Author: cregerlaw

Are Unemployment Benefits at Risk if an Employee Refuses to Get Vaccinated?

By: Christina M. Reger, Esq
and Tatiana Cook

The typical answer to this question is –– it depends. Many employers are now mandating employees receive COVID-19 vaccines to maintain employment. However, many Pennsylvania employees are receiving unemployment benefits due to decreased hours, wages, or loss of jobs. But, as September arrives along with the deadline for unemployment benefits to expire, employers are now wondering what rights they have.

Employees should tread carefully if they choose and refuse to get vaccinated. While Pennsylvania case law is not black and white when it comes to vaccination status, Pennsylvania’s unemployment laws do speak to what employers can do when faced with employee misconduct.

Under Pennsylvania Section 402(e), an employee who is discharged from employment for willful misconduct connected with their work is not eligible to receive unemployment benefits. “Willful misconduct” is considered an act of wanton or willful disregard of the employer’s interests, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from an employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations.

The employer bears the burden of proving that the employee’s actions was willful misconduct. The Pennsylvania Supreme Court decided in Grieb v. Unemployment Comp. Bd. of Review, that a deliberate violation of an employer’s rule that is known to the employee is willful misconduct if the employer’s rule is reasonable and the employee’s conduct was not motivated by good cause and the negligence manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations.  

However, simply violating a rule is not enough. It is the employer’s burden to show that the conduct was intentional and deliberate in nature and it also requires an analysis of the totality of the circumstances. Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 426 (Pa. 2003)

If an employer has a policy that requires mandatory vaccines for employees, and an employee chooses not to get the vaccine, that action may rise to willful misconduct because the employee is willfully disregarding an employer’s interests. However, the employer must show that the act was willful, intentional and that it harms the employer’s interests.  This choice is not applicable to employees who do not vaccinate for religious or ADA reasons.  Employers must be mindful of these two exceptions and treat them appropriately.

So what can employers do?

  1. If an employer has a mandatory vaccine policy, make sure that it is DOCUMENTED.
  2. COMMUNICATE IT: Employers should communicate with their employees about their policies regarding vaccine mandates and what an employer plans to do if an employee refuses to get the vaccine.
  3. DOCUMENT AGAIN:   Document when you disseminated the policy and have employees sign an acknowledgment.

If you need help … you know where to find me.

Have Questions? Click Here to Email Me!

Employment Counseling and Compliance Attorney
Sexual Harassment Trainer 
 Speaker  Author

Christina M. Reger is the Founding Partner of the Law Offices of Christina Reger, LLC. Licensed in Pennsylvania and New Jersey, Christina works with businesses and corporations to prevent litigation from employees and applicants. Christina offers a unique fee structure that provides predictability and accessibility to the legal services her clients need.

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Tatiana Cook
Tatiana earned her Juris Doctor degree at Temple University’s Beasley School of Law in May 2020 and is currently sitting for the PA Bar Exam. She is pursuing a career as a litigator, specifically in the field of Labor and Employment. She is a 2021 Regional Trial Competition Finalist, 2020 National Civil Trial Champion and 2019 Semi-Finalist in the National Civil Trial Competition.

Employers: The New Tax Withholding Tables Could Impact Your Employees Withholding Tax. Employees May Need to Adjust Their Withholdings on the New W-4

By Christina M. Reger 
 
Recently, the IRS (https://www.irs.gov/) updated the withholding tax calculator (https://www.irs.gov/individuals/irs-withholding-calculator) and revised the W-4 form (https://www.irs.gov/pub/irs-pdf/fw4.pdf) . 
Although employees are not required to complete a W-4 annually, the IRS urges employees to utilize the tax calculator and conduct a “paycheck checkup” given the new tax law changes. 
 
The tax calculator assists employees by ensuring they are withholding the appropriate amount of taxes given the changes in the tax code. 
 
“Following the major changes in the tax law, the IRS encourages employees to check their paychecks to help ensure they’re having the right amount of tax withheld for their personal situation,” Acting IRS Commissioner David Kautter said in a statement. 
 
To answer any questions, the IRS has provided a handy dandy Frequently Asked Questions document: (https://www.irs.gov/newsroom/irs-withholding-tables-frequently-asked-questions). 

Still Need Your Ethics CLE Credit AND Want to Learn About Employment Law?

By: Christina M. Reger 

Well, then you are in luck. Join me at Jenkins Law Library next Wednesday evening, March 14, 2018 at 5:30 p.m. to learn 

What Business Lawyers Need to Know About Employment Law to Avoid Malpractice 
 
In this one-hour course, you will learn about some of the developments in employment law that may assist you in counseling your clients through their business transactions, while of course, spending an hour with me. And, as a bonus, you can fulfill your ethics credit before the April 1 deadline (for those of you procrastinators). 

You’re welcome. 

Don’t Leave Your Company Exposed

By: Christina M. Reger 

So thrilled to see the Philadelphia Business Journal publish the article I authored with Robyn Pollack, Esq. on sexual harassment. You can find the article here. The timing is exquisite given the Larry Nasser decision, once again highlighting the ubiquitous and serious nature of non-compliance. Do not leave your company exposed. 

I have partnered with Robynin the creation and delivery of an experienced based sexual harassment training which includes audience participation. Our training is designed to train your employees on exactly what they do not know or are unclear about. It is targeted, up-to-date and relevant. If you are interested in providing this training to your employees, please contact me. 

Helping small businesses avoid litigation from employees and applications in an environment where employment laws are changing every day. 

Time for a Hands-On Approach to Sexual Harassment Training

By: Christina M. Reger 

I am excited to announce that I have partnered with Robyn Pollack of Trellis Consulting to create a new approach to sexual harassment training. We have combined our expertise in employment law and diversity and cultural competency to design an innovative, comprehensive platform. 

Solution based and practical, our program features experiential learning, real time interactive tools and storytelling scenarios. All sessions are customized to meet specific company and workforce needs on issues of sexual harassment, corporate culture and gender communication. 

Time magazine recently named “The Silence Breakers” as the Time Person of the Year, referring to the women of the #MeToo campaign and the tidal wave of conversation they started. According to Time’s editor, it is the actions of hundreds of women and many men that “have unleashed one of the highest-velocity shifts in our culture since the 1960s.” 

These social and cultural shifts are happening right now in the workplace that cannot be ignored. Can your organization really afford to take a hands off approach? 

Employees Can Now File an EEOC Complaint Online

By: Christina M. Reger 

Yes, it’s true. Even the federal agencies are catching up with technology. Just two weeks ago, the EEOC launched a new national online portal for employees. The EEOC Public Portal will allow employees to inquire, set up appointments and file a complaint online. The site is a virtual one-stop shopping for aggrieved employees. A press release announcing the new portal can be found here

This information should come as no surprise. Last year, I told you about the government launching another site to allow employees the ability to file Department of Labor complaints. 

So in the wake of the Weinstein Company debacle, and the plethora of sexual harassment claims made against various individuals and companies, might I suggest that your best course of action, is an ounce of prevention. Like your momma told you, it could be better than a pound of cure. 

Do You Have a Harvey Weinstein in Your Organization?

By: Christina M. Reger 

Unless you have been on a deserted island this past week, with no access to social media, you have heard the stories about Harvey Weinstein.  In case you missed it, you can get the details here and here

 Sexual harassment can happen in every organization — some industries more than others.  However, how a company handles complaints — or even whispers — of sexual harassment (or assault!) will have a significant impact. 

It seems incredible that the Board at the Weinstein Company did not know about the antics of its founder.  Yet, many a company will turn a blind eye to the actions of its executive, its top performer or its best salesperson. 

Doing so will (not may) have severe ramifications for the company.  First it sends a message of unacceptable behavior which will permeate the organization’s culture.  Second, it rewards the wrong individual and legitimizes the conduct.  And, third, it could have disastrous effects for the company once exposed. 

So, what is a company to do? 

First:  Investigate the conduct — even if you do not have an official complaint, but merely whisperings in the office (or apublic acknowledgement at the Oscars).  Do not hesitate to properly investigate the conduct alleged.  Hire an outside investigation firm or contact your attorney for guidance. 

Second, if the evidence warrants, take action.  Even if the person is your top performer, CEO, or best salesperson.  Sexual harassment is inexcusable.  Yes, even for you, Harvey Weinstein. 

Apology NOT ACCEPTED. 

The EEOC Wants Your Comments to Its Proposed Enforcement Guidance on Unlawful Harassment

By: Christina M. Reger 


Just when you thought you had it all figured out, here comes the EEOC again. This time, the EEOC’s latest Guidance is aimed at revising, consolidating and superseding four existing EEOC documents issued in the 1990s and portions of the EEOC Compliance Manual. The Guidance responds to a report issued by the EEOC’s Select Task Force on a Study of Harassment in the Workplace, issued in June 2016, which I am sure all of you read. In case you have not, you can find the 95-page document here

This report sets forth findings and recommendations about harassment prevention strategies, including how to effectively train employees to reduce incidents of harassment and effective employer policies. 

So, in your copious amounts of free time, you can peruse the 75 page document and offer your comments to the EEOC

Or…. 

you can read this blog to get the highlights and know what is coming down the pike — often whether you like it or not. 

The document does not focus solely on sexual harassment but addresses all types of harassment. As Chair Jenny R. Yang has stated, “Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces. . . . The Commission looks forward to hearing public input on the proposed enforcement guidance.” 

The Guidance also focuses on defining and evaluating a hostile-work environment claim as well as the basis for holding employers liable. It also provides examples of unlawful conduct. Now is the perfect time to take a fresh look at your harassment policies and see if yours is up to snuff. 

The EEOC will accept public input until February 9, 2017. 

Top Five Employer New Year’s Resolutions

By: Christina M. Reger 

So it’s 2017. What will you do differently? What goals have you set for your company? 

No business resolution list is complete without an examination of your HR policies and employee issues. 

Specifically, here are the top five issues an employer should examine in 2017: 

1. Are your employees classified correctly? 

Even though the new overtime regulations seem to have died on the vine, it doesn’t change the fact that many of your employees may be misclassified and entitled to overtime anyway. To ensure good health and good wealth in the new year, you should examine your workforce and make sure that those employees that are entitled to overtime are getting it. 

2. Are your independent contractors really employees? 

You know that contractor that has been working full-time with your company for years, or is now performing a function that is core to your operations? Perhaps they are not (or no longer) really independent. The Department of Labor’s crusade on this issue has not (and likely will not) die. 

3. Has your employee handbook been reviewed and updated? 

With all of the changes in the law in just the last year or two, it’s time to dust off that employee handbook, make sure it’s still accurate and that it says what you want it to say. Remember, if you have a dissatisfied employee, the first place they will look is your handbook. Do you know what it says? 

4. Are you hiring in 2017? 

Great, hiring is a sign of growth. But, hiring has become its own landmine. Make sure you comply with the FCRA, the new I-9 regulations, Ban the Box, and the anticipated regulations on asking about salary requirements. If you have no idea what I am talking about, time to talk to your trusted employment attorney. 

5. Do you have a social media policy? And if you do, when was it updated? 

So two points if you have a policy, but if you haven’t updated it in 6 months, it is out of date. Since then, Facebook launched a live feature and the government launched worker.gov among the many, many changes to social media. Time to take a look at what you have by way of social media. 

So there you have it. I could go on, but that should be enough to keep you busy for quite some time. 

Wishing all of you a prosperous and litigation-free new year!