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The June 2022 employment law update addresses the potential impacts on employers of the Supreme Court’s June 24 decision overruling Roe v. Wade.

Even with the leak of a draft opinion this May, the release this past Friday of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health came as a shock to many.   In Dobbs, the Supreme Court approved 6-3 a Mississippi law banning most abortions after 15 weeks, and in a 5-4 opinion held that Roe was wrongly decided and that the U.S. Constitution does not provide a right to abortion.  The ruling, in effect, gives states far greater ability to impose restrictions on the procedure or to impose outright bans, and the legal landscape is already changing.  13 states had in place “trigger bans,” designed to take effect if Roe were struck down, other states acted to ban abortions the day the opinion was released, and still other states are expected to act based upon their historical position on the issue. By contrast, in many other states the political demographics and existing legislation suggest that the legality of abortion is not likely to change.

Dobbs leaves employers facing numerous questions.  Most notably, from a health insurance standpoint, employers will need to examine what kind of plan the company offers, as this could impact the degree to which new state laws restricting abortions could apply.  Notably, in fully insured plans, where employers purchase insurance through a commercial provider subject to state regulation, new state regulations will likely impact what plans do and do not cover.

For self-funded plans where an employer assumes financial risk for providing care to its workers, the Employee Retirement Income Security Act (ERISA) federal preemption provisions may apply and, therefore, block the application of state insurance laws that might restrict access to abortion.  However, ERISA generally preempts state laws that “relate to” an ERISA plan but does not preempt “generally applicable” state laws, such as criminal laws. Some states have laws that criminalize abortion, while others, such as Oklahoma and Texas, have state laws imposing civil penalties on any person or entity that “aids or abets” an abortion procedure.  Such laws could be used to target employers who, for example, provide workers reimbursement to travel to a jurisdiction where the procedure is legal.  The issue (and nuances) of ERISA preemption may take years to be litigated, and in the interim employers should be cognizant of the risks of potential legal action if they want to keep abortion access in states with bans.

Another issue is whether the company, or employees, can (or should) voice their opinions either in favor or against the ruling.  To some degree, this would be a public and employee relations question.  From a legal standpoint, although the First Amendment right to free speech generally does not extend to the private workplace, employee expression can be covered by other protections.  This includes Title VII of the Civil Rights Act, which bars discrimination based on religion, and the National Labor Relations Act, which protects employees’ ability to discuss the terms and conditions of their employment.  Therefore, review and potentially updating policies in areas such as social media and dress code may be beneficial for employers in order to address concerns over activism or things like wearing political t-shirts or buttons to work.

Ultimately, employers would be wise to think through the potential impacts of the Dobbs decision on their business now so that they are prepared to handle the issues that arise in the new legal landscape.

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.

Both the weather and employment litigation are heating up with the arrival of March.  Check out the latest Pennsylvania wage/hour and discrimination actions Pennsylvania employers are facing below:

Pennsylvania Domino’s Pizza Franchise Owner Hit with Collective Action for Alleged Wage Violations for Drivers

A proposed collective action has been filed in Pennsylvania federal court on behalf of Domino’s pizza delivery drivers who allegedly were given inadequate reimbursement for expenses relating to using their own vehicles for work.  The drivers have filed suite against Barrick Enterprises, Inc., which owns multiple Domino’s franchises, claiming that the per-mile fuel reimbursement policy was below the IRS business mileage rate of 55 to 58 cents per mile and, further, that this inadequate reimbursement caused the drivers’ wages to fall below the federal minimum wage, in violation of the Fair Labor Standards Act (“FLSA”).  To comply with the FLSA, employers must not only pay a wage at or equal to the minimum wage, but must also ensure that reimbursements, expenses, and other compensation-related practices do not bring the total compensation below the mandated $7.25 per hour.

As a result of this allegedly inappropriate practice, the law firm representing the Plaintiffs is seeking to assert a collective action for damages equal to the minimum wage minus actual wages received after deducting reasonably approximated automobile expenses within three years from the date each plaintiff joins this case, plus attorney fees and litigation costs, and pre- and post-judgment interest.  The case is Stansbury v. Barrick Enterprises Inc., et al., case number 1:22-cv-00342, in U.S. District Court for the Middle District of Pennsylvania, and serves as a reminder that an inappropriate pay practice affecting multiple employees can lead to major long-term consequences for an employer.

Pennsylvania Hospital Sued for Allegedly Withdrawing Job Offer Over Medical Marijuana Use

St. Luke’s Physician Group Inc., which operates a women’s health center in Bethlehem, Pennsylvania, is facing a lawsuit from a woman who says the hospital rescinded her job offer following a positive drug test due to her medical marijuana use.  According to the complaint, St. Luke’s offered the plaintiff employment at the center as a receptionist, contingent upon a drug test and medical examination.  When the plaintiff provided a urine sample, she was told she tested positive for marijuana, and the following day the plaintiff provided the hospital’s substance abuse coordinator a copy of her medical marijuana card.  It is alleged that when the plaintiff inquired a few days later about starting her employment, she received a letter notifying her the offer had been withdrawn.  The plaintiff alleges she suffers from PTSD and anxiety disorders, that she was certified by a medical physician to use medical marijuana, and that her conditions qualified as disabilities under the Americans with Disabilities Act because they “affect at least one major life activity including but not limited to the ability to learn, read, concentrate, and think.”  The plaintiff claims St. Luke’s discriminated against her based on her “perceived disability”.  The hospital denies the allegations.  Regardless, employers should be sure that they are not only up to date on the Pennsylvania medical marijuana laws, which prohibit discrimination and retaliation based upon participating in the state’s medical marijuana program, but also that they understand the interplay between those laws and the ADA.

Pennsylvania Workers Seeking Compensation for Mandatory Pre-Shift Activities

Workers at Ferro Corp., a specialty coating manufacturing company in Western Pennsylvania, have filed suit claiming their employer violated the Pennsylvania Minimum Wage Act and the Pennsylvania Wage Payment and Collection Law by not paying them for time spent on indispensable, work-related tasks before and after their shifts, according to a proposed class action.  The company allegedly required employees to come in before the scheduled start of their shifts to go through necessary activities such as donning protective equipment, getting their assignments and walking to their work sites, but didn’t actually start paying them until the scheduled start of their time on the production floor.  The suit follows the Supreme Court of Pennsylvania ruling in Neal Heimbach et al. v. Amazon.com Inc. et al., which I previously wrote about, in which the Court ruled that the state’s labor laws can extend beyond the federal Fair Labor Standards Act and require workers to be paid for “all hours worked”.  The case is Ruffa v. Ferro Corp., case number GD-22-003311, in the Court of Common Pleas of Allegheny County, Pennsylvania.

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.