Wrestlemania was this past weekend, and Linda McMahon is rumored to be stepping down as the head of the Small Business Administration.  I have a rule that when those two things happen in the same week, it is time to link back to my favorite blog post: How Your Small Business is Like Professional Wrestling.

My son and I are still watching wrestling.  And there are even more lessons you can learn from wrestling.  Here are more to add to the list:
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Every business has those key employees who you really do not want to lose. A common risk for this is when your customers see how well an employee performs and decides it would be even better to bring them in-house (cutting out you and your profit margin). Many businesses protect themselves against this risk with a “no-hire” clause in customer contracts where they agree not to poach employees from you. But that may no longer be possible here in Pennsylvania.
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Back in July, Matt Landis updated us on several of the stories confirming Lancaster’s technology sector continued to thrive in 2018. As we close out the year, let’s look at a few more that made the news in our area during the second half of the year!

  • Think self-driving cars are still an early-stage

A few months ago I wrote about the Third Circuit Court of Appeal’s avoidance of ruling on whether employers have a duty to protect their employees’ personal information. We now have an answer to that question (at least in this Commonwealth) from Pennsylvania’s Supreme Court: Yes, yes it does.

On the eve of Thanksgiving the Pennsylvania Supreme Court released its decision in Dittman v. UPMC. This lawsuit was brought by employees of the University of Pittsburgh Medical Center over a data breach that leaked the employees’ names, birth dates, social security numbers, and bank account information. But the existence of a duty by UPMC to protect this personal information remained in doubt. The Court ended this debate by ruling:

an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.

For employees, this is a decision that should be heralded as an important protection against identity theft. After all, what choice does an employee have but to give personal data to their employer? That the employer must protect that information is just common sense.
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If you’re thinking about starting a business in Pennsylvania, an important part of the financial side of your business plan is to evaluate the impact of taxes on your new business. Your lawyer and your accountant are key members of your business team that can help you evaluate what type of entity to form, how that entity should be taxed, and the taxes applicable to your business.

Part three of this series discusses taxes associated with ownership of real estate and employment taxes. Part one discussed sales and use taxes and others that may apply based on the nature of the goods you sell or the services you provide. Part two discussed taxes that may apply depending on the way your business is organized.

This post is not intended to be a substitute for legal or tax advice from your lawyer or accountant – you should talk to them in order to obtain advice to address your specific situation. Need a lawyer or an accountant? We might be able to help you with that!
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With all the uproar about Facebook’s use of our data and businesses bracing to deal with the EU’s GDPR, it is easy to forget there is no general obligation to protect your personal information. The Third Circuit Court of Appeal’s decision last week in Enslin v. Coca-Cola, et al. is the latest reminder of that fact.

Shane Enslin is a former employee of Coca-Cola. As part of his employment, he submitted, as we all do, personal information including his social security number. Coca-Cola discovered that one of its IT staffers was stealing company laptops and taking them home for his own use or giving them to others. Among the devices stolen were machines used by human resources employees that contained sensitive personal information, like Enslin’s social security number. After the devices were stolen, Enslin was the victim of identity theft.
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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.
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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.
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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?   
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