PRIOR PRINTER'S NOS. 1041, 1899, 1984 PRINTER'S NO. 2297
No. 956 Session of 1993
INTRODUCED BY VEON, OLASZ, KUKOVICH, PISTELLA, PRESTON, BUNT,
FAJT, TRELLO, BELARDI, CURRY, GIGLIOTTI, FREEMAN, COLAFELLA,
S. H. SMITH AND D. W. SNYDER, MARCH 25, 1993
AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, JUNE 23, 1993
AN ACT
1 Prohibiting discrimination against persons who use lawful
2 products; and providing for enforcement and for penalties.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 SECTION 1. DECLARATION OF PUBLIC POLICY. <--
6 IT HAS LONG BEEN THE STANDARD ESTABLISHED IN LABOR
7 ARBITRATION THAT OFF-DUTY CONDUCT BY AN EMPLOYEE THAT DOES NOT
8 IMPAIR THE EMPLOYEE'S ABILITY TO PERFORM HIS OR HER ASSIGNED
9 DUTIES IS NOT A BASIS FOR THE EMPLOYER'S IMPOSITION OF DISCHARGE
10 OR OTHER DISCIPLINE. LIKEWISE, IT HAS LONG BEEN THE RULE IN THE
11 APPLICATION OF THE UNEMPLOYMENT COMPENSATION LAW THAT SUCH OFF-
12 DUTY CONDUCT DOES NOT CONSTITUTE WILLFUL MISCONDUCT WITHIN THE
13 PURVIEW OF THAT LAW. THE GENERAL ASSEMBLY, IN A DESIRE TO EXTEND
14 THE PROTECTION ENJOYED BY EMPLOYEES COVERED BY COLLECTIVE
15 BARGAINING AGREEMENTS AGAINST DISCHARGE OR DISCIPLINE FOR OFF-
16 DUTY CONDUCT TO ALL WORKERS WITHIN THIS COMMONWEALTH, ENACTS
1 THIS LEGISLATION IN ORDER TO BROADEN THE RIGHTS OF ALL WORKERS
2 WITHIN THIS COMMONWEALTH.
3 Section 1 2. Discrimination for use of lawful products <--
4 prohibited.
5 (a) General rule.--Except as otherwise specifically provided
6 by law and except as provided by subsection (b), it shall be
7 unlawful for an employer to refuse to hire or to DISCIPLINE OR <--
8 discharge any individual or otherwise disadvantage any
9 individual, with respect to compensation, WAGES, HOURS, terms, <--
10 conditions or privileges of employment because the individual
11 uses lawful products off the premises of the employer during
12 nonworking hours.
13 (b) Exception.--This section does not apply to any employer
14 that is a nonprofit organization that, as one of its primary
15 purposes or objectives, discourages the use of one or more
16 lawful products by the general public. This section does not
17 apply to those job requirements which limit the use, during
18 nonworking hours of lawful products by an employee that would
19 impair an employee's ability to perform the employee's assigned
20 duties or that would threaten the safety of any person,
21 including those job requirements adopted pursuant to the
22 requirements and standards of any Federal, State or local
23 government or their agencies, or requirements included in an
24 agreement between the employer and a bargaining unit or
25 organization representing an employee.
26 Section 2 3. Administrative enforcement and civil remedy. <--
27 (a) Complaint.--Any person claiming to be aggrieved by a
28 violation of this act shall file a complaint with the Department
29 of Labor and Industry within six months of the alleged
30 violation. The Department of Labor and Industry shall conduct a
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1 hearing in accordance with 2 Pa.C.S. Ch. 5 Subch. A (relating to
2 practice and procedure of Commonwealth agencies).
3 (b) Complaint not to be foreclosed.--If a person files a
4 complaint with the Department of Labor and Industry, that
5 person's right of action in the courts of this Commonwealth
6 shall not be foreclosed. If within one year after the filing of
7 the complaint, the Department of Labor and Industry has
8 dismissed the complaint or has not concluded its proceedings,
9 the Department of Labor and Industry shall notify the aggrieved
10 person. On receipt of the notice, the aggrieved person shall be
11 able to bring action in the court of common pleas of this
12 Commonwealth. If the employer is an agency or political
13 subdivision of the Commonwealth, then the civil action shall be
14 filed in Commonwealth Court.
15 Section 3 4. Relief. <--
16 (a) General rule.--Upon finding of a violation under section
17 2 3, the aggrieved party may be granted the following relief: <--
18 (1) In any civil action or departmental proceeding
19 brought under section 2 3, the Department of Labor and <--
20 Industry or a court may grant as relief any permanent or
21 temporary injunction, temporary restraining order and other
22 equitable relief as the Department of Labor and Industry or
23 court deems appropriate.
24 (2) Any employer that violates any provision of this act
25 shall be liable to an injured party in an amount equal to any
26 wages, salary, employment benefits or other compensation
27 denied or lost to the party by reason of the violation, plus
28 legal interest on the total monetary damages.
29 (3) Any employer that violates any provision of this act
30 may also be liable to the injured party in the amount of $100
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1 for each day the violation occurs. The maximum penalty
2 imposed under this paragraph shall not exceed $5,000.
3 (4) A prevailing injured party may be awarded a
4 reasonable attorney fee as part of costs, in addition to any
5 relief awarded. Any Commonwealth agency or political
6 subdivision shall be liable for costs the same as a private
7 person.
8 (b) Limitation.--Damages awarded under subsection (a)(2) may
9 not accrue from a date before the date of the violation.
10 Section 4. Construction. <--
11 Nothing in this act shall be construed to supersede any law
12 or contract which provides greater employee rights than the
13 rights established under this act.
14 SECTION 5. CONSTRUCTION. <--
15 NOTHING IN THIS ACT SHALL BE CONSTRUED IN ANY FASHION SO AS
16 TO SUPERSEDE, RESTRICT, IMPEDE, LIMIT OR SUBTRACT FROM ANY
17 COMMON LAW, STATUTORY OR CONTRACTUAL RIGHTS, PRIVILEGES,
18 IMMUNITIES OR STATUS OF ANY EMPLOYEE, AND NO APPLICATION OF THIS
19 ACT MAY BE UTILIZED AS EVIDENCE OR OTHERWISE IN ANY FASHION THAT
20 RESTRICTS, SUPERSEDES LIMITS, SUBTRACTS FROM OR IMPEDES ANY
21 COMMON LAW, STATUTORY OR CONTRACTUAL RIGHTS, STATUS, PRIVILEGES
22 OR IMMUNITIES WHICH ACCRUE TO ANY EMPLOYEE AT THE TIME OF ITS
23 ENACTMENT OR TO WHICH ANY EMPLOYEE LATER BECOMES ENTITLED.
24 Section 5 6. Effective date. <--
25 This act shall take effect in 60 days.
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