Pennsylvania Human Resources Manual: HR Compliance Library

By Jeffrey I. Pasek

A comprehensive HR guide to Pennsylvania and federal labor laws for employers, HR professionals and managers

• Authored by Cozen O'Connor attorneys; updated December 2015
• Written in plain English and easy to understand
• Contains easy-to-follow tips and techniques to manage employees and stay compliant

• Language: English
• Publisher: American Chamber of Commerce Resources
• Release date: Jan 9, 2017
• ISBN: 9781946262080

Jeffrey I. Pasek

Jeff advises management of compliance with a variety of workplace laws ranging from occupational safety and health, wage and hour, and affirmative action compliance. Called upon regularly as a course planner and speaker in continuing legal education programs, Jeff has served as a speaker on labor and employment law and on legal ethics for such groups as the Pennsylvania Bar Institute, the American Arbitration Association, the University of Pennsylvania Law School Center of Professionalism, and the American Bar Association (ABA) Labor and Employment Law Section. On behalf of the ABA Labor and Employment Section Committee on Equal Employment Opportunity Law, Jeff served as regional liaison and helped train lawyers and investigators from the Equal Employment Opportunity Commission. Jeff has written on a variety of legal topics and his articles have been published in French, Spanish, German and Chinese legal publications. He is the editor of the 2015 New York, New Jersey and Pennsylvania Human Resources Manuals, published by American Chamber of Commerce Resources, LLC in conjunction with the Business Council of New York State, the Pennsylvania Chamber of Business and Industry and the New Jersey Chamber of Commerce. He earned his undergraduate degree from the University of Pittsburgh in 1973 and his law degree from the University of Pennsylvania Law School in 1976. Jeff is active in the Pennsylvania Chamber of Business and Industry, where he has served as a member of the executive committee of the board of directors, and chairman of the Industrial Relations Committee, Government Affairs Committee and Candidate Selection Committee of the Chamber's PAC. He has been listed for several years in Chambers & Partners USA, has been selected by his peers as a Super Lawyer, and is listed in Best Lawyers in America. Jeff has been elected as a fellow in the College of Labor and Employment Lawyers.

Book preview

Pennsylvania Human

Resources Manual

A Guide to Pennsylvania and Federal 

Employment Laws and Regulations

Copyright © 2016 by American Chamber of Commerce Resources, LLC.  All rights reserved.  No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including (but not limited to) photocopy, recording, or any information storage and retrieval system, without the express written consent of American Chamber of Commerce Resources, LLC.

The information in this guide is being provided by the authors and publisher as a service to the business community.  Although every effort has been made to ensure the accuracy and completeness of this information, the authors and publisher of this publication cannot be responsible for any errors or omissions, or any agency’s interpretations, applications and changes of regulations described in this publication.

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered.  It is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service.  If legal advice or other expert assistance is required, the services of a competent person should be sought.

– from a Declaration of Principles jointly adopted by a committee of the American Bar Association and a Committee of Publishers and Associations.

Copyright © 2016 by American Chamber of Commerce Resources, LLC.

All rights reserved.  No part of this book may be reproduced or copied in any form without permission from the publisher, except where expressly permitted.

This publication presents a summary of information that is intended to be accurate and authoritative.  The publisher and the authors cannot be responsible for any errors, omissions, or changes in the material presented, nor for any administrative or adjudicative body’s interpretation or application of the legal premises upon which this material is based.

This publication is an attempt to summarize certain legal principles in the field of employment-related and labor laws and regulations, but should not be considered legal advice.  Varying factual circumstances may require special consideration.  Should you have any questions, you should contact legal counsel for advice related to specific topics and circumstances.

First edition. 

This publication is available from:

American Chamber of Commerce Resources, LLC

5 South Wabash Ave., Suite 1405A

Chicago, IL 60603

[phone]

www.hrsimple.com

Price:  For information on ordering, including quantity discounts and distribution arrangements, contact American Chamber of Commerce Resources at [phone].

This book, and the entire Human Resources Library, is dedicated to Dick Apland, 

who spoke his piece, shared a piece and was at peace.  Thanks Dad.

Editor’s foreword

The Greek philosopher Heraclitus is reported to have observed, You could not step twice into the same river; for other waters are ever flowing on to you.  He could well have been a human resources professional; for the laws applicable to the workplace are forever in a state of flux.  New laws, amendments to old laws, new and revised regulations, and a continuing string of decisions from federal and state courts and administrative agencies constantly force Pennsylvania employers to re-evaluate their policies.  The only certainty is that more changes are sure to come.  Managing in these times requires every employer and human resources professional to have a practical and comprehensive legal reference as a guide. 

This book is intended to serve as such a reference.  It affords an overview of many labor and employment laws that impact the Pennsylvania workplace.  Of course, no text can precisely contemplate all of the legal consequences that should be considered by a particular employer, and these pages are no substitute for consulting your legal counsel in evaluating the effect of the law upon a particular issue.  We hope, however, that this reference will be your first step in considering most any legal issue important in the employment arena and that it will prompt you to raise questions that might not otherwise have occurred to you.  

This text is a collaborative effort; and I wish to thank the following attorneys from the Cozen O’Connor law firm for their substantial contributions as contributing authors of this manual:   Jeffrey Braff, L. Stephen Bowers, Jason Cabrera, Jonathan Cavalier, Jay Dorsch, Kathleen Drapeau, Gregory Fliszar, Debra Friedman, Jessica Hurst, Kimya S.P. Johnson, Sarah Kelly, Raymond Kresge, Katherine Layman,  Tiffani McDonough, Emily Miller, Feyi Obafemi, Julie Pacaro, Jennifer Queliz, Carrie Rosen, Michael Schmidt, Marcela Stras, George Voegele, David Walton, Anita Weinstein and Victoria Zellers for the invaluable expertise and advice they provided as this manual was drafted and revised.  Special thanks to Kia Rhym and Cindy Corcoran for their assistance with the manuscript.  Thanks also to Alex Shapardanis of American Chamber of Commerce Resources for her expert and patient assistance and Tim Hurley for his review and eye for detail.

Sincerely,

Jeffrey I. Pasek 

Cozen O’Connor

1680 Market Street, 28th Floor

Philadelphia, PA 19103

Phone:  [phone]

Fax:  [phone]

www.cozen.com

[e-mail]

A first generation firm established in 1970, Cozen O’Connor is a nationally recognized law firm with over 600 attorneys in 23 offices in the U.S., U.K. and Canada. Ranked among the top law firms in the United States, Cozen O’Connor has gained a national reputation for quality representation of clients in business and litigation matters. Our attorneys handle the most challenging matters for a diverse roster of clients that spans virtually every industry.

With the resources of a large law firm and the vigor of a first-generation business, Cozen O’Connor has become a recognized leader in the legal industry, with an excellent reputation for trial advocacy and a flourishing litigation practice. With more attorneys in the American College of Trial Lawyers than any other similarly sized firm, we can boast litigators who are distinguished among their peers, both for their trial advocacy skills and for their aggressive and innovative representation of clients in areas such as labor & employment, securities & financial services litigation, aviation, construction law, subrogation, coverage, trade secrets, white collar & complex criminal defense and products liability.

Our wide range of experience means that clients turn to us to succeed in high-stakes business matters. We are proud to boast an international roster of business clients who rely upon our guidance in the most complex areas of business law.

Though Cozen O’Connor has grown dramatically over the last few decades, one thing that will never change is our firm’s full-service approach to the law. We have the attorneys, the offices and the knowledge to offer our clients counseling, advice and trial advocacy across a broad range of practices.

Mission and Core Values

Built on a foundation of uncompromising effort, integrity and work product, Cozen O’Connor embraces a culture that is entrepreneurial in spirit, cohesive in operation, and familial at heart.

We continually reinforce our reputation for excellent service through the effective representation of our clients, providing an enriching and rewarding work environment for our employees, and an unyielding commitment to our profession and our community.

By embodying and inspiring our core values of integrity, excellence, teamwork, community service, and collegiality, we are certain to ensure Cozen O’Connor’s continued success and growth.  

To learn more about the firm, visit www.cozen.com.

About the editor

Jeffrey I. Pasek is a Member of Cozen O’Connor and a past chair of the firm’s Labor & Employment Practice Group. He has a national practice representing employers concerning the entire field of labor and 

 employment issues, from collective bargaining to employment-related litigation – with particular emphasis in the areas of employment discrimination and non-competition agreements.

Jeff has extensive experience in advising clients on how to avoid litigation and to better position themselves if claims are made.  He is frequently consulted when bet-the-company legal issues arise or to step in and take over a case on appeal.  Representing management in all facets of labor and employment law, Jeff has tried cases and argued appeals in the federal courts throughout the United States, including before the U.S. Supreme Court.

A graduate of the University of Pennsylvania Law School, Jeff has been admitted to the state bars in New York, New Jersey and Pennsylvania, in all the federal courts in those states and in various appellate courts throughout the United States.  He has actively practiced in Pennsylvania since 1976.

Jeff maintains the highest rating (AV) given by Martindale Hubble.  He has been named in The Best Lawyers in America, and rated as a Super Lawyer by his peers, and is listed in Chambers and Partners (USA) based upon the evaluations of clients.  He is an elected fellow of the College of Labor and Employment Lawyers.

A featured speaker before legal and business groups, Jeff has been cited as an authority by the media, including NPR Radio, the Wall Street Journal, USA Today and the National Law Journal.  He is the author of numerous articles.  His work has been translated into legal publications in French, Spanish, German and Chinese.

Jeff has served in leadership roles in a variety of business and nonprofit organizations, on a regional and national level.  He has been an active board member of the Pennsylvania Chamber of Business and Industry since 1988 and currently serves on its Executive Committee.

The Pennsylvania Chamber of Business and Industry is the largest broad-based business association in Pennsylvania. Thousands of members throughout the Commonwealth employ greater than 50 percent of Pennsylvania’s private workforce. Headquartered in Harrisburg, the PA Chamber serves as the frontline advocate for business on Capitol Hill by influencing the legislative, regulatory and judicial branches of state government. 

The Pennsylvania Chamber of Business and Industry is dedicated to helping its members understand and easily follow the complexities of state and federal workplace regulations. Services include conferences and publications on a wide variety of issues important to the business community. Our mission is to improve Pennsylvania’s business climate and increase the competitive advantage for PA Chamber members.

If you would like to know more about the Pennsylvania Chamber of Business and Industry, we welcome your call at [phone] or a visit to our website at www.pachamber.org.

Preface

This Pennsylvania Human Resources Manual was compiled specifically for employers doing business in Pennsylvania.  We are proud to have partnered with the authors at Cozen O’Connor, a law firm that has for many years been a proud member of the Chamber and a staunch supporter of our efforts to improve the business climate in Pennsylvania.  This manual is a product of the firm’s many years of experience, and provides you with access to the firm’s vast knowledge and expertise.  The authors have written an easytoread, easytouse, and readily understandable human resources manual.  We hope it will help you operate your business more efficiently and avoid the hidden pitfalls that lurk among the maze known as HR.

Targeted, timely and comprehensive, this manual is considered the cornerstone guide of the compliance library.  It covers more than twenty primary topics directly related to the employment process, from job descriptions through termination and beyond.  Each includes practical advice on what should be done, solid advice on how to do it and a complete explanation of why it is important.

This manual was not written as a response to employee-related problems, but to help you avoid them.  The guidelines and checklists will make that easier and the examples, FAQ’s and step–by-step instructions will give you the confidence to know that you are on solid ground.

Sincerely,

The Pennsylvania Chamber of Business and Industry

Chapter table of contents

Features of the HR Library 1

1. Snapshot – An HR audit 3

2. Compliance thresholds 5

3. Recruiting and hiring 7

4. Background checks 33

5. Immigration 47

6. Employee handbooks 59

7. Non-compete agreements and trade secrets 77

8. Wages and hours 87

9. Child labor 125

10. Performance evaluations 127

11. Independent contractors 133

12. Federal contractors 151

13. Privacy and technology in the workplace 169

14. Social media 186

15. Discrimination in employment 196

16. Workplace investigations 237

17. Disabilities and reasonable accommodation 249

18. Employee discipline 275

19. Termination 281

20. Plant closings and mass layoffs 295

21. Family and medical leave 303

22. Military leave 325

23. Safety in the workplace 343

24. Benefits 371

25. Workers’ compensation 381

26. Unemployment insurance 391

27. Healthcare continuation 417

28. HIPAA 425

29. Disaster planning 449

30. Relationships in the workplace 455

  31. Politics in the workplace 461

A. Recordkeeping requirements 465

B. Posting requirements 471

Index 479

Table of contents

Introduction

Features of the HR Library 1

Chapter 1

Snapshot – An HR audit 3

Chapter 2

Compliance thresholds 5

Chapter 3

Recruiting and hiring 7

How do employers recruit applicants? 7

What should a job advertisement include? 7

What should a job description include? 8

Why should employers use employment applications? 8

What can you ask? 8

What should you avoid asking? 9

How do interviews affect the hiring process? 10

Conducting the interview 10

Interview notes 11

Which questions can and can’t you ask applicants during the hiring process? 12

What is negligent hiring? 22

How do non-competition agreements impact hiring? 23

Can employers engage in pre-employment testing? 23

Medical examinations 23

Pre-offer 23

Post-offer 24

Applicant performance and aptitude testing 24

Scored tests 24

Duty to accommodate job applicants 25

Drug and alcohol testing 26

Lie detector tests 27

Fingerprinting 28

How can employers preserve their at will employment status? 28

Employment contracts 28

Offer letters 29

Oral promises 29

Are all employees required to verify their eligibility to work by filling out an I-9 Form? 29

E-Verify 30

How should employers report new hires? 30

Where to go for more information? 32

Chapter 4

Background checks 33

Why should employers conduct background checks? 33

Can employers conduct reference checks? 33

Can employers use social networking and other Internet sites for background checks? 34

Can employers conduct criminal record checks? 35

Can employers conduct driving record checks? 36

Can employers conduct credit checks? 36

Can employers request consumer reports from third-party agencies? 37

Investigative consumer reports 37

Penalties 38

Fair Credit Reporting Act – Job applicant disclosure and authorization 39

Fair Credit Reporting Act – Certificate of cimpliance 41

Fair Credit Reporting Act – Notice of intended adverse action 42

A summary of your rights under the Fair Credit Reporting Act 44

Chapter 5

Immigration 47

How do employers verify employment authorization? 47

What is the E-Verify system? 48

Must Pennsylvania employers use E-Verify? 48

What is a no match letter? 49

Are temporary visas available? 50

H-1B – Specialty Occupation (Professional) 51

Treaty NAFTA – Canadian and Mexican professionals 52

L-1A and L-1B – Intracompany transfers

of managers/executives or specialized knowledge personnel 52

E-1 and E-2 – Treaty trader/investor 53

H-2A and H-2B – Agricultural and other seasonal and temporary workers 54

H-3 – Trainees 54

F-1 – Academic students 54

J-1 – Exchange visitors 54

O – Extraordinary ability 55

P – Performing artists, athletes, and entertainers 55

How can an employee gain permanent residence? 55

Employment-based Category 1 56

Employment-based Category 2 56

Employment-based Category 3 56

Employment-based Categories 4 and 5 56

What changes should employers look for? 56

Chapter 6

Employee handbooks 59

Why should employers create employee handbooks? 59

What are the first steps in creating a handbook? 59

Depth of handbook and policies 60

Laws to review in drafting/revising policies 60

Tone of the handbook 61

To whom will the handbook apply 61

Which policies are necessary? 62

Introduction to the handbook/statement of at will employment 62

Disclaimer 62

Equal employment opportunity policy 63

Harassment policy 64

Family and medical leave policy 65

Standards of conduct policy 66

Acknowledgment form 66

Which policies are recommended? 67

Attendance and punctuality policy 67

Classification of employees policy 68

Confidentiality and trade secrets 68

Drug and alcohol policy 68

Employee benefit plans policy 69

Jury duty and subpoenaed witness duty policy 69

Exempt vs. non-exempt 69

Military leave 70

No solicitation – no distribution 70

Overtime policy 70

Limitations on mandatory overtime 70

Sick leave policy/personal leave policy 71

Vacation policy 72

Voting 72

Witness and other court-related leave 72

Workers’ compensation policy 72

Which policies are optional? 73

How should employers implement the handbook? 74

Binding the handbook 75

Presenting a new handbook 75

Acknowledgment forms 75

Review and revise 76

Chapter 7

Non-compete agreements and trade secrets 77

What are non-compete agreements and restrictive covenants? 77

Factors governing enforceability 78

Legitimate business interests vs. undue burden 78

Time and geographical limitations 79

Modification 80

Available remedies 80

Multi-state employers 80

How can employers protect their trade secrets? 81

Trade Secret protection under federal law 81

What does it mean to misappropriate a trade secret? 81

What remedies does DTSA provide for misappropriation of a trade secret? 82

The employers’ obligation to disclose whistleblower immunity 83

Trade Secret protection under Pennsylvania Law 83

Pennsylvania’s definition of a trade secret 84

Remedies available for misappropriation of trade secrets 84

Inevitable disclosure 85

How do non-compete agreements and trade secrets impact on the hiring process? 86

Chapter 8

Wages and hours 87

Who is covered? 87

Enterprise coverage 87

Hospitals and nursing homes 88

Public agencies 88

Educational institutions 88

Public utilities 88

Individual employee coverage 88

Postings for employers subject to the FLSA 88

Who is exempt from minimum wage or overtime requirements? 89

White-collar exemptions 90

Salary basis 90

Changes in the White-collar exemptions 90

Effect of deductions on salary basis 91

Effect of improper deductions from salary 92

Sample salary basis policy 94

Executive employee exemption 95

Administrative employee exemption 95

Professional employee exemption 96

Learned professionals 97

Creative professionals 98

Computer employee exemption 98

Outside sales employee exemption 98

Highly compensated employee exemption 98

Other exemptions 99

Total exemptions (minimum wage and overtime) 99

Partial exemptions (overtime) 99

Special rules for healthcare employers 100

Interns and volunteers 100

The unpaid intern test 101

Education or operations? 101

Workforce and supervision levels 102

Job expectations at the conclusion of the internship 102

When must wages be paid? 102

Who is covered? 102

Definition of wages 103

Obligations of the employer 103

Deductions from wages 103

Direct deposit of wages 104

Payroll cards 104

Enforcement and penalties 105

What time is compensable working time? 105

Rest periods 105

Meal periods 105

Breastfeeding 106

Waiting time while on duty 106

24-hour duty 106

On-call time 107

Travel time 107

All in one day 107

Out of town overnight 107

Commuting in company vehicle 107

Meetings, lectures, and courses 108

Uniform changing 108

Medical attention 108

Physical examinations 108

Civic and charitable work 109

Required security screening 109

Additional compensatory time issues for public employees 109

Volunteers 109

Compensatory time off 109

What are the recordkeeping requirements for wages and hours? 110

Information that must be maintained 110

Record retention (under the FLSA) 111

Pennsylvania recordkeeping requirements 111

Penalties 111

How should employers record hours worked? 112

Time clocks 112

What is the minimum wage employees must be paid? 112

Enforcement and penalties 113

Youth opportunity wage 113

Payment less than minimum wage with DOL certificate 114

How is overtime compensation calculated? 114

Rate of overtime pay 114

Exception for hospital and nursing home employees 115

Unauthorized overtime 116

Special plans 116

Two rates in one workweek 116

Approach #1 – weighted average approach 116

Approach #2 – rate of overtime job approach 116

Fixed salary for fluctuating hours 116

Belo contracts 117

Joint employment 117

Are employers required to provide meal and rest periods? 118

How are wage and hour laws enforced? 118

Collection of past-due wages 118

Civil remedies under the FLSA 118

Criminal penalties under the FLSA 118

Can you pay different rates to employees who do the same job? 119

Are there limits on mandatory overtime? 119

How can internal audits help employers avoid lawsuits? 120

Are there special wage and hour laws for government contractors? 121

New minimum wage for federal contractors 121

Walsh-Healey Public Contract Act 121

Davis-Bacon Act 121

Service Contract Act 121

Pennsylvania Prevailing Wage Act 122

New minimum wage for 122

Philadelphia contractors 122

What should employers do in the event of a lawsuit? 122

Where to go for more information? 123

Chapter 9

Child labor 125

Are there minimum ages for employment? 125

Are there restrictions on the hours minors can work? 125

Are certain jobs too hazardous for minors? 126

What are the posting requirements? 126

Chapter 10

Performance evaluations 127

Why are performance evaluations recommended? 127

How should supervisor training and instruction be conducted? 127

What is the scope and tone of evaluation? 128

How can employers ensure their performance evaluations are objective? 129

Should employees complete a self-assessment evaluation? 129

What are the keys to a meaningful evaluation? 129

Should employers require employees to sign an acknowledgment? 131

When should employers not evaluate? 132

Chapter 11

Independent contractors 133

Why should employers properly classify

their workers as employees and independent contractors? 133

How are independent contractors treated for tax laws? 134

IRS’s right-to-control test 134

IRS’s determination of employee status 137

IRS’s Voluntary Classification Settlement Program 138

Statutory employees 139

Statutory non-employees 139

Qualified real estate agent 139

Direct seller 140

Companion sitter 140

Safe-haven provisions 140

How are independent contractors treated for wages and hours? 141

Economic realities test 141

Joint employers under the FLSA 141

Horizontal joint employment 142

Vertical joint employment 142

How are independent contractors treated for benefits? 143

Common law agency test 143

How are independent contractors treated under employment discrimination laws? 144

Hybrid test 144

Section 1981 claims of racial discrimination 145

State law discrimination claims 145

How are independent contractors treated for union activity? 146

Joint employers under the NLRA 147

How are independent contractors treated under workers’ compensation? 147

How are independent contractors treated under unemployment compensation? 148

How are independent contractors treated in the construction industry? 149

What should an employer do to stay in compliance with the law? 150

Chapter 12

Federal contractors 151

What are the affirmative action and non-discrimination

obligations for federal contractors and subcontractors? 151

What is affirmative action? 151

What are the laws governing non-discrimination and affirmative action? 152

Coverage 152

Executive Order 11246 153

Section 503 154

VEVRAA 154

What obligations do federal contractors have? 156

What are a federal contractor’s affirmative action program obligations? 156

Executive Order 11246 affirmative action program requirements 156

Section 503 affirmative action program requirements 158

VEVRAA affirmative action program requirements 159

Are there any additional obligations for federal contractors? 161

Recordkeeping 161

Postings 161

Job advertisements and listings 162

Voluntary self-identification 163

Minimum wage 163

Promoting Pay Transparency 164

Paid Sick Leave for Federal Contractor Employees 165

Federal contractors required to report labor law violations 165

EEO-1 Reporting 166

VETS-4212 Form 167

Equal Employment 167

Opportunity clause in contracts 167

Enforcement 167

Remedies 167

Where to go for more information? 167

Chapter 13

Privacy and technology in the workplace 169

What laws impact employee monitoring and privacy? 170

Stored Communications Act 170

Exceptions 170

The Wiretap Act 171

Oral communications 171

Wire communications 171

Electronic communications 171

Interception 171

Exceptions 171

Personal phone calls 172

Wiretapping 172

Stored Communications Act (SCA) 173

Exceptions 173

USA PATRIOT Act 173

Other sources of privacy rights 174

Data breach disclosure 175

Special privacy protections for employee social security numbers 176

What constitutes an invasion of privacy? 176

Intrusion upon seclusion 177

Appropriation of likeness or name 177

Publicity given to private life 177

Publicity placing person in a false light 178

How can employers avoid creating privacy rights by contract? 178

What are the other types of monitoring? 179

Video surveillance 179

Workplace searches 179

E-mail monitoring 180

Searches by public employers 180

Searches by private employers 181

Investigation 181

Testing 182

What are some issues related to use of the Internet? 182

Videos 182

Endorsements 182

Discriminatory and harassing comments 183

Defamation 183

How should employers deal with employee privacy? 183

Chapter 14

Social media 186

What is the impact of social media on employment issues? 186

What are the limitations and duties employers have in using social media? 187

An employers’ duty not to make discriminatory employment decisions 187

At the hiring stage 188

At the employment stage 188

An employers’ duty not to make employment decisions

based on protected conduct under the National Labor Relations Act (NLRA) 189

An employers’ duty not to privacy rights of employees 190

An employers’ duty not to access electronic information without authorization 190

An employers’ duty not to make decisions based

on an employee’s report of a violation of law, statute, or other regulation 190

What are  limitations and duties that employees have in using social media? 191

An employee’s duty of loyalty 191

An employee’s duty to maintain confidentiality 191

An employee’s duty to preserve trade secrets 191

An employee’s duty not to harass,

retaliate, or discriminate against other employees 192

An employee’s duty to maintain a violence-free workplace 192

Limitations of the National Labor Relations Act 192

What are the best practices and policies

for use of social media in employment context? 192

Adopt written policies for employee

use of social networking and Internet pages 193

Adopt written policies for employee use of

employer-owned electronic devices and networks 193

Don’t forget text messaging 194

Follow best practices for your own use

of social media in employment decisions 194

Always be aware of the potential use of social

media and electronic communications in litigation 194

Where to go for more information? 195

Chapter 15

Discrimination in employment 196

What types of discrimination are illegal? 196

Who is covered under Title VII of the Civil Rights Act of 1964? 197

Disparate treatment 198

Proof of disparate treatment 198

Case based on circumstantial evidence 198

Case based on direct evidence 200

Mixed-motive cases 200

Avoiding discrimination 201

Disparate impact 202

Enforcement of Title VII 202

Remedies available under Title VII 203

Who is covered under the Pennsylvania Human Relations Act? 204

Enforcement and filing requirements 205

Remedies 205

Independent contractors 206

Local laws prohibiting discrimination 207

Philadelphia 207

Other local laws 208

What other remedies exist for racial discrimination? 208

Title VII vs. Section 1981 209

What is national origin discrimination? 209

Title VII 209

Immigration Reform and Control Act of 1986 (IRCA) 210

What is disability discrimination? 210

Americans with Disabilities Act 210

What is genetic information discrimination? 211

Genetic Information and 211

Nondiscrimination Act (GINA) 211

What is religion? 211

Definition of religion 211

Burden of proof 211

Extent of the duty to accommodate 212

What is sex-based discrimination? 212

Bona fide occupational qualification (BFOQ) 212

Factors to consider 213

What is sex-based compensation discrimination? 214

Equal Pay Act of 1963 (EPA) 214

Defenses 215

Enforcement 215

What is pregnancy discrimination? 215

Pregnancy Discrimination Act of 1978 (PDA) 215

What does the PDA cover? 215

Right to voluntary leave 215

Health insurance 216

Protection from hazardous work conditions 216

Philadelphia Fair Practice 216

Ordinance on accommodations for pregnancy-related conditions 216

What is sexual harassment? 216

Quid pro quo vs. hostile work environment 216

Quid pro quo harassment 217

Hostile work environment 217

Employer responsibility 218

Same-sex harassment 220

Discrimination based on sexual orientation 220

Discrimination based on gender identity and expression 221

Relationships in the workplace 221

Non-fraternization policies 221

Non-fraternization among supervisors and subordinates 222

Love contracts 223

Anti-harassment policies 224

Addressing relationships on a case-by-case basis 224

Prohibiting inappropriate workplace conduct 224

Potential drawbacks of love contracts or anti-fraternization policies 224

What is age discrimination? 225

Enforcement 225

Disparate treatment 225

Defenses to an age discrimination claim 226

Bona fide occupational qualification (BFOQ) 226

Bona fide seniority system 227

Employment benefit plan/OWBPA compliance 227

Reasonable factors other than age (RFOA) and good cause 227

Bona fide executives or high policymaking employees 228

Reduction in force (RIF) 228

Potential pitfalls 228

Waiver of ADEA rights 229

Tender back 229

What discrimination prohibitions apply to federal contractors? 230

Prohibition of discrimination on the

basis of sexual orientation and gender identity 230

Rules for veterans and individuals with disabilities 230

What is retaliation and is it legal? 233

Protected acts 233

Adverse employment action 234

Causation 235

Chapter 16

Workplace investigations 237

Why should employers investigate employee complaints? 237

Defense to charge of harassment/hostile environment 237

Limit liability for discrimination or quid pro quo sexual harassment 237

Limit damages 238

Limit claims relating to negligent retention 238

Create a less litigious workforce 238

Investigation is a good source of information about the complaint 238

How does an internal investigation work? 239

Determining whether a complaint has been made 239

Receiving a complaint 239

Identifying an investigator 242

Initial discussion with the alleged wrongdoer 243

Identifying witnesses and relevant documents 243

Take immediate, temporary steps to stop any wrongdoing 245

Preparing the investigation file and log 245

Surprises 246

Reaching a conclusion 247

Validity of the claim 247

Documentation 247

Closing the investigation 248

Chapter 17

Disabilities and reasonable accommodation 249

Is Pennsylvania law different from the ADA? 249

Who is covered? 250

How is disability defined? 251

Substantially limiting impairments 251

Major life activity 253

A record of such an impairment 254

Regarded as having such an impairment 254

Having a relationship or association with someone who has a known disability 255

Conditions that are not disabilities 255

How is discrimination defined? 256

The ADA 256

Under the ADA, who is considered a qualified individual? 257

What is a reasonable accommodation? 259

After a request 260

Taking adverse action 260

Verification of need for reasonable accommodation 260

Specific accommodations 261

Undue hardship 262

Direct threat to health and safety 263

Light- or restricted-duty positions 264

Leave 264

Documenting accommodation efforts 264

How do disabilities impact the hiring process? 265

Pre-offer Inquiries 265

Post-offer inquiries and medical examinations 265

Drug tests 266

What is genetic discrimination? 266

Definitions 267

What does GINA prohibit? 268

When is it legitimate to acquire genetic information? 268

Storage and disclosure of genetic information 269

What special rules apply to wellness programs? 270

Financial incentives for wellness programs? 270

Where should medical records be stored? 270

Are all health benefit plans that contain

disability based distinctions lawful under the ADA? 271

Step 1 271

Step 2 271

Is substance abuse a disability? 271

Can people with disabilities work in food handling positions? 272

Pennsylvania’s AIDS laws related to Commonwealth employees 272

Is pregnancy a disability? 273

What is the Job Accommodation Network? 273

Where to go for more information? 274

Chapter 18

Employee discipline 275

What kinds of discipline policies can an employer choose from? 275

Progressive discipline 276

Flexible discipline 276

How should employers document disciplinary actions? 277

Language of disciplinary notices 277

Verbal warnings 277

Written warnings 278

When should an employee be suspended or put on probation? 278

How does the disciplinary decision process work? 278

Conduct a preliminary investigation 278

Interview the employee 278

Interview all witnesses 279

Decision-making process 279

Communicating the discipline decision 279

Appeal process 279

Who should be involved in the decision to terminate? 280

Discipline vs. retaliation 280

Chapter 19

Termination 281

Can you terminate an employee for any reason? 281

Exceptions to employment-at will doctrine 282

Discharge on the basis of Title VII protected status 282

Pregnancy 283

Age discrimination 283

Disabilities 283

Family and medical leave 283

Union activity 284

Benefits 284

Military service 284

Lie-detector tests 284

Whistleblowers 284

Employment contracts 286

Implied contracts 286

Discrimination 287

Jury duty 287

Unemployment compensation 287

Witnesses 287

Workers’ compensation 287

Wage Payment and Collection Law 288

Whistleblower protection 288

Polygraph test 288

Public policy 288

What are the guidelines for terminating employees? 288

Establish and follow work policies/rules 289

Review and investigate the matter 289

Involve human resources/senior management 289

Confirm treatment of similarly situated employees 289

Third-party review 289

Evaluate the possibility of a discrimination claim or other lawsuit 290

Document to support the discharge 290

Communicating the decision to terminate 291

Should employers use separation agreements and employee releases? 293

Employee exit checklist 294

Chapter 20

Plant closings and mass layoffs 295

What is the Worker Adjustment and Retraining Notification Act (WARN Act)? 295

Covered employers 295

What triggers notice? 296

What does not trigger notice? 297

Special circumstances 297

Contents of the required WARN notice 298

Notice to unrepresented employees 298

Notice to state dislocated worker unit

chief/local official/union representative 298

Notice to represented employees 299

Enforcement 299

Does the City of Philadelphia have a special plant closing ordinance? 300

Coverage 300

Notification requirements 300

Enforcement 301

Where to go for more information? 302

Chapter 21

Family and medical leave 303

Can employees take time off if they or family

members have a medical condition that prohibits them from working? 303

Who is covered? 304

Private employers 304

Public employers 305

Eligible employees 305

What are the leave requirements under the FMLA? 306

Calculating the 12-month period 308

Intermittent leave and reduced leave schedule 308

Important definitions 310

Maintenance of group health plan benefits and other benefits 313

Reinstatement after leave 314

Exceptions 314

Employee notice requirements 315

Employer’s notice requirements 316

Designation of FMLA leave 316

Posting requirements 317

Recordkeeping requirements 318

Substitution of paid leave 318

Do employees need to provide medical certification to go on leave? 319

Who enforces FMLA leave requirements? 321

Can employees take leave as victims of domestic violence? 321

Notice and certification 322

Benefits during leave 322

Restoration of position 322

Enforcement 322

Posting requirements 323

What are the requirements for mandatory sick leave in Philadelphia? 323

Employer requirements 323

Covered employee requirements 324

Notice requirements 324

Chapter 22

Military leave 325

Are employees protected from adverse

employment actions when they are on military leave? 325

Which employees are covered? 325

USERRA 325

Pennsylvania law 326

Which employers are covered? 327

What requirements are there for taking military leave? 327

Employee obligations 327

What are the requirements for returning from military leave? 328

USERRA 328

Eligibility for reemployment 328

Exceptions to the obligation to reemploy 330

Position to which the employee is assigned upon return from duty 331

How are employees on leave compensated? 332

USERRA 332

Are employees on leave entitled to benefits? 333

Health insurance benefits 333

Continuation coverage 334

Special enrollment rights 335

Pension benefits 335

Employer/employee contributions 336

Plan loans 336

Other benefits 336

Benefits during military leave 337

Benefits upon return from leave 338

Family and medical leave 338

Severance benefits 339

Employee loans 339

Pennsylvania law 339

How are employees on military leave protected

from discrimination, termination and retaliation? 340

Discrimination under USERRA 340

Retaliation under USERRA 341

How are military leave requirements enforced? 341

Statute of limitations for filing claims under USERRA 342

Damages under USERRA 342

Is there a required poster for military leave? 342

Where to go for more information? 342

Chapter 23

Safety in the workplace 343

Who is covered? 343

Employers covered 343

Employees covered 343

Protected rights 344

Liability for hazards posed to other employers’ workers 344

What are the employer requirements to maintain a safe and healthy workplace? 345

General requirements 346

Recordkeeping 347

Reporting fatalities and severe injuries 347

Other recordkeeping and reporting requirements 349

Recordable injuries and illnesses 349

Effective Dates 350

Exposure to toxic materials 351

How does OSHA regulate safety? 353

Specific standards 353

OSHA poster 353

Employee injury and illness logs 353

Hazard communication 353

Lockout tagout 354

Permit-required confined spaces 354

Personal protective equipment 354

Respiratory protection 355

Bloodborne pathogens 355

Occupational noise exposure 355

Powered industrial trucks maintenance and training 356

Variances 356

Other implications of OSHA standards 356

How should employers prepare for OSHA inspections? 356

What triggers an inspection? 357

Site specific targeting 358

Anatomy of an inspection 358

What violations and penalties are employers subject to? 359

OSHA citations and penalties 359

Amount of penalty 361

Criminal penalties 361

Most frequently cited violations 362

Severe violators enforcement program 362

Corporate-wide settlement agreements 363

Contesting a citation and petitioning to modify an abatement deadline 364

Employer defenses 364

What other requirements apply? 366

The Pennsylvania Worker and 366

Community Right to Know Act 366

Responsibilities of OSHA-covered employers under the Right to Know Act 367

Smoking 367

State-run plans and out-of-state activities 368

States that follow federal OSHA 369

Where to go for more information? 369

Chapter 24

Benefits 371

What is an employee benefit plan? 371

Employee welfare benefit plan 372

Employee pension benefit plans 372

What does ERISA require? 373

Funding obligations 373

Disclosure obligations 373

Reporting obligations 374

Fiduciary duty 374

What rights does ERISA give employees? 374

What are employer requirements under ERISA? 374

How does healthcare reform affect benefits? 375

Plan changes already in effect 375

Plan years beginning on or after January 1, 2018 379

Plan years beginning on or after January 1, 2020 379

Do benefits apply to same-sex marriages? 379

Where to go for more information? 379

Chapter 25

Workers’ compensation 381

How does workers’ compensation work? 381

Who is covered? 381

Employers 381

Employees 382

What are an employer’s responsibilities? 383

What is the premium comprised of and how can it be decreased? 384

What types of injuries are covered? 385

When will benefits not be paid? 385

What types of benefits are employees entitled to? 385

When must wage loss benefits be paid? 387

When do wage loss benefits stop? 387

How is the employee’s medical care handled? 387

How does the claims process work? 388

Can employers take adverse action against

employees because of a workers’ compensation claim? 389

Where to go for more information? 389

Chapter 26

Unemployment insurance 391

How does unemployment insurance work? 391

What are the employer responsibilities under UC Law? 391

Employer registration 392

Coverage liability rules 392

What services are covered? 394

Covered services 394

Practical tips for multi-state employees 394

Localization of service test 395

Base of operations test 396

Place from which service is controlled test 397

Place of residence test 398

Excluded services 399

Independent contractors 399

Other services 400

What are the employer contribution rates? 401

Newly liable employer contribution rates 401

Standard rates 401

Calculated contribution rates 402

Reserve ratio factor 402

Benefit ratio factor 402

State adjustment factor 402

Surcharge adjustment 403

Additional contribution factor 403

Interest tax factor 403

Voluntary payments 404

Can employers have their payments reimbursed? 404

What information must employers report? 404

Employer’s report of employment and business changes (UC-2B) 404

Employer’s report for unemployment compensation (UC-2) 405

Employer’s report for unemployment compensation (UC-2A) 405

What are the employee eligibility requirements? 405

Financial eligibility 405

Non-financial eligibility 406

Voluntary quit 407

Compelling and necessitous cause 407

Health reasons 407

Transportation problems 407

Spouse following spouse 407

Leaving work due to personal reasons 407

To attend school 408

Due to unsuitable work 408

Job not the same as what was anticipated 408

Accepting temporary layoff 408

Discharge 408

Willful misconduct 408

Absenteeism and tardiness 409

Rule violations 409

Attitude 409

Damage to equipment or property 409

Unsatisfactory work performance 410

Drug and alcohol abuse 410

Maintaining eligibility 410

Other eligibility issues 411

Able and available 411

Self-employment 411

Corporate officers 412

How are benefits calculated? 412

How long can claimants collect benefits? 412

Social Security and pensions 413

How are claims filed? 413

Can employers appeal claim decision? 414

Appeal to the referee 414

Appeal to the Board of Review 414

Appeal to the Commonwealth Court 414

Collateral estoppel 415

How can employers fight claims and control costs? 415

Where to go for more information? 415

Chapter 27

Healthcare continuation 417

What is COBRA and how do employers comply? 417

Coverage 417

Employees and dependents eligible for COBRA coverage 418

Qualifying events 418

FMLA leave 419

COBRA coverage periods 419

Paying for COBRA coverage 420

Termination of COBRA coverage 420

COBRA notices 420

Penalties 422

Who is covered by Pennsylvania’s mini COBRA law? 422

Are employees entitled to continuation of health insurance benefits under USERRA? 423

Where to go for more information? 424

Chapter 28

HIPAA 425

What is HIPAA? 425

What sort of protections does HIPAA give employees? 426

Limitations on imposing pre-existing condition exclusions 426

Notice requirements 427

Creditable coverage 428

Calculation of periods of creditable coverage 428

Certificates of creditable coverage 428

Form and content of the certificate 429

Rules related to certification 429

Demonstrating creditable coverage through other means 430

Notification of pre-existing condition exclusion periods 430

Special enrollment periods 430

Individuals losing other coverage 431

Acquiring new dependents 431

Notice of special enrollment rights 432

Sample Notice of Special Enrollment Rights 432

Eligibility for coverage 432

Premiums 433

Penalties for non-compliance 433

Amount of the tax 433

Limitations on amount of the tax 433

Does health information need to be kept private? 434

Limits on use of personal medical information 434

Access to medical records 435

Notice of privacy practices 435

Confidential communications 435

Public responsibilities 435

Complaints 436

Written privacy procedures 436

Employee training and privacy officer 436

Adequate separation 437

Breach notification 437

Documentation 437

Exemption from the privacy rule requirements 438

Penalties 438

In what ways are employers required to maintain the security of health information? 439

Requirements of security regulations and administrative safeguards 439

Physical safeguards 440

Technical safeguards 441

What are business associates? 442

How must an employer document its health plans? 443

What are the penalties for noncompliance? 443

HIPAA enforcement 444

Where to go for more information? 445

Certificate of group health plan coverage 446

Statement of HIPAA Portability Rights 447

Chapter 29

Disaster planning 449

What role does human resources play in disaster planning? 449

How should a company handle an interruption of normal work routine? 449

What are a union’s obligations? 450

How should a company meet employee needs in the case of a disaster? 451

Wages 451

Benefits 451

Safety 451

What information should a company have in case of a disaster? 451

What should an employer do in the case

of a workplace death or employee hospitalization? 452

How can a company protect their trade secrets? 452

How should a company implement preventative planning? 453

Where to go for more information? 454

Chapter 30

Relationships in the workplace 455

What are non-fraternization policies? 455

Should fraternization be allowed among supervisors and subordinates? 456

What is a love contract? 457

What should be in an anti-harassment policy? 458

How should romances be addressed? 458

What conduct should be prohibited? 458

How should policies be enforced? 459

What are the drawbacks of love contracts or anti-fraternization policies? 459

Chapter 31

Politics in the workplace 461

Can an employer limit political expression by employees in the workplace? 461

Can an employer limit political activities away from work? 461

Can an employer prevent political campaigning at work? 462

Non-solicitation policies 462

Political dress, including badges and buttons 462

Use of an employer’s company equipment 463

Appendix A

Recordkeeping requirements 465

FLSA – Fair Labor Standards Act 465

FMLA – Family and Medical Leave Act 465

Title VII of the 1964 Civil Rights Act 466

ADA – Americans with Disabilities Act 466

ADEA – Age Discrimination in Employment Act 467

EPA – Equal Pay Act 467

FMLA –  Family and Medical Leave Act 468

OSHA – Occupational Safety and Health Act 469

IRCA – Immigration Reform and Control Act of 1986 469

Appendix B

Posting requirements 471

Federal posting requirements 471

Commonwealth of Pennsylvania posting requirements 477

NLRB poster 478

Index 479

Introduction

Features of the HR Library

Employment laws are modified every year and staying up to date on all the changes can be a full-time job – and is, for human resources professionals and employers.  For the experienced attorneys who write our books, this manual is a way to help businesses stay on the right side of employment law, minimize the risk of litigation, and avoid costly penalties.  This reference has been organized to fit your needs and outfitted with numerous features to help you make sure your policies and business practices are in compliance with the law.

• The snapshot and compliance threshold

To start the book off with a bang, we’ve gathered a list of questions (provided in Chapter 1) that will create a snapshot for you to use in determining whether or not you are complying with fundamental employment laws.  If you do not know an answer to one of the questions, a page reference is provided so you can quickly find what you need to know and what you need to do.  Chapter 2 is formatted to help you determine what you are responsible for depending on the number of employees you have and lists prevalent employment laws, their compliance thresholds, and where they are discussed in this manual.

• The visual aids

To make this book a more functional resource, we’ve displayed lots of the subject matter in lists, tables, and charts.  Don’t miss: 

 the Is an injury recordable? flow chart on page 341

 the table of Which questions you are proper to ask applicants during the hiring process? in an interview on page 12.  

And look out for: 

 sample forms and policies on subjects ranging from background checks (page 39) to health insurance portability (page 420)

• The content

While we’ve worked to make this book as effective as possible – providing efficient ways to find specific content without expecting busy employers to sit down and read the text straight through – we want every chapter to be readable and uncomplicated, letting you know what to do, how to do it, and a little bit of why.  In case you don’t have time to read the whole book, here are some current hot topics we’d like to highlight:

 The salary thresholds for emeptions for overtime under the Fair Labor Standards Act were raised effective December 1, 2016. To learn more about the Fair Labor Standards Act’s mandates for business, check out Chapter 8, Wages and Hours.  

 An important new federal law, the Defense of Trade Secrets Act now provides a uniform federal remedy to employers in addition to their existing remedies under state law when employees attempt to steal trade secrets for the benefit of a competitor.  To learn more about the DTSA, check out Chapter 7, Non-compete agreements and trade secrets. 

 The Equal Employment Opportunity Commission (EEOC) has been aggressive in its attempts to stop the widespread use of criminal background checks in employment by introducing new guidance, policies, and even by taking employers to court to enforce its positions. To learn how this affects your business, check out Chapter 4, Background checks.

• The connections 

As there is a lot of information in this book that requires interaction with different professional parties, contact information – including websites, e-mail addresses, phone numbers, and fax numbers for many government departments and local organizations – is spread throughout the book.  In-text mentions of external sources are followed by links to make it easier for you to apply our text to your own business.  To continue the dialogue, look out for sections entitled, Where should you go for more information?, as on page 262.  Think of it as the most detailed address book you’ve ever owned!

• The appendices 

We’ve tried to make every page of this manual useful, not just the beginning; so don’t dismiss the appendices.  At the end of the book there are a number of valuable resources for your use.  The topics include recordkeeping and posting requirements, both complete with federal and state constraints.  Find the exact information you need, compiled and at hand, ready for your use.

• HRsimple.com

This resource also comes with a yearlong subscription to the Pennsylvania Human Resources Manual on hrsimple.com – a website version of the text that provides the same great material in an online format. HRsimple allows you to access the information anywhere there is an Internet connection. It’s the HR Library you trust, for the digital era you live in. For more information, please contact us at [phone].

So relax – from hiring to firing, this manual will be your personal bookshelf HR manager.

01

Chapter

01

Chapter

The following list of questions will provide a snapshot for you to use in determining whether or not you are complying with fundamental employment laws and regulations. You should know the answer to every one of these questions. Although a No answer does not necessarily mean you are in violation of any laws or regulations, you should understand why the answer is No. The page number is provided for quick reference.

Page 

Yes No reference

______________________________________________________________________________

  Have you posted all required employee notices in conspicuous

places (EEO, employee rights, minimum wage, unemployment 

compensation, workers’ compensation, child labor, etc.)? 447

  Do you keep all medical records

separate from other personnel files? 259

  Do you have all new hires complete I-9 forms and do you

keep the I-9 Forms separate from supporting documentation? 29

  Do you retain employment

records for as long as you should? 441

  Do you know what questions you can’t

ask job applicants, and which ones you should? 12

  Do you check all job and personal references before hiring,

and obtain required authorizations for any background checks? 33

  Are your employees properly designated as exempt or non-exempt under

the Fair Labor Standards Act (FLSA) and the new salary test levels? 87

  Does your business properly utilize the services of unpaid interns? 100

  Do you have an employee handbook? Is it regularly updated and do you include a clear statement that employment is at will and not guaranteed? 59

  Do you pay required overtime compensation to non- 

exempt employees, which can include salaried employees? 87

Page 

Yes No reference

______________________________________________________________________________

  Do you have a written unlawful harassment

policy, and are your employees aware of it? 64

  Do you have a procedure for investigating

employee complaints about harassment? 227

  Do you test for drugs or alcohol in compliance

with both Pennsylvania and federal laws? 25

  Do you have a progressive discipline policy, and do

your supervisors understand it and apply it consistently? 263

  Are you aware of federal requirements regarding

the continuation of group healthcare coverage? 405

  Does your company need an affirmative action policy? 190

  Do you have a plan dealing with workplace injuries? 333

  Do you know if your employees are

eligible for family and medical leave? 292

  Does your company have a plan for complying with

WARN in the case of a mass layoff or plant closing? 283

  Does your company have a plan for coping with a

natural or man-made disaster that interrupts operations? 435

  Do you know the procedure for

reinstating a veteran after military leave? 302

  Do you provide a panel of physicians for initial treatment of

employee injuries as permitted by the workers’ compensation law? 375

  Does your company have an electronic mail,

Internet, and other communications policy? 185

02

Chapter

02

Chapter

The following list does not include all federal and Pennsylvania employment laws, but it does provide a snapshot view of how many employees an employer must have to be covered by these most significant laws. Remember, however, that coverage for some of the laws also depends on requirements other than the number of employees. If the number places your business on the borderline, consult further for an explanation of those other requirements.

Minimum employees

Law

Notes

#

Chapter

1

Employee Polygraph Protection Act 

Very

restricted

use

13

Privacy and technology in the workplace

1

Fair Labor Standards Act – including child labor

8

Wages 

and hours

1

Federal new hire reporting requirements

The law does not provide minimum number of employees.

3

Recruiting 

and hiring

1

Immigration Reform and Control Act

3

Recruiting 

and hiring

1

Unemployment Compensation Law 

26

Unemployment insurance

1

Workers’ Compensation Law

25

Workers’ compensation

1

Family and Medical Leave Act 

Public employer

21

Family and medical leave

2

Health Insurance Portability and Accountability Act 

28

HIPAA

2

Pennsylvania

Mini-COBRA

Group

health plan participants

24

Benefits

4

Pennsylvania Human

Relations Act

15

Discrimination

in employment

10

Philadelphia

Paid Sick Leave Ordinance

21

Family and medical leave

15

Title VII of the Civil Rights Act

of 1964

15

Discrimination

in employment

15

Americans with Disabilities Act

15

Discrimination

in employment

20

Age Discrimination in Employment Act

15

Discrimination

in employment

20

Consolidated Omnibus Budget Reconciliation

Act of 1985

Group

health plan participants

24

Benefits

50

Affordable Care Act

50 full-time equivalent employees

24

Benefits

50

Family and Medical Leave Act 

Private employer

21

Family and medical leave

100

Worker Adjustment

and Retraining Notification Act

20

Plant closings 

and mass layoffs

03

Chapter

03

Chapter

How do employers recruit applicants?

There are a number of methods available for an employer to recruit job applicants in Pennsylvania, including the following: 

• internal job postings

• employee referral programs

• advertisements

• postings on the Internet and through social media sites and mobile apps

• the use of professional employment and temporary employment agencies

• the use of the state job service program

• recruitment programs at educational institutions and community organizations.

What should a job advertisement include?

Advertisements designed to attract candidates, whether designed for traditional media, the Internet or mobile apps, should be carefully drafted to avoid any indication of discrimination.  Advertisements that are carelessly drafted may give rise to claims of discrimination, even unintentionally, if they refer to a protected class such as race, sex, religion, national origin, age, or disability.  For instance, an advertisement seeking recent college graduates or young and energetic people likely would be found to have a discriminatory effect against older persons.  Similarly, language in an advertisement that specifies a physical ability required for the job (even something as seemingly innocent as a clear speaking voice or language proficiency) may be found to discriminate against disabled persons or particular ethnic minorities.  When using the Internet to advertise, consideration should be given to the possible application of laws in another state that might limit the contents of what can be included in an ad.

Therefore, when preparing an advertisement, an employer should clearly and concisely describe the position and any qualifications for the position without making reference to attributes that are usually associated with a protected class (race, gender, etc.).  It is also a good idea to include a statement in the advertisement that the employer is an Equal Opportunity Employer.  

What should a job description include?

Once the need for new employees is established, one of the most important aspects of screening and selecting a new employee is to develop a job description that clearly defines the essential requirements and functions of the position.  This may be of particular importance in cases involving applicants who have disabilities because a job description which predates the applicant’s application is evidence that the job requirement is not a pretext to exclude the particular disabled individual.  For this reason, it is also useful to include a description of the working conditions, especially if they involve exposure to ambient temperatures or other conditions that might serve to