PRIOR PRINTER'S NOS. 1041, 1899, 1984, PRINTER'S NO. 2642
2297
No. 956 Session of 1993
INTRODUCED BY VEON, OLASZ, KUKOVICH, PISTELLA, PRESTON, BUNT,
FAJT, TRELLO, BELARDI, CURRY, GIGLIOTTI, FREEMAN, COLAFELLA,
S. H. SMITH, D. W. SNYDER AND RITTER, MARCH 25, 1993
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
SEPTEMBER 29, 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, WHEN IMPAIRMENT IS AT ISSUE, <--
8 OFF-DUTY USE OF LAWFUL PRODUCTS by an employee that does not
9 impair the employee's ability to perform his or her assigned
10 duties is not a basis for the employer's imposition of discharge
11 or other discipline. Likewise, it has long been the rule in the
12 application of the Unemployment Compensation Law that such off- <--
13 duty conduct, WHEN IMPAIRMENT IS AT ISSUE, OFF-DUTY USE OF <--
14 LAWFUL PRODUCTS does not constitute willful misconduct within
15 the purview of that law. The General Assembly, in a desire to <--
16 extend the protection enjoyed by employees covered by collective
1 bargaining agreements against discharge or discipline for off-
2 duty conduct to all workers within this Commonwealth, enacts
3 this legislation in order to broaden the rights of all workers
4 within this Commonwealth.
5 SECTION 2. DEFINITIONS. <--
6 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
7 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
8 CONTEXT CLEARLY INDICATES OTHERWISE:
9 "LAWFUL PRODUCTS." TOBACCO PRODUCTS AND DISTILLED AND MALT
10 BEVERAGES.
11 "LAWFUL USE." THE CUSTOMARY AND INTENDED USE OF A SPECIFIED
12 LAWFUL PRODUCT; HOWEVER, UNDERAGE DRINKING AND PUBLIC
13 DRUNKENNESS SHALL NOT BE CONSIDERED CONDUCT WHICH IS PROTECTED
14 BY THIS ACT.
15 Section 2 3. Discrimination for use of lawful products <--
16 prohibited.
17 (a) General rule.--Except as otherwise specifically provided
18 by law and except as provided by subsection (b), it shall be
19 unlawful for an employer to refuse to hire or to discipline or <--
20 discharge any individual or otherwise disadvantage any
21 individual, UNLAWFUL FOR AN EMPLOYER TO DISCHARGE OR REFUSE TO <--
22 HIRE ANY INDIVIDUAL OR TO DISCIPLINE ANY INDIVIDUAL with respect
23 to compensation, wages, hours, terms, conditions or privileges
24 of employment because the individual LAWFULLY uses lawful <--
25 products off the premises of the employer during nonworking
26 hours.
27 (b) Exception.--This section does not apply to any employer
28 that is a nonprofit organization that, as one of its primary <--
29 purposes or objectives, discourages the use of one or more
30 lawful products by the general public. THIS SECTION DOES NOT <--
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1 APPLY TO ANY EMPLOYER THAT IS A RELIGIOUS CORPORATION,
2 ASSOCIATION OR SOCIETY NOR AT A SCHOOL OPERATED BY A RELIGIOUS
3 CORPORATION, ASSOCIATION OR SOCIETY. This section does not apply
4 to those job requirements which limit the use, during ANY OF THE <--
5 FOLLOWING:
6 (1) THOSE JOB REQUIREMENTS WHICH LIMIT THE USE DURING
7 nonworking hours of lawful products by an employee that
8 would, IN ANY WAY, impair an employee's ability to perform <--
9 the employee's assigned duties or that would threaten the <--
10 safety of any person, DUTIES; AN EMPLOYEE'S ABILITY TO MEET <--
11 JOB REQUIREMENTS, including those job requirements adopted
12 pursuant to the requirements and OR standards of any Federal, <--
13 State or local government or their agencies, or AND <--
14 requirements included in an agreement between the employer
15 and a bargaining unit or organization representing an
16 employee; THE SAFETY OF OTHER EMPLOYEES; OR THE EMPLOYER'S <--
17 ECONOMIC WELL-BEING.
18 (2) A HEALTH, DISABILITY OR LIFE INSURANCE BENEFIT WHICH
19 MAKES DISTINCTIONS BETWEEN EMPLOYEES FOR THE TYPE OF COVERAGE
20 OR THE PRICE OF COVERAGE BASED UPON THE EMPLOYEES' USE OF
21 LAWFUL PRODUCTS IF:
22 (I) DIFFERENTIAL RATES OR COSTS CHARGED EMPLOYEES DO
23 NOT EXCEED A DIFFERENTIAL COST TO THE EMPLOYER; AND
24 (II) THE EMPLOYER PROVIDES EMPLOYEES WITH A
25 STATEMENT IDENTIFYING THE DIFFERENTIAL RATES OR COSTS.
26 THIS SECTION DOES NOT APPLY TO AN EMPLOYER WELLNESS PROGRAM
27 DESIGNED TO IMPROVE HEALTH OF EMPLOYEES.
28 Section 3 4. Administrative enforcement and civil remedy. <--
29 (a) Complaint.--Any person claiming to be aggrieved by a <--
30 violation of this act shall file a complaint with the Department
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1 of Labor and Industry within six months 180 DAYS of the alleged <--
2 violation. The Department of Labor and Industry shall conduct a
3 hearing in accordance with 2 Pa.C.S. Ch. 5 Subch. A (relating to
4 practice and procedure of Commonwealth agencies).
5 (b) Complaint not to be foreclosed.--If a person files a <--
6 complaint with the Department of Labor and Industry, that
7 person's right of action in the courts of this Commonwealth
8 shall not be foreclosed. If within one year after the filing of
9 the complaint, the Department of Labor and Industry has
10 dismissed the complaint or has not concluded its proceedings,
11 the Department of Labor and Industry shall notify the aggrieved
12 person. On receipt of the notice, the aggrieved person shall be
13 able to bring action in the court of common pleas of this
14 Commonwealth. If the employer is an agency or political
15 subdivision of the Commonwealth, then the civil action shall be
16 filed in Commonwealth Court.
17 Section 4 5. Relief. <--
18 (a) General rule.--Upon finding of a violation under section
19 3 4, the aggrieved party may be granted the following relief: <--
20 (1) In any civil action or departmental proceeding <--
21 brought under section 3 4, the Department of Labor and <--
22 Industry or a court may grant as relief any permanent or <--
23 temporary injunction, temporary restraining order and other
24 equitable relief as the Department of Labor and Industry or <--
25 court deems appropriate.
26 (2) Any employer that violates any provision of this act
27 shall be liable to an injured party in an amount equal to any
28 wages, salary, employment benefits or other compensation
29 denied or lost to the party by reason of the violation, plus
30 legal interest on the total monetary damages.
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1 (3) Any employer that violates any provision of this act <--
2 may also be liable to the injured party in the amount of $100
3 for each day the violation occurs. The maximum penalty
4 imposed under this paragraph shall not exceed $5,000.
5 (4) A prevailing injured party may be awarded a
6 reasonable attorney fee as part of costs, in addition to any
7 relief awarded. Any Commonwealth agency or political
8 subdivision shall be liable for costs the same as a private
9 person.
10 (b) Limitation.--Damages awarded under subsection (a)(2) may
11 not accrue from a date before the date of the violation.
12 Section 5 6. Construction. <--
13 Nothing in this act shall be construed in any fashion so as <--
14 to supersede, restrict, impede, limit or subtract from any
15 common law, statutory or contractual rights, privileges,
16 immunities or status of any employee, and no application of this
17 act may be utilized as evidence or otherwise in any fashion that
18 restricts, supersedes limits, subtracts from or impedes any
19 common law, statutory or contractual rights, status, privileges
20 or immunities which accrue to any employee at the time of its
21 enactment or to which any employee later becomes entitled.
22 NOTHING IN THIS ACT SHALL BE CONSTRUED TO SUPERSEDE ANY LAW OR <--
23 CONTRACT WHICH PROVIDES GREATER EMPLOYEE RIGHTS THAN THE RIGHTS
24 ESTABLISHED UNDER THIS ACT. THIS ACT SHALL NOT BE CONSTRUED SO
25 AS TO PREVENT AN EMPLOYER FROM OFFERING, AND AN EMPLOYEE FROM
26 PARTICIPATING, IN A PROGRAM DESIGNED TO ASSIST THE EMPLOYEE IN
27 LIMITING OR DISCONTINUING THE USE OF LAWFUL PRODUCTS.
28 Section 6 7. Effective date. <--
29 This act shall take effect in 60 days.
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