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Workplace violence has become a growing concern for businesses across the country. In Virginia, employers of all sizes are actively considering, many for the first time, whether it would be prudent to have extra security personnel on hand and wondering whether they can be held liable for actions taken by security guards on their premises. The good news for employers in the Commonwealth is that such liability can be mitigated with the right policies in place.

Part 1 of this article can be found here.

The Fair Credit Reporting Act

Having considering the perils summarized above, an employer who still decides to use employee criminal background checks faces additional restrictions under other federal statutory provisions, namely the Fair Credit Reporting Act (“FCRA”). An employer who uses consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, must comply with the FCRA. The Federal Trade Commission (“FTC”) enforces the FCRA.

In a case with potential significance for many Virginia employers, the Court of Appeals of Maryland recently decided in Cunningham v. Feinberg that the Maryland Wage Payment and Collection Law (“MWPCL”) may be applicable to unpaid wage claims arising from employment agreements entered into in Virginia. Thus, a Virginia employer that does not exercise care in the payment of wages under a contract entered into with an employee who will be performing work in Maryland may find itself embroiled in a claim for unpaid wages, statutory treble damages, attorney’s fees and costs of litigation.

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Terminated employees qualify for unemployment benefits when they are unemployed without fault on their part.  Recently the Virginia Court of Appeals determined that fault can include conduct that occurs outside of the workplace.

The Case

The case is Francis v. VEC & Wal-Mart Associates, Inc.  Francis was employed by Wal-Mart from 6/2006 through 4/2008.  During her time with Wal-Mart she had no workplace discipline issues.  Outside of work she was charged with felony welfare fraud.  Even though she was not required to do so, Francis disclosed the charges to her superiors.  Her superiors rewarded her openness by suspending Francis and eventually forcing her to resign in lieu of termination.

Payroll Debit Card

In recent years, an increasing number of employers have begun using Payroll Debit Cards to pay employees who are unable or unwilling to sign up for direct deposit.  Payroll Debit Cards or “Paycards” are similar to reloadable credit cards and gift cards.  Instead of receiving paychecks, the employee receives the card which resembles a standard credit/debit card.  Employees are then able to use the card as a standard debit card to withdraw cash, transfer funds and to make purchases.

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In 1997, the Virginia General Assembly passed a law providing savings to employers who establish "Drug-Free" workplace policies.  The discount is currently 5% from the Workers' Compensation insurance policy premium.  For larger companies, this can be quite a significant savings.

Additionally, some organizations and individuals doing business with the government are required to provide a drug-free workplace for employees. This would include organizations with federal government contracts in excess of $100,000, organizations receiving federal grant funding, as well as individual contractors and grant recipients.  Subcontractors and subgrantees do not fall under this requirement.

There are several sources of good information regarding setting up a drug-free workplace policy:

  1. Department of Labor:  the website provides a great deal of information to businesses on how to setup a drug-free workplace policy including the "drug-free workplace policy builder" which guides individuals through a set of questions to help build the policy.
  2. Small Business Administration:  links to information pertaining particularly to small businesses and government contractors.  

In a recent decision, Virginia Employment Commission v. Community Alternatives, Inc. and April L. Collier, the Virginia Court of Appeals overruled the Virginia Employment Commission's position that in order to establish worker misconduct for failing a drug test, the employer must include in evidence a certification regarding the chain of custody of the drug test.   

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The case centered around Community Alternatives, Inc.'s ("CA") "drug-free workplace" policy. Under the policy, employees agreed to refrain from usage of illegal drugs and agreed to submit themselves to random drug testing. In 2007, April Collier was hired by CA.  When hired she signed the policy agreeing to the "drug-free workplace" policy. 

In September of 2008, Collier was randomly tested for drugs.  She tested positive for marijuana and was subsequently fired for violating the policy.  She filed a claim for unemployment benefits with VEC.  VEC ultimately awarded benefits despite CA's objections.