By Dachan J. Furnace, Esq. Challenges of Returning to Work Without Childcare You are finally being called back to work after weeks of quarantine. The initial excitement of life getting back to normal is suddenly overshadowed by the reality of not having childcare because schools and daycares remain closed. Millions of parents across Pennsylvania face the dilemma of going back to work without childcare. As a parent, do you refuse to go to back work and risk losing your job? What are your options? The answer depends on your situation. Yours may be one of these four common situations: You Have COVID or are Experiencing Symptoms If you have COVID, are experiencing COVID symptoms or a doctor has advised you to self-quarantine (perhaps due to exposure to someone with COVID) you are not permitted to return to work.  The law prohibits you from returning to work.  You should inform your employer of your situation.  In addition, you may be eligible to receive either Paid Sick Leave pursuant to the Families First Coronavirus Relief Act (FFCRA) or Pandemic Unemployment Assistance (PUA).  Paid Sick Leave under the FFCRA pays your average regular wage rate up to $511/day for 80 hours.  The maximum you can receive is $5,110 in the aggregate. You Are Caring for Someone With COVID If you are caring for someone who is subject to a government-issued quarantine order, or caring for someone who has been advised to self-quarantine due to concerns related to COVID, the FFCRA permits you to stay at home. The person needing your care must be an immediate family member or someone who regularly resides in your home. If teleworking is an option for your job and acceptable to your employer, you should ask about that. If teleworking is not an option, you may be eligible to receive either paid leave for up to 12 weeks pursuant to the FFCRA or PUA. For the first two weeks, you will receive Paid Sick Leave under the FFCRA. For up to an additional 10 weeks, you will receive Emergency Family Leave at your regular rate up to $200/day and $12,000 in the aggregate. You Are Already Teleworking If you are already working from home, your employer may call you back into the business location when businesses begin to open. If you are caring for a child whose school or daycare is closed and no other suitable person is available to care for your child, you should be able to continue teleworking. If that is not acceptable to your employer, you may be eligible to receive either paid Emergency Family Leave for up to 12 weeks pursuant to the FFCRA or PUA. You Are Receiving Unemployment or Pandemic Unemployment Assistance If you are caring for a child whose school or daycare is closed and no other suitable person is available to care for your child, you can refuse to return to work or ask that you be permitted to telework. This is where things can get a bit complicated. Usually when you are offered work by your employer and you refuse to accept it, that refusal would disqualify you for unemployment compensation. Your employer would need to report your refusal to the state and the state change your benefit status. If you are found to be ineligible for unemployment benefits, there is still hope. You should apply for PUA. You can receive PUA even if you have refused work if the reason is that you are caring for a child or family member under the circumstances mentioned above. You may also be eligible to receive either paid Emergency Family Leave pursuant to the FFCRA. These are general guidelines only. Not all employers are required to comply with the FFCRA. There are also consequences of refusing a return to work. The details of your situation can impact your eligible for any of the benefits mentioned above. In addition, your employer may not fully understand its responsibilities under the quickly changing laws applicable to COVID. If you have been called back to work, we can help you understand all your rights and options. You will be better prepared to have a conversation with your employer after first reviewing your situation with us.

Self-Employed persons are now eligible for Pandemic Unemployment Assistance Payments The Coronavirus Aid, Relief, and Economic Security (CARES) Act creates a new temporary federal program called Pandemic Unemployment Assistance (PUA). In general, PUA provides up to 39 weeks of unemployment benefits to individuals not eligible for regular unemployment compensation or extended benefits, including those who have exhausted all rights to such benefits. Individuals covered under PUA include the self-employed (e.g. independent contractors, gig economy workers, and workers for certain religious entities), those seeking part-time employment, individuals lacking sufficient work history, and those who otherwise do not qualify for regular unemployment compensation or extended benefits. Who Is Eligible for PUA Benefits? You may be eligible for PUA if you are self-employed, do not have sufficient work history to qualify for regular UC, or have exhausted your rights to regular UC benefits or extended benefits. PUA provides up to 39 weeks of benefits to covered individuals who are not eligible for regular UC and who are otherwise able and available to work except that they are unemployed, partially employed, or because of any one of the following COVID-19-related reasons: You have been diagnosed with or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; A member of your household has been diagnosed with COVID-19; You are providing care for a family member or a member of your household who has been diagnosed with COVID-19; Your child or other person in the household for whom you are the primary caregiver is unable to attend school or another facility that is closed due to the COVID-19 pandemic, and that school or facility care is required for you to work; You are unable to reach your place of employment because of a quarantine or stay-at-home order due to the COVID-19 pandemic; You are unable to reach your place of employment because you have been advised by a health care provider to self-isolate or quarantine because you are positive for or may have had exposure to someone who has or is suspected of having COVID-19; You were scheduled to start a new job and do not have an existing job or are unable to reach the job as a direct result of the COVID-19 pandemic; You have become the breadwinner/major supporter for a household because the head of your household has died as a direct result of COVID-19; You had to quit your job due to being diagnosed with COVID-19 and being unable to perform your work duties; Your place of employment is closed as a direct result of the COVID-19 pandemic. ​I am a small business owner. Am I eligible for PUA? Yes, you may be eligible for PUA if your primary source of income is from work you do for your own business or on your own farm. How much will I receive in PUA benefits? The amount of PUA benefits you will receive is based on your previous income reported. PUA benefits may not be more than the state’s maximum weekly benefit rate for regular UC, which is $572 in Pennsylvania. PUA benefits may not be less than half of the state’s average weekly benefit amount. In Pennsylvania, the minimum PUA payment is $195. All individuals collecting PUA will receive $600 per week from Federal Pandemic Unemployment Compensation (FPUC), in addition to weekly benefits as calculated above. FPUC payments will begin the week ending April 4, 2020. The last week that FPUC is payable is the week ending July 25, 2020. What documentation do I need to show I was employed or self-employed? Acceptable documentation of proof of employment or self-employment can include, but is not limited to: copies of recent paycheck stubs; bank receipts showing deposits; 1099s; billing notices provided to your customers; recent advertisements for your business or services; statements from recent customers; current business licenses, ledgers, contracts, invoices; and/or building leases. What documentation do I need to show my previous income? ​Acceptable documentation of wages can include but is not limited to: tax returns; paycheck stubs; bank receipts; ledgers; contracts; invoices; and/or billing statements. How long will these benefits be available? ​The maximum length of time a person may collect PUA benefits is 39 weeks. Eligibility is based on your unemployment caused by one or more of the reasons listed in the FAQ “How do I know if I am eligible for PUA?” PUA Benefits will no longer be available after the week of December 25, 2020. The last week the FPUC is payable is the week ending July 25, 2020. Click here for Additional Information

The Coronavirus, Aid, Relief, and Economic Security (CARES) Act will give Americans a one-time cash benefit based on their adjusted gross income. Whether you are employed full time or part time, a gig worker, unemployed, or retired, you are likely eligible for a stimulus payment. Data from your 2019 tax return will be used to determine how much you will get. If you haven’t filed your taxes yet, the government will use the numbers from your 2018 return. How Much Will You Receive? A $1,200 benefit will go to single filers with adjusted gross income of up to $75,000. Married taxpayers who file a joint return will get $2,400 if they have income of up to $150,000. Those who file as head of household — a common filing status for single parents — get $1,200 if they have income up to $112,500. Use this stimulus calculator to estimate your benefit. Haven’t Filed Your 2019 Return Yet? You may be wondering whether you should file your 2019 tax return if you have not already done so. The answer is: maybe. If you think you’re going to owe money, you may want to wait to file. When it comes to the stimulus check, the lower your income, the higher your benefit. That means you have an opportunity to compare the two tax returns to see which one would yield a larger stimulus check. I it turns out that you owe money and the 2019 return would yield a smaller stimulus, you can simply hold off on filing the return. You’ll have to file the 2019 return by July 15, 2020, don’t put it off too long. If you haven’t filed either a 2018 or 2019 return, you should file them as soon as possible. According to the IRS, if you didn’t file in either year, your stimulus check could be delayed.

The Coronavirus, Aid, Relief, and Economic Security (CARES) Act makes unemployment compensation benefits available for persons not traditionally eligible (self-employed, independent contractors, those with limited work history, and others) who are unable to work as a direct result of the coronavirus public health emergency. Eligibility Expanded. Specifically, the CARES Act provides that a “covered individual” includes anyone who self-certifies that they are able and available to work but is unemployed or partially unemployed due to any of the following: Has been diagnosed with COVID-19 or is experiencing symptoms and seeking a medical diagnosis. A member of the individual’s household has been diagnosed with COVID-19; The individual is providing care for a family member or household member who has been diagnosed with COVID-19; The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19; The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19; The individual is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns; The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19; The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19; The individual has to quit their job as a direct result of COVID-19; or The individual’s place of employment is closed as a direct result of COVID-19. The U.S. Secretary of Labor may establish additional eligibility criteria as well. Importantly, the law not only applies to employees, but also to those who are self-employed (independent contractors). Individuals are not eligible for benefits if they have the ability to telework with pay or are receiving paid sick leave or other paid leave benefits. Impacts One-Third of Workforce This portion of the CARES Act is welcome news to millions of Americans. The number of nontraditional workers has nearly tripled in the last few years. Nearly one-third of the workforce is comprised of self-employed professionals, sales persons, small business owners, sole proprietors and others whose primary income is from independent, customer or client-based work. What Should You Do? Apply online with our state’s unemployment compensation office.  It’s the fastest and easiest way to get started.  Be patient – most states are experiencing very high volumes of applications. If you are unable to reach them via the phone, look for an email address to submit your questions.

President Kennedy famously said that “[i]n the Chinese language, the word “crisis” is composed of two characters, one representing danger and the other, opportunity.” Hidden among the 880 pages of the recent stimulus law is opportunity for anyone thinking of starting a new business and using retirement funds as seed money. The new law creates a new emergency retirement plan distribution option dubbed the “coronavirus related distribution,” or “CRD” for short. A CRD can be drawn from an employer sponsored retirement plan such as a 401(k) or from individual retirement accounts (IRAs), in any amount up to $100,000. Under the terms of the CARES Act, the normal 10% penalty tax levied on early plan distributions by the Internal Revenue Service (IRS) is waived. Furthermore, the individual taking a CRD can spread the reported income over three years for tax purposes, and the distribution also can be repaid within three years to avoid taxation. To take advantage of the CRD, participants will have to self-certify that they either have contracted the COVID-19 disease, that a spouse or dependent has done so, or that they have lost a job or been furloughed or otherwise suffered a heavy financial burden because of the coronavirus pandemic. Other provisions in the law double the amount of loans that participants can take—from $50,000 to $100,000—and extend outstanding loan repayment periods. One of our Business Attorneys can help you start your business and start realizing your dreams of being a business owner.

Late last year, the Pennsylvania House of Representatives introduced legislation to ban non-compete agreements between employers and their employees, citing the Commonwealth’s “strong interest in promoting unrestricted trade and mobility of employees in the work force as well as promoting businesses’ abilities to seek the best qualified candidates for employment.” A non-compete agreement, or covenant not to compete, is an agreement between an employer and employee that is designed to impede the ability of the employee to seek employment with another employer. At present, covenants not to compete are generally enforceable under Pennsylvania law. Pennsylvania House Bill 1938, aptly titled the “Freedom to Work Act,” would prohibit “covenant[s] not to compete” as illegal, unenforceable and void as a matter of law with very limited exception. House Bill 1938 does not address non-disclosure or non-solicitation agreements, would not prohibit covenants not to compete arising out of the sale of a business or the dissolution of or dissociation from a partnership or limited liability company, and would not apply retroactively. Notably, House Bill 1938 provides that any non-compete litigation involving a Pennsylvania resident must be decided in Pennsylvania state court and under Pennsylvania law. Employees who prevail in a suit against an employer related to the enforcement of a covenant not to compete would receive attorney’s fees and be entitled to damages, including punitive damages. We will continue to monitor developments and provide updates as they are available.

Work Injuries Up in 2017 According to the 2017 Annual Report of Workers Compensation and Workplace Safety published by the PA Department of Labor, there were  174,216 cases reported in 2017.  There were 159, 170 injuries in 2016.  That’s an increase of 15,046.  2017 was the second-highest number of reported injuries in the last ten years.  Over that time, annual reported injuries averaged 123,000.  The trend during the last three years is that workplace injuries are increasing significantly.  The actual number of workplace injuries is likely much higher. Work Injuries Are Underreported Employers are required to report work injuries to the PA and US Departments of Labor.  The federal government believes that about half of serious injuries go unreported.  In some cases, injuries are unreported because companies, especially small ones, are unaware of new report requirements.  Others do not report because they have no workers compensation insurance or fear the cost of dealing with a workers compensation claim. We believe the underreporting is significant. Some injured workers tell us that their employers refuse to report work injuries.  Others are discouraged from pursuing treatment or other rights to which they are entitled under the law.   Many workers are misclassified by their employers as “independent contractors” and mistakenly told they are ineligible for benefits.  Some workers don’t want to deal with the hassle of reporting.  That can be a big mistake because what seems like minor injuries can linger or not heal and become much bigger problems later. Get Your Benefits A workplace injury presents not just physical and emotional challenges but also financial ones as well.  Workers’ compensation is designed to help ease some of the financial burden caused by a work-related injury.  However, the process of claiming your rights can be complicated and confusing. Our workers compensation attorneys can help you.  We help many injured workers understand their rights and get the benefits they deserve.  We help them fight for what’s right. Learn more about Workers' Compensation on our website: www.fiffiklaw.com/workers-compensation.

As long as you are able to return to work before you exhaust your FMLA leave, you must be returned to the same job (or one nearly identical to it).  If you do not return to work before FMLA leave expires you could lose your job protection under FMLA, even if your employer extends your leave. A recent court case reiterated this rule. In Wevodau v. Commonwealth of Pennsylvania, Mr. Wevodau lost his right to return to his job because he returned to work after his FMLA leave expired. Mr. Wevodau claimed that his job should be protected because his employer extended his FMLA leave. Although seemingly unfair, the court found in favor of the Commonwealth and cited several cases with the same ruling; even if the employer extends an employee’s leave beyond twelve weeks, the employee’s job restoration protections are not extended. Wevodau lost his FMLA protections when he did not return to work after his original twelve-week leave period expired. 3 Must-Know Tips for Employees on FMLA Leave Confirm with your employer that your leave is FMLA leave. When you request FMLA leave, your employer should  respond in writing within five days.  The response should include specific information, including the date your leave expires. Ask to extend leave when necessary. If you ask for less than the maximum leave time and it becomes apparent that you need more time, promptly request for time from your employer. Don’t wait until after your return date arrives to ask for more time. Promptly return to work before your leave expires. Employees with any questions concerning their FMLA should contact Fiffik Law Group, P.C. for advice specific to their situation.

By Melissa A. Derby, Esquire There is good news for people who have criminal records. Pennsylvania recently expanded the types of criminal records that can be sealed in order to provide ex-offenders greater opportunity to join the workforce. The new law allows records of misdemeanor guilty pleas and convictions to be sealed. The law applies to ungraded, second degree, and third degree misdemeanors. This expansion is particularly helpful for job seekers. According to the National Institute of Justice, having a criminal record negatively affects someone’s chance at employment more than any other type of stigma. The vast majority of employers — 87 percent, according to a recent Center for American Progress report — check these records before making hiring decisions. Within the first year of their release from jail, 60 percent of ex-offenders cannot secure jobs. The ones who do make 40 percent less money than their co-workers. Questions about criminal records come up in many other areas of everyday life. The question appears on applications for housing, public benefits, college admissions, loans, and opportunities for volunteer service. A sealed record will help the record holder in important ways. The sealed record does not have to be disclosed, improving employment opportunities and housing availability. A sealed or expunged record can also improve a person’s ability to obtain financing or a loan. The record will still be available to the government for limited use. The official process includes filing a petition for limited access with the courts in the county where the conviction occurred. In order to be eligible, a petitioner must be arrest and prosecution-free for ten years following his conviction and final release. The law does have limitations. For example, a person who has at any time been convicted of an offense punishable by imprisonment of more than two years is not eligible. There are also certain offenses that will prevent eligibility, such as intimidating a witness or victim. This legislation takes effect November 12, 2016, but you can take action now to determine your eligibility. Fiffik Law Group, P.C. represents clients in all stages of the criminal process, including expungements. Contact us today to speak with a member of our criminal defense team regarding eligibility for expungements and sealed records.

Pennsylvania employees have the right to review files held by their employers that contain information about themselves pursuant to Pennsylvania’s Personnel Files Act. The Act has generally been applied to current employees. The ability of a terminated employee to review their personnel file remained unclear until the Commonwealth Court recently provided some additional guidance. In Thomas Jefferson University Hospital v. Department of Labor and Industry, (No. 2275 C.D. 2014 (January 6, 2016) the court permitted a terminated employee to review her personnel file when the request was made one week after her discharge. The court cited the express intent of the Act to permit an employee to review his or her personnel file to determine the reason for discharge and held that “a recently discharged employee” must be afforded rights under the Act. The court’s opinion appears to rest on the portion of the Act allowing a terminated employee to investigate the reasons for discharge. Left unanswered is a clearer definition of “recently discharged”. In its opinion, the court mentioned a prior case in which a request to inspect two and half years after discharge was denied. The court did not comment negatively on that case. So long as the request to inspect is not too far removed from the termination date, it appears that this court’s opinion signals an intent to allow requests that further this express intent of the Act. Further clarity on this topic will be left to future cases.

From 2009 to 2014, there was a 23% increase in WHD investigations of employers. In fiscal year 2014, more than 43% of WHD investigations were agency-initiated, up from 35% just 5 years ago. Think you don’t have a problem in your business? The WHD found wage violations in 78% of agency-initiated investigations in fiscal year 2014, up from 65% in fiscal year 2009. It’s smart business to consult with one of the qualified employment law attorneys at Fiffik Law Group, P.C. and see if your wage payment practices comply with the law. We guarantee it’ll be less expensive than having the WHD provide that service for you!

Check out this article by Michael E. Fiffik, Esquire to find out if your business could be affected by the proposed rule change.