Archive | Employment Statutes

Threatening to Punch a Co-Worker Does Not Bar a Discharged Employee from Receiving Unemployment Compensation Benefits

However unexpected this decision may be, we wanted to draw it to the attention of employers as this is a situation that many employers encounter on a rather frequent basis. The Pennsylvania Commonwealth Court recently issued a decision holding that an employee who was discharged after venting to the company’s HR Manager and voicing an urge to punch a co-worker following a dispute is entitled to receipt of unemployment compensation benefits.

Specifically, the employee had been asked by a co-worker to move a scented substance. However, these co-workers were alleged to have been having some issues between them prior to this incident. The employee who was asked to move the scented substance then called the HR Department and, during that conversation, stated that she would punch the co-worker if something was not done about the co-worker. It was alleged that the employee stated this multiple times during the conversation with the HR Department. The employer then terminated the employee for violation of the company’s no tolerance harassment policy and subsequently contested her petition for unemployment compensation benefits.

In finding the employee eligible for benefits, the Court noted that although the company had grounds upon which to terminate the employee, it did not have basis on which to prevent her from receiving unemployment compensation benefits as the conduct did not rise to the level of willful misconduct. In so ruling, the Court noted that the employee only expressed a theoretical course of behavior which cannot be covered by any work place policy. The Court also noted that the employee did not say the comment directly to the co-worker and, therefore, the statement did not constitute a threat. In addition, the Court noted that the employee was only “venting”, thought she was speaking in confidence to the HR department, and did not intend to act upon the expressed intentions.

Wages and Confidentiality


Many employers require their employees to maintain the confidentiality of their wages and/or salary and try to prevent their employees from discussing their wages with other employees. However, the Fifth Circuit Court of Appeals in Flex Frac Logistics, LLC v. NLRB recently held that a non-union employer committed an unfair labor practice and violated the National Labor Relations Act (“NLRA”) by requiring its employees to sign an overly broad confidentiality policy which stated that confidential information included information related to “personnel information and documents”.  The Court held that this  policy could reasonably be interpreted to prohibit the discussion of employee wages which infringes upon the employees’ Section 7 rights under the NLRA. Accordingly, employers, even non-union employers, should review their current policies to ensure compliance with the NLRA in this regard.  We do note, however, that managers and supervisors are not protected by the NLRA and, therefore, this case would not apply to those individuals. We do caution employers, however, to ensure that any individuals who are designated as a manager and/or a supervisor are done so in compliance with the NLRA.

Job Transfer Requiring a 35 Mile One-Way Commute is Not a Necessitous and Compelling Reason


The PA Commonwealth Court has recently confirmed that resigning from one’s job after being transferred to another facility which requires a 35 mile one way commute is not a necessitous and compelling reason so as to be eligible for unemployment compensation benefits. In so holding, the Court cited to prior opinions holding that longer distances in and of themselves are not necessitous and compelling reasons and that the Claimant did not even try the commute and did not explore other options such as carpooling or public transportation.

Romance is in the Air – With my Employees


As all employers know, there are risks associated with inner-office romantic relationships.  Many times, the relationships will start consensually, but then will end with at least one of the individuals feeling jilted. It is not uncommon for romantic relationships to affect the work environment both while the relationship is going on and after it ends. This is only further complicated when the relationship is between a supervisor and a direct report.

Many employers have adopted anti-fraternization policies in an effort to prevent such  relationships. However, as many employers have found, these policies have limited effect and can, at times, serve to keep the relationships underground only to surface when it is too late and after the jilted employee is either complaining of harassment or has filed a complaint. There is another option that employers can consider, which is a Consensual Relationship Agreement. This is an agreement which should be signed by both of the individuals involved in the relationship wherein they acknowledge that they entered into the relationship consensually, voluntarily and without any coercion or duress and attesting that their relationship will not interfere with one another’s work performance. Other helpful information which can be included is a reminder as to what conduct is appropriate in the workplace, a reminder of the policy prohibiting harassment and discrimination in the workplace and the internal complaint procedure. If the relationship is between a supervisor and a subordinate, additional language can be added to the agreement wherein the supervisor agrees not to be part of any employment decisions affecting the subordinate.

Such an agreement can help to limit (but does not necessarily eliminate) the employer’s liability in the event that the romantic relationship ends although the employer should stay alert and regularly check the status of the relationship. At the first sign that the relationship is no longer consensual and/or has deteriorated, the employer should be on alert for any possible inappropriate behavior that may lead to sexual harassment complaints such as unnecessary or uninvited visits to the ex’s workspace and/or unnecessary or uninvited telephone calls, emails and/or texts. If such behavior occurs, the employer should consider taking additional affirmative steps to remind the employees of the company’s sexual harassment policies and the internal complaint procedures.

Employers may also want to consider revamping their non-fraternization policies to include a mandatory reporting provision. Many non-fraternization policies state that workplace romances should be disclosed as soon as possible. However, most employees prefer not to disclose such relationships and may not necessarily consider their interactions with a co-worker to be a romantic relationship. Therefore, it may beneficial for an employer to clearly define a notification requirement in the policy so that there is no question as to when the mandatory disclosure provision is triggered.

Update: Irresistible Worker Termination Decision Upheld on Reconsideration

As you may recall, I bloggupdateed a few months ago about an employee who was fired from her position as a dental assistant due to concerns about a relationship potentially developing between that employee and her employer. In this case, the employer’s wife was concerned that a sexual relationship was going to develop between the employer and the employee based on a sexual attraction and lewd texts. Due to this concern, the wife encouraged her husband (the employer) to discharge the employee.  At the time of my original blogging, the Iowa Supreme Court had issued a unanimous decision holding that there was no sex discrimination when a male employer terminates a female employee because there are concerns about the nature of the relationship between the parties. Following that decision, the Iowa Supreme Court granted re-consideration. The new decision has now been issued. Although the new decision is no longer unanimous, it continues to hold that there was no sex discrimination under the facts presented to it. The decision is based on evidence which supported a finding that the adverse employment action was based on the relationship between the parties rather than the employee’s gender. Indeed, the employee was replaced by another female. This decision confirms that when an adverse employment action is taken by an employer due to a consensual relationship between the employer and the employee, it is not gender discrimination. This time around, however, the Court cautions that had the employee alleged sexual harassment, their decision may have been different.

When is a Hostile Work Environment in fact a Hostile Work Environment?

workplaceThe Third Circuit Court of Appeals recently issued an opinion in Fichter v. AMG Resources Group, which sheds some light on this common cause of action. In this case, the employee cited about 14 examples of what she believed created a hostile work environment. Many of these complaints are ones that we hear employees complain about on a daily basis. These complaints included being required to tell her manager if she was arriving late or leaving early, being asked to finish projects quickly, not receiving a raise in several years, being asked for information but then having her manager leave before she had a chance to respond, having her workload increased, and not having her opinions respected. The employer prevailed when the Court found that these allegations are not violations of Title VII as they are within the scope of common typical managerial functions. The Court also confirmed that Title VII does not guarantee the perfect workplace.


A recent Iowa Supreme Court decision made headlines when the Court upheld an employer’s decision to terminate the employment of an attractive female assistant the employer viewed as a threat to his marriage. That employee filed a gender discrimination claim in response to the discharge. The Court determined that the firing was not unlawful discrimination under the Iowa Civil Rights Act because the discharge was not specifically based on her gender.

Although this case was situated in Iowa and is not controlling precedent upon employers and employees within the state of Pennsylvania, it does give rise to the question of when an employer in Pennsylvania can discharge an employee. It is well established that Pennsylvania is an  state. This means that an employer in Pennsylvania can terminate the employment of an employee for any reason or no reason. There are, however, a few limitations upon this leeway given to employers by the at-will principle. Specifically, there are a number of statutes which address protected characteristics upon which an employee cannot be discharged or otherwise discriminated. Those protected characteristics include, but are not limited to, race, Color, religion, sex, national origin, age, disability, and veteran’s status. Additionally, an employee may not be terminated for having made a good faith complaint of harassment or discrimination based upon any of these protected characteristics. lt is also prohibited to retaliate against an employee for tiling a workers’ compensation or FMLA claim. To the extent an employer is considered qualified under the Whistleblower Law, it is also unlawful to retaliate against an employee for having made a good faith report of wrong doing or waste under the law. Although this is not an exhaustive list of those characteristics and/ or actions upon which an employee cannot be terminated and/or otherwise subjected to an adverse employment action, they are some of the more common examples.

So in practical effect, while it is permissible for an employer to terminate the employment of an employee who has demonstrated continued poor work performance, it is not permissible for an employer to terminate the employment of an employee based on his or her membership in a protected class. As with all employment law matters, there are many nuances and potential implications relative to every employment decision. To that end, we encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employees.

What Is Retaliation And What Does It Mean As An Employer?

Claims of retaliation are quite prevalent and are worrisome to employers. Claims of Retaliation can arise after an employee engages in an action which is considered to be a protected activity.  Protected activities can take on many different forms but one of the most common forms is the filing of a complaint regarding harassment or discrimination with the employer, the EEOC, or the PHRC. However, many employment-related statutes contain an anti-retaliation provision and recognize an employee’s right to file a claim for retaliation. Recent cases have extended these protections to include participation in an employer’s internal efforts to investigate or remediate an alleged discriminatory incident. These anti-retaliation provisions are intended to make an employee feel comfortable making a complaint or assisting someone else do so without fear of a negative impact on his or her job. It should be noted that an employee can prevail on a retaliation claim even if the underlying discrimination or harassment claim proves groundless.

To establish a claim of retaliation, a plaintiff must show that he or she engaged in a protected activity, that the employer was aware of this activity, and the employer took an adverse employment action in response to the protected activity. The burden then shifts to the employer to demonstrate a legitimate non-discriminatory reason for why it took the employment action. Subsequently, the employee must then demonstrate that the employer’s proffered reason is merely a pretext for an illegal retaliatory action. One reason retaliation claims are so prevalent and complicated to defend and avoid is that retaliation claims can hinge on an abstract adverse employment action. Some recent decisions have demonstrated that a retaliation claim can be asserted if an employee feels a material adverse effect to the terms and conditions of his or her employment as a result of engaging in a protected activity. A materially adverse employment action, however, must be more than a mere inconvenience that does not cause any actual harm to the employee. For example, it is possible that a failure to invite the employee to a dinner could be retaliatory if that dinner included a training session that could affect the advancement of that person’s career. These claims can be much more difficult to avoid and defend than the underlying discrimination claim.

That said, however, employees who engage in protected activities are not granted free rein to violate employer policies. To the extent the employee violates company policy or fails to adequately perform his or her job, an appropriate response by the employer in accordance with company policy is permissible. However, it is important for an employer to properly and completely document all instances, actions, and decisions involved in the rendering of the discipline or employment action in an effort to refute any retaliation claim which may be asserted.

As with all employment law matters, there are many nuances and potential implications relative to every employment decision. To that end, we encourage all employers to tread carefully so as to not run afoul of the many employment statutes governing their interactions with their employee.