Use of Social Media in the Recruiting and Hiring Process

Social media is ubiquitous in today’s world. Chances are, your company has used it in recruiting or candidate screening at one time or another, whether by checking out a candidate’s LinkedIn, Facebook or Twitter profile, or by using social media to post a job listing. These methods can help employers access qualified candidates and can provide useful information about applicants. For example, you might learn about a candidate’s work experience, communication skills, volunteer work, or professional passions. You might also discover negative information about the applicant. For instance, you might learn about illegal activities, threats of violence, or disparagement of past employers.

But using social media in recruiting and hiring is not without risk. By reviewing a candidate’s online postings, you may find information that cannot legally be considered in the hiring process. For example, you may learn a candidate’s race, ethnicity, disability, marital status, age or religion. Once you know such information, you are vulnerable to being accused of using it in your hiring decisions.

While these risks are very real, an employer who is careful and conscientious in its use of social media may be able to reduce them. One way to diminish risk is to check social media only after a candidate has been interviewed, rather than using it as a way to screen candidates sight-unseen. Another way is to have someone in the company who is not involved in hiring decisions be in charge of viewing social media content of job candidates and filtering out any information about protected characteristics (e.g., race, age, disability, etc.) before sending other information on to HR or the hiring manager. Also, an employer should never ask an applicant for his password or username information, or try to “friend” him or otherwise join his social network. A number of states have statutes prohibiting this conduct, and refraining from it is best practice in all states.

There is no foolproof method for removing all risk from the use of social media in the hiring process. Whether the benefits of using it may outweigh the risks, and how to minimize that risk, will likely depend on the circumstances. Feel free to contact PMP if you would like to speak to an HR consultant or staff attorney about how best to navigate these waters successfully.  Sign up for our educational workshop, Risk and Reward: The Dangers of Social Media in the Workplace on Wednesday, December 14, 2016.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding use of social media in the workplace. Please keep in mind that in addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance. Contact us at 800-921-2195 or 516-921-3400. You can also e-mail us at

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Considering a Job Candidate’s Salary History: Soon to Be a Thing of the Past?

When deciding whether to make a job offer to a candidate and, if so, how much to offer in salary, employers commonly ask the candidate for his or her current salary and/or salary history. This has long been an accepted practice. But in one state, Massachusetts, it is now illegal.

In August, Massachusetts became the first state to prohibit employers from asking prospective employees about their salary history until after they make a job offer that includes a proposed salary amount. The rationale behind the law is that basing salary offers on a candidate’s salary history perpetuates pay disparities based on gender. If a female employee was paid less than her male counterparts at her last job, and her next employer bases her new salary on what she was paid at that job, the employee will be trapped in a cycle of pay inequality that may continue throughout her career.

Following Massachusetts’ lead, a group of Congressional legislators have announced plans to introduce a bill prohibiting employers from asking applicants for their salary history before making an offer. Whether that bill will become law, or whether similar laws will be enacted at the state level outside of Massachusetts, remains to be seen. For now, employers should be sure to keep this issue on their radar and stay tuned!


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Job Posting Do’s and Don’ts

Writing a job posting seems like a fairly straightforward task. You describe the position and the qualifications needed, click “post,” and wait for the resumes to roll in, right?

If only writing job postings were that easy! In reality, crafting a job posting that is effective and targeted, substantive but not overly long, and free of legal snafus is no easy feat.  This is especially true at smaller companies, where the person writing the job posting likely does not devote a large percentage of his or her time on recruitment.

To assist employers who find themselves floundering when faced with this task, PMP has created a brief list of “do’s and don’ts”:

  • DO think about the qualifications that are actually needed for the job, and tailor the job posting accordingly. Each qualification listed should have a legitimate relationship to the job, so that the employer could defend the list in the event that an applicant claimed it was discriminatory against a particular group.
  • DON’T use gender-specific pronouns or euphemisms for a certain gender, age, or physical condition. For example, don’t say you are looking for “hot waitresses” or “recent college graduates.” If a bona fide job qualification that touches on protected characteristics exists, state it precisely. For example, “must be able to lift 50 pounds” may be an actual requirement for the position; being “in good health” should not be.
  • DON’T bury important information at the bottom of the posting. Some candidates will focus on the first part of a job listing and not absorb all the information in a long list of job requirements. This may result in your office being flooded with resumes from unqualified candidates. Place any essential qualifications front and center in your job description.
  • DO include a statement that the company is an equal opportunity employer.
  • DO show what sets your company apart from the competition, whether it is your competitive salaries, stand-out benefits package, unique culture, or achievements in the industry.

Even for a seasoned recruiter, an effective job posting is not something that can be dashed off in a hurry. It requires careful thought and consideration. But when done properly, it can yield invaluable results. When you find a steady stream of qualified applicants at your doorstep (or in your inbox), you will be glad you took the time to do it right.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding your job postings, job descriptions, and recruiting practices.  Check out our upcoming workshop, Strategic Job Descriptions: Minimize Liability and Maximize Productivity on Wednesday, November 2, 2016.   In addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400. You can also visit our website or e-mail us at

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Your Sexual Harassment Policy May Not Be Effective!

Do you believe your company’s sexual harassment policies sufficiently insulate the company from liability for harassment? Do you assume that, at the very least, this would be true in the event that an employee is sexually harassed but does not report it? Many HR professionals and employment lawyers would likely agree with you. But a recent Fifth Circuit Court of Appeals decision indicates that employers may not be as secure as they think they are when it comes to unreported sexual harassment.

The plaintiff in the case was Kandace Pullen, who was a temporary clerical employee for a school district in Louisiana. During her employment, Pullen alleges, she was sexually harassed by her supervisor, Timothy Graham. Pullen did not report the harassment while it was happening. In fact, she made no mention of it until about two years later, when she was questioned during the school district’s investigation of a complaint made by another employee, Aimee Harris, that Graham had harassed her (Harris). The investigation of Harris’ complaint was conducted months after Pullen’s employment with the district had ended. It was at this time that Pullen filed an EEOC charge alleging, for the first time, that she had been harassed by Graham during her employment with the district.

Whether an employer will be found liable for sexual harassment depends on several factors. If the harassment is perpetrated by a supervisor and results in action being taken against the employee (such as termination or demotion), the employer will be held strictly liable. But if there is no tangible employment action, the employer can offer a defense to liability. The employer must show that it exercised reasonable care to prevent and correct sexual harassment, and that the employee unreasonably failed to take advantage of preventive or remedial measures offered by the employer. In other words, if the employer has an anti-sexual harassment policy with clear complaint procedures for employees who are harassed, and an employee fails to utilize that procedure before suing the employer, the employer will generally not be held liable.

In the Pullen case, the lower court applied that very analysis. The court granted summary judgment to the school district, effectively throwing plaintiff’s case out, because Pullen had not reported the harassment despite the fact that the district’s harassment policy was posted on bulletin boards in the office and available online. The district even provided regular sexual harassment training to the majority of its employees.
The Court of Appeals, however, viewed things differently. The appellate court noted that Pullen, as a temporary employee, had never been given sexual harassment training, and that she alleged she had not even known that the district had a sexual harassment policy at all. Pullen claimed she had never noticed the copies of the policy posted on bulletin boards, and she offered evidence that other employees working in the same office were equally unaware of the policy. Finding that this evidence “generates a reasonable inference that the policy was not posted in a conspicuous location,” the appellate court reversed the district court’s decision. In support, the court cited similar decisions from the First Circuit and Tenth Circuit Courts of Appeals.

What does this mean for employers? It means they should not allow themselves to become complacent about their sexual harassment policies, including the manner in which those policies are distributed. It is not enough simply to have a policy in place; employees must be made aware of the policy. Moreover, employers should be prepared to offer evidence of that awareness. This means that having each employee sign an acknowledgement of his/her receipt of the employee handbook is more important than ever. Equally important is making sure the sexual harassment policy contained in the handbook is clearly communicated and can be easily understood. Relying on bulletin boards to get the word out, or even posting the policy online, is not enough, as the school district in the Pullen case found out. Moreover, temporary or seasonal employees should not be excluded from the process; it is the employer’s responsibility to ensure that all employees become familiar with the policies.

Ultimately, an employer’s focus should not solely be, “How can we avoid liability?” but, rather, “How can we keep harassment from happening and how we put a stop to it and help the victim if it does happen?” Asking these questions and doing the work they require will help keep companies on track toward having meaningful, accessible anti-harassment policies.

This article is intended for general information only and should not be construed as legal advice.

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Exit Interviews: Are You Using Them To Their Full Advantage?

Is your company getting all it can out of exit interviews? Exit interviews can yield gold mines of information for employers. But if not conducted properly, they can be a useless, formulaic exercise that benefits neither the company nor the outgoing employee.

The stories of two different employees will help illustrate this. Amy left her job at XYZ Company for a new position because her boss, Mike, was a verbally abusive bully. Amy had never complained about Mike because she feared retaliation. As her last day approached, she considered telling HR everything in her exit interview – all the abusive comments, unreasonable demands, and temper tantrums she had endured while working for Mike. But she knew Mike would be involved if a future employer asked for a reference. She had been at XYZ for five years and could not afford to jeopardize the positive reference she had earned from her good work. Besides, she figured management already knew what Mike was like anyway. Wasn’t it general knowledge at XYZ? So Amy decided, rather than burn bridges, to remain silent about Mike. In her exit interview, she said she was leaving only because she got an offer for a position with a higher salary. The interviewer accepted this response and asked no further questions.

Tim also reported to Mike at XYZ and was a victim of his bullying. When Tim left for a new job, he saw his exit interview as an opportunity to vent about the years of abuse he had suffered at the hands of Mike. When asked his reason for leaving the company, Mike launched into a detailed, 30-minute account of Mike’s behavior toward him and others. He even brought along copies of emails that substantiated his report. After Tim’s exit interview, HR immediately began an investigation of Mike. It revealed that numerous employees had had similar experiences with him, and it ended in Mike’s termination.

As these stories show, exit interviews can be a source of important information, or they can be a lost opportunity.

The benefits of a well-conducted exit interview are many. You can learn about systemic problems within the company, reasons for low morale, problems with supervisors, and much more. The information gleaned from an exit interview can help a company increase employee retention and may even reduce the risk of lawsuits (particularly if the interview reveals issues with a supervisor that were previously unknown to management and the supervisor can be removed before causing more harm).

So how can you get the most out of exit interviews?  First, if your company has an HR department, put HR in charge of conducting the interviews. Employees should not be interviewed by their boss but by someone who is, at least ostensibly, neutral. Second, if feasible, promise anonymity and confidentiality of responses. However, if your company is small this may not be realistic. When a small company chooses to act upon information obtained from the interview, such as by investigating allegations made, the source of the information may be obvious to everyone there — including the target of the investigation. Third, consider having a company-wide policy of limiting references to confirmation of job title and dates of employment. This will allow you to assure outgoing employees that the information they provide in their exit interviews will not affect their references, since the company does not provide substantive references.  Fourth, and perhaps most importantly, convey to employees that you are truly interested in what they have to say. Do not conduct the interview in a manner that suggests you are just going down a list of questions and checking off boxes. Engage the employee; draw him or her out. Remember, a disgruntled employee, even one who is reluctant to go into detail at first, has probably fantasized many times about venting his frustrations. Give him the gentle nudge he needs to do so.

If employees can feel confident that the information they provide will be treated with sensitivity, and will not negatively affect future job references, they will be more forthcoming in their exit interviews. As a result, management will be able to access information that otherwise would never have been brought to its attention about what is really happening inside the company.

The HR consultants and staff attorneys at PMP are experienced professionals  committed to providing clients with practical guidance on all aspects of the employer/employee relationship.  For tips on how to conduct effective exit interviews, contact a HR consultant at PMP today, 800-921-2195 or 516-921-3400. You can also e-mail us at


This article is intended for general information only and should not be construed as legal advice.


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Employee Handbooks and Employment Agreements: Understanding the Difference

Is your handbook an employment contract? Should it be?

Many employee handbooks contain provisions intended to bind employees to certain obligations. For example, handbooks may state that employees are required to maintain the confidentiality of proprietary confidential information. They may also provide that, upon termination of employment, employees are prohibited from soliciting the company’s employees or clients for a given period of time. Some handbooks even dictate that disputes arising out of the employer-employee relationship must be submitted to arbitration. Employers often assume that these handbook provisions carry the weight of a binding contract.

But many handbooks also contain a provision explicitly stating that the handbook is not an employment agreement.  Employers include such provisions for their own protection; they do not want to be held to statements in the handbook regarding compensation, benefits, hours, etc., as if they were contractual obligations on the part of the employer.

Many employers fail to consider the impact of the handbook’s “not-a-contract“ provision on the validity of provisions they wish to be able to enforce. In other words, employers assume that they can choose to treat the handbook as a contract when it suits them, such as when they wish to keep a former employee from disclosing confidential company information, while treating it as “just a handbook” the rest of the time—including when an employee asserts a contractual right to the benefits or compensation terms detailed in the handbook.

What is the answer to this conundrum? The answer is certainly not to omit the “not-a-contract” language from the handbook. This provision is highly important. An employer whose handbook does not state that it is not a contract, and who requires the employees to sign the handbook upon receipt, may be faced with the unwelcome surprise of an employee lawsuit seeking to enforce outdated policies appearing in the handbook. This is particularly true since, unfortunately, many employers fail to update their handbooks regularly. As a result, handbooks often refer to outdated policies regarding insurance benefits, vacation time, office hours, company policies, etc. (PMP recommends updating handbooks at least every two years to help ensure that changes in internal policies and in employment law are being addressed.)

The best solution, then, is to keep the not-a-contract provision in the handbook, but move any provisions that the employer wishes to be contractually enforceable out of the handbook into a separate document. That document should be structured as an enforceable contract.  If this sounds like too much trouble, consider the fact that, for an employer who is already taking the time to provide all new hires with a copy of the handbook, there is little additional burden in also providing them with a confidentiality, nondisclosure, nonsolicitation, and/or arbitration agreement to sign at the same time. Employers who do this can have their cake and eat it, too – the protection of an enforceable contract where needed, and a handbook that serves the purpose that a handbook should:  as an informative summary of general employee policies.

For assistance with drafting enforceable confidentiality, nonsolicitation, arbitration agreements and more, do not hesitate to contact PMP. We can also help you revise and update your employee handbook. Remember, when it comes to protecting company assets and avoiding employee lawsuits, a handbook is only one tool in an employer’s toolbox.

Sign up for our fall workshop, Need-To-Know Employee Handbook Updates: Staying Compliant with Legal Changes.


This article is intended for general information only and should not be construed as legal advice.

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Reminder for NYC Employers: New Commuter Benefits Law Now in Effect

As of July 1, 2016, employers with 20 or more full-time non-union employees in New York City are in danger of incurring penalties if they do not offer commuter benefits. Pursuant to a law that went into effect January 1, 2016, employers covered under the law must allow their employees to use pre-tax earnings for the purpose of paying eligible commuter expenses. A six-month enforcement grace period was in effect until July 1, 2016, but now that that period has expired, the Department of Consumer Affairs is free to seek penalties from non-compliant employers.

An employer need not be located in New York City to be covered under the law. The location of the employees, not the employer, is the determining factor. Even if a company’s employees work in New York City only occasionally, they may still be entitled to commuter benefits. Any employee who has worked an average of 30 hours or more in the most recent four weeks, any portion of which was in NYC, is covered.

If an employer’s entire workforce is unionized, the employer is not covered under the law. But if only a portion of its employees are union, and 20 or more are non-union and working full-time (30 or more hours a week), then the employer is covered.

Participation in a commuter benefit program can reduce a company’s payroll taxes. However, if an employer believes that participation in the program would cause it significant financial harm, it can apply for a “financial hardship exemption” from the commuter benefits law.

A number of third-party vendors administer commuter benefits programs for employers. A list of these providers can be found at

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Parents in the Workplace: Discrimination on the Basis of “Familial Status”

In the classic film “Kramer vs. Kramer,” Dustin Hoffman’s character, Ted Kramer, loses his high-powered job as an advertising executive. Once the prized protégé of his boss Jim, Ted has fallen out of favor since becoming sole caregiver to his five-year-old son, Billy. His parenting duties have meant no more late evenings at the office, either working or just drinking with Jim. Now Ted has to rush home every evening to tend to Billy.  Jim, who has taken to sneeringly calling Ted “Mother Kramer,” begins systematically cutting Ted out of important meetings and decisions, and ultimately fires him.

Ted’s story would be all too familiar to many working parents today, particularly mothers. And since a new law was enacted in New York earlier this year, it would also be illegal.

Effective January 19, 2016, the New York Human Rights Law was amended to outlaw discrimination in employment based on “familial status.” The statute generally applies to employers with four or more employees. The protected category of “familial status” includes (a) anyone who is pregnant, has a child, or is in the process of securing legal custody of a child; and (b) one or more individuals under the age of 18 being domiciled with a parent or other person with legal custody, or such parent’s designee.

By banning discrimination on the basis of “familial status,” the law prohibits employers from treating parents differently based on a bias against working mothers or parents in general. The law does not require employers to make special accommodations for parents, such as allowing them to miss work, arrive late, or leave early for child-related reasons. All that is required is equal treatment – i.e., if an employer has a policy of granting employees time off to attend to personal matters, this benefit should be extended to parents on the same basis it is extended to non-parents.

While a primary intent of the new law is to protect working mothers from discrimination, its protection is not limited to mothers; fathers are covered as well. Let’s take another look at Ted Kramer. Before Ted’s wife left him, Jim had trusted Ted enough to hand him the reins on a major account. After his wife left, although Ted could no longer stick around the office in the evenings as he had before, he made up for it by taking work home with him. He was still doing his job – until he was effectively prevented from doing so by having his responsibilities chipped away. Under the new law, Ted’s diminished responsibilities and ultimate termination would give rise to a valid claim of “familial status” discrimination.

What this boils down to is a need for employers to eradicate any bias, whether conscious or unconscious, they may have against working parents. If you find yourself thinking, “Jennifer is a good worker, but she’s got two little kids at home and another on the way; there’s no way she could handle the responsibilities of this promotion, so I’m giving it to [childless] Dave,” then you need to make some changes.

While this particular law applies to employers in New York State, similar laws have been passed in other states, including Oregon and Minnesota.  If you have any questions about “familial status” discrimination, you should contact an exprienced human resources consultant or employment lawyer at Portnoy, Messinger & Pearl, & Associates, Inc. at (516) 921-3400 or

Check out our upcoming educational workshops for Human Resources professionals, here.

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Recourse Under Federal Law for Trade Secret Theft

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act (DTSA). This legislation will allow employers to sue in federal court to combat misappropriation of trade secrets. Previously, employers had recourse under differing state laws, which varied in their definitions of “trade secrets” as well as in the remedies available. The DTSA will create a uniform standard for addressing trade secret theft, which may prove particularly useful for companies which operate out of multiple states. Notably, however, the new law carves out an exception for certain disclosures made by whistleblowers and requires employers to notify employees of this exception.

The DTSA defines “trade secrets” broadly, as “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by another person who can obtain economic value from the disclosure or use of the information.”

An employer who sues for wrongful disclosure under the DTSA will be able to request an “ex parte seizure,” which allows the court, under certain limited circumstances, to seize property when necessary to prevent the propagation or dissemination of a trade secret. Employers will also be entitled to seek damages, including exemplary damages for willful or malicious misappropriation (up to double the amount of actual damages), as well as injunctive relief and attorneys’ fees.

It is important to note that the DTSA requires employers to include in any new agreement entered into with service providers governing the use of trade secrets, such as confidentiality or nondisclosure agreements, a notice of immunity under the DTSA for certain whistle-blowing activities. The notice may be included in the agreement itself, or the agreement may contain a reference to the employer’s whistleblower policy. The purpose of the notice is to inform workers that if they reveal trade secrets in the context of certain whistle-blowing activities, they will be immune from liability under the DTSA. To be immunized, the employee’s disclosure must either be made in confidence to a government official or an attorney “solely for the purpose of reporting or investigating a suspected violation of law,” or must be made in a court filing under seal.

This means that employers should immediately update the forms or templates they use for confidentiality agreements to include the requisite notice. Many confidentiality agreements already contain provisions providing for exceptions for disclosures made in response to a subpoena or similar government request. Such provisions should be modified and expanded in accordance with the DTSA’s requirements.

Going forward, employers who are victims of trade secret theft will have a powerful new weapon in their arsenal. Watching how this plays out in the context of the first suits to be brought under the new law will be instructive. In the meantime, employers should take steps to comply with the notification provisions of the statute without delay.

Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding the Defend Trade Secret Act.  Please keep in mind that in addition to our staff of seasoned HR consultants, we also have a staff of experienced employment lawyers on hand to address any questions you may have regarding legal compliance.  Contact us at 800-921-2195 or 516-921-3400.  You can also e-mail us at


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The Transgender Restroom Dilemma: Legal Requirements and Best Practices

This election year has seen the emergence of a controversy that might seem an unlikely subject for a presidential campaign: restrooms, and who uses them. But the question of who should use which restroom is an issue that should be considered not only by politicians, but by employers as well. It is estimated that about 700,000 adults in the United States are transgender, meaning that their gender identity does not match the sex they were assigned at birth. At some point in their lives, many transgender persons transition to living their daily lives as the gender with which they identify, rather than conforming to their birth sex.

All employers are required to provide sanitary restrooms for their employees’ use, and many employers choose to provide separate facilities for men and women. When it comes to transgender workers, there can be confusion as to whether it is more appropriate for such workers to use the restroom corresponding to their gender identity or the one corresponding to their birth sex.While there is not yet any federal law addressing this issue, OSHA has issued guidance providing that employers should permit their employees to use the restroom that matches the gender with which they identify. In other words, the choice of which restroom is appropriate should be up to the individual employee, not dictated by the employer. The EEOC is in agreement with this policy.

In New York State, it is illegal for an employer to discriminate on the basis of gender identity or transgender status. New York City also prohibits such discrimination, and has issued enforcement guidelines specifying that transgender employees must be permitted to use the restroom corresponding to their gender. New York is not alone in protecting transgender employees from discrimination. A number of other jurisdictions, including California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, prohibit discrimination against transgender people in employment.

Employers in these jurisdictions, or employers who wish to adhere to OSHA’s guidelines, should respect the choices of their employees regarding which single-sex restroom to use. As for employers outside these jurisdictions, although such employers are not currently subject to laws specifically prohibiting discrimination based on transgender status, they may nevertheless want to be mindful of the interplay between these issues and employee safety. For example, if a transgender woman is forced to use a restroom that is otherwise used only by men, she may feel unsafe or threatened.

The issue of restroom use by transgender employees is one many employers had never thought much about before this year. But since this issue has now become part of the national conversation, employers would be wise to take this opportunity to consider whether their restroom policies are compliant with all applicable laws in their jurisdiction.

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