On March 30, 2022, a panel in the Third Circuit Court of Appeals overruled nearly 30-year-old precedent and held that arbitration provisions do not survive the expiration of a collective bargaining agreement (CBA) in Pittsburgh Mailers Union Local 22 v. PG Publishing Co. The previous rule, first articulated in Luden’s Inc. v. Local No. 6 Union of the Bakery, Confectionary & Tobacco Workers International Union, 28 F.3d 347 (3d Cir. 1994), was premised on the idea that where an employer and a union agree to maintain certain terms and conditions of employment after the expiration of a CBA, a “new implied-in-fact-CBA” is formed that implicitly incorporates the expired CBA’s dispute resolution mechanisms. The only exceptions were situations where both parties intended the arbitration clause to expire with the contract or where one party, under the totality of the circumstances “objectively manifest[ed] to the other a particularized intent . . . to disavow or repudiate that term.” These exceptions were exceedingly narrow.
Written descriptions of employee benefits may expose Pennsylvania employers to additional contractual obligations and liabilities. According to a three-judge Pennsylvania Superior Court panel, providing written descriptions to employees regarding various benefits, incentives and rewards may form a binding, unilateral contract creating rights and obligations separate from an employee’s at-will relationship with the employer.
On June 23, 2020, the San Francisco Board of Supervisors passed a “Back to Work” Emergency Ordinance guaranteeing reemployment to certain employees laid off due to the COVID-19 pandemic. The ordinance requires covered employers to provide written notice when layoffs occur while also prohibiting discrimination against, and requiring reasonable accommodations for, employees who experience a family care hardship.
On July 20, labor organizations across the country are planning a “Strike for Black Lives,” a national walkout in support of “dismantling racism and white supremacy to bring about fundamental changes in our society, economy and workplaces.” When preparing for this and any political strike, employers should develop a response strategy — grounded in NLRB interpretations of employees’ rights to conduct political demonstrations — to limit liability and keep their businesses running.
Last fall, the National Labor Relations Board (NLRB) moved away from the strict “clear and unmistakable” standard when determining whether unions and their members waived certain rights. Since issuing its MV Transportation, Inc. decision in September 2019, the NLRB no longer requires employers to demonstrate that a union clearly and unmistakably waived its right to bargain over the subject of a unilaterally implemented change. For a detailed analysis of last September’s NLRB decision, please see our September 2019 MV Transportation, Inc. alert. In the eight months since that decision, some courts have begun to apply elements of the new waiver standard.
- 3/20/2020: The Wolf administration has updated the list of what it deems a “life sustaining” business. The updated list is here. Business now identified as life sustaining that were not previously included include: forestry, logging, and support activities; mining (including coal and metal ore mining) and support activities; specialty food stores; insurance carriers and related activities (except in-person sales brokerage); insurance and employee benefit funds; accounting, tax preparation, bookkeeping, and payroll; traveler accommodation; and dry cleaning and laundry services. Businesses that were previously designated as “life sustaining” but no longer carry that designation (and therefore must close in-person facilities) include beer, wine, and liquor stores (except beer distributors) and civic and social organizations. The governor’s press release announcing the updates is here. The administration has made clear that this is “an evolving situation and decisions will continue to be made and revisited as needed.”
- 3/20/2020: Businesses seeking an exemption to the closure Order may do so via this website. Businesses are required to provide a justification as to why the operation is “life-sustaining,” and must state the number of employees required to be on-site to perform the “critical work.” Businesses must also describe plans to comply with CDC guidelines and mitigation efforts.
- 3/21/2020: Governor Wolf amended the enforcement deadline from his original shutdown Order. Enforcement on non-compliant businesses will begin Monday, March 23 at 8:00 a.m., and not on Saturday, March 21, as previously ordered.
- 3/21/2020: The Department of Community and Economic Development has issued a set of Frequently Asked Questions and responses to provide additional guidance regarding Governor Wolf’s shutdown Order. The FAQ responses indicate that authorities should make compliance determinations based on the operations of a particular facility, rather than the business as a whole. For example, construction businesses (which are identified as non-“life sustaining”) may continue working on road repair and similar emergency efforts, but must suspend other activities that are not “clearly authorized” as life sustaining. Further, in response to a question about whether businesses may “maintain limited in-person essential personnel for security, processing of essential functions, or to maintain compliance with federal, state or local regulatory requirements,” the DCED states that businesses suspending physical operations pursuant to the Order “must limit on-site personnel to maintain critical functions,” while following social distancing and other mitigation guidelines. The FAQ responses also indicate that enforcement “should be prioritized to focus on businesses where people congregate,” and that although enforcement measures are within the discretion of the state or local agency, the administration expects that enforcement will be progressive, and will start first “with a warning to any suspected violator.” The FAQ responses also clarify that hotels and motels, as well as local governments and municipalities, are not required to cease physical operations.
On Thursday, March 19, 2020, Pennsylvania Governor Tom Wolf ordered all Pennsylvania businesses that are not “life sustaining” to shut down physical operations by Saturday, March 21 at 12:01 a.m. A copy of the Order is here. Such business may continue to operate on a virtual or telework basis, “so long as social distancing and other mitigation measures are followed.”
The Order specifically exempts “life sustaining businesses,” which may remain open subject to those businesses undertaking the same social distancing and mitigation measures. Similarly, the Order allows “businesses that offer carry-out, delivery, and drive-through food and beverage service” to continue operations, subject to the same social distancing and mitigation measures. The Order incorporates a list of life and non-life sustaining businesses, which can be found here.