Labor and Employment Law Blog
Labor and Employment
Pennsylvania Enacts Law Requiring Mandatory Police Officer Background Disclosures
Pennsylvania Act 57 of 2020 (enacted July 14, 2020) is a game changer in terms of what a Township Police Department must make public and disclose to prospective Police Employers concerning a former or present Township Police Officer. It is long, long overdue and should be welcome by all Townships, Police Officers and Police Unions. It makes all the sense in the world that before a Police Officer is hired, given lifetime tenure, a gun and the power to take life and liberty that the Township and Police Department know everything they can about the officer including all past discipline. The law now requires the Municipal Police Officer Education and Training Commission (“Commission”) to develop a database to hold separation records of all "law enforcement officers" in the Commonwealth (defined as "peace officers" in Title 18 Pa.C.S.A. § 501). The act requires the database to be operational by July 14, 2021 and temporary regulations that were established on March 14, 2021 [Pennsylvania Bulletin (pacodeandbulletin.gov)]. All too often Township Police Departments in their zeal to get rid of a bad officer, for expediency purposes, will agree to expunge an officer’s disciplinary record or let him/her resign in good standing before disciplinary charges are filed, agreeing to not disclose that discipline when the officer applies to another Police Department. The new Department, however, has no idea it is getting a “bad apple.” It is a vicious cycle that, if not broken, harms all Township Police Departments and the public they are entrusted to protect. While a Police Chief is thrilled to be rid of a problem officer, the Department could fall victim, if the next officer hired had his/her prior disciplinary record cleansed as well. Everyone should have empathy and consideration for others who could end up with the problem officers if proper disclosures are not made. This new law finally attempts to address this very serious issue brought about by the recent national publicity about problem officers and the desire for more public transparency and accountability. We expect that more states, if they have not already, will adopt similar legislation in the wake of public backlash against problem police officers. Under this law the Township must proactively maintain and make certain employment records available on the Township website for the public and other Prospective Employer Police Departments to view. Further, it provides a process whereby a prospective employer can go to court if the prior employer stonewalls on providing documents, a process that did not exist before. Municipal employers should consult experienced employment counsel for any assistance needed in complying with the new requirements. Any questions please contact, Gabriel V. Celii at Offit/Kurman, gcelii@offitkurman.com.
May 5, 2021
Labor and Employment
Workplace Discrimination and Harassment Outside the Office
The breakdown of a concrete workplace where worker interaction was somewhat limited to the office during work hours has led to increased flexibility for workers and employers. In many cases, this flexibility has allowed companies greater access to skilled workers, led to a more productive and engaged workforce, and reduced overhead. However, the blurring of the lines between work and home has created additional compliance burdens, especially when communicating and enforcing harassment and discrimination policies. Difficulty ensuring that employees are compliant with workplace policies promoting healthy work environments did not start with the increase in remote work, but they have certainly increased since the world went remote a little over a year ago. Before the COVID-19 pandemic, employers were navigating the difficulties associated with employees’ behavior on social media. Many companies found themselves balancing their desire not to control or police employee behavior outside of work with the impact their outside behavior had on the company culture and exposure. For example, if a group of employees have connected on social media and an employee posts something discriminatory in nature and her colleagues see that post and bring it to the attention of the company, the company may face liability even though the post was made outside of work hours on an employee’s personal page. Now, with many employees working remotely, the ability for employers to prevent and address discriminatory and harassing behavior has become even more complex, and the impacts of such behavior have been more severe. A 2020 Pew Research Center study found that 41% of Americans have personally experienced some form of online harassment. Virtual harassment can take many forms, including sexually explicit jokes, use of derogatory terms through electronic communications, inappropriate use of memes and emojis, insistence on video calls after work hours, and a failure to maintain dress code during video conferences and calls. With fewer natural touchpoints between management and their subordinates, workplace harassment is more likely to go unreported. With this conduct taking place virtually within employees’ homes, employees are more likely to suffer more severe effects. So, what are employers to do? Employers should invest in training and adapt their policies to fit new and evolving office dynamics. Companies can mitigate many of the issues outlined above through clear expectations of employee conduct during work hours and outside work hours, a practical reporting structure that meets the needs of a remote environment, and regular check-ins with remote employees. More than ever, clear and consistent communication with employees is essential to a compliant and healthy work environment. Questions about this or any other legal matter, please contact Sarah at Sarah.Sawyer@offitkurman.com.
April 29, 2021
Labor and Employment
All of My Employees are Vaccinated. Can We Ditch the Masks?
Not Yet. Over the last three months, many employers, including large employers like Aldi, Amtrak, Instacart, McDonald’s, and Target, have been hard at work motivating employees to get vaccinated through incentive programs and education campaigns. Many businesses, especially small businesses with small workforces, wonder when they can start to lift COVID-19 safety protocols, such as mask-wearing in common areas and limiting in-person meetings. While we are the closest we have ever been since the start of the pandemic to scaling back these restrictions, in most states, we aren’t there yet. While the CDC has given vaccinated individuals the green light to visit with other fully vaccinated people indoors without wearing masks or distancing, a review of the CDC’s guidance is the start of the analysis, not the end. Many states, including the State of Maryland, still have mask mandates in place that impact employers. For example, in Maryland, Governor Hogan’s statewide mask mandate from July 2020 is still in place and requires that individuals wear a mask when “engaged in work in any area where…interaction with others is likely, including without limitation, in shared areas of commercial offices…” (View the Governor’s Order here: Executive Order 20-07-29-01) Governor Hogan’s Order does not contain any exceptions for vaccinated individuals, and willfully violating the Order is a misdemeanor punishable by up to a year in jail or up to a $5,000 fine or both. While changes to the Maryland mask mandate are likely in the months to come as more individuals are vaccinated, employers must continue to abide by the current order. Additionally, even when the rules on the federal and state levels loosen, employers will need to consider what makes the most sense for their workplace based on vaccination rates and the realities of their physical workplace to continue to keep employees safe. While restrictions are lifted nationwide, employers should be mindful of the risks associated with prematurely lifting restrictions in the workplace and continue to review their policies and procedures to ensure their employees are safe and comfortable coming to work. Main takeaway? Employers should continue to encourage their employees to get vaccinated, as vaccination is the best way for employees to stay safe and avoid contracting the virus. However, it is too soon to start removing other safety procedures in the workplace. Employers should continue to utilize COVID safety protocols, including liberal use of remote work, where possible, and mask and distancing mandates. Questions about this or any other legal matter, please contact Sarah at Sarah.Sawyer@offitkurman.com.
April 15, 2021
Labor and Employment
Now Hiring: Getting Back to Work Amid the COVID-19 Pandemic
For much of 2020, my conversations with employers were around layoffs, furloughs, and terminations. With the uncertainty of the pandemic, many companies moved forward with mass layoffs and terminations. With businesses opening back up, individuals getting vaccinated, and more information about the virus, employers are bringing employees back and making new hires. With these are overall positive changes, there are also challenges with hiring or rehiring during a global pandemic. While there are the obvious complications associated with safety and COVID-19 compliance, many employers face complaints around who they rehired and who they didn't. Though employers are not required to reinstate employees they have laid off or terminated due to the pandemic; if they reinstate some employees and terminate others, their actions could come under scrutiny if they reflect a potentially discriminatory pattern. For example, suppose an employer laid off similarly situated men and women of all ages but only brings back the young men under forty. In that case, the company could face age and sex discrimination claims. Employers are particularly susceptible to these claims when they do not bring back otherwise qualified candidates without any history of poor performance or misconduct. Accordingly, employers should be mindful of who they are bringing back and why and look for potential problematic patterns that could appear discriminatory. Also, as a practical matter, in addition to avoiding a potential claim of discrimination, bringing back employees who are already trained and ready to hit the ground running can provide businesses with a leg up and allow a business to scale back up quickly. However, many individuals companies laid off have found other jobs. With many companies hiring simultaneously and many individuals still being cautious because of COVID, many employers are struggling to find qualified candidates. This is particularly true in the hospitality industry, where many employees, still reeling from the industry uncertainty caused by the pandemic, have left the industry in favor of jobs that are more likely to withstand the ebbs and flows of crisis. Main Takeaway: As many employers go into hiring mode, they should think strategically regarding whether they rehire, who they rehire, and how they attract new talent. Former employees who were laid off or terminated and aren't rehired may challenge the company's hiring decisions and claim they were discriminatory or retaliatory.
April 15, 2021
