April, 2021, has brought a number of legal developments in the employment law arena. Here are a few of notable developments to keep you updated:
- Pennsylvania Attorney General’s office launches largest criminal wage theft case in U.S. history.
Pennsylvania construction company Glen O. Hawbaker Inc., has allegedly failed to pay full prevailing wages on several years’ worth of project work, allegedly stealing some $20 million in pay from its workers. The road and bridge building company is charged with four counts of theft for alleged violations of the Pennsylvania Prevailing Wage Act and U.S. Davis-Bacon Act following a 3-year investigation. According to the allegations, the company diverted money from workers’ retirement accounts in order to pay pensions for higher-level employees including company executives. It is further alleged that Hawbaker inflated the amount the company stated it would be paying to cover the cost of worker health care plans, while paying a lower amount and pocketing the difference. The case serves as a reminder to Pennsylvania businesses that the state attorney general’s office can pursue criminal penalties for wage and hour violations if it perceives the situation as theft.
- Pennsylvania worker claims employer failed to accommodate her anxiety from COVID-related workplace dispute.
A Pittsburgh woman has filed suit alleging that her employer, a butcher shop, fired her over her anxiety stemming from a COVID-related workplace dispute. The lawsuit claims that the woman held a wedding in November, and later felt sick at work and left for testing and quarantine. Her testing was ultimately negative and she returned to work, however upon her return co-workers allegedly accused the woman of potentially exposing them to COVID. The woman allegedly left to eat lunch and experienced a panic attack in her car and did not return. During a text exchange with her supervisor, the woman allegedly reported the panic attack, that she had a diagnosed panic disorder, and referenced wanting to find a reasonable accommodation. The employer allegedly responded by stating that it did not have the resources to accommodate her and terminated the woman’s employment. The woman has filed suit alleging that the employer’s refusal to accommodate her, and her subsequent firing, were violations of the Americans with Disabilities Act and Pennsylvania Human Relations Act. The case – Hammond v. Strip District Meats Inc., in the U.S. District Court for the Western District of Pennsylvania – highlights the importance of understanding “reasonable accommodation” requirements under disability law.
- “Donning” lawsuit illustrates need for employers to properly account for COVID-era PPE requirements in their wage calculations.
In a recent lawsuit filed over “donning”, employees of Cresco Labs, a cannabis cultivator, complained that they had to arrive at their facility at least 12 to 16 minutes early to undergo mandatory health screenings and to put on company-issued PPE required for safety and to protect the cannabis from contamination, however they were only paid for an additional 5 minutes of time. This is one of a number of recent wage and hour lawsuits relating to “donning” or “doffing”, including a class action lawsuit filed against Walmart. “Donning” and doffing” is used to refer to the practice of putting on (donning) and taking off (doffing) protective gear, clothing and uniforms. There are certain circumstances where employers are legally required to pay their employees for time spent donning and doffing. According to the U.S. Department of Labor, “[g]enerally, donning and doffing, which may include clothes changing, can be a ‘principal activity’ [requiring compensation] under the Portal to Portal Act, 29 U.S.C. § 254.” The Supreme Court in IBP v. Alvarez, 546 U.S. 21, 37 (2005) explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. The case is Janice Dutcher et al. v. Cresco Labs Inc. et al. case number 1:21-cv-02106, in the U.S. District Court for the Northern District of Illinois.
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, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also 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.