How can Small Businesses Avoid Lawsuits?

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businesses

One of the most essential ways to keep a small business running well is to do everything possible to limit risk. Neglecting to avoid risk could lead to business tort litigation. It could only take one lawsuit to put a small company out of business and leave the owner struggling with significant debt. Understanding the ways to prevent lawsuits is a must for every small business owner.

Separate From the Business

Business owners can protect their interests by separating themselves from their companies, which can be accomplished in several ways. Some individuals establish their businesses as sole proprietorships, but that is not always the right answer. If the company is sued, the owner’s personal assets could still be at risk in a lawsuit. Incorporating the business might be better. That way, the owner’s personal wealth and assets are shielded.

Another option is to run the business through a trust. When a trust is set up properly, it can protect the owner’s assets if the business is sued. A business owner can set up a trust with the help from a knowledgeable lawyer. Small business owners can benefit by having experienced legal guidance.

Have Clear Policies and Procedures

Small business owners need to create clear policies and procedures for employees. Employment laws change often, so staying informed and having an up-to-date employee handbook is the way to go. Workers must be instructed on how to handle certain situations, like alleged workplace discrimination and workplace injuries. The business owner should be well-prepared.

All employment contracts should be drafted properly, and a qualified lawyer can help. Small business owners may not be versed in the correct legal terminology and could put themselves at risk by using faulty contracts. Having a friend, family member, or business associate help write an important contract can lead to serious problems down the road.

Accurate recordkeeping is another key preventative measure. This includes having important documents prepared through a lawyer’s guidance, with times, dates, and signatures on agreements. All of the details in company communications should be recorded carefully and checked for accuracy. Emails, texts, phone calls, and transactions between companies and their employees and customers should also be documented. When business is brisk, some small business may try to cut corners with their recordkeeping, which is a mistake.

Computer Security

Since most businesses work extensively on computers, their systems need to be safeguarded. Losing important files could be devastating and could prevent a company from operating. Not being able to produce important evidence could be damaging to a legal case as well. A failure to operate might prevent the small business from living up to some of their contractual obligations or agreements.

Business computer systems should be backed up using the latest technologies. Files should be backed up monthly, weekly, and daily. Virus protection is another important concern since viruses can wipe out computer systems and steal files. Security software and current anti-virus measures should be used. Important hard copies of documents should be duplicated as well.

Appropriately Address Customer Issues

Customers will be dissatisfied from time to time, and they need to be handled with care. Angry customers who feel as though they have been seriously mistreated may attempt to escalate their claims. Small business owners must make every effort to be ethical in their dealings and to provide excellent customer service. When customers believe that they have been treated fairly, they are less likely to sue when something goes awry. Consistent good service is one of the best ways to avoid lawsuits.

Mistakes will happen, and the owner and staff should be trained on how to handle these situations in advance. Communicating openly and presenting options are both ways to calm customers down. Additionally, everything should be thoroughly documented. If the customer and business owner comes to an agreement, it should be written, dated, signed, and recorded.

Have an Insurance Policy

Even when small business owners are incorporated or establish trusts, insurance is still a necessity. A liability policy could protect the company if a customer or employee alleges that they were hurt in the place of business. When the business has a formal board of directors, these individuals may also want their own liability insurance policies to protect their personal assets.

Liability protection can also be built into contracts. For example, a clause could specify that if an uncontrollable event made it impossible for the company to fulfill their end of a contract, the business owner would not be liable for incomplete work. These insurance options can minimize the chance of being sued.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Small Business Owners Protect Their Interests

Taking precautions can minimize the chance of being sued. Having legal representation in your corner is one of the best ways to protect your small business. If you need help with business matters, speak to one of our Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. For an initial consultation, complete our online form or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Can Schools Require Vaccinations?

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Schools Vaccinations

With nationwide Coronavirus (COVID-19) vaccinations currently underway, schools might be adjusting their operations. However, what happens when schools insist that everyone needs to be vaccinated before they enter the buildings? Parents and teachers are looking for straightforward answers, but much will depend on where they live.

States have different vaccination requirements for their schools, and some immunizations are already mandated, such as measles, mumps, rubella, and polio. However, some experts believe that a majority of the states will require that children and staff get vaccinated. Exemptions also come into play in some states for religious, philosophical, and personal reasons.

In some states, teachers and school staff were placed on priority lists and many have already been vaccinated. Some employees may be able to obtain exemptions if mandatory vaccination requirements are enforced. The employer would possibly need to make a reasonable accommodation for the employee. Along the same lines, Title VII of the Civil Rights Act of 1964 could exempt teachers from getting vaccinated because of sincerely-held religious beliefs, observances, or practices.

Should Schools Require COVID-19 Vaccinations?

School administrators may feel that having unvaccinated students and staff members in their buildings imposes undue hardships. The Equal Employment Opportunity Commission (EEOC) previously noted that COVID-19 presents a direct threat to the health and safety of people. This could increase the likelihood of schools mandating COVID-19 vaccinations for staff and students, but more state and federal guidance is needed.

While employers and schools may be able to require the vaccine, it is not recommended, as it can open the institutions up for complex litigation. It is recommended that employers tread carefully regarding mandated vaccinations among employees.

Reopening Schools

A moan goal is to create a more effective, centralized strategy for reopening schools. For now, states and school districts may want to communicate openly with their employees and students to see how well the responses to COVID-19 related safety measures have been. Demographics, risk factors, and concerns about the vaccine could all be explored in depth before further measures are taken.

Additionally, many people are still unsure if they wanted to get vaccinated, and this could foreshadow what happens in the coming months. Also, COVID-19 vaccine-related lawsuits may be possible when employers mandate that their employees show proof that they were vaccinated in order to be permitted to return to work.

Employers can do their part to encourage employees to get vaccinated and may even be able to assist with distribution. Communicating important facts about the vaccine to employees and sharing information from the Centers for Disease Control and Prevention (CDC) can help. Some employees can also tie in the vaccine into employee wellness programs. Incentives could also be offered, which could drive up the vaccination rates.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help School Administrators, Staff, and Families Navigate COVID-19 Vaccination Requirements

Now that many people are receiving vaccinations, many are left wondering if businesses and schools will require vaccinations. If you have concerns about a COVID-19 requirement, a Philadelphia employment lawyer at Sidkoff, Pincus & Green P.C. can help. Employers should tread carefully when requiring vaccinations, and employees should understand their rights as well. For a confidential, initial consultation, complete our online form or call us at 215-574-0600. We are conveniently located in Philadelphia, and we serve clients throughout Pennsylvania and New Jersey.

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Scope Narrowed on Computer Fraud and Abuse Act

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CFAA Violations.

The U.S. Supreme Court took much of the sting out of the 1986 U.S. Computer Fraud and Abuse Act (CFAA) by clearly ruling on what exceeds authorized access to proprietary computer systems. A divided court on June 3, 2021 ruled in favor of the defendant in Van Buren v. United States by ruling that accessing authorized areas of a proprietary computer system or database does not violate the CFAA.

The 11th Circuit previously upheld a lower federal court’s ruling of a CFAA violation against the defendant, who was a police sergeant at the time of the alleged crime. The defendant allegedly accepted $5,000 to obtain and share information on another person via a law enforcement database. The defendant had full access to the information due to their law enforcement duties as a sergeant.

The employer filed a CFAA complaint against the defendant and argued that they were not authorized to look up the information and share it. A lower court found the defendant guilty, and the 11th Circuit upheld the ruling upon appeal.

Organizations like the Electronic Frontier Foundation filed briefs supporting the U.S. Supreme Court accepting the case. The Electronic Frontier Foundation argued the CFAA is vague and overly broad, which enables abuse of the exceeds authorized access prohibition. It says virtually anyone who goes online could become a criminal by unknowingly violating terms of service for a website, database, or other informational sources.

Exceeds Authorized Access Clearly Defined

The Supreme Court agreed to hear the case in order to clarify just what qualifies as exceeds authorized access. It clearly determined that authorized access generally refers to anything the authorized person could access any file or document for virtually any purpose. If the file, folder, database, or other information source is open and available to the worker, they are authorized to access it.

A worker or other person only can exceed authorized access by going where they are not supposed to go. Any file, document, database, or other information that is off-limits to the worker and cannot normally be accessed. Doing so would be a clear case of exceeding authorized access and would be a violation of the CFAA, the Court ruled.

CFAA violations could carry very severe financial penalties and imprisonment of up to five years for each count. Repeat violations are punishable by up to 10 years per violation, and extreme cases that might involve criminal computer system hacking and similar bad acts could be punished by up to life in prison. For help with complex litigation regarding CFAA violations, an individual should speak to a lawyer.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients Understand CFAA Violations

If you accessed information that is available to you through a normal part of your job and with full access privileges in place, the Supreme Court ruling says that is not a CFAA violation. You would have to access information that normally is off-limits to actually exceed the authorized limits of your informational access. If you are accused of a CFAA violation, a Philadelphia employment lawyer at Sidkoff, Pincus & Green P.C. can help devise the best possible defense. Contact us online or call us 215-574-0600 for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Should I be Paid for My Summer Internship?

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Internships are almost always a win-win. Employers get needed help and potential future hires, while the intern gets valuable work experience that looks great on a resume. It may not be common knowledge that legal guidelines stipulate whether an internship must be paid or unpaid, but there are. Therefore, anyone considering an internship should know if their position qualifies for a paycheck.

After years of study of internships, the U.S. Department of Labor realized that many employers take advantage of interns by not paying them. While interns often volunteer to work for free, they should not do this if they legally should be paid. According to guidelines under the federal Fair Labor Standards Act (FLSA):

  • Interns in a qualifying paid position must earn at least the federal minimum wage for internships in the for-profit or private sector.
  • They also must be paid overtime.

What Criteria Do Interns Have to Meet to be Paid?

The FLSA specifies criteria to determine whether the intern is a trainee who does not need to be paid or an employee that must be paid at least the federal minimum wage:

  • Intern does not replace regular employees but works under close supervision of existing staff.
  • Employer and intern both clearly understand there is no expectation of compensation during or at the end of the internship.
  • Internship is similar to training that would be given in an educational environment despite occurring in the employer’s facility.
  • Internship accommodates the intern’s schedule and commitments, such as school attendance.
  • Internship benefits the intern and their formal education; it ties in coursework or provides academic credit.
  • Internship is limited to the actual time the intern is provided beneficial learning.

If the internship meets all the criteria above, the FLSA does not consider it to be an employment relationship. Employers are then exempt from paying the minimum wage and overtime. While the criteria are open to interpretation, employers who do not want to pay their interns must provide skills and opportunities that truly benefit them.

Moral and Ethical Considerations

While the law provides legal guidelines regarding payment for internships, there are moral and ethical considerations too. Many studies show that paid interns are loyal and happy interns. They are often more enthusiastic, often hoping to be hired. Interns will also feel valuable if they are earning a paycheck and be more willing to contribute. Additionally, paying is good for the employer as well; they can set the intern’s schedule and the number of work hours.

Ethical considerations come into play as well. Employers must consider the intern’s responsibilities. Are they getting an authentic educational experience with a valuable mentor-mentee relationship, or are they making copies and getting coffee? If the intern’s work contributes in any way to the company’s successful operations, they should be paid.

An employer who expects an intern to work many hours for free or does not give them a valuable educational experience should not hire the intern to begin with. Interns should not be considered free labor. Instead, they should be regarded as contributing members of a work team that deserve to be paid for their time and effort.

The FLSA guidelines regarding internships are not easily enforced, and some employers are not even aware of them. Many interns are willing to work for free. However, when they do, the employer has the moral responsibility to give them a significant learning and skill-building experience that will benefit them in their future careers.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Protect Interns’ Rights to Fair Pay

Interns and employees have rights under the law. Wage and hour issues are common among those who contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We have helped numerous employees get fair and just treatment in the workplace. For an initial consultation about your case, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

What are the Differences Between Non-Compete and Non-Solicitation Agreements?

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Differences Between Non-Compete and Non-Solicitation Agreements

Every business owner, executive, manager, and employee has heard of or even signed a non-solicitation or non-compete agreement. These documents are common pieces of employment agreements and offer letters. Understanding the differences between these agreements and their enforceability makes achieving business goals easier.

Both of these agreements are restrictive covenants. That means each party agrees to be restricted by the terms contained in the agreement or clauses of the contract. However, just because the parties agree, does not mean a court will automatically uphold the restrictions in the document.

Non-Compete Agreements

As a business, a non-compete is often the more difficult of the two restrictive covenants to enforce. This is the case because the business has a high burden to prove unfair competition. To enforce a non-compete, the company must show that a former employee has confidential information about the business interests, and the company has restricted the employee from working for a competitor for a reasonable period of time and in a reasonable geographic area. Absent this proof by the company, enforcing a non-compete presents difficulty. Ultimately, it is up to a court to decide the reasonableness of the restrictions placed on the former employee.

That does not mean all hope is lost. In many cases, a court will modify the non-compete to be less restrictive to the former employee while still protecting legitimate business interests. An important point to note about non-compete agreements and clauses is that they should only apply to employees. Any business that attempts to use a non-compete with an independent contractor may face an audit and be subject to fines and penalties from the government for employee misclassification.

Non-Solicitation Agreements

A non-solicitation agreement restricts a former employee in a different way. They cannot solicit any existing, prospective, and sometimes former clients to come work with them at their new company. While easier to enforce than a non-compete, there are still challenges.

The biggest of these enforcement challenges is that the business must prove that a former employee solicited an existing, prospective, or former client to leave. Businesses are not often aware of the specific reason why a client leaves, making enforcement difficult but not impossible.

Possible Clauses

To help businesses understand the distinction between these restrictive covenants, there are key pieces that may help a company enforce these clauses. The exact needs of every business will vary. For that reason, and to have a complete understanding and review of a company’s restrictive covenants, it is advisable to speak with a skilled business lawyer.

For non-compete terms::

  • Restrict the former employee to working in a similar position with a client or competitor.
  • Only restrict the former employee within a geographic area around the company’s office.
  • Lift restrictions after a reasonable period of time, such as two years.

For non-solicitation terms:

  • Restrict the former employee from soliciting existing and potential clients and current employees.
  • Limit the restriction to no more than two years.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Non-Compete and Non-Solicit Agreements

If your business is facing non-compliance from current or former employees, or if you want to understand whether your restrictive covenants are enforceable, we can help. Your business is important to you, and you need guidance you can trust. The Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. can help you with your business needs. Contact us online or call us at 215-574-0600 for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

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Should Pennsylvania Increase the Minimum Wage?

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Minimum Wage

Since 2009, Pennsylvania’s minimum wage has been stagnant. Sitting at the federally mandated level of $7.25 per hour, many state officials bloviate about raising the minimum wage, but it never happens. For overtime work, employees must receive 1 ½ times their base hourly rate. There are exceptions to this rule, and determining whether a worker falls under this rule can be confusing. A lawyer can help a worker with an unpaid overtime claim if they feel they are being slighted.

For lawmakers to determine whether they should raise the minimum wage in Pennsylvania, they must look at several factors. There are benefits and disadvantages to any increase in the minimum wage.

Increased Buying Power for Workers

By increasing the minimum wage in Pennsylvania, workers have increased buying power. In other words, their dollar goes further. When a person has more disposable income, they spend more money. These spending habits help stimulate and infuse large amounts of capital into the economy.

Worker Job Losses

When government forces business to increase salaries, affected companies may cut expenses. This can come in many forms and may be unique to each business. Some businesses may cut benefits to save money while others may cut employees. By reducing the overall staff, the company reduces its financial burden and is better prepared to shoulder the cost increase for the remaining employees.

Pandemic Relief for Employees

Coming out of the Coronavirus (COVID-19) pandemic, many minimum wage workers are finding it difficult to get a job where they can support themselves, let alone support their families. As government pandemic relief programs end, workers are looking for jobs that pay more to help them survive and thrive.

An increased minimum wage would help those workers by providing them a higher rate of pay. This is money they could use to help themselves and their family re-settle after the pandemic. It also gives them the ability to spend money on leisure activities, helping the economy.

Jobs Leave Pennsylvania Without an Increase

Pennsylvania has large metropolitan areas that are close to other states. People already live in Pennsylvania and work in these neighboring states. A failure by the lawmakers to increase the minimum wage could see a larger exodus of jobs and workers to neighboring states.

Delaware and New Jersey, for example, have a higher minimum wage than Pennsylvania. If lawmakers fail to act and raise the minimum wage, more employees may seek out job opportunities in those neighboring states. Not only does this create lost tax revenue for the state, it could mean those workers end up moving to other states, further hurting the economy.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients Collect Unpaid Wages

The above represent a minor fraction of the arguments in favor of and against a minimum wage increase in Pennsylvania. There is much for lawmakers to consider. While they figure out what to do, however, you still have to make ends meet. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can offer you guidance if you need help figuring out whether your employer has underpaid you. Contact us online or call us at 215-574-0600 to schedule an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Pennsylvania Supreme Court Strikes Down No-Hire Clauses

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Earlier this month, the Supreme Court of Pennsylvania decided that employers could not enforce overly broad no-hire clauses and non-compete agreements. The ruling on Pittsburgh Systems, Inc. v. Beemac Trucking determined that companies cannot block employees from taking jobs with other companies via non-compete agreements that are created in business contracts. This creates a new precedent that resembles similar rules in neighboring states, like New Jersey.

At the heart of this case was the contract the two companies signed in 2010 that made Pittsburgh Logistics Systems, Inc. a non-exclusive partner of Beemac Trucking to haul the freight of the former’s clients. Pittsburgh included non-solicitation and no-hire clauses, attempting to retain workers. However, Beemac still hired four of Pittsburgh’s employees. The Court ruled that this was acceptable, as the terms of the contract were too broad and did not directly involve the affected employees. This creates a risk to public harm and restraints on trade and free labor, which the Court determined outweighed any concern or interest Pittsburgh had for keeping their employees.

How Does This Ruling Affect Employee Rights?

In Pennsylvania, employees must consent to non-compete or no-hire clauses. Usually this happens when signing an initial employment contract. Employers must disclose the terms of the clauses upon entering the agreement. In this case, when the two companies entered their business contract in 2010, the employees of both were not parties to the deal. Without notifying the employees or gaining their consent, the non-compete agreement is voided. Had there been some input from the employees or some compensation promised by Beemac if they decided to hire Pittsburgh’s workers, that may have kept the contract clauses valid.

Since the language of the contract attempted to cover all of Pittsburgh’s employees, not just those working on matters related to Beemac and the business deal, the Court also found that to be too broad. The length of the non-compete clause, which extended two years beyond the established one-year term of the deal, was problematic.

The Court’s ruling put a spotlight on larger concerns, like the free competition for employees and the overall harm to the public. While acknowledging that Pittsburgh had an interest in retaining talent, the decision noted that the clauses enforced went beyond the scope of protecting that interest. Instead, it not only violated established state laws, but it created a probable harm to the public good. The Court determined restraining trade and limiting the labor market took importance over Pittsburgh’s interests as an employer.

This ruling could have significant impact as more people return to the workforce as the Coronavirus (COVID-19) shutdowns end and more businesses seek normalcy. While employers try to entice those unemployed back to jobs, this has started to create bidding wars that benefit workers.

For those offered new deals, it is important to scrutinize these contracts. Know the terms of employment, especially any non-compete agreements, that may preclude leaving for another position with better pay, conditions, or other arrangements.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Negotiate Business Contracts for Workers

Contract negotiations can be confusing and stressful. Even for well-prepared professionals who know their values, there can be concerns. A trusted Philadelphia employment lawyer at Sidkoff, Pincus & Green P.C. can protect your interests. Call us at 215-574-0600 or contact us online to schedule an initial consultation. Based in Philadelphia, we proudly serve hard-working residents throughout Pennsylvania and New Jersey.

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Can Misconduct at an Off-Site Work Party Qualify as Sexual Harassment?

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off-site-Sexual Harassment

Many employers have codes of conduct or otherwise generally accepted standards of behavior that workers and manager must follow. Under the best of circumstances, codes of conduct promote a safe work environment. They also help to prevent workers from embarrassing their employers through criminal activity or other unacceptable behavior that might trigger the need for legal assistance from an experienced lawyer.

Employer-enforced codes of conduct clearly apply in the workplace, but just how far that workplace responsibility extends could become the crux of a lawsuit. A recent example of a Tennessee sexual harassment case regarded off-site activities involving off-the-clock employees that eventually entered the workplace.

The event began as an October Halloween costume party that started at the restaurant where attendees worked in 2017. The organizers were in managerial positions and encouraged workers to drink, gave them discounted drink coupons, and sold alcohol to the workers. After the party concluded, several attendees continued the festivities at the home of another worker.

Sexual Harassment Claim Arises

While at the off-site party, an individual allegedly grabbled a female worker by her neck and suggestively pressed his body into hers on two different occasions while at the party. The individual who pressed his body into the worker was an assistant manager at the restaurant and described as the second-in-command at the workplace.

The apparent victim and several of her coworkers afterward reported the incidents to the manager in charge, but the manager dismissed the actions as acceptable behavior. Upon learning of others who experienced the same treatment from the same individual that night, the woman filed a written sexual harassment complaint.

Workplace Retaliation Alleged

Despite a female worker complaining about sexual harassment from a manager and corroborating accounts from others, the worker’s employer did nothing, which gave rise to workplace retaliation. The complaints and initial reaction by management all agreed that the assistant manager in question clearly engaged in the behaviors mentioned. The assistant manager clearly was in a position of power over others and allegedly engaged in unwanted touching and downright unlawful behavior.

However, instead of investigating the complaint, the manager in charge, who also is female, dismissed the matter and blamed the female workers for dressing scantily. The complaining worker afterward says she endured workplace retaliation and ongoing harassment from the assistant manager, including outside her home. The assistant manager maintained his position of power over several women who complained about his behavior, and those workers were forced to serve him whenever he ate at the restaurant.

The worker who complained the most says her managers reduced her work hours and gave her less-favorable work assignments that greatly reduced her tips and work income. The woman also was reprimanded for wearing alleged inappropriate clothing during the Halloween party and was the only worker reprimanded for the claimed offense. She filed a sexual harassment complaint that went to a state trial court.

Courts Weigh Case Merits

The subsequent showed the manager in question was drunk and allegedly made at least five women fear for their safety due to his behavior at the after-hours party. The court ultimately ruled the event took place outside of the workplace, was voluntary, and any alleged sexual assault was not work-related. An appellate court disagreed, however.

An appeal of the lower court’s decision eventually resulted in a judgment against the workplace and the manager in question. The appellate court determined the after-party was a continuation of the word-sponsored event and that employer reasonably should have known about the unsavory behaviors of the manager in question.

The case clearly illustrates the complexities of workplace responsibilities by employers and how even off-site events could trigger the need for services from an experienced lawyer.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Resolve Off-Site Sexual Harassment Cases

The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. help clarify complicated legal matters in the workplace, such as liability for off-site sexual harassment. It may be difficult to pursue a lawsuit regarding after-hours sexual harassment, but we can help you build a strong case. Call us at 215-574-0600 or contact us online for an initial consultation. We are located in Philadelphia, and we serve clients throughout Pennsylvania and New Jersey.

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Can Employers Ask Job Applicants About Salary History?

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Salary-History

Applying for a job can be a long and difficult process. Many job seekers will respond to dozens of job posts weekly, hoping one will call back and offer an interview. After weeks and possibly months of waiting, one sticking point can ruin chances: salary expectations.

While most employers are legally allowed to ask candidates about their past salaries, there is a growing movement to stop this uncomfortable practice. Many states have passed laws to bar the question. A study published last year by researchers at Boston University and Boston University School of Law has shown that this shift has helped black and female workers, often suffering from pay gaps, to garner more compensation.

This debate has become increasingly important, as millions wait to re-enter the workforce following massive layoffs from the Coronavirus (COVID-19) pandemic. Many are leaving low-paying jobs in customer service and trying to find more lucrative positions. As companies compete to fill these roles, asking about salary history will face increased scrutiny.

Where Have Legislators Banned Salary History Questions?

Since 2017, there has been a trend of legislatures prohibiting or dissuading employers from asking job applicants to disclose their previous salaries. Some of these states include:

 

  • Alabama
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Georgia
  • Illinois
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • New Jersey
  • New York
  • North Carolina
  • Oregon
  • Pennsylvania
  • Virginia

 

 

In addition to some form of statewide bans, cities like Philadelphia, New Orleans, Salt Lake City, and Louisville have enacted local laws to keep employers from asking about salary history. It is recommended that job applicants inform themselves about what the laws are when applying in certain places, especially when considering moving to a different state or metro market.

Why Do Salary Histories Matter?

Employers have used salary histories in the past to discriminate and exclude certain candidates and potentially save money by offering less salary than what is budgeted. This practice has also been cited as a major factor in maintaining and furthering the pay gap between races and genders. Disclosing a below-market wage would likely encourage future employers to continue undervaluing a worker, offering a less significant pay increase with a new position.

What can Applicants Do to Avoid Salary History Questions?

There are a few ways to work around the question if applicants are uncomfortable. When responding to an online post, leave the entry blank if not required, or enter $0 or $1 if an entry is needed. During an interview, there are tactful ways to avoid answering or politely refusing. If the position is in an area where the question is banned, it should not be asked at all.

More job postings now include salary ranges. A great way to avoid the question is to know what is expected in the industry or position. Noting what someone at a rival company makes can help when salary is not disclosed. Applicants are encouraged to ask employers during the interview process about salary if not provided upfront.

If disclosing salary voluntarily, do so if comfortable. If moving to a larger market with a higher cost of living, it might help to determine if the position offers fair value. Also, do not lie about previous salaries. Employers can usually spot that easily and will likely dismiss dishonest applicants. For further help, it is important to speak to a lawyer.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Employment-Based Predicaments

Job seekers have enough to worry about without dealing with illegal and underhanded practices by potential employers. Sometimes, it takes a skilled advocate to help resolve issues. The Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. have the experience to fight for your rights. Call us at 215-574-0600 or contact us online for an initial consultation. Based in Philadelphia, we proudly serve clients throughout Pennsylvania and New Jersey.

Am I Prohibited from Discussing Salary?

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Salary might be one of the most popular topics of workplace speculation. While an employer may suggest employees not talk about salary or have a policy to prohibit them from doing so, the law actually protects an employee’s right to discuss their wages. The National Labor Relations Act (NLRA) states that employers cannot ban employees from discussing salary and working conditions. The NLRA was initially drafted regarding labor unions and organizing. The National Labor Relations Board (NLRB) argued that not allowing employees to organize and discuss workplace issues would give employers an unfair edge in bargaining.

Employees can discuss salary among themselves, and an employer cannot discharge or discriminate against employees who do. It is important to note that the law does not guarantee an employee access to salary information. Only that the employee can reveal their salary. For example, if an employee approaches Human Resources (HR) and demands to know the salary of a colleague, HR does not have to release this information. The employee can only find out the salary from their colleague directly.

An employer can ask an employee to sign a confidentiality or non-disclosure agreement (NDA). An NDA generally prohibits discussion or sharing of the company’s trade secrets, marketing strategies, sales, and other information. However, an NDA cannot prohibit the discussion of salary under the NLRA.

Why Discuss Salary at Work?

While most HR people would not advocate for employees discussing salary, there may be occasions where it is helpful. For example, suppose an employee feels they are significantly underpaid compared to a co-worker doing identical work. In that case, it may be beneficial to discuss salary among a few co-workers in the same job. This scenario could include a female worker who wants to ensure they are paid the same as a male in the same position.

A salary discussion might also be beneficial if many people in the company or a certain department believe they are being underpaid versus market rates. There are many resources employees can use to check average salaries in their geographic location or industry. If a group of employees finds they are being underpaid, they could have the leverage to demand a pay raise across the board.

Why Not Discuss Salary at Work?

There also are many good reasons not to discuss salary at work. Most of these have to do with employee morale. It is easy for someone to feel resentful or jealous of a colleague’s salary. Workplace gossip about a salary could also lead to reduced productivity and diminished teamwork.

Discussing salary could also make HR or a person’s manager feel differently toward the employee. Although management cannot fire someone for discussing salary, they can keep it in the back of their minds at performance reviews or promotion time. Additionally, a worker who makes more than anyone in the department may find themselves the target of resentment or other harmful behavior.

Sharing work tirelessly to Information

If there are valid reasons to discuss salary, do so carefully. Talk with only colleagues and co-workers that are trustworthy. Also, make everyone involved agree to confidentiality. Never discuss salary during working hours. Wait until a break or after working hours because the discussion could be risky, and it is important not to waste company time.

What Should I Do if I am Underpaid?

If, after research and discussion, an employee finds they are underpaid, they have certain rights. Their first right is to approach their manager or the HR department, armed with facts and data that show the underpayment. If the company will not budge on salary, the employee can always speak to a lawyer for legal counsel.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Protect Workers’ Rights

Employees have rights under the law, including fair payment. If you feel your rights have been violated, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We help employees get fair and just treatment in the workplace. For an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.