LEGAL CONSIDERATIONS IN OUTSOURCING

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Presentation transcript:

LEGAL CONSIDERATIONS IN OUTSOURCING Ira WEISS, ESQ. ANNEMARIE k. Harr, ESQ.

What is Outsourcing? Outsourcing is the contracting out of work done by school employees to private companies. Common examples are: Custodial Maintenance Work Business Functions Food Service (not a concern for CTC’s) © WBK Legal 2019 This presentation is informational only and does not constitute legal advice.

What are the Legal Issues? Prior to Act 39, the legal issues involved the requirements imposed by Act 195, the PERA, if a CTC had unionized employees. Act 195 prohibits the subcontracting of bargaining unit work to outside firms or individuals without bargaining with the union or association. (Sec Sections 801-805 of the PERA). Thus, you must bargain to impasse and then do an RFP which the union has the opportunity to respond to. The union must be provided with complete information. Caution: Under the new Millcreek School District decision of the Supreme Court, there is some question whether this can be done while a CBA is still in effect (prior to expiration). In Weingarten, private-sector employee suspected of theft requested union representative for interview with management. Request was denied. Employee was not disciplined. Union claimed this was an unfair labor practice. Supreme Court agreed. Investigatory interviews – meeting calculated to form the basis for taking disciplinary or other job-affecting actions because of past misconduct Drug testing is an investigatory interview – right to consult before, but not necessarily to have rep present during testing Weingarten rule does not apply to non-investigatory meeting for purpose of informing employee of disciplinary decision. PSSU Local 668 SEIU v. Com. of Pa. Dept. of Corr., 34 PPER ¶ 110 © WBK Legal 2019 This presentation is informational only and does not constitute legal advice.

School Code Requirements (24. P.S. §5-528) Act 39, which we have discussed today, imposed many new requirements: It applies to non-instructional services. It applies to for-profit providers (intermediate units can provide services without Act 44 rules but remember Act 195). Must do 3-year cost projections and disclosure of state or federal violations by the providers employees including traffic violations. This is very broad. Public hearing. Offer employment to CTC employees. Bottom Line: The process has become much more cumbersome with greater legal risk. Choice of representative – may be a union attorney – but no entitlement to attorney per se, and attorney may not act as attorney Right to consult before interview - Fraternal Order of Police, Conference of Pennsylvania Liquor Control Board Lodges v. Commonwealth of Pennsylvania, Pennsylvania State Police, 28 Pa. Pub. Emp. R. ¶ 28203 (PLRB Final Order, 1997) Right to consult during interview – Com. of Pa. v. PLRB, 2003 WL 26068595 (Pa. Commw. Ct. 2003) Reasonable grounds – example – “when a significant question is asked such as one that could result in the discipline of the employee or when the question asked may be interpreted in more than one way” © WBK Legal 2019 This presentation is informational only and does not constitute legal advice.

Thank You! Additional comments or questions: Ira Weiss, Esquire iweiss@wbklegal.com Annemarie K. Harr, Esquire aharr@wbklegal.com Weiss Burkardt Kramer, LLC 445 Fort Pitt Blvd., Suite 503 Pittsburgh, PA 15219 Phone: (412) 391-9890 © WBK Legal 2019 This presentation is informational only and does not constitute legal advice.