Two important employment law cases were decided in Pennsylvania in the last several weeks.
The employment-at-will doctrine generally provides employers the leeway needed to terminate employees who act or say things that are offensive, even when the act is not job related. The U.S. Court of Appeals for the Third Circuit recently ruled that Bank of New York Mellon (BNY Mellon) did not violate Title VII of the Civil Rights Act of 1964 when it fired a woman because of her social media activity. Ellis v. Bank of New York Mellon, No. 20-2061 (3d Cir. March 4, 2021). Lisa Ellis, who worked for BNY Mellon was a senior control analyst, used her personal Facebook account to comment on a local news story calling it “total BS. He should have taken a bus to plow through.” The story was about a councilman who had been arrested for driving a car through a crowd of demonstrators protesting the death of Antwon Rose, Jr., a young African American male who was shot and killed by an East Pittsburgh police officer. Ellis’ Facebook account was set to “public” and also referenced that she worked as a Vice President for BNY Mellon. BNY Mellon was subsequently inundated with complaints about the post and questions about whether the post reflected the ideals of the company. BNY Mellon did have a written policy regarding media, which prohibited unlawful harassment and discrimination and required the use of external social media to comply with BNY Mellon’s code of conduct. The Third Circuit affirmed the District Court’s granting of a summary judgment in favor of BNY Mellon. Clearly, employers continue to retain tremendous discretion in disciplining and policing the off-work conduct of their employees when the conduct violates an employee policy and has a tendency to harm the reputation of the business.
In Pittsburgh Logistics Systems, Inc. v. Beemack Trucking, LLC and Beemack Logistics, LLC, the Pennsylvania Supreme Court determined that a “no hire” or “no poach” provision contained in a services agreement between these two businesses was unenforceable under the laws of the Commonwealth of Pennsylvania. Although this case was virtually a case of first impression in Pennsylvania, the Supreme Court followed reasoning in similar cases and determined that the no hire clause constitutes restraint of trade. The Court also reasoned that the no hire provision created a likelihood of harm to the public through non-job mobility of employees, who are not parties to the contract between the two business entities, and have no knowledge of the agreement or opportunity to consent, and did not receive consideration in exchange for this impairment. Further, the injury to the employees is not hypothetical, as PLS had enforced the provision in the past. The Court concluded that the no hire provision undermined free competition in the labor market in the shipping and logistics industry, which created a likelihood of harm to the general public as well.