Articles by Our Attorneys

February 2024 was full of significant legal developments nationally and in Pennsylvania.  Labor advocates saw a victory in the national forum with student-athletes getting the right to unionize, a labor loss locally with the Pennsylvania Supreme Court reigning in the application of the Pennsylvania Prevailing Wage Act for a college construction project, and a notable ruling rejected protections under the Americans with Disabilities Act for medical marijuana patients. Read about it below.

National Labor Relations Board (NLRB) deems Players on Dartmouth College’s Men’s Basketball Team as Employees, Granting Them the Right to Unionize

In a significant development for college athletics, the National Labor Relations Board (NLRB) has deemed players on Dartmouth College’s men’s basketball team as employees, granting them the right to unionize. NLRB Boston office director Laura Sacks clarified that this decision aligns with a 2016 ruling acknowledging graduate student assistants’ unionization rights, asserting that the players’ activities benefit the institution and are compensated in non-traditional forms like admission aids and gear.

This ruling, subject to Dartmouth’s potential appeal, reopens the debate over whether college student-athletes qualify as employees under the National Labor Relations Act (NLRA), a question left unanswered since 2015. The filing of a union petition by the Service Employees International Union Local 560 signals a resurgence of interest in athletes’ labor rights, echoing past efforts at Northwestern University in 2014.

Sacks emphasized the athletes’ significant contribution to Dartmouth’s reputation and their adherence to institutional control, further solidifying their classification as employees. While the ruling doesn’t specify an election date, it sets a precedent for the evolving landscape of collegiate sports labor relations.

The case is Dartmouth College/Dartmouth College Board of Trustees and Service Employees International Union Local 560, case number 01-RC-325633, before the National Labor Relations Board Region 1.

PA Supreme Court Rules that Union-Friendly Prevailing Wage Act Rules Do Not Apply To Ursinus Bonds

In a landmark ruling, the Supreme Court of Pennsylvania has determined that bonds arranged by a government-created authority for the expansion of Ursinus College, a private institution in Pennsylvania, do not constitute “public funds.” The decision, authored by Justice P. Kevin Brobson, reinforces that the project financed by these bonds, despite the authority’s involvement, does not fall under the purview of the state’s Prevailing Wage Act (PWA).

The court emphasized that the funds used for the project were private in nature and were to be repaid by a private entity, precluding the application of prevailing wage rules. This ruling underscores the distinction between public and private financing, highlighting that the involvement of a government entity in facilitating financing does not automatically subject a project to prevailing wage requirements.

The decision marks a victory for Ursinus College and sets a precedent clarifying the interpretation of the PWA in similar contexts, providing clarity for future projects financed through similar arrangements.

The case is Ursinus College v. Prevailing Wage Appeals Board, case number 18 MAP 2023, in the Supreme Court of Pennsylvania.

Federal Court Rules that ADA Does Not Protect Medical Pot Use

In a recent ruling, U.S. District Judge Geoffrey W. Crawford addressed the complex intersection of state legalization of medical marijuana and federal employment law, particularly concerning the Americans with Disabilities Act (ADA). The case involved Ivo Skoric, a transit worker terminated for testing positive for marijuana despite having a medical prescription.

Judge Crawford’s decision underscored a crucial point: while states like Vermont have legalized medical marijuana, federal law, which classifies marijuana as a Schedule I substance, prevails. This classification, denoting “no currently accepted medical use,” effectively limits the ADA’s protection for individuals using medical marijuana.

The judge dismissed Skoric’s civil rights lawsuit against his employer, Marble Valley Regional Transit District, citing the ADA’s inability to support claims of discrimination in such cases. Additionally, claims against the Vermont Department of Labor were dismissed, with jurisdictional considerations playing a pivotal role.

Skoric’s case exemplifies the complexities individuals face when navigating conflicting state and federal laws regarding medical marijuana use and employment rights. This ruling highlights the pressing need for legislative clarity and underscores the ongoing legal challenges in this evolving landscape.

The case is Skoric v. Marble Valley Regional Transit District et al., case number 2:23-cv-00064, in the U.S. District Court for the District of Vermont.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

The new year brought its fair share of controversy with a DOL worker classification rule that will impact employers nationwide, religious discrimination litigation over a local hospital’s COVID vaccine mandate, and a continued push for corporate DEI initiatives despite the Supreme Court’s decision striking down affirmative action university admissions.  See the latest below.

Department of Labor worker classification rule may dramatically alter the employment landscape nationwide

The U.S. Department of Labor (DOL) has unveiled its final rule on the classification of workers as independent contractors under federal labor law. The long-awaited rule, set to take effect on March 11, establishes a comprehensive six-factor test to determine whether a worker qualifies as an employee or an independent contractor. The factors include 1) the worker’s opportunity for profit or loss, 2) investments made by both the worker and the potential employer, 3) the degree of permanence in the work relationship, 4) the level of control the employer exercises, 5) the integral nature of the work to the employer’s business, and 6) the use of the worker’s skill and initiative.

Acting Labor Secretary Julie Su emphasized that the new rule aligns with the economic realities test developed by courts over decades, providing clarity and consistency in determining a worker’s status under the Fair Labor Standards Act. Su noted that misclassifying workers as independent contractors deprives them of essential benefits and protections required for employees.  Critics of the new rule argue that it will lead to reclassification of potentially millions of workers.  They largely point to the new (5^th) factor as a potential source of upheaval, as many historically independent workers provide services that are integral to the contracting company.

The rule rescinds a narrower independent contractor rule proposed under former President Donald Trump, which never went into effect. Despite positive reception from Democrats, Republicans have expressed opposition, with plans to introduce a Congressional Review Act resolution to repeal the rule.  The controversy surrounding the rule highlights the ongoing debate over the classification of workers and the potential impact on both employers and independent contractors.  The Rule is slated to take effect March 11, 2024.

Children’s Hospital of Philadelphia must face religious discrimination lawsuit over COVID vaccine mandate

The Children’s Hospital of Philadelphia (CHOP) faces legal proceedings as a former engineer, Donald Glover, claims the institution unlawfully rejected his request for a religious exemption from a COVID-19 vaccine mandate. U.S. District Judge Joel H. Slomsky ruled against CHOP’s motion to dismiss the lawsuit, emphasizing that Glover sufficiently demonstrated his objections were rooted in religious beliefs, specifically his Christian faith.

Glover, who opposed the vaccine due to his belief that his body is “God’s temple” and his objection to the use of fetal stem cells in vaccine research, cited the Book of Revelation in his plea for exemption. The court invoked the Third Circuit’s three-part test from Africa v. Commonwealth of Pennsylvania to establish the religious nature of Glover’s beliefs, emphasizing the fundamental and ultimate questions addressed by his Christian faith.

CHOP argued that Glover’s objections were philosophical rather than religious and based on a unique interpretation of a Bible passage. However, Judge Slomsky determined that Glover’s beliefs about the use of aborted fetal cells, the sanctity of human life, and the COVID-19 vaccine were cohesive with his two-decades-long Christian faith. The lawsuit proceeds, highlighting the intersection of religious beliefs, vaccine mandates, and employment rights.

The case is Glover v. The Children’s Hospital of Philadelphia, case number 2:23-cv-00463, in the U.S. District Court for the Eastern District of Pennsylvania.

Executives continue to champion DEI despite U.S. Supreme Court striking down affirmative action admissions

A report by Littler Mendelson PC reveals that despite the U.S. Supreme Court decision overturning race-conscious university admissions policies, nearly 70% of surveyed executives affirmed that their commitment to diversity, equity, and inclusion (DEI) remains unchanged. The survey, involving 322 C-suite executives, indicated that 57% of respondents observed an increased commitment to DEI in 2023. The Supreme Court’s June decision, impacting affirmative action policies at Harvard and UNC, did not deter 91% of executives from prioritizing DEI. However, 59% acknowledged a backlash against corporate diversity initiatives due to the ruling, and 6% reported some reduction in DEI programs since 2022. Concerns about legal liability, budget constraints, and lack of support from senior leaders were cited as reasons for scaling back DEI efforts. Discrepancies were noted between chief legal officers and chief diversity officers regarding perceptions of DEI programs, highlighting potential challenges in C-suite alignment on these initiatives.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.