Patrick Fanelli
ABOUT THE AUTHOR

Patrick Fanelli

Mr. Fanelli is a founding partner of Fanelli Willett Law Offices, one of Blair County's newest law firms. Patrick focuses his practice on helping public and private employers navigate the increasingly regulated landscape of labor and employment law, while also serving as a respected school lawyer on behalf of various Pennsylvania school districts and other public entities, which turn to him for assistance in the collective bargaining process or as a general solicitor. Read More about Attorney Fanelli

NLRB Abandons Notice Posting Rule

This week, the National Labor Relations Board (NLRB) announced that it has abandoned its rule, adopted several years ago, that would require employers to post notice of employees’ rights under the National Labor Relations Act. That Act provides basic rights for employees to form, join or assist – or refrain from joining or assisting – labor unions.

The NLRB had adopted the rule that would have required employers to post a notice, in a manner similar to other workplace notices, like with the Fair Labor Standards Act (FLSA) or the Family Medical Leave Act (FMLA).  Several federal courts had invalidated the rule, noting that the NLRB does not have the power to make such a rule.  The Courts essentially concluded that the rule was beyond the scope of the powers granted to the NLRB by the Act and that any notice posting requirement should only be enforceable if Congress included such a requirement in the actual law itself.

In a press release this week, the NLRB noted that it has dropped any appeals with this issue, essentially confirming that the rule no longer is in effect.  The NLRB went on to urge employers to provide the notice voluntarily, saying:

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.  Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.

While the NLRB no longer will try to require that employers post notice of the employee’s rights, this does not have any impact on the actual rights that exist.  The NLRB continues to be vigilant in enforcing the employees’ rights to form and assist labor unions, and you should contact your counsel if there are any questions about what rights you or your employees do have.

PSBA Pay-to-Play Survey Shows Increase in Such Fees

The Pennsylvania School Boards Association recently released its updated survey of so-called “Pay to Play” fees being charged by PA school districts.  These fees are assessed against students by districts in order to offset some of the cost of providing extracurricular activities – usually athletics, although sometimes including other activities like band.

Not surprisingly, given the difficult state of public education funding in Pennsylvania, the survey revealed that the number of districts charging such fees has tripled in the last few years, so that now nearly 4 in ten schools charge such a fee.  The average fee also has increased as well.

Given the squeeze most districts have experienced with the limitations on the ability to raise local revenue, along with the reductions in state funding increases, many districts have to seek other means for providing and funding programs like athletics and other extracurriculars, or else face the prospect of cutting such programs.  The fear of course is that fees like this can limit participation for students whose families may not be able to afford these growing fees.

It is but one more example of the difficult financial decisions facing PA public school districts today.

Settlement Reached in Civil Rights Case Involving Municipal Redevelopment Rights

Just weeks before the US Supreme Court was scheduled to hear oral argument in the case of Township of Mount Holly v. Mount Holly Gardens Citizens in Action, the LegalTimes Blog reports that the parties reached a settlement.  As a result, the case will now be dismissed.

In this case, a group of residents challenged a municipal redevelopment project on the grounds that the Township’s use of eminent domain to acquire property for redevelopment had displaced a number of minority residents in the predominantly minority neighborhood.  The claim was that while the decision to target this neighborhood for this redevelopment project was not explicitly because of race but that the project had a disparate impact on minority individuals, thereby discriminating on the basis of race as prohibited by the Fair Housing Act.

Because of the settlement, the Court will not be able to address the question of whether or not residents can bring a disparate impact claim for redevelopment projects like this, but a number of appellate courts have recognized such a claim.  Municipalities should be aware of the unintended impacts of projects like this and should be prepared to articulate the rational and non-discriminatory reasons that necessitate the projects.

Title VII Protection Available for ‘Brony’ Status?

According to this article from Gawker, a thirty-something father claims he was fired for being a “brony.”

In case the term is new to you, urbandictionary.com defines “brony” as “A name typically given to the male viewers/fans … of the My Little Pony show or franchise.”

According to the report, the anonymous ‘brony’ had displayed his My Little Pony affinity in the workplace and had been told to stop. After repeated incidents of being told to stop displaying computer wallpapers or engaging in discussions about his love of My Little Pony, he claims he was fired for being a brony.

Here is the legal question – can the employer fire him for that reason? Initially, the answer would appear to be yes. Title VII prohibits discrimination in employment decisions on the basis of an individual’s membership in certain protected classes, like race, religion, national origin, etc. Not surprisingly, ‘brony’ status is not explicitly protected in the law, so it would appear that firing an employee for expressing a love of the children’s characters would not be illegal.

However, Title VII does prohibit discrimination on the basis of gender, and that prohibition has been interpreted to prohibit what is known as “gender plus” discrimination. In other words, discrimination that is based on gender stereotypes and the individual’s failure to fit into those stereotypes can be actionable.

In this case, the question would be whether or not the termination was based on the employee’s failure to conform to a gender stereotypical view that men should not be fans of My Little Pony. If the termination was based on a view that it is unprofessional for adults of both genders to display My Little Pony items in the workplace, then it is not likely to be a violation of Title VII, but if it could be demonstrated that the employer’s action was limited to men only and the view of “gender appropriateness,” the employee may have a claim.

The report from Gawker does not indicate whether the employee plans to sue, but all employers need to remember that employment decisions that are made differently for men and for women can possibly lead to liability if based on gender stereotypes.

Federal Agencies Publish Guidance Regarding Treatment of Same-Sex Marriage

In light of the recent US Supreme Court decision in US v Windsor striking down provisions of the Defense of Marriage Act (DOMA), President Obama directed all federal agencies to update regulations and other published guidance, in order to address the fact that DOMA no longer prohibits federal recognition of same-sex marriage.

This week, the IRS-issued Revenue Ruling 2013-17 took effect, addressing how such marriages will be treated for tax purposes. In short, the IRS has decided to use what is known as the “state of celebration” rule. Under this rule, the IRS will consider a person to be married if the individual entered into a same-sex marriage in a state that recognizes such marriages. his is true regardless of whether the person actually resides in a state that recognizes or authorizes same-sex marriage.

Wednesday, September 18, the US Department of Labor released Technical Release 2013-04, in which the DOL also adopted this “state of celebration” rule for purposes of defining the terms “spouse” and “marriage” under employee benefit plans. Again, under this rule, a person is considered a spouse, for such purposes, if a marriage was celebrated in a state that recognizes same-sex marriage regardless of where the spouses actually reside.

This is in contrast to the “state of residency” rule, which applies in some other contexts, such as the FMLA. According to this rule, a person can be considered a “spouse” only if the person resides in a state that recognizes the marriage.

Employers should be aware, then, that these and other new federal guidelines will impact the application of various employer policies.