Employers need to take note of a reorganization at the Department of Labor involving the Wage and Hour Division, the Office of Labor-Management Standards, the Office of Federal Contract Compliance Programs and the Office of Workers' Compensation Programs.

The Employment Standards Administration, the umbrella agency that is currently responsible for the management of these four agencies, will be abolished in November. As a result of this action, these four subagencies will instead be reporting directly to the Office of the Secretary of Labor as stand-alone organizations. This move comes on the heels of the secretary of labor's recent promise to "reinvigorate" the Wage and Hour Division and spearhead a renewed effort to increase the enforcement of worker protection laws.

The division is responsible for enforcing several laws including the Fair Labor Standards Act and the Family and Medical Leave Act; the Office of Labor-Management Standards enforces the Labor-Management Reporting and Disclosure Act and other employment standards; the Office of Federal Contract Compliance Programs is responsible for items such as equal opportunity and affirmative action requirements as well as the Rehabilitation Act; and the Office of Workers' Compensation Programs administers disability compensation programs.

Each of these agencies will now have a closer relationship with the secretary of labor and the deputy secretary. This reorganization also provides the Secretary and the Deputy Secretary with greater control over these agencies, potentially streamlining their ability to change policy approaches, including more aggressive enforcement stances.

Importantly, the abolishment of the Employment Standards Administration will leave employers with one less avenue of appeal for actions taken by the agencies. This impending reorganization likely means that employers do not have much time to prepare for what promises to be decisive implementation of the labor secretary's pro-enforcement agenda across the broad spectrum of workplace laws and regulations. Employers will want to review their policies and practices to determine if they are in full compliance with the laws.

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-- Christopher Ramsey,
Morgan Lewis & Bockius LLP
cramsey@morganlewis.com

Googling a job candidate to see what shows up on social networking Web sites, chat rooms, online news media and elsewhere on the Internet seems on the surface to be a safe way for an employer to investigate job candidates. But if a company isn't careful, Internet research on a job seeker can lead to a costly lawsuit.

The problem with an Internet search of job candidates is that it may turn up information about which the employer isn't permitted to ask under current laws.

Here are some examples of information that can show up in an Internet search that the employer may not use in making a job decision:

• The fact that a job candidate has been involved in union activity or protest marches

• Photos or chat room posts that show that a female candidate has young children or provides care for an elderly relative

• Details about a disability that the job candidate has

• Private habits that are legal, such as gambling

Even if the employer does not use this information in making a job decision, the fact that it has the information and rejected a job candidate could lend credence to a lawsuit or administrative action that claims discrimination in employment. For example, someone in an alcoholism recovery group could claim that was the reason she was rejected for the job.

Businesses routinely develop and make their hiring managers follow a policy that spells out what information is fair game in the hiring process. That policy should include an explicit statement that if irrelevant information shows up in an Internet search that it should not be saved in the applicant's file, nor used in making any hiring decisions.

-- Beth Slagle,
Meyer Unkovic & Scott,
bas@muslaw.com

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