The Pennsylvania Superior Court has found, as a matter of first impression, that medical marijuana users may maintain a private action under the Pennsylvania Medical Marijuana Act (MMA), including a wrongful discharge action.  See Scranton Quincy Clinic Company, LLC, et al. v. Pamela Palmiter, Case No. 498 MDA 2020 (Pa. Super. Ct. Aug. 5, 2021).  As we previously discussed in our summary of the trial court’s decision, the MMA expressly prohibits employers from discharging, or otherwise discriminating or retaliating against an employee solely on the basis  of the employee’s status as an individual who is certified to use medical marijuana. However, it does not create an express private right of action.

The Court determined that the General Assembly “proclaimed a public policy” prohibiting employers from discriminating against medical marijuana users.

Click here to read the full article in Jackson Lewis P.C.’s Drug and Alcohol Testing Law Advisor blog.

 

 On July 27, 2021, Pittsburgh Mayor Bill Peduto signed Section 626B of the City of Pittsburgh Code—also known as the Temporary COVID-19 Paid Sick Leave Ordinance.  Under the Ordinance, employers with over 50 employees must provide up to 80 hours of emergency paid sick leave for full-time employees, and a prorated amount of leave for part-time employees, to use for COVID-19 related reasons.  While these measures are intended to help keep the workforce and workplace safe and healthy, confusion over employers’ responsibility remains and may be fueling COVID-19-related disability, leave and accommodation litigation.

While the first iteration of the Temporary COVID-19 Paid Sick Leave Ordinance, Section 626A, was in effect from December 8, 2020 to June 17, 2021, Section 626B is nearly identical and now in effect until at least July 27, 2022.  Minor differences in the new iteration of the Ordinance include allowing leave for employees or family members of employees to obtain a vaccine or booster vaccine dose and expanding the definition of COVID-19 to include any variant forms of the virus.  The new iteration of the Ordinance maintains the spirit of the original—urging that paid sick leave be granted where appropriate for COVID-19 related reasons as employers and employees continue to navigate the current public health crisis.

Employers should be mindful of the lack of clarity on whether leave provided by the Ordinance offsets time an employee has already used throughout the year for COVID-19 related reasons or if the leave provided by the Ordinance is in addition to it.  No guidance has been issued by the Mayor’s Office to clarify, but Employers should err on the side of caution in reviewing and granting leave under the Ordinance until further guidance is provided.

Due to breakthrough COVID-19 cases in fully vaccinated individuals, emerging variants of the virus causing repeat infections, and increasing number of employees returning to in-person workspaces, we anticipate the recent uptick in litigation filed across the country related to denial of COVID-19 leave and accommodations will continue.  According to, Jackson Lewis’ COVID-19 Employment LitWatch, from April 1, 2021, to August 3, 2021, nearly 48% of all COVID-19-employment-related lawsuits filed nationwide (402 of 842 lawsuits) should be categorized as “Disability, Leave & Accommodation,” which is a 10% increase from March 12, 2020, to March 31, 2021 (747 of 1962 lawsuits, or approximately 38%).  In Pennsylvania, however, approximately 79% of all COVID-19-employment-related lawsuits (27 of 34 lawsuits) should be categorized as “Disability, Leave & Accommodation,” compared to 52% (35 of 67 lawsuits) from March 12, 2020, to March 31, 2021.

Jackson Lewis attorneys will continue to monitor and report any further developments.  If you need guidance navigating the Temporary COVID-19 Paid Sick Leave Ordinance, or any other employment law issue, contact a Jackson Lewis attorney.  Our team stands ready to help.

The Iowa Supreme Court has ruled that Iowa state law preempts the City of Waterloo’s restriction on employers’ use of applicants’ criminal record history when making hiring decisions.  Other aspects of the ordinance, however, remain legal and enforceable.  The case is Iowa Ass’n of Bus. & Indus. v. City of Waterloo, Case No. 20-0575, 961 N.W.2d 465 (Iowa 2021).

In 2019, the City of Waterloo, Iowa passed Ordinance 5522, a “ban the box” law that prescribes when an employer may legally inquire into an applicant’s criminal record history during the hiring process, and restricts an employer’s use of an applicant’s criminal record history in hiring decisions.  The Iowa Association of Business and Industry (ABI) challenged Ordinance 5522 in court, seeking injunctive and declaratory relief on the grounds that the ordinance violates state law, namely Iowa Code section 364.3(12)(a).   Section 364.3(12)(a) prohibits cities from adopting ordinances that provide for terms or conditions of employment that exceed or conflict with federal or state law.

The trial court upheld the legality of Ordinance 5522 and ABI appealed.

On appeal, the Iowa Supreme Court focused on Iowa Code section 364.3(12)(a) and whether Ordinance 5522’s restrictions: (1) exceed or conflict with federal or state law; and (2) amount to terms and conditions of employment.  The Court first determined that the ordinance’s restrictions exceed the requirements of both Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act.  In reaching this decision, the Court considered the U.S. Equal Employment Opportunity Commission’s guidance that an employer could be liable under Title VII if its use of a criminal background check had a “disparate impact” on job applicants of a particular race and if the background check was not “job related and consistent with business necessity.”

Having satisfied the first prong of the analysis, the Court next concluded that Ordinance 5522’s restrictions on an employer’s use of an applicant’s criminal history in making employment decisions amounts to a term and condition of employment, and therefore satisfies the second prong.  However, the Court only extended its ruling to the employer’s “use” of the criminal history, not the employer’s “inquiry.”  The Court then severed the ordinance’s preempted “use” restriction and upheld the legality of the ordinance’s remaining limitation on “inquiries.”

This case offers three important takeaways for employers.  First, Iowa courts will sever all or parts of county or municipal statutes deemed to exceed or conflict with federal or state law. Second, businesses operating in Waterloo should be aware of Ordinance 5522, and its scope in light of the Iowa Supreme Court ruling. Third, periodically check the laws for the city/county in which your business is based.  Do not assume that only state and federal law apply.

If you have any questions regarding Iowa Ass’n of Bus. & Indus. v. City of Waterloo, “ban the box” laws and regulations, or any other employment law issues, do not hesitate to contact the attorneys at Jackson Lewis P.C.

In what is known as a “snap” removal, a non-resident defendant may be able to remove a state court case to federal court based on diversity jurisdiction, despite resident defendant(s) being named in the suit. To effect a snap removal, the non-resident defendant must file removal papers before the plaintiff can effect service on any resident or forum defendants. Although this procedure is not available to defendants in every state, a recent Fifth Circuit opinion makes clear that snap removals are fair game in Louisiana, Texas, and Mississippi. See Texas Brine Co. v. American Arbitration Ass’n, 955 F.3d 482 (5th Cir. 2020).

Federal courts exercise diversity jurisdiction over civil claims that “exceed[] the sum or value of $75,000” that are “between citizens of different states.” 28 U.S.C. § 1332(a)(1). Diversity jurisdiction provides a means by which a non-resident and/or out-of-state defendant may avoid litigating in state court. Generally, a defendant may remove a case filed in state court to federal court under 28 U.S.C. § 1441(b)(1) within 30 days after being served with initial pleadings. According to 28 U.S.C. § 1441(b), “a civil action otherwise removable solely on the basis of [diversity] jurisdiction… may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Therefore, because the statute specifically prohibits the action being removed if a served defendant is a citizen of the state in which an action is brought, courts have held that removal is proper if it occurs prior to service on a resident defendant, and the value of the claim exceeds $75,000.

In a recent appellate court decision, the Fifth Circuit issued an opinion agreeing with the Second, Third, and Sixth Circuits approving snap removal.  In Texas Brine Co. v. American Arbitration Ass’n, 955 F.3d 482 (5th Cir. 2020), a Louisiana plaintiff filed suit against two Louisiana defendants and a New York defendant in Louisiana state court. The New York defendant filed a snap removal from state court to fed­eral court prior to service on the Louisiana defendants. The Fifth Circuit held that the existence of a resident defendant did not present a procedural barrier to removal because the only “properly joined and served” defendant at the time of removal was the New York defendant.

District courts in the Fourth, Seventh, Eighth, Ninth, and Eleventh Circuits remain divided on the issue of snap removal. However, for non-resident defendants sued in state courts in the Second, Third, Fifth, and Sixth Circuits, racing to the federal courthouse to remove an action before plaintiff can serve resident defendants is worth the effort of the hustle.

Jackson Lewis attorneys are available to answer any questions you may have regarding snap removals, employment-related litigation, or any other employment law issues.

 When does the statute of limitations period begin to run on a harassment claim?  The California Supreme Court has ruled in Pollock v. Tri-Modal Distribution Services, Inc. that the time to file a cause of action for failure to promote brought under the harassment provision of the Fair Employment and Housing Act (“FEHA”) starts to run when the employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee.

Click here to read the full article on Jackson Lewis’ California Workplace Law Blog.

After nearly a decade of litigation, in Godrey v. State of Iowa et al, Case No. 19-1954 (June 30, 2021), the Iowa Supreme Court reversed a jury verdict granting $1.5 million in damages and $3.1 million in attorneys’ fees to the former Iowa Workers’ Compensation Commissioner, based on his allegation that the Governor of the State of Iowa reduced his salary because of his sexual orientation and in retaliation for prior complaints. The Iowa Supreme Court found insufficient evidence that the Governor knew that the plaintiff was gay when he reduced the plaintiff’s salary, which in part caused the plaintiff to resign his position.

The Court relied on its long-standing precedent that “to prove discrimination was because of an employee’s membership in a protected class, the plaintiff must prove the decision-maker knew of the employee’s membership in that protected class.” The Court found the fact that the plaintiff was openly gay, that several of the Governor’s top advisers knew the plaintiff was gay, and the Governor’s public opposition to gay marriage were together insufficient to establish that the Governor knew of the plaintiff’s sexual orientation. The Court indicated the fact that others in the workplace know of an employee’s non-patent protected class status is alone insufficient to make the inference that a decision maker was also aware. The Court also held that the plaintiff’s personal belief that the Governor knew his sexual orientation was insufficient when the plaintiff cited no factual basis for that belief.

The Court found that the State of Iowa and the Governor were entitled to a directed verdict and judgment notwithstanding the verdict (JNOV) on the plaintiff’s claims of sexual orientation discrimination and retaliation, reversed the judgment against the defendants and remanded the case for dismissal of the plaintiff’s claims.

This case is a good reminder for employers defending claims of discrimination based on an employee’s membership in a protected class that is not patent or recordable. Even if others in the workplace knew of an employee’s protected class status, this is alone insufficient to establish discrimination. The plaintiff must establish the decision maker was aware of their protected class status in order to establish discrimination.

  The U.S. Supreme Court has found that Philadelphia’s ordinance requiring a private foster care agency to certify same-sex couples as foster parents burdened the agency’s religious exercise in violation of the Free Exercise Clause of the First Amendment. Fulton et al. v. City of Philadelphia, Pennsylvania et al., No. 19-123 (June 17, 2021).

Justice John Roberts, writing for the Court, found that Philadelphia unconstitutionally burdened the religious exercise of Catholic Social Services (CSS) — a private foster care agency in Philadelphia — by “forcing it to either curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs.”

The Court’s decision primarily focused on whether Philadelphia’s Fair Practices Ordinance was both neutral and generally applicable and, therefore, constitutional, even if it incidentally burdened religion. For employers, however, the Court’s decision that CSS’s actions were not subject to the public accommodation provisions of Philadelphia’s Fair Practices Ordinance presents significant implications in cases alleging discrimination in places of public accommodation. The scope of this decision is limited in its application to the private sector.

Click here to read the full article on the Jackson Lewis website.

 

 

 

In its first all-virtual/remote video-cast hearing, the Equal Employment Opportunity Commission (EEOC) discussed workplace civil rights implications of the COVID-19 pandemic for employees and employers.  (Transcript of the April 28, 2021 hearing is available here.)  During the hearing, Chairwoman Charlotte Burrows acknowledged that the EEOC must help employers navigate the new workplace landscape created by the pandemic, including equal opportunity issues related to telework, public health announcements, and more.  Commission members also acknowledged the need for EEOC guidance on COVID-19-related issues, such as accommodation under the Americans with Disabilities Act (ADA), vaccine incentives, mandatory vaccination policies, selection criteria for layoffs or furloughs, and return-to-work policies and challenges.

Not long after the hearing, the EEOC updated its guidance on COVID-19 to include additional information on vaccines, incentives, and the confidentiality of vaccination status.

The hearing itself included two panels of witnesses from, or representing, communities hit especially hard by COVID-19.  Members of the Commission asked the panelists various questions to gain insight on how the EEOC should address contentious workplace issues. The first panel was comprised of a senior economist and policy expert, directors of advocacy groups representing Asian Americans, migrant workers, and women, and the presidents and executive directors of the Society for Human Resource Management and the Lawyers’ Committee for Civil Rights Under Law. Members of the Commission asked the first panel how, following months of extended periods of telework, the EEOC could help employers determine whether in-person work is an essential function. Panelists suggested the EEOC focus on retaliation, specifically in the context of changes in schedules and remote work, as well as establishing best practice guidance for safely returning to physical work sites, safety standards, and vaccination education. Other topics raised by the Commission in the first panel included: the type of guidance needed from the EEOC to address recent heightened awareness of discrimination toward the Asian American and Pacific Islander communities during the COVID-19 pandemic; whether retaliation claims have increased during the pandemic, and how the EEOC could reach affected vulnerable groups; and the type of vaccination incentives employers should offer.

The second panel included an expert on the American-Indian community, economics consultants, national labor and health policy experts, senior attorneys and experts with various organizations that combat disability discrimination, age discrimination, religious and national origin discrimination, as well as a Senior Vice President and Assistant General Counsel at the Center for Workplace Compliance (a national employer association). In response to Commission questions, the second panel recognized a pandemic-related increase in failure to accommodate claims, especially with regard to teleworking accommodations, as well as an increase in workplace harassment claims arising in new contexts, including virtually and in remote call settings. The second panel also discussed the need for guidance regarding vaccine incentives and mandatory vaccine policies to help employers avoid potential Title VII violations.  With regard to harassment claims, panelists recommended a strong anti-harassment policy and modifications to training presentations to address some of these new contexts.

The EEOC is expected to issue additional guidance on these and other pandemic and post-pandemic workplace challenges soon.

Jackson Lewis attorneys will continue to monitor and report any further developments from the EEOC. In the meantime, if you have questions about the EEOC, or any employment law issues, please do not hesitate to contact Jackson Lewis attorneys.

California law is not typically seen as amiable to compelling employees to arbitrate their claims. However, in Franklin v. Community Regional Medical Center, ___ F.3d___(9th Cir. 2021), the Ninth Circuit panel upheld a motion to compel arbitration by a non-signatory to an arbitration agreement based on California law.

Isabelle Franklin was employed by a staffing agency and assigned to Community Regional Medical Center’s hospital (CRMC). Franklin signed a mediation and arbitration policy and agreement that required Franklin and the staffing agency to arbitrate “all disputes that may arise out of or be related to [Franklin’s] employment, including but not limited to the termination of [Franklin’s] employment and compensation.” Franklin also signed an assignment contract with the staffing agency when she was assigned to CRMC. The assignment contract set forth the terms of her assignment including her hourly wage, overtime rate, length of shifts, and business expense reimbursement. The assignment agreement also included an arbitration clause. CRMC and Franklin had no contracts between them.

Franklin worked at CRMC for two months and then brought a class and collective action against CRMC only, alleging various state and federal wage and hour violations, including that CRMC required Franklin to work during meal breaks and off-the-clock.

The district court granted CRMC’s motion to compel arbitration despite being a non-signatory to the contracts between Franklin and the staffing agency. The district court stated that Franklin’s allegations were “intimately founded in and intertwined with” her contracts and employment with the staffing agency. The district court held that, under California law, Franklin was equitably estopped from avoiding the arbitration provisions in her employment agreements with the staffing agency.

The Ninth Circuit panel affirmed the district court decision, holding that California law allows a non-signatory to invoke arbitration under the doctrine of equitable estoppel even when the signatory attempts to avoid arbitration by suing non-signatory defendants. The Ninth Circuit stated that the doctrine of equitable estoppel prevents a party from “playing fast and loose with its commitment to arbitrate.”

This case is instructive for employers who utilize staffing agencies and highlights the importance of understanding the agencies’ agreements with their employees. Moreover, staffing agencies and similar entities should review their contracts with employees to ensure their clients are encompassed within arbitration agreements they enter into with employees.

Jackson Lewis attorneys can assist in evaluating the enforceability of arbitration agreements and coverage, as well as assisting in developing arbitration agreements.

The Seventh Circuit Court of Appeals recently reaffirmed employers’ rights under Title VII to make merit-based hiring decisions, even when it means rejecting a candidate who recently raised a meritorious claim of discrimination.

In Robertson v. Wisconsin Department of Health Services, 949 F.3d 371, 374 (7th Cir. 2020), the plaintiff reported discriminatory conduct in the workplace which resulted in her supervisor’s termination.  The plaintiff then applied for her supervisor’s position but was not awarded the job.  She later complained that the candidate selected to replace her supervisor treated her less than ideally.  The district court rejected the plaintiff’s Title VII retaliation claim because she failed to establish that her prior complaint was the “but-for” cause of her not being promoted and because she couldn’t overcome her employer’s legitimate motive for hiring another candidate. The court further held that the new supervisor’s minor workplace slights are not adverse employment actions that can give rise to a claim for retaliation.

The Seventh Circuit agreed with the district court.  Although the employee claimed that she was “objectively the most qualified candidate” for the director-level position, the Seventh Circuit held that an employee’s “own opinions” about her qualifications were not enough to prove the company’s selection of another candidate was retaliatory.  Rather, the plaintiff had to show that there could be no dispute that she was “clearly better qualified” for the position.  Here, she could not do so because the employer documented its legitimate reasons for selecting another candidate.

The plaintiff also claimed her new boss retaliated against her by disregarding her thoughts and preventing her from performing tasks she was assigned under her previous supervisor.  The court held that being given the “cold shoulder” or “snubbed” by a supervisor is not a materially adverse action that supports a claim for retaliation.  Instead, plaintiffs must show a materially adverse action, like a “change in work hours, compensation, or career prospects.”

The Seventh Circuit’s ruling in Robertson reaffirms several core principles for employers.  First, when making any hiring or promotion decisions, especially when considering a candidate who recently engaged in protected activity, it is critical to document the selection process, including the legitimate business reason for selecting a particular candidate.  Second, not every workplace slight is retaliation.  However, employers should seek counsel before making significant changes to the hours, compensation, or job responsibilities of employees who recently engaged in protected activity.

Jackson Lewis attorneys are ready and able to help employers navigate the complexities of employee complaints and their effects on employment decisions.  Please contact us if you have questions or need assistance.