Lancaster Law Blog : Lancaster PA Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Pennsylvania : Lancaster's Legal Link

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The Human Resource Blog has a great post on the benefits of hiring a summer intern. At the risk of throwing the legal wet blanket on internship programs, employers need to be cautious when it comes to unpaid interns. The FLSA provides minimum wage and overtime protection to those employed within the meaning of the Act. FLSA section 3(g) states that to “employ” means to “suffer or permit to work.” The Supreme Court in Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947), identified six factors to evaluate whether a trainee, intern, extern, apprentice, graduate assistant, or similar individual is to be considered an employee. If all of the following six factors are met, then an employment relationship does not exist and compensation is not due:

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On May 29, 2007, the United States Supreme Court ruled that employees may not bring suit for sex discrimination in an employer's pay practices under Title VII of the Civil Rights Act of 1964, unless they have filed a charge with the EEOC within 180 days (300 days in the case of Pennsylvania) after their pay was set. The clock begins to run even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

In Ledbetter v. Goodyear Tire & Rubber Co., the majority rejected the view of the EEOC, that each paycheck reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day or 300-day period, under a rule known as “paycheck accrual.”

The impact of the decision on women may be somewhat limited by the availability of another federal law against sex discrimination in the workplace, the Equal Pay Act (EPA), which does not contain the 180-day/300-day requirement. The EPA has additional procedural hurdles and a low damage cap that excludes punitive damages. It does not cover discrimination on the basis of race or Title VII’s other protected categories. However, the decision may signal the Court's willingness to limit the concept of a "continuing violation" which allows employees to circumvent the limitations periods for filing charges with the EEOC by showing that the effects of a discriminatory act continue to the present time.

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Beginning September 30, 2007, Employers who are required to submit EEO-1 Reports to the Equal Employment Opportunity Commission (“EEOC”) must do so on a new form. The EEO-1 Report collects annual data on the race, sex, and ethnicity of the workforce of private employers with 100 or more employees and certain federal contractors.

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Merrill Lynch tried to prevent abuses in sick time by clamping down on the reasons for sickness related absences and disciplining employees for excessive absenteeism. Many employers have decided to get away from policing the circumstances of an employee's absence by just creating a bank of paid time off that can be used for any reason. Once PTO is exhausted, time is unpaid and subject to the attendance discipline policy. This certainly sounds like a great idea, but here are some practical and legal considerations in converting from a traditional sick pay program to a PTO plan:

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Sick day programs are one of the most fretted over of all employment policies because they involve so many management and legal issues. Sick time is disruptive to the workplace because it is almost always unscheduled. Misuse of sick time has a dramatic impact on employee morale because of work inequity perceptions. Employers must manage abuses within the legal parameters imposed by the wage & hour laws, disability discrimination protections, Family and Medical Leave Act compliance, and wage payment regulations.

Almost every employer offers some form of sick time benefit.   Statistics show that the average business offers 8.1 sick days per year, but employees use only 5.2. However, the growing trend is away from traditional sick days to creating a paid time off bank (PTO). PTO programs combine into one pot all categories of time off, like vacation, sick days, personal days, and floating holidays. Some of the advantages and disadvantages of PTO are as follows:

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Helicopter parents may hover over their children, but what's their management style in the workplace when it comes to other people's kids and their peers? Phyllis Weiss Haserot on her Blog "Practice Development Counsel" posted a set of questions concerning how Helicopter Parents operate as managers in the workplace some of which are as follows:

• Do the helicopter parents (those that hover too much and interfere) exhibit similar behavior with their juniors as they do with their children? Do they bring their parenting style to the workplace to over-protect and push their people ahead?

• Or do they take an opposite approach and expect great results without giving the guidance and support they want for their children?
• Are Baby Boomer managers (only some of whom are "helicopter parents") hard on younger generation workers because they are demanding the results they would like to see from their children, but without the coddling they give their kids?
• Is it because many Boomers are so competitive and status conscious that they want everyone (children, junior people on their work teams, etc.) to make them look good?

If we assume that Helicopter Parents operate as Helicopter Managers too, what impact will that have on the workplace culture and risks of litigation?

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Pennsylvania law allows for a 5% annual discount on workers' compensation insurance premiums to employers that  establish a certified safety committee.

To qualify for the insurance discount, an employer must establish a safety committee that meets certain requirements, fill out a committee certification application, and have it approved by the Department of Labor and Industry.

The requirements for a committee are as follows:

• Committees must have a minimum of 2 employer and 2 employee representatives, meet monthly and be in operation for at least 6 full months.
• All committee members must be trained by qualified trainers in safety committee operation, hazard inspection and accident investigation.
• Committee meeting agendas, attendance lists and meeting minutes must be kept.

The Department of Labor and Industry Website has the following helpful links:

Process Overview:

Certification Process Overview

Application for Initial Certification:

Online Filing using HandS 

PDF Application (LIBC-372) 

Application for Renewal Certification:

Apply for Renewal Certification

Help in Getting Certified:

Health & Safety Division Contact Information

Safety Committee Technical Assistance Manual

Required Committee Member Training

Certified Employer Network

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The Today Show featured a story on "Helicopter Parents : Helping Your Child Get a Job" which was an interesting foil to our recent posting.   Matt Lauer's guest was Dr. Michele Borba (whose blog appears on iVillage website). Dr. Borba referred to some helicopter parents as 'Blackhawks" and said  that these parents haven't struck the correct  balance between "mentoring and meddlesome". However, the show noted that many large companies like General Electric are embracing helicopter parents by inviting them into the recruiting process and targeting them with advertising. I think  employers will need to be flexible in their approach to parents in the recruiting phase. Human resource professionals face the challenge of drawing the boundary at the workplace once the recruit is hired.

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All Pennsylvania employers are required to report all newly hired employees to the Pennsylvania New Hire Reporting Program within 20 days of the date or hire. Pennsylvania will match New Hire Reports against its child support records to locate non-custodial parents, establish child support orders, or enforce existing orders. Pennsylvania will also transmit the data to the National Directory of New Hires to match against child support orders from other states.

Employers may report their new hires by any of the following methods:

• W-4 Form - Date of hire, contact name and contact phone number must be listed separate, signature date is not a valid date of hire. Please make sure you complete all employee and employer information including lines 10 & 12.
• New Hire Form
• Internet through a Web page
• Diskette or Magnetic Tape
• E-mail or FTP

An employee must be reported as a "new hire" under the following conditions:

1. a new employee
2. a former employee who is:

• rehired following termination,
• rehired following separation,
• returning to work following a lay off, or
• returning to work following a requested leave of absence without pay greater than 30 days

If the employee does not fall into any of the above categories, the employee does not need to be reported as a new hire. A temporary agency does not need to report an employee for each work assignment.

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The PA Workers' Compensation Act gives employers the right to establish a list of designated health care providers. When the list is properly posted, injured workers must seek treatment for the work injury or illness with one of the designated providers for 90 days from the date of the first visit. There are some specific guidelines provided in the rules and regulations[Subchapter D, Sections 127.751 through 127.755 of the rules and regulations found on page 237 of the Workers' Compensation Act] for these lists:

• The employer must provide a clearly written notice to employee of the employee's rights and duties.
• The notice must be signed by the employee at the time of hire, whenever changes are made in the list and at the time of injury.
• The list must contain at least six providers; three of the six providers must be physicians.
• Providers as defined in the Act are more than just physicians (includes chiropractors) .
• Each provider's name, address, telephone number and specialty must be included on the list.
• If a particular specialty is not on the list and the specialty care is reasonable and necessary for treatment of the work injury, the employee will be allowed to treat with a health care provider of his or her choosing.
• The employer may not direct the employee to any specific provider on the list.
• The employee may switch from one designated provider to another designated provider.
• Listed providers must be geographically accessible.
• Listed providers must contain specialties appropriate for the anticipated work-related medical problems of the employee.
• If employer's list of designated providers fails to comport with the Act and the regulations, the employee has the right to treat with a provider of his or her choice.

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Pennsylvania employers are required to post certain notices in their worksites so employees have access to and information about applicable labor laws. These posters can be downloaded for free from the Department of Labor and Industry website.  The website identifies each poster with links to the content of the poster, which employers are required to post it and contact information should you require additional information.

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Imagine that your company has decided to make a job offer to a very promising Ivy League MBA candidate. You call the candidate to communicate your company's very generous offer and what's the response?

"My mom will call you back to negotiate my compensation package". Welcome to your first encounter with a "Helicopter Parent". For the moment, let's leave aside the issue of whether this level of parenting does more harm than good and focus on the issue as framed by Stephanie Armour in her recent USA TODAY article:

Employers are finding that parents are increasingly involved in their children's job choices, as "helicopter parenting" extends to the workplace.

As Generation Y enters the job force, parents of new hires are calling employers to negotiate salary and benefits, and some are even showing up at job fairs. It's a new dynamic that has some employers responding by training recruiters and managers how to handle "helicopter parents," who hover over their children's lives.

Here are some considerations that I think are worth evaluating in anticipation of Mom or Dad's call:

• Temper your Gut Reaction: The almost universal reaction of most Baby Boomers and Gen X'ers to this scenario is shock and aghast. How can this seemingly bright candidate allow parents to run his or her life? However, this is a value judgment that ignores the sociological and demographic facts. The real questions are: Do you want the candidate or not? Are you willing to negotiate under these terms?

•  Balance the Pushback: Hey why not? Professional athletes and Hollywood stars, have agents do their negotiations and no one considers that a poor reflection on their future job performance. Evaluate whether parental involvement at the recruiting stage is really indicative of an inability to perform in the job. Obviously, these three-way conversations will have to stop once the candidate becomes an employee because that truly relates to job performance.

• Consider the Sociology: Generation Y also called the Millennials has already been labeled with there own set of workplace attitudes which may not respond well to the traditional recruiting model. Gen Y'ers collaborative relationship with others including their parents may make others a natural part of their decision making process. But where does it stop? Certainly parents cannot become an ongoing collaborator in workplace performance and personnel issues. Undoubtedly taking a cue from the academic world ,which is ahead of the curve on this one, would be appropriate. Academia's approach has been to develop a hard line in keeping parents out of the classroom.

• Recognize the Demographics: Following the acclimation of Gen-X'ers into the workforce, demographics have become a worthy consideration for HR professionals in sculpting corporate culture. The challenge becomes integrating the next generation of Helicopter Parents and Boomerang Kids. As noted by Carolyn Tang in her article "The Great Divide":

Traditional suit-and-tie Baby Boomers are interacting with denim-clad colleagues from both Generations X and Y. Disparities in career expectations and attitudes between the old guard and the new are causing subtle, yet significant shifts in corporate culture and the working environment. And perhaps some tension as well.

So what's the recommendation on HR's approach to helicopter parenting?

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Pennsylvania is a strong at will employment  state, but what does that really mean? Employment at will is only a contract term. It creates a rebuttable presumption that all employment contracts can be terminated by the employer or the employee at any time, for any reason. However, the "reason" cannot violate discrimination laws, government regulations, or public policy. The Pennsylvania Supreme Court has been very conservative in recognizing public policy exceptions to the at will employment presumption limiting them to the following circumstances:

• Supervisor fired for refusing to dissuade employee from seeking W/C benefits
• Employee fired for filing a worker's compensation claim
• Employee fired for filing unemployment claim
• Employee fired for refusing to take polygraph test.

Don't think that you don't need a "reason" to terminate an employee in Pennsylvania.  And make sure its not an illegal one.

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There are psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

• Previous history of violence, toward the vulnerable, e.g., women, children, animals
• Loner, withdrawn; feels nobody listens to him; views change with fear
• Emotional problems, e.g., substance abuse, depression, low self-esteem
• Career Frustration, either significant tenure on the same job of migratory job history
• Antagonistic relationships with others
• Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order .

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and the treatment of employee conduct that exhibits violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

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Many employers rely on the decision in Statler  v. U.C.B.R, 728 A.2d 1029 (Pa. Cmwlth 1999) as a blanket justification for mandating that all employees submit to direct deposit.  In Statler, a union employee refused to sign a direct deposit authorization form as mandated by the collective bargaining agreement and the employee was fired. He was ruled ineligible for unemployment benefits because he engaged in willful misconduct because his refusal was unreasonable.

Those who rely on this case may be right; however, there is an important assumption underlying this reliance which can be described as follows:

• The Pennsylvania Wage Payment and Collection Law requires the payments of wages be made in cash or check;
• The Pennsylvania Electronic Fund Transfer law allows payment of wages by electronic transfer whenever a party requests the method of payment in writing;
• The request must be in a written agreement that includes the terms under which a wage earner may withdraw the request and terminate the agreement;
• Unionized employees make their collective request through the terms of the collective bargaining agreement negotiated by their authorized bargaining agent (the "Union").

Can nonunion employees be compelled to authorize or "request" direct deposit as a condition of employment or continued employment?

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As a follow up to the previous posting, Dr. Ira Wolfe offers his thoughts on Psychopathy in the Workplace based in part on his experience with personality assessments conducted through his business Success Performance Solutions. Thank you Ira for your contribution. 

When Psychopaths Go to Work 

We may never know the final diagnosis that drove Cho Seung-Hui to his mass murder spree at Virginia Tech but one thing is for sure: our desire to know "What on earth is wrong with that guy?" will continue. 

Fortunately most of us will never have to face what the students and faculty did on April 16, 2007. What many of us have and will experience are our interactions with an equally destructive and dangerous group that lurks behind many resumes and executive desks. Specifically I'm writing about psychopaths who are walking and working among us every day.

Many of you will likely have the same reaction as I did when I picked up a copy of a new book, "Snakes in Suits: When Psychopaths Go to Work": you're thinking serial killers and stalkers or picturing Hannibal Lecter, Freddy Krueger, and Dr. No. Reality however paints a far different picture. Psychopathic behavior is not illegal. It is not in fact even classified as a mental illness. Psychopathy is a personality disorder and hiring managers today often confuse its symptoms with success attributes.

Psychopaths live and work freely among us. In fact in today's dog-eat-dog world where greed is good and the survivor of the fittest earns the most riches, psychopathic behavior is innocently recognized as talent. For example, how many rising stars have you known who are driven, ambitious, resilient, charming, articulate, intelligent, and charismatic? Their mere presence disarms the most skeptical while their supporters fawn and idolize them. Now remove a moral conscience and the incapability of empathy, guilt or loyalty to anyone but themselves and viola - you have a psychopath. What interviewers see is not always what they get.

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Volunteer firemen, fire police, or any volunteer member of an ambulance service or rescue squad may not be disciplined or terminated for responding to a call prior to the time he is due to report to work that results in loss of work time. The employee need not be paid for the missed time. The employee must provide a statement from the chief executive officer of the fire or ambulance company stating that he or she responded to a call and the time of the call. 43 P.S. §§1201-1205; Guiffra v. International Paper Co., 931 F.Supp 372 (E.D. Pa. 1996).

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The Pennsylvania Employment Law Blog has added a new section which highlights and/or discusses legal situations which commonly confront human resource professionals. Click on the link titled "Did You Know? PA Employment Law Highlights" on the upper right side of the page. The short informational postings address Pennsylvania law's impact on specific HR activities to promote compliance, proactive risk management, and issue identification.   The postings will be made on a regular basis and archived in this special section of the blog for our reader's reference and review. 

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By Dr. Ira Wolfe and Michael Moore

In the aftermath of Cho Seung-Hui’s mass killing of 32 people at Virginia Tech, the question that dominates discussions from the water cooler to the halls of Congress after every incident of workplace or classroom violence is: How could this have been happened and what can we do to prevent it from happening again?

The prevention analysis is already following the familiar two-step paradigm of trying to assess an individual's propensity for violence and then excluding the potential perpetrator from school or work based on the risk. However, both steps of assessment and exclusion pose a risk for employers.

The assessment aspect has likely captured the most attention, especially with employers.  Psychological testing for job fit got its start nearly ninety years ago. The Surgeon General's staff administered intelligence and personality tests during World War 1 to the almost two million recruits of the American Expeditionary Force. The soldiers were given the Wordsworth Personal Data Sheet, a 125-question inventory, that was supposed to detect personalities that would crumble under fire. Although this test led to mixed results, it spawned a revolution in psychological research and the creation of predictive personality models and assessments. 

The majority of these early assessments, including the Minnesota Multiphasic Personality Index (MMPI), were clinical in nature, constructed and validated to diagnose psychiatric disorders.  The MMPI is considered one of the most researched psychological tests and, as a result, remains consistently ranked as one of the most reliable psychological instruments used by psychologists today.

With that endorsement you would expect every employer, college president and school superintendent to be ordering up MMPI evaluations as fast as shoppers flock to malls during post-holiday sales.  If only it were that easy.  Despite the requirement that employers provide a safe environment for their workers, government regulations place an even higher priority on protecting the rights of the individual.

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Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks or "rest periods" (usually lasting about 5 to 20 minutes), federal law considers the breaks work-time that must be paid. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, are not work time and are not compensable.

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Design of an effective wellness program requires collaboration between insurance brokers, benefit providers and legal advisors in light of limitations placed on certain aspects of their design by HIPAA's Nondiscrimination Requirements.    Under the final regulations that take effect for plan years beginning after July 1, 2007, HIPAA impacts the design of wellness programs that take into account "health factors" when providing incentives under the program. Programs such as the following that do not take into account a participant's health factors when a reward is given or withheld for participation by an employee or beneficiary:

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As Steve Buterbaugh noted in the previous post, successful Wellness Programs need specific goals and top level support. These two factors play out in the design and implementation of the programs.

Wellness Programs have been successfully implemented by many central Pennsylvania companies.  One successful program was highlighted by David Wenner in a recent article about D&E Communications.  D&E's Wellness Program likely succeeded because it had a specific goal (90% employee participation in a health assessment) and it had a commitment from the top of the organization(CEO personal appeals).  These aspects are outlined in Mr. Wenner's article as follows:

D&E had been looking for a way to hold down health insurance premiums, which had risen 12 percent in 2005 and 20 percent in 2004, said Judy Naylor, vice president of human resources.

Highmark Blue Shield recommended its wellness program, Lifestyle Returns. The insurer offered D&E a 2 percent premium reduction this year if 90 percent of employees participated in the first two steps of Lifestyle Returns, Naylor said. Employees had to pledge to become more health conscious and complete an online health risk assessment.

D&E qualified for the premium reduction, which amounted to about $100,000. It divided the money among participating employees, giving each a $200 reward.

…

 Participation reached 65 percent after about six months, then stalled.  CEO James Morozzi begin visiting each work site and making personal appeals. In the end, 96 percent of employees completed the health risk assessment, which asks about their health-related habits.

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Training time is counted as hours worked and therefore compensable even if it occurs after normal business hours.  It is compensable at the employee's normal rate and counts toward overtime if the employee exceeds 40 hours in that week.  If an employer has an established training rate, it could pay the training time at a different rate; however, most employers don't  pay at a different rate. There is an exception to the requirement that the training time be paid, if all the following can be met:

• Attendance is outside the employee's normal work hours;
• The employee's attendance is completely voluntary (meaning attendance is not expressly or impliedly a condition of employment or advancement)
• The training is NOT directly related to the employee's job duties
• The employee does not perform any productive work during his or her attendance.

There is also an exception for voluntary attendance at a lecture or course that is job related if the course or lecture is offered by a third party like a school or vocational institute not affiliated with the employer. For more information see the Department of Labors Bulletin on this subject.

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Design of an effective wellness program requires collaboration between insurance brokers, benefit providers and legal advisers. There are particular considerations relating to HIPAA's Nondiscrimination Requirements which I will discuss in my next post. Before we get to that, I am pleased to share the following contribution from Steven P. Buterbaugh, CPCU, AAI of E.K. McConkey & Co. Insurance. Thank you to Steven for being our first guest blogger. 

Wellness Programs Have Positive Impact on Group Health Insurance and Overall Company Productivity

Businesses are under constant and increasing pressure to find ways to manage and reduce health benefit expenses while maintaining or improving employee morale and productivity.

Benefit redesign and changing employee contributions are often the first options to consider, but these can strain the important relationship between employer and employees. Significant long term savings will only occur when member health is actually improved, and this is where a wellness initiative can make an impact.

There is a wide disparity between the average claims and cost/person for someone who has a chronic illness and the average claims and cost/person for someone with non-chronic illness.  (See Chart) 

As we often are reminded through the media, there has been an increasing prevalence of chronic illness in our society including Obesity, Diabetes, and Heart Disease. Following are some compelling statistics:

• Obesity- The CDC’s Health-E Stats for 1999-2002 show that 64% of adults in America age 20 and over are overweight or obese^.
• Diabetes- the National Diabetes Information Clearinghouse states that:
  • Each year, approximately 798,000 people are diagnosed with diabetes
  • Diabetes is a leading cause of death and disability and costs $92 billion per year in direct medical costs.
• Heart Disease- in 2002, there were 23 million adults diagnosed with heart disease according to the Centers for Disease Control Summary Statistics for U.S. adults. The CDC also reports heart disease as the number one cause of death in the United States.

While these “big three” chronic health conditions are to some extent preventable and/or treatable, current health protocols can only do so much to address these problems.

Long term, the most effective way to control claims costs and keep insurance premiums down is to prevent claims from being incurred through health improvement.

The positive effects of a wellness initiative are cumulative. The longer the company participates, the greater the impact you should see. Taking action now could help stave off the development of future chronic conditions that will inevitably affect your bottom line and productivity in the future.

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Both Pennsylvania and Federal Laws apply to the garnishment of employee wages. Under Pennsylvania Law, wages and earnings of employees may not be garnished or attached except for repayment of student loans, child & spousal support and to collect unpaid taxes. 42 Pa.C.S.A §8127. Under the federal Consumer Credit Protection Act (CCPA), employees are protected from discharge by their employers because their wages have been garnished for any one debt, and limits are imposed on the amount of an employee's earnings that may be garnished in any one week. The Department of Labor has published guidance on the limitations imposed on wage garnishment.   Fact Sheet # 30 also describes the amount that may be withhold for specific types of garnishments.