Labor & Employment

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Public sector employers of all sizes have been asking whether they must comply with OSHA’s recent Emergency Temporary Standard (“ETS”).  The short in Pennsylvania is no – the ETS does not apply to state and local government employers in those states, such as Pennsylvania, that do not have State Plans (that is, an OSHA-approved plan by which a state assumes responsibility for occupational health and safety standards).
Continue Reading PA State and Local Government Employers Escape OSHA’s Vax or Test Rule

This post was authored by Adam Santucci and Daniel Serrano.  Adam is the Chair of the Public Finance and Government Services Group at McNees.  Danny is a CAMP 1L Intern with McNees.  Danny is currently a student at the Pennsylvania State University and expects to earn his J.D. in May of 2023.

On June 23, 2021, in an 8-1 decision, the Supreme Court of the United States issued its opinion in Mahanoy Area Sch. Dist. v. B.L., holding that a high school’s interest in preventing students from using vulgar language to criticize school sports teams or staff does not override students’ rights to free expression under the First Amendment. The Court made clear that students do not “shed their constitutional rights to freedom of speech or expression” even “at the school house gate.”

Here is the background.  After being denied a position on the school’s varsity cheerleading team, B.L., a ninth-grader at Mahanoy Area School District, messaged a group of 250 “friends” on the social media platform Snapchat, where she expressed frustration with the school and cheerleading team. Her messages used “vulgar language and gestures” while criticizing the school and cheerleading team. Although the images and messages were set to expire within 24 hours, the images spread throughout the school and were brought to the attention of the cheerleading coaches. As a result, the school suspended B.L. from cheerleading for a year.  In response to the school’s disciplinary actions, B.L.’s parents appealed the suspension to the school board with no success. When that failed, they sought relief in federal court.
Continue Reading Cheerleader’s Vulgar Snapchat Trashing Cheer Team is Protected Speech

Many Pennsylvania municipalities in recent years have struggled to rein in their Other Post Employment Benefits (OPEB) liabilities. OPEB benefits are retirement benefits a public employer has promised to provide its retired employees, other than pension payments. Benefits might include life insurance premiums, post-retirement healthcare, dental and vision benefits and other types of benefits.

OPEB benefits are typically funded using one of two methods: (i) the pay-as-you-go method, which is generally paid each year from the municipality’s general fund; or (2) or an OPEB trust. A trust is typically established through an initial and then subsequent transfers of funds.   The trust funds are invested and the principal and interest are used to pay for the promised OPEB benefits.
Continue Reading Budgeting for OPEB Liabilities with an OPEB Trust

By now, public sector employers have navigated the first two weeks of employee eligibility for paid leave under the Families First Coronavirus Response Act (“FFCRA”).  At the same time, public employers have tried to digest the CARES Act and whether its provisions provide any economic relief.  Together, the two laws tell a single story – public sector employers have the same obligations as private sector employers but not the same level of financial support.  You are generally on your own to figure out how to manage and pay for your workforce during these unprecedented times.  Some aspects of the laws, however, can provide relief valves, provided the appropriate decisions are made and implemented.
Continue Reading The Consolidated Impact of the FFCRA and CARES Act on Public Sector Employers: You’re on Your Own (for the most part)

As summer winds down, the first whispers of fall rippling through cool evening breezes are a welcome reminder that school is back in session. That means it’s an opportune time for Pennsylvania’s 500 public school districts and many charter schools to examine their policies governing employee reporting of arrests and convictions and their handling of…

Last legislative session, the Pennsylvania House of Representatives introduced H.B. 2664, which sought to add a new subsection to the Workers’ Compensation Act addressing post-traumatic stress disorders in certain first responders.  That Bill never made it out of committee, but that’s not the end of the story.
Continue Reading Proposed Changes to the Pennsylvania Workers’ Compensation Act for First Responders

As the executive and legislative branches of County government, the County Commissioners are responsible for most of the work of the County. However, County government is also served by a number of independently elected row officers, who are also vested with significant authority. That includes the authority to hire, fire and supervise employees within the office, even over the objections and direction of the County Commissioners.
Continue Reading County Row Officers, 1620 Rights, and Arbitrating Arbitrability

The Third Circuit Court of Appeals, the appeals court that has jurisdiction over federal cases in Pennsylvania, New Jersey, Delaware and the U. S. Virgin Islands, recently held that a public employer violates the First Amendment of the United State Constitution when it retaliates against an employee based on the employee’s union membership.  In reaching its conclusion, the Court distinguished between First Amendment “free speech” claims and First Amendment “association” claims.

Continue Reading Court Holds Union Membership ‘Worthy of Constitutional Protection’