Berks County Bar Association The Berks Barrister Spring 2019 - 15

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their employees. State legislatures around the country are rapidly
adopting state FMLA laws for employers with fewer than 50
employees, so it pays to keep an eye on this issue as well.

Employee Discipline

In a word, lawyers as employers are dreadful in their application
of simple rules of disciplining employees, and often unnecessarily
end up on the wrong end of employment litigation. A couple of
simple rules: apply your code of conduct when the facts require
it. If you have a written code of conduct, make sure you reserve
the right to skip steps of progressive discipline, so that you can
be somewhat flexible in handing out discipline. Finally, do NOT
mess with employee's paychecks! The Pennsylvania Wage Payment
Collection Law ("WPCL") was enacted to protect "earned wages"
from being tampered with by greedy employers. The law has teeth.
Any deductions from pay must be 1) for the employee's benefit
AND 2) signed off in writing by the employee. "Docking" an
employee's pay for negligence or misconduct is illegal. Period.

Termination

When you terminate an employee, please make sure you check
your own vacation/leave accrual policy to determine if you've given
the employee, by policy or by practice, the right to "cash out" any
unused benefits. Include those in the final paycheck. It goes a long
way toward avoiding litigation.
Post-termination, the first activity is typically a claim for
unemployment compensation. In most cases, the employee
qualifies, unless they voluntarily quit "without necessitous and
compelling circumstances," or were fired for "willful misconduct."

The burden of proof shifts, depending upon the basis of
termination. Don't forget to provide COBRA health insurance
extension notice (unless the employee really did a BAD thing,
then maybe you have a basis to deny COBRA benefits, based
upon "gross misconduct"). As to post employment reference
checks, there is some solace: The "Bad Reference" Immunity Law,
42 Pa.C.S.A. Sec. 8340.1. This Pennsylvania law provides civil
immunity to former employers who make disclosures about former
employees in response to reference checks, unless the information
was "knowing and maliciously false." If post-termination litigation
against you is likely, then you may wish to consider whether
you need to "buy" a release of claims in the form of a separation
agreement. Such an agreement should include some consideration
to the employee (cash, extension of benefits, etc.) in exchange for
a general release. Don't forget proper ADEA waivers (if you don't
know what this means, call me). I should also mention Alternative
Dispute Resolution (ADR). If you haven't heard, Arbitration is
legal now! A lawyer as employer does NOT want to be sitting on
the witness stand in front of a jury... anywhere! Therefore, if you
have a handbook, insert an ADR clause in it and make sure all
employees sign off on it. It's also not a bad idea to state that the
ADR will be "pursuant to the rules then pertaining to the Berks
County Bar Association Alternative Dispute Resolution Program."
Mr. Moore is Chair of the Employment & Labor Practice
Group at Leisawitz Heller.

Seven questions for estate and financial advisors:
1. Do I have clients who care deeply about their local community?
2. Do they give to more than one charitable cause?
3. Are they interested in creating a personal or family legacy in their community?
4. Are they considering creating a private foundation?
5. Would they like to stay personally involved in the use of their gift dollars?
6. Do they want to receive maximum tax benefit for their charitable contributions?
7. Do they place a priority on sound financial management of their contributions?
If you answered yes to any of these questions,
your clients would benefit from giving through
Berks County Community Foundation.
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© 2002 COF & CFA

237 Court St., reading Pa 19601
610.685.2223 * www.bccf.org
info@bccf.org

Spring 2019 | 15


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Berks County Bar Association The Berks Barrister Spring 2019

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Spring 2019

Berks County Bar Association The Berks Barrister Spring 2019 - 1
Berks County Bar Association The Berks Barrister Spring 2019 - 2
Berks County Bar Association The Berks Barrister Spring 2019 - 3
Berks County Bar Association The Berks Barrister Spring 2019 - 4
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