Beyond the FMLA and ADA: The Other Leave and Break Laws You Also Need to Know About. Cory A. Iannacone Lindsey E. Snavely

Transcription

1 Beyond the FMLA and ADA: The Other Leave and Break Laws You Also Need to Know About Cory A. Iannacone Lindsey E. Snavely

2 Introduction Missing Work Jury Duty Leave Witness Duty/Crime Victim Leave Emergency Response Leave Failure to Report During State of Emergency Military Leave Other Leave Laws

3 Jury Duty Leave Jury Duty No Federal law State law Prohibition against retaliation No paid leave

4 Pennsylvania Jury Duty Leave General rule.--an employer shall not deprive an employee of his employment, seniority position or benefits, or threaten or otherwise coerce him with respect thereto, because the employee receives a summons, responds thereto, serves as a juror or attends court for prospective jury service. Nothing in this section shall be construed to require the employer to compensate the employee for employment time lost because of such jury service. 42 Pa. C.S. 4563(a).

5 PA Jury Duty Who is a Covered Employer? All employees working for covered employers are eligible Exceptions employers in any retail or service industry employing fewer than 15 people any manufacturing industry employing fewer than 40 people But see Sheeran v. Kubert, Himmelstein & Assocs. P.C., 69 Pa. D. & C. 4th 303, 309 (Phila. Cty. C.C.P. 2003)

6 PA Jury Duty Notice to Employer No notice requirement Compliance with Employer s general leave policy Employer policy requiring written notice

7 PA Jury Duty Employee Rights No right to paid time off No adverse employment action Terminate Suspend Loss of seniority position Loss of benefits Threaten / coerce the employee

8 PA Jury Duty Penalties Private cause of action Reinstatement

9 PA Jury Duty Developing an Employer Policy The circumstances when an employee may be absent from work for jury duty leave. Compensation options during leave. Notice requirements. Non-retaliation requirements.

10 Witness Duty / Crime Victim Leave Pennsylvania s Protection of Employment of Crime Victims, Family Members of Victims and Witnesses statute. 18 Pa. C.S. 4957(a). Antoine Dodson

11 Witness Duty / Crime Leave Covered Employers & Employees All Pennsylvania employers Employee who must attend court as a witness to, or as a victim of, a crime, or who is a member of such a victim's family and takes leave to be a witness Planning to attend criminal proceedings is covered. See Rodgers v. Lorenz, 2011 Pa. Super. 154, 25 A.3d 1229 (2011).

12 Witness Duty / Crime Leave Leave Time No time specified Long enough to allow employee to attend court proceeding

13 Witness Duty / Crime Leave Notice to Employer No notice requirement Compliance with Employer s general leave policy Employer policy requiring written notice

14 Witness Duty / Crime Leave Employee Rights No right to paid time No adverse employment action Terminate Suspend Loss of seniority position Loss of benefits Threaten / coerce the employee

15 Witness Duty / Crime Leave Penalties Private cause of action Reinstatement

16 Witness Duty / Crime Leave Developing an Employer Policy The circumstances when an employee may be absent from work for witness or crime victim leave. Compensation options during leave. Notice requirements. Non-retaliation requirements.

17 Emergency Response Leave Employees who volunteer as an emergency responder Employees responding to a call prior to having to report to work Employees injured in the line of duty as an emergency responder 35 Pa. C.S (Prohibition on Termination and Discipline). 35 Pa. C.S (Prohibition on Discrimination). The Office: Fire Drill

18 Emergency Response Leave Covered Employers & Eligible Employees All Pennsylvania employers Employees Volunteer firefighters Volunteer member of the fire police Volunteer member of an ambulance service or rescue squad

19 Emergency Response Leave Leave Time No time specified Sufficient time to respond to call

20 Emergency Response Leave Notice Employee must give the employer a statement from the chief executive officer of his volunteer fire company, ambulance service or rescue squad or its affiliated organization stating (1) that the employee responded to a call; and (2) the time of the call. 35 Pa. C.S Failure to provide statement is fatal to a claim. See Giuffra v. Int'l Paper Co., 931 F. Supp. 372, 373 (E.D. Pa. 1996).

21 Emergency Response Leave Employee Rights Pennsylvania s Emergency Response Leave statute is an employee s exclusive remedy. Giuffra v. Int'l Paper Co., 931 F. Supp. 372, 373 (E.D. Pa. 1996). An employee may file an action in state court for: An order requiring revocation of a disciplinary action and penalties. An order requiring an employee's reinstatement. Lost wages and benefits. Reasonable attorneys' fees if the employee

22 Emergency Response Leave Penalties Private cause of action Reinstatement

23 Emergency Response Leave Developing an Employer Policy The circumstances when an employee may be absent from work for emergency response leave. Compensation options during leave. Notice requirements. Non-retaliation requirements.

24 Failure to Report During a State of Emergency Employers cannot terminate or discipline an employee for failing to come to work due to a closure of the roads in the county of the employer s place of business or the county of the employee s residence resulting from a state of emergency declared by the Governor. 43 P.S

25 Employees Excluded from Coverage Drivers of emergency vehicles Essential corrections personnel. Police. Emergency service personnel. Hospital and nursing home staffs. Pharmacists. Essential health care professionals. Public utility personnel. Employees of radio or television stations engaged in the gathering and dissemination of news. Road crews. Oil and milk truck delivery personnel.

26 Leave Time & Notice No time specified So long as state of emergency is in effect No notice required

27 Employee Rights No paid time off required Caveat: Fair Labor Standards Act No adverse employment action for taking leave terminate discipline Any adverse impact on regular pay, job status, opportunity for promotion, the right to any benefit granted by the employer to other similarly situated employees

28 Penalties Private cause of action in state court Must be commenced within 90 days of the date the cause of action arises. Intentional and knowing violation the statute. Remedies An injunction ordering the employer to: revoke the disciplinary action or penalty; and if necessary, reinstate the employee. Damages, in the amount of lost wages and benefits. Costs Reasonable attorneys' fees if the employee prevails.

29 Military Leave: USERRA Covered Employer All US employers both public and private individual liability where the individual is in a position of authority regarding hiring and firing decisions Forrest Gump

30 USERRA: Covered Employees All employees full-time, part-time, probationary, seasonal, and temporary absent from employment by reasons of service in the uniformed services are covered by USERRA s military leave and reemployment provisions. 20 C.F.R Uniformed Services

31 Service in the Uniformed Services Active duty. Active duty for training. Initial active duty for training. Inactive duty training. Full-time National Guard duty. Submitting to an examination to determine an individual's fitness for any of these services. Funeral honors duty performed by National Guard or Reserve members. Duty performed by intermittent disaster response personnel for the Public Health Service and approved training to prepare for this service. Service as an intermittent disaster response appointee of the National Disaster Medical System when participants are: activated under federal authority; or attending authorized training in support of their federal mission.

32 USERRA Notice Reasonable Advanced Notice 30 days, if feasible By Employee or Officer of Military Types of Notice Informal Verbal Written No particular format

33 Employee Rights Employee must be treated as if on furlough or a leave of absence. Paid leave not required Employee must be permitted (but not required) upon request to use any accrued leave with pay during the leave period Retain reemployment rights for 5 years

34 Conditions and Exceptions to Reemployment under USERRA Conditions Conditions related to advanced notice An application for reemployment in a timely manner Whether the employee was separated from the uniformed services for a disqualifying reason Exceptions Employer s circumstances have so changed to make reemployment impossible or unreasonable; Undue hardship The position vacated prior to military service was for only a brief time

35 Pennsylvania Military Leave All Pennsylvania employers and employees Anti-discrimination provision Reinstatement rights Tukesbrey v. Midwest Transit, 822 F. Supp. 1192, (W.D. Pa. 1993) (suggesting that Pennsylvania s law would follow USERRA with respect to penalties)

36 Other Leave Laws & Break Issues Bereavement Leave Voter Leave Lactation Breaks Holidays Compensatory Time Break and Meal Periods

37 Cory A. Iannacone Lindsey E. Snavely PILLAR+AUGHT Harrisburg, Pennsylvania