As Appeared in Law360, "Pa.'s Top Employment Law Developments In 2018," By Stephanie Rawitt, Clark Hill PLC

PHILADELPHIA, PA- December 21, 2018, Law360 published the following article, "Pa.'s Top Employment Law Developments In 2018," by Stephanie Rawitt of Clark Hill PLC. To view the article on Law 360, click here. 

Pa.'s Top Employment Law Developments In 2018

Year end is always a good time for employers to take the time to evaluate their policies and practices to make sure that they remain in compliance with federal, state and local laws. While 2018 has not been an incredibly active year for employment law issues in Pennsylvania, there have been newsworthy events and some legislative changes worthy of attention.

The gender wage gap, paid maternity leave, and the responses of employers and the state Legislature alike to the #MeToo movement have required employers to verify that their pay equity, leave and sexual harassment policies are up to date and that they are being appropriately followed. Employers within the Philadelphia city limits should also be aware of a new law, the Philadelphia fair workweek law, which will become effective in 2020.

#MeToo

The #MeToo movement was born in the fall of 2017 after the revelation of a string of high-profile sexual harassment complaints in the entertainment, news and sports industries. The hashtag spread virally over social media and thrust the issue into the national spotlight. The message: Despite the existence of federal and state anti-discrimination and harassment laws, sexual discrimination, assault and harassment are still prevalent in the workplace in the 21st century. At the federal level, we saw response to the movement in the new tax laws, i.e. employers cannot claim settlement funds as a business expense in sexual harassment matters if a confidentiality clause is included, as well as enhanced administrative agency action at the U.S. Equal Employment Opportunity Commission both with its training programs and a notable increase in the number of sexual discrimination/harassment cases filed.

At the state level, we have seen a response as well. In its most recent session, state representatives in Harrisburg considered multiple pieces of legislation dealing with the issue. One such piece of legislation calls for a year-long study by an 11-member task force into the laws and policies that exist to guard against harassment and sexual misconduct in the workplace, and recommendations on improvements that can be made. The second piece directs the Joint State Government Commission to evaluate workplace and sexual harassment policies in place in state government agencies and to study complaints made over the last five years to determine how they were handled and what steps can be taken in the future both as a preventative measure as well as in terms of how the complaints themselves are handled. Although these proposals may seem like small steps forward, it is clear that our state government understands the need to dig into the issue and then use the information secured to facilitate positive change.

Pay Equity

Pay Equity has also been at the forefront of concern over the past few years. At the federal level, the EEOC highlighted pay equity as a focus point several years ago and now Pennsylvania has followed suit. According to data posted by nationalpartnership.org, women in Pennsylvania are paid an average of $10,733 less per year than their male counterparts. This gap is even more troubling for minority women. The study showed that black women earn $16,998 less and Latina women make $22,724 less than the average man. Organizations such as The Women’s Law Project are determined to close this gap by targeting Pennsylvania legislation that they consider to be outdated. Pennsylvania’s equal pay law has not been updated since 1967. According to their website, The Women’s Law Project attorneys have assisted in drafting the necessary corrective legislation, hosted roundtables and panels addressing ways to close gender and racial wage gaps and testified before both Philadelphia City Council and the Pennsylvania House Labor & Industry Committee on the subject of equal pay.

While we have yet to see sweeping change at the state level, we have seen some legislative change at the local level and it appears that state change will follow. Pittsburgh City Council last year passed a bill, introduced by then-Councilman Dan Gilman, that prohibited agencies, departments and divisions under the local government umbrella from asking about salary history. This comes after a similar bill was also signed into law in Philadelphia. Gov. Tom Wolf has also signed an executive order which applies to management-level and nonunion positions in agencies under his jurisdiction which prohibits the asking of salary history questions.

The order encompasses more than 13,000 filled positions and 2,189 open ones, according to the governor’s spokesperson. When asked about the motivation behind the ban, Wolf was quoted as saying “[asking about salary history] traps women in a cycle of being underpaid, causing them to disclose previous wages which may have been significantly lower than they should have been.” Wolf went on to say “It just perpetuates the cycle.” While the salary history ban is just one small step toward erasing the gender wage gap in Pennsylvania, it is likely a sign of things to come as this issue remains a hot topic of discussion at the state and federal level.

Maternity Leave Pay

Paid leave has been a hot topic issue at the federal, state and local level for the past few years. Many cities and states have enacted paid leave laws. In line with this focus is the issue of paid maternity leave. Pennsylvania does not have any state laws requiring maternity leave pay at this time. Currently California, New Jersey, New York and Rhode Island are the only states that guarantee paid leave for new parents. According to the dailyitem.com, these programs are funded by employee payroll deductions through pre­existing temporary disability insurance programs.

The Pennsylvania Department of Labor’s 2017 Paid Family and Medical Leave study found that 69 percent of employers currently don’t offer paid family and medical leave to their employees. While there have not been many updates to report at the state level in Pennsylvania, the idea of providing paid leave for both parents after having a child has been a hot topic of discussion, with many private companies using the benefit as a recruiting tool to attract employees. Time will tell if Pennsylvania will become one of the next states to provide paid medical leave for parents, but for now it remains a choice for employers to offer at their discretion.

Philadelphia’s New Fair Workweek Ordinance

On Dec. 6, 2018, Philadelphia joined New York and San Francisco as one of the first handful of cities to alleviate burdens to hourly employees created by inconsistent work schedules. Although covered employees will face multiple new restrictions, the focus of the law is on scheduling. Covered employers will be required to provide hourly employees with a written work schedule at least 10 days in advance (set to increase to 14 days in 2021), provide newly hired employees with a written, good faith estimate of their schedule, provide predictable pay, give consideration to employee work schedule requests, provide mandatory rest periods between shifts and offering open shifts to existing employees before hiring new employees or subcontractors. The new law will be effective in 2020.

Wage Laws and Litigation

Employers should remain aware of their obligation to abide by federal and state wage laws. Despite the repeal of a number of Executive Orders concerning wage and hour issues, our state and federal Departments of Labor remain focused on wage and hour compliance and the number of wage and hour suits at the state and federal level have remained consistent. Employers should take the time either at year end or the beginning of the new year to evaluate job classifications and job duties to make sure that employees are appropriately classified as exempt or nonexempt, to make certain that time is being tracked appropriately and overtime is being paid where and when it is due. Also be aware that Pennsylvania is about to pass regulations that will raise the salary thresholds for exempt employees, similar to those that were almost instituted at the federal level in 2017.

Other Employment Issues to Focus On

Health care issues, LGBTQ issues in the workplace, medical marijuana, disability, leave, cybersecurity and age discrimination are issues that have seen some focus on the federal and state stage over the past year or so. It is likely that we will see further legal developments in 2019 and beyond.

Conclusion

Employment issues are ever changing and evolving as are an employer’s business needs and responsibilities. Even in a year where there is not much new change, there is still change that requires employers to pause and make sure that their workplace policies and practice remain in line with federal, state and local law requirements. Employers should set aside the time to evaluate their handbooks, policies and practices annually and consult with counsel concerning developments and changes in employment laws.

Stephanie Rawitt is a member at Clark Hill PLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.