Berks County Bar Association The Berks Barrister Spring 2019 - 14

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Lawyers as Employers: Managing Your Most Valuable Resources
Continued from page 13
Keep the following in mind for your offer letters:
* At-will disclaimer
* Start date

* Title of employment position
* Identity of supervisor

* Exempt v. non-exempt (avoid "salary" v. "hourly")
* Include starting rate or gross pay

* Include disclaimer that employment and fringes are all subject
to change at employer's discretion
When the candidate accepts the offer, there's just one more step
before the attorney/employer opens their doors to a new employee.
It's the background check. For obvious reasons, an attorney wants
to hire honest and trustworthy employees who have a highly
sensitized respect for client confidentiality, the attorney-client
privilege, and the ethical considerations part of everyday life of a
law firm. The EEOC prohibits the use of arrest records in making
employment hiring decisions, with very limited exceptions. Within
the exceptions, the EEOC directs that the exclusion should: be
consistent with business necessity; the nature and gravity of the
offense should be considered, the nature of the position; and of
course, the passage of time since the offense. Pennsylvania law does
not expressly speak to arrests, but the Pa. Criminal History Record
Information Act, 19 Pa.C.S.A. Sec. 9125 allows the employer, postoffer, to pull a conviction record, and examine the applicant's felony
and misdemeanor convictions. Similar to the federal standard, the
law directs that these convictions can be relied on by the employer
to the extent the conviction is related to the applicant's suitability for
the position. The law allows a bit of flexibility in that the employer
need only to rely "in whole or in part" on the conviction as a basis
for revoking an offer of employment. If, however, the employer does
so, the law requires the employer to notify the applicant in writing.
Lawyers can also pull an applicant's credit report consistent with
the federal Fair Credit Reporting Act. 15 U.S.C. Sec. 1681, et seq.
This law requires that the employer obtain the applicant's consent
to pull the report, and also provide notice to the applicant if the
employer relied in whole or in part on the content of the report.

Employee Privacy

No employee enjoys a reasonable expectation of privacy in the
law firm workplace, unless provided by the lawyer/employer. To the
extent the right exists, it manifests itself in tort law. See, Restatement
of Torts, Second Sec. 652; Doe v. Cohn, Nast & Graf. 866 F.Supp.
190 (E.D. Pa. 1994). One way the lawyer/employer can create the
reasonable expectation of privacy is by granting it in the form of
lockable desks/lockers. Nonetheless, the lawyer/employer does not
enjoy unfettered access and surveillance rights of its employees. For
example, in Doe, supra, the law firm employer opened its lawyer/
employee's purely personal mail inadvertently, but then kept it
and made employment decisions based upon the private personal
information. Phone calls and security cameras that record video are
subject to the Pa. Wiretapping and Electronic Surveillance Control
14 | Berks Barrister

Act 18 Pa.C.S. Sec. 5701 et seq., requiring bilateral consent for
such recordings. E-mail and their systems are owned by the lawyer/
employer. As a best practice, all employees should be notified up
front and in writing that there is no expectation of privacy in the
firm's e-mail system. The law firm as employer has the right to
monitor the content of communications on its system, subject to the
same common law standards as "regular" mail. See, e.g. U.S. v. Nagle,
#1:09-CR-384, 2010 WL 3896200 at *4 (MD Pa. Sept. 30, 2010).
Law firm employers often overlook the requirement that
employee medical information should be kept separate from the
"personnel" file and the information in said medical file should be
only disclosed to employees who clearly have a "need to know," and
as a best practice, with employee consent. See, e.g., Confidentiality
of HIV-Related Information Act, 35 Pa.St. Ann. Sec. 7601,et seq.;
Mental Health Procedures Act, 50 Pa.Stat. Ann. Sec.7101, et seq.;
Pa. Human Relations Act Guidelines, 16 Pa.Code, Sec. 44.12. As
to employee records, the lawyer/employer does owe its employees a
duty of care in the protection of confidential employee information
(i.e. social security numbers). See, Dittman v. UPMC 196 A.3d
1036 (Pa.2018). Law practices allow employees to work from a
variety of devices, and allow them to bring their own device to work,
yet few practices have written policies spelling out where the line
is drawn. The lawyer/employer may lack sufficient control over the
employee's personal use of a personal device, which could expose
the law firm (and its client data) to corruption via the employee's
personal devices. Hence, a best practice is to not only have a written
policy to that effect, but sufficient follow through and updates to
ensure employee compliance and thereby protect client data.

Managing Leave

Law firm employees may need time off from work for a
number of reasons, such as Worker's Compensation claims, shortor long-term disability claims, ADA/PHRA-related leave, and
Family-Medical Leave. The lawyer/employer needs to be highly
aware of the overlap of statutory rights that manifest themselves
on any medically-related leave by an employee. The topic is far
too detailed to get into on these pages, but it's best to "issue-spot"
with an eye toward identifying the correct type of leave, in order to
analyze the employer's legal duty. If an employee is injured "in the
course and scope" of employment, then a Worker's Compensation
claim exists per the Pennsylvania Worker's Compensation Act.
("WCA") 77 P.S. Sec. 1 et seq. The condition that results may
qualify the employee for private short- or long-term disability
(income supplement) insurance benefits, if offered. If the employee
has a "permanent disability," then pursuant to applicable disability
law, the employer must consider whether the employee needs a
"reasonable" accommodation for their condition in order to allow the
employee to perform the essential functions of their position. What
about the FMLA? Few local firms have 50 or more employees
at worksites within 75 miles, to invoke application of the Family
Medical Leave Act ("FMLA") 29 U.S.C. Sec. 2601, et seq., . This
federal law requires employers to provide up to twelve (12) weeks
of unpaid leave to qualified employees to allow the employee to
attend to a "serious health condition" of their own, or certain "family"
members. Many firms, like my own, provide FMLA-like benefits to

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Berks County Bar Association The Berks Barrister Spring 2019

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