On June 4, 2018, the United States Supreme Court upheld the right of a self-described cake artist in Colorado to refuse to sell a wedding cake to a same-sex couple. As framed by the Supreme Court, the issue in the case was, “whether applying Colorado’s public accommodations law to compel Phillips [the baker] to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” In a 7-2 decision, the Supreme Court held that Phillips’ religious beliefs were sincerely held, that he was protected under the Constitution’s Free Exercise of Religion Clause, and that he therefore did not violate the state’s public accommodations law. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Docket No. 16-111 (U.S. Supreme Court June 4, 2018).
With marriage equality now the law of the land, prohibiting employment discrimination is the new frontline in the quest for full LGBT equality in the United States. The concern that LGBT Americans can get married on Saturday and fired on Monday is all too real in a majority of states, including Pennsylvania.
Most U.S. employers are familiar with their obligations to comply with federal equal employment opportunity (“EEO”) laws that prohibit discrimination on the basis of an individual’s personal characteristics, including sex, age, race, religion, national origin, disability, and genetic information. It is also a form of unlawful discrimination for an employer to punish or “retaliate” against an individual for engaging in “protected activity”, such as complaining to a supervisor about discriminatory treatment or serving as a witness in a discrimination lawsuit. Even if the underlying charge of discrimination lacks merit, employers may still have liability if they engage in retaliation against the individual who makes the complaint.
There is a “complainant” and a “respondent.” There are investigative reports, forensic evidence, and exchanges of documents between the parties. There is a hearing with the opportunity to cross-examine witnesses and deliver opening and closing statements. Finally, there is a process for appeal. Sounds like a usual day at the Lancaster County Courthouse, right? No. This is a description of the adversarial process used by colleges and universities around the country to address charges of sexual assault on their campuses.
Are your employees “exempt” or “non-exempt” from earning overtime pay? The federal law governing this area is the Fair Labor Standards Act (“FLSA”), which is enforced by the Wage and Hour Division of the U.S. Department of Labor and, for Pennsylvania employers, the Pennsylvania Department of Labor and Industry.1 Many employers mistakenly assume that paying an employee an annual salary automatically removes the legal obligation to pay overtime – defined as one and a half times the regular rate of pay for all hours worked over 40 in a consecutive 7-day period.2 That assumption is costing employers around the country millions of dollars in back pay, additional damages, and, in some cases, attorneys’ fees and court costs as well.3 To attract more attention to this issue, plaintiffs’ lawyers and government agencies have labeled the misclassification of employees for overtime purposes a form of “wage theft” – an emotionally laden phrase that may incite employees to sue and should shock employers into compliance.
On the last day of its term, the United States Supreme Court held that two for-profit corporations were “persons” within the meaning of a federal statute that prohibits the government from “substantially burdening a person’s exercise of religion.” Much has already been said and written about this decision, Burwell v. Hobby Lobby (Case No. 13-354; June 30, 2014), which involved national retailer Hobby Lobby Stores, Inc. and Lancaster-based cabinet manufacturer Conestoga Wood Specialties Corporation. Commentators on the right have hailed it as a victory for religious freedom and against intrusive government. The left despairs over its implications for women’s reproductive freedom, employment discrimination, and LGBT rights. It remains to be seen, of course, just how the decision will impact future cases that involve religious expression and corporations. Perhaps all sides can agree, though, that the word that best describes both the result and the reasoning in this case is “close.”
In less than two months, the United States Supreme Court issued two decisions that have reignited the debate in this country about the separation of church and state and the role of religion in a secular society. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that two for-profit corporations were “persons” within the meaning of a federal statute that prohibits the government from “substantially burdening a person’s exercise of religion.” 1 And in Town of Greece v. Galloway, the Court allowed public officials in Greece, New York to open their meetings with Christian prayer. 2 While these cases involve clashes between government and religion, employers in the private sector often face challenges in balancing the needs of their business with the religious rights of their employees.
The Patient Protection and Affordable Care Act (“ACA” or more colloquially, “Obamacare”) affects virtually all employers – from small family businesses to large publicly traded corporations. The ACA is complex, and there is still some uncertainty about how its implementation will affect the employer-based system of health insurance in the United States. But let’s begin with the basics. Here are three things employers should know about the ACA:
Both state and federal laws apply to the compensation of employees in Pennsylvania. The current minimum wage is $7.25/hour, and most hourly workers are entitled to overtime compensation after working 40 hours in a workweek. Even some salaried workers (those paid on an annual, rather than hourly basis) may be eligible for overtime under strict federal regulations that limit the overtime exemption to workers who have specific job duties. For example, to be exempt from overtime, an employee must: (1) supervise two or more employees (known as the “executive” exemption); (2) hold a professional degree required for the job (“professional” exemption); or (3) use “discretion and independent judgment with respect to matters of significance.” Other exemptions may apply depending on the employee’s duties and the employer’s industry. (Interstate truck drivers, for example, are exempt from overtime requirements; their hours are separately regulated by the U.S. Department of Transportation.) In addition, employers must ensure that employees performing the same or similar jobs are paid equally, regardless of gender, race, religion, age, national origin, disability, or other protected category. (See “Employment Discrimination.”)
Baulig Law can assist employers in ensuring that their employees are properly compensated and classified under state and federal wage and overtime laws. Failure to properly classify workers as exempt or non-exempt for overtime can lead to civil penalties as well as private lawsuits. In fact, there has been an increase in the number of “class action” wage and overtime lawsuits brought against employers in recent years. The availability of significant attorneys’ fees in these cases makes it likely that this trend will continue. So it makes good business sense to ensure your employees are properly paid and classified.