Conflicts Between Employees and Employers
Employee Discipline
Generally:
Pennsylvania follows the employment-at-will doctrine, giving employers broad discretionary authority to discipline and terminate employees for any reason or no reason at all, subject to narrow statutory and public policy exceptions. The state provides limited but important protections for specific categories of employees and circumstances, including unionized employees covered by collective bargaining agreements, and all employees protected from retaliation for engaging in certain protected activities such as filing discrimination complaints or pursuing workers’ compensation claims, which we will cover below in greater detail. Note, however, that union employees are subject to different disciplinary investigatory procedures, as detailed below.
Internal Claims and Complaints by Employees
When an employee makes an internal complaint in Pennsylvania, employers have several key legal obligations and should follow established best practices to minimize legal risk. While Pennsylvania law does not mandate specific internal complaint procedures, employers must avoid retaliating against employees who make good faith complaints about discrimination, harassment, or other workplace violations. Under the Pennsylvania Human Relations Act, employers are prohibited from discriminating against employees who oppose unlawful practices or make complaints. (See more about the PHRA below.) Best practices include promptly investigating complaints, maintaining confidentiality where possible, documenting the investigation process, providing multiple reporting channels, and taking appropriate corrective action when violations are found.
Employee Protected Activity
Overview:
Pennsylvania employees enjoy robust protection against retaliation for engaging in various protected activities under both state and federal law. The PHRA protects employees who oppose discriminatory practices or participate in investigations related to discrimination based on protected characteristics. At the federal level, Title VII provides anti-retaliation protection for employees who oppose discrimination or participate in Equal Employment Opportunity Commission (“EEOC”) proceedings. Finally, Section 7 of the NLRA protects employees’ rights to engage in concerted activities for mutual aid or protection.
Protections Under the PHRA:
The PHRA establishes comprehensive protection for employees who engage in activities opposing discrimination. Section 955(d) makes it unlawful “for any person, employer, employment agency or labor organization to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act.” PA ST 43 P.S. § 955. This creates two distinct categories of protected activity: opposition to unlawful discriminatory practices and participation in formal enforcement proceedings.
The PHRA’s protection extends beyond formal complaints to encompass a broad range of opposition conduct.
Employment Discrimination
A panoply of laws exists at the federal, state and local level, which prohibit discrimination in employment against individuals because of their membership in a protected category. At both the federal and state level, the protected categories include race, sex, age, religion, national origin, color, ancestry and disability status. Under certain local ordinances, the categories are expanded to include marital status and sexual orientation. At all levels, the goal of these laws is to provide for equal opportunity in virtually every aspect of employment.
Theories of Discrimination:
The “disparate treatment” theory of discrimination requires that the complaining individual prove that the employer intended to discriminate against him by subjecting him to some adverse employment action, such as refusing to hire him, failing to promote him or discharging him. The employer’s motivation for the adverse employment action remains the key. The burden rests upon the employee or applicant to establish that a discriminatory motive exists.
The “disparate impact” theory of discrimination does not concern itself with the employer’s intent or motivation; instead, it applies to the situation where an apparently neutral employment practice (e.g., a test) is shown to have a disproportionate adverse impact on a protected class (e.g., minorities or females). In this scenario, to avoid liability, the employer must prove that the employment practice at issue is “job-related” and “consistent with business necessity.” The employee or applicant can still prevail, however, if he or she can prove that an alternative procedure is available to the employer, which reduces the negative impact of the practice at issue (i.e., a “less restrictive alternative”).
Relevant Federal and State Laws:
Federal Laws
Title VII of the Civil Rights Act of 1964, as Amended, 42 U.S.C. § 2000{e) et seq.
This federal law prohibits discrimination in employment because of race, color, religion, sex and national origin. It applies to applicants as well as employees. Employers with 15 or more employees are covered.
In 1978, Title VII was amended by the Pregnancy Discrimination Act, which requires that employers treat women affected by pregnancy, childbirth or related medical conditions the same as all other employees for all employment-related purposes, including the receipt of benefits pursuant to the employer’s benefit programs.
Age Discrimination In Employment Act of 1967
The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S.C.
- 621 et seq., protects individuals 40 and over from discrimination in employment based upon their age. Like the other employment discrimination laws, the ADEA’s protection extends to hiring, discharge, promotions, compensation, benefits and all other conditions or privileges of employment. It applies to employers having 20 or more employees.
Equal Pay Act
The Equal Pay Act, 29 U.S.C. § 206(d), is a federal law passed by Congress in 1963 as an amendment to the FLSA. It requires that employers pay equal “wages” to women and men for jobs in the same “establishment” involving substantially equal skill, effort, and responsibility, performed under similar working conditions. Employees who believe they are being paid unequally based on sex have both internal and external avenues to address that concern.
An equal pay conflict may arise when an employee believes they are receiving lower compensation than a colleague of the opposite sex performing substantially the same job. “Wages” under the Act is defined broadly — it encompasses not just base pay but also vacation and holiday pay, bonuses, premium pay, fringe benefits, retirement plans, profit-sharing plans, and leaves of absence. Employees should consider the full picture of their compensation when evaluating whether a disparity exists.
When assessing whether two jobs are truly comparable, the following factors apply:
- Equal Skill — Ability, education, experience, and training required for the role
- Equal Effort — Physical and/or mental exertion required, even if expressed differently across roles
- Equal Responsibility — Accountability, significance, and consequences of performance or nonperformance
- Similar Working Conditions — The environment in which work is performed and any hazards involved
Note that comparisons are made within the same establishment. The specific workplace location where an employee works. Employees at different office locations are generally not considered part of the same establishment for these purposes.
Legitimate Reasons for Pay Differences
Not all pay disparities constitute a violation. An employer may justify a wage difference if it is based on:
- A seniority system
- A merit system
- A system measuring earnings by quantity or quality of production
- Any factor other than sex
If an employee raises an equal pay concern, management should be prepared to clearly articulate which of these justifications, if any, applies.
Employees who believe they are experiencing an equal pay disparity are encouraged to raise the issue through the following steps:
- Document the concern — Note the specific role, the perceived comparator, and the nature of the wage difference.
- Speak with HR or a direct supervisor — Present the concern in writing when possible.
- Request a compensation review — Employees may formally request that HR conduct a review of relevant compensation data.
Retaliation against an employee for raising an equal pay concern in good faith is strictly prohibited and may itself constitute a legal violation.
External Remedies
If an internal resolution is not reached, employees have the right to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC is authorized to investigate alleged violations and may bring a civil action on behalf of an aggrieved employee. Employees also retain a private right of action to pursue claims independently in federal court. There are no coverage exemptions based on job classification — the Equal Pay Act applies to executive, administrative, and professional employees alike.
Americans With Disabilities Act
The ADA prohibits an employer from discriminating against a qualified individual with a disability on the basis of the disability concerning such items as job application procedures, testing, hiring, advancement, discharge, compensation, job training as well as all other terms, conditions and privileges of employment. In addition, private employers must make “reasonable accommodation” for disabled persons who are otherwise qualified to work unless the employer can demonstrate that the accommodation would impose an “undue hardship” on the business of the employer. Under the ADA, “undue hardship” requires a showing of significant difficulty or expense by the employer.
A “qualified individual with a disability” is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job.
Thus, employers can require that all employees be qualified, after reasonable accommodation, to perform the essential – not marginal – functions of the job. If an applicant with a covered disability is not qualified to perform the essential functions of the job, after reasonable accommodation is made for the disability, he or she need not be hired. The ADA does not require that a job preference be given to the disabled.
The ADA specifies certain generalized methods of reasonable accommodation, without attempting to be exhaustive:
- Altering existing facilities;
- Job restructuring (but not by eliminating essential job functions);
- Part-time or modified work schedules;
- Reassignment to a vacant position;
- Acquisition or modification of equipment or devices (including adaptive hardware or software for computers, electronic visual aids, Braille devices, telephone headset amplifiers, etc.);
- Appropriate adjustment or modification of examinations, training materials or policies; and
- Provision of qualified readers or interpreters.
An employer may not conduct a pre-employment medical examination or make inquiries of a job applicant as to whether the applicant is disabled or concerning the nature or severity of any disability. Inquiries during the pre-offer stage should focus on the qualifications, ability and experience of the applicant to perform the functions of the job. It is permissible to ask an applicant if he or she is able to perform specific job-related functions, but the functions must be identified and the inquiry cannot be framed in terms of a disability.
An employer may require a medical examination after an offer of employment has been made to an applicant and prior to the applicant’s start of employment. In other words, the offer of employment may be made conditional upon the results of the examination.
However, the employer cannot “pick and choose” candidates for the medical examinations – all entering employees in a particular category must be subject to the examination regardless of disability. An employer can rescind the job offer based upon the results of the medical examination but, if challenged, the employer has the burden of establishing that the reason for the withdrawal of the offer is job-related, consistent with business necessity and not capable of reasonable accommodation. The employer is also required to maintain all information obtained through the post-offer medical examination on separate forms and in separate files and it must be treated as a confidential medical record. In fact, employers, as a rule, should always maintain medical information separate from an employee’s personnel file.
Drug screens are not considered medical examinations under the ADA. Therefore, an applicant may be required to take a drug test as part of the application process, including prior to any conditional offer of employment. Further, an applicant who tests positive for illegal substances is not protected by the ADA because the applicant is presumed to be engaging in current illegal drug use within the meaning of the ADA.
An employer may not conduct employee .medical examinations or make inquiries of employees as to whether they are disabled or as to the nature or severity of any disability, unless the examination or inquiry is job-related and consistent with business necessity or where it is shown that an individual may pose a significant risk to the health and safety of others.
State Laws
The Pennsylvania Human Relations Act
The primary state law prohibiting discrimination in employment is the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”). The PHRA bars discrimination on the basis of race, color, religious creed, ancestry, age (40 or over), sex, national origin, non-job-related handicap or disability, the use of a guide or support animal because of blindness, deafness or physical handicap, and possession of a general education development (“GED”) certificate rather than a high school diploma.
The PHRA covers all employers in Pennsylvania with four or more employees. Accordingly, even if a practice group is below the minimum number (15) of employees for federal discrimination law coverage, it will likely still satisfy the PHRA minimum for coverage and be subject to the full array of its anti-discrimination provisions.
Unlike the federal discrimination laws, which apply only to employers and employees, the PHRA also applies to certain independent contractors. For example, under the PHRA, it would be illegal for an employer to refuse to contract with a covered independent contractor because of race, sex, religion or some other protected category.
Sexual Harassment as an Aspect of Employment Discrimination:
A critical issue to all employers is sexual harassment. Employers have an obligation to ensure that their workplaces are free from conduct that could be considered sexual harassment. The “best defense” to a sexual harassment claim is prevention. Employers must provide adequate training explaining what sexual harassment is and stressing that proper and professional conduct is expected and that no form of harassment will be tolerated. Employers must also have in place written policies against all forms of unlawful discrimination and harassment, which sets up a confidential complaint procedure. If an employer does not take appropriate steps to deal with sexual harassment, potential remedies for a victim of such conduct include emotional distress damages, punitive damages and injunctive relief.
Sexual harassment includes any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature whenever:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- Submission to or rejection of such conduct is used as the basis for employment decisions; or
- Such conduct has the purpose or effect of:
- Unreasonably interfering with an individual’s work performance, or
- Creating an intimidating, hostile or offensive working environment.
For purposes of analysis, sexual harassment cases can generally be placed into one of two broad categories: quid pro quo cases or hostile working environment cases.
Quid Pro Quo Cases
A quid pro quo case involves allegations that continued employment (or a specific term of employment such as a salary raise, a promotion, etc.) is conditioned upon receipt of sexual favors from the employee.
The quid pro quo case is the classic type of sexual harassment case. There are generally tangible economic losses involved in this type of case.
Hostile Work Environment Cases
Hostile working environment cases are those cases in which the employee has not suffered any tangible economic loss (e.g., discharge, suspension, demotion, etc.) as a result of the alleged sexual harassment but rather the employee claims that he/she has been subjected to a working environment, which is sexually offensive and/or intimidating.
The following types of conduct could result in a finding of a sexually hostile working environment, especially if it occurs repeatedly:
- Unwelcome physical contact such as touching of a person’s buttocks or hugging, kissing, touching, patting, pinching, etc.;
- Use of vulgar language of a sexual nature;
- Calling a person sexually derogatory names;
- Making sexually derogatory comments about one’s sex; or
- Displaying sexually explicit pictures, photographs or cartoons.
Employer Responsibilities
An employer has a general duty to maintain a workplace that is free of sexual harassment. The government’s sexual harassment guidelines impose on the employer differing degrees of responsibility depending upon the position of the person who engaged in the alleged harassment.
Employers will be held liable for unlawful harassment committed by their supervisors. The claim that a supervisor is acting outside the scope of his or her employment when committing such acts will not provide protection from liability. Thus, employers must take affirmative steps to prevent harassment and limit potential liability. Taking affirmative steps will help prevent negative employment consequences related to harassment and help an employer establish an affirmative defense to charges that a supervisor harassed a subordinate employee.
Conduct By Nonsupervisory Employees:
With regard to nonsupervisory employees, the standard is less strict. For such persons, employers are responsible for the acts of those persons when they know or should have known of the conduct unless it can be shown that immediate and corrective action has been taken. There is, in short, an affirmative duty to “clean up the act” of your non-supervisory employees.
It is critical for the employer to have a system in place to investigate and respond to alleged instances of harassment.
How to Conduct an Internal Investigation:
When faced with a complaint of sexual harassment, it is imperative for the employer to con-duct an internal investigation. This should involve in-person interviews of the complainant, the alleged perpetrator and any other employees who may have relevant information. A reliable and trustworthy person should conduct the investigation.
After you have completed your investigation, a written report should be prepared of the findings. For additional information, see the section below titled “Investigating Employees’ Legal Claims and Complaints.”
Administrative and Judicial Enforcement Procedures
Federal
Title VII, the Age Discrimination In Employment Act and the Americans With Disabilities Act, as well as the Equal Pay Act, are enforced by the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC has offices in Pittsburgh and Philadelphia, Pennsylvania. The EEOC has the authority to promulgate regulations, conduct investigations of alleged discriminatory practices and initiate federal court litigation where it concludes that probable cause exists to believe that discrimination has occurred in a particular situation.
An employee who believes that he or she has been the victim of a discrimination must file a charge with the EEOC (by mail or in person) detailing the alleged discriminatory action within 300 days after it occurred. The EEOC will serve a copy of the charge on the employer and begin its investigation. The EEOC typically requests documents and information from the employer and invites the employer to submit a written response to the allegations in the charge. The EEOC may also conduct interviews (by telephone or in-person) of those employees and supervisors thought to possess relevant information. The EEOC can also issue a subpoena for documents and enforce the subpoena in federal court.
Upon the conclusion of its investigation, the EEOC will issue a determination that “no probable cause” exists to believe that discrimination occurred or that “probable cause” exists to believe that discrimination occurred.
When issuing a “no probable cause” determination or if it has administratively decided to terminate its proceedings prior to issuing any determination, the EEOC advises the charging party that any court action must be initiated within 90 days after receipt of the EEOC’s notice.
If the EEOC issues a “probable cause” determination, the EEOC has the option to initiate a federal court action on the charging party’s behalf.
Remedies available to an employee include back pay, compensation for emotional dis-tress (particularly in a sexual harassment case), punitive damages and attorney’s fees as well as affirmative relief (rehire, promotion, etc.). Jury trials are also available. Obviously, the stakes are significant in employment discrimination cases.
State
At the state level, the Pennsylvania Human Relations Act is enforced by the Pennsylvania Human Relations Commission (“PHRC”). Like the EEOC, the PHRC can issue regulations, investigate complaints of discrimination and initiate judicial proceedings. The PHRC has offices in Pittsburgh, Harrisburg and Philadelphia.
An allegedly aggrieved employee must file a complaint (in-person or by mail) within 180 days of the alleged discriminatory action. The PHRC will serve a copy on the employer and begin an investigation. Unlike the federal administrative procedure, however, at the state level, an employer must file a formal, verified legal answer to the allegations in the complaint.
The PHRC’s investigation usually involves a request for documents and information from the employer, a written statement of the employer’s position and a fact-finding conference where the PHRC’s investigator will question the parties regarding the events at issue.
Local
The Philadelphia Fair Employment Practices Ordinance is enforced by the Philadelphia Commission on Human Relations. Complaints must be filed within 90 days. Appeals from Commission orders are to the court of common pleas.
The Harrisburg Human Relations Ordinance is enforced by the Harrisburg Human Relations Commission with review of Commission orders by the court of common pleas. Complaints must be filed within 180 days.
The Pittsburgh Human Relations Ordinance is enforced by the Pittsburgh Commission on Human Relations. Similarly, any appeal is to the court of common pleas. Complaints must be filed within one year.
Investigating Employees’ Legal Claims and Complaints
Overview:
Pennsylvania law establishes specific obligations for private employers to investigate and resolve employee legal complaints, though the requirements vary significantly by complaint type. While Pennsylvania does not mandate detailed internal complaint procedures for most employment issues, employers have substantial legal duties once complaints are received, particularly regarding prompt investigation and remedial action to prevent further misconduct. For discrimination and harassment complaints, employers must conduct prompt remedial action reasonably calculated to prevent further violations to avoid liability. Renna v. PPL Electric Utilities, Inc., 207 A.3d 355 (2019). Workers’ compensation claims require immediate reporting to insurers and formal reporting to the Department of Labor and Industry within specific timeframes PA ST 77 P.S. § 994. Workplace safety complaints trigger investigation procedures under the Worker and Community Right-To-Know Act 34 PA ADC § 321.2. Employers face potential liability for inadequate investigations, retaliation against complainants, and failure to take appropriate remedial action.
Investigations by Complaint Type
Discrimination and Harassment Complaints:
Pennsylvania courts have established that employers must conduct prompt and adequate investigations of discrimination and harassment complaints to avoid liability under state civil rights laws. In Renna v. PPL Electric Utilities, Inc., the Superior Court held that “employer’s prompt and remedial action to address employee’s complaints of harassment were reasonably calculated to prevent further harassment, thus, precluding liability under [the legal doctrine whereby an employer may be held legally responsible for the wrongful acts of an employee acting within the scope of their duties].” Renna v. PPL Electric Utilities, Inc., 207 A.3d 355 (2019).
The Pennsylvania Human Relations Act prohibits retaliation against employees who oppose discriminatory practices or participate in investigations, stating that it is unlawful “for any person, employer, employment agency or labor organization to discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act.” PA ST 43 P.S. § 955. This creates protection for employees who make complaints during internal investigations.
Federal law principles, as applied by Pennsylvania courts, mandate investigation of sexual harassment claims. In Jackson v. Rohm & Haas Co., the Court of Common Pleas noted that “under federal law an employer must investigate claims of sexual harassment or risk liability themselves,” referencing the Supreme Court’s decision in Jackson v. Rohm & Haas Co., 2002 WL 31425954 (2002). The court found that employers must conduct investigations with questions that, “though uncomfortable, were necessary for a proper investigation into a sexual harassment claim.”
Workers’ Compensation Claims:
Pennsylvania’s Workers’ Compensation Act establishes specific investigation and reporting requirements for workplace injuries. Employers must “report all injuries received by employes in the course of or resulting from their employment immediately to the employer’s insurer” and file reports with the Department of Labor and Industry “within forty-eight hours for every injury resulting in death, and mailing within seven days after the date of injury for all other injuries. PA ST 77 P.S. § 994. The Act further requires employers to “keep a record of each injury to any of his employes as reported to him or of which he otherwise has knowledge,” including descriptions of the injury, time unable to work, and manner of occurrence PA ST 77 P.S. § 995.
Pennsylvania courts have held that employers have a duty to promptly investigate workers’ compensation claims. In Spangler v. W.C.A.B., the Commonwealth Court ruled that “contesting a claim does not relieve an employer of its duty under the Act to promptly investigate Claimant’s injury.” Spangler v. W.C.A.B. (Ford), 145 Pa.Cmwlth. 56 (1992). The investigation must be conducted even when liability is disputed, and employers may face penalties for failure to conduct adequate investigations.
The adequacy of an investigation depends on the specific circumstances and type of complaint involved.
Filing a Charge or Complaint with the EEOC or PHRC
EEOC:
A charge of discrimination is a signed statement asserting that an organization engaged in employment discrimination. It requests the EEOC to take remedial action. The laws enforced by the EEOC require you to file a charge before you can file a lawsuit for unlawful discrimination. There are strict time limits for filing a charge.
Time Limits for Filing a Charge
In Pennsylvania, you must file your Charge with the EEOC within 300 days of employment discrimination incident, however, you have only 180 days to file with the PHRC.
Filing Online – Use the EEOC Public Portal to Submit an Inquiry, Schedule an Appointment, and File a Charge
A Charge of Discrimination can be completed through the EEOC online system after you submit an online inquiry and the EEOC interviews you. The EEOC’s Public Portal asks you a few questions to help determine whether the EEOC is the right federal agency to handle your complaint involving employment discrimination. The EEOC Public Portal can be accessed by visiting https://publicportal.eeoc.gov/Portal/Login.aspx.
Filing In Person at an EEOC Office
Each EEOC office has appointments, which you can schedule online through the EEOC Public Portal. Offices also have walk-in appointments. Go to https://www.eeoc.gov/field-office for information about the office closest to you.
At a State or Local Fair Employment Practice Agency
If you file a charge with the EEOC, the charge also will be automatically filed with the PHRC. This process, which is defined as dual filing, helps to protect charging party rights under both federal and state or local law.
For more information on how to file a charge of discrimination, please visit https://www.eeoc.gov/how-file-charge-employment-discrimination.
PHRC
As noted above, the deadline for filing a complaint with the PHRC is 180 days from when the alleged discrimination occurred. If a complaint is filed with the PHRC alleging a violation of EEOC laws, the PHRC may also file the complaint with EEOC.
Employees who experience employment discrimination are encouraged to contact their PHRC regional office, which can be located at https://www.pa.gov/agencies/phrc/contact-us.
For more information regarding the process for filing a complaint with the PHRC, as well as general information about the process after filing a complaint, please visit https://www.pa.gov/agencies/phrc/programs-and-services/file-a-complaint/employment-discrimination-complaint.
Labor Unions and Organizing Activity
The National Labor Relations Act (“NLRA”) establishes that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 USCA § 157. This provision protects a broad range of employee conduct beyond traditional union activities.
Federal courts have interpreted the mutual aid or protection clause broadly. The Supreme Court has held that this clause “protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums, and that employees’ appeals to legislators to protect their interests as employees are within the scope of this clause.” 29 USCA § 157. The protection extends to individual employees seeking union representation, as the Supreme Court recognized that “the action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of [29 U.S.C. §157] that ‘[e]mployees shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection.’“ 29 USCA § 157.
Employee Rights During Investigatory Interviews (Weingarten Rights)
Pennsylvania law establishes distinct requirements for investigating complaints involving unionized employees, primarily through Weingarten rights and collective bargaining agreement provisions. Union employees have the right to representation during investigatory interviews where they reasonably believe discipline may result. N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975); Pennsylvania State Troopers Ass’n v. Pennsylvania Labor Relations Bd., 71 A.3d 422 (2013).
For private sector unionized employees, federal Weingarten principles apply through the NLRA. Employers must grant union representation requests, discontinue interviews, or offer employees the choice between proceeding without representation or having no interview. Defense Criminal Investigative Service (DCIS), Dept. of Defense (DOD) v. Federal Labor Relations Authority, 855 F.2d 93 (1988). Pennsylvania courts have extended these protections, ruling that employees have the right to consult with union representatives not only before investigatory interviews, but also during investigatory interviews when questions are posed. Com. v. Pennsylvania Labor Relations Bd., 826 A.2d 932 (2003). The Commonwealth Court emphasized that “employers cannot compel employees to participate in investigatory processes without allowing requested union representation.” City of Reading v. Pennsylvania Labor Relations Bd., 689 A.2d 990 (1997).
Pennsylvania courts have applied these federal NLRA principles in state labor relations contexts as well. In Cheltenham Township v. Pennsylvania Labor Relations Board, the Commonwealth Court explained that employees have the right to union representation during investigatory interviews where discipline might result, fashioning these rights from Section 7’s language granting employees the right to “engage in other concerted activities for the purpose of mutual aid or protection.” Cheltenham Tp. v. Pennsylvania Labor Relations Bd., 846 A.2d 173 (2004).
Collective Bargaining Agreement Obligations
Collective bargaining agreements create additional procedural requirements beyond basic Weingarten rights. Pennsylvania courts have held that just cause provisions are implied in modern collective bargaining agreements even when not explicitly stated. Hanover School Dist. v. Hanover Educ. Ass’n, 814 A.2d 292 (2003). This means disciplinary investigations must meet procedural due process standards built into the just cause framework, including fundamental fairness requirements. Employers must follow any specific investigation procedures outlined in the collective bargaining agreement, and violations of these procedures can be grieved through the contractual arbitration process. City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 334 A.3d 16 (2025).
Schedules and Work Hours
Employers in Pennsylvania have broad discretion to set employee work schedules and hours, provided they comply with federal and state labor laws. While most private employers retain flexibility to modify schedules based on business needs, certain legal obligations and contractual arrangements may impose limits.
The federal Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq., governs minimum wage, overtime pay, and recordkeeping for most employees. Under the FLSA, employers must pay non-exempt employees overtime—at one and one-half times their regular rate—for all hours worked over 40 in a workweek. Pennsylvania law mirrors the federal standard for overtime (43 Pa. Stat. Ann. § 333.104(c)), though employers must also comply with Pennsylvania Department of Labor & Industry regulations concerning wage payment and recordkeeping.
Employers are not legally required to provide employees with fixed schedules, advance notice of scheduling changes, or a set number of hours unless otherwise required by contract or policy. However, employees must be paid for all hours worked, including time spent on required activities such as meetings, training, and pre-shift preparation.
Meal and Rest Breaks
Meal time is excluded from hours worked unless the employee is required or permitted to work during that time. Time spent on the premises of the employer for the convenience of the employee is also excluded. (34 Pa. Code § 231.1(b).)
Preparatory Time
Preparatory time may constitute compensable time. The Eastern District of Pennsylvania has held that time spent prior to logging into and troubleshooting an employer’s computer and timekeeping systems was compensable under the FLSA and PMWA. See Garcia v. Vertical Screen, Inc., 580 F. Supp.3d 79, 85-87 (E.D. Pa. 2022) (applying Pennsylvania law)).
Timekeeping and Recordkeeping
Under both the FLSA and Pennsylvania law, employers must maintain accurate records of hours worked by non-exempt employees, including start and end times, meal breaks, and overtime. Employers may use manual, electronic, or biometric systems, but must ensure that time records are truthful and that employees are not pressured to underreport hours worked. Altering time records or encouraging off-the-clock work exposes employers to significant liability.
Unionized Workplaces and Collective Bargaining Agreements
In workplaces governed by a collective bargaining agreement, employee scheduling, shift assignments, and overtime procedures are typically governed by the terms of the CBA. Employers must adhere strictly to these terms and may not unilaterally alter schedules without bargaining with the union. CBAs often include:
- Shift bidding rights based on seniority.
- Notice requirements before schedule changes.
- Overtime distribution rules.
- Guaranteed minimum hours or shift lengths.
Where a conflict arises between employer policy and the CBA, the CBA controls. Employers must review the applicable agreement and consult with labor counsel before modifying scheduling policies that may implicate collectively bargained rights.
Sick Leave, Medical and Family Leave
Pennsylvania does not have a statewide paid sick leave law. However, Philadelphia and Allegheny County mandate paid sick leave through local ordinances.
Both the city of Philadelphia and Allegheny county require employers to provide eligible employees with up to 40 hours or 5 days of sick leave per year. Outside of these areas, Pennsylvania employers can choose whether to offer paid sick leave, and how much to provide. Employers should establish clear policies on eligibility and use of sick time.
Policies should include permissible uses of sick leave, whether medical documentation will be required, notice requirements, and information on whether leave can be carried over/accumulated and/or paid out at termination from employment.
Family and Medical Leave Act
Employers with 50 or more employees must provide eligible employees with leave under the federal Family and Medical Leave Act (FMLA). The FMLA allows for up to 12 weeks of unpaid leave in a 12 month period for qualifying reasons including: birth or placement of a child, an employee’s own serious health condition, the serious health condition of a covered family member.
In order to be eligible for leave, the employee must be employed by the employer for at least 12 months and have worked 1250 hours in the 12 months immediately prior to when the leave is requested.
Employers should require the appropriate medical certifications for eligible employees. Employers should also have clear policies as to whether employees are required to utilize available paid leave concurrently with unpaid FMLA leave.
The Employment Law Desktop Reference is for general information only. It is not legal advice for specific situations or for decisions, plans, or management by any employer in any circumstances. The law firm of Eckert Seamans Cherin & Mellott, LLC is available for specific advice for PDA members at discounted hourly rates and with an initial one-hour consultation at no charge to the PDA member. Please contact Bridget E. Montgomery, Esquire by email at bmontgomery@eckertseamans.com or by telephone at 717-237-6054 to schedule an initial consultation.
