A recent decision by the Pennsylvania Supreme Court underscores the fact that although an employer may be in compliance with the federal Fair Labor Standards Act (“FLSA”), it may at the same time be in violation of the Pennsylvania Minimum Wage Act (“PMWA”).

The case, In Re: Amazon.Com, Inc. et al. v. Amazon.com, Inc., Amazon.com.DEDC, LLC, and Integrity Staffing Solutions, Inc. (43 EAP 2019), involved a class action brought by two employees who worked at an Amazon warehouse in Pennsylvania and sought to be compensated for time spent at the premises waiting to undergo and undergoing mandatory security screening.

As discussed below, a federal district court had dismissed the employees’ claims under the FLSA and the PMWA, but the federal Sixth Circuit Court of Appeals certified the case to the Pennsylvania Supreme Court to address the questions as to whether the PMWA applied to the employees’ claims and whether there is a de minimus exception to the PMWA.

Reprinted with permission from the June 21st edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.

Since its enactment in 1986, employers have used the federal Computer Fraud and Abuse Act, 19 U.S.C. §1030 (“CFAA”) to vindicate violations of the employer’s workplace policies regarding use of computers, email accounts, and other electronic information by departing employees. The CFAA inevitably appeared as a claim in an employer’s complaint to address such conduct as downloading information from work computers and email accounts, or wiping devices and removing valuable information. The CFAA potentially provided relief where the information taken might not meet the definition of a “trade secret” in the federal Defend Trade Secrets Act (18 U.S.C. §1986), or Pennsylvania’s Uniform Trade Secrets Protection Act (12 P.S. § 5302). Further, and perhaps providing leverage for employers, the CFAA provided a criminal remedy for such violations. In Van Buren v. United States, 592 U.S. ___ (June 3, 2021), the United States Supreme Court may have eliminated that claim for wronged employers.

The CFAA prohibits intentionally accessing a computer with or without authorization or exceeding authorized access of a computer. The Act defines “exceeding authorized access” as accessing a computer with authorization and using that access to obtain information in the computer to which the individual is not otherwise entitled. The CFAA imposes criminal liability for violations of these prohibitions. It also imposes civil liability through a private cause of action if there is “damage,” meaning, an impairment to the integrity or availability of data, a program, a system or information.

Reprinted with permission from Lower Bucks Chamber of Commerce Outlook Magazine, July/August 2021 Edition

The pandemic changed the workplace dramatically, and perhaps permanently. COVID called upon employers to adapt to remote work with very little notice and preparation. Employers then adapted their offices and workspaces to allow employees to work safely in their facilities with masks and social distancing. And then, just as quickly, CDC modified its masking guidance. Employers are challenged to comply with changing guidelines and existing laws and a very competitive job market. Employers must consider new masking guidelines, vaccination mandates and remote work options, as well as the laws that apply to those considerations.

When the pandemic started, CDC guidelines presented a simple rule: In-person workplaces should require employees to wear masks, unless there was a health reason that prevented an employee from doing so. If an employee had a health reason not to mask, the employer could comply with the Americans with Disabilities Act, and the Pennsylvania Human Relations Act, by accommodating the employee who provided medical documentation of the health issue. The CDC recently changed its guidance to state that vaccinated people do not need to wear masks, and this is where it gets complicated.

The American Rescue Plan Act of 2021 (ARPA), among other significant items, imposed new obligations for employers pursuant to the Consolidated Omnibus Reconciliation Act (“COBRA”). Specifically, ARPA requires employers to provide COBRA premium subsidies to certain employees from April 1, 2020 through September 30, 2021. The requirement comes with complicating definitions, retroactivity provisions, and new forms, creating a temporary compliance issue for employers. On April 7, 2021, the United States Department of Labor issued Model Notices and “FAQ’s” to assist with these compliance issues.

The COBRA subsidy is available from April 1, 2021 to September 30, 2021 to “assistance eligible individuals,” that is, individuals who are eligible for COBRA coverage as a result of an involuntary termination or a reduction in hours. The Act specifically excludes individuals who voluntarily terminate their employment. “Assistance eligible individuals” are not required to pay their COBRA premiums from April 1, 2021 through September 30, 2021. The employer or plan to whom the individual would normally pay premiums is entitled to a Medicare tax credit for the amount of the premium assistance. There is no guidance from the Department of Labor or the Internal Revenue Service regarding these tax credits.

Model Contract Clauses to Protect Workers in International Supply Chains, Version 2.0

A working group formed under the American Bar Association (ABA) Business Law Section has announced a revised set of model contract clauses for international supply chains. The 2021 Report and Model Contract Clauses, Version 2.0 (MCCs 2.0) from the Working Group to Draft Human Rights Protections in International Supply Contracts are now finalized and can be found on the ABA Center for Human Rights site.  The MCCs 2.0 are one of several initiatives within the Business Law Section’s implementation of the ABA Model Principles on Labor Trafficking and Child Labor. The MCCs 2.0 are offered as a practical, contractual tool to assist inside and outside corporate counsel in efforts to reflect their clients’ commitment to stated human rights policies and desire to abide by international human rights soft and evolving hard law. Given the likely European Union and United Kingdom implementation of mandatory human rights due diligence, the mounting number of Withhold Release Orders in US ports, and growing investor concern with respect to environmental, social and governance (ESG) liability, the Model Contract Clauses should be of interest to all companies with complex supply chains and those that provide such companies legal services. Designed as a modular, practical tool for corporate counsel, the 2021 MCCs 2.0 are the first model contract clauses to implement “human rights due diligence” obligations in supply contracts. They attempt to integrate the principles contained in the UN Guiding Principles on Business and Human Rights (the “UNGPs”) and the OECD Due Diligence Guidance for Responsible Business Conduct into international contracts. The MCCs translate these principles into contractual obligations that require buyer and supplier to cooperate in protecting human rights and make both parties responsible for the human rights impact of their business relationship.

Reprinted with permission from the February 22nd edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.

In Martinez v. UPMC Susquehanna, the United States Court of Appeals for the Third Circuit clarified the specificity required in pleading prima facie  cases of discrimination in light of the holdings in Ashcroft v. Iqbal, 556 U.S. 662 (2009)  and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  The Third Circuit held that an age discrimination plaintiff need not plead the exact age or duties of the plaintiff’s alleged replacement in order to survive a motion to dismiss. 

The plaintiff in the Martinez case appealed an order issued by the United States District Court for the Middle District of Pennsylvania dismissing the case for failure to state a claim under Iqbal  and Twombly.    The defendant, UPMC Susquehanna, employed the plaintiff, Dr. Martinez, as an orthopedic surgeon.  Dr Martinez alleged in his complaint that UPMC Susquehanna terminated his employment and advised him that it was “moving in a different direction and his services were no longer needed.”  UPMC Susquehanna also told Dr. Martinez that his termination had “nothing to do with his performance.”  Dr. Martinez pleaded that he was seventy (70) years old, and that UPMC Susquehanna hired two doctors after his termination.  The Complaint alleged that one of the hired physicians took over some of Dr. Martinez’s job duties, and that the second doctor was hired in response to a job posting for an orthopedic surgeon.  Relevant to the Court’s analysis, Dr. Martinez alleged that both doctors were “significantly younger”, “less qualified,” and “less experienced” than Dr. Martinez.