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Employment relationship

State-specific laws
What state-specific laws govern the employment relationship?

Anti-discrimination:

  • Pennsylvania Human Relations Act (43 Pa. Stat. Ann. §§ 951 to 963). 

Background checks:

  • Criminal History Record Information Act (18 Pa. Cons. Stat. §§ 9101 to 9183);
  • Private Detective Act (22 Pa. Stat. Ann. § 23);
  • Employees Having Contact with Children Act (23 Pa. Stat. Ann. §§ 6344 and 6344.4);
  • Prospective Employees of Public and Private Schools Act (24 Pa. Stat. Ann. §§ 1-111 and 5-527); and
  • Prospective Employees in a Family Daycare Home Act (23 Pa. Cons. Stat. § 6344.1).

Employee privacy:

  • Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 Pa. Cons. Stat. §§ 5701 to 5782);
  • Pennsylvania Inspection of Employment Records Law (Personnel Files Act) (43 Pa. Stat. Ann. §§ 1321 to 1324); and 
  • Breach of Personal Information Notification Act (73 Pa. Stat. Ann. §§ 2301 to 2329).

Wage and hour:

  • Minimum Wage Act of 1968 (43 Pa. Stat. Ann. §§ 333.101 to 333.115);
  • Wage Payment and Collection Law (43 Pa. Stat. Ann. §§ 260.1 to 260.12);
  • Prevailing Wage Act (43 Pa. Stat. Ann. §§ 165-1 to 165-17);
  • Child Labor Act (43 Pa. Stat. Ann. §§ 40.1 to 40.14);
  • Seasonal Farm Labor Act (43 Pa. Stat. Ann. §§ 1301.101 to 1301.606); and 
  • Prohibition of Excessive Overtime in Health Care Act (43 Pa. Stat. Ann. §§ 932.1 to 932.6). 

Benefits:

  • Pennsylvania Mini-COBRA (40 Pa. Stat. Ann. § 764j).

Who do these cover, including categories of workers?

Pennsylvania Human Relations Act (43 Pa. Stat. Ann. §§ 951 to 963): 

  • Covers workers who either reside or work within Pennsylvania and who work for an employer with four or more employees within Pennsylvania. Also covers certain independent contractors.

Criminal History Record Information Act (18 Pa. Cons. Stat. §§ 9101 to 9183): 

  • Covers all employees within Pennsylvania.

Private Detective Act (22 Pa. Stat. Ann. § 23): 

  • Covers all employees of employers licensed under the Private Detective Act, including security companies, private detective agencies and employers that provide investigatory services.

Employees Having Contact with Children Act (23 Pa. Stat. Ann. §§ 6344 and 6344.4): 

  • Covers employees of childcare services, self-employed family daycare providers, individuals 14 years or older applying for paid positions as employees, individuals who are responsible for a child’s welfare, individuals who have direct contact with children, persons seeking to provide childcare services under contract with a childcare program or facility, school employees who are not governed by the provisions of the Public School Code of 1949, and operators of childcare services.

Prospective Employees of Public and Private Schools Act (24 Pa. Stat. Ann. §§ 1-111 and 5-527): 

  • Covers all prospective employees of public schools, private schools, intermediate units, and vocational-technical schools, including teachers, substitute teachers, janitors, and cafeteria workers. It also covers independent contractors and their employees.

Prospective Employees in a Family Daycare Home Act (23 Pa. Cons. Stat. § 6344.1): 

  • Covers all employees of family daycare home providers, and individuals aged 18 or older who live in the home for at least 30 days each calendar year.

Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 Pa. Cons. Stat. §§ 5701 to 5782): 

  • Covers all employees.

Pennsylvania Inspection of Employment Records Law (Personnel Files Act) (43 Pa. Stat. Ann. §§ 1321 to 1324): 

  • Covers employees (including those on leave of absence), and former employees who were laid off with recall rights, of all public and private employers in Pennsylvania.

Breach of Personal Information Notification Act (73 Pa. Stat. Ann. §§ 2301 to 2329): 

  • Covers all employees of employers that maintain, store, or manage computerized data that includes personal information.

Pennsylvania Mini-COBRA (40 Pa. Stat. Ann. § 764j):

  • Employers of 2-19 employees.

Misclassification
Are there state-specific rules regarding employee/contractor misclassification?

“Independent contractor” is defined neither by common law nor by a single statute in Pennsylvania. At common law, courts consider the following factors to determine whether an individual should be classified as an employee or as an independent contractor: 

  • the skill required to perform the job;
  • the source of tools or instruments used to perform the required work; 
  • the nature and location of the work;
  • the duration of the relationship between the parties;
  • whether the company can assign additional projects to the individual;
  • who controls the manner of the work performed;
  • the method of payment;
  • the individual’s role in hiring and paying assistants;
  • whether the work is part of the regular business of the company; 
  • the provision of benefits;
  • the terms of the agreement between the parties (although labelling an individual as an independent contractor in an agreement is insufficient to establish that the label is correct); and 
  • the tax treatment of the individual.

The following statutes specify what it means to be an independent contractor thereunder:

  • Unemployment Compensation Law (43 Pa. Stat. Ann. § 753(l)(2)(B);
  • Pennsylvania Human Relations Act (43 Pa. Stat. Ann. § 954(x); and
  • Construction Workplace Misclassification Act (43 Pa. Stat. Ann. § 933.3(a).

Contracts
Must an employment contract be in writing?

No, but employers are required to notify employees at the time of hire of:

  • the time and place of payment;
  • the rate of pay; and
  • the amount of any fringe benefits or wage supplements (43 Pa. Stat. Ann. § 260.4).

Are any terms implied into employment contracts?

No.

Are mandatory arbitration agreements enforceable?

Yes. 

How can employers make changes to existing employment agreements?

Changes to existing employment agreements will be dictated by the terms of the agreement. 

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