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As employment law constantly changes, the attorneys at Bean, Kinney & Korman stay up to date on the law as it develops. Our blog topics focus on those changes and what you need to know about them, ranging from severance agreements and the FLSA to social media in the workplace and recent court decisions. If you are interested in having us cover a specific topic, please let us know.

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Posts in Employment.
Deck the Halls (but stay Home) this Holiday Season

The 2020 holiday season is fast approaching. By one recent estimate, nearly 40% of Americans are planning to travel for the holidays, many to visit with family, friends, and loved ones for the first time since the start of the COVID-19 pandemic. Yet there are some parts of the U.S., especially the mid-west and south, that are currently experiencing significant spikes in the rate of COVID-19 infections. The CDC continues to actively discourage travel during the COVID-19 pandemic because “travel increases your chance of getting and spreading COVID-19.”  

The IRS Chief Counsel’s Informal Guidance Clarifies Some Issues Left Open after Notice 2020-65 Regarding the “Payroll Tax Holiday”

In addition to Notice 2020-65 and Instructions to Form 941 which we outlined in our recent blog, the IRS Office of Chief Counsel for employee benefits, exempt organizations and employment tax provided informal but insightful guidance on its monthly IRS payroll industry call held on September 3, 2020. The informal guidance was directed in part toward clearing up confusion that remained even after the IRS’s issuance of Notice 2020-65 over whether, or to what extent, employers could simply ignore the “payroll tax holiday” created by the President’s August 8, 2020, Executive Order.

IRS Releases Instructions to Form 941 Expanding on Prior Guidance on Deferral of Social Security Tax

On October 1, 2020, the IRS released instructions for Form 941 providing additional guidelines for reporting deferred Social Security taxes pursuant to the President's Memorandum (discussed previously on our blog) and IRS Notice 2020-65

Background

On August 8, 2020, the Presidential Memorandum directed the Secretary of the Treasury to use his authority pursuant to section 7508A of the Internal Revenue Code to defer the withholding, deposit, and payment of certain payroll tax obligations.

Employer Antibody Testing for COVID-19 Violates the ADA, According to New EEOC Guidance

The Equal Employment Opportunity Commission posted an update on June 17, 2020 to its COVID-19 / ADA technical assistance for employers (A.7.) to address whether the ADA permits employers to require COVID-19 antibody or serologic testing before allowing employees to reenter the workplace. The ADA does not permit serologic testing, according to the EEOC. 

Supreme Court Extends Anti-Discrimination Protections to Gay and Transgender Employees

In a landmark decision, the United States Supreme Court ruled today in Bostock v. Clayton County, Georgia that gay and transgender employees are protected by federal anti-discrimination laws.  

Thus, as of June 15, 2020, public and private employers are prohibited from discriminating against lesbian, gay, bisexual, transgender, and queer (LGBTQ) employees on the basis of their sexual orientation or identity.

DOL Final Rule: Employers Can Pay Bonuses and Premium Pay Under FLSA Fluctuating Workweek Compensation

On May 20, 2020, the U.S. Department of Labor (DOL) announced a new final rule clarifying that employers are permitted to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. Such bonus or premium pay, on top of the fixed salary paid to an employee, are compatible with the use of the so-called “fluctuating workweek” method of compensation under the Fair Labor Standards Act (FLSA). The DOL issued the final rule to highlight the flexibility that employers have to provide bonuses or other forms of additional compensation under the fluctuating work method of compensation and to clear up the differing judicial opinions that have resulted from the DOL’s past guidance. 

Virginia Adds a "Ban the Box" Law for Pot Possession

Ban-the-box restrictions have increased in popularity among U.S. states and localities during the last decade. “Ban the box” refers to laws that variously prohibit or restrict employers from requiring applicants for employment to divulge their criminal history through a check box on an application for employment. The theory behind “ban the box” statutes is that they promote hiring practices that give applicants a fair chance and require employers to judge individual job candidates on their merits, instead of automatically disqualifying those who have a criminal history.

Employees in Virginia are Heading Back to the Workplace. What Can Employers Ask or Do?

On May 8, 2020, Virginia Governor Ralph Northam issued an Executive Order implementing Phase One of his plan to ease many of the current COVID-19-related restrictions on businesses and public activities for most jurisdictions in the Commonwealth, effective as of May 15, 2020. But not in Northern Virginia, where the region has yet to achieve the COVID-19 benchmarks that led to Northam’s easing of business and public activity restrictions elsewhere in Virginia. 

Virginia Enacts Dramatic and Far-Reaching Employment Law Protections, Part 2

This blog post follows Doug Taylor’s April 27, 2020 post about the recent wave of employee-friendly changes to Virginia law. In addition to the changes discussed in Doug’s post related to wage theft, non-competes, workplace discrimination, and whistleblower protections, new Virginia legislation imposes significant consequences on employers for misclassifying employees as independent contractors, substantially increases the minimum wage, and makes general construction contractors liable for subcontractors’ failure to pay wages.

Virginia Enacts Dramatic and Far-Reaching Employment Law Protections

Virginia Governor Ralph Northam has signed into law nearly two dozen bills that provide significant new rights for Virginia employees, including legal protections to combat wage theft, prohibit non-compete covenants for low-wage workers, and expand the scope of the ban on workplace discrimination. Also signed into law by Governor Northam were enhanced employee whistleblower protections against retaliation for reporting suspected violations of state law or cooperating with law enforcement.

We will be publishing additional updates on these and other new Virginia employment laws, which essentially redefine the workplace for both Virginia employers and employees.