Michael J. Schrier

Yesterday, the FAR Council and the Department of Labor issued final regulations and final guidance implementing Executive Order 13673 – Fair Pay and Safe Workplaces.  The interlocking final regulations and final guidance, with an effective date of October 25, 2016, impose new requirements on federal contractors and subcontractors, including:

◾Contractors, when bidding on new federal contracts valued at more than $500,000, will be required to disclose a three year look-back of all “labor law violations” (involving defined administrative merits determinations, civil judgments, and arbitral awards) arising under 14 different federal statutes and comparable state laws to the contracting officer. The contracting officer, with the assistance of a newly created Agency Labor Compliance Advisors, will review the labor law violations, determine whether the violations are serious, repeated, willful, or pervasive, and based on those determinations, decide whether the contractor is “responsible” enough to be awarded a federal contract.

◾Subcontractors, with subcontracts worth more than $500,000, will be required to make similar three year look-back disclosures of labor law violations to the U.S. Department of Labor for that federal agency to make a determination as to whether the subcontractor’s history of labor law violations are serious, repeated, willful, or pervasive. The prime contractor is then required to making its own decision as to whether its subcontractors are “responsible” based on the Department of Labor’s determinations.

◾Contractors and subcontractors with serious, repeated, willful, or pervasive labor law violations may be required to enter into labor compliance agreements – either before or after contract award – with designated federal agencies to mitigate or remediate histories of non-compliance as a condition to being deemed “responsible” to receive a federal contract or subcontract.

There are also new requirements concerning (1) Paycheck Transparency (what information must be listed on an employee’s or independent contractor’s paycheck); and (2) prohibitions on the use of arbitration to resolve employee claims unless the employee and contractor agree to use arbitration after the employee has a claim (effectively negating many pre-employment or company-wide arbitration agreements and plans).

The regulatory requirements outlined above have varied phase in periods, beginning October 25, 2016 through October 25, 2017. The final regulations and guidance will be published in today’s Federal Register.

To learn more about the regulatory requirements, join us on Oct. 13th, 2016 for our Duane Morris Institute webinar entitled, “Employment Law for Federal Contractors: Game Changers—New Regulations and Executive Orders.”

About Michael J. Schrier
Michael J. Schrier practices in the areas of government contracts, construction, commercial litigation, labor and employment, and intellectual property. Mr. Schrier has experience representing government contractors in Contract Disputes Act, Miller Act and breach of contract claims in federal and state trial and appellate courts and in bid protests before the U.S. Court of Federal Claims. In addition, he has advised government contractors and federal grant recipients on Federal Acquisition Regulations, facilities and security clearances, False Claims Act, Buy American Act, Davis-Bacon Act, Service Contract Act, Non-Displacement of Qualified Workers regulations, Fair Pay and Safe Workplace regulations, OFCCP, debarment/suspension and export control matters. As a commercial litigator, Mr. Schrier has appeared in more than a dozen different federal district courts around the country representing clients in a variety of construction, trade secret misappropriation, securities fraud and toxic tort cases, as well as more traditional business tort and commercial litigation matters. He has also represented clients in uniquely federal contexts in Administrative Procedure Act and Hatch Act matters, as well as representing clients before a variety of federal and state administrative agencies. Mr. Schrier also has significant experience defending employers against trade secret misappropriation, employment discrimination, retaliation, wrongful termination, Fair Labor Standards Act, ERISA, and unfair labor practice claims in federal and state trial and appellate courts and administrative hearings. Mr. Schrier also has experience litigating trademark infringement, unfair trade and cybersquatting claims on behalf of educational institutions and corporate clients. Mr. Schrier is a 1993 graduate of George Washington University School of Law and a graduate of Cornell University.
Jonathan A. Segal

I am pleased to share my latest post to Entrepreneur.

I hear too many lawyers strongly discourage employers from ever looking at an applicant’s social media accounts. Yes, there are legal risks, but those risks can be mitigated.

As important, there can be legal and business risks in not looking at social media during the hiring process. So we’re actually talking about risk management, not risk avoidance.

What are the legal risks if you look at an applicant’s social media profiles, such as on Facebook, Instagram or LinkedIn? By the applicant’s pictures or words, you may learn things about the applicant’s membership in a protect group, such as his or her likely race, religion, disability, age, etc.

Even if you don’t consider doing it, an applicant may unlawfully argue that you did. It’s not easy to prove the negative.

On the other hand, you may find valuable information that lawfully may be considered. In one case, an employer found racist posts by a managerial applicant.

I was glad the company learned of this, or they would have hired the miscreant. Think of the legal and business risks that could have occurred if they had hired him.

Most people are perfect, at most, twice in their life: at birth and in an interview. Reviewing social media accounts can help you determine who the person truly is who you’re considering hiring. Here are six recommendations to minimize the legal risks, and maximize the business rewards of reviewing social media profiles as part of the hiring process.

1. Do not look at social media profiles to screen applicants.
Using social media to screen applicants is using it too early in the process. Generally, it’s unnecessary and risky. It’s unnecessary because you should be focusing on the position’s objective criteria at this point. And it’s risky because an unqualified applicant may claim that she was rejected because you saw she was an older Asian woman, for example.

2. Consider looking at social media at the end of the hiring process.
Review social media only at the end or near the end of the hiring process. Some employers include this step as part of their background check.

The risk is much lower because, after interviewing the applicant, you will already know that the applicant is, as in the prior example, an older Asian woman. Additionally, fewer applicants will have their social media profiles reviewed so it has fewer risks.

But there still is some risk. An individual may post information you otherwise would not learn about in the interview, such as he that he’s gay or on medication for depression.

The risk must be balanced against the value of what you may learn. Another case could be an applicant posting pictures of themselves wearing virtually nothing.

3. Human resources should review social media.
Someone on your HR team – not the hiring manager — should review candidates’ social media account. HR professionals are better equipped to focus on what can and cannot be considered.

You should tell hiring managers that they can’t check social media accounts. If you don’t tell them they can’t, they will assume they can and may do so at the wrong time, or consider factors they shouldn’t.

4. Only review public information.
Never ask an applicant for his or her social media password. It is like asking an applicant for the keys to his or her home.

Approximately 20 state laws prohibit employers from asking for social media passwords. In all states, it can be criminal under federal law.

5. Keep your process consistent.
You don’t need to look at social media profiles for every position in the company. But it’s also dangerous to do so only when you feel like something may be off.

Selective social media reviews can be seen as based on discriminatory factors. Indeed, the gut feeling may be based on implicit bias if the person is different from you – whoever you may be.

So decide before you begin recruiting for a position whether a social media screening will be part of the process and document it. Just don’t do it because of who the person is.

6. Print out any social media posts that you intend to consider.
We all know that individuals may delete or hide posts from the public; therefore, print out anything you find as soon as you see it. Note what disturbs you about it. This preserves the argument, by negative implication what you did not consider, namely, an applicant’s membership in a protected group.

About Jonathan A. Segal
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .