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In a case of first impression for the appellate courts of this Commonwealth, the Pennsylvania Superior Court recently ruled in Socko v. Mid-Atlantic Systems of CPA, Inc. that language contained in an employment agreement entered into after commencement of employment, which indicated the parties’ “intent to be legally bound” was insufficient consideration to support a non-compete agreement.
Continue Reading Employers Must Provide “Valuable Consideration” To Current Employees When Entering A Non-Compete Agreement During Employment

In Pennsylvania, a non-compete agreement (NCA) must be supported by legal “consideration” in order to be enforceable. If a newly hired employee signs a NCA at the time of hire as a condition of employment, the new job is the consideration for the agreement not to compete in the future. On the other hand, once an employee is already employed, his employer cannot foist an NCA on him and expect it to be enforceable unless new consideration is given (e.g. a special bonus, job protection, promotion, severance benefits, etc.). These basic principles are well established under Pennsylvania law.

But what happens if an employer presents a NCA to a new hire after he accepts a written job offer but before he actually starts work?
Continue Reading You’ve Got the Job, Details Will Follow – Employment Offer Letters & Non-Compete Agreements

U.S. Citizenship and Immigration Services (USCIS) recently released the revised Employment Eligibility Verification Form I-9, which employers are required to use to verify the identity and employment authorization of newly hired employees. Starting May 7, 2013, employers must use the new Form I-9 (with a revision date of 03/08/13) to comply with their employment eligibility verification responsibilities. The new Form I-9 was first published by U.S. Immigration and Customs Enforcement (ICE) on March 8, 2013, and had been authorized for use, along with the previous Form. Now, use of the new Form I-9 will be mandatory.
Continue Reading New Form I-9 Required Beginning May 7

The newly created Consumer Financial Protection Bureau (“CFPB”) recently issued regulations that modify the notices required under the Fair Credit Reporting Act (“FCRA”). The new regulations include one change that is significant to employers who regularly obtain criminal background reports, credit history reports, and other background checks on their applicants and employees.
Continue Reading Employers Required to Use New FCRA Notices come January 1, 2013

This post was contributed by Adam R. Long, a Member in McNees Wallace and Nurick LLC’s Labor and Employment Group and Osazee Imadojemu, a summer associate with McNees. Mr. Imadojemu will begin his third year of law school at George Washington School of Law in the fall, and he expects to earn his J.D. in May…

Thanks to recent headlines about the increase in employers demanding social media passwords of employees and job applicants, employers have gotten a quick lesson on the increased the risks of this practice, especially if the employer neglects to have the proper policies and procedures in place.
Continue Reading Is there a way to safely use social media in the interview process?

There has been a lot of backlash against the practice of employers asking potential employees for their Facebook password. So much so that U.S. senators are calling on the EEOC and the U.S. Department of Justice to launch an investigation to determine whether this practice is lawful. Facebook is also weighing in and threatening legal action against employers who engage in this practice.

In this blog post I provide a brief video update on the Facebook story and describe best practice alternatives to relying on social media in employee hiring.
Continue Reading How to screen job applicants without asking for the Facebook password

This post was contributed by Christopher Gibson, a Summer Associate with McNees Wallace and Nurick LLC.  Mr. Gibson will begin his third year of law school at Wake Forest in the fall, and he expects to earn his J.D. in May 2012. 

With unemployment in the United States hovering around 9.2%, human resources offices across the country are being bombarded with job applications like never before. The overworked employees of these often understaffed offices are charged with wading through a figurative sea of applications, all while dealing with the increasingly zany behavior of some applicants. According to CBS News, "[o]ne man sent a shoe to his prospective employer with a note that read, ‘I want to get my foot in the door.’ " Another "handed out personalized coffee cups, so no one would forget his name." In this high stress environment, some human resources professionals might see using social media as a quick and easy way of separating the wheat from the chaff – narrowing the field of possible applicants significantly in a short amount of time. But before signing into Facebook or pulling up your favorite search engine, keep in mind the immortal words of Clint Eastwood in Dirty Harry: "You feelin’ lucky?"

Every human resources staff member knows that, especially when interviewing a potential new employee, some topics are strictly off limits. Asking one of these "off limits" questions can put your company at serious risk of being sued for discrimination. The trouble is, by resorting to the use of social media, this kind of "off limits" information can be collected from a potential employee even before his or her interview.

Imagine for a moment that you are the director of human resources for a mid-sized paper supply company. You receive around fifty resumes in response to a job posting to fill the position of "Assistant to the Regional Manager." One applicant – Alex Jackson – catches your eye as one of the top applicants for the job. According to Alex’s resume, Alex has been working in the paper industry for around six years and has a bachelor’s degree in management from a New York Ivy League school. Alex has been published in several trade magazines, is active in the community and has excellent references.

You decide to pull Alex’s Facebook profile just to get a better feel for the applicant; what’s the worst that could happen, right?

As you expected, what you find is fairly innocuous – Alex is a 42 year old Caucasian female who is very active in the Catholic church. She has recently married and has a one year old son. Two of her recent wall posts read, "Going out to happy hour for the fourth night in a row! Can’t stop, won’t stop!" and "Please pray for my mother as she recovers from her most recent bout with cancer." Eventually, your organization decides to go in another direction and Alex is not interviewed or hired for the job.

So again, what’s the worst that could happen?Continue Reading The Use of Social Media in Hiring Decisions: Tempting Fruit from a Poisonous Tree

This week, Philadelphia Mayor Michael Nutter signed the Fair Criminal Record Screening Standards Ordinance (the "Ordinance").  This “ban the box” legislation is designed to limit Philadelphia employers’ ability to request applicants’ criminal history information in the initial steps of the hiring process. 

  • Who is Covered?  The Ordinance covers any person, corporation, company, labor organization

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