is for members that have found themselves in-transition during this pandemic.

• Member Experience Webinars continue as a member favorite helping you make the most of your membership!

• Launched PHRA’s Weekend Digest, a hand-picked compilation of the week’s most relevant news & articles.• This year’s Annual Labor and Employment Law Conference will take place the month of December.

Sessions will be held weekly. During the month, you will have the opportunity to confer with top practitioners representing employees, employers, unions and government agencies.

https://www.pittsburghhra.org/events/EventDetails.aspx?id=1431778&group=

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PHRA President’s MessageDr. Peter Gabriel, ACC, President, PHRA

• We launched our 1st Virtual Conference Experience: Power of the Past. Force of the Future. This marked 72 years of cutting-edge sessions, top-notch speakers, career-changing insights and countless connections – and we did this all on a virtual platform!

• PHRA’s 2nd Month of Diversity and Inclusion celebrated respect, integrity and ageless wisdom by providing messages to encourage and empower members to

live a life full of Diversity and Inclusion. 87 members participated in this celebration.• Added new Virtual Networking Opportunities such as Membership Quarentinis, Wellness Challenges and

Meet & Greets with the members. • Engaged 98 volunteers throughout our Committees, Board of Directors, and Executive Committee. • 1,542 HR Professionals participated in our programming and networking events. This is a 45% growth over

2019!• Helped 51 members achieve their professional certification through our SHRM-CP and SHRM-SCP

preparation courses. We continue to maintain an 89% pass rate!• Consistently provided 61 Learning & Professional Development seminars resulting in 83 SHRM & HRCI

Recertification Credit options.All of this was possible thanks to our Staff, Executive Committee, Board of Directors, Committee Chairs & Members, Volunteers, Business Partners, and members-at-large.

It is hard to believe that my term, serving as your President of the PHRA, is coming to a close.

I am honored to have served as your President and have been very impressed by how many of you gave your time, efforts and energy supporting our Vision.

Regards,

Dr. Peter Gabriel, ACC President, PHRA

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Dear PHRA Members,

The Pittsburgh Human Resource Association (PHRA) was founded at the turn of the twentieth century to serve the human resource profession and provide businesses with HR guidance. One hundred and six years after that mission was first envisioned, the PHRA continues to provide superior professional development, networking opportunities, and educational resources for its members.

In continuing the spirit of making our local human resources professionals prepared for another century via increased HR competency and strategic learning opportunities, I am pleased to announce our 2021 Board of Directors that will guide us. They are as follows:

Executive Committee

• Lisa Petro, SHRM-SCP, SPHR, President, Monongahela Valley Hospital, Director of HR

• Lenore Seifer, SHRM-SCP, President-Elect, S.R. Snodgrass, P.C., Director of Personal Development

• Peter Gabriel, PhD, Past-President, Key Leadership LLC., Leadership Consultant

• Jennifer Kelly, VP/Membership Diversity & College Relations, ECA, Director

• Brenda Thoma, PHR, VP/Signature Events, NTT Security, HR Business Partner

• Daniel Corkum, SHRM-CP, PHR CCP, VP/Secretary, ARLANXEO, Total Rewards Specialist

• Kristine Irwin, MBA, VP/Treasurer, Black Box, Senior Recruiter

• Liz Lamping, MPM, Executive Director, PHRA Staff

• Katherine Miller, Membership Development Specialist, PHRA Staff

Board of Directors

• Mario Bordogna, Esq., Clark Hill, PLC., Attorney

• Daniel Cubarney, Justifacts, Sales Manager

• Shanel Divito, Allegheny County Department of Human Services, Chief Human Capital Officer

• Amy Hanrahan, SHRM-CP, True Sense Marketing, HR Business Partner

• Tiffany Jenca, Esq., Cozen O’ Conner, Attorney

• Karen Lindsey, KRL Diverse HR Solutions

• Ron Kubitz, Forms+Surfaces, Director, Recruiting & HR

• Jill S. Porter, SHRM-CP, PHR, Polaris HR Consulting LLC

• Cheryl Paxton-Hughes, SPHR, Edgar Snyder & Associates, COO

• Curtis Schaffner, Michael Baker International, Assistant General Counsel

• Luanne Shock, SHRM-SCP, SPHR, Chesapeake HR Consulting, Principal

Announcing the 2021 Board of Directors

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Committee Chair

• Alan Bolyard Jr., CSCP, CCP, GRP, Social Media Chair

• Diane Houser, SHRM-SCP, Membership, Diversity and College Relations Co-Chair, ConnectiveRx, Employee Relations Manager

• Pam Anthony, SHRM-CP, LPD Chair, ProMinent Fluid Controls, HR Generalist

• Adam Primi, SHRM-SCP, Certification Chair

• Ashleigh Sager, SHRM-SCP, Networking Chair, Babb, Inc., HR Director

The PHRA Staff, Executive Committee, Board of Directors, and Committee Chairs continuously put lofty goals out in front of them. Year after year, this group achieves those goals while simultaneously putting up the next goal in the hope that our membership will reap the rewards.

We have envisioned, planned, and strategized for the upcoming year with new invigoration to continue our work with you to develop and serve the HR professional, and advance and lead the HR profession.

We are all excited for the coming year, I know we will continue in the tradition of excellence PHRA has established.

Regards,

Elizabeth Lamping PHRA Executive Director

Announcing the 2021 Board of Directors (Cont.)

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EXECUTIVE COMMITTEE 

Amy HanrahanSHRM-CP

True Sense MarketingHR Business Partner

Brenda Thoma, PHRVP/Signature Events

NTT SecurityHR Business Partner

Cheryl Paxton-HughesSPHR

Edgar Snyder & AssociatesCOO

   Ashleigh Sager, SHRM-SCPNetworking Chair

Babb, Inc.HR Director

DIRECTORS AT LARGE

Peter Gabriel, PhDPast-President

Key Leadership LLC.Leadership Consultant

Mario Bordogna, Esq. Clark Hill, PLC.

Attorney Daniel CubarneyJustifacts

Sales Manager

Daniel CorkumSHRM-CP, PHR CCP

VP/Secretary ARLANXEO

Total Rewards Specialist

Lisa Petro, SHRM-SCP, SPHR  President-Elect

Monongahela Valley HospitalDirector of HR

Lenore Seifer SHRM-SCPPresident-Elect

S.R. Snodgrass, P.C.Director of Personal Development

Ron KubitzForms+Surfaces

Director, Recruiting & HR

Liz Lamping, MPM   Executive Director

PHRA Staff

Tiffany Jenca, Esq.Cozen O' Conner

Attorney

Alan Bolyard Jr.CSCP, CCP, GRP

Social Media Chair

Diane Houser, SHRM-SCPM,DV, CR Co-Chair

ConnectiveRxEmployee Relations Manager

Katherine MillerMembership Development

SpecialistPHRA Staff

COMMITTEE CHAIRS

Pam AnthonySHRM-CP   LPD Chair

ProMinent Fluid Controls, HR Generalist

Kristine Irwin, MBAVP/Treasurer

Black BoxSenior Recruiter

Adam PrimiSHRM-SCP

Certification Chair

Shanel DivitoAllegheny County

Department of Human ServicesChief Human Capital Officer

Jill S. Porter SHRM-CP, PHR

Polaris HR Consulting LLC

Curtis  SchaffnerMichael Baker InternationalAssistant General Counsel

Luanne ShockSHRM-SCP, SPHR

Chesapeake HR ConsultingPrincipal

Jennifer Kelly VP/Membership Diversity &

College Relations ECA

Director

Karen Lindsey KRL Diverse HR

Solutions

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Human resources departments in a range of organizations may be interested in new developments in the Title IX arena for two reasons. First, the new federal regulations may apply to your employees. And second, even if Title IX doesn’t apply, these regulations may provide a harbinger of what’s to come more broadly in the employee harassment and discipline claims arena.

• To learn more, PHRA members are invited to attend the PHRA Employment Law Day zoom seminar on December 14, “What Human Resources Managers Can Learn from the New Title IX Regulations from the Department of Education.”

Title IX of the Education Amendments of 1972 provides that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a) (emphasis added). The U.S. Department of Education issued new regulations under Title IX relating to sexual harassment and sexual violence, which became effective August 14, 20201. The new federal regulations follow on the heels of Pennsylvania’s June 30, 2020 deadline for all schools to adopt and post a policy to prevent sexual harassment and sexual violence on campus and to accept reports pursuant to an online reporting system2. In addition, new case law from the United States Court of Appeals for the Third Circuit (which includes Pennsylvania) makes it clear that all colleges – even private colleges – must allow individuals accused of sexual misconduct violations the opportunity to defend themselves at live hearings with cross examination3.

The U.S. Supreme Court has held that Title IX extends to employees of federally funded education programs who allege sex-based retaliation claims4. And, in 2017, the Third Circuit permitted an employee (a medical resident) whose employer received federal education funds to maintain a Title IX sex discrimination lawsuit even though she had never filed a charge with the Equal Employment Opportunity Commission5. In the employment context, typically filing a timely administrative agency charge is a prerequisite to maintaining a lawsuit under Title VII of the Civil Rights Act and under the Pennsylvania Human Relations Act.

The new Title IX federal regulations provide in great detail each recipient’s obligation to respond to allegations of sexual harassment. In fact, there is so much detail that it may be easy for recipients to be overwhelmed and feel unsure of how to proceed. For example, previously many recipients had assigned the same person to receive a report, to investigate it, to recommend discipline, and even to administer discipline. This is no longer permitted. Instead, the new federal regulations require neutral decision makers for disciplinary decisions and for appeals, which means that such individuals must not have been involved earlier in processing the same report.

1 85 FR 30026. 2 24 P.S. §20-2003-J. 3 Doe v. University of the Sciences, No. 19-2966 (3d Cir. May 31, 2020). 4 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005). 5 See Doe v. Mercy Catholic Medical Center, 850 F.3d 545 (3d Cir. Mar. 7, 2017).

Don’t Get Stuck in the Weeds: 11 Tips for Complying with the New Title IX RegulationsBy Karen Baillie, Schnader Harrison Segal & Lewis LLP

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Some of the requirements may be particularly difficult for smaller recipients to implement. Luckily, the regulations allow and encourage recipients to work together and/or with external providers to help fill any gaps.

HERE ARE ELEVEN TIPS FOR ACHIEVING COMPLIANCE:

Tip 1. Think about the big picture first. The key is to remember two overriding principles: (1) recipients need to proactively provide supportive measures to individuals who report sexual misconduct; and (2) recipients must ensure that their disciplinary procedures are fundamentally fair. More on each of these requirements later; Tip 1 is to remember that this is the big picture.

Tip 2. Get human resources involved. That’s right. The new federal regulations repeat the Department of Education’s position that Title IX applies to employees of recipients of federal education funds as well as students. So it makes perfect sense to ask human resources to join the compliance team.

Tip 3. Implement the easy stuff ASAP. This includes a non-discrimination statement and a place for people to file reports of discrimination and sexual misconduct, twenty-four hours seven days a week. Personnel at smaller recipient institutions may wear several hats. Make sure at least one person is also called a Title IX Coordinator. Publish this person’s name and contact information with the non-discrimination statement on your website and add it to your school catalogs and handbooks. Tell the Title IX Coordinator(s) to keep track of any and all reports that come in – regardless of whether the reports come through the online reporting system or through other sources, such as human resources, employees, vendors, social media, or other contacts. If your institution maintains a hotline for financial and other complaints, consider whether to direct reports of sexual misconduct to this hotline as well.

Tip 4. Be prepared to offer supportive measures. Each recipient’s Title IX Coordinator(s) should be prepared to respond directly to each and every report that comes in to offer supportive measures, and to describe the school’s processes for investigation and discipline if the complainant wishes to pursue that avenue. Supportive measures might include for example: a ride to the hospital (and information on which local hospitals have SANE nurses on staff); assistance with contacting the police to report a crime; information about sexual assault support groups in the community; information about how to preserve evidence; information about where to find counseling and other support services; escorts to parking lots; and changes in class and/or work schedules, among other potential needs. This tip requires assembling a list of potential services so that the Title IX Coordinator(s) can easily provide information if and when a report comes in. Supportive measures can be anything at all that will ensure continued access to the institution’s education, programs, and activities.

Tip 5. Impose discipline and remedies only after a hearing that determines responsibility. If discipline is warranted, the recipient should follow a fundamentally fair process. The regulations provide an exception and recipients are permitted to remove any individual from the campus or property immediately without

Don’t Get Stuck in the Weeds: 11 Tips for Complying with the New Title IX Regulations (Cont.)

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a hearing when an individual’s presence poses a safety threat to the community. In such situations, a disciplinary hearing should be held quickly while the removal order is still in effect.

Tip. 6. Create fundamentally fair disciplinary hearings, especially for severe discipline such as suspensions and expulsions. The new Title IX regulations provide exhaustive particulars about the process and the procedures. This is where it pays to remember the big picture, especially for smaller recipients that do not see many reports each year. Consider focusing on the checklist of procedural guarantees that public colleges must provide for student disciplinary hearings. 22 Pa. Code §505.3. The state checklist certainly does not address all the details of the Title IX regulations, but it does demonstrate the big picture of a fundamentally fair disciplinary proceeding and there is nothing in the list that is contrary to the Title IX requirements, so it is a good place to start. Pennsylvania’s public college disciplinary hearing requirements are as follows:

• Written notice of charges containing a description of the alleged acts of misconduct, including time, date and place of occurrence, and the rules of conduct allegedly violated.

• Advance written notice of the time and place of the hearing.• An opportunity for submission of written, physical, and testimonial evidence and for reasonable

questioning of witnesses. • Time to allow the accused student or employee to prepare a defense.• An impartial hearing officer/panel. Have a different person make decisions than the person who

conducted the investigation. • A written summary or audio record of the hearing.• A decision based upon evidence sufficient to make a “reasonable person believe that a fact sought to be

proved is more likely true than not.”• A written decision, setting forth facts and reasons with reasonable specificity, issued within 30 working

days after the close of proceedings.• Allow the respondent to have an advisor present at the hearings to consult and interact privately with

the respondent, rather than to “represent” the repondent. Under the new Title IX regulations, this advisor can also handle any questioning of witnesses.

• Treat the respondents and the complainants as equally as possible. This means allowing each to speak to the decision makers, each to review the evidence, and each to have an advisor, for example.

Tip 7. Provide equal appeal rights so that dissatisfied complainants and/or respondents can complain to the school directly before taking the issue externally to the courts or to federal or state agencies.

Tip 8. Get your policies in order. It is important that policies and procedures be revised to meet the new requirements and to ensure consistency, as well as to provide guidance to personnel charged with implementing such policies. It is not uncommon for recipients to have several related policies in different places – for example, student handbooks and codes of conduct, academic catalogs, websites, employee

Don’t Get Stuck in the Weeds: 11 Tips for Complying with the New Title IX Regulations (Cont.)

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handbooks, faculty handbooks, collective bargaining agreements, annual security reports, and grievance processes. The various policies may need to be reworked for consistency. Given the tendency for disciplined students and employees to bring breach of contract claims when a school does not follow its own policies, it is important to review and align policy statements insofar as possible regardless of where they are found.

The new Title IX regulations provide for many suggested and required elements for the sexual misconduct policy. At a minimum it is important to recite that the school prohibits sexual misconduct, to define sexual misconduct, to define consent, and to list the possible sanctions and remedies that may follow a determination of responsibility. Policies should clearly identify the individuals and offices with whom information will be shared. In addition to policies, institutions may also want to draft form notices, investigation procedures, rules for disciplinary hearings, rules of decorum, rules for informal dispute resolution, and other similar supporting documents.

Tip 9. Training. For many years, ongoing training in sexual misconduct awareness and prevention has been required for all employees. The new Title IX regulations require additional specialized training for the individuals who will be receiving reports and complaints, investigating, conducting disciplinary hearings, making decisions, hearing appeals, or conducting informal resolution processes. In addition, recipients may choose to provide training for campus personnel who may serve as advisors to students and for employees throughout the investigatory and disciplinary process.

Tip 10. Consider collaboration with other recipients and/or with law firms. Compliance may be more readily achievable for recipients that can share the cost of training, policy writing, investigations, and/or decision-making with other recipients that hire the same attorneys to assist.

Tip 11. Check in with risk management. Many insurance companies offer training materials that recipients may be able to adapt for their own purposes. In addition, consider adding informed counsel to your policy’s list of panel counsel to ensure that you will be ready to respond to any incidents that may occur. This will help to avoid the assignment of your matter to an attorney who is unfamiliar with Title IX.

Schnader can assist educational programs of all sizes to comply with the new requirements. We can help you determine whether your institution might be subject to Title IX. We can help to sort through the various and sometimes seemingly conflicting mandates, review and write new policies, train the personnel involved in the process, and assist the personnel charged with receiving, supporting, investigating and/or adjudicating reports of sexual misconduct on campus. We can also assist with creating compliant reporting schemes, investigations, and disciplinary procedures. In addition, our attorneys can serve on an as-needed basis as hearing officers, student or employee advisors, investigators, and even Title IX coordinators. Finally, we have many attorneys who are experienced as mediators and arbitrators and in other forms of alternative dispute resolution. Thus, we stand ready to assist with the entire process.

This summary of legal issues is published for informational purposes only. It does not dispense legal advice or create an attorney-client relationship with those who read it. Readers should obtain professional legal advice before taking any legal action.

Don’t Get Stuck in the Weeds: 11 Tips for Complying with the New Title IX Regulations (Cont.)

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American employers are in their fifth month of dealing with the impact of the Coronavirus pandemic. Government limitations and drops in product demand due to the Coronavirus pandemic have forced many employers to take action that has adversely impacted their employees as we continue efforts to minimize the spread of the virus and the contraction of the economy. With the virus expected to continue impacting our lives at least through the remainder of 2020, employers need to evaluate whether new employee obligations might be triggered, particularly if an employer has furloughed employees for months.

Specifically, the federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with 100 or more full-time employees to provide at least 60 days’ advance written notice of a worksite closing affecting 50 or more employees, or a mass layoff affecting at least 50 employees and one-third of the worksite’s total workforce, or 500 or more employees at the single site of employment during any 90-day period. This notice must be provided to impacted employees, local and state government entities and, if applicable, the union representing impacted employees. Under certain circumstances, an employer may not be required to provide 60 days’ notice for such worker dislocations, but is still required to provide such notice as soon as possible. These exceptions apply when employers can show that the layoffs or worksite closing is occuring because of a faltering business, unforeseen business circumstances, or natural disaster.

The Coronavirus pandemic has caused a host of unforeseen business circumstances for employers and they continue to deal with the unknown as we see additional outbreaks of the Coronavirus pandemic. When this ongoing impact results in job losses, it may trigger a WARN notice obligation that was not originally foreseen by employers. For instance, a temporary layoff or furlough that lasts longer than 6 months is considered an employment loss pursuant to the WARN Act. Additionally, a reduction in hours of more than 50 percent for each month of any six month period is an employment loss. Therefore, a temporary furlough that initially was not anticipated to last more than 6 months, but is extended beyond 6 months because of lagging demand triggers a WARN notice obligation if such furloughs otherwise meet the definition of a mass layoff. Therefore, once an employer reasonably foresees its actions will meet the definition of a mass layoff, the employer must provide WARN Act notices as soon as possible.

To complicate this further, employers must continually monitor their actions to evaluate whether multiple force reductions considered together will trigger WARN Notice obligations. In particular, employers should look ahead and behind 90 days to review their past actions and anticipated actions to see if WARN notice obligations have been triggered by the aggregate of affected employees.

Employers should also be mindful of any state or local WARN Act notice requirements. Many states have mini-WARN Acts that have different requirements for when an employer’s notice obligation is triggered.

Therefore, as the Coronavirus pandemic continues to impact our lives, employers should be consulting with counsel to discuss their future plans and ensure they are complying with all applicable laws that may be implicated. Cozen O’Connor’s Labor and Employment attorneys are available to provide counsel to your company to ensure you comply with these laws and strategically meet your goals.

Employers Must Vigilantly Evaluate WARN Obligations As Pandemic ContinuesBy Dave Hackett, Cozen O’Connor

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In an August 28, 2020 opinion, a sharply divided panel of the U.S. Court of Appeals for the Third Circuit joined a growing consensus of federal appellate courts in recognizing the good-faith defense to claims of restitution from unions for fair-share fees in the wake of Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018). In ruling on consolidated appeals, the Third Circuit affirmed the judgments of two federal district courts in Pennsylvania and held that Pennsylvania public employees who declined to join unions may not assert federal civil rights claims seeking damages from the unions for fair-share fees that their employers deducted and paid to the unions prior to the Supreme Court’s decision in Janus. The decision brings the Third Circuit, covering Pennsylvania, New Jersey and Delaware as well as the U.S. Virgin Islands, in line with the other federal courts of appeal that have rejected such claims.

In Janus, the Supreme Court upended decades of labor policy and overruled its 30-year-old precedent in Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977). Under Abood, states were permitted to require public employees to pay a “fair-share” fee for union representation when employees did not desire to become union members. These agency fees were supposed to cover the cost of providing representation to the employee. Historically, employees had challenged the constitutionality of the arrangement on First Amendment grounds, arguing that the state-sanctioned deductions amounted to compelled speech in support of unions because the fees supported a range of activities and positions they did not in fact support. The Abood Court had ruled that any minor infringement of a free speech interest was justified by the state’s legitimate interest in preventing so-called “free riders” from undermining a union’s ability to represent the bargaining unit, and thus cause labor strife. The Janus Court found the arrangement unconstitutional, invalidating agency fee laws in more than 20 states that had enacted such laws.

Following Janus, non-union employees filed class action lawsuits in numerous state and federal courts demanding that public employers and unions reimburse them for their fair-share fees. Among other claims, such employees have alleged that, as state-actors and private parties, respectively, public employers and unions should be liable under 42 U.S.C. § 1983 for the unconstitutional fair-share fees taken under the color of the state laws that the Supreme Court struck down in Janus. In separate decisions rejecting the viability of such claims, the Second, Sixth, Seventh and Ninth Circuits held that unions are entitled to a “good-faith defense” in light of the state statutes and judicial decisions permitting the arrangements. Similarly, courts have found that state actors are entitled to immunity from such claims.

In its consolidated opinions in Diamond et al. v. PSEA et al. and Wenzig et al. v. SEIU Local 668 et al., the Third Circuit has joined the ranks of these other federal courts of appeals. Judge Rendell’s narrow majority opinion prohibits “monetary liability when a private-party defendant acted in good faith reliance on a statute enacted in accordance with binding Supreme Court precedent in a situation that has no exact analogue at common law.” Notably, Judge Fisher disagreed with the reasoning in Judge Rendell’s majority opinion, but nonetheless concurred in affirming the district courts’ dismissals. Judge Phipps’ dissenting opinion found neither support for a good-faith defense to claims against private parties under 42 U.S.C. § 1983, nor any other basis for affirming the lower courts’ decisions.

Good-Faith Defense Affirmed as to Claims Against Unions Representing Pennsylvania Public EmployeesBy Michael Hanlon and Benjamin L. Shechtman

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Most employers understand that unpleasant consequences of many types lurk behind an unsafe workplace. That was the case before COVID, and it certainly is the case after. For example – and generally speaking – a higher volume of work injuries increases workers’ compensation premiums and the potential for more lawsuits. Meanwhile – and specifically speaking – COVID has put a spotlight on certain safety practices which many employers may have previously left on the back-burner because they didn’t involve tangible steps designed to prevent a physical injury, which is the way many employers viewed safety pre-COVID. No matter how it adds up, an unsafe workplace is sure to drive a wedge through the bond an employer has with its most important asset — its labor force.

In Pandemic times like these with the economy in turmoil and with employees (or even unions) looking for reasons to paint an employer in a bad light, it’s more important than ever that employers who don’t have safety programs look to develop them. Meanwhile, employers that already have workplace safety plans in place should take steps to review and improve them. Although such programs usually take on different looks from employer to employer, there are several fundamental things which are a part of the best workplace safety and accident prevention programs. Let’s examine a few of those things in more detail.

It All Starts at the Top

Perhaps the most important element to having a strong workplace safety program is to have it start at the top — from upper management on down. Companies that make workplace safety a priority and have their leadership carry that priority through in the decisions they make are the ones that often have the best programs.

Making workplace safety a priority usually includes regular statements from a company’s CEO or chief officer to all the employees that workplace safety and accident prevention are #1. Adding it into the company’s mission statement is another possibility. Making clear to employees on their first day that safety is more important than productivity – and consistently reminding everyone thereafter – will go a long way towards creating a safe place of employment. This type of dedication takes effort, but it may be the thing which weighs most heavily in whether a company’s safety program is truly successful or not.

Hiring a Safety Director, Accident Prevention Specialist or similar professional also is a big step. This individual can be the point person for all day-to-day safety matters including workers’ compensation, inspections, complaints, investigations, record-keeping, and more. This person also should be familiar with OSHA regulations or other safety guidelines applicable to an employer’s business. In this day and age, that certainly should include the regulations and guidance issued by the CDC and OSHA to prevent exposure to infectious diseases in the workplace.

Workplace SafetyAn Ounce of Prevention is Worth a Pound of CureBy Mario R. Bordogna, CLARK HILL PLC

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Identifying Problems and Developing Solutions

Another hallmark of a good workplace safety and accident prevention program is to devote time to identifying problems, then spend more time trying to develop worthwhile solutions to those problems. Sometimes, like in the case of a missing guard, for example, a solution is simple. Other times, an employer —especially those in the manufacturing or production sector — may need to go back further and address problems inherent in the engineering or development of tools or equipment. Either way, you don’t want to just be reactionary to safety issues after they already pop up.

To pursue these goals, it’s a good idea for the Safety Director to form a committee of persons — including some rank-and-file employees — to regularly meet to discuss what safety issues should be addressed. Separate safety meetings can be held by different departments as well. Have employees sign-in at these meetings.

An employer also should establish a complaint/reporting procedure and instruct that safety concerns be brought forward immediately when known. Always encourage these concerns to be made in writing and develop a regular practice of responding to such complaints. Employees themselves need to be a part of the solution picture, too. Employees who face work hazards on a day-to-day basis often have the best ideas on correcting those hazards. In addition, employers can provide rewards to their employees who meet safety benchmarks. This encourages everyone to act safely.

Communication

Communication also is key to most successful safety and accident prevention programs. Many employers with a strong track record of safety make a habit of providing regular bulletins — sometimes weekly and perhaps even daily — to their employees on safety issues.

These bulletins may cover things like distractions, pinch points, and PPE (personal protective equipment). They may remind employees of their reporting responsibilities if they see an unsafe working condition. Sometimes they do both. Either way, it’s a consistent reminder that plays into a culture of workplace safety.

The Bottom Line

No matter how good an employer’s workplace safety program is, an employer will never be able to prevent all injuries from occurring. Accidents are a part of every workplace. However, having a strong safety and prevention program with the hallmarks discussed above will go a long way towards minimizing those accidents. It also will minimize the number of complaints – or legal headaches – you may have to contend with having to do with safety issues.

Workplace SafetyAn Ounce of Prevention is Worth a Pound of Cure (Cont.)

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Employers have long struggled with the distinction between independent contractors and employees—a distinction that has significant legal consequences. For purposes of the Fair Labor Standards Act, independent contractors are not eligible for minimum wage and overtime compensation, whereas employees are entitled to both.

The U.S. Department of Labor (“DOL”) announced a new proposed rule on September 22, 2020 which, if finalized, may help to clarify a murky legal standard and make it easier for employers to determine when they can classify workers as independent contractors. However, it is unclear whether the proposed rule would withstand judicial scrutiny or a change in administration. Further, even if it does survive, employers must still comply with numerous state and local laws as well as other agency regulations (including the Internal Revenue Service and the National Labor Relations Board) that apply different tests.

DOL’s New Proposed Rule

The DOL has never promulgated a formal regulation distinguishing between independent contractors and employees. Instead, the DOL issued and revised guidance based upon a multifactor “economic reality” test, which is fact driven and focuses on the economic independence of the worker. The proposed rule was intended to bring clarity and consistency to the employee-versus-independent contractor determination so that employers can more readily identify workers covered by the FLSA.

The proposed rule continues to refer to the applicable test as an “economic reality” test, but with significant revisions. It proposes a five-factor test, clarifying that the concept of economic dependence turns on whether a worker is in business for herself (an independent contractor) or is economically dependent on a potential employer for work (an employee). To assess economic dependence, the proposed rule emphasizes two “core factors” that should be afforded the greatest weight: (1) the nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit and loss. If both of these factors point towards the same classification, their combined weight is substantially likely to outweigh the combined weight of other factors that may point towards the opposite classification. In other words, if the core factors align, the bulk of the analysis is complete.

Three other factors may serve as additional guideposts in the analysis, particularly where the two core factors do not point toward the same classification: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production.

How This Rule May Impact Employers

If finalized, the proposed rule will lend some added clarity and consistency to the analysis under the FLSA. However, the rule will likely face court challenges and, perhaps more importantly, the rule will not provide any

Do I Need to Pay Overtime? Department of Labor Proposes New Rule Making it Easier to Classify Workers as Independent ContractorsBy Nick Bell and Katie Matscherz, Buchanan Ingersoll & Rooney PC

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protection under the other laws that must be considered, particularly at the state level.

Many states and state laws use their own independent contractor tests. For example, California recently passed legislation which codified a test that makes it very difficult to classify workers as independent contractors. Other states are considering similar legislation. Moreover, some states, such as Pennsylvania, use a particularly narrow test for certain laws, such as unemployment compensation.

The DOL’s new proposed rule may incentivize these states to move more quickly and other states to consider legislation. This could create an even greater patchwork of inconsistent legislation where a worker is deemed an employee under one law and an independent contractor under another.

To help mitigate the risks and liabilities arising from independent contractor misclassifications, employers may want to consider doing the following:

1. Identify the most liberal of the applicable tests and attempt to ensure that the arrangement would pass muster under that test;

2. Include language in the applicable agreement that addresses the relevant factors in a helpful way;

3. Limit the use of independent contractor classifications, especially where there are questions as to whether the applicable tests can be met; and

4. Consider whether to include arbitration provisions and class waiver provisions in such agreements.

Do I Need to Pay Overtime? Department of Labor Proposes New Rule Making it Easier to Classify Workers as Independent Contractors (Cont.)

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Congratulations to the following PHRA members on their recent achievements:

• Coty Chetoka has achieved his SHRM-SCP certification

• Tabatha Wendorff is the HR Leader at Auberle

Faith Attanucci Maher Duessel

Alejandro Brillembourg Cuenca Pittsburgh Public Schools

Erin Campbell PWCampbell

Jenn Capezzuto Fluor Marine Propulsion

Trang Duong

Holly Fabich

Jamie Gildersleeve Mascaro Construction Co., LP

Katrina Hoak

Mercy Kibet

Amber Kovacik

Heather Kovaly

Karen Litzinger Litzinger Career Consulting

Caitlyn McMeekin Sippel Development

Jennifer Mihelcic Port Authority

Dan Millar The Gateway Engineers, Inc.

Kristen Mills NOVA Chemicals

Chase Morack

Amberly Nichelle

Charlette Reed Port Authority

Carolyn Rice Pittsburgh Post-Gazette

Brooke Roupe St. Clair Hospital

Phillip Sinopoli TE Connectivity

Lisa Stoebener Dollar Energy Fund, Inc.

Zhe Wang

Jessica Zydel

New Members

On the Move

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2020 EVENTS

The Pittsburgh Human Resources Association offers many valuable networking and education programs throughout the year. Keep an eye on the PHRA online event calendar for a complete and up-to-date listing of all programs. Register for an upcoming event today!

To learn more and register for PHRA events

Click Here

Pittsburgh Human Resources AssociationOne Gateway CenterSuite 1852420 Fort Duquesne Blvd.Pittsburgh, PA 15222Phone: 412-261-5537www.PittsburghHRA.org

November 17, 19 | Learn Conference Live Follow-Up Sessions

November 17 | Learn 7 Reasons Your Employees Do Not Engage In Your Wellness Activities

December 1-18 | Learn 2020 Employment Law Month

August 4 | Learn The ABC’s of D&I

December 11 | Learn Attention Students and 2020 Graduates: Learn to Navigate Job Searches in the COVID-19 Era! Part 2

December 2020 | Learn Employment Law Day Virtual Conference

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20% TUITION DISCOUNTFOR PHRA MEMBERS

laroche.edu/HRM

LA ROCHE’S MASTER’S

PROGRAM IN HUMAN RESOURCES

MANAGEMENT GAVE ME THE

SKILLS AND CONFIDENCE

TO EXCEL IN MY CAREER AS

A RECRUITER. I HAVE MADE

VALUABLE CONNECTIONS

WITH TALENT ACQUISITION

PROFESSIONALS IN THE

PITTSBURGH REGION DUE TO

MY EDUCATION AT LA ROCHE.

- KATHRYN FAULKNER ‘06, MSHRM ‘16 RECRUITER | UPMC

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November 2020

PERSPECTIVES