Resources

In Episode 14 of Employment Law in Focus, attorney Doug Taylor discusses the new amended COVID-19 workplace safety regulations that went into effect on September 8, 2021, in Virginia.

In light of recent directives from the Biden Administration, an increasing number of employers with COVID-19 vaccine mandates will be faced with the question of what to do if an employee refuses to get vaccinated.

Title IX of the Education Amendments of 1972 (“Title IX”) is straightforward in its prohibition:

[N]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination [in] any academic, extracurricular, . . or other education program or activity[.]

The statute has unquestionably transformed high school and college athletics for females in the U.S. For example, before Title IX was passed , about 310,000 women and girls played college and high school interscholastic sports. Now, more than three million females participate in school sports.

The rapid evolution of Virginia workplace laws continues with the Virginia General Assembly’s passage of HB 1848 , which extends employee workplace protections under the Virginia Human Rights Act (“VHRA”) to include a prohibition on discrimination against individuals with disabilities. The VHRA is applicable to Virginia employers with six or more employees.

Effective July 1, 2021, the VHRA requires employers to engage in the familiar, ADA-like, good faith interactive process to determine whether there are reasonable accommodations available that will allow an otherwise qualified individual with a disability to perform their job.

In our blog posts last year, we chronicled the sea change in employment laws that has been underway in Virginia, in areas such as misclassifying employees as independent contractors and workplace discrimination . Virginia has had a well-earned reputation as a state with workplace rules and regulations typically favoring businesses over employees. However, the Commonwealth has been pulled in the other direction in recent legislative sessions, with some now considering the state to be more aligned with progressive jurisdictions like California and Massachusetts, with more than a dozen employee-friendly pieces of legislation going into effect in 2020.

With a significant percentage of individuals now fully vaccinated against COVID-19, businesses are beginning to reopen or expand in-the-office activity in Northern Virginia and across the Commonwealth. On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated and expanded technical assistance targeted to answer some of the frequently asked questions concerning COVID-19 vaccinations in the employment context.

Ar*bi*tra*tion – is a procedure in which the parties opt for a private dispute resolution, instead of going to court, by submitting the dispute to one or more arbitrators to make a binding decision.

Certain businesses routinely utilize employment arbitration agreements, finding them to be an effective means of dealing with the uncertainties of workforce disputes that may arise during employment or after it ends.

A recent decision of a panel of the U.S. Fourth Circuit Court of Appeals offers an important reminder for employers: There is potential legal risk in ignoring or brushing off an employee who comes forward with complaints of sexual harassment by a supervisor — even when the employee and supervisor are both of the same sex. Glenn Industrial Group, Inc., a North Carolina-based provider of underwater inspection and repair services to utility companies learned that lesson last week.

In today’s global economy, it has become increasingly common for companies based in the United States to engage workers who live in other countries to provide services as independent contractors. This practice has become even more prevalent during the COVID-19 pandemic with the broad expansion of virtual work.

Companies can save money hiring independent contractors because they do not have to provide benefits, office space, or equipment to contractors or pay taxes on compensation paid to contractors. Companies can often save even more money engaging contractors from other countries due to lower labor costs.

President Biden signed the American Rescue Plan Act of 2021 (the “ARPA”) into law on March 11, 2021. The $1.9 trillion relief package contains several provisions that will impact employers, including a requirement that employers provide “assistance eligible individuals” (defined below) with fully subsidized COBRA continuation coverage premiums for the time period of April 1, 2021 through September 30, 2021, with such costs to be offset by a refundable credit against the employer’s share of Medicare tax under a newly added Internal Revenue Code section.

President Biden signed the American Rescue Plan Act of 2021 (the “ARPA”) into law on March 11, 2021. The $1.9 trillion relief package contains several provisions that will impact employers, including a requirement that employers provide “assistance eligible individuals” (defined below) with fully subsidized COBRA continuation coverage premiums for the time period of April 1, 2021 through September 30, 2021, with such costs to be offset by a refundable credit against the employer’s share of Medicare tax under a newly added Internal Revenue Code section.

With COVID-19 vaccines becoming more readily available in the U.S. and a larger percentage of individuals having been vaccinated, businesses are beginning to reopen or expand in-the-office activity in Northern Virginia and across the Commonwealth. Businesses, both large and small, should be giving serious thought to the COVID-19 workplace safety policies and procedures that all are required to have in place to achieve appropriate workplace safety for employees and customers whenever re-opening day arrives.

The U.S. Department of Labor (DOL) continues to focus considerable enforcement attention on when employees must be paid for travel time between home and their office or worksite under the Fair Labor Standards Act (FLSA). Construction and building trades companies remain at the forefront of the enforcement efforts of the DOL’s Wage and Hour Division (“WHD”), as exemplified by the recent consent judgment that ended the lawsuit brought by the DOL against AWP, Inc., a company that provides traffic control “flagging” services for temporary construction work zones.

While employers strive to minimize the occurrence workplace conflicts, complaints about employee conduct may still arise. When the complaint involves allegations of discrimination or other unlawful conduct, it is important for the employer to promptly and thoroughly investigate the complaint and take appropriate action if the complaint is substantiated.

To manage these investigations, some employers rely on their in-house counsel. However, there are potential downsides to using in-house counsel as the first line of defense when investigating an employee complaint.

With another summer approaching, you may be considering hiring an unpaid intern for the summer months. The process for doing so seems cut and dry. However, litigation around unpaid internships has recently increased due to several lawsuits where interns sued their former employers alleging violations of state and federal wage and hour laws by failing to pay interns for work that should have been performed by paid employees.

To determine whether your intern is entitled to minimum wage or overtime, the U.S. Department of Labor (DOL) has proffered a seven-factor “primary beneficiary test.”

For employers located in the greater Washington, D.C. metropolitan area, keeping up with multiple states’ employment law requirements can be challenging. Virginia closely tracks the federal laws that govern employers on issues such as the Family Medical Leave Act and the Americans with Disabilities Act, with only some minor variations, while Maryland mandates employee leave that deviates from both federal law and District of Columbia law.

The Fair Labor Standards Act (FLSA) establishes requirements regarding the compensation of employees working in the private sector and in federal, state, and local government positions. To protect employees, the FLSA also prohibits retaliation by employers against employees who complain that their rights have been violated.

In the past, the FLSA’s anti-retaliation provision has been applied to cases where an employee had been terminated or discriminated against after filing a formal complaint with a governmental agency, typically the U.S. Department of Labor, resulting in the commencement of formal proceedings against the employer.

Do you have an employee whose performance isn’t cutting it? If so, you will want to read this summary of the considerations and steps to take before terminating an employee.

Many employers terminate employees without following some basic procedures that take little effort on the part of the employer but can prevent major headaches later. Following these rules prior to termination can help employers avoid problems post-employment and can provide a full defense to an employee’s claim of wrongful termination.

Now that COVID-19 vaccines are becoming more widely available in the U.S. and a larger percentage of individuals have been vaccinated, the perception also seems to be growing that employees, now protected against the virus, can just stop wearing their face coverings while in the workplace. Not so, according to Occupational Safety and Health Administration (OSHA).

Throughout the ongoing COVID-19 crisis, one of the biggest challenges facing businesses and the legal community has been the lack of clear judicial direction addressing the pandemic’s impact upon contract performance obligations. Few agreements prepared before the pandemic began likely included provisions expressly providing for such an event. Now, contracting parties are wondering whether they or their counterparts are excused from performing under those pre-existing agreements, and how new agreements should be drafted in an ever-uncertain state of the market. The easy but unhelpful answer so far has been “it depends.”