The I-9 has three sections.  Section 1 collects information from the employee concerning his or her identity and work authorization.  Section 2 collects information from the employer, including the identity and work authorization documents presented by the employee.  Section 3 addresses rehires and reverifications. 

The primary changes to the I-9 are:  

1.  additional data fields for employee telephone, email address and foreign passport number, if applicable;
2.  improved instructions, including additional information concerning acceptable verification documents; and
3.  a revised layout which expands the form from one to two pages (not including the instructions and lists of acceptable documents).   

What has not changed, and has always been the rule, is that employers must allow employees to choose which permissible documents to present to establish identity and authorization to work. In reference to the I-9 Form, Column A documents establish both identity and employment authorization.  Column B documents establish identity; and column C documents establish employment authorization. 

It is important that employers not complete the new form for existing employees who already have an I-9 on file unless reverification applies.  Unnecessarily reverifying an employee’s I-9 could violate the anti-discrimination provisions of the Immigration and Nationality Act. 

 There is a great deal of useful information available for employers at the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices website.   The Special Counsel offers an Employer Hotline at 1-800-255-8155, where employers can obtain further instructions from an Equal Opportunity Specialist.  The USCIS website also offers employers access to free webinars  concerning I-9 forms and E-Verify.  The USCIS website has a Spanish-language version  of the I-9 form.  Although the Spanish-language version of the form is available for use only in Puerto Rico, employers can use the form to assist Spanish-speaking employees in completing the I-9 form. 

If you need help with the new I-9 form, the employment lawyers at Sands Anderson, P.C. are available to assist you.

In All Erection & Crane Rental Corp. v. OSHRC, a crane rental company supplied a crane to a general contractor that was building a bridge in Ohio.  The bridge collapsed during construction, but for reasons unrelated to the crane. When the Occupational Safety and Health Administration (“OSHA”) investigated the collapse, it noted that the area behind the crane’s swing radius was barricaded, in part, merely by two wooden pallets leaning against each other.  The OSHA inspector issued a citation against All Crane for failing to barricade the swing radius according to federal regulations.

On appeal of the citation, the administrative law judge (“ALJ”) reviewed the four-part test for imposing liability:

 (1) Does the cited standard apply to the cited violation?

 (2) Were the  terms of the cited standard met by the employer?

 (3) Were employees exposed to the cited violation? and

 (4)  Did the employer have knowledge about the violation?

On the first question, the ALJ easily found that the regulation at hand, 29 C.F.R. § 1926.550(a)(9), applied to cranes. 

Under the second question, the ALJ also easily found that All Crane violated the standard’s terms because All Crane’s employee conceded that he did not properly barricade the swing radius of the crane. 

 On the fourth question, the ALJ also found that All Crane had knowledge of the violation because its employee who acknowledged the violation clearly had knowledge and was considered to be a supervisor.  

On the third inquiry, however, the ALJ reached a surprising conclusion.

 Up until the Sixth Circuit’s ruling, this third question focused on whether the employee had any actual exposure to the hazardous condition.  However, in All Crane, the Sixth Circuit took issue with the presence of employees who had access to the area of the crane’s swing radius and walked behind and around the crane in proximity to the rotating counterweight.  The court stated that OSHA “need only prove that employees had access to the violative condition.  The Secretary need not prove that employees were actually exposed to the condition, but only that it was reasonably predictable that employees would be within the zone of danger.”  The Sixth Circuit cited to prior decisions of the OSHA Commission that this third element is met if “it is reasonably predictable by operational necessity or otherwise, including inadvertence, that employees have been, are, or will be in the zone of danger.” 

 Although the Sixth Circuit’s opinion does not govern the federal courts in Virginia and North Carolina, the argument adds to the debate of “access v. presence” that the Fourth Circuit has before acknowledged but declined to decide.  See Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1263 (4th Cir. 1974).  In Brennan, the Fourth Circuit considered an OSHA citation for scaffolding and noted the debate on whether a citation can issue merely on the basis of employee access to the danger zone, or whether specific evidence of employee presence in the danger zone is required, stating that the debate “can be answered either way consistent with the statutory purposes of [OSHA].”  However, the Fourth Circuit refused to weigh in on the debate, stressing that resolution on “access v. presence” was best left to the OSHA Commission’s expertise.  Ultimately, the Fourth Circuit reversed and remanded the case because, among other reasons, the OSHA Commission failed to explain why it adopted a rule that access alone is sufficient to make out a violation.  Since Brennan, the Fourth Circuit has simply followed and applied the same OSHA Commission rulings that formed the basis of the Sixth Circuit’s new rule.  See, e.g., N&N Contrs., Inc. v. OSHRC, 255 F.3d 122, 127 (4th Cir. 2001).  It is likely, therefore, that the Fourth Circuit could follow the Sixth Circuit’s clear mandate to make access enough to form the basis of an OSHA citation.

For employers, the All Crane case cautions that employers may have a bigger burden to bear in defense of OSHA violations.  After all, under the “access alone” rule of the Sixth Circuit, OSHA can establish its case based only on the testimony of an employer’s compliance officer without additional proof about an actual employee’s presence in the zone of danger.  This could mean increased costs as employers exercise additional precautions for all potential hazardous conditions.  Indeed, employers must consider the need to barricade danger zones as critical to protecting themselves from liability for OSHA violations. 

If you have any questions regarding OSHA compliance, employment law team at Sands Anderson, PC would be pleased to assist.

The Seventh Circuit (with jurisdiction in Illinois, Indiana and Wisconsin) recently ruled in Teed v. Thomas & Betts Power Solutions, LLC, that  a buyer of a company’s assets can’t rely on state law to keep  a seller’s violations of the Fair Labor Standards Act(FLSA) from transferring to the buyer of the Seller company’s assets.  Federal labor law claims are governed by federal common law, not state law.

The Court’s rationale was that it is not fair for deals in some states — but not others– to extinguish federal labor law violations upon sale of a company. In addition, employees with claims do not have power  to stop the owner from selling the company to extinguish employment law violations.  When certain criteria are met, the buyer (successor) is stuck with the seller’s liability, no matter what their contract says.

The concept is not new.  The federal common law standard for successor liability has been applied to Labor Management Relations Act, National Labor Relations Act, Title VII of the Civil Rights Act, Age Discrimination in Employment Act, Family and Medical Leave Act.  This ruling extends this doctrine to violations of the FLSA.  It is likely that other circuits would adopt this holding, although currently it only applies to contracts under the laws of Illinois, Indiana and Wisconsin.

To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:

1.       Whether the successor had notice of the pending law suit;

2.       Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;

3.       Whether the predecessor could have provided relief after the sale;

4.       Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and

5.       Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.

It is now more important that ever to conduct thorough due diligence before purchasing another company, and to adjust the price or to reserve funds to account for labor violations.  For more information, contact your business attorney or employment attorney.

Since the passage of the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH), the Department of Health and Human Services (HHS) has been working on amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to significantly expand entities subject to rules governing access to and disclosure of protected patient health information (PHI).  One of the most notable expansions of HIPAA, under HITECH, is the expanded applicability of certain provisions of HIPAA directly to business associates and subcontractors who have access to PHI as part of the activities they perform for health care providers and other covered entities.    

HHS recently published the Final Rule modifying HIPAA to implement the requirements of HITECH.  The new requirements became effective March 26, 2013, but covered entities (think health care providers), their business associates and subcontractors have until September 23, 2013, to comply.  Under HITECH, significant monetary penalties apply to non-compliant entities subject to HIPAA; so you’ll want to pay attention to the new requirements and get started right away to ensure that you are in compliance by the September 23, 2013, deadline.  

How do I know if HIPAA applies to me? 

• HIPAA applies to covered entities.  HIPAA applies to health care providers, health plans, and health care clearinghouses, also known as “covered entities”.  Most health care providers have long been aware that HIPAA privacy and security requirements apply to them. 
• HIPAA also applies to business associates.  With the passage of HITECH, HIPAA now applies to entities that perform activities on behalf of health care providers if the entity uses or discloses PHI to perform its activities.  It’s not just a contract issue anymore; HHS can directly enforce HIPAA against a business associate!
• And to subcontractors.  Many business associates already were aware that HIPAA applied to them.  However, the Final Rule also makes clear that subcontractors of business associates are subject to the same HIPAA provisions that apply to business associates.  This means that if you are a business associate you need to ensure that your subcontractors are complying with privacy and security provisions that apply to you under HIPAA. 

Who is a “business associate”?

• A business associate is generally defined as a person or entity (not an employee) that performs functions, activities or services on behalf of or for a health care provider that involve the use or disclosure of PHI.  Business associates include entities that provide legal, actuarial, accounting, data processing, claims processing, benefit analysis, quality assurance, and other activities on behalf of health care providers that necessarily involve the use or disclosure of PHI. 
• HHS has a link  on its website that discusses “business associates” and include examples.  One such example is a software company that hosts a health care provider’s patient information software.  Whether the patient information is on the software company’s own server or accessed when the software company troubleshoots the software, the software company is a business associate of the healthcare provider and subject to HIPAA.

What happens if I am found to be non-compliant? 

• HITECH establishes four tiers for violations with corresponding penalties based on the level of culpability attributed to the entity that violated HIPAA privacy and/or security requirements.  Penalties range from $100 per violation to $50,000 per violation.

If you need assistance making sure you are compliant with HIPAA/HITECH issues, the health care lawyers at Sands Anderson PC (www.sandsanderson.com) are available to help.

Read more here.

This information is provided for informational purposes, and includes both legal requirements and generally-recommended best practices. It is not intended to be legal advice. An attorney should be consulted when developing policies and procedures for your organization.

You must determine now: (i) if you are an applicable large employer under the Act, (ii) if so, which employees must be offered health care coverage, and (iii) what penalties you may face for not offering coverage.    Much has been written, and new guidance issues almost daily,but following is a quick checklist:

1.      Are You a “Large Employer” Subject to the Act?

Only employers with at least 50 full-time common law employees, or the equivalent, are subject to penalties under the Act. To determine if you meet the “large” employer definition, you must determine how many full-time employees (and their equivalent) you have as defined by the Act, and whether or not you qualify as a single or joint employer.

How Do You Count Employees?  For purposes of calculating employer size, a full-time employee is anyone who regularly provides at least 30 hours of service (all paid time) a week, on average.  You must also calculate full-time equivalent positions.  To determine full-time equivalent positions in a month, the total number of hours worked by part-time employees is divided by 120.  The number of full-time employees for each month, plus the number of full-time equivalent positions for each month are added together, divided by 12, and then rounded down to the nearest whole number.  If that number is 50 or more, the employer will be subject to the Act’s penalties in 2014.  Because employers have not had much time to plan for this initial look-back period, they may choose to use any consecutive 6 month period in 2013 to determine large employer status for 2014 (but must use the full previous calendar year for subsequent years).

Are You A Single or Joint Employer?  The Act also requires joint employers to combine their employee counts for purposes of determining large employer status under the Act.  Recent regulations make clear that any employer considered a single employer under IRS pension plan definitions will be treated as a single employer for purposes of determining large employer status. If you have any relationship with another entity, you will need to determine if that relationship qualifies you as a joint employer.

2.      What Are Minimum Essential Coverage, Affordability, and Minimum Value?

In order to avoid shared responsibility payments (i.e. penalties), a large employer must offer minimum essential coverage that is both affordable and meets certain minimum value requirements.

Minimum essential coverage includes most private health insurance plans that an employer would offer its employees (but certain limited benefits will not qualify).

A health care plan is considered affordable if the employee’s share of the premium for employee-only coverage does not exceed 9.5% of his household income.  Remember that employers must offer dependent coverage (for children up to age 26, but not spouses), but the cost of dependent coverage does not affect the affordability calculation. Because an employer will not necessarily know an employee’s household income, the Act provides a safe-harbor for the employer, requiring only that the cost of employee-only coverage is not more than 9.5 % of the wages reported on the employee’s W-2.

The coverage offered must also meet certain minimum value requirements.  In simplest terms, the plan must pay at least 60% of the expected health care costs.  The employee would pay the other 40% through copayments, deductibles, and coinsurance.  In other words, the employer’s plan should meet the same minimum value as the “bronze” plans to be offered in the health insurance exchange.  In terms of the specific benefits offered, the requirements will vary.  Some plans are required to offer the same essential health benefits as plans offered through the exchange, while others are  not (self-insured plans, for example, are not).

3.      How Do You Determine Which Employees You Offer Coverage to and When the Coverage is Offered?

This provision will be especially important for those in retail who qualify as a large employer.  Not only will you need to determine if your employees are full-time, variable hour, or seasonal (working less than 4 months a year), you will also need to keep rigorous track of hours in order to be able to prove that they do not qualify for coverage in order to avoid penalty assessments.  The Act gives employers the option to use a look-back period to determine which employees are full-time (or not).  For 2014, you need to begin that analysis now. The calculation for this analysis is too complicated to discuss here, and assistance from a qualified professional is recommended.

In order to simplify compliance with the Act, some employers are contemplating limiting all part-time workers to 29 hours a week.  This strategy may prove unwise; it could be viewed as an interference with employee benefits (ERISA 510 claim).  Until the nuances of the Act have been tested in court, it may be better to simply start measuring current employees’ hours under the variable hour employee analysis, and redefine new positions to be either clearly part-time (less than 30 hrs/week) or full-time (30+). 

4.    Play or Pay?

 Technically speaking, the Act does not require any employer to provide health insurance to any employees.  Rather, the Act contains certain penalties for applicable large employers who fail to offer coverage to full-time employees.  Large employers can face penalties for either (i) not offering minimum essential coverage to full-time employees and their dependents (children up to age 26, but not spouses), or (ii) offering coverage that is deemed unaffordable or does not provide minimum value.  There are no penalties for not offering coverage to part-time employees.

If a large employer does not offer coverage at all, and any full-time employee seeks coverage through a health insurance exchange and that employee also receives a subsidy for such coverage (either a premium tax credit or cost-sharing subsidy), the employer will be fined $2000/year for each full-time employee, disregarding the first 30 full-time employees (assessed monthly).  Note that one full-time employee receiving a subsidy through the exchange will result in a penalty for each full-time employee (after the first 30).  There is a safe-harbor for employers who offer coverage to their full-time employees and dependents but mistakenly exclude no more than five percent (or five, whichever is greater), of employees from coverage who otherwise should have been covered because of full-time status. The IRS will then assess a penalty only for any employee who was mistakenly not covered and who receives a subsidy through the exchange. 

If an employer offers coverage, but that coverage is deemed unaffordable or does not provide minimum value (as defined by the law), and any full-time employee receives a subsidy for coverage through an exchange, the employer will be fined $3,000/year, in monthly installments, only for full-time employees that actually receive a subsidy.  The amount fined under this scenario is capped at the amount the employer would be fined for not offering any coverage.

Keep in mind these dollar amounts are for 2014 only.  The Act states that the penalties will increase based on premium inflation.  So employers will have to calculate the potential cost of not offering coverage each year going forward.  Under both scenarios penalties are triggered by a full-time employee receiving a subsidy through the exchange.  In order to be eligible for such subsidy, an employee must have an income between 100 – 400% of the federal poverty level (“FPL”), and cannot have been offered affordable, minimum value coverage.  For a family of four, 400% of the FPL in 2013 is $94,200.  Going forward, employers would need to know these (almost impossible to know) details about their workforce in order determine the cost of not providing coverage.

Some with “large” employer status have considered dropping all employee coverage and simply “paying the penalties.”  However, before doing so, the employer should consider the following:  (i) the unknown future cost of the penalties; (ii) the lost tax benefit to the employee, and in the private sector, to the employer, and (iii) recruitment and retention of quality employees.  You may also want to consider finding a plan that offers at least bronze level coverage for variable hour employees who may be close to the 30 hour per week threshold.  If you offer at least the bronze level coverage, you eliminate the risk of penalty assessment.

The Act also provides employees with whistleblower protections.  Employees who: (i) report alleged violations of Title I of the Act (the health care requirements discussed in this article, plus other elements of the Act, including insurance plan requirements), or (ii) receive health insurance tax credits or cost-sharing reductions (thus causing employer penalty assessments), are protected against retaliation from their employer and their insurance provider. In short, firing (or dropping from coverage, or otherwise adversely affecting the employment of) an employee for reporting violations or going to the exchange will bring additional liability upon the employer or insurance provider.

One final consideration should be the tax implications, for both the employer and employees.  Penalties are not tax-deductible, whereas health care contributions are deductible.  Also, employees may expect an increase in salary to compensate for the lack of health benefits offered by an employer; a dollar-for-dollar increase will be taxed, and therefor potentially not as valuable to the employee.

The Act is new and complicated, so it is important to stay updated on new developments. New guidance will continue to be issued throughout 2013 (and beyond).  The bottom line is that employers must begin analyzing their workforces now, in 2013, in order to make informed business decisions for 2014.

The above article is a condensed version of a longer Sands Anderson PC article by the same name by Ms. Rogers, Karen S. Elliott and Phyllis Katz. If you would like the full article, or if you would like to seek legal advice regarding application of the Affordable Care Act to your business, please contact us at contactus@sandsanderson.com.

The new regulations: 

• Modify Qualified Exigency Leave, by changing the definition of “active duty” to “covered active duty.”  This means that only those whose related service members are being deployed to a foreign country are covered for a qualifying exigency leave. On the other hand, it expands the type of activities that will be subject to FMLA leave for qualified military families. In addition, the length of time an eligible family member may take for “Rest and Recuperation” is expanded from five days to up to a maximum of 15 days.
• Expand the definition of military caregiver leave to provide for as much as 26 weeks of leave in 12 months for eligible employees who are caring for covered veterans as well as covered services members.   
• Clarify the application of the FMLA to airline personnel and flight crews. 
• Confirm an employer’s FMLA record keeping must comply with confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA) .
• Clarify the rules for calculation of intermittent or reduced schedule FMLA leave. The clarifying language formalizes the DOL’s position that the employer may not require an employee to take more leave than necessary to address the circumstances that caused the need for leave, and that the leave must be tracked using the smallest increment of time used for other forms of leave, subject to a one-hour maximum. The regulations also confirm that FMLA leave may only be counted against FMLA entitlement for leave  taken and not for time that is worked for the employer (thus, if the employee is working at home while on FMLA leave, the time worked must not be counted).

            The DOL has posted a helpful comparison chart that details the specific changes.  

 If you have any questions regarding the FMLA regulations, the employment law team at Sands Anderson, PC would be pleased to assist.

While much has been written about making sure employers do not violate equal protection laws when using background checks, avoiding scrutiny from the EEOC is not an employer’s only concern. Employers must also make sure that they do not violate the Fair Credit Reporting Act (FCRA/Act) requirements.   Failure to comply can open the employer to severe financial and criminal liability, including attorneys’ fees. 

For starters, in government speak, a background check is potentially the same as a credit check trigging the Fair Credit Reporting Act (FCRA) requirements. Although it contains the word “credit” in its title, the FCRA applies to a broad range of employee information obtained from a third-party, including background checks.  Its purpose is to protect an individual’s privacy and to assure the accuracy of the information being acted upon.  The primary goal of the Act as it relates to employment situations is to ensure (1) that individuals are aware that “consumer reports” may be used for employment purposes; (2) that individuals agree to such use; and (3) that individuals are notified promptly if information in a consumer report may result in negative employment decisions initiating a background check.  To comply with FCRA, employers must provide proper notice and obtain proper authorization. 

The FCRA regulates “consumer reports” obtained from “consumer reporting agencies.”    This means that if you are an employer conducting background checks on your employees using a third-party resource, you must comply with the FCRA.  The FCRA does not regulate an employer’s ability to conduct a background investigation by means of the employer directly contacting applicants’ former employers, or otherwise directly checking public documents and records.  The Act applies only when the employer seeks that information through a third-party source.

If the employer is requesting information through a third-party using only existing public records, before obtaining such a report, the employer must notify the employee or potential employee in a clear and conspicuous writing that the employer is obtaining or going to obtain a consumer report for employment purposes.  This disclosure must be made in a document that is separate from any other information or notice.  It may not be included on the application.

If the employer has the third-party verify references, addresses, degrees or other information, a combined written disclosure must be provided. This disclosure must include the same information as above, as well as inform the employee that a request for an investigative report may be made, and should describe the information that the report will seek, including, as applicable, information on the employee’s character, general reputation, personal characteristics and mode of living.  The disclosure must state that such information will be obtained by personal interviews with sources who know the employee.  Finally, the notice must inform the employee of his right to receive a complete and accurate disclosure of the nature and scope of the investigation requested.  If requested, the employer must mail the information within five (5) days after receipt of a written request for the information, and a copy of the Federal Trade Commission’s “Summary of Rights” document must also be provided. 

A revised version of the Summary of Rights document is now required as of January 1, 2013, so make sure you are sending the correct form. 

In addition to the disclosure, employers must obtain written authorization from an employee or potential employee to obtain either a consumer report, an investigate report, or both.  The employee authorization can be given on the applicable disclosure form referenced above. In order to eliminate any confusion, many employers attach the Summary of Rights form to the disclosure notice and in the employee’s written authorization  have the employee give not only permission for the background check, but affirm receipt of the Summary of Rights form.           

 There are very specific FCRA  requirements employers must follow before making an adverse decision based on the report – too detailed to describe here.   Just make sure you follow the adverse action requirements before you take any action. In addition, make sure you follow the EEOC’s guidance as well.

As a final note, many background check companies offer to check social security numbers when conducting the pre-employment background check.  This is not a proper procedure. Social security numbers may only be checked after employment (unless you are properly using E-Verify).  If you do come up with a mis-match after employment, again there are specific guidelines that employers must follow.

If you have any questions about background checks or other employment law matters, the employment law team at Sands Anderson, PC would be pleased to assist your company.

While this certainly addresses the economic issues, it raises a host of technology, security, privacy, and liability issues.

Many employees track customer contacts or project tasks via software. Can the employee access CRM or ERP or customer portals from his or her personal device? How many device platforms can the information technology department support?

Many companies exchange confidential information via email.  Does the employee’s device contain  security measures that will protect company trade secrets and other confidential information? What happens if the employee loses the device?  Can the confidential information be wiped out remotely? Is the device password-protected? Will apps leak sensitive corporate information?

What happens if the employee is fired or quits abruptly?  How can the company easily retrieve its proprietary information or block the employee’s continued access?

What happens if the employee downloads “inappropriate” or illegal material on the device — could the company be liable since the device is also used for company business?

While well-considered BYOD policies can address many of these issues, BlackBerry (formerly Research in Motion) is pinning its renaissance in this space.  The soon-to-launch BlackBerry Z10 has an interesting new feature:

IT  managers will be able to segregate business-related apps and data  from employees’ personal material. Corporate data can be remotely wiped from an employee’s phone but personal photos, e-mails, music and apps will be untouched. The system can also block users from forwarding or copying information from the work side of the phone. Meanwhile, certain information, generated by e-mail, Twitter, Facebook, instant messaging and LinkedIn accounts, would be consolidated into a single in-box.

These features address some important security and liability issues, but are no substitute for a BYOD policy that includes confidentiality, security, technical support and financial considerations.

Related articles

• BlackBerry 10 is the first BlackBerry to fully support BYOD (zdnet.com)
• Did BlackBerry Save Itself From Total Destruction? (forbes.com)
• Five security risks of moving data in BYOD era (zdnet.com)
• 5 Reasons Small Businesses Should Consider BYOD (intuit.com)

The first steps to be taken, when a complaint is made, are (1) assure that the person making the complaint is protected from any continuing possible adverse action and (2) selecting the right person to investigate. The investigator should be one who can objectively gather and consider the relevant facts without any subtle operational or managerial pressures being applied to the assigned tasks.  The investigator should be experienced in the skills required for interviewing witnesses and evaluating credibility.

Each investigation must be tailored to the particular facts.  The complainant, the alleged harasser, and third parties should be interviewed. Other than the questions of who, what, where, when, and how did the harassment occur, the person should be asked what was the response to the described actions, are there any others to collaborate, and are there any notes, documents, or physical evidence regarding the incident. Most advisedly, the investigator should refrain from offering his or her opinion.

The Enforcement Guidance recognizes that investigators will face conflicting versions of the relevant facts, and suggests the invesigator use the following factors to weigh credibility:

• Inherent plausibility: Is the testimony believable on its face? Does it make sense?
• Demeanor: Did the person seem to be telling the truth or lying?
• Motive to falsify: Did the person have a reason to lie?
• Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
• Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility and each must be weighed against the environment in which the described events occurred. For example, the fact there is a record of similar behavior in the past does not necessarily mean that it was engaged in at the situation under investigation.

A determination should be made as soon as possible and once made the parties should be informed.  If the evidence is inconclusive, the employer still has the obligation to institute preventive measures such as monitoring and training. The follow-up action(s) should be immediate and appropriate to the situation and should not adversely affect the complainant. Even if the complainant’s facts do not bear out, be sure that decision makers know not to retaliate either against the complaining party or those who participated in the investigation. While the underlying complaint may lack merit, the employee complaining is under most circumstances now protected against retaliation for bringing the complaint.

When conducting workplace investigations, employers need to also be aware of the requirements under the Fair and Accurate Credit Transactions Act of 2003 (FACTA) http://www.gpo.gov/fdsys/pkg/PLAW-108publ159/pdf/PLAW-108publ159.pdf , which amends the Fair Credit Reporting Act  (FCRA). http://www.ftc.gov/os/statutes/031224fcra.pdf  FACTA allows employers to retain third parties to conduct workplace investigations without first notifying the target of the investigation or obtaining their consent (i.e. as required in background checks).  However, if the third party conducting the investigation provides information on which the employer takes adverse action against the employee, the employer must disclose to the target of the investigation a summary of the third-party investigator’s report.  The summary must include the nature and substance of the report, but need not identify the individuals interviewed or other sources of information.

If you need assistance with workplace investigations or have other employment law concerns, the Sands Anderson PC employment law team would be pleased to hear from you.

The Federal Arbitration Act “declares a national policy in favor of arbitration.”  When an Oklahoma trial court, and later the Oklahoma Supreme Court, ruled that a non-compete agreement could be reviewed by state courts, instead of by an arbitrator as contemplated by the parties’ employment contract, Oklahoma ran afoul of settled law from the Supreme Court of the United States.  In doing so, Oklahoma courts violated the the Supremacy Clause of the United States Constitution.  In short, an arbitrator, not a state court judge, will decide whether a non-compete provision is lawful if the provision stems from an agreement with a valid arbitration clause.

In Nitro-Lift, the Oklahoma Courts that reviewed the employment agreement at issue determined that the arbitration provision in the contract was permissible.  Rather than remand the employee’s lawsuit to invalidate the non-compete provision for arbitration, or dismiss the lawsuit so that the dispute might be arbitrated privately, the Oklahoma state court went on to examine the non-compete provisions in question. The Oklahoma courts determined that the non-compete contained in the agreement violated Oklahoma state law.  The Oklahoma courts went on to rule that the non-compete provisions were unenforceable.

In response, the employer, Nitro-Lift, argued that the Oklahoma state courts could not reach the question of the validity of the non-compete provisions in the first place.  That was because the parties’ agreement required disputes under the agreement be resolved by private arbitration, not by the state courts.  Turning aside that argument, the Oklahoma Supreme Court relied on its own previous “exhaustive” review of Federal Arbitration Act cases and held that the FAA did not “inhibit [the Oklahoma courts'] review of the underlying contract’s validity.” 

In an unsigned per curiam opinion, the US Supreme Court disagreed unequivocally.  The Court held that Oklahoma was wrong to characterize the employment dispute as solely a matter of state law – the FAA, and the arbitration agreement, made the enforceability of the employment agreement subject to the federal law that enforces arbitration clauses.  Moreover, the FAA is every bit as enforceable in state courts as it is in federal courts. 

Oklahoma state courts must give effect to the Federal Arbitration Act, which gives effect to arbitration clauses.  State courts must also give effect to US Supreme Court interpretations of the scope and effect of the Federal Arbitration Act.  Both the FAA and US Supreme Court interpretations of it are the supreme law of the land. 

In a final, biting, ruling, the US Supreme Court rejected a particular statutory-construction argument advanced by the Oklahoma Supreme Court.  The Oklahoma Supreme Court had reasoned that because Oklahoma had a specific state-law provision concerning non-compete agreements, that specific provision ought to trump the general provisions of the Federal Arbitration Act which apply to arbitration clauses generally.  The Supreme Court agreed that specific statutes generally do trump general ones (“the ancient interpretive principle … generalia specialibus non derogant”), but that principle only applies to conflicts of  ”laws of equivalent dignity” (emphasis added).  Oklahoma’s state law, disfavoring non-compete provisions, is an inferior law to Congress’s supreme law of the land favoring the enforcement of arbitration clauses.

The Nitro-Lift case, in addition to having one of the best case names in recent memory, stakes out important contractual and Constitutional principles that bear considering when drafting agreements and seeking to enforce them.  First, arbitration provisions are, as required by the FAA, “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”  Second, the FAA’s protection of arbitration provisions will trump state law attempts to narrow the FAA’s scope and effect.  Third, state courts that find employment agreements, even non-compete agreements, offensive, or even unlawful, have no authority to tinker with them if the agreement has in it a valid arbitration clause. If you need any assistance with drafting non-compete agreements, the  Virginia employment law attorneys at Sands Anderson would be pleased to provide assistance.

This case, Van Buren v. Grubb, presented compelling facts:  A nurse was subjected to severe sexual harassment by her supervisor, who was a physician and the owner of the medical practice. For five years, the doctor would “hug her, rub her back, waist, breast, and other inappropriate areas and attempt to kiss her” and profess his love.  The nurse continually rebuffed his advances, but this conduct persisted at work and in hotel rooms when they traveled together for business.  It continued even after the nurse married at which time the doctor started to demand that the nurse leave her husband.  One day, the physician definitively demanded that the nurse end her marriage, but the nurse refused.  The next day, she was fired. 

The nurse then sued the medical practice for gender discrimination under Title VII of the Civil Rights Act of 1964, as well as the doctor for wrongful discharge in violation of public policy.  She alleged that her discharge resulted from her refusal to engage in criminal conduct, namely adultery in violation of Va. Code § 18.2-365 and open and gross lewdness and lasciviousness in violation of Va.  Code § 18.2-345.  The doctor, attempting to limit his personal liability, moved to dismiss the nurse’s claims against him individually.  But the Supreme Court, answering a certified question from the Fourth Circuit, ultimately declared that Virginia law allows the nurse to sue her supervisor to hold him personally liable for his tortious actions. 

The Supreme Court based its ruling on its own previous decisions allowing a joint liability claim against the employer and certain named directors, see e.g., Bowman v. State Bank of Keysville, 229 Va. 534 (1985), a claim against the employer and the supervisor, Lockhart v Commonwealth Educational Systems Corp., 247 Va. 98 (1994), as well as precedents from other jurisdictions.  Based on this prior law, the Supreme Court concluded that “[i]n a wrongful discharge case, the tortious act is not the discharge itself; rather the discharge becomes tortious by virtue of the wrongful reasons behind it.”  Therefore, relying on principles of tort law and not contract law, the court paved the way for wrongfully terminated employees to sue not only their employers, but also their supervisors and managers individually.  In reaching this conclusion, the court explained that “the deterrence of discharge in violation of public policy – is best served if individual employees in a position of power are held personally liable for their tortious conduct.”  

The impact of this case could be far-reaching, depending on how the Supreme Court deals with future cases seeking to hold supervisors and managers personally liable for damages based on behavior that can be shown as violating public policy.  Certainly, supervisors and managers will need to reconsider the scope of their protection as an employee as employers rethink their defense litigation strategies that might otherwise benefit a supervisor or manager.  More importantly, employers should consider implementing or revisiting their policies targeted at preventing harassment and minimizing tortious acts of their supervisors and managers.    

 If you need further legal guidance concerning termination or sexual harassment policies and investigations, the Sands Anderson Employment attorneys will be happy to assist you.

The NLRB decisions sparking the most recent discussions are those decisions deeming as unlawful, social media policies containing general provisions prohibiting employees from using online media to either disparage the employer, disclose confidential information, or refrain from posting photos of the workplace without company permission. The NLRB’s general counsel has even issued three reports outlining and addressing alleged abuses relating to social media policies. In its last report, the NLRB distinguished general statements in policies prohibiting posting defamatory material, from policies that include “examples of clearly illegal or unprotected conduct.” If the policy is too general, the NLRB rules them “ambiguous” and thus “chilling” of employee’s Section 7 rights. Policies that provide “sufficient examples of prohibited conduct, so that in context, employees would not reasonably read the rules to prohibit Section 7 activity” are deemed lawful.

In early September, the Board issued yet another opinion illustrating how difficult it is to apply the above rationales. In reviewing the legality of certain workplace rules and policies by the retailer Costco, the Board found the following handbook provision to violate employees’ Section 7 rights:

Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The Board found this to be in violation of Section 7 rights because the above statement “clearly encompasses concerted communications protesting [Costco's] treatment of its employees.” The Board held that the above policy language would cause employees to reasonably conclude that the rule requires them to refrain from engaging in certain protected communications. The Board ordered Costco to rescind or modify the language in the policy.

Perhaps even more troubling than its pronouncements regarding written policies, is the NLRB’s foray into the human resources investigation process of employee misconduct. By way of example, in its recent opinion in Banner Health System, a divided Board ordered a Phoenix, Arizona hospital to cease and desist from maintaining or enforcing a rule that employees may not discuss with each other ongoing investigations of employee misconduct.

 In the Banner Health System case, a human resources officer had instructed a hospital technician under investigation not to discuss a matter with coworkers in order to protect the integrity of the ongoing investigation.  Nonetheless, the Board majority found that it was the hospital’s burden to “first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated or there was a need to prevent a cover up” before delivering such an instruction.  Significantly, the Board provided no direction as to what information would need to be gathered to meet the threshold necessary to justify such a directive from the HR Department.

            The effect of such opinions by the NLRB leaves employers in a quandary.  While many times a request for confidentiality or a direction not to defame other individuals is issued by an employer for the benefit of employees and seems fully justified,  nonetheless ordering, or even suggesting, such confidentiality, or directing employees not to make harassing or defamatory comments, may find an employer on the wrong side of the NLRB.  Clearly, such decisions have a chilling effect on employers and put employers in a position of uncertainty when handling workplace investigations or writing anti- defamation policies. 

            If you need further legal guidance concerning confidentiality restrictions or workplace policies and investigations, the Sands Anderson Employment attorneys will be happy to assist you.

Several cases this year exemplify how important it is for employers to continually update and monitor their computer policies.

Earlier this year, the Fourth Circuit limited the criminal and civil protections afforded under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. In WEC Carolina Energy Solutions v. Miller, Mr. Miller, the project director for WEC Carolina Energy Solutions, Inc., resigned his post. Before leaving—but while still employed by WEC—the company claims Mr. Miller downloaded WEC’s proprietary information and used it to pitch a presentation and secure a potential WEC client for his new employer and competing company, Arc Energy Services, Inc. So, WEC sued Mr. Miller, his administrative assistant, and Arc under the CFAA.

But, WEC lost, with the court holding that the CFAA was intended to target system hackers, not employees who improperly accessed and used the employer’s data contrary to employer policies.

The CFAA permits civil lawsuits against people who access computers without authorization. Although WEC’s company policies prohibited the use of this information obtained from WEC’s intranet and computer servers, the Fourth Circuit held that the CFAA merely governs hacker-type access and not use.

The Fourth Circuit held the CFAA “appl[ies] only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access.” Beyond the moment of access, therefore, the CFAA does not apply, even when people like Mr. Miller go on to use the information in violation of company policy. The Court justified its narrow interpretation because the CFAA also allows criminal penalties, which mandates the Court to “avoid interpretations not clearly warranted by the text.”

WEC argued that by downloading WEC’s data contrary to WEC’s interests and company policies, Mr. Miller’s status as the employer’s agent instantly ceased and he lost all benefits of authorized access. The Court, however, ruled that this was a slippery slope. After all, “any employee who checked the latest Facebook posting or sporting event scores in contravention of his employer’s use policy would be subject to the instantaneous cessation of his agency and, as a result, would be left without any authorization to access his employer’s computer systems.” The Fourth Circuit reasoned that even though such a “frolic” could justify the employer’s rescission of the employee’s authorization, Congress did not intend an immediate end to the employer-employee agency relationship under the CFAA.

The Court recognized “[o]ur conclusion here likely will disappoint employers hoping for a means to rein in rogue employees. But we are unwilling to contravene Congress’s intent by transforming a statute meant to target hackers into a vehicle for imputing liability to workers who access computers or information in bad faith, or who disregard a use policy.”

The Fourth Circuit recognized that the employer still had state law claims (i.e., conversion, tortious interference with contractual relations, conspiracy, trade secret violations, breach of fiduciary duty, contract). However, as the case of 21st Century Systems, Inc. v. Perot Systems Government Services, Inc., shows, employers must be ready to prove their damages. Perot’s former employees had copied thousands of the employer’s computer files to an external hard drive, taking millions of dollars of accounts with them to establish a competing business. The employer was unable to sufficiently prove its damages under state law, and lost a $3 million jury award on appeal to the Supreme Court of Virginia by the employees.

Although Congress has passed several laws regarding electronic data protection, the laws stop short of providing employers with clear claims for damages against employee hackers.

For example, the Stored Communications Act 18 U.S.C. §§ 2701–2712 permits employers who are providers of electronic services (i.e. email) to access employee’s stored e-mails, but prohibits access to emails on servers hosted by third parties, such as an employee’s personal Web-based email account, or text messages stored on third party sites, even though the employer paid for the phone service.

Similarly, the Electronic Communication Privacy Act (“ECPA”), 18 U.S.C. §§ 2510–2522 protects electronic communications from unauthorized interception. But this protection applies only during transmission and ends once the message arrives.

As these recent cases and statutes show, the employer often has a difficult path to prove recovery of damages for employee data theft. As a result, employers should check their policies to be sure they clearly define not only employee limits of computer access, but also limits on usage of electronic data. Employers should also have employees authorize the employer to have access to their work computers and digital information not only on the employer’s system, but also on third party systems (i.e., the “Cloud” and third party communications servers).

If you have a question regarding your company’s computer access and usage policies, the Virginia employment law attorneys at Sands Anderson would be happy to assist.

Related articles

• You Cannot Use the CFAA to Rein in Rogue Employees (nclawlife.com)
• 4th Circuit Deepens Division Over Scope of Computer Fraud & Abuse Act (circuitsplits.com)
• Fourth Circuit Refuses to Apply CFAA to Employee Data Breach (blogs.findlaw.com)

The EEOC is the Equal Employment Opportunity Commission, and it is tasked with investigating employee charges of discrimination. When reviewing the EEOC’s request for information  (and more here) to conduct an investigation, the Fourth Circuit Court of Appeals recently noted that it will “defer to an agency’s own appraisal of what is relevant so long as it is not obviously wrong.” So, although the court will not allow the EEOC to discover everything, the Court has held that whether the material requested is relevant, the relevancy requirement is “not especially constraining.”

The recent case at issue is EEOC v. Randstad, decided July 18, 2012, by the Fourth Circuit Court of Appeals. The employer, Randstad, had objected to the scope of the EEOC’s discovery request, and won the first round of arguments that the request was too broad. The appeals court reversed, allowing the broad discovery request.

Employers often object to complying with the scope of materials requested by the EEOC during an investigation. The first notice may simply be a “request” for documents. If cooperation does not follow, the EEOC has the right to issue what is called an administrative subpoena for the information. As this case highlights, successfully objecting to the scope of the EEOC’s subpoena is difficult.

The EEOC is most likely to seek broad discovery when the employee filing discrimination charges (known as the charging party) claims the act of discrimination is related to the employer’s specific broad based policies or practices. For example, a company may have a rigid policy of not hiring anyone who has a felony conviction or a no fault attendance policy. The EEOC is concerned these policies may result in systemic, discriminatory hiring results, and will be looking for information to ferret out these policies and the resulting hiring practices,

This recent legal opinion serves as a reminder to employers of key issues to consider when facing an EEOC charge.

• The EEOC’s reach is broad, broader than the employee’s is during the discovery process for litigation. Employers should remember that the charging party may request a copy of their charge file from the EEOC within 90 days after receiving his or her Right to Sue Notice, or during subsequent litigation. If the EEOC requested a broad array of information, that information will be obtainable by the employee subject to only a few limitations. (Remember that employers, too, may use the Freedom of Information Act to similarly request the charging party’s file.)
• The EEOC does not have to release to charging party information that is deemed to qualify as confidential commercial information. Therefore, the employer should be sure to clearly identify all such qualifying information as trade secrets or confidential commercial information before releasing it to the EEOC.
• Also disclosed to the charging party is the employer’s position statement. This statement can then serve as possible evidence on behalf of the charging party. Therefore, the employer should consider the position statement carefully to balance the need between presenting its case to the EEOC and the possibility that the position statement may later be used against the employer during subsequent litigation.

If you should have questions about how to respond to an EEOC request for information, talk with a Virginia employment lawyer. Any one on our team at Sands Anderson PC would be glad to speak with you.

Penn State hit with unprecedented penalties(Photo credit: marsmet551)

NCAA President Mark Emmert stated “the culture, actions, inactions, that allowed [the children] to be victimized will not be tolerated in collegiate athletics. . . We’ve had enough.”

Neither the criminal convictions of Assistant Coach Jerry Sandusky nor the NCAA’s sanctions end the saga. A jury found that for a period of 11 years, Sandusky sexually abused young boys on and off the Penn State campus. The Second Mile, a non-profit he founded, where he volunteered his time and recently worked, was a source of potential victims. The victims, known and previously unknown, will now come forward with claims seeking monetary damages for the harm that was caused to them at such an early age.

Beyond Penn State, employers, schools, non-profits and public organizations must learn about the dangers and risks posed by poorly implemented supervision of its employees and its duties to protect children.

Phyllis Katz and Terrence Graves of Sands Anderson PC will present a webinar on August 15, 2012 from 12:30 – 3 p.m. which will cover the potential liability issues that lie ahead for both Penn State and The Second Mile. In addition, the webinar will cover defenses that may be asserted to such claims, recommended “good practices,” and tips on the hiring and supervision of employees and volunteers.

Phyllis is an employment and non-profit organizations attorney and Terrence is an experienced trial attorney with a practice in general liability issues. Both have lectured extensively on liability issues that schools and non-profit organizations encounter. They will discuss the points where liability may arise and recommend strategies for protecting your organization from claims such as are likely to arise from the lack of a functioning risk management program.

There is no cost to sign up for the Webinar and you can do so at
http://www.sandsanderson.com/news-events/event/penn-state-lessons-webinar-2012.html

You may also be interested in the employer’s duties to report child porn found in the workplace in a prior blog posted by Cullen Seltzer.

Related articles

• Penn State Sanctions: What Experts Are Saying About Monday’s NCAA Ruling (bleacherreport.com)
• NCAA To Punish Penn St. (sportsillustrated.cnn.com)

What may shake loose, however, is a defamation claim, or even criminal liability. Many employers take false security behind a Virginia statute that provides only limited protection. In the context of high employee turnover, the following rules are worth reviewing.

Defamation.

The Supreme Court of Virginia recently reminded employers of their potential liability for defamatory statements relating to an employee’s work or business. In Askew v. Collins, an employee of the City of Hampton drug treatment court sued the presiding judge (her “employer”) for defamation per se. The judge was found to have falsely stated to a newspaper that the employee had been “institutionalized,” which was “the only way you qualify for family leave.” Interestingly enough, the statement was not published in the paper, but merely stated to and discussed among the paper’s staff.

That case was based upon the legal theory of “per se” defamation. Even though the employee provided no evidence about the amount of damages she suffered from the alleged statement, the Supreme Court affirmed the jury’s award of $350,000 in compensatory damages to the employee. The high court stated “the reputational damage to Collins resulting from Askew’s statement was properly presumed . . . .” In other words, for defamation per se, the employee only has to prove that the employer knowingly made a false statement to another that adversely reflected on the employee’s abilities in his or her business, trade, or profession.

Thus the employee does not have to prove anything about his or her damages. Instead, the trier of fact can simply presume the employee’s compensatory damages for his or her injury to reputation, humiliation, and embarrassment.

In the context of providing a reference, employers may inherently exercise more caution. But the Supreme Court of Virginia reminded employers several years ago to extend that caution to current employees such as during performance evaluations.

In Hyland v. Raytheon, 277 Va. 40 (2009), the Virginia high court held the following statements from a performance review supported sending the affected employee’s defamation claim to the jury:

Cynthia lead [the employer] in the protest of the FAA’s evaluation selection process for the TSS contract and through a difficult procurement for the TSA, both of which demanded her constant attention. These visible losses created significant gaps in our strategic plans and in her business unit financial performance.

Cynthia and her team met their cash goals, but were significantly off plan on all other financial targets including Bookings by 25%, Sales by 11.5%, and profit by 24%.

These statements sound like statements of opinion, which would be protected, because of the words “significant” and “significantly.” But the court found differently.

Instead, the Court held that these statements were subject to empirical proof and were “not merely the view of the writer.” Thus, the employee was entitled to put the statement before a jury to decide whether or not the claim was true or false even though the statement was shared only with others within the confines of the company.

A key element of defamation is that the false and damaging statement must be “published,” that is, shared, with a third party. In both of these Virginia cases, even though the “sharing” element of the alleged defamatory content was more subtle, it was actionable.

Limited Statutory Protection for References

Some employers may think the law protects their statements made to prospective employers about a former employee’s work performance because of Va. Code § 8.01-46.1. This statute provides that employers who provide information to a prospective employer about a current or former employee’s professional conduct, reasons for leaving the job, and job performance (including written performance evaluations) are immune from civil liability as long as the employer does not act in bad faith. Although the law presumes employers act in good faith, this can be rebutted by clear and convincing evidence that the employer knowingly disclosed false information. If liable, the employer could also be required to pay punitive damages.

A defamation claim requires proof that the employer knowingly disclosed false information. Therefore, this statute does not totally defeat an employee’s ability to bring a defamation claim. At best, it requires a higher level of proof in the employee’s claim that the employer knowingly disclosed the false information. Plus, this “immunity” is only available to employers responding to requests by prospective employers.

Possible Criminal Liability.

When employers communicate with prospective employers, they should also be aware of potential criminal liability for preventing a former employee’s prospective employment opportunities. Section 40.1-27 of the Code of Virginia makes it a crime for an employer to willfully and maliciously prevent or attempt to prevent “by word or writing, directly or indirectly” a former employee from obtaining employment with another person. Statements made by former employers could, in extreme cases, be the basis of a criminal prosecution under this often overlooked statute.

If you should have questions about how to minimize your exposure to defamation claims, the Virginia employment lawyers at Sands Anderson PC are glad to talk with you.

Related articles

• What is Defamation Per Se? (tcattorney.typepad.com)
• Facebook Ignores Harassment Complaints (blogs.lawyers.com)

The Society of Human Resource Managers reports that the G-man, in the form of a Department of Labor (DOL) investigator, may show up unannounced at your door for a surprise inspection of your wage and hour records to make sure you have properly classified your employees.

A Virginia commission reports that the state legislature ought to make it illegal under state law for employers to misclassify independent contractors if their relationship is actually as employees.

Against these news items is the decision by the employee pharmaceutical representatives suing Novartis to settle now before the end of June because the law firm handling their class action case “was keenly aware that if the Supreme Court rules that pharmaceutical representatives are exempt outside salespersons, the plaintiffs in the Novartis case would not be able to recover any overtime pay, notwithstanding the Second Circuit‘s favorable ruling,” according to the firm’s website.

What the Novartis settlement keenly highlights, is that even if employers try to make the right classification determination, the law is often not clear, and it is easy, and not necessarily intentional, for a misclassification to occur.

With this increased scrutiny, employers should make conducting a yearly pay practices audit a priority. At least if the effort is made, damages may be limited. The news stories make it sound like the employer has a choice, to get classifications right, or wrong, and that simply is not the case. There is a lot of room for subjectivity under the wage and hour laws.

If you have done your audit, though, then you will be prepared, whether the visit is a surprise or a letter in the mail telling you the date of their arrival.

It goes without saying that we believe you ought to call your counsel, either in-house or private, when you receive a surprise visit or a letter. Be prepared and know the following answers about your business:

• Do you have a gross income of $500,000.00 or more for the past three (3) years?
• Do you travel out-of-state or receive supplies out-of-state, or make deliveries out-of-state?
• Are there any pending wage and hour lawsuits?
• How many employees?
• How many employees paid on a salary basis? Can you justify their exempt classification if they are not paid overtime?
• How many employees are paid on an hourly basis?
• Do you have a listing by name of all employees?
• What are the employees’ job descriptions and titles?
• What is the lowest paying position?
• What is the workweek – from what time to what time?
• How do you calculate overtime?
• Could there be any employees who qualify for the fluctuating workweek, if the overtime is not properly calculated?
• Are there any break times?
• Any union? If so, provide union contract.
• Do employees attend meetings outside of normal work hours?
• Do employees perform work at home?
• Any independent contractors?
• Anyone considered trainees? How about orientation – how paid?
• Anyone paid on commissions?
• Anyone paid on piece meal or per job?
• Is there donning or doffing of equipment or special clothing?
• Any bonuses?
• Are there any deductions other than normal withholdings?
• Any garnishments or firings because of garnishments?
• Do employees punch their own time? Does the employer automatically record the time?
• What was the last payroll period ending date?
• Do you employ anyone eighteen (18) or under?
• What are the paid holidays?
• Does the payroll show the paid holidays?
• Are there vacations and does the payroll show paid vacations?
• Do you have the correct posters?
• Are your I-9’s complete?
• Have there been any disciplinary actions based on overtime, and if so is it recorded?

If you can’t answer each and every one of these questions fully, you are not prepared, and possibly out of compliance.

If you need assistance with your wage and hour compliance, we encourage you to call a Virginia employment lawyer for counsel and advice.

Related articles

• Wage and Hour Litigation on the Rise (thehrstrategiesblog.wordpress.com)

Dave, who heads CRT-tanaka ‘s interactive division, had some really good comments and examples of best practices of providing information on a website. Many of his ideas are not difficult to implement.

If you have questions about website accessibility from the legal perspective, please contact a Virginia employment lawyer. If you are redesigning your site and want to be sure that people with disabilities have the chance to receive all the information you offer, call Christian or Dave at CRT.

President Barack Obama meets with Afghanistan President Hamid Karzai. (Official White House Photo by Pete Souza) (Photo credit: Wikipedia)

While this is terrific news for our military members and their families, as our military’s mission shifts and our troops return home, employers may find themselves navigating the complexities of the Uniform Services Employment and Reemployment Rights Act (“USERRA” or the “Act”), which requires employers to provide certain benefits and rights to employees who serve in our country’s military.

Under the Act, employers cannot deny initial employment, reemployment, retention, promotion or employment benefits based on an applicant’s or employee’s membership in the military, including the National Guard. In addition, as a result of an amendment to the Act contained in the VOW to Hire Heroes Act, employers cannot allow a work environment that is hostile to members of the military. Upon returning from deployment, a service member is entitled to be returned to the position he or she would have attained but for their service. And once back at work, employers cannot discharge a returning service member (other than for cause) for 90 days if the period of service was between 30 and 180 days and for one year if the period of service was more than 180 days long.

To qualify for benefits under USERRA, a returning service member must meet certain criteria:
• he or she must have given his or her employer advanced notice of their service;
• the total of all service related absences must not exceed five years;
• the employee must submit an application for reemployment within certain time frames; and
• the service member must have been honorably discharged.

The timeframe for applying for reemployment varies depending on the length of service:
• if the period of service was not more than 30 days, the employee must report not later than the next work period plus eight hours;
• if the period of service was between 31 and 180 days, the employee must apply within fourteen days of completing service; and
• if the period of service was longer than 180 days, the employee must apply within 90 days of the completion of service.

There are additional rules if an employee has a service-related injury. For example, if the service member is convalescing, the timeframes for reapplying are extended. Additionally, employers must help returning veterans with service-related disabilities become qualified for jobs they would have attained but for their service. This means the employer may need to provide additional training or reassign duties as a reasonable accommodation. If it is not possible to return a veteran with service-related disabilities to the job they would have attained but for their status, the employer must make reasonable efforts to employ the veteran in a position with equivalent seniority, status and pay. Employers can recruit and give hiring preference to veterans with service-related disabilities and can ask those veterans to self-identify for affirmative action plans.

Employers do not have to reemploy returning service members if the service member was not honorably discharged, it would create an undue hardship for the business, or the job previously held by the service member was temporary and there was no expectation of continued employment.

If you need any help welcoming our heroes home, the Virginia employment lawyers at Sands Anderson PC would be glad to answer your questions.

Now, you can Tie A Yellow Ribbon Round The Old Oak Tree, like the song says. What else can your business do to be prepared for the service members who will be looking for work after the war winds down?

Related articles

• Heads Up Employers: ‘Tis The Era For USERRA! (laborandemploymentlawupdate.com)
• USERRA Update (gunnerscorner.wordpress.com)

We have discussed some concerns about background checks before, here and here. While recognizing that criminal background checks are not prohibited by Title VII of the Civil Rights Act, by a four to one vote, the EEOC set forth its position very clearly. Employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories (i.e. race or national origin discrimination) or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision.

Employers should examine their background screening policies based on this recent guidance from the EEOC. Clearly, the EEOC has moved in the direction of urging employers to conduct individualized assessments when utilizing criminal background information. The EEOC would like employers to only request information that is job related. The real rub is the practical difficulty and burden that individualized assessments pose. Currently, most employers have a question on their application that inquires if applicants have ever been convicted of a crime or in some cases ever been arrested. Alternatively, employers may simply request an applicant to provide an authorization to obtain a complete criminal history from an appropriate database. If employers do not particularize such inquiries, or at a minimum scrutinize the particulars of the negative information received on a case-by-case basis, then they may find themselves with too much information and this can be dangerous.

Industry advocates for employers are also raising interesting and challenging questions about the recent guidance. One lobbying group was pleased that the EEOC guidance was an improvement over earlier versions but still concerned that the guidelines recommend banning employers from asking the standard question on applications about prior criminal convictions or arrests.

Commentators rightfully have wondered about the risk of having too little information and drawing a complaint alleging negligence in hiring. Another industry advocate has raised legitimate questions about the interaction between the guidance and certain state laws that may be in conflict.

In the end, the essence of good practice comes down to employers making sure that they are consistently applying their decisions about applicants who have a criminal background history and that these decisions do not have a disparate impact on those protected by Title VII of the Civil Rights Act. If decisions are being made on arrests alone, the focus must be on the conduct that led to the arrest when such conduct makes an applicant unfit for a position. Each case is individual and must be assessed as such, taking state and federal law into consideration, and the need to make consistent decisions that are able to be justified by business necessity.

Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of our Virginia employment attorneys if you have any questions about the recent EEOC ruling or other aspects of your hiring practices.

Related articles

• EEOC revising background check rules (news4jax.com)
• New rules set on background checks for job seekers (bottomline.msnbc.msn.com)
• EEOC Issues Enforcement Guidance on Using Arrest/Conviction Records (lawprofessors.typepad.com)