Labor & Employment Law

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.

FMLA Scenario 1.0

August 17, 2011, 9:22 AM

Some of the most common questions from human resource professionals involve employees taking leave under the Family and Medical Leave Act ("FMLA"). Therefore, this blog will routinely address some of the trickier situations that can arise under the FMLA.

A New Approach to Internet and Social Media Searches

August 12, 2011, 8:59 AM

A recent article in the New York Times examined a start-up company's plan to help employers use internet searches to uncover information about applicants, ostensibly avoiding the legal risk associated with such activities.

Are You Complying With Your Nursing Break Obligations?

July 28, 2011, 2:16 PM

The Patient Protection and Affordable Care Act of 2010 slipped a break time requirement for nursing mothers into the Fair Labor Standards Act (FLSA) that affects virtually all employers in the United States. The language added to the FLSA is limited; essentially, it requires employers to "provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child's birth." In late 2010, the Department of Labor (DOL) published its request for information (RFI) from the public regarding this amendment to the FLSA. Such an RFI generally leads to rulemaking by the DOL, which may issue rules elaborating on the requirement some time late this year.

Benefit Policy Reminder

July 21, 2011, 8:25 AM

Last month, Connecticut passed a law requiring private employers to provide paid sick days to service employees. While other states are considering similar legislation and cities such as San Francisco and Washington, D.C., require paid sick leave, Connecticut is the first state to pass such a law.

The Importance of Supervisory Anti-Discrimination Training

July 12, 2011, 8:28 AM

Historically, Virginia's federal courts have required employees claiming discrimination to demonstrate that the actual decision-maker, as opposed to other supervisors with whom the employee worked, showed a discriminatory motive in his or her treatment of the employee. While inappropriate and unlawful motives by other non-decision-makers might be deplorable, violate workplace policies, and result in disciplinary action, they could not be the linchpin of the plaintiff's discrimination case.

NLRB Considers Workplace Posting Requirement for All Private Employers as Federal Contractor Notice Requirement Celebrates Its One-Year Anniversary

July 6, 2011, 8:27 AM

Consistent with previous postings on this blog regarding the stronger positions the National Labor Relations Board (NLRB) has been taking on social media and other workplace topics, the NLRB is considering a new workplace posting requirement for all private employers. The NLRB proposed the posting requirement, designed to inform private workplace employees of their rights to organize under the National Labor Relations Act, in late 2010. Citizens sent the NLRB over 7000 comments on the proposed posting requirement, which the NLRB continues to consider in light of all such comments. If this posting requirement is approved by the NLRB and authorized by presidential executive order, it will follow on the similar posting requirement imposed on all federal contractors and subcontractors as of June 21, 2010. That posting requirement, limited in scope to federal contractors and their subcontractors, informs employees of their rights under the NLRA to organize and bargain collectively and to engage in other protected concerted activity.

New Development in Restrictive Covenants

June 27, 2011, 2:15 PM

It's a real crapshoot these days trying to enforce post employment restrictive covenants with employees. It is somewhat easier, however, to enforce restrictive covenants entered into in connection with a "sale of a business." Judge Moon in the Western District of Virginia recently held that a non-compete agreement entered into in connection with a settlement agreement with a former employee should be reviewed under a more enforcement friendly "sale of a business" standard. According to Judge Moon:

FMLA Leave and Medical Certifications

June 17, 2011, 1:19 PM

Employers covered by the Family and Medical Leave Act (FMLA) should establish procedures for obtaining proper medical certifications. The FMLA permits employers to require employees to provide medical certification to support the need for leave due to a serious health condition of the employee or of certain members of the employee's family.

Payment for Vacation, Holiday, and Sick Leave Upon Termination?

June 8, 2011, 11:16 AM

Employees who resign or are terminated often demand payment for unused vacation, holiday, and sick time. Importantly, no Virginia or federal statute requires that an employer provide fringe benefits of any kind, including payment for these unused benefits upon termination.

Department of Labor Launches Smartphone App to Arm Employees

May 31, 2011, 10:18 AM

Earlier this month, the U.S. Department of Labor ("DOL") announced the launch of its first application for smartphones, an electronic timesheet that helps employees independently track the hours they work and determine the wages they are owed.

Non-Employee Harassment Comes to the Fourth Circuit

May 26, 2011, 10:32 AM

In a recent unpublished decision, the U.S. Court of Appeals for the Fourth Circuit (the federal appeals court covering Maryland, Virginia, West Virginia, North Carolina and South Carolina) held that an employer can be held liable to one of its employees who is harassed off of the employer's premises by the employees of a customer. In so holding, the Fourth Circuit followed the lead of the EEOC and other federal courts that have addressed this issue and adopted a "negligence" standard for liability. This means that an employer can be liable for harassment of one of its employees by a non-employeeif it knew or should have known of the harassment and failed to take prompt, appropriate remedial action to stop it.

ADAAA Regulations Represent Increasing Risk for Employers

May 17, 2011, 10:46 AM

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and regulations recently issued by the U.S. Equal Employment Opportunity Commission (EEOC) significantly change the landscape for employers dealing with medical conditions of employees and applicants for employment.