Norris, McLaughlin & Marcus

United States Supreme Court Defines Boundaries of Internet Rants

In a 7-2 United States Supreme Court Opinion written by Chief Justice John Roberts, the Court addressed the issue of when online rants constitute free speech versus when they amount to criminal threats.  Read the rest of this entry »

UPDATE – Supreme Court Rules on Religious Garb and Employer Accommodation

On June 1, 2015, the United States Supreme Court ruled in favor of a Muslim woman who did not get hired after she applied for a job at retailer Abercrombie & Fitch wearing a headscarf.  As previously posted, Samantha Elauf wore her hijab, a Muslim headscarf, to her job interview, but never requested any accommodation to wear it while working and never mentioned that she was Muslim.  After the interview, the A&F assistant manager recommended Elauf for the job, but later consulted with her district manager regarding the hijab.  The district manager said Elauf’s hijab violated the “look policy” and that she should not be hired. Read the rest of this entry »

Consumer Financial Protection Bureau (CFPB) Announces Proposal to Delay Implementation of TILA-RESPA Integrated Disclosure (TRID) Rule

According to an evening email from the American Land Title Association (ALTA), the Consumer Financial Protection Bureau (CFPB) released a statement on 6/17/15 announcing a proposal to delay implementation of the TILA-RESPA Integrated Disclosures (TRID) rule from 8/1/15 until 10/1/15.  The CFPB has admitted to failing to timely notify Congress under the Congressional Review Act, which requires agencies to submit the rule to Congress and the Government Accountability Office 60 days before the effective date. The agency’s submission should include (1) a copy of the rule; (2) a concise general statement relating to the rule, including whether it is a major rule; and (3) the proposed effective date of the rule. According to the ALTA email, CFPB Director Richard Cordray, the bureau “made this decision to correct an administrative error that we just discovered in meeting the requirements under federal law, which would have delayed the effective date of the rule by two weeks. We further believe that the additional time included in the proposed effective date would better accommodate the interests of the many consumers and providers whose families will be busy with the transition to the new school year at that time.” The CFPB will open the proposal for comment. The bureau said a final decision is expected shortly thereafter.

If you have any questions about this post, or other real estate-related issues, please contact me at csmith@nmmlaw.com.

New NLRB General Counsel Report Addresses Employer Handbook Rules

The General Counsel of the National Labor Relations Board (NLRB) recently issued a report concerning recent Board decisions on employer handbook rules and policies. As employers know, the NLRB has increased its scrutiny of employer policies on topics such as social media, confidentiality, and employee behavior and conduct. In particular, the Board has found that certain facially neutral rules and policies are unlawful because employees could reasonably construe them to prohibit protected concerted activity (e.g., discussing wages, hours, or other terms or conditions of employment with co-workers or criticizing their employer’s labor policies or treatment of employees). The report examines various rules and policies and explains why some were deemed illegal, while others that appear nearly identical were upheld. Read the rest of this entry »

Breweries Can Add Independent Tasting Rooms in Pennsylvania

As previously reported, the Pennsylvania Liquor Control Board has added a new regulation, Section 3.93, Title 40 of the Pennsylvania Code, which allows breweries to sell beer and other malt beverage products at its brewery facilities without the need to acquire any additional form of license like a restaurant license or a brew pub license.  This regulation became final when it was published in the PA Bulletin over the weekend on May 30, 2015.  This regulation has a greater impact for breweries who wish to open tasting rooms and the final form regulation is a credit to the work of the Brewers of Pennsylvania.  The Brewers of Pennsylvania had issued comments to the original form regulation and the Independent Regulatory Review Commission agreed with those comments, resulting in a change by the Pennsylvania Liquor Control Board.  As a result of that slight amendment which lifted the restriction on the beer having to be produced on the premises where the beer would be sold, now, Pennsylvania breweries can open secondary storage locations (up to two per brewery license) and sell beer and other malt beverage products for on-premise consumption as well as six-pack, case and even keg beer.  Although the new brewery regulation does not specifically address storage facilities, pursuant to Section 431(a.2) of the Liquor Code, the Pennsylvania Liquor Control Board can issue two storage licenses per manufacturer separate from the location of the manufacturing facility.  A manufacturer may use the facility to receive, store, repackage, sell and distribute malt and brewed beverages in the same manner as its place of manufacture.  When read together with the new breweries regulation, the law now permits breweries to have tasting rooms in separate facilities without any manufacturing requirements as long as the storage facility has 10 seats and offers snack food like chips or pretzels.  Indeed, the opinion of this author is confirmed by the Pennsylvania Liquor Control Board, Office of Chief Counsel, in an Opinion issued on May 21, 2015 at Opn. 2015-227.  In this Opinion, the Board confirmed that storage facility locations can sell pints pending the publication of the brewery sales regulation in the Pennsylvania Bulletin.  With the May 30th publication, breweries can now add independent tasting rooms.

For additional information regarding this matter or for addressing any other liquor law matters, please contact Theodore J. Zeller III, Esquire at tzeller@nmmlaw.com or at our offices at 610-391-1800.

U.S. Department of Labor Issues New FMLA Form

The U.S. Department of Labor (“DOL”) recently issued new model notices and medical certification forms for employers to use in administering Family and Medical Leave Act (“FMLA”) leave.  The new forms—which expire on May 31, 2018—largely mirror the previous versions except for references to the Genetic Information Nondiscrimination Act (“GINA”).

In particular, the WH-380-E, 380-F, 385, and 385-V medical certification forms instruct health care providers not to provide information about “genetic tests,” “genetic services,” or “the manifestation of disease or disorder in the employee’s family members” pursuant to GINA regulations.  This addition is important, as GINA regulations state that if an employer includes a safe harbor notice with a request for medical certification, the receipt of genetic information by the employer in response to the request will not violate GINA.

The new FMLA forms can be accessed from the DOL’s website or in PDF format below:

 

For assistance with creating a FMLA policy, handling FMLA issues in the workplace, or any other labor and employment issue, please do not hesitate to contact a member of our Labor and Employment Department: George Hlavac, Jeff Stewart, Ed Easterly, or John Buckley.

New Rules For Pennsylvania Happy Hours

The Liquor Control Board proposed more amendments to “happy hour” rules in Pennsylvania.  Previously, happy hours limited restaurants to 2 consecutive hours a day of discounted alcoholic beverages.  In 2011, the Liquor Code was amended to allow 4 hours of “happy hour” in a day, but no more than 14 hours in a week.  Now, the licensee must post public notice of the “happy hour” at least 7 days prior to the date.  It is recommended that a restaurant’s weekly schedule of happy hours be posted to ensure compliance.

The proposed amended section allows for the 4 hours a day, but not more than 2 consecutive hours and maintains the limit of 14 hours a week and the 7 day notice.  It specifies that fluctuation in the price of the beverage within the 2 hour period is prohibited; however, it does allow a reduced price for a specific drink for a day, granted that the price does not change during the da Rules regarding the reduced price for a specific drink are outlined in Board Advisory Notice 16 which states that:  for beer it must be a specific brand and brew, for wine it states that the specials must be a specific type of wine such as “Merlot,” and for spirits it must be a specific drink such as “Rum and Cola.”

The proposed amendment will be effective upon final-form publication in the Pennsylvania Bulletin.  There are approximately 11,400 licensees who are affected by new rules.  Additionally, the amendments do not to require any extra paperwork from the licensees, except the posting of the required notice.

For additional information regarding this matter or for addressing any other liquor law matters, please contact Theodore J. Zeller III, Esquire at tzeller@nmmlaw.com or at our offices at 610-391-1800.

Third Circuit Addresses “Overnight Stay” under FMLA

As employers know, the Family and Medical Leave Act (“FMLA”) can be confusing to interpret and difficult to comply with.  Until recently, an unanswered question regarding the law was how long an employee must stay in a hospital to satisfy its “overnight stay” requirement.

The FMLA requires a covered employer to give an eligible employee up to 12 weeks of unpaid, job-protected leave for an employee’s serious health condition that makes him/her unable to perform his/her job.  A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.”  Regulations define “inpatient care” as “an overnight stay,” but the law and the regulations do not define “overnight.”

The Third Circuit Court of Appeals, however, addressed this issue in a decision issued last week.  In Bonkowski v. Oberg Industries, Inc., an employee left work early one afternoon due to chest pain and dizziness, arrived at the hospital shortly before midnight that day, was admitted shortly after midnight, underwent testing, and was discharged in the evening.  The employee brought FMLA retaliation and interference claims after being fired for walking off the job.  The court rejected the claims, finding that the employee did not stay “overnight” because he was not in the hospital “for a substantial period of time from one calendar day to the next,” as measured by his time of admission and time of discharge.  The court opined that 8 hours would satisfy the “substantial period” requirement.

This decision provides some much needed clarity for employers and reinforces the complexity of this area of the law.  For assistance with creating a FMLA policy, handling FMLA issues in the workplace, or any other labor and employment issue, please do not hesitate to contact a member of our Labor and Employment Department: George Hlavac, Jeff Stewart, Ed Easterly, or John Buckley.

Philadelphia Issues Poster for Paid Sick Leave Ordinance

As previously reported on this blog, Philadelphia’s paid sick leave ordinance—known as the Promoting Healthy Families and Workplaces Ordinance—goes into effect on May 13, 2015. Read the rest of this entry »

EEOC Issues Proposed Regulations on Employee Wellness Programs

In recent years, many employers have chosen to implement employee wellness programs. These programs are mutually beneficial and often result in reductions in healthcare costs and absenteeism as well as increases in employee productivity and morale. Nevertheless, employers must take care to ensure that wellness programs do not violate laws such as the Americans with Disabilities Act (“ADA”) and Health Insurance Portability and Accountability Act (“HIPAA”). Read the rest of this entry »