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Federal Judge Prevents Implementation of DOL Final Overtime Rule

On November 22, 2016, a Texas federal judge issued a nationwide preliminary injunction which prevents the Department of Labor's new overtime rules, known as the Final Rule, from taking effect on December 1, 2016.

The Department of Labor's (DOL) Final Rule would have doubled the exemption threshold for overtime pay from $23,660 a year to $47,476 for most salaried workers. The change would have required most businesses and many nonprofit organizations to pay time-and-a-half for more than 40 hours per week by those employees making less than $47,476 per year.

However, U.S. District Judge Amos Mazzant found that the State Plaintiffs, a group of states that did not include Pennsylvania, met their burden for a preliminary injunction to stop the Final Rule from going into effect next week.

The Court held that the statute under which the "white collar" salary exemption comes, is plain and unambiguous, and that it is Congress, not the DOL, who has the ability to make the changes laid out in the Final Rule. The Court also held that the Final Rule made a "de facto salary test" that is at odds with Congress' intention and exceeds the DOL's authority.

One of the questions that must be answered in issuing a preliminary injunction is if the injunction is in the public's best interest. Judge Mazzant held that if the State Plaintiffs proved their case, the implementation of the Rule, and the subsequent need to undo it, would greatly harm the public- particularly by costing the public, including the States, millions. Whereas, if the Defendants show the Final Rule is lawful and it is eventually implemented then there would be no harm caused by the injunction, only a delay, during which the current rules would apply. The Court also found that because the Final Rule would affect employers and employees in all states a nationwide enjoinment was necessary.

For assistance with overtime or other employment issues contact Kisner Law Firm.

FLSA Final Rule on Overtime and Exempt Employees

The Department of Labor finalized the Final Rule regarding increases to salary for exempt employees (those who do not have to be paid overtime). The FLSA Final Rule on Overtime and Exempt status will become effective on December 1, 2016.

Highlights of the new FLSA Final Rule on Overtime and Exempt status:

  • The weekly requirement for a salaried individual, to remain exempt, will increase to $913 per week; $47,476 annually for a full-year worker.
  • Individuals who are exempt because of highly compensated employee status will now need to receive a salary of $134,004 annually.
  • The salary requirement will be updated every three years.
  • The Final Rule will allow employers to use non-discretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new requirements.

What you need to do now:

  • As of now, no salaries, exemption levels or policies need to be changed prior to December 1, 2016
  • Employees who are currently salary-exempt need to be evaluated; those who may be affected by the FLSA Rule, particularly those who earn $913 per week or less need to be identified
  • Determine if those employees identified as falling below the threshold who will receive a salary increase, become  hourly employees who are paid overtime or a hybrid- where employees are paid a salary and overtime hours.

Employers and businesses in the Pittsburgh area can contact Kisner Law Firm for assistance with exempt-salary employees impacted by the new FLSA overtime Rule. We can assist with identifying employees, developing new compensation strategies, answering questions and updating handbooks and other policies prior to the December 1, 2016 effective date.

Social Media, E-mail and the Work Place, What's Not to "Like"?

BW Sq Chairs.jpgSocial media has evolved into an ever-growing part of life for many employers and employees. Companies and individuals can benefit both professionally and personally from their use of social media. Advertising and networking with previously unavailable contacts can now be done in real time with little to no cost. However, along with these benefits comes substantial risk. Social media's instant and public display means that users can easily (perhaps too easily) voice their opinions, and those opinions are forever memorialized in cyberspace. Just as things can be said in the heat of the moment, they can also be posted, tweeted, texted or updated in the heat of the moment. The difference is that when spoken, your audience is limited and your words are not often memorialized. On the other hand, when using social media, your audience can be unlimited (see, e.g., reposting and re-tweeting) and everything that you share, whether it is edited or later deleted, can be captured, saved and later reproduced.

Employer Liability

The public display and permanency of social media posts can become particularly troublesome when an employee chooses to discuss matters relating to their employment. Even if they post as an individual in their own capacity and on their own time, employee posts can lead to trouble for an employer. These issues can arise in a variety of situations. The most frequently occurring: the employee makes disparaging comments about the employer or their practices, reveals private business matters or confidential information about clients, harasses fellow employees, or makes inappropriate contact with clients or competitors. What complicates matters for employers is that despite all of the potential risks associated with employee social media usage, they cannot place an outright ban on employee usage in connection with employment.

Protected Speech and Freedom of Expression

The National Labor Relations Board (NLRB) determined that even if comments are potentially harmful to a company, if they relate to certain protected activities, such as organization or voicing concerns over wages or conditions, the employer cannot hold the activity against an employee. Overly broad social media policies, particularly those that appear to curtail or discipline most, if not all, of any employees' private use of social media, have been found to violate labor laws. However, even those jurisdictions restricting a company's social media policy generally agree that policies can restrict employees from posting that which disparages the company or violates harassment or similar existing company policies.

Employer Provided Email Usage May Be Protected Too

A recent decision by the NLRB may mean that employer-provided email might also be protected for use in connection with concerted activities. In Purple Communications, Inc. (21-CA-095151 and 21-RC-091531 and 21-RC-091584; 361 NLRB No. 126), the Board determined that unless an employer could show special circumstances, there was a presumption that an employer must permit employees to use its company email system, to which employees otherwise have access, for the purpose of conducting protected communication activities during breaks and after work time. The Board remanded the case to allow the employer to show why the restriction on the activity was necessary to "maintain production and discipline", the criteria necessary to rebut the presumption.

Social Media and Discrimination

Social media sites have helped many employees not only network, but find jobs. The multi-depth and interactive properties of social media also provide employers with insight into potential candidates like never before. This wealth of information allows employers to better discern potential workers' skills, experiences and even personalities before ever conducting an interview. The collection of information can be quicker, less expensive and more accurate than traditional paper applications. However, some are questioning whether this peek behind the curtain is being used in a discriminatory fashion. After all, in addition to a person's professional experiences and educational background, employers become privy to information about a candidate's race, gender, age, nationality, religion, marital status, sexual orientation, disabilities and other federal, state and locally protected class information.

In March 2014, the Equal Employment Opportunity Commission (EEOC) held a meeting with a panel of experts to better understand how social media impacts anti-discrimination laws and the corresponding enforcement of these laws. The EEOC has not yet released an official opinion or significant guidelines regarding the matter, but employers can still be proactive in protecting themselves. Employers should institute carefully constructed policies for what type of information they research and consider when looking at applicants and employees online. If possible, one person should be in charge of reviewing the online content and writing a summary of the information found. This summary should not contains any information pertinent to a identifying a candidate or employee as part of a protected class. This information should then be passed to the next person in the decision making process. The online reviewer's role should end here to minimize any claims that information discovered during the social media review was used to discriminate against an applicant or employee. If it is not possible to have separate persons complete the review and hiring processes, then the single person in charge must be diligent in keeping the scope of their review to professional qualifications and keeping a record of what considerations were used to make the decision, whether it was positive or negative. The key to avoiding discrimination is a narrow scope, neutrality and record keeping.

Passwords and Privacy Settings

Only a few states (not yet Pennsylvania) have made it unlawful for an employer to request an employee or potential hire's personal login information. However, even though it may be legal to request the information in a majority of jurisdictions, the courts are unclear on whether or not an employee must hand over the requested information and how a refusal to do so can impact their employment.

In contrast, several jurisdictions have determined that despite the use of certain privacy settings, the act of posting information is a public act, which waives an employee's right to claim that their social media activities are private. This means that employers can prohibit certain activities and discipline or terminate employees who violate these policies when posting information.

Carefully Crafted Policies Provide Protection

Employers should carefully craft their social media and electronic communication policies and make sure that they are specific, and not overly restrictive of employees' private lives. The must be tailored so as to not violate labor laws, particularly an employee's right to organize and communicate with one another. At the same time, employers should have a social media policy to protect their reputation and insulate themselves from potential liability for employee's private social media activities. Employers may want to obtain legal counsel before implementing any new policies or to review existing policies.

Contact Kisner Law Firm

Employers must carefully consider policies, posting and privacy settings. Sometimes these complex situations require legal assistance. The Kisner Law Firm advises on all areas of employment law, including social media policies. We serve as general counsel to many companies, helping them plan as they grow and expand. We are available to provide advice whenever workplace issues arise, whether large or small, so employers can craft a careful response. We at Kisner Law Firm understand that employment issues require careful attention, and you will quickly learn why our brand of personal, responsive service is so appreciated by our clients. Contact us today for any and all of your employment law needs.

Property Assessment Appeals and Hearings

As property owners in Pittsburgh and across Allegheny County know, the 2013 court-ordered reassessment assigned new assessed values to every property in the county. Almost all assessed values increased, and many increased significantly. In response, thousands of owners filed informal appeals and formal appeals, challenging their assessments. Keep reading for information about the Kisner Law Firm, the appeal process, preparing a strong case, and frequently asked questions.

The Kisner Law Firm

Thumbnail image for BW-SQ-City-County-Bldg.jpgThe Kisner Law Firm helps property owners from all across Allegheny County in their assessment appeals. We can step in at any time up and take over the whole process for you. For a low flat fee, we will take care of everything for you at the hearing, and if we are not satisfied with the reduction, we will even take the case to the Board of Viewers with no extra legal fee. We request that you retain our firm at least one week before the hearing date so we can fully prepare to put on a strong case. When the hearing date arrives, you don't even need to attend. Just relax and let us handle everything.

We are proud of our record of getting great assessed value reductions for our clients. Read about our recent success stories to see the kinds of results we work to get.

We always provide a complimentary evaluation of the property and the strength of the evidence available before you retain us. Our firm uses professional-level real estate databases that allow us to analyze any property in Allegheny County. Contact the Kisner Law Firm today for a free evaluation of your property so you can win the fight to lower your real estate taxes.

The assessment appeal process

For the 2013 court-ordered reassessment, the assessment appeal process has several primary steps:

  1. The informal appeal. Informal appeals were held during the spring and summer months. The hearings were intended to focus primarily on mistakes in the county database regarding property characteristics (square footage, number of bedrooms, etc.). This gave property owners the chance to appeal in a more casual setting, without opposition from attorneys representing the municipality or school district. About half of the property owners who filed informal appeals received some form of reduction in value. But most of the reductions were minor, and the other half did not receive any reduction, so formal appeals were needed.
  2. The formal appeal. Formal appeals started in the summer and are scheduled to run at least until the end of October. You should receive a Notice of Scheduled Assessment Appeal Hearing in the mail at least two weeks before the hearing date. The hearing is an opportunity for the property owner or legal representative to present evidence of a lower value.
  3. The Board of Viewers. Several weeks after the formal appeal hearing, the disposition is mailed, which tells the owner whether the formal hearing was successful or not. After the formal appeal hearing, the next step is to appeal to the Board of Viewers, part of the Court of Common Pleas of Allegheny County.
Preparing a strong case

Chairs.jpgWithout strong evidence that the property is overassessed, the most likely result is no change in value. The most common reason cited in the disposition is "insufficient evidence." We know property owners hate to see an unfavorable result when they spent their time fighting an unfair assessment. After years of successfully representing property owners in assessment appeals, our firm knows what mistakes to avoid and what points to emphasize. These are the most common factors that we use to contribute to the strength of a case:

  1. The recent sale of the subject property. If you recently (within the past 2-4 years) bought your house for an amount less than the assessed value, that is a great argument for reducing the assessment. However, if you recently purchased your house for more than the assessed value, an attorney is probably needed to address that counter-evidence.
  2. Recent comparable sales. The recent sales of comparable properties is usually the backbone of a strong appeal case. We like to find comparable sales that:
    • are within the last 1-2 years
    • are a short distance from the subject
    • have similar physical characteristics
    • are the same type of building (split-level, rowhouse, condo, multi-family, etc.)
  3. Defects in the property or mistakes in the county data. Physical defects in the property are important, but may not be recorded in the county database. If a roof is damaged and in need of repair, or if there are other issues, those can be evidence of a lower value. Sometimes the county data is simply mistaken on a statistical issue like the square footage. In that case, correcting the mistake can support a lower value.
  4. Appraisals. If good comparables and other arguments are not available, it may be a good idea to order a professional appraisal of the property. This involves an additional cost, typically a few hundred dollars, but it can be persuasive evidence for a lower value.
For more information...

For more information, or for a free evaluation, contact the Kisner Law Firm today. You can also consult our Frequently Asked Questions page or our Legal Blog for more information related to the 2013 court-ordered reassessments and the appeal process.

Business Start-Up

Chairs.jpgIncorporating is just the first step in starting a successful business. You need more than just the right paperwork to file. You need a trusted business attorney who can guide you through the entire process. We will help you and your business partners tailor your incorporation in a way that maximizes legal protections and minimizes taxes and liability exposure.

Many considerations affect how we advise our business clients to proceed with incorporation. Below are some of the questions we ask during the process.

First, we need to know about the business itself:

  • Does the business sell a product or provide a service?
  • What are the major transactions that are likely to arise?
  • What federal and state regulations apply specifically to these activities?

Next, we ask about the owners:

  • How many owners will their be?
  • What are their financial positions?
  • How will ownership, management, and financial responsibilities be divided?
  • How will profits be divided?
  • Are all owners active or are some passive investors?

The discussion about tax issues is one of the most important:

  • What is the best strategy to minimize tax liability?
  • Should we file for an s-election with the IRS?

We then move on to discuss more specific issues, like insurance:

  • How much business insurance is needed?
  • What other types of insurance are needed to protect the company?
  • Will the company pay for health or life insurance for the owners?

Next, we discuss possible employees:

  • How many employees will the business have?
  • Will any of the owners be employees also?

Last, we talk about the long-term goals of the business:

  • Where do you see the business in 5 years, in 10 years?
  • What legal issues will arise between now and then?

Our incorporation meetings are always enjoyable because we can learn so much. We become experts in our clients' businesses so we can assist them when legal issues arise, and we teach our clients the most important things they need to know about the legal side of incorporation.

Read more about the business law services that the Kisner Law Firm provides.

Employment Litigation

Disputes between small businesses and employees involve high stakes for all parties. The Kisner Law Firm is experienced in representing both employers and employees when problems arise. Although we generally try to keep our employer clients from becoming involved in litigation, we are prepared to fight hard and work efficiently when litigation is necessary.

We help employers conduct a thorough investigation into the claim by interviewing potential witnesses, reviewing documentation, and compiling relevant electronically stored information. Then we meet with the managers or owners of the employer to craft an overall legal strategy that will best serve their needs.

Most employment actions filed end up being dismissed or settled for a reasonable amount if the employer is represented well. It can take months to get through the initial procedural steps and initial discovery before the parties are able to begin discussing settlement. Some cases never settle, and the Kisner Law Firm represents employers all the way through trial if necessary.

Read more about the employment law services that the Kisner Law Firm provides.

Office Location

Kisner Law Firm, LLC
Gulf Tower
707 Grant St., Suite 2646
Pittsburgh, PA 15219
Map and Directions

Phone: 412-208-4263
Fax: 412-235-6704

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