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This post is part of our ongoing series exploring the impact of technology on legal issues. For an introduction to the series and a collection of the posts in the series, check out this post.

The hiring process is a key component of operating a successful business and employers do their best to properly vet prospective employees. Many employers conduct searches online through search engines and scour social media profiles as a part of that process, but there are significant legal risks if that process is not conducted with caution. Here is an overview of a few of the potential issues an employer could face with seeking out information online:

Discrimination Claims

Searching social media profiles can reveal all kind of information about an individual, including sensitive information which could identify that person as a member of a protected class. In Pennsylvania, protected classes include race, color, religion, national origin, ancestry, sex (including pregnancy), age, physical or mental disability, use of a guide or support animal, having an association with an individual with a handicap or disability, familial status, education, sexual orientation, veteran/military status and genetic information.

Think about how much of the above information you could learn as a result of a quick review of someone’s Facebook profile. If an employer decides not to hire a prospective employee based on learning some of the above information, the applicant could bring a discrimination claim.

In order to avoid liability for these claims, consider the value of conducting a social media search in the first place. Is there significant job-related information that can be gained from conducting such a search? Employers should carefully document all decisions made in the hiring process and use the same screening process for all applicants.

If you decide that social media searches are useful for identifying job-related characteristics, then consider having one person or a small group conduct the search, and instruct them to filter out all information that is not job-related and pass that on to those with input on the hiring process in order to avoid decision-making based on protected criteria. Continue Reading Use Caution When Using Social Media Searches in the Hiring Process

The Today show announced this week that Matt Lauer has been fired after nearly 24 years on the show following an allegation made by a colleague of “inappropriate sexual behavior.”  I won’t bother linking to any of the news stories as you’ve probably already seen quite a few on this subject.  What made this story more shocking was that Lauer’s termination came less than 48 hours after the allegation was made.  This swift reaction demonstrates how attitudes in the public arena regarding workplace misconduct are beginning to shift.  But power can be exploited at all levels, which is why it’s imperative that every business owner, large or small, is aware of the laws and their responsibility to maintain a workplace that is free of sexual harassment.  An Associated Press article posted on Lancaster Online this morning discusses how Failing to address harassment allegations can cost employers.

This blog is the first in a series focusing on sexual harassment and misconduct in the workplace.  Follow up posts will look at what’s important from the employer’s view, the employee’s and that of the accused.  As we become more comfortable having open discussion about workplace conduct, employers and employees need to learn more about this problem.   A key starting point for this discussion is the understanding of what constitutes sexual harassment. Continue Reading Employers and Employees: Do You Understand the Law and Sexual Harassment?

I’ve been eagerly anticipating new developments on the federal overtime rules since last year, and after almost a year of inactivity, it appears there may be a revised rule on the way.

Here’s the background: early last year, the Department of Labor announced a revision to the federal overtime requirements which would expand workers’ eligibility to receive overtime pay, as further discussed in this post: New Federal Rule Increases Employee Eligibility for Overtime Pay. But then in November of 2016, a federal judge in Texas issued an injunction preventing the new rule from taking effect as scheduled in December 2016.

The latest development is that the Department of Labor has requested public comment on the proposed overtime rule, which suggests that the rule will be further revised sometime in the near future. If you’re interested in submitting a public comment for consideration, comments can be submitted online at http://www.regulations.gov or by mail addressed to Melissa Smith, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210. Continue Reading Employment Law Update: Is a New Overtime Rule on Its Way?

Imagine this scenario: you’re excited about your new job with a large payroll processing company, and as a part of the employment offer, you’re directed to a company website that contains the terms of a stock award program. You quickly skim through it, check the box indicating that you’ve read and accept the terms, and click submit. As you skimmed through it though, you missed that the terms included a non-solicitation clause that restricts you from soliciting clients and prospective clients for one year after you leave the company.

Are you bound by that non-solicitation clause buried in the terms of the stock award program?    Continue Reading Employment Law Update: Court Holds Internet-Based Noncompetition Agreement Enforceable

iStock Employment ApplicationPursuant to a recent ruling by the Pennsylvania Commonwealth Court, employers who require employees to take drug or alcohol tests are not required to keep the results of such tests confidential pursuant to the Pennsylvania Drug and Alcohol Abuse Control Act.

On October 28, 2016, the Court issued an opinion that the Control Act only provides confidentiality of drug and alcohol tests relating to patients who take drug or alcohol tests for treatment purposes, and not to an employee, who took a drug or alcohol test for employment purposes.

The opinion is at odds with a 1999 case, Murray v. Surgical Specialties Corp., which held that the Control Act prohibited an employer from releasing employee drug tests results taken for employment purposes. Continue Reading Employment Law Update: Pennsylvania Court Rules Employee Drug Test Results Not Confidential

In a March 17, 2016 press release, the White House announced that the Department of Labor will issue a final rule today that will expand workers’ eligibility to receive overtime pay (time-and-a-half). Under the prior rule, only workers making a salary of less than $23,660 per year ($455 weekly) qualified to receive overtime pay when working over 40 hours in a week. The new rule will increase the salary threshold to $47,476 per year ($913 weekly), thus expanding coverage to over four million workers nationwide, and approximately 185,000 Pennsylvanians. We expect that restaurant/hospitality employers and retailers will be impacted the most, but all employers may be impacted depending on the current payment structure of their workforce.

Employers have six months to prepare for the final rule, which goes into effect on December 1, 2016. Options include raising an employee’s salary to keep the employee exempt from overtime, payment of time-and-a-half when necessary, or evaluation and realignment of hours and staff workload.

For more information, here’s a list of resources from the United States Department of Labor that will answer common questions about the new rule:

The impact on your business may be minimal if your employees are compensated hourly and already receive overtime pay, or if salaries are already in excess of $47,476 per year, however if your employees are salaried in the range between the former threshold of $23,660 and the new threshold, some careful planning will need to occur prior to December 1, 2016.

In the coming weeks we will post additional information to help determine whether your employees are exempt from the overtime requirement and strategies to address the adoption of the new overtime rule.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.

As a follow-up to my recent presentation to the talented entrepreneurs at Assets Lancaster about employment and business law issues, I wanted to create a resource that outlines some of the myths we hear associated with employment and the law.

This is by no means an exhaustive list, and if you have more questions or are wondering about a particular issue that you’ve encountered, feel free to contact us!

Myth 1: Paying employees under the table is permitted under the law.

Payment of employees under the table and failure to withhold Pennsylvania personal income tax on wages, tips or other forms of taxable compensation is illegal and considered tax evasion. The Pennsylvania Department of Revenue investigates tax fraud claims and such claims can be submitted here.

Similarly, the IRS also investigates claims for tax evasion for failure to withhold federal employment taxes. Each year, the IRS assesses billions of dollars in penalties to employers who fail to pay employment taxes and accurately report employee income.

Myth 2: An employee who is paid a salary is exempt from being paid overtime.

As discussed in this post by Christina Hausner, there are a number of circumstances in which salaried employees are entitled to overtime pay. All employees are entitled to overtime unless they are exempt under applicable law. The Fair Labor Standards Act provides specific rules as to who is exempt. Payment of wages on a salary basis does not make an employee exempt from overtime or minimum wage entitlement.

There are some pending changes to existing law proposed by the United States Department of Labor. What are known as white collar exemptions are now being rewritten to require payment of a greater minimum annual salary to qualify as exempt than is currently applicable. Continue Reading Debunking Common Employment Law Myths

Everyone knows about the recent Supreme Court decision Obergefell v. Hodges with regard to gay marriage. Last year, President Obama entered an Executive Order prohibiting federal contractors from discriminating on the basis of gender identity and sexual orientation.  In recent years, there has been a gradual acceptance that discrimination against transgender individuals constitutes discrimination on the basis of sex prohibited under federal law Title VII of the Civil Rights Act of 1964. Now, for the first time, EEOC (Equal Employment Opportunity Commission), the federal agency charged with enforcing discrimination laws, held in a July 15, 2015 decision that discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of sex and is unlawful under Title VII.

The significance of this decision is that employers cannot rely on the fact that Congress never added “sexual orientation” as a protected class to federal anti-discrimination laws which expressly name race, color, religion, sex and national origin as bases for protection.  Sexual orientation discrimination is now a subset of sex discrimination.

In reviewing the many claims of discrimination on the basis of sexual orientation, courts have consistently held that Title VII does not prohibit sexual orientation discrimination.  However, discrimination on the basis of what is referred to as “gender stereotyping” has been recognized, most notably in the 1989 Supreme Court decision in Price Waterhouse v. Hopkins.  There, the plaintiff claimed that she was denied a promotion because her employer found that her actions and conduct were not sufficiently feminine. The Court upheld her claim, stating that Title VII applied to discrimination because of gender, not just biological sex.  Continue Reading Expanding Gay Rights