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January 2018 Archives

Terminating an Employee on FMLA

The  Family and Medical Leave Act provides 12 weeks of unpaid leave to eligible employees who work for a company that employs 50 or more people. The Act also provides certain protections for eligible employees who avail themselves of the leave. What happens though if the employee taking leave appears to be abusing the protections?  How does an employer protect the business against benefit exploitation?

The importance of transparency

There are limits to the protections that a worker on FMLA can count on, at least according to one Texas court. 

An employee who acknowledged she was not meeting her performance metrics was put on a performance improvement plan. Within days of that action, she reported by email to her boss that she had been to a doctor and would be filing for short-term disability and FMLA.

A few weeks later the woman's boss caught wind that the employee on leave had been spotted at a music concert, in the company's skybox seats. Puzzled, the employer followed up with a voice message to the woman asking for a meeting about the incident.

When the woman balked at that, the employer sent an email insisting she be in touch by a time later that day. When that deadline passed, the boss fired her citing poor performance, her attendance at the concert and her failure to respond when asked to meet. The woman sued, claiming violations of her FMLA status and retaliation.

The case didn't make it far. The judge dismissed the suit, saying that the employer's had a right to investigate the suspected abuse of benefits and that her refusal to respond to legitimate questions was reason enough for the employer to conclude the leave wasn't validly taken in the first place.

One expert's analysis

What employers can take away from this case, according to one observer, is the importance of communication and documentation. Employers have a right to ask workers on leave to respond to legitimate questions about their status and the right to let a worker go if he or she refuses to communicate. It is also important to note that the employer in this case properly documented performance problems before the employee requested FMLA leave and promptly noted its requests for communication and the employee's refusal to comply. 

Of course, each case is different and needs to be gauged on its individual merits. If you have concerns about an employee on FMLA leave or would like training on FMLA procedures to protect your business, contact Kisner Law Firm's experienced employment law attorneys. 

Source:, "Viewpoint: If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?," Jeff Nowak, Sept. 25, 2017

What's an employer's obligation dealing with sexual harassment?

If you are planning to open a one-person business in Pittsburgh, you might not need to worry too much about the problem of sexual harassment in the workplace. If you have a team of people around you, however, that's another story. Business planning that addresses the broad scope of issues is necessary, including establishing employment policies and assigning consequences in cases of sexual harassment.

Whether you hire full or part-time employees or engage independent contractors in your business, there are laws that you need to comply with to protect your workers. In addition to that, you want to avoid the hassle and costly loss of goodwill that can occur when harassment allegations arise.

The necessity of employer vigilance

Considering the headlines that have splashed across the internet news outlets in recent weeks, it's apparent that issues surrounding sexual harassment are coming front and center. The spotlight is not dim in Pennsylvania, either. As recently reported, there are issues at the State Capitol as well.

Something that should also raise the awareness of current and prospective employers is a recent federal court decision out of the Eastern District of Pennsylvania. In the matter of Jones v. Pennsylvania State Police, a female trooper is claiming that two corporals in her chain of command failed to take prompt action when they were aware, or should have been aware, of harassment by a fellow trooper. To be clear, the alleged misconduct was brought to a halt, but the claimant alleges that it went on for nearly a year before that happened.

In the course of the discovery phase of the case, the PSP noted that it had acted to end the harassment and asked the court for summary judgment. But the court ruled there is a question of fact for a trial to determine about whether the two corporals were management-level employees and whether they acted promptly enough.

The takeaway from the decision, according to legal observers, is that while the law appears clear on what constitutes sexual harassment, there still can be questions about what constitutes proper and timely management response. This requires employers to remain vigilant which means working with experienced legal counsel, like those at Kisner Law Firm, to create a proactive plan to help prevent and defend against harassment and contacting your legal team if questions do arise. 

2018 marks sales tax changes in Pennsylvania

The Pennsylvania Legislature modified its state sales and use tax laws for 2018. Some of the changes are already in effect and others will be rolling out in the coming months.

House Bill 542 was passed on October 30, 2017 after several amendments. The biggest change in the law will affect out-of-state vendors.

The law imposes new requirements on marketplace facilitators, referrers and remote vendors that do at least $10,000 worth of annual sales in Pennsylvania. Starting March 1, 2018 they will now have an obligation to collect and remit tax on sales delivered into the state.

Pennsylvania is offering an opt-out to businesses that comply with reporting requirements and register with the Department of Revenue by March 31.

Pennsylvania businesses affected by new sales taxes

HB 542 also establishes new sales taxes on certain industries. Consumer fireworks will have a special 12 percent tax on the purchase price, which includes state and local taxes. This does not include ground or handheld sparkling devices, novelties or toy caps.

Fees are also being imposed on carsharing purchases. Carsharing is defined as "a membership-based service that provides an alternative to personal car ownership." Fees are $0.25 for rentals under two hours, $0.50 for rentals lasting two to three hours, $1.25 for rentals between three and four hours, and $2 for rentals over four hours.

Exemptions from sales taxes

Other businesses are exempt from sales and use tax under HB 542. Kegs used to contain malt or brewed beverages became exempt as of the bill's passage.

The law also specified, as of its passage, that taxable canned software includes support services "except separately invoiced help desk or call center support." Since August 21, 2016, Pennsylvania has taxed the transfer of certain digital products, including apps, books, canned software, games, music and video.

If you are starting a business in these industries in 2018, an accounting professional can explain how taxes do or do not affect the product you sell and adjust pricing accordingly for your customers. As you are working on the business formation, you can discuss legal needs with an experienced business law attorney who understands how to be successful in Pennsylvania enterprise. 

Justified employee policies to enjoy greater weight, says NLRB

We continue now with our series of deeper dives into a wave of recent decisions by the National Labor Relations Board. As we noted in one recent post, the NLRB reversed a number of rules, specifically targeted were policies that employer advocates felt tilted legal scales toward supporting worker unionizing efforts.

In this post, we intend to examine more closely a decision that overruled an earlier board action that put a crimp on employers' ability to establish certain employee policies - even ones for which an employer might have solid justification. Based on early reaction, it seems businesses feel the move will help avert employee disputes and restore balance to organizing processes protected by law.

The hazards of "reasonable"

In questionwere Section 7 rights granted to workers seeking to organize under the National Labor Relations Act. The standard at issue was that employers could not include policies in their employer handbooks that might be "reasonably construed" by workers as infringing on their rights to organize.

At issue was a policy of the Boeing Company against using any device to take pictures on company property. The policy did not prohibit employees from discussing employment conditions or engaging in NLRA-protected activities. The indications from case documents are that Boeing was concerned about company security. However, a judge ruled that the policy violated the act because it could be "reasonably construed" as an organizing infringement.

In reversing the policy on a 3-2 vote, the board reversed the judge's decision, saying that the "reasonably construe" standard failed to give weight to Boeing's legitimate concerns. It also said that going forward, its employer policy and handbook reviews would seek to strike more balance in cases where employer justification can be shown.

What does this mean for employers? While more latitude may be given, the key take away is that there must be 'justification' for handbook and other employer policies. Therefore, employers will want to carefully review rules and ensure they have good reasons for their policies that do not otherwise run afoul of NLRB or other agency rules. Kisner Law Firm's experienced employment law attorneys can assist in crafting specialized policiies and answer questions about these new rulings. 

One positive effect of reversed 'joint employer' standard

In one of our latest posts, we reported on three recent decisions by the National Labor Relations Board that analysts describe as notably pro-business. In broad terms, the board was able to leverage a brief 3-2 Republican majority to reverse several rules that business advocates found tilted the scales in favor of worker unionization.

In this post, we intend to look more closely at the decision that rolled back the 2015 NLRB established definition of what constitutes a joint employer. Previously the board determined that the joint employer designation could apply in labor disputes, even when one organization exercised only indirect control over another. Critics observed that this broad standard meant it was easier for contractors and employees in franchised businesses to organize.

Reversal provides more business protection

The specific rule in question is the Browning-Ferris Industries decision. In it, BFI was found to be a joint employer with another company it had hired to provide contract workers for various BFI functions. Despite the contractor relationship between the two firms, when workers sought to unionize, the board declared them joint employers based on indirect control.

At the time of the decision, the board said it was needed to "keep pace with changes in the workplace and economic circumstances" as reflected in an economy where gig and contract work is on the rise. However, observers noted the ruling could spark labor relations issues where none had existed before and increase risks for companies that rely on third party staffing or contractors for their human resource needs. The NLRB ruling last month reinstated the direct control test; providing what some call more protection to businesses.

To be clear, the NLRB did not jettison the joint employer standard altogether. It merely rolled the definition back to state that such conclusions depend on applying the test of direct control by the entities involved. Employee disputes will still occur and where counsel or litigation is required, the Kisner Law Firm stands ready to serve.

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