NLRB and Mandatory Arbitration Agreements
The National Labor Relations Act (NLRA) prohibits employers from interfering with employees’ rights to engage in concerted activity as a class. However, the Supreme Court in Epic Systems v. Lewis held that arbitration agreements that contain waivers of class action and collective action, and require employees to resolve disputes individually, do not violate the NLRA. On August 14, 2019, the National Labor Relations Board (NLRB) addressed this issue further in Cordua Restaurants, Inc. NLRB No. 43 (2019). The Cordua action marginally expanded the ruling in the Epic case.
The Cordua Restaurants, Inc. Case
In this case, a restaurant group already had a mandatory arbitration agreement with a waiver of an employee’s right to file or participate in class and collective actions in court or arbitration proceedings. When several workers filed a lawsuit alleging wage and hour violations, the restaurant group revised its’ agreement to include a ban on opting into collective bargaining actions. The group made signing of the revised agreement a condition for employment. The workers claimed that this violated their rights under the NLRA. The NLRB disagreed stating that opting in to a collective action was simply a procedural step required to participate in a collective action that was already waived by the prior agreement.
The Board in Cordua specifically held that:
- Employers may inform employees that failure or refusal to sign a mandatory arbitration agreement may result in their discharge without violating the NLRA.
- Employers may promulgate mandatory arbitration agreements in response to employees opting into collective bargaining or collective action for state wage and hour laws under the Fair Labor Standards Act (FLSA).
- Employers may not take retaliatory action against employees for engaging in concerted activity or for filing class and collective actions concerning wages, hours, and working conditions.
The Cordua decision permits employers to implement mandatory arbitration agreements and policies as a condition to employment. However, the Cordua decision does not authorize an employer to punish an employee who then joins a class action lawsuit based on wages, hours, or working conditions. Employers should instead seek a court or arbitrator to enforce the arbitration agreement.
Under this decision an employer may require an employee to sign a mandatory arbitration agreement with a class-action lawsuit waiver without fear of violating the NLRA. However, employers must be careful to avoid any action that may be perceived as retaliatory against an employee for engaging in a class action lawsuit. An employer must utilize the court system and arbitration proceeding to enforce the mandatory arbitration agreement instead.
The employment attorneys at MacMain Leinhauser represent public and private employers in collective bargaining negotiations and arbitration proceedings before the Pennsylvania Labor Relations Board and the NLRB. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia. For an initial consultation, contact us online or call us at 484-318-7106.
Small Business Strategies for Employee Retention
Employees in the current job market are always looking for better employment. Employee retention is a priority for small businesses as costs of hiring and training new recruits is time consuming and costly. Small businesses need to have effective strategies in place for employee retention. Employee retention is not entirely dependent on employment compensation. Thankfully, small business organizations can implement practices that can increase employee engagement without incurring huge costs. The following simple strategies will boost employee engagement and retention.
Employees are often struggling to balance work with personal life. Recognizing that employees have commitments to family and home and allowing them flexibility in dealing with these issues will increase their loyalty. Allow them to take time off to volunteer, book appointments for medical and other reasons through flex time. Additionally, consider allowing them to work remotely one or two days a week to minimize time spent commuting. Supporting employee needs outside of the workplace will help to prevent their seeking of alternative employment.
Health benefits, including health insurance and health savings accounts that assist employees to meet medical expenses will also boost employee retention. When an employee is able to take care of their health and afford medical care with the help of their employer, they may be more reluctant to jump ship.
Encourage Personal and Professional Growth
Encouraging employees to improve their skills also fosters loyalty. An employee is more engaged when they are always learning and improving. Providing training, seminars, leadership courses and tuition assistance will increase employee job satisfaction and thus retention.
Recognition is Key
Positive recognition of employees’ accomplishments will increase job satisfaction. Recognizing employee achievements does not cost much, yet it is an effective way to boost employee retention. Creating a positive work environment where good work is recognized and praised promotes overall health and culture of a small business. When employees feel like they are being recognized for their hard work and rewarded fairly, they will be happier and thus more loyal.
West Chester Employment Attorneys at MacMain Leinhauser Represent Small Business Employers in a Variety of Employment and Labor Matters
The employment and labor law attorneys at MacMain Leinhauser provide human resource counseling and human resources support for private and public sector employers. To schedule a confidential consultation, contact us online or call our office at 484-318-7106. We serve clients in Philadelphia and Chester County from our office is located in West Chester, Pennsylvania.
Understanding the Federal Tort Claims Act
Not every personal injury lawsuit is filed against a private individual or commercial business. In some cases, injured individuals will sue a government entity such as a police department or public housing authority or other public employees for damages. Filing a medical malpractice claim against a veterans hospital or a slip and fall claim against the IRS after falling on an icy sidewalk in front of the building are common examples. Litigation involving government entities can raise unique issues especially if the matter is subject to the Federal Tort Claims Act (“FTCA”).
In many cases, the doctrine of “sovereign immunity” bars an individual from filing a lawsuit against the government. The FTCA has strict guidelines setting forth when a claim can be brought against a public entity. Only those claims against the government specially allowed by the state law of the location where the injury occurred will fall under the FTCA. While this generally includes claims for injuries resulting from wrongful or negligent actions of government employees, there are some exceptions. These include claims based on the actions of independent contractors or based on any conduct outside the scope of the government employee (including actions taken while the federal employee is “off duty”). Although the FTCA typically covers only acts of negligence, certain claims involving the intentional misconduct of federal law enforcement officers are permissible.
Filing for compensation against the government is not as simple as filing a complaint in federal court. Pursuant to FTCA regulations, injured individuals first must file an administrative claim with the specific government agency allegedly responsible for the negligence. Many government entities have their own specific claim forms that a potential plaintiff must file such as the Standard Form 95 available from the United States Department of Justice. Under the FTCA, the government agency has six months to respond to the compensation request during which it may agree to pay some or all of the alleged damages. After six months, the injured individual may proceed with filing their lawsuit.
Claims Against Government Health Centers
Injured individuals seeking to bring malpractice claims against medical providers employed by the federal government or public entity health centers also need to follow the procedures outlined in the FTCA. Federal employees of qualified health centers are immune from private lawsuits with the government acting as their primary insurer. Administrative claims against government medical facilities and their employees will be reviewed and litigated if necessary by the United States Department of Health and Human Services Office of the General Counsel.
Defending FTCA Claims
Government entities sued under the FTCA need experienced counsel who understand the complexities of federal and state law in this area. Defending these matters requires extensive knowledge of the exceptions and procedural requirements of the FTCA which can only be gained by years of experience. At MacMain Leinhauser, our experienced attorneys have a proven success record in defending government agencies from FTCA matters throughout the state.
Philadelphia Business Lawyers at MacMain Leinhauser Defend Federal Tort Claim Act matters
At MacMain Leinhauser, our experienced Philadelphia business lawyers proudly defend a wide variety of government entities in Federal Tort Claim Act matters throughout Pennsylvania. With offices conveniently located in West Chester, Pennsylvania, we represent clients throughout Philadelphia and Chester County, Pennsylvania in a wide range of legal matters. To schedule a confidential consultation with one of our experienced business and Federal Tort Claims Act attorneys today, call us at 484-318-7106 or submit an online inquiry form.
Police Test an Alternative to Tasers
In the wake of 49 deaths in 2018 related to police use of tasers, law enforcement institutions have shown interest in an alternative device similar to the ensnaring web used by crime-fighting, comic-book superhero Spiderman. The device, like Spiderman’s web, catches suspects by entangling their legs to prevent a get-away.
The Bolawrap is a cell phone-sized device that shoots an eight-foot synthetic fiber cord at a speed of 640 feet per second from 10-25 feet away. The flying tether moves too quickly to be detected and wraps around the suspect’s legs (or arms and torso) to entangle them and prevent their escape.
The most appealing feature is its simplicity. The ease of use and the relative safety of the device are attracting the attention of police departments throughout the U.S. and as far away as Australia and New Zealand.
Unlike tasers, pepper spray, and use of physical force to restrain suspects, the Bolawrap avoids the risk of harm to suspects while efficiently immobilizing them. It allows officers to keep a safe distance, while acting to de-escalate tensions in a way that more hands-on types of restraint cannot offer.
Modeled and named after a bola, a weapon historically used by South American gauchos and Indians to ensnare the legs of animals such as cattle, the Bolawrap design uses small metal barbs on the ends of a Kevlar cord to secure the device around the suspect. The cord wraps around the suspect up to three times in a split second.
The Bolawrap fits easily on a police officer’s belt, requires little training to operate, and can be reloaded to deploy again in three to eight seconds.
Originally billed as “non-lethal” restraint devices, tasers have been implicated in 1081 deaths since they became widely used in the early 2000s, giving law enforcement agencies a compelling motive to seek out alternate ways to subdue suspects.
The Bolawrap, by contrast, is not dependent on inducing pain in order to achieve compliance, making it particularly useful when confronted with suspects suffering from mental health issues—a population that accounts for a significant portion of those involved in police confrontations.
Within the U.S., more than 1100 police departments have requested demonstrations. More than 60 police departments are testing the Bolawrap internally, while another 30 are using the device in the field.
Attorneys at MacMain Leinhauser Represent and Counsel Police Departments
Attorneys at MacMain Leinhauser defend police officers accused of misconduct or use of force. We also advise government and law enforcement clients in ways to protect themselves from legal liability. To learn more, contact us online or call our West Chester, Pennsylvania office at 484-318-7106. We serve clients in the Philadelphia area, and throughout Chester County.
Action on Pennsylvania Charter School Law Reform
Governor Tom Wolf has announced wide ranging changes to Pennsylvania’s charter school policy, including charging charter schools for services the state provides, tightening ethics standards, and permitting school districts to limit enrollment at under-performing charter schools. The Department of Education will oversee the changes to charter regulations with the aim of increasing accountability for the schools. Wolf plans to makes the changes through executive actions. Revision of charter school law would have to be made with the support of legislative leaders.
Charter School Controversy
Charter schools are for some a much-needed alternative to traditional district-run schools. The movement has grown from some 79,000 students enrolled in Pennsylvania charters nearly a decade ago to more than 143,000 students last year in 180 independent public schools. In Philadelphia, more than one-third of city public school students attend charters. Enrollment in a charter school is free to students, but the school district is required to pay their tuition. Critics of charters see this as a drain on the public education system.
Districts must pay for both brick-and-mortar charters and cyber charter schools where students learn via computer from home. Cyber charters have performed poorly in recent studies and reform advocates want all taxpayer funded schools to have the same standards of transparency and accountability.
The Pennsylvania Coalition of Public Charter Schools criticized Governor Wolf for not involving the charter school community in the plans for reform and said that some of the reforms represent a “blatant attack” on charter schools. It also questioned the legality of the proposed changes and suggested that some could be in violation of the state Charter School Law.
Charter school reform has been a topic for years in the Pennsylvania legislature with four charter reform bills being passed just last year in the House. However, none have become law.
Goal and Priorities
The Governor’s announcement offered a broad proposal of “goals and priorities” but little detail about how they would be achieved. Following are some of the proposed charter reform changes from the full text released by the Governor’s office:
- Allow school districts to limit student enrollment at charters that do not provide a high-quality, equitable education to students.
- Require transparent charter school admission and enrollment policies that do not discriminate based on intellectual or athletic ability, race/ethnicity, gender, or disability, among other student characteristics.
- Hold charter schools and their operators to the same transparency standards as school districts because they are public schools and receive more than $1.8 billion in state and property tax dollars annually.
Require that charter school Board of Trustees and operating companies– like school district School Boards – are free from conflicts of interest and prohibit them from making decisions that provide a financial benefit to themselves, friends, and/or family members.
- Require charter schools to use sound fiscal management, provide regular financial audits to state regulators, publicly bid contracts for supplies and services, use fair contracting practices, and engage their communities.
- Establish a model state application to start a new charter school or renew an existing charter school that provides school districts with comprehensive information on how the school will be run and allow for rigorous analysis.
- Establish a clear process that requires charters to accurately document their costs.
- Initiate a fee-for-service model to cover the department’s costs associated with implementing the charter school law.
Chester County Charter School Attorneys at MacMain Leinhauser Advise and Counsel Charter School Administrators
If you have a question about charter school law in Pennsylvania, contact The MacMain Leinhauser to speak to an experienced Chester County education law attorney. Call 484-318-7106 or contact us online. From our office in West Chester, we assist clients across Philadelphia, Chester County, Delaware County, and Montgomery County.