Labor & Employment Law

Kaufman & Canoles Annual Employment Law Update Turns 30 Years Old

October 24, 2013, 3:18 PM

For three decades Kaufman & Canoles has been educating human resource professionals in the Hampton Roads region on updates and changes in employment law with the Annual Employment Law Update. This years pearl anniversary theme is The Times They Are A Changin and the update will feature new information and popular employment law subjects including; workers compensation, unemployment claims and Obamacare to name a few.

New Virginia Law Affirms Right Not to Disclose Employee Data

June 28, 2013, 2:06 PM

Over the years, the K&C; Labor and Employment Team has advised employers to be extremely wary of disclosing personal information about their employees. A new law passed by the General Assembly, effective July 1, 2013, provides companies with additional legal support for this good human resources practice. The statute defines an employees personal identifying information as home or mobile telephone number, e-mail address, or shift times and work schedules. The new law does not prohibit the disclosure the employer retains the discretion to disclose the information if warranted but provides that the employer shall not . . . be required to disclose the data. Exceptions exist for disclosures mandated by a subpoena, civil discovery, a warrant or court order, or federal law. But in the absence of those circumstances, the new statute confirms that Virginia employers retain the right to decline to disclose personal details about their employees. --Burt H. Whitt

News from the Courthouse

February 13, 2013, 8:30 AM

The federal court of appeals in Richmond reminded us of a principle that bears repeating: former employees can win retaliation suits even if the conditions about which they complain are not illegal. In a case involving Virginia Tech, the court of appeals dismissed all of the three female plaintiffs Equal Pay Act claims, but sent one plaintiffs retaliation claim under Title VII back to the district court for trial. Maron v. Virginia Polytechnic Institute and State Univ. Ms. Maron, who had complained about sex-based pay disparities, was told by a manager during a meeting intended to discuss her personal use of e-mail that she had shown very poor judgment and that she needed to stop pursuing the things that [she was] pursuing or [she would] ruin [her] career in a very public way. The manager told her she needed to become invisible and stay off the radar for the next six months at a minimum, while he would be watching [her] very, very closely. In addition, there was evidence that the manager told Ms. Maron that he did not know what [she] did, but whatever [she] did, [she] really pissed [two other managers] off. Even though these statements, reasonably perceived as threats to terminate her employment, did not rise to the level of adverse employment action needed to bring a discrimination case, they could reasonably be found to be sufficient to dissuade a reasonable employee from complaining about discrimination. Thus, reasoned the court, a jury could find in Ms. Marons favor on her retaliation claims.

Business Owners and HR Managers Beware Individual Liability for Wrongful Termination

November 19, 2012, 5:09 PM

A November 1, 2012 Virginia Supreme Court decision may expand radically the potential personal liability of managers, human resources personnel, and other individuals involved in the termination of employment. The sharply-split, 4-3 decision in VanBuren v. Grubb holds for the first time under Virginia law that an individual co-worker and not only a corporate employer can be held liable for the common-law tort of wrongful termination of employment. [W]e conclude that Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was notthe plaintiffs actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager. (Emphasis added.)

NLRB (Unnecessarily) Weighs in on Workplace Investigations

August 23, 2012, 11:48 AM

The National Labor Relations Board's (NLRB) most recent effort to maintain relevance in an era of declining union membership recently landed and it's a doozy. As you will recall, in the last two years, the NLRB has busied itself with becoming the "Facebook Police" and finding that numerous employers' social media policies were unlawful because they improperly restricted employees from making negative comments about their employer(s). Not content to stop there, however, the NLRB has now decided that employers cannot have a blanket policy of asking employees who make a complaint about employee misconduct to not discuss the complaint with other employees while the investigation is ongoing. According to the NLRB, such a policy has a tendency to coerce employees and restrains their Section 7 rights (i.e. their rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection). Instead, employers must now engage in a case by case analysis, balancing the employer's concern for the integrity of its investigation against employees' Section 7 rights: "[I]n order to minimize the impact on Section 7 rights, it was [employer's] burden 'to first determine whether in any give[n] investigation witnesses needed protection, evidence [was] in danger of being destroyed, testimony [was]in danger of being fabricated, or there [was] a need to prevent a cover up.'" Banner Health System and James A. Navarro, NLRB case 28-CA-023438 (July 30, 2012).

Payment of Wage Transition

July 6, 2012, 10:43 AM

Due to budget constraints, the Virginia Department of Labor & Industry stopped administering Virginias Payment of Wage Act effective June 25, 2012.According to the VDOLI website, employees must now direct all claims concerning minimum wage or overtime to the Federal Department of Labors Wage and Hour Division or, if the employee has a claim for unpaid wages that is a minimum of $2,500 dollars and has documentary evidence in support of a claim, he/she should call the law firm appointed as special counsel at 1-877-VA-WAGE4.This is a dramatic change to the enforcement of the Virginia wage-hour law. --Burt H. Whitt

Fluctuating Workweek

June 11, 2012, 9:37 AM

Like many employment litigation attorneys, more and more of my practice involves federal wage and hour issues. One potent but, in my experience, underutilized tool in an employer's wage and hour arsenal is the fluctuating workweek (half-time) method of overtime compensation. The fluctuating workweek method of overtime compensation requires an employer to pay an employee a fixed salary that is subject to the FLSAs salary basis rules.[1] This salary is intended to cover all straight time hours of work during a workweek. Thus, when an employee works more than forty (40) hours in a workweek, all of his or her straight time hours have been paid and the employer only owes the additional one-half overtime premium. It is generally good practice to have a written understanding with employees who are being paid pursuant to the fluctuating workweek method.

Government Sets Sights on Employee Misclassification

May 22, 2012, 8:30 AM

The idea that some businesses misuse the "independent contractor" label is not new. Indeed, the "independent contractor" costs less by avoiding certain state and federal taxes and is not subject to the protections of laws such as the Fair Labor Standards Act, the Family and Medical Leave Act, and state unemployment laws, among others. For these reasons, businesses have been misusing the label for years.

Virginia Supreme Court Decision Underscores Need to Review Non-Competition Agreements

May 15, 2012, 9:30 AM

The recent Supreme Court decision in Home Paramount Pest Control v. Shaffer brings home, in stark fashion, why prudent companies should not rely on possibly-obsolete language in existing contracts with key employees and executives. While properly drafted agreements can restrict post-employment competition by key employees, the Virginia Supreme Courts decisions exhibit a continuing reluctance to give employers any latitude in enforcing overly-broad covenants not to compete. Home Paramount gives us an extreme case why employers should rely only on language crafted with the most recent decisions in mind.

The NLRB Posting Saga Goes Another Round: No Required Posting at this Time

April 25, 2012, 12:18 PM

A federal court in the District of Columbia has issued an order temporarily enjoining the NLRB from enforcing its rule requiring the posting of a general notice informing employees of their rights to join a union under Section 7 of the National Labor Relations Act. The posting rule was scheduled to take effect on April 30, 2012. Our report on the issuance of this rule can be found here.

OFCCP Seeks to Impose New Requirements on Hiring Disabled Individuals

January 25, 2012, 10:05 AM

The Office of Federal Contract Compliance Programs (OFCCP) recently held a webinar to discuss proposed changes to its regulations related to the hiring of disabled individuals. If enacted, these changes would be significant. The Secretary of Labor Hilda Solis explained that the proposed rule "represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act."

K&C Employment Law Update - November 10, 2011

November 1, 2011, 4:01 PM

Knowing that companies are dealing with many pieces of the employment law puzzle, K&C; is pleased to provide a new program designed to help employers solve the employment law puzzle. The 28th Annual Employment Law Update "Putting the Pieces Together" will debut at the new Virginia Beach Convention Center on Thursday, November 10th.

New Department of Labor Rule Will Protect Employees of Government Contractors

September 28, 2011, 12:49 PM

The Department of Labor issued a final rule implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts. The Executive Order establishes a general policy of the federal government concerning service contracts and solicitations for service contracts for performance of the same or similar services at the same location. This policy mandates the inclusion of a contract clause requiring the successor contractor and its subcontractors to offer those employees employed under the predecessor contract, whose employment will be otherwise terminated as a result of the award of the successor contract, a right of first refusal of employment under the successor contract in positions for which they are qualified. The effective date for this final rule is pending, and the Department will publish a notice in the Federal Register announcing the effective date once it is determined. --David J. Sullivan

NLRB Adopts Posting Requirements for All Employers

September 16, 2011, 12:03 PM

As this blog discussed in early July, the National Labor Relations Board has been working on a rule that would require all employers to notify employees of their rights under the National Labor Relations Act. The Final Rule has been issued and will require employers to provide such notification as of November 14, 2011.

New Residential Construction Fall Prevention Regulations Take Effect on September 15, 2011

September 9, 2011, 2:48 PM

The Occupational Safety and Health Administration ("OSHA") recently enacted new fall protection regulations. However, those regulations did not take immediate effect. Instead, OSHA announced a three month phase-in period to allow contractors time to adjust to the new regulations and implement necessary changes. During the phase-in period, contractors in violation of the new regulations are issued hazard letters. The phase-in period is set to expire on September 15, 2011, and after that date, contractors in violation of the new regulations will be subject to significant fines.

Building Defenses Against Threat of Retaliation Claims

August 29, 2011, 8:31 AM

This past fiscal year, more charges of illegal retaliation were filed with the Equal Employment Opportunity Commission (EEOC) than any other type of charge. This marked the first time in EEOC charge-handling history that race discrimination charges were not the most frequently filed claim. Also, given recent federal cases expanding retaliation rights, employees and their attorneys appear to have recognized that retaliation claims are more likely to be successful at trial than many standard discrimination claims.