Philadelphia Employment Law News

Can Employers Ask About an Applicant's Criminal History?

2013-05-22T16:35:01Z

Employers perform background checks for a number of reasons. Whether or not it's for a valid reason, an applicant's background check can affect a candidate's ability to get a job. But in Philadelphia, employers should be wary of digging into a candidate's criminal history -- it could be illegal.

In step with many states and cities across the country, the city of Philadelphia restricts an employer's ability to ask job applicants about their criminal history.

The city's Fair Criminal Record Screening Standards increases employment opportunities for candidates who have a criminal history. The ordinance ensures they get a fair shake by being judged by their resume and interview rather than their time served.

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees who work in the city. Under the law, employers can't consider (or ask about) any arrest that didn't lead to a conviction.

Also, employers can't ask about any criminal convictions during the application process or during an initial interview.

After the initial interview, employers are allowed to ask about an applicant's criminal history -- but only convictions. They still can't poke their noses into a candidate's arrest history.

If they decide to go ahead and snoop, they might be looking at a fine of up to $2,000 per violation.

Employers who operate within the city of Philly should check for any questions on an applicant's criminal history and remove them. This is especially needed if you're using standard forms that were drafted before the FCRSS was passed.

For employers who have fewer than 10 employees, it might not be a bad idea to also reduce your use of criminal background checks during the hiring process. The EEOC discourages employers from considering an applicant's arrest records. In fact, a study conducted by Carnegie Mellon showed that the cost might outweigh the benefit. The study found that convictions older than five years weren't indicative of future behavior.

If you're an job applicant or an employer who isn't sure whether a question is prying too far into a candidate's criminal history, you might want to consult an experienced Philadelphia employment law attorney.

Related Resources:

Performing an Employee Background Check (FindLaw)
Can an Employer Use Your Criminal Record? (FindLaw's Law and Daily Life)
Background Checks Do's and Don't's (FindLaw's Free Enterprise)
Get Affordable Attorney Access With a Legal Plan From LegalStreet (LegalStreet.com)
(Disclosure: LegalStreet and FindLaw.com are owned by the same company.)

Is Your Non-Compete Clause Enforceable?

2013-04-30T18:51:01Z

Non-compete clauses (NCCs) can be an excellent method for protecting a business' financial interests when hiring an employee with access to valuable information. The protection they offer a company does no good, however, when they're struck down as unenforceable by a court.

How do you know if your NCC is enforceable? FindLaw's page on NCCs provides a helpful overview. But there are some more tips that Philadelphia-area employers will want to keep in mind.

Non-Compete Clauses and the Law

When implemented in contracts for new hires, NCCs:

Protect a legitimate business interest by the employer; and
Are reasonable in scope, geography, and time.

NCCs which are overly broad and unreasonably punish employees by not allowing them to earn a living after leaving a business are generally unenforceable.

There are no specific statutes in New Jersey, Pennsylvania, and Delaware governing the use of NCCs, but case law in these states focuses on the following:

In New Jersey, NCCs need to be based on a legitimate business reason and must be reasonable under the circumstances.
In Pennsylvania, NCCs are judged case-by-case on the reasonableness of their restrictions and the circumstances of the employee's termination.
In Delaware, NCCs cannot be overly broad and must be necessary to protect a business' interests.

3 Common Reasons a NCC May Be Unenforceable

So for what reasons might a non-compete clause be held unenforceable? Here are three possibilities:

Lack of consideration. A NCC is an agreement governed by contract principles and, like all enforceable contracts, must be supported by consideration. Typically, consideration is satisfied by the employee being hired by the company. But if a NCC is offered to an existing employee, there must generally be an additional benefit offered, or else the clause may be unenforceable.
Unreasonably broad. It is not reasonable in protecting a business' interests to prevent a former employee from working anywhere in an entire field, and preventing honest competition is not a legitimate business interest. Courts will strike down an overly broad provision that can't be justified.
Scope not narrow enough. There is no exact formula for how many years and how many miles make up an enforceable scope for a NCC. However, the courts generally prefer a scope that is tailored to the circumstances of the business and that aligns with a reasonable business interest.

Next Steps

With this information in mind, is your NCC enforceable? If you're not sure, one option is to hire an experienced contracts lawyer to review the language in your work contracts.

Another, and perhaps more affordable, option is to sign up for a prepaid legal plan with a service like LegalStreet. A LegalStreet plan includes access to on-call lawyers, free contract reviews (up to 10 pages), and a discount if you need to hire counsel.

NCCs can be confusing, but they can also be very important for many businesses. Make sure your NCC is enforceable before your employees sign on the dotted line.

Disclosure: LegalStreet and FindLaw.com are owned by the same company.

Related Resources:

Creating an Enforceable Noncompete Agreement (FindLaw)
3 Things to Know About Employee Contracts (FindLaw's Free Enterprise)
Creating successful non-compete agreements (FindLaw's KnowledgeBase)
From one job to the next: the non-compete agreement problem (FindLaw's KnowledgeBase)

How to Conduct an Employee Investigation

2013-04-10T19:01:37Z

Employers oftentimes receive complaints of harassment and discrimination by their employees. However, many employers do not know how to properly investigate these claims leading to potential liability for the employer itself.

Discrimination and harassment complaints are a huge headache for employers. Nobody likes an employment lawsuit, and nobody likes dealing with allegations of discrimination. However, failure to look into the matter more has notoriously led to multi-million dollar liability for many companies.

So when an employee complains about discrimination, you'd better take that complaint seriously. In addition, you will need to know how to conduct an employee investigation and how to take action to stop the alleged discriminatory activity.

Under Title VII of the Civil Rights Act of 1964, workplace discrimination and harassment are illegal. Employers can be liable for encouraging the acts, participating, or simply turning a blind eye to the abuse or complaints. It's probably this last point of ignoring complaints that leads to most employers getting into trouble.

Employers must take swift action to respond to discrimination and harassment complaints. Part of this swift action is promptly and properly investigating any complaints. As a result, you will need to know some tips on conducting a proper employee investigation:

Talk to the parties separately. Don't have the accuser and the accused in the same room. You may not get honest answers, one party may be reluctant to be forthcoming, or it could just lead to arguing.
Take notes. Proper notes will help you defend your case. Or, in the worst case, they may help you determine if you need to settle.
Pay attention to dates and times. These dates and times will help you piece together the story and find holes in the employee's story, if there are any.
Limit access to employee and personnel files. Files should be kept under tight watch during this process.

Related Resources:

8 Different Types of Employment Discrimination (FindLaw's Philadelphia Employment Law News)
How to File an Employment Discrimination Charge (FindLaw's Philadelphia Employment Law News)
Find a Philadelphia Employment Attorney (FindLaw)

3 Steps to Take After a Workplace Injury

2013-03-29T16:47:01Z

On-the-job injuries can leave you unable to work for weeks on end. Workers' compensation is intended to help you get the care you need and make ends meet while you're on the mend. However, for the uninitiated, navigating the workers' compensation system can be a bit overwhelming.

While it may be the last thing you feel like doing after suffering a serious injury, it's important to take steps to protect your interests as soon as a workplace injury occurs.

Here are some steps to consider taking after you're injured on the job, in order to claim workers' compensation benefits:

Get Medical Help

Your health should be your main priority. Even injuries that seem minor at first can develop into serious disabilities if left untreated. You should check with your human resources department for a list of approved doctors. You'll have to be treated by one of these doctors for the first 90 days following your injury.

Report the Injury

You should report the injury to your manager as soon as your condition is stable. A written report of the incident and the resulting injury is preferrable. If you fail to report the injury within 120 days, you lose the right to benefits.

It's your supervisor's responsibility to then file an accident report and send a "First Report of Occupational Injury" to the company's insurance company and the Bureau of Workers' Compensation. To be on the safe side, you should double check that your employer has taken these steps.

File a Claim

If your employer takes responsibility for your injury, you'll receive a "Notice of Compensation Payable" and receive compensation for your lost wages. On the other hand, if your employer denies responsibility, you'll receive a "Notice of Compensation Denial."

If that's the case, you can file a workers' compensation claim petition to have your case heard by a judge. In Pennsylvania, you have three years from the date you were injured to file a petition.

Before deciding on a course of action, it's in your best interests to consult with a workers' compensation attorney. Good luck.

Related Resources:

Rehabilitation Rights of Injured Workers (FindLaw)
Can I Sue My Employer Instead? (FindLaw)
Can I Take FMLA Leave for a Medical Condition? (FindLaw's Philadelphia Employment Law Blog)
Have an Attorney On Your Side With a Legal Plan From LegalStreet (LegalStreet.com)
(Disclosure: LegalStreet and FindLaw.com are owned by the same company.)

How At-Will Employment Works in Pennsylvania

2013-03-19T09:54:01Z

Most workers in Pennsylvania are considered at-will employees.

This basically means that you have no legal right to keep your job. So unless you have an employment contract that guarantees your job for a specified period of time, you can be fired for any valid reason.

And employers generally have no obligation to give you any advance notice. So they could, in fact, tell you to pack your bags today.

Many employees are surprised to learn that they have no right to their job. In fact, many workers assume they have some statutory entitlement to continue working. However, for the large swath of non-union workers, this is not true. But just because an employer can fire you for any legal reason, the key is that the reason still must be legal.

When Termination Violates the Law

Termination of an at-will employee violates the law when employers fire them for discriminatory reasons. For example, just because employees are at-will, this does not mean you can terminate them for being black, female, disabled, or any other protected characteristic. This would be considered illegal harassment, and employers could be sued. In many wrongful termination actions, employees do claim that the reason they were fired was due to a protected reason, even if an allegedly "neutral" reason is offered.

Besides discrimination, workers often bring wrongful termination claims based on accrued job rights outside of a collective bargaining agreement. This can include workers who were offered verbal promises that their jobs would only be eliminated under particular circumstances, or workers who were promised some duration of employment. These promises are often given to high-level employees and usually are promised at the interview.

If you believe that you have been terminated for an illegal reason, you may want to contact a Philadelphia employment attorney. Just remember that if you're at-will, you may have no rights to your job.

Related Resources:

Employees Rights 101 (FindLaw)
An Overview of Your FMLA Rights (FindLaw's Philadelphia Employment Law News)
How to File an Employment Discrimination Charge (FindLaw's Philadelphia Employment Law News)

What Payroll Records Do Employers Need to Keep?

2013-03-14T09:54:01Z

Employers are required to maintain certain payroll records under the Fair Labor Standards Act (FLSA).

Failure to comply with these requirements can lead to fines and even jail time.

That may sound ominous, but keep in mind that most employers may be complying with these requirements even unintentionally. Generally, the Department of Labor only mandates that these records be accurate.

The basic record-keeping requirements include maintaining personal information about an employee such as her full name, address, ZIP code, birthdate, sex, and exact occupation.

In addition, employers must record the wages earned and hours worked for each employee. This can include:

The beginning of the workweek: The time and day when the employee's workweek begins, such as Monday at 9 a.m.

Hours worked: Employers should record how many hours an employee worked each day as well as how many hours an employee worked in the workweek. The dates and pay period covered should also be specified.

Wage rate. The method and rate at which employees are paid should be listed. This can include an hourly rate, piecework rate, or any other payment method.

Earnings. The total straight-time and overtime earnings for each workweek should be listed.

Under the FLSA, these record-keeping requirements only apply to non-exempt employees. If you are not sure what your record-keeping requirements are or which employees you have to keep records for, you may want to talk to an employment attorney. An employment attorney can also help explain to you any additional record-keeping requirements under the laws of your state.

Finally, employers should be aware that besides making these wage and hour records, they are also required to keep these records for at least three years. It may also be helpful to retain supporting documentation such as timecards and other records from which you base your payroll records.

Related Resources:

Required Labor Posters: State Guide (FindLaw)
Q&A: The Fair Labor Standards Act (FindLaw)
Fair Labor Standards Act (FindLaw)

How Am I Charged for My 12 Workweeks of FMLA Leave?

2013-03-06T12:57:01Z

You get 12 workweeks of FMLA leave. But as you may know, 12 workweeks of time off leaves plenty of room for interpretation as to exactly how much time you get off. This is especially true when you have already taken some time off in the year.

The general rule is that you are charged leave for your actual usage, according to the Department of Labor. So if you take leave for one full workweek, you will be charged one workweek.

On the other hand, if you take intermittent leave or only need two days off in the week, you should only be charged for that proportion of that workweek for which you take time off. For example, if you only take one day off in a five-day workweek, you should be charged one-fifth of a workweek only.

What Happens During a Non-Workweek?

Many employers shut their doors for a certain period of time. Schools may close for the summer and factories may furlough during the winter. In these cases, an employee taking FMLA leave should not be charged with any time off that they take during such a week.

Do I Get My Time Back for Holidays?

Whether a holiday is charged as FMLA leave depends upon whether you take the full holiday week off. For example, suppose that you get Monday off for a holiday. If you planned to take the entire week off anyway, the entire week (including the holiday) will be charged as one full workweek for determining FMLA leave.

But if you only planned to take Monday and Tuesday off, only Tuesday will count against your FMLA leave entitlement in our hypothetical scenario. So you would have only used a portion of the workweek as FMLA leave.

What If I Don't Work a Normal Schedule?

Many workers don't work a standard 9-to-5 workday. In these cases, where a worker's schedule changes from week to week, the employer can use a weekly average to calculate the employee's FMLA leave entitlement. The average will be taken over the 12 months prior to the beginning of the requested leave.

So if a worker averages work for four days a week and 32 hours in that week, that may be used as one workweek for FMLA purposes.

Related Resources:

Browse Philadelphia Employment Lawyers (FindLaw)
FMLA Leave Law: In-Depth (FindLaw)
4 Important Benefits of Taking FMLA Leave (FindLaw's Philadelphia Employment Law News)
An Overview of Your FMLA Rights (FindLaw's Philadelphia Employment Law News)

4 Important Benefits of Taking FMLA Leave

2013-02-27T17:02:06Z

There are many important benefits that the Family and Medical Leave Act (FMLA) provides for workers. In fact, the benefits of the FMLA far outweighs the negatives of trying to understand this complex morass of laws.

Many workers may lose interest in figuring out the availability of the FMLA after they realize it is unpaid leave. However, before giving up, you should know these four benefits of taking FMLA leave, as provided by the U.S. Department of Labor:

Job Protection. The biggest benefit of the FMLA may be job protection. In other words, if you qualify for the leave, you can take up to 12 work-weeks off without having to worry that you will suffer negative job consequences like getting fired or being demoted. Once you return from leave, you are entitled to your former position or its equivalent.
Health Insurance. If you normally receive health insurance benefits, your insurance can continue during your period of leave. Keep in mind that you may be on the hook to pay the insurance premiums yourself. But if you do not normally receive health insurance at work, FMLA will not provide this benefit.
You Can Get Paid. While FMLA leave is unpaid leave, you still may get paid by substituting your accrued paid leave like sick and vacation days. You can either choose to substitute these paid days off or your employer may require that you use these days while on leave.
Other Job Benefits. Generally, if your employer provides certain benefits to employees on non-FMLA leave, your employer may also have to make these benefits available to employees on FMLA leave. For example, if your employer provides a certain benefit to employees on disability leave, this benefit should also be available for an employee on FMLA leave.

If you believe that one of your FMLA leave rights has been violated, you may want to contact an employment attorney.

Related Resources:

FMLA Leave Law: In-Depth (FindLaw)
When Can I Take FMLA Leave for a Medical Condition? (FindLaw's Philadelphia Employment Law News)
An Overview of Your FMLA Rights (FindLaw's Philadelphia Employment Law News)

When Can I Take FMLA Leave for a Medical Condition?

2013-02-21T20:28:01Z

You can only take FMLA leave for serious medical conditions.

Contrary to popular belief, you cannot simply request FMLA every time you feel sick or want to care for a loved one.

Instead, to take FMLA leave for a medical reason, you will need to show that the medical condition qualifies as a "serious health condition."

What is a Serious Health Condition?

There are several different ways for a medical condition to qualify as a serious health condition. Some of the most common serious health conditions that qualify for FMLA leave, as provided by the U.S. Department of Labor, include:

A medical condition that requires you or a family member to spend a night in a hospital or other medical care facility.

A condition that incapacitates you or a family member for three or more consecutive days and requires ongoing medical treatment. Incapacity can mean that the medical condition is serious enough that it makes you unable to go to work or a family member to attend school.

A chronic condition that causes you or a family member to suffer periods of incapacity. These chronic conditions generally must require treatment by a health care provider at least twice a year.

Pregnancy and pregnancy related conditions. These can include prenatal medical appointments, incapacity due to morning sickness, medically required bed rest, and the pregnancy itself.

Requesting FMLA Leave

If you believe that you may have a serious health condition qualifying for FMLA leave, you will have to follow the normal procedures for requesting leave as set forth by your employer.

Generally, for a foreseeable medical condition, you should provide at least 30 days' notice of leave. For unforeseeable conditions, you should provide notice of the leave as soon as reasonably possible.

If you have questions, you should work with human resource professionals at your place of work and your doctors to provide the appropriate paperwork.

Related Resources:

How to Use FMLA Leave to Care for Parents and Parent-Like Figures (FindLaw's Philadelphia Employment Law News)
Contact an Employment Attorney (FindLaw)
An Overview of Your FMLA Rights (FindLaw's Philadelphia Employment Law News)

An Overview of Your FMLA Rights

2013-02-15T22:07:01Z

The Family and Medical Leave Act (FMLA) is a confusing body of law. Even lawyers and human resource professionals are confused as to the intricacies of the law. As a result, most laypeople will need some help understanding their rights.

Here is an overview of the FMLA, which grants leaves of absence to eligible employees.

Covered Employers

One of the most common misconceptions is that all employers must provide FMLA leave. In fact, most small- to mid-sized companies do not have to provide such leave. Only private employers with 50 or more employees are covered by the federal law.

Eligible Employees

Even if your employer is covered, it is not automatic that you are eligible for FMLA leave. Generally, to be eligible, an employee must work for the employer for at least 12 months and worked at least 1,250 hours during the preceding 12 months.

Qualifying Reasons for FMLA Leave

You can't take FMLA for just any reason. Eligible employees can only use the leave for one or more of the following reasons:

The birth of a child or placement of a child with the employee for adoption or foster care;
To care for a spouse, son, daughter, or parent who has a serious health condition;
For a serious health condition that makes the employee unable to perform the essential functions of his job; or
For any qualifying exigency arising related to military duty.

Notice of Leave

If you meet all the other requirements, you may be eligible for leave. However, to take leave, you still must give proper notice. This can include complying with the employer's usual and customary requirements for requesting leave and providing enough information for the employer to determine that the FMLA applies.

Medical Certifications

If the reason for leave is due to a medical reason, the employer may require certification of the health condition from a health care provider.

Job Restoration and Health Benefits

While FMLA leave is unpaid, the main benefits are that you are entitled to your original job back when you return and employers are required to continue group health insurance coverage during FMLA leave

Related Resources:

FMLA Leave Law: In-Depth (FindLaw)
FMLA Certification of Need for Leave (FindLaw)
Reasons That Qualify For FMLA Leave (FindLaw)
Get Affordable Attorney Access With a Legal Plan From LegalStreet (LegalStreet.com)
(Disclaimer: LegalStreet and FindLaw.com are owned by the same company.)

How to Use FMLA Leave to Care for Parents and Parent-Like Figures

2013-02-07T13:38:01Z

There may come a time when your aging parents or relatives become ill. You may need to take time off from work to care for them. But just because your loved one needs you, are you entitled to take FMLA leave to care for them?

The FMLA does entitle eligible employees to take up to 12 weeks of protected unpaid leave to care for a "parent" with a serious health condition. But what about non-parents like your grandparents, aunts, or other family members who acted in place of your parents?

Congress does recognize the reality of a modern family: that someone other than your biological mom or dad may have raised you. As a result, eligible employees may take FMLA leave to care for someone who stood "in loco parentis" to the employee.

What Does In Loco Parentis Mean?

An individual who stood in loco parentis means that that person acted as your parent when you were a child and carried on most of the duties associated with parents such as providing financial support and personal care-taking.

You can have someone stand in loco parentis even if your biological parents were alive and present during your childhood. So long as the individual meets the above requirements, they may be considered in loco parentis.

But unless this in loco parentis relationship is established, you should know that you may not be able to take time off to care for a grandparent, aunt, or another non-covered relative with a serious health condition.

What Evidence Do I Have to Provide?

In general, you will only have to provide a simple statement that the individual acted as your parent as a child. You may want to include the name of the individual and a statement of the individual's in loco parentis relationship to you when you were a child.

To learn more about taking FMLA leave, check out FindLaw's Guide to the Family and Medical Leave Act and click on the resources below.

Related Resources:

FMLA Eligibility (FindLaw)
FMLA Leave Law: In-Depth (FindLaw)
Reasons That Qualify For FMLA Leave (FindLaw)
Search for a Philadelphia Employment Lawyer (FindLaw)

8 Different Types of Employment Discrimination

2013-01-30T13:51:01Z

If you are wondering whether you face illegal discrimination at work, you must first become familiar with the different categories of employment discrimination.

The categories of protected characteristics are important because if you are discriminated against for any other reason, you may not be able to bring a valid claim under the law.

For example, your employer can give a raise to someone else based purely on jealousy, personality, or just because the employer does not like you. Only when the employer bases employment decisions on protected characteristics or activities does the employer venture into illegal discrimination.

So which characteristics and activities are considered "protected"?

Under federal law, protected characteristics and activities generally consist of the following:

Age. Workers age 40 or older are protected from discrimination. Note that workers under 40 are not protected.

Disability. You'll need a doctor's note confirming any physical or mental disabilities. Your employer not only is prohibited from taking negative action against you, but may also have to be proactive and accommodate your disability such as providing time off from work.

Genetic Information. This is the newest category of discrimination. Employers cannot deny insurance or take other negative action against employees because of genetics, such as a genetic condition that makes you more susceptible to illness.

National Origin. What country are you originally from? Well, it shouldn't matter when making employment decisions.

Race. You should already know that employer cannot base decisions on the color of your skin.

Religion. Along with disability discrimination, religious discrimination is the only other characteristic that requires employers to accommodate employees. So if your religion recognizes a bona fide religious holiday, you may be entitled to time off.

Sex. This includes discrimination against both men and women. This also covers discrimination against pregnant women.

Retaliation. The simple act of complaining about discrimination is a protected activity. So if employers threaten to fire you or otherwise retaliate against you for filing a complaint, they may be violating the law. This is the most common reason for pursuing an employment discrimination complaint.

Related Resources:

Find a Philadelphia Employment Lawyer (FindLaw)
How to File an Employment Discrimination Charge (FindLaw's Philadelphia Employment Law News)
Top 10 Things to Know About Overtime Laws in Pennsylvania (FindLaw's Philadelphia Employment Law News)

How to File an Employment Discrimination Charge

2013-01-24T16:27:01Z

If you believe you are discriminated at work or are subject to illegal harassment, you will want to know how to file an employment discrimination charge.

The federal Equal Employment Opportunity Commission (EEOC) handles discrimination charges and you will first have to file your complaint with them before bringing a private action.

Here's how to file a charge with the EEOC:

Where to File: You may file your charge at any of the EEOC's 53 field offices, either in person or through the mail. The EEOC does not accept charges online or over the telephone.

When Should You File the Charge: In general, you have 180 days from the date of the incident to file the charge. But if a state or local agency enforces the same discrimination laws, you may have 300 days to file the charge.

What You Should Prepare: You will want to describe the event, such as when it happened, the circumstances, and why you believe you were subject to discrimination. You will also want to gather all supporting information and papers. For example, if you were fired, you might gather the letter or notice telling you that you were fired and your performance evaluations. You might also bring with you the names of people who know about what happened, and information about how to contact them.

What Happens Next: The EEOC will review your complaint and possibly investigate it. If the agency believes there may have been a violation, the agency may seek to mediate the case on your behalf, or even sue the employer on your behalf. However, if the agency does not agree with you, it will issue you a Notice of Right to Sue. This means that the EEOC will not be representing you, and you will have to hire a private attorney to fight your case.

Related Resources:

The Charge Handling Process (EEOC)
Employment Discrimination (FindLaw)
Filing A Charge of Discrimination (EEOC)

Top 10 Things to Know About Overtime Laws in Pennsylvania

2013-01-16T13:38:01Z

Want to know about overtime laws in Pennsylvania?

Don't listen to your friends who work in New Jersey or your cousin in California.

Overtime laws differ from state to state, and what your cousin may get in California (which may be a lot more than you), unfortunately has no bearing on you. For information that actually matters to you, the Pennsylvania worker, pay attention to these general facts about Pennsylvania overtime law, as provided by the Pennsylvania Department of Labor:

Non-exempt employees are entitled to overtime pay if they work more than 40 hours in a week.

The overtime pay rate is one-and-a-half times your regular rate. So if you make $10 an hour, your overtime rate is $15 an hour.

There is no such thing as daily overtime in Pennsylvania. So you won't get overtime pay for working 10 or even 12 hours in one day. Again, it's the 40 hour/week threshold that's important.

Not all employees are eligible for overtime pay. Exempt employees do not get the higher rate if they work over 40 hours.

Exempt employees generally consist of executive, administrative, and professional employees.

You'll need to talk to a lawyer to see if you are properly categorized as exempt.

It takes a lot more than simply earning a salary to be legally exempt. Your work duties have a lot to do with it too.

Employers cannot substitute compensatory time off in lieu of overtime.

Overtime requirements apply to employers regardless of how many employees they have. This isn't the FMLA.

Overtime does not mean voluntary work time. So long as your employer pays you properly, the employer may require that you work overtime.

Keep in mind that these overtime facts apply to the typical employee employed by a private employer in Pennsylvania. Independent contractors, government workers, workers who are covered by a collective bargaining agreements or other contracts, and others may be subject to different rules.

Related Resources:

Overtime Rules in Pennsylvania (Pennsylvania Department of Labor)
Minimum Wage and Overtime Basics (FindLaw)
What You Should Know About Pennsylvania Wage Payment Law (FindLaw's Philadelphia Employment Law News)

McCormick & Schmick's Settles Disability Lawsuit

2013-01-11T20:03:01Z

It's illegal for businesses to discriminate against someone who is disabled. Sometimes, disabilities are less obvious, such as mental disabilities. In other cases, the disabilities are obvious.

So why would an employer or a manager blatantly discriminate against a deaf person?

That's a question that the management at McCormick & Schmick's, owned by Landry's Inc., will certainly be asking, following a finding of discrimination by the Equal Employment Opportunity Commission.

A manager at a Maryland branch of the McCormick & Schmick's chain allegedly discriminated against a deaf chef, the EEOC said in a press release.

According to the EEOC, the manager routinely called the employee "vermin" even though his name was Vernon. The employee was also subject to threatening physical conduct and was subsequently demoted to a dishwasher position as a result of his disability.

Not only did the employee complain about the disability discrimination, but other employees noticed as well. Other employees complained and after that complaint, he was demoted even further to a janitorial role.

What's egregious here is not only that a man with a visible disability was discriminated against, but also that he was retaliated against after he complained.

The Americans with Disabilities Act of 1990 prohibits employers from treating an employee in a harassing manner because of his disability. The ADA also provides for prohibition against retaliation if the employee complains.

McCormick & Schmick's must now pay $47,814 in damages to the employee, Baltimore's WMAR-TV reports. The restaurant must also sign a two-year consent decree which forbids it from violating the ADA and obligates the company to give ADA training to supervisory and managerial employees at the National Harbor location.

Related Resources:

Americans with Disabilities Act (FindLaw)
Bad Bosses: What Is a Hostile Work Environment? (FindLaw)
Search Philadelphia Employment Lawyers (FindLaw)