- Written by: John E. Falcone
The U.S. Department of Labor (DOL) has issued its anticipated proposed new rule to increase the salary level for an employee to be exempt from overtime pay. In order for an employee to be exempt, the employee currently must be paid a salary of at least $684 per week, and must meet certain duties tests. The most common exemption categories are known as the “white collar” exemptions: executive, administrative and professional. The exempt duties generally fall within those categories, and each category has different criteria. The new rule would raise the required salary level to $1,059 per week ($55,068 per year for a full-time worker).
- Written by: John E. Falcone
Last month we alerted you to the change in policy by the U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), which announced that virtual review of I-9 employment forms will no longer be allowed effective July 31, with a grace period extending to August 30. This will resume the pre-Covid policy of requiring employers to conduct an in-person physical inspection of a new hire’s documents for the I-9 verifications.
- Written by: John E. Falcone
Are Virginia employers required to provide employees with rest periods and meal breaks? Contrary to popular belief, the answer is “No”. Although most employers voluntarily provide their full-time employees meal breaks and rest periods, neither Virginia nor federal law requires them. One exception is Virginia’s child labor law, which prohibits an employer from requiring or permitting a child under 16 years of age to work for more than five hours continuously without a lunch period of at least 30 minutes.
- Written by: John E. Falcone
On June 29, the U.S. Supreme Court issued a decision in Groff v. DeJoy that made it more difficult for employers to deny religious accommodations requested by employees.
- Written by: John E. Falcone
All employers are required to verify the employment eligibility of new hires by completing the federal I-9 form for each hire. The form is available on the U.S. Citizenship and Immigration Services website at USCIS Form I-9. Both the employer and employee must complete the form. Prior to the pandemic, employers were required to conduct an in-person physical inspection of the new hire’s documents, but that rule was relaxed during the pandemic to allow virtual review for employees working remotely. The U.S. Immigration and Customs Enforcement (ICE) has now announced that virtual review will no longer be allowed effective July 31, with a grace period extending to August 30.
This resumption of the old rule requiring in-person inspection will cause headaches for many employers who hire remote workers. The new hires will either be required to come to the employer’s facility to complete the process, or the employer will be required to hire an immigration consultant in the location where the employee lives. For new hires who live a great distance form the employer’s facility, this will involve the added expense of either paying for the employee’s travel costs, or paying for the immigration consultant.
Except in California, employers can authorize anyone as a third-party to review and sign the form on behalf of the employer. Employers, however, often struggle with identifying who can serve as an I-9 representative. Many employers prefer to designate representatives trained in I-9 compliance practice and procedures because this can reduce risk and lessen the burden on the employer for reviewing and correcting I-9s after the fact. Using a third-party that is not trained in I-9 compliance can be risky because liability for incorrectly administering the I-9 is high, with large potential fines.
Many employer organizations have requested ICE to reconsider and extend the remote review process. Unless ICE changes its policy, employers will need to comply with the previous in-person verification requirement effective August 30.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
On May 30, the National Labor Relations Board (NLRB) General Counsel issued a memorandum announcing that many noncompete agreements violate the National Labor Relations Act. This memo comes in the wake of the Federal Trade Commission’s (FTC) proposed new rule that would ban noncompete agreements nationwide.
The NLRB’s opinion is based on the conclusion that noncompete agreements can chill employees from exercising their rights under the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions. The FTC’s rationale is that noncompetes are an unfair method of competition, and thus violate the Federal Trade Commission Act.
Unlike the FTC’s proposed rule which would apply to virtually all workers, the NLRB’s opinion would not apply to managerial, supervisory staff, because the National Labor Relations Act does not apply to those higher-level employees. It is the higher-level employees who are the most likely to have noncompetes.
Keep in mind that Virginia already has restrictions on noncompete agreements for “low wage” employees. See Va. Code § 40.1-28.7:8. Covenants not to compete prohibited as to low-wage employees; civil penalty (virginia.gov). The Virginia law, however, did not take effect until July 1, 2020 and is not retroactive, unlike the FTC’s proposal.
We are waiting for the final version of the FTC’s proposed rule, and anticipate that the rule will be challenged in court. Some experts believe that the FTC has exceeded its authority in proposing the new rule. Court challenges to the NLRB’s new opinion are also likely. It will be interesting to see whether courts will agree with the NLRB’s interpretation of the law.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
Employers often use unpaid interns and volunteers in their businesses. The Fair Labor Standards Act (FLSA) has strict rules regulating those categories. Failure to follow those rules can result in expensive penalties from the federal Department of Labor.
The FLSA uses a “primary beneficiary test” to determine whether someone should be classified as an unpaid intern or an employee. The DOL has an explanatory fact sheet about internship programs on its website: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act | U.S. Department of Labor (dol.gov). The primary beneficiary test considers seven factors:
- Whether the intern and the employer clearly understand that there is no expectation of compensation.
- Whether the internship provides training similar to that which would be given in an educational environment, such as clinical and hands-on training.
- Whether the internship is tied to coursework or the receipt of academic credit.
- Whether the internship accommodates the intern's academic commitments by corresponding to the academic calendar.
- Whether the internship's duration is limited to the period in which the internship provides beneficial learning.
- Whether the intern's work complements, rather than displaces, the work of paid employees.
- Whether the intern and the employer understand there's no entitlement to a paid job at the conclusion of the internship.
The test focuses on the economic reality of the intern-employer relationship to determine who is primarily benefiting from the relationship. If the work performed by the intern primarily benefits the employer, the intern is an employee under the FLSA and must be paid.
Employers must also be careful in their use of unpaid volunteers. Persons who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service. It is critical to note that under the FLSA, employees may not volunteer services to for-profit private sector employers.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
The Virginia General Assembly’s 2023 session produced some new laws relating to employment issues which will take effect July 1.
Social Security numbers - Employers are now prohibited from using an employee's Social Security number, "or any number derivative thereof," as an employee's identification number. This includes prohibiting employers from using those numbers on any identification card or badge, access card or badge, or similar card or badge issued to employees. Although the law does not define what "derivative thereof" means, it likely includes portions of an employee's Social Security number, such as the last four digits. Employers that knowingly violate this law are subject to a civil penalty of up to $100 per violation.
Nondisclosure, confidentiality and non-disparagement agreements - Employers now are prohibited from requiring an employee or prospective employee from executing or renewing a "nondisclosure or confidentiality agreement, including any provision relating to non-disparagement, that has the purpose or effect of concealing the details relating to a claim of sexual harassment … as a condition of employment." Any such provision is considered void and unenforceable. Virginia Code § 40.1-28.01 already prohibited nondisclosure and confidentiality agreements relating to claims of sexual assault. This new amendment to that Code section now also prohibits non-disparagement provisions relating to claims of sexual assault and expands these prohibited agreements from claims of sexual assault to claims of sexual harassment. This new Virginia law does not apply to severance agreements or other post-termination agreements, but it likely applies to blanket confidentiality and non-disparagement agreements that employees may be required to enter into at the onset of employment or as employers update their policies. To the extent any of these provisions are in any of an employer's pre-employment agreements, they should be revised to carveout claims of sexual harassment.
Sub-minimum wage workers - Virginia Code § 40.1-28.9 has historically allowed employers with a special certificate issued under 29 U.S.C. § 214(c) of the Fair Labor Standards Act of 1938 to employ individuals with disabilities at a sub-minimum wage. A new law now removes this exception to the Virginia Minimum Wage Act. Effective July 1, no employer in Virginia may pay sub-minimum wages unless they had a 14(c) exemption prior to that date. Employers that had a 14(c) exemption prior to July 1, 2023, have until July 1, 2030, when the exemptions end, to increase the pay rates of disabled workers to at least the minimum wage in Virginia.
Organ donation leave - Another new law grants legally protected leave for organ and bone marrow donation. Virginia employers with 50 or more employees are required to provide eligible employees with up to 60 business days per 12-month period of unpaid organ donation leave and up to 30 business days per 12-month period of bone marrow donation leave. Employees are eligible if they have worked for the employer for at least a 12-month period and 1,250 hours during the preceding 12 months. Although the leave is unpaid, the law contains other requirements and restrictions. Organ donation leave will not impact an employee's ability to take leave under the federal Family and Medical Leave Act (FMLA) leave within the same year. Also, organ donation leave cannot run concurrently with FMLA leave.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.
- Written by: John E. Falcone
In previous blogs we have discussed several aspects of the 2020 Virginia statute (§ 40.1-28.7:8. Covenants not to compete prohibited as to low-wage employees; civil penalty (virginia.gov)) that restricts the use of noncompete agreements. As a reminder, the law provides that as of July 1, 2020, employers are prohibited from entering into, enforcing, or threatening to enforce a covenant not to compete with any “low-wage employee.” The law defines “low-wage employee” as one whose average weekly earnings are less than the average weekly wage of the Commonwealth, as
- Written by: John E. Falcone
Many employers and employees are under the mistaken assumption that the Family and Medical Leave Act (FMLA) applies to all employers and employees. In fact, the FMLA applies only to employers that have a worksite with 50 or more employees within a 75 mile radius. In addition, even if an employer is covered by the Act, individual employees might not be eligible for coverage.
- Written by: John E. Falcone
The National Labor Relations Board (NLRB) has overruled its own precedent and has decided that certain common provisions in severance agreements violate the National Labor Relations Act (NLRA). Employers generally have included confidentiality and nondisparagement provisions in severance agreements. The NLRB now says those provisions are unlawful because they attempt to deter employees from exercising their rights to “concerted activity” protected under the NLRA. Nondisparagement provisions prohibit employees from making derogatory statements about the employer, while confidentiality provisions limit employees from disclosing the terms of the severance agreement.
