Employment Law Update - Fall 2012

VDOLI Stops Handling Virginia Wage Hour Cases

Due to budget constraints, the Virginia Department of Labor & Industry ('VDOLI') stopped enforcing Virginia's Payment of Wage Act effective June 25, 2012. Previously, employees who did not receive a final paycheck or who felt unauthorized deductions were inappropriately taken from their paychecks could go to the VDOLI with their claims. That agency would take enforcement steps as appropriate to include possible penalties against employers who violated Virginia's wage laws. According to the VDOLI website, now an employee who has a claim for unpaid wages may contact a private law firm appointed as special counsel by the VDOLI only if the amount in question exceeds $2,500 and the employee has documentation in support of a claim. Employees must use their own means to resolve smaller claims against their employers. As more fully explained on the VDOLI website, this is a dramatic change to the enforcement of Virginia Wage-Hour laws.

The VDOLI Commissioner, Courtney Malveaux, was a speaker at the July 19th showing of K&C's 28th Annual Employment Law Update to address the change in enforcement strategy of his agency. Mr. Malveaux explained the budgetary need to trim his agency’s expenses while providing both employees and employers adequate support. Mr. Malveaux emphasized that Virginia's wage protection laws were still in effect and that 'this new system will provide an efficient method of enforcement on a go-forward basis.'

FYI

The most common wage-hour complaints filed by employees against employers are claims concerning minimum wage or unpaid overtime. Given applicable federal law, these claims will all be directed to the federal Department of Labor’s Wage and Hour Division. Claims covered only by state law, such as unauthorized deductions and requiring certain methods of payment, will be exclusively enforced by individual employees going forward. For more information on this major wage-hour enforcement development, visit the VDOLI website at www.doli.virginia.gov.

EEOC Updates Employer Guidance on Criminal Background Checks

This past Spring, the Equal Employment Opportunity Commission ('EEOC') updated its guidance on employers’ use of criminal histories for the first time in over 20 years. The EEOC's updated guidance was spurred in part because more employers are trying to protect against negligence liability by conducting background checks and criminal history information is now much more readily available on the internet. According to recent comments from EEOC Assistant Legal Counsel, Carol B. Miaskoff, while nothing in the anti-discrimination laws enforced by the EEOC bars employers from conducting criminal background checks, the EEOC wants to ensure that employers use such information in a way that does not discriminate against applicants or employees based on race, national origin, or other protected characteristics. Accordingly, the EEOC's guidance indicates that employers might violate anti-discrimination federal law if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin, or other protected category. To this end, the EEOC discourages blanket policies prohibiting hiring individuals with criminal records and encourages an individualized assessment as to whether a particular criminal record would justify not hiring someone due to job-related reasons.

Many employers utilize criminal background checks as part of efforts to deal with drugs, theft, and possible violence in the workplace. If an employer fails to take reasonable steps to prevent violence in the workplace, that employer could face liability for negligence if, for example, someone with a criminal record of violent crime is hired and hurts others at work. Given the possibility of high damage awards to victims of violence in the workplace, some employers feel asking questions on an application and/or implementing policies against hiring convicted criminals are more appropriate steps than the EEOC's guidance indicates. The competing legal risks of liability for negligence for hiring/retaining individuals with criminal records and liability for discrimination if hiring policies have a disparate impact on a protected class remain a difficult dilemma for employers.

EEOC Recognizes Legal Protections for Transgendered Persons

The Equal Employment Opportunity Commission ('EEOC') recently considered the claim of Mia Macy, a male police detective in Phoenix who applied for a federal crime laboratory position near San Francisco. Macy was informed repeatedly that 'the job was his,' subject to the completion of a background check. Macy then told the federal contractor that he was transitioning to a female gender identity; the crime lab found out and five days later Macy was falsely informed that the position had been eliminated due to funding cutbacks. The EEOC issued a strongly worded opinion, holding that 'intentional discrimination against a transgendered individual because that person is transgendered is, by definition, discrimination 'based on . . . sex'' in violation of Title VII. The Commission was not troubled by the absence of explicit protection in the statute for transgendered individuals.

This decision underscores the need for fair and dignified treatment of all employees and applicants. For example, dress codes should be gender neutral and complaints of discrimination by transgender individuals should be handled in the same manner as any other complaint of sex discrimination. Also, employee handbooks that prohibit harassment or discrimination on the basis of a 'laundry list' of enumerated protected categories should always end with the catch-all phrase, 'and on any other basis prohibited by law.' Otherwise, a clever plaintiff can point to a company policy that seems to protect, for example, the aged and disabled but explicitly not the transgendered (or anyone else who falls into a newly-protected category).

29th Annual Employment Law Update - Your Prescription for Compliance

As many companies experience the symptoms brought on by everyday employment law headaches, K&C is pleased to announce a new program designed to provide employers with a treatment plan for success. The 29th Annual Employment Law Update - Your Prescription for Compliance will be held at the Virginia Beach Convention Center on Thursday, November 15th.

The K&C Employment Law Team and representatives from a number of government agencies, will present a variety of educational workshops designed to prescribe solutions for your employment law maladies. This year's program will also feature a special luncheon presentation by Gary Namie, Ph.D., a nationally recognized expert on how to prevent workplace bullying and Director of the Workplace Bullying Institute. Additional topics include: Healthcare Reform, Dealing with Problem Absenteeism; Safe Interviewing/Hiring Practices; Handling Theft and Drugs in the Workplace; Employee Discipline & Discharge; and more.

The 29th Annual Employment Law Update will help employers diagnose employment law headaches and comply with recent changes in employment law. For more information click here or contact Julia Rhody at (757) 624-3232.

This program has been approved for 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org.

Recent Cases Recognize Employer Rights Under FMLA

Employee absences can cause disruption in the workplace, which is one reason why employers adopt and enforce attendance policies. However, it is important to remember that absent employees may be protected by the Family and Medical Leave Act ('FMLA'). Complying with this statute while maintaining efficiency in the workplace can be a difficult task, particularly when troublesome employees push the limits of leave and demand burdensome conditions upon their return to work. Importantly, FMLA imposes requirements on employees seeking the protection of this law, and recent court decisions have validated employer efforts to require employees to strictly comply with the requirements of FMLA and to impose discipline in response to employee abuse of leave benefits.

The first employer-friendly case is Seeger v. Cincinnati Bell Telephone Co., LLC. In the Seeger case, the Court of Appeals for the Sixth Circuit agreed with the trial court’s determination that Cincinnati Bell did not violate FMLA by terminating Seeger two weeks after he returned from FMLA leave. Cincinnati Bell's 'honest belief' that Seeger abused its paid leave policy by 'over-reporting' his symptoms to avoid light duty work during his period of leave was enough to overcome any inference of improper motive.

In another recent FMLA case, the Court of Appeals for the Seventh Circuit upheld a trial court finding that an employee did not receive 'medical treatment' on a morning when he was absent to obtain a prescription refill note from his doctor. That case is Jones v. C&D Techs. Inc. In the Jones case, the terminated employee was unsuccessful in arguing that his absence was protected under FMLA, because he failed to demonstrate that he was unable to perform his duties. The Court of Appeals based its decision on a strict construction of FMLA regulations, which require that an employee who is unable to perform his or her duties is one 'who must be absent from work to receive medical treatment' and obtaining a prescription refill note did not amount to medical treatment.

While both of these cases represent good news for employers, they should also serve as reminders that employers should be careful to comply with the technical requirements of FMLA and other applicable laws like the Americans with Disabilities Act, while enforcing their workplace policies.

The U.S. Supreme Court Affirms Obamacare

The Patient Protection and Affordable Care Act is here to stay, and all of the advice you first received two years ago when it was passed has now become relevant again. In National Federation of Independent Business v. Sebelius; the U.S. Supreme Court upheld the healthcare reform statute as a valid exercise of the government's power to tax, even though eight of nine Justices held the law was not a tax and the government had not defended it on that basis.

Most of the press has focused on mandated health coverage – 'play or pay' for employers with 50 or more employees and the 'individual mandate' for workers. As important from a human resources perspective, are the mandatory written disclosures of insurance coverage, automatic enrollment of new employees for companies with more than 200 employees, and the small business tax credit for employers with fewer than 25 'full-time equivalent' employees. Individuals who are eligible for health insurance premium tax credits now constitute a new protected category, as do employees eligible for a federal cost-sharing subsidy; and, of course, strict nonretaliation rules apply. The Act contains an open-ended whistleblower provision, enforced by the Department of Labor. And yes, those private and sanitary facilities for lactating mothers must be made available – with a locking door – and underscored by a separate anti-retaliation provision for lactating mothers who complain about the facility.

FYI

Kaufman & Canoles' 29th Employment Law Update will include a fully-revised session on all of the employment law implications of the Affordable Care Act, and members of the Kaufman & Canoles Employment team will be on hand at the Virginia Beach Convention Center on Thursday, November 15, 2012 to answer questions. For more information click here or contact Julia Rhody at (757) 624-3232.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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