Pennsylvania Law – Labor and Employment

By: Brian D. Boreman

Social media is an extremely popular means of communicating that is used by employees both inside and outside the workplace. The term “social media” can include: blogs, which is the this message is being communicated to you; networking sites such as Facebook and MySpace; microblogs such as Twitter; and video sites such as You Tube. Depending upon the manner in which a communication is made by an employee, it may be difficult to determine whether the communication is personal or professional in nature. As such, because posted material can reflect on both the employee and the employer, an employer must take steps to protect against the potentially adverse affects that flow from the misuse of social media.

As such, employers should develop specific policies regarding the use of social media. In addition to controlling the use of social media in the workplace, employers should also place limitations on what an employee can discuss regarding the business of the employer, or its customers, while outside the office. Examples include prohibiting employees from using social media to disseminate proprietary information of the employer or from making any disparaging remarks about the employer. Further, to assist in the enforcement of these policies, employees should always be informed that social networking is subject to monitoring by the employer.

To learn more about implementing and enforcing social networking policies, or for any other employment-related issues, please contact Brian D. Boreman.

Brian D. Boreman

Brian Boreman is a partner at the Pennsylvania law firm Unruh, Turner, Burke and Frees, Brian practices in the areas of employment and labor law, commercial litigation, and mediation and arbritration. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.

By: Brian D. Boreman

Employers that wish to review the computer activities of their employees should promulgate effective computer monitoring policies to limit an employee’s expectation of privacy when using his or her workplace computer. The absence of such a policy may permit an employee to assert various privacy rights, which could subject an employer to liability if such privacy rights are violated by the employer or even by another employee. A computer monitoring policy should expressly identify that the employer reserves the right to review all incoming and outgoing electronic communications (i.e., email and instant messaging) by the employee. The policy should also specify the parameters of an employee’s acceptable use of a workplace computer (i.e., internet use), and the resultant disciplinary action if the parameters are broken.

Of course, the implementation of a computer monitoring policy is just one of many issues to consider regarding an employee’s use of a workplace computer. For instance, if an assertion is made that an employee is being subjected to a hostile work environment, the employer will likely be required to monitor, at a minimum, the alleged harasser’s computer activities. The failure to properly monitor the alleged harasser’s activities to curtail discrimination against a fellow employee could subject the employer to significant damages.

To learn more about implementing and enforcing computer monitoring policies, or for any other employment-related issues, please contact Brian D. Boreman.

By: Brian D. Boreman

The Fair Labor Standards Act (“FLSA”) was enacted by Congress in 1938 to ensure that, among other things, certain employees receive overtime compensation for all hours worked in excess of 40 hours in a workweek. These employees are considered “non-exempt” (and are often referred to as “hourly” employees). Other employees, however, are not required to be paid overtime even if they work in excess of forty hours in a workweek. These employees are considered “exempt” (and are often referred to as “salaried” employees). Needless to say, employers who violate the FLSA by not paying overtime compensation when required face potential liability and the imposition of severe penalties.

There are many instances when a violation of the FLSA occurs. Often, an employer misclassifies a non-exempt employee as exempt, and thus, does not pay the employee for overtime hours. Unfortunately, many employment positions do not have a bright-line to follow when determining an employee’s classification under the FLSA. As such, it is incumbent on the employer to evaluate the duties of the employee in conjunction with federal law to determine whether the employee is entitled to overtime compensation.

Although misclassifying an employee’s status is one way to run afoul of the FLSA, it is certainly not the only way. For example, employers need to ensure that they do not improperly round down the payable time worked at the beginning and end of works shifts and bona fide breaks for non-exempt employees. Another common example of a FLSA violation occurs when an employer inappropriately deducts the pay of an exempt employee to recoup damages it sustained as the result of the employee’s actions or inactions.

These are just a few of the examples that could lead to liability for your company and are mentioned merely to highlight the many issues facing an employer when complying with the FLSA. To help your company ensure that its policies are compliant with the FLSA, or for any other employment-related issues, please contact Brian Boreman.

By: Brian D. Boreman

Information such as customer lists, pricing formulas, product development, and business plans are often the most valuable assets of a company. The unwanted dissemination of any such information by a prior employee could devastate a company’s ability to compete in the marketplace. Although Pennsylvania laws, such as the Uniform Trade Secrets Act, preclude the misappropriation of a company’s trade secrets in certain situations, every company must be proactive about protecting its proprietary information. In this regard, any employee who is privy to confidential information should be required to sign a confidentiality agreement. The confidentiality agreement should identify, among other things, the scope of information that the company considers confidential and the employee’s obligations, both during and after the employee’s term of employment, to protect this information from disclosure. A confidentiality agreement alone, however, is not sufficient to adequately protect a company’s interests. A company must also develop security measures and workplace policies to protect its proprietary information from disclosure.

To help protect your company’s confidential information from unwanted disclosure, or for any other employment-related issues, please contact Brian D. Boreman.

By: Brian D. Boreman

If so, you likely are already aware of the Family Medical Leave Act and the fact that eligible employees are permitted to take leave in certain instances, such as to care for a newborn child or to care for a family member with a serious health condition. Recent revisions to the Family Medical Leave Act (FMLA), however, have provided new leave entitlements for eligible employees. Probably the most significant change to the FMLA creates leave entitlements for families of military servicemen and servicewomen. Now, an employee that is a spouse, son, daughter or parent of a member of the Armed Forces may take leave if the serviceman or servicewoman is on active duty, or has been notified of impending active duty. Additionally, an eligible employee may take leave to care for a family member that has suffered serious injury or illness as a result of service in the military. Other changes were also made to the FMLA, most notably the requirement that employees take reasonable efforts to schedule intermittent leave in a manner to cause less disruption with the company’s business operations.

To learn more about the revisions to the FMLA and to make sure that your company is compliant with its regulations, or for any other employment-related issues, please contact Brian D. Boreman.

By: Brian Boreman

Every employer would like to ensure that its employees arrive for work in a mental and physical condition that allows them to perform their jobs in a safe and productive manner.  Employees who have consumed drugs will likely suffer reductions in their productivity, reliability, and competence, thereby adversely affecting the company’s interests.

But what is the best way to ensure that a workplace is free from the influence of illegal and performance impairing drugs?  Are random drug tests sufficient, or should an employer take affirmative steps to demand a drug test if physical signs point to possible drug abuse?  Can a company violate an employee’s privacy rights with a drug test, and if so, what potential liability does the employer face?

All of the questions are frequently asked when determining how to implement effective employee drug testing policies in the workplace.  Typically, an employer may perform random and structured drug tests on its employees.  To minimize any confusion as to what will be required of employees, drug testing policies should be communicated to employees at the time of hire.  When performing the drug tests, employers should ensure that the manner in which the tests are performed is not overly intrusive for the employee in order to minimize any potential violation of an employee’s privacy rights.

To help your company implement legitimate and enforceable drug testing policies, or for any other employment-related issues, please contact Brian Boreman.