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Employee Appreciation During the Holidays

The holiday season can be a hectic time of the year for all. On the home front, employees must get holiday shopping, travel plans, and child-care sorted out. On the work front, there are deadlines to be met while more staff is taking paid time off and fewer business working days. Also, there may be a lack of motivation to work due to the distractions and demands of the holidays. As employers, it is important to keep employees motivated and focused during the holidays. Employers must work harder to balance creating a festive workplace while also getting work done.

Plan Early

It is important to plan before the holidays hit to make sure deadlines are met. To fulfill business obligations, it is important to recognize that the holidays will create shortages in staff as they take more vacation time, there are fewer business working days and more social demands on employees. It is important to include employees’ needs and considerations during the holidays when creating project plans and deadlines. Project planning should consider the special issues presented during the holidays so that crucial work is completed before the holidays arrive.

Communicate

It is important to create open communication with employees. Encourage employees to communicate early about their personal obligations so that everyone is aware of the workload remaining and progress of the project.  By staying in constant communication, employers can avoid surprises during the holidays when they will be short staffed. By frequently checking in with project leaders and staff regarding the status of the projects, employers can stay on top of the deadlines and avoid any mishaps.

Vacation Planning

Encourage employees to turn in their vacation requests early to be approved in a timely fashion. Urge them to talk with their peers and team members regarding the vacation time they wish to take so that everyone is not on vacation at the same time. Create incentives for them to work together to cover one another while one is on vacation. Recognize those employees who pitched in extra hours during the holiday crunch time to compensate for those who were on vacation. Allow them to take time off when deadlines have been met or projects have been completed.

Reward Employees with a Bonus

Sometimes promising a bonus if a project is completed before the holidays is a great way to motivate employees. Employees may appreciate the extra cash during the holidays and may be motivated to finish the project to take the vacation they have planned. Make sure the project expectations are reasonable so that it can be completed in time. Otherwise, unreasonable expectations may create more stress for everyone.

The holidays are a time for everyone to focus on family and social activities.  Recognizing that your employees benefit from having healthy social lives, allowing them to relax during the holidays, and supporting them with time off from work will increase employee productivity.  It is important for employers to create a work-life balance so that employees do not experience burnout and stay productive.

For legal advice on workplace issues, contact the employment and labor lawyers at MacMain Leinhauser. From our office in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County. Call our office at 484-318-7106 or contact us online today for an initial consultation.

What Do I Need to Know When Distributing Holiday Bonuses?

The holidays are a great time to show gratitude toward employees. They will value gifts from employers at this time as this can boost morale at the office and create a positive work environment. A way to show appreciation that is not monetary in nature may be to grant days off during the holidays so employees can spend more time with their families. However, if the office budget allows, a holiday gift in the form of a cash bonus may be the most valued, as it may ease employees’ financial stress from holiday shopping and travel.

When choosing to give a monetary bonus, employers should be cognizant of tax implications and federal labor laws to avoid tax liability, labor law violations, and anti-discrimination lawsuits.

IRS Regulations

Most employer gifts have tax implications and need to be reported.  However, in limited circumstances, a gift may qualify as a de minimis fringe benefit. To qualify as such, it must be one for which, considering its value and frequency with which it is provided, is so small as to make accounting for it unreasonable or impractical.

The Internal Revenue Service’s (IRS) definition does not provide any dollar limits for the de minimis gifts exception. A qualifying gift does not require reporting. Even when the gift is of limited dollar value, it should be given infrequently, if it is given on a regular basis, then it will not qualify as a de minimis benefit and will have to be reported. It is prudent to consult with a qualified lawyer to determine whether the bonus qualifies as a de minimis gift.

Fair Labor Standards Act

According to the Federal Labor Standards Act (FLSA), nonexempt employees are entitled to overtime pay when they work over 40 hours in a workweek. The overtime rate is based on the regular rate of pay. The regular rate of pay is determined by dividing the total pay in the workweek by the total number of hours an employee has worked. When calculating the overtime rate, it is important to consider whether the bonus is also included in determining the rate as certain bonuses should be used to calculate the rate of pay. Failure to do so will expose employers to labor law disputes and violations.

Bonuses that are discretionary and classified as gifts are not used to calculate the rate of pay to determine an employee’s overtime rate. Sums paid as gifts and payments in the nature of gifts made at Christmas time or other special occasions are excluded from determining the rate of pay. Therefore, to qualify as a gift, it must not be related to the hours worked.   These payments must be discretionary, not part of any employment contract or agreement, and the employee must not expect such payments regularly. A one-time holiday payment that is based on an employee’s two-week salary is considered a discretionary bonus if it was not already part of the employee’s contract, according to the Department of Labor’s regulations.

For legal advice on distributing holiday bonuses to your employees, consult the lawyers at MacMain Leinhauser. For an initial consultation, contact us online or call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.

Pennsylvania Supreme Court Ruling Allows More Time to Sue

The Pennsylvania Supreme Court recently ruled that the time bar that was part of the Medical Care Availability and Reduction Error Act (MCARE) is unconstitutional. The time bar, also known as the statute of repose, is unlike a statute of limitations, which allows for a time limitation on a cause of action to be waived or tolled. However, a statute of repose is an absolute bar to claims brought after a certain period, even if the injury is discovered or if the claim accrued after the limitation. A cause of action is barred after seven years under MCARE. However, the recent Pennsylvania ruling will allow those who have claims under MCARE a chance to assert their rights in court after the seven years have passed.

The Case

The case in question involved a plaintiff who donated his liver lobe when his mother needed a liver transplant due to Alpha-1 antitrypsin deficiency (AATD). Eleven years later, a routine blood test conducted on the mother revealed that she still had AATD. The liver transplant surgery should have eliminated AATD. Even though the plaintiff was tested to determine if he also had AATD before the transplant, the University of Pittsburgh Medical Center (UPMC) never informed him of the results. The plaintiff assumed that UPMC would not have transplanted his liver if he had the syndrome. When the plaintiff’s mother discovered she still had AATD, a subsequent test on her son revealed he too had AATD.

The two proceeded to file a medical malpractice claim against UPMC and others in 2015. The trial court dismissed the medical malpractice brought against UPMC and other defendants based on the statute of repose bar of seven years under MCARE. The appellate court upheld the trial court ruling.

The Pennsylvania Supreme Court, however, overturned the ruling and argued that UPMC did not meet the burden of review. The appellants failed to show how the statute passed intermediate scrutiny. The court did not find a sufficient governmental interest to support the time bar because of the lack of supporting statistical findings on whether the seven-year limit affected insurance costs, or the number of malpractice suits started after seven years.

Erosion of Time Limits in Medical Malpractice Cases

The case is part of a trend of rulings in Pennsylvania courts that are doing away with time limitations on medial malpractice cases in the state. These recent cases will impact management of claims by health care institutions.  Ruling that the time bar is unconstitutional also calls into question the timetables used by these institutions in evaluating potential claims.   Additionally, medical malpractice insurance rates may begin to rise.

Medical professionals and institutions may have to reevaluate their claims procedures and policies considering the recent ruling.

For a professional consultation related to medical malpractice claims, contact MacMain Leinhauser at 484-318-7106 or contact us online for an initial consultation. We serve medical professionals and institutions throughout Philadelphia and Chester County from our office in West Chester, Pennsylvania.

Protecting Your Small Business from Cyber Threats

Small business owners can reach wider networks of customers, suppliers, and distributors thanks to the internet and its conveniences. It is no secret that small businesses are conducting most of their business online. The price for conducting business online has increased vulnerability to data breaches and cyber attacks from hackers.

Providing employees with email, ability to work remotely, interfacing with customers, and conducting financial transactions online has increased the potential risk of exposing one’s confidential business information to strangers and criminals. Many hackers can purchase passwords on the dark web and find small businesses an easy target for their attacks. As a small business owner today, it is a business necessity to be aware of the risks of maintaining an online business and put strategies in place for cyber security. Strategies that can be implemented with ease are as follows:

Create a Password Policy

Changing and creating unique passwords regularly every three to six months is recommended. If a password is not changed frequently, it can make its way to the dark web where it can be purchased by hackers for a nominal price. Although it is a hassle to change passwords and remember them, it is an essential practice to provide a layer of protection against cyber-attacks. Create a password policy that clearly outlines requirements for password creation for the business.

Utilize a Password Manager

Utilizing a password manager may be a good way to help manage passwords. Employees must juggle several passwords for various devices they use and keeping track of the passwords can be overwhelming. A password manager generates, retrieves, and keeps track of unique passwords for all accounts while the user keeps track of one password to unlock the password manager.

Utilize Two-Factor Authentication

Requiring a two-factor authentication is another layer of protection that can be easily implemented. This type of authentication requires another form of identification validation, such as a code or PIN number. Also, the authentication request is made via text message to verify the owner of the password. Some companies rely on a multi-factor authentication that requires additional forms of identification, such as an iris or fingerprint scan.

Firewall Protection

Utilize a firewall to prevent outsiders from accessing data on the private business network. Install firewall on employee’s home computers and laptops.

Limit Employee Access to Data and Information

Provide employees access to information that they require to perform their jobs. Limit their access to information they do not require. Also, prevent employees from installing software on work-related computers and laptops.

Mobile Devices

Employees increasingly access email and other information through their mobile devices, creating additional sources of security threats. Require password protection on their mobile devices and install encryption and security apps on them to protect the business network.

Cyber criminals take advantage of human error and vulnerability through phishing tactics. Conducting regular cyber security seminars that alert employees to the risks and threats of their online behavior is a good way to increase awareness.

The small business lawyers at MacMain Leinhauser provide advice on a broad array of services related to small businesses, including protecting your business from cyber-attacks. For an initial consultation, contact us online or call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.

Should I Hire an Attorney to Assist with Employee Contracts?

One of the most important processes of hiring new employees is to draft appropriate, comprehensive employment contracts. Even if it is a small company, using only verbal agreements or policy handbooks may not be sufficient to protect employers from unforeseen situations that may arise after people are hired. Enforcing verbal contracts can be especially challenging for employers, especially ones that were not specific when discussed.

In general, an employment contract documents all the shared responsibilities and rights between an employer and a W-2 worker, 1099 contracted employee, or freelancer. There are standard items that should be in all employment contracts, as well as other variables that may apply.

The Basics

A basic employment contract needs to include the employee’s full legal name, the position they are being hired for, their responsibilities, and their location and working hours. Whether the job is salaried or hourly, the compensation rate should be clearly stated, along with medical/dental benefits, time off, and life insurance, if applicable. An effective employment agreement should also cover employee stock options and retirement packages.

Other important items include if the employee is employed at-will. This means that the company may terminate the worker at any time without reason, and that the employee may also quit without reason. A process for resolving grievances should also be included, and it is common for these agreements to specify that disputes be resolved via arbitration.

Employment Agreement Clauses

The agreements may also have clauses for non-solicitation, non-disclosure, and non-compete. These can be very important, especially for employees that work in competitive industries and have valuable clients and confidential information. Non-solicitation agreements protect companies from having customers stolen by past employees. This is applicable to medical practices, hair salons, and many other lines of work.

Non-disclosures are designed to prevent employees from sharing sensitive information during and after employment. This applies to confidential details about the company and its clients. Non-competes prevent employees from going into competition with former employers for specified time periods and distances. In other words, should an employee that works for a computer consulting company quit, they may not open or work for a similar company within one year that is located 10 miles away.

How Problems Arise

Every state has different employment and labor laws, so drafting and enforcing an employment agreement may be difficult for a business owner. A disgruntled employee may decide to file a wrongful termination suit, and if the original employment agreement is lacking in any way, the employer may be vulnerable.

Employment agreements may be deemed invalid in court if they have incomplete information or are not worded clearly. If an employee begins working without a contract and signs it later, the contract may be termed as void, if its original terms do not correspond with the employee’s later duties. Other problems can arise if the agreement’s terms do not correspond with state laws. Federal laws, such as the Americans with Disabilities Act or the Family and Medical Leave Act should also be taken into consideration when drafting an employment agreement.

The knowledgeable employment lawyers at MacMain Leinhauser can be a valuable resource for creating employment contracts to best serve your company’s needs. For an initial consultation, call us at 484-318-7106 or complete an online form. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.

What is the Federal Labor Standards Act?

The Fair Labor Standards Act (FLSA) governs the standards employers must follow regarding wages, including payment of overtime, full-time, and part-time workers, employment of children, and notice and record keeping requirements of private and government employees. The Wage and Hour Division of the U.S. Department of Labor (DOL) administers and enforces the FLSA. Noncompliance can lead to FLSA lawsuits. The trend in private prosecutions of FLSA violations is rising. If an employer is liable, they may face legal fees, penalties, and may also have to pay back lost wages.

Application of the FLSA

The FLSA applies to employers who are engaged in interstate commerce. Specifically, it applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that were moved in or produced for interstate commerce. Most businesses are subject to the law, as most current businesses conduct business online. The enterprise must also meet the $500,000 annual dollar volume test to comply. However, hospitals, businesses providing medical and nursing care, schools, and public agencies need to meet FLSA requirements, even if they do not satisfy the $500,000 annual dollar value test.

Minimum Wage

As of 2018, the minimum wage set by the FLSA for covered, nonexempt workers is $7.25 an hour. However, if the state where the employee works has a higher hourly rate, and the state wage law applies to the employer, then the employer needs to pay the higher amount.

Overtime Pay

The FLSA mandates that employers pay employees the minimum rate of one-and-one-half times their regular pay rate when exceeding 40 hours per week. Furthermore, employers need to comply with record keeping requirements of the employee’s wages. However, some workers may be exempt from receiving overtime pay.

Child Labor

Under the FLSA, children under 16 years of age must work limited hours and can only perform certain types of work. Hours are restricted during school days to three hours a day. They are also restricted to certain jobs in retail, tutoring, and delivery jobs.

Notification Requirements

Employers also need to put up prominent notifications of employee rights regarding wages and overtime under the FLSA. There are a variety of posters available describing employee rights and should be posted in a conspicuous place for employees to read and consult.

The employment attorneys at MacMain Leinhauser are well versed in federal and state laws and offer a full range of services in employment litigation. For an initial consultation, contact us online or by call us at 484-318-7106. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.

Small Business Defenses to Defamation Lawsuits

Small business lawyers at will knowledgeably defend your business against defamatory statements.Defamation occurs when false statements are made against another that damages their reputation. When false statements are made in writing, it is libel, while slander occurs due to verbal false statements. Plaintiffs who bring defamation lawsuits must demonstrate that they suffered monetary losses as a result of the defamation. Therefore, to establish a cause of action in defamation, the plaintiff must demonstrate the following:

  • The statement was communicated to another either in writing or verbally
  • The statement was false
  • The statement caused harm and injury to the plaintiff’s reputation
  • The statement was not otherwise privileged

Defenses to an Accusation of Defamation

  • Truth. For a statement to be deemed defamatory, the statement must be false. If the statement was true, then it does not constitute defamation. By proving truth of the matter, a defamation accusation can be successfully defended.
  • Opinion. If the statement is an opinion, it cannot be defamatory, even when it is harmful. Editorials or critiques are examples of statements that may be harmful but do not constitute defamation.
  • Consent. When a statement is made with consent, it cannot be defamatory. However, unless the consent was given in writing, it may be hard to prove that the statement was consented.
  • Absolute Privilege. Political speech, advertisements, and spousal communications are privileged communications. Legislators are also protected for statements they make during legislative sessions.
  • Qualified Privilege. This is a privilege for making statements under a legal, moral, or social duty. The person must show that the statement was made without malice, in good faith, and with belief that the statement was true.

Small Business Employers

Small business employers may fear a defamation lawsuit from former employees for providing references. Another example may be found in instances where employers make fair criticisms in review of the employee. However, what employers say about their former employees may be subject to a qualified privilege defense. If the employer can demonstrate that the statements were made without malice, in good faith, and believing it to be true, there may be no finding of defamation. Employers should obtain consent forms from employees about providing references and information regarding them on their behalf. These consent forms can later be used as a defense to a defamation lawsuit.

Trade Libel

Small business owners may be accused of or subject to trade libels. Negative comments by customers or competitors can be detrimental to small business owners. Trade libel occurs when defamatory statements are made about a business’ services or products. The same defenses outlined above apply in a trade libel suit.

If your business was subjected to defamatory statements or your business was accused of making such statements, contact our legal team at MacMain Leinhauser for expert advice on such litigation matters. Contact us online or call us at 484-318-7106 today for an initial consultation. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia.

NLRB and Mandatory Arbitration Agreements

Employment attorneys can help with mandatory arbitration agreements.The National Labor Relations Act (NLRA) prohibits employers from interfering with employees’ rights to engage in concerted activity as a class.   However, the Supreme Court in Epic Systems v. Lewis held that arbitration agreements that contain waivers of class action and collective action, and require employees to resolve disputes individually, do not violate the NLRA.  On August 14, 2019, the National Labor Relations Board (NLRB) addressed this issue further in Cordua Restaurants, Inc. NLRB No. 43 (2019). The Cordua action marginally expanded the ruling in the Epic case.

The Cordua Restaurants, Inc. Case

In this case, a restaurant group already had a mandatory arbitration agreement with a waiver of an employee’s right to file or participate in class and collective actions in court or arbitration proceedings. When several workers filed a lawsuit alleging wage and hour violations, the restaurant group revised its’ agreement to include a ban on opting into collective bargaining actions. The group made signing of the revised agreement a condition for employment. The workers claimed that this violated their rights under the NLRA. The NLRB disagreed stating that opting in to a collective action was simply a procedural step required to participate in a collective action that was already waived by the prior agreement.

The Board in Cordua specifically held that:

  • Employers may inform employees that failure or refusal to sign a mandatory arbitration agreement may result in their discharge without violating the NLRA.
  • Employers may promulgate mandatory arbitration agreements in response to employees opting into collective bargaining or collective action for state wage and hour laws under the Fair Labor Standards Act (FLSA).
  • Employers may not take retaliatory action against employees for engaging in concerted activity or for filing class and collective actions concerning wages, hours, and working conditions.

The Cordua decision permits employers to implement mandatory arbitration agreements and policies as a condition to employment. However, the Cordua decision does not authorize an employer to punish an employee who then joins a class action lawsuit based on wages, hours, or working conditions. Employers should instead seek a court or arbitrator to enforce the arbitration agreement.

Conclusion

Under this decision an employer may require an employee to sign a mandatory arbitration agreement with a class-action lawsuit waiver without fear of violating the NLRA. However, employers must be careful to avoid any action that may be perceived as retaliatory against an employee for engaging in a class action lawsuit. An employer must utilize the court system and arbitration proceeding to enforce the mandatory arbitration agreement instead.

The employment attorneys at MacMain Leinhauser represent public and private employers in collective bargaining negotiations and arbitration proceedings before the Pennsylvania Labor Relations Board and the NLRB. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia. For an initial consultation, contact us online or call us at 484-318-7106.

Small Business Strategies for Employee Retention

West Chester employment attorneys can help small business employers with employee retention.Employees in the current job market are always looking for better employment. Employee retention is a priority for small businesses as costs of hiring and training new recruits is time consuming and costly. Small businesses need to have effective strategies in place for employee retention. Employee retention is not entirely dependent on employment compensation. Thankfully, small business organizations can implement practices that can increase employee engagement without incurring huge costs. The following simple strategies will boost employee engagement and retention.

Allow Flexibility

Employees are often struggling to balance work with personal life. Recognizing that employees have commitments to family and home and allowing them flexibility in dealing with these issues will increase their loyalty. Allow them to take time off to volunteer, book appointments for medical and other reasons through flex time. Additionally, consider allowing them to work remotely one or two days a week to minimize time spent commuting. Supporting employee needs outside of the workplace will help to prevent their seeking of alternative employment.

Offer Benefits

Health benefits, including health insurance and health savings accounts that assist employees to meet medical expenses will also boost employee retention. When an employee is able to take care of their health and afford medical care with the help of their employer, they may be more reluctant to jump ship.

Encourage Personal and Professional Growth

Encouraging employees to improve their skills also fosters loyalty. An employee is more engaged when they are always learning and improving. Providing training, seminars, leadership courses and tuition assistance will increase employee job satisfaction and thus retention.

Recognition is Key

Positive recognition of employees’ accomplishments will increase job satisfaction. Recognizing employee achievements does not cost much, yet it is an effective way to boost employee retention. Creating a positive work environment where good work is recognized and praised promotes overall health and culture of a small business. When employees feel like they are being recognized for their hard work and rewarded fairly, they will be happier and thus more loyal.

West Chester Employment Attorneys at MacMain Leinhauser Represent Small Business Employers in a Variety of Employment and Labor Matters

The employment and labor law attorneys at MacMain Leinhauser provide human resource counseling and human resources support for private and public sector employers. To schedule a confidential consultation, contact us online or call our office at 484-318-7106. We serve clients in Philadelphia and Chester County from our office is located in West Chester, Pennsylvania.

Understanding the Federal Tort Claims Act

West Chester business lawyers advocate for clients facing federal tort claims act issues.Not every personal injury lawsuit is filed against a private individual or commercial business. In some cases, injured individuals will sue a government entity such as a police department or public housing authority or other public employees for damages. Filing a medical malpractice claim against a veterans hospital or a slip and fall claim against the IRS after falling on an icy sidewalk in front of the building are common examples. Litigation involving government entities can raise unique issues especially if the matter is subject to the Federal Tort Claims Act (“FTCA”).

Applicable Claims

In many cases, the doctrine of “sovereign immunity” bars an individual from filing a lawsuit against the government. The FTCA has strict guidelines setting forth when a claim can be brought against a public entity. Only those claims against the government specially allowed by the state law of the location where the injury occurred will fall under the FTCA. While this generally includes claims for injuries resulting from wrongful or negligent actions of government employees, there are some exceptions. These include claims based on the actions of independent contractors or based on any conduct outside the scope of the government employee (including actions taken while the federal employee is “off duty”).  Although the FTCA typically covers only acts of negligence, certain claims involving the intentional misconduct of federal law enforcement officers are permissible.

FTCA Procedures

Filing for compensation against the government is not as simple as filing a complaint in federal court. Pursuant to FTCA regulations, injured individuals first must file an administrative claim with the specific government agency allegedly responsible for the negligence. Many government entities have their own specific claim forms that a potential plaintiff must file such as the Standard Form 95 available from the United States Department of Justice. Under the FTCA, the government agency has six months to respond to the compensation request during which it may agree to pay some or all of the alleged damages. After six months, the injured individual may proceed with filing their lawsuit.

Claims Against Government Health Centers

Injured individuals seeking to bring malpractice claims against medical providers employed by the federal government or public entity health centers also need to follow the procedures outlined in the FTCA. Federal employees of qualified health centers are immune from private lawsuits with the government acting as their primary insurer. Administrative claims against government medical facilities and their employees will be reviewed and litigated if necessary by the United States Department of Health and Human Services Office of the General Counsel.

Defending FTCA Claims

Government entities sued under the FTCA need experienced counsel who understand the complexities of federal and state law in this area. Defending these matters requires extensive knowledge of the exceptions and procedural requirements of the FTCA which can only be gained by years of experience.  At MacMain Leinhauser, our experienced attorneys have a proven success record in defending government agencies from FTCA matters throughout the state.

Philadelphia Business Lawyers at MacMain Leinhauser Defend Federal Tort Claim Act matters

At MacMain Leinhauser, our experienced Philadelphia business lawyers proudly defend a wide variety of government entities in Federal Tort Claim Act matters throughout Pennsylvania. With offices conveniently located in West Chester, Pennsylvania, we represent clients throughout Philadelphia and Chester County, Pennsylvania in a wide range of legal matters. To schedule a confidential consultation with one of our experienced business and Federal Tort Claims Act attorneys today, call us at 484-318-7106 or submit an online inquiry form.