PLDR EMPLOYMENT LAW GROUP UPDATES

VACATION PAY FOR TERMINATED EMPLOYEES

11/07/2017

There is no Virginia statute that requires employers to pay a departing employee for accrued vacation or other leave time.  The Virginia Department of Labor and Industry (DOLI), however, takes the position that the employer does have an obligation to pay for accrued leave if the employer has a policy or practice of doing so.  For example, if the company’s employee handbook states that accrued vacation time will be paid upon termination of employment, the company will be bound by that policy.

To avoid uncertainty and the potential for claims to the DOLI, employers should clarify their policies in their employee handbooks about payment of accrued vacation, sick or other types of leave upon termination of employment.  For example, a policy might state:  “In the event of resignation, and when two weeks notice has been given, any accrued, unused vacation will be paid.  Any employee who is terminated for cause will forfeit payment of unused vacation.”

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NEW I-9 FORM

07/26/2017

Employers will be required to use the newest version of the Form I-9 to verify the employment eligibility of their employees by September 18.  The changes to the form mostly relate to the List of Acceptable Documents. The new form should be used when verifying the eligibility of new employees or re-verifying the eligibility of employees who have work authorizations with an expiration date.  A link to the new form can be found at https://www.uscis.gov/i-9

The retention requirements for the new form have not changed. Employers must retain each employee’s completed Form I-9 for as long as the employee is on the payroll. Once an employee leaves the company, you must keep the form for either three years after the date of hire or one year after the termination date, whichever is later.  Forms can be retained in paper, microform or elec­tronic format.

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EMPLOYMENT APPLICATION MISTAKES

06/13/2017

Employers should be aware of potential legal pitfalls in their employment application forms.  A good rule of thumb is to avoid asking for information that cannot legally be considered in making a hiring decision.  The following are examples of information that should generally not be requested:

  • Medical or disability-related questions.  These can potentially violate the Americans with Disabilities Act.
  • School graduation dates.  Asking for this information can allow the employer to deduce the age of the applicant, which can lead to a potential violation of the Age Discrimination in Employment Act.
  • Arrests and convictions, unless they are job related to the position in question, and you include a disclaimer.  The EEOC has issued guidance indicating that the use of criminal history information can have a disparate impact on minority applicants.
  • A photograph.  EEOC guidance states that this can give rise to race discrimination.
  • Marital or familial status.  Asking for this information can give rise to a sex discrimination claim.  Familial status is also a protected category in some states.
  • Citizenship.  Discrimination against applicants on the basis of citizenship is prohibited.  The Form I-9 is the appropriate way to inquire about citizenship after an applicant has been hired.

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DEPARTMENT OF LABOR’S WORKPLACE POSTER REMINDER

04/18/2017

The United States Department of Labor (DOL) enforces several laws and regulations that require notices to be posted in the workplace. The required posters are available in electronic copy through the DOL.  Not all employers are covered by every law or regulation.  As an example, businesses with fewer than 50 employees are not required to post a notice about the Family and Medical Leave Act (FMLA).  More information is available from the DOL about the most recent poster requirements at the Poster Advisor on their website at:

Employment Laws Assistance for Workers and Small Business (elaws) Poster Advisor .

You can also obtain more information by calling the DOL at (866) 4-USA-DOL.

The law imposes penalties for failing to display the required posters.  As examples, the current penalties for some first offenses are:

  • $12,675 for failure to display the Occupational Safety and Health Administration poster
  • $534 for failure to post the Equal Employment Opportunity poster.
  • $166 for failure to display the Family and Medical Leave Act poster.

Most penalties increase if they are considered to be willful, which might occur after a first offense.

Some experts advise taking date-stamped photos of old posters to verify compliance before replacing them with updated versions.  This would preserve evidence in case of litigation in which a question arises about whether a poster was displayed.Effective July 1, 2017, a new Virginia law requires employers and payroll service providers to notify the Office of the Attorney General “without unreasonable delay” after discovery of a breach of computerized employee payroll data that compromises the confidentiality of the data.  This obligation applies regardless of whether the breach triggers other database breach notification requirements. The law requires the notice to provide the affected employer’s name and federal employer identification number. Upon receipt of the notice, the Office of the Attorney General is required to notify the Department of Taxation of the breach.

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NEW VIRGINIA LAW IMPOSING NOTIFICATION REQUIREMENT FOR BREACH OF PAYROLL DATA

03/27/2017

Effective July 1, 2017, a new Virginia law requires employers and payroll service providers to notify the Office of the Attorney General “without unreasonable delay” after discovery of a breach of computerized employee payroll data that compromises the confidentiality of the data.  This obligation applies regardless of whether the breach triggers other database breach notification requirements. The law requires the notice to provide the affected employer’s name and federal employer identification number. Upon receipt of the notice, the Office of the Attorney General is required to notify the Department of Taxation of the breach.

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EEOC ISSUES NEW GUIDANCE ON NATIONAL ORIGIN DISCRIMINATION

1/05/2017

National origin discrimination is one of the forms of discrimination prohibited by the federal civil rights law known as Title VII.  The Equal Employment Opportunity Commission has issued new guidance in a question-and-answer format about this type of discrimination.  Here is an example of the types of issues addressed by the guidance:

  1. How is national origin discrimination defined under Title VII?

Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.

The question-and-answer guide is found on the EEOC’s website at:

https://www.eeoc.gov/laws/guidance/national-origin-qa.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

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DOL OVERTIME RULE BLOCKED

11/23/2016

A federal judge in Texas yesterday issued a nationwide preliminary injunction preventing the U.S. Department of Labor’s new overtime rule from going into effect as scheduled on December 1.   This action leaves in place the current minimum salary level of $455 per week required for employees to be classified as exempt.  The new rule would have raised that level to $913 per week.  The injunction is only preliminary, but will remain in place until the court rules otherwise.  It is also possible that the incoming presidential administration will take steps to reverse the new rule, so stay tuned.

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NONCOMPETE AGREEMENTS AND INDEPENDENT CONTRACTORS

10/28/2016

A judge in Fairfax County recently voided a noncompete agreement for a worker whom a company classified as an independent contractor.  The worker had signed an agreement that labeled her as an independent contractor, and also included a 2-year noncompete provision.  She subsequently left the company and went to work for a competitor.  When her former company filed suit to enforce the noncompete agreement, the judge ruled that the entire agreement was void because it misclassified her as an independent contractor when she actually was an employee. The judge concluded that the misclassification violated public policy and thus rendered the entire agreement unenforceable.

The judge did not specifically address the question of whether a noncompete agreement can ever be enforced against a true independent contractor.  Theoretically, such an agreement with an independent contractor might be enforceable if properly drafted.  The problem, however, is that noncompete agreements restrain the ability for independent contractors to do business with other parties, which appears contrary to the identity of an independent contractor versus an employee. The independent contractor should be free to do business with multiple clients. The non-compete agreement specifically limits the independent contractor’s ability to work for certain clients, which is the kind of control that an employer might exercise over an employee.  Including a noncompete provision in an independent contractor agreement risks a court concluding that the worker was misclassified, as did the judge in Fairfax County.

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EEOC INCREASES FINES FOR POSTER VIOLATIONS

7/12/2016

The Equal Employment Opportunity Commission (EEOC) announced on June 2, 2016 an increase in the maximum penalty for employers that fail to comply with certain federal notice-posting requirements. The maximum penalty will increase from $210 to $525.

Employers with 15 or more employees are covered under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), and must comply with the poster requirements under these laws to avoid penalties.  The poster “Equal Employment Opportunity is the Law” can be printed or ordered from a link on the EEOC’s website at  https://www1.eeoc.gov/employers/poster.cfm .

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NEW TRADE SECRETS LAW

6/3/2016

On May 11, the President signed into law the new Defend Trade Secrets Act of 2016 (DTSA).  This new statute contains two significant features that employers should note.

The law’s most prominent feature provides for the first time a civil claim in federal courts for misappropriation of trade secrets.  Until now, trade secret misappropriation claims have been handled primarily in state courts under laws such as the Virginia Uniform Trade Secrets Act.  The state laws have some limitations that are remedied by the new federal statute.  For example, the DTSA will allow companies to pursue trade misappropriation that occurs across state and international borders.  The new statute also defines “trade secrets” broadly.  Greater uniformity in trade secret law nationwide will be a likely result of the DTSA.

A second and perhaps less publicized feature of this new law should also be noted by employers.  The DTSA contains some new whistleblower protections for employees.  Whistleblowers now have immunity for divulging trade secrets to attorneys or law enforcement agencies when reporting suspected law violations, or if the information is contained in documents filed under seal in court.  The statute requires employers to provide notice of this immunity “in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.”  This would include, for example, employment contracts and severance agreements.  Failure to include the immunity notice in these agreements can cause an employer to lose some of its rights under the DTSA, such as the right to collect punitive damages or attorney’s fees from the employee for misappropriation of trade secrets.

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NEW OVERTIME PAY REGULATIONS

5/18/2016

          The U.S. Department of Labor today issued its long-awaited final regulations confirming the proposed changes to the Fair Labor Standards Act overtime pay exemptions.  The salary level that is required as part of the test for an employee to be classified as exempt has been $455 per week for many years.  The new regulations increase this level to $913 per week.  The change on an annual basis is from $23,660 to $47,476.  The new salary level goes into effect on December 1, 2016.

Under the new regulations, employees with a salary of less than $913 per week must be paid time and one-half for all hours over 40 per week. In order to keep an employee who is currently earning less than $47,476 annually in the exempt category, you will need to raise the employee’s salary to at least that level.  Alternatively, employers can reclassify the employee as nonexempt and maintain the employee at a salary of less than $47,476 annually, but require the employee to record work hours and pay the overtime level for hours in excess of 40 per week.  The employee can also be reclassified as hourly nonexempt, with the requirement for overtime pay.

Employers are now faced with some difficult decisions in the wake of the new regulations.  If employees who are currently salaried are reclassified as hourly, they potentially will view the change as a loss of status or demotion, even though their compensation might actually increase if they work overtime. Employers will need to examine all positions with a salary of less than $47,476 and decide what changes are needed.

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HAIR FOLLICLE DRUG TESTING

3/23/2016

          Employers are increasingly using the hair follicle drug test rather than the more frequently used urine and blood tests to test for drug use by employees.  Recent federal legislation will allow employers of commercial drivers to add hair testing as an option in addition to urine testing. The hair test offers some advantages over other forms of testing:

  • Hair tests detect a much longer history of drug use. Hair stores a longer history of drug use than either urine or blood, which are limited to a few days for most drug types.  Hair testing is the only drug testing method available that can provide a 90-day drug use history and is better at revealing chronic drug use.
  • Hair tests are harder to cheat. There are many devices and chemicals available on the internet to assist people in “beating” the urine test. Because there are no privacy issues with removing a hair sample from a person’s head, the sample can be taken in full view.

There are, however, some disadvantages and pitfalls to hair testing:

  • Hair testing cannot determine very recent drug use because hair grows so slowly, so it cannot be used for reasonable suspicion drug tests or post-accident testing.
  • If retesting is required or desired, a retest of the original hair specimen might be difficult or impossible.
  • Disciplinary action based on a hair test that reveals past, longer-term drug use can potentially violate the Americans with Disabilities Act if the employee has a drug addiction but is not a current user.

Employers who perform drug testing of employees should consider whether to include hair follicle testing as a method under certain circumstances.

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PRE-EMPLOYMENT BACKGROUND CHECKS

3/3/2016

            There has been an increase in lawsuits against employers for noncompliance with the Fair Credit Reporting Act (FCRA) involving pre-employment background checks. The FCRA has several mandatory steps that must be taken when an employer does background screening of a potential employee for criminal record, credit history, and certain other information.

Before screening occurs, the employer must obtain the applicant’s written consent and make certain written disclosures about the purpose for the background check. If an employer intends to take adverse action based on the results of the background check, you must first give the applicant a notice of intent to take adverse action form, a copy of the background report, and a copy of a document entitled “Summary of Your Rights Under the FCRA”. This will allow the applicant to correct any errors in the background report, such as a misidentification of the person. Once a final decision has been made not to hire the applicant because of the background report, the employer must supply the applicant with a final notice of adverse action letter.

Many violations of the above requirements can be technical, but can still give rise to legal liability for violating the FCRA. Employers must be certain to follow all the required steps when doing background screening.

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INCLEMENT WEATHER AND EMPLOYEE COMPENSATION RULES

1/13/2016

            Exempt and non-exempt employees are treated differently under the Fair Labor Standards Act (FLSA) when an employer closes for weather-related reasons. Under those circumstances, non-exempt employees are not entitled to pay, although they may use any accrued paid time off (PTO) to cover the absence. An employer may also have a policy that provides a certain number of paid days for inclement weather closings.

For exempt employees, the rules are different. If an employer is open for business during a snowstorm, for example, but an exempt employee chooses to stay home, the employee is not entitled to pay for that day unless he/she uses a day of accrued PTO. If, however, the employer closes for the day because of weather, the exempt employee’s full salary must be paid for that workweek, because the employee is available for work but it is the employer who has made the work unavailable to the employee.

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DEPARTMENT OF LABOR’S WORKPLACE POSTER REQUIREMENTS

9/30/2015

            The United States Department of Labor (DOL) enforces several laws and regulations that require notices to be posted in the workplace.  The required posters are available in electronic copy through the DOL.  Not all employers are covered by every law or regulation.  As an example, businesses with fewer than 50 employees are not required to post a  notice about the Family and Medical Leave Act (FMLA).  More information is available from the DOL about the most recent poster requirements at the Poster Advisor on their website at:

Employment Laws Assistance for Workers and Small Business (elaws) Poster Advisor .

You can also obtain more information by calling the DOL at (866) 4-USA-DOL.

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DEPARTMENT OF LABOR’S NEW INDEPENDENT CONTRACTOR GUIDANCE

7/21/2015

            The United States Department of Labor (DOL) has issued new guidance that narrows the definition of “independent contractor.”  Under the new criteria, many workers who were previously classified as independent contractors would now be classified as employees.  Among other consequences, if considered an employee the worker will be entitled to minimum wage and overtime payments, and the employer will be required to withhold payroll taxes.

In determining the classification, the DOL had previously emphasized the extent to which an employer controlled the person’s work.  The new guidance no longer places as much emphasis on the “control” factor, and instead uses an economic realities test which examines the extent to which a worker is economically dependent on the employer versus being in business for him or herself.  The DOL notes six factors as part of the new test:

*     The extent to which the work performed is an integral part of the employer’s business.

*     The worker’s opportunity for profit or loss depending on his or her managerial skill.

*     The extent of the relative investments of the employer and the worker.

*     Whether the work performed requires special skills and initiative.

*     The permanency of the relationship.

*     The degree of control exercised or retained by the employer.

The guidance can be found at:  http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf

The DOL has determined that most work should be performed by employees, and independent contractors should be used less frequently.  In light of this new guidance, employers should determine whether any workers they have classified as independent contractors should be reclassified as employees.  The DOL has given notice that it increasingly will be scrutinizing these classifications.

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DEPARTMENT OF LABOR ISSUES NEW F.M.L.A. FORMS

5/28/2015

            The United States Department of Labor (DOL) has issued updates to Family and Medical Leave Act (FMLA) forms.  The new forms have an expiration date of May 31, 2018.

The revisions to the forms are relatively minor but add information relating to the Genetic Information Nondiscrimination Act (GINA).  Employers must keep any medical information confidential under both GINA and the Americans with Disabilities Act (ADA), and health care providers should not provide genetic information during the family and medical leave certification process.  Some of the new forms did not contain any revisions to the substance of the old forms, but merely received a new expiration date.

For those employers who are covered by the FMLA (employ 50 or more employees within 75 miles), the forms are not mandatory but are recommended.  The new forms can be found on the DOL’s website at the following links:

*     WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (pdf)

*     WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (pdf)

*     WH-381 Notice of Eligibility and Rights & Responsibilities (pdf)

*     WH-382 Designation Notice (pdf)

*     WH-384 Certification of Qualifying Exigency for Military Family Leave (pdf)

*     WH-385 Certification for Serious Injury or Illness of Current Servicemember – for Military Family Leave (pdf)

*     WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (pdf)

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SOCIAL MEDIA ACCOUNTS OF CURRENT AND PROSPECTIVE EMPLOYEES

4/9/2015

            Effective July 1, 2015, Virginia has a new law restricting employers from compelling current and prospective employees to provide certain social media information.  New Va. Code § 40.1-28.7:5 prohibits an employer from requiring a current or prospective employee to disclose the username and password to his/her social media account.  The measure also prohibits an employer from requiring an employee to add an employee, a supervisor, or an administrator to the list or contacts associated with the employee’s social media account.  Employers may not retaliate against employees or refuse to hire applicants for exercising their rights under this new law.

A link to the full text of the new statute as signed by the Governor on March 23 is found at:  http://leg1.state.va.us/cgi-bin/legp504.exe?151+sum+HB2081

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DRUG FREE WORKPLACE ACT

4/3/2015

            For employers involved with federal contracts, the federal Drug-Free Workplace Act imposes requirements that are not generally applicable to other employers.  The Act applies to all federal contractors with contracts in excess of $100,000.  Covered employers must take certain measures including the following:

*     Publish and give a policy statement to employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited;

*     State penalties for violating the policy, and establish a drug-free awareness program;

*     Impose a penalty or require satisfactory participation in a rehabilitation program by any employee who is convicted of a reportable workplace drug conviction;

*     Make an ongoing, good-faith effort to maintain a drug-free workplace.

These are only some of the Act’s requirements.  We recommend that federal contractors include a Drug Free Workplace Act section in their employee handbook to comply with the Act.

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INDEPENDENT CONTRACTOR MISCLASSIFICATION

2/23/2015

            The U. S. Department of Labor (DOL) has been beefing up its enforcement of employers’ misclassification of workers as independent contractors rather than employees.  The DOL recently announced successful enforcement actions against several companies that were required to pay significant compensation for misclassifying workers.  The IRS also is more closely scrutinizing independent contractor classifications.

Misclassification is an issue because it results in employers failing to withhold workers’ payroll taxes, not filling out I-9 immigration forms, failure to pay overtime, and not paying workers’ compensation.  It also affects workers’ eligibility for retirement benefit plans.

Some of the red flags for misclassification of a worker as an independent contractor are:

*     Payment by the hour rather than by the project;

*     The worker receiving paid sick or vacation leave;

*     The employer reimbursing the worker for business expenses; or

*     The worker being required to sign a noncompete agreement.

An employer’s failure to classify a worker properly can result in significant penalties, as illustrated by the DOL’s recent enforcement actions.  The independent contractor classification should be used only after careful scrutiny to determine that it is being used correctly.

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NEW OSHA REPORTING REQUIREMENTS

2/13/2015

            Effective January 1, 2015, the revised injury and illness recordkeeping and reporting requirements of the Occupational Safety and Health Administration (OSHA) went into effect.  Employers were previously required to report all work-related fatalities and inpatient hospitalizations of three or more employees within 8 hours.  The new rules still require employers to report all fatalities to OSHA within 8 hours, but now employers will also have to report each single work-related inpatient hospitalization, as well as amputations and losses of an eye, to OSHA within 24 hours.  The 8 and 24-hour periods are measured from the time the employer learns about the injury or fatality, not from when the event occurred.  OSHA’s webpage https://www.osha.gov/recordkeeping2014/index.html describes the new rules.

In addition, the new rules require an estimated 199,000 employers that had previously been partially exempt from recordkeeping requirements to keep OSHA injury and illness records.  Exemptions are based on an updated Classification System of industries.  The new rule maintains the recordkeeping exemption for any employer with 10 or fewer employees regardless of industry classification.

The new list of exempt industries is found at https://www.osha.gov/recordkeeping/ppt1RK1exempttable.html, and now includes gasoline stations, clothing stores, newspaper publishers, colleges and universities, and full-service restaurants.

Industries newly required to keep records include automobile dealers, liquor stores, bakeries, performing arts companies, museums, historical sites, and emergency and other relief service. (https://www.osha.gov/recordkeeping2014/reporting_industries.html)

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TELECOMMUTING AS A REASONABLE ACCOMMODATION UNDER THE ADA

7/8/2014

            Those employers that have 15 or more employees are subject to the Americans with Disabilities Act (ADA) and have a duty to make a reasonable accommodation of an employee’s disability.  The courts have been divided about whether allowing an employee to work from home (telecommuting) can be a reasonable accommodation.  A recent decision of the U.S. Court of Appeals for the 6th Circuit provides an example of a court concluding that this potential accommodation might be reasonable.

The employee in that case, EEOC v. Ford Motor Co., suffered from irritable bowel syndrome.  When her symptoms worsened she began to miss increasing amounts of time from work, which hurt her job performance.  The company initially allowed her to telecommute on a trial basis, but ultimately concluded that the arrangement was not appropriate because there were important aspects of the employee’s job such as meetings with certain suppliers that she could not perform remotely, and that in-person teamwork was an essential part of her job.  When she was unable to be at work in person on a regular basis, the company terminated her employment.

The EEOC filed a lawsuit on the employee’s behalf, but the trial court granted summary judgment to Ford and dismissed the suit before it reached a trial.  The judge ruled that the company was justified in terminating the employment because of excessive absenteeism, and that telecommuting was not a reasonable accommodation under the circumstances.  The Court of Appeals reversed the trial court, however, and concluded that there was a genuine issue of fact for a jury to decide whether the employee could perform all of her job duties from a remote location.  The fact that the employee could not meet the employer’s attendance requirements was not an absolute disqualifier  if she were able to perform her duties remotely.  A jury will now decide whether telecommuting is a reasonable accommodation for this employee’s disability.

This and other similar cases should serve to alert employers that telecommuting cannot automatically be dismissed as a reasonable accommodation of an employee’s disability.  Employers must determine on a case-by-case basis whether the disabled employee’s job duties can be performed remotely without undue hardship to the employer.

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EMPLOYER LIABILITY FOR THIRD-PARTY HARASSMENT

5/7/2014

            The Federal 4th Circuit Court of Appeals (which covers Virginia) last week issued a decision of first impression concerning an employer’s liability for harassment of an employee caused by a third party such as a visiting vendor.  In that case a regular customer of the employer engaged in sexual and racial harassment of a black female employee.  For the first time, the 4th Circuit adopted a negligence standard for determining if an employer is liable:

“Therefore, an employer is liable under the Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed ‘to take prompt remedial action reasonably calculated to end the harassment.'”

Employers should be aware that you can be held liable for a hostile work environment even if it is not created by other employees.

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NEW GUIDANCE ON BACKGROUND CHECKS

4/23/2014

            The Federal Trade Commission and the EEOC recently co-published two guidance documents concerning the use of background checks for employment purposes.  One document is for employers, and the other is for job applicants and employees.  The EEOC examines background checks in the context of employment discrimination claims, while the FTC enforces the Fair Credit Reporting Act which governs the use of background checks performed for employment purposes.  These documents review and reiterate previous guidance from these agencies, but also provide “best practices” guidelines that employers should heed.  One example of an important pratice reminder is the rule that an employer who requests a background check for a job applicant must give the applicant notice in writing that the background information might be used for decisions about the employment.  This notice must be in writing and in a stand-alone format, rather than as part of a job application.

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AFFORDABLE CARE ACT NOTICE TO NEW EMPLOYEES REGARDING HEALTH INSURANCE EXCHANGES

3/23/2014

            Several months ago we alerted you to the Affordable Care Act’s requirement that you give a written notice to all employees about the new health insurance Exchanges by October 1, 2013.  It is important to remember that you must also give the notice to each new employee at the time of hire or no later than within 14 days of an employee’s start date.  The U. S. Department of Labor (DOL) has provided a model Exchange notice for employers who offer a health plan to some or all employees, and a separate model notice for employers who do not offer a health plan.  Those model notices are found on the DOL’s web page with other information about the Act at http://www.dol.gov/ebsa/healthreform/ .  Employers may use one of those models or may use another form of notice, provided that the notice contain the required information as described on the DOL’s information page.

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NLRB DECIDES NOT TO APPEAL COURTS’ INVALIDATION OF POSTER RULE

1/8/2014

            Two federal Courts of Appeal recently struck down the National Labor Relations Board rule that required employers covered by the National Labor Relations Act to post a new notice of labor rights.  The courts ruled that the NLRB had exceeded its legal rule-making power in promulgating the rule.  In a statement released January 6, shortly after the deadline for filing a petition for certiorari with the U. S. Supreme Court, the Board announced that it “decided not to seek Supreme Court review of two U. S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.”

The litigation concerning the poster requirement now appears to be ended.  Although employers are not required to post the notice, they may do so voluntarily.  The 11 by 17 inch poster is available on the NLRB website at:

http://www.nlrb.gov/poster

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AFFORDABLE CARE ACT NOTICE TO EMPLOYEES REGARDING HEALTH INSURANCE EXCHANGES

9/4/2013

            Open enrollment under the Affordable Care Act’s new health insurance Exchanges will begin on October 1, 2013, with coverage to begin on January 1, 2014.  The Act requires employers to give a written notice to employees about the Exchanges by October 1.  The U.S. Department of Labor (DOL) has provided a model Exchange notice for employers who offer a health plan to some or all employees, and a separate model notice for employers who do not offer a health plan.  Those model notices are found on the DOL’s web page with other information about the Act at http://www.dol.gov/ebsa/healthreform/ .  Employers may use one of those models or may use another form of notice, provided that the notice contains the required information as described on the DOL’s information page.

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DELAY OF AFFORDABLE CARE ACT’S “PAY-OR-PLAY” MANDATE

7/8/2013

            The U.S. Treasury Department announced yesterday that the Affordable Care Act’s “Pay-or-Play” mandate is being delayed one year to 2015.  The mandate requires larger employers (50 or more full-time employees, including full-time equivalents) to provide health insurance to all employees or face yearly penalties.  The regulations implementing the mandate have not yet been finalized, and the Treasury cited concerns of business owners about the law’s reporting requirements as the reason for the delay.

The ACA’s other deadlines are not affected by this announcement.  For example, employers will still need to provide information to their employees about the health insurance exchanges by October 1, 2013, and individuals will still need to purchase health insurance by January 1, 2014 or face a penalty.

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COURTS STRIKE DOWN NLRB’S EMPLOYEE RIGHTS POSTER RULE

7/8/2013

            The federal 4th Circuit Court of Appeals, which includes Virginia, has struck down the National Labor Relations Board rule that required employers covered by the National Labor Relations Act to post a new notice of labor rights.  Under this rule, most private-sector employers would have been required to display a poster in the workplace, plus post the notice on an employer’s Intranet if that is where they normally display workplace policies.  The 4th Circuit ruled that the NLRB had exceeded its legal rule-making power in promulgating the rule.  This decision follows a similar decision of the D.C. Circuit Court of Appeals which also struck down the rule.

As a result of the 4th Circuit decision, Virginia employers will not be required to post the notice unless the NLRB appeals the decision to the United States Supreme Court and that court overturns the lower courts.  We will notify you if the posting requirement again becomes effective.  In the meantime, although employers are not required to post the notice, they may do so voluntarily.  The 11 by 17 inch poster is available on the NLRB webiste at:

http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf

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NEW VIRGINIA WORKER PRIVACY LAW

5/22/2013

            Employers should be aware of a new Virginia law set to take effect July 1.  Under the new statute, employers are not required to disclose the “personal identifying information” of current and former employees to third parties unless one of the specified exceptions applies.  As signed into law on March 18, Virginia Code § 40.1-28.7:4 defines “personal identifying information” as home telephone number, mobile telephone number, email address, shift times, or work schedule.”  There are four exemptions specified in the law, allowing release of a current or former employee’s personal indentifying information when it is required (1) pursuant to federal law that preempts the statute; (2) by a court order; (3) pursuant to a judicially issued warrant; or (4) by a subpoena in a pending civil or criminal case or by discovery in a civil case.

It should be noted that the new law says an employer is not “required” to disclose the information unless the exceptions apply.  This allows the employer to disclose the information at the employer’s option.  Employers should now decide whether to institute a policy of declining to disclose certain information to someone who might inquire about an employee.  For example, if someone calls a business asking whether a particular employee is on duty at a particular time, the employer can decline to provide that information citing this new law.  The law appears to be intended to give employers some additional options to protect worker privacy.

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NEW FMLA REGULATIONS

3/7/2013

            New regulations regarding the Family and Medical Leave Act issued by the U.S. Department of Labor (DOL) will go into effect tomorrow, March 8.  These new regulations are not as extensive as others issued in the past, and many of the changes focus on military members and their families.  For example, the regulations expand the definition of a qualifying exigency arising from a military member’s covered active duty, and increase the amount of time for leave related to the military member’s rest and recuperation from 5 to 15 days.  The regulations also clarify that employers must comply with the confidentiality requirements of the Genetic Information Non-Discrimination Act (GINA).

Employers can find the updated DOL Poster on the DOL website.  The new poster must be posted at workplaces by this Friday.  The DOL has also updated its certfication forms forqualifying exigenciesserious health injury or illness for a covered military member and serious injury or illness of a veteran for military caregiver leave.

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WELLNESS PROGRAM REGULATIONS

1/16/2013

            Part of the Patient Protection and Affordable Care Act (PPACA) involves preventive care and wellness.  Prior to the PPACA, company wellness programs such as smoking cessation or weight loss programs have been limited by restrictions of the Americans with Disabilities Act and HIPPA.  As guidance to the PPACA, the U.S. Department of Labor (DOL) has issued proposed regulations concerning how employers can structure and operate their wellness programs.  The programs can include incentive payments and premium discounts.  Along with the proposed regulations, the DOL released a research paper, “A Review of the U.S. Workplace Wellness Market,” which provides more information about wellness programs.

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DEPARTMENT OF LABOR’S NEW GUIDE TO FMLA

7/18/2012

            The U.S. Department of Labor’s Wage and Hour Division has released an Employee Guide to the Family and Medical Leave Act (FMLA), a 16-page, plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.  Although the booklet is entitled “Employee Guide”, it contains some valuable basic information for employers.  The Guide can be accessed on the Wage and Hour Division’s website at http://www.dol.gov/whd/fmla/employeeguide.htm.

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LATEST NLRB REPORT ON SOCIAL MEDIA POLICIES

6/12/2012

            The Acting General Counsel of the National Labor Relations Board (NLRB) has issued a third report in its series on social media cases brought to the agency.  The report, issued on May 30, 2012, covers seven cases involving employers’ social media policies governing the use of social media by employees.  The NLRB found some of the policies to be unlawful, and cautioned that it believes many common clauses in employers’ social media policies violate Section 7 of the National Labor Relations Act because they improperly restrict employees’ rights such as the right to discuss wages and working conditions with co-workers.  Some of the clauses deemed unlawful by the NLRB are found in many employee handbooks, and the NLRB’s disapproval of them is likely to be challenged in the courts. The report, however, attempts to provide some positive guidance by attaching in full one policy that the NLRB deems lawful in its entirety.

The report and the approved policy can be accessed on the NLRB’s website at report .

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NEW EEOC GUIDANCE ON CRIMINAL BACKGROUND CHECKS

5/1/2012

          The Equal Employment Opportunity Commission (EEOC) has issued a new guidance concerning the use of criminal background checks in the employment application process.  The EEOC has cautioned employers in the past about the use of criminal background checks to automatically disqualify employment applicants, because of its potential discriminatory impact on certain minority groups.  The new guidance discourages blanket exclusions of applicants who have been convicted of crimes, and encourages the use of “individualized assessments” to determine whether the exclusion of an applicant because of a criminal record is job related and consistent with business necessity.

The new guidance is found on the EEOC’s website at:

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

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FURTHER DELAY OF EMPLOYEE RIGHTS POSTER

4/20/2012

           We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights.  Under this rule, most private-sector employers would be required to display a poster in the workplace, plus post the notice on an employer’s Intranet if that is where they normally display workplace policies.

As a result of lawsuits filed by employers and business groups in federal court in the District of Columbia, the NLRB had delayed implementation of the rule.  The court recently ruled in favor of the NLRB, which would have required the posting effective April 30.  There has now been an appeal of the court’s ruling, and the appeals court has suspended the posting requirement pending the appeal.

We will notify you if the posting requirement again becomes effective.  In the meantime, employers are not required to post the notice, but may do so voluntarily.  The 11 by 17 inch poster is available on the NLRB website at:

http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf

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NEW EEOC GUIDES CONCERNING THE RIGHTS OF VETERANS WITH DISABILITIES

3/6/2012

           The Equal Employment Opportunity Commission has issued two revised guides concerning the rights of veterans with disabilities under the Americans with Disabilities Act.  These revised guides reflect changes resulting from the ADA Amendments Act which makes it easier for veterans with service-connected disabilities to receive reasonable accommodations that will allow them to work.  The revised guide for employers explains how legal protections for veterans with disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act and how employers can prevent disability discrimination. It also includes information for employers about the process of hiring veterans, including organizations that can assist employers in finding qualified veterans for jobs and determining accommodations in the hiring process.

The employer’s guide is found on the EEOC’s website at:

http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

And the guide for wounded veterans may be accessed at:

http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm

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ADDITIONAL DELAY OF NEW NLRB RULE CONCERNING NOTICE OF LABOR RIGHTS

1/13/2012

           We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights.  NLRA-covered employers would have been required to display a poster in the workplace by November 14, 2011, plus post the notice on the employers’ Intranet if that is where they normally displays workplace policies.  Most private-sector employers are covered by this new rule.

As a result of lawsuits filed by employers and business groups, the NLRB had delayed implementation of the rule, postponing it until January 31, 2012.  Now, the NLRB has agreed to an additional postponement to April 30, 2012.  This additional delay will avoid the need for the parties to the lawsuit to fight over whether the court should issue a temporary injunction to prevent the rule from taking effect.

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DEPARTMENT OF TRANSPORTATION CELL PHONE RULE FOR COMMERCIAL DRIVERS

12/19/2011

         If your company has drivers of commercial motor vehicles (CMV), you should be aware of the final DOT rule which restricts the use of hand-held mobile phones by those drivers while driving the CMV’s.  The rule goes into effect on January 3, 2012, and prohibits dialing a number and other hand-held uses of a cell phone, but allows certain hands-free uses.  Details of the new rule can be found on the DOT website at:

http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/rule-programs/rule_making_details.aspx?ruleid=347 .  The link to “Frequently Asked Questions” on that site provides helpful explanatory information.

It would be wise to update your employee handbook to reflect this policy if your company employs drivers of CMV’s.

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DELAY OF NEW NLRB RULE CONCERNING NOTICE OF LABOR RIGHTS

11/2/2011 

           We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights.  NLRA-covered employers would have been required to display a poster in the workplace by November 14, 2011, plus post the notice on the employers’ Intranet if that is where they normally displays workplace policies.  Most private-sector employers are covered by this new rule.

As a result of several lawsuits filed by employers, the NLRB has delayed implementation of the rule, postponing it until January 31, 2012.

The 11 by 17 inch poster is available on the NLRB website at:

http://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_nlra.pdf .

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EEOC WARNS EMPLOYERS ABOUT COMBINING HEALTH RECORDS

7/20/2011 

          The EEOC recently issued an opinion letter warning employers that retaining personal and occupational health information in a single electronic record runs the risk of violating the Americans with Disabilities Act (ADA) or the relatively new Genetic Information Nondiscrimination Act (GINA).   Although employers have a right to obtain an employee’s health information under certain circumstances, those laws strictly limit the access to that information and the employer’s right to disseminate the information.  For example, medical information that an employer might gather in connection with an employee’s FMLA leave request should not be made available to a workers’ compensation insurance carrier if the comp claim is unrelated to the medical condition underlying the FMLA leave request.  Employers must be careful to segregate health information in separate files (paper or electronic) to avoid improper dissemination of the information.

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E-VERIFY FOR VIRGINIA STATE CONTRACTORS

4/26/2011  

           The Virginia General Assembly this session passed a law which has been signed by the Governor, requiring most state contractors to use the federal E-Verify program to check the immigration status of their employees.  E-Verify is an Internet-based system that allows employers to check the eligibility of an employee to work in the United States. It combines databases of the Department of Homeland Security and the Social Security Administration.

The new Virginia law applies to any company that has more than 50 employees and enters into a state contract of more than $50,000.  Although the law does not go into effect until December 1, 2013, state contractors should become familiar with the E-Verify program, and may use it sooner if they so choose.

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WAGE AND HOUR “WHITE COLLAR” EXEMPTION

1/5/2011

          As we begin the new year, you should be aware that the U.S. Department of Labor is giving increasing scrutiny to the administrative exemption to the overtime pay requirements of theFair Labor Standards Act (FLSA).  One of several “white collar” exemptions, the administrative exemption has several key elements, including requirements that the employee have a primary duty that is focused on the employer’s management or general business operations, and the exercise of discretion and independent judgment regarding matters of significance.

          In a decision that surprised many observers, the Labor Department last year reversed its previous interpretation of the FLSA and concluded that mortgage loan officers are not covered by the administrative exemption.  The Department reasoned that those employees are primarily focused on the sale of their employer’s financial products to customers rather than being focused on running the employer’s business itself.  The ruling drew a distinction between “production employees” and “administrative employees.”

This administrative interpretation of the FLSA by the Labor Department has implications far beyond the mortgage loan industry, and can affect employees in many other businesses.  It would be prudent for employers to begin the new year by examining their exempt employee classifications to determine if they comply with the requirements for exemptions from the overtime pay requirement.