The Jones case occurred  in the criminal law context, and does not apply directly to the private employer/employee context.  Lawyers will, however, be reading the tea leaves for clues regarding how the Supreme Court might decide a private employer/employee tracking issue.  Public employers, such as schools and local government agencies, are bound by the 4^th Amendment constitutional parameters against unlawful searches and seizures in the employment setting.

Private employers already must heed federal and state laws directed to specific monitoring activities.  Federal law governs monitoring of certain aspects of email activity (such as through the Electronic Communications Privacy Act and  Stored Communications Act ).  States are increasingly passing laws restricting employer monitoring of  employee location, visual surveillance, computer/internet monitoring, telephone monitoring and even microchip implantation.

For all of these monitoring situations a common thread is making sure the employer tells the employee up front they are subject to monitoring.

With GPS devices, as with all employee monitoring, (absent a state specific law), the best practice is to have a policy, clearly communicate it to employees, have the employee sign that they are aware of the policy, and administer it evenly.

If you have further questions, contact an employment law attorney.

Related articles

• Sonia Sotomayor’s Heartening Defense of Privacy (reason.com)
• GPS tracking up in private sector (mercurynews.com)
• How Much Privacy Do You Expect? The Death of Privacy In America (jonathanturley.org)
• If You Want Privacy at Work, Don’t Use Employer’s Technology (nclawlife.com)
• Judge: Privacy on Social Networking Sites is “Wishful Thinking” (nclawlife.com)

Karen Elliott contributed to this article.

“English-only” refers to policies that restrict employee communication to English in the workplace. The Equal Employment Commission (“EEOC”) frowns upon the use of these policies given the great potential for discrimination against bilingual and non-English speaking employees. Policies requiring employees to speak only English in the workplace at all times, including breaks and lunch, will rarely be justified. The EEOC even presumes that such policies violate Title VII and should be closely scrutinized. Such policies tend to create an “atmosphere of inferiority, isolation, and intimidation based on national origin which could result in a discriminatory working environment.”

But what about the employer considering an English-only policy in limited circumstances? Despite the EEOC’s express disfavor with these rules, such policies may be important to the workplace and can be adopted as long as

1. the policy is justified by a business necessity,
2. the employer gives proper notice to employees of the policy, and
3. the policy is equally applied.

Notice must include an explanation of the workday circumstances requiring English-only and the consequences of violating the policy. Most employers accomplish this putting the policy in writing (often in employee handbooks) and by asking employees to acknowledge their receipt of the policy in writing.

The employer contemplating this policy must have a valid “business necessity” that can withstand close scrutiny. A business necessity promotes the safe or efficient operation of the employer’s business. This almost always includes emergency situations that require a common language to promote safety. This could also include situations involving communications with customers, coworkers, or supervisors who speak only English to promote efficiency. The federal judicial appellate court governing Virginia (the Fourth Circuit), has even permitted an English-only policy where it was necessary to promote employee morale after English speaking employees complained of the rudeness of coworkers who refused to speak English in their presence. Long v. First Union Corp., No. 95-1986 1996 U.S. App. LEXIS 12431 (4th Cir. 1996).

However, other federal appellate courts have held that English-only policies violate one’s right to speak in the language of one’s choice as a First Amendment right to freedom of expression. This split among the federal appellate courts will only be resolved if Supreme Court of the United States takes a case where this point of law is at issue.

Thus, unless thoughtfully considered, English-only policies can expose employers to a discrimination law suit.

If you should have questions about developing an English-only policy, the Virginia employment lawyers at Sands Anderson PC are glad to talk with you.

Related articles

• EEOC Receives a Record Number of Charges of Discrimination in Fiscal Year 2011 (laborandemploymentlawupdate.com)

As we discuss in our Talking Points Legal Tip video, businesses need to be aware that the Equal Employment Opportunity Commission continues to focus on employment screening policies, including criminal background checks, credit checks and social media checks, in an effort to eradicate discrimination in the workplace. In the Pepsi case, the EEOC determined that Pepsi’s broad policy excluded more than 300 black applicants because it excluded individuals convicted of minor offenses.

The concern is that the use of criminal background checks could have a disproportionate impact on minorities and contribute to discrimination. Any employer’s blanket prohibition against hiring someone with a criminal conviction will bring extra scrutiny. Instead, employers should evaluate prospective employees on a case by case basis, weighing the nature and gravity of the criminal offense and the amount of time since the conviction against the job’s specific duties and responsibilities.

The EEOC considers arrest records to be particularly unreliable indicators of guilt and discourages their use in the hiring process. According to the EEOC, because individuals are presumed innocent until proven guilty and because state criminal record repositories do not always report the final disposition of arrests, an arrest record is not a useful tool . If an employer decides it needs to ask about arrests and charges, the EEOC recommends limiting the inquiry to arrests and charges for offenses that are related to the position at issue and that the applicant be given an opportunity to dispute the validity of any record. Employers also need to remember that if a third party conducts the background check, the process is governed by the Fair Credit Reporting Act, and the employer must have specific disclosure forms signed by employees. Critically, these disclosure forms must be in a document separate from any other information or notice.

The EEOC also scrutinizes the use of traditional credit reports that evaluate an individual’s financial situation. In light of the tough economy the last few years, the EEOC also has expressed concern that using credit reports as a screening tool could adversely affect protected classes. Credit checks provide useful information when employers are hiring for positions that involve access to or control over financial accounts, cash or property. But, there are limitations on how an employer may use this information. For example, an employer cannot refuse to hire an applicant because he or she filed bankruptcy. Nor can an employer discriminate on the basis of medical or health information revealed in a credit report.

Before an employer takes any adverse employment action based on a credit report (either the traditional financial report or a background check performed by a third party), the employer must notify the applicant in writing and supply a copy of the report and a summary of consumer rights under the Fair Credit Reporting Act to contest inaccurate information. Several states have enacted laws prohibiting the use of credit reports in the hiring process.

If you are using social media searches in the hiring process, be aware that you increase the risk of a discrimination claim. Information such as a person’s race, sex and age may be readily apparent on social media sites such as Facebook and LinkedIn. But that information cannot be considered in the hiring process. So, what is an employer to do? To protect yourself from a discrimination claim, consider establishing a policy limiting who conducts social media searches for job applicants, and separate them from the interview process. Employers also should save or record all social media searches for the time period provided under applicable recordkeeping statutes or regulations.

If you need assistance making your way through this minefield, the Virginia employment lawyers at Sands Anderson PC would be pleased to assist.

Related articles

• Pepsi to Pay $3.13 Million for Hiring Discrimination Against Black Workers (alternet.org)
• Pepsi Beverages pays $3.1M in racial bias case (thegrio.com)

So what does any of this have to do with employment law? Well, about 20 years ago a Federal Judge injected the Cat’s Paw theory into employment discrimination law (Shager v. Upjohn and Adgrow Seed, 913 F.2d 398).

The United States Supreme Court brought that concept forward again in a 2011 decision (Staub v. Proctor Hosp., 131 S. Ct. 1186; 179 L. Ed. 2d 144), now known as the Cat’s Paw decision. The Court found that an employer could be held liable for discriminatory conduct when an unbiased HR director fires an employee for seemingly legitimate reasons if a manager motivated by discrimination set the termination process in motion. The Court concluded that even though the HR director conducted an independent investigation, if the termination takes into account the biased supervisor’s report, then the termination is tainted by the underlying discrimination.

The lesson in all of this for HR personnel who are instructed to carry out terminations is to fully investigate the reasons and motives behind management’s direction to fire employees and be sure that the decision is fair and non-discriminatory, and in particular, not based on a biased report. As one commentator succinctly put it, HR directors should not let management monkey around with employment decisions.

If you have doubts about how to handle such situations, we encourage you to contact legal counsel to assist in making the right decision. Any of the Virginia employment attorneys at Sands Anderson PC would be glad to help.

Related articles

• Part 1: A Cat’s Paw View: Staub v. Proctor Hospital – A Case Study for Effective Compliance Investigations (globalcompliance.com)
• Part 2: A Cat’s Paw View: Staub v. Proctor Hospital – Tips for Conducting a Full and Fair Investigation (globalcompliance.com)
• Part 3: A Cat’s Paw View: Staub v. Proctor Hospital – Benefits of Using a Trained Investigator for Compliance Allegations (globalcompliance.com)

The new rule from the Department of Transportation prohibits commercial motor vehicle (CMV) drivers from holding, dialing, or reaching for a hand-held mobile phone while driving, except for emergency purposes. This rule applies to buses and trucks on interstate routes.

Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:

1. Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
2. Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or
3. Is designed to transport 16 or more passengers, including the driver; or
4. Is of any size and is used in the transportation of hazardous materials as defined in the law. http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=383.5

Hands-free use of cellular phones is allowed. This new regulation does not affect Citizen Band Radio, GPS or fleet management system use.

Drivers can be fined $2,750 per violation and carriers may be fined $11,000.

It is recommended that employers institute new employee guidelines and training in order to be in compliance.

If you should need any assistance with developing a policy, the employment law lawyers at Sands Anderson PC would be pleased to assist.

Related articles

• Ban on Cell-Phone Use, Texting While Driving Sought by NTSB – San Francisco Chronicle (sfgate.com)

The case also sends another strong message to all supervisors and HR Managers – deal with performance issues when they arise – do not wait until a more convenient time or to a time when there are more facts to support the performance conclusions that the supervisor has drawn (the “do not be petty” type of strategy). 

Patricia Weth had been employed for six years prior to her diagnosis of cancer. With the diagnosis and the need for immediate surgery, she was given Family and Medical Leave. When she returned to work, months later, she was told that she needed to begin looking for another job immediately and that she was being placed on leave with pay until she found another job. When she did not find other employment, she was terminated. O’Leary, the Arlington County Treasurer and her employer, terminated Weth for poor performance and other job related deficiencies all arising before she requested FMLA leave. Weth claimed that O’Leary interfered with her FMLA reinstatement rights as well as retaliated against her for taking FMLA leave. The court concluded that there were sufficient facts to take the issue of interference with FMLA rights to trial.

There was little in the court record, or personnel file, to indicate that there were performance issues prior to FMLA leave. The court stated “the timeline in this case is highly suspicious” and sent the case to trial. This is just another example, of an employer harming its case by waiting too long to address performance issues of significance.

O’Leary argued that a FMLA suit could not be brought against him in his individual capacity for he was a public official. The court read the language in 29 U.S.C. 2611(4)(A) and found its coverage to be very explicit;  an “employer” includes “any person who acts, directly or indirectly in the interests of an employer to any of the employees of such employer.”   Although the courts are divided as whether public employee supervisors could be sued in their individual capacity, the court sided with the majority of the courts and held public employee supervisors, like any other supervisor in the private sector, could be personally liable for interfering with an employee’s FMLA rights.

            If you have any questions about the FMLA or other employment practices questions, the employment attorneys at Sands Anderson are available for counsel and assistance.

At first blush, the case appears to be nothing more than another decision in a long line of recent decisions in which the Court rules in favor of the employee against the employer by finding the non-compete provision in an employment agreement over broad and therefore unenforceable. However, this decision commands attention because in it the Court considered the very same provision for the very same company that it considered in another non-compete case in 1989. In 1989, the Court held that provision enforceable. In last week’s decision, the court found the same provision unenforceable.

So what was different? Well, obviously the particular employee was, and this made a difference with the Court’s assessment of the duties and functions this particular employee had with the employer. The Court consistently applies the same basic test of enforceability for non-competes: Is it “narrowly drawn to protect the employer’s legitimate business interests, not unduly burdensome on the employee’s ability to earn a living, and not against public policy?” The court evaluates these limitations based on geographic scope, time duration and function.

In the most recent Home Paramount case, the Court traces its judicial precedent in looking at these agreements from a functionality viewpoint.

By reviewing this history, the Court makes it clear that it will demand that the functional limitation of these agreements be specifically tailored to the business situation at hand. They must not exceed what is necessary to protect the employer’s legitimate business interests. Businesses that desire employees to sign restrictive covenants must give serious consideration to the breadth of the language used and whether such language is narrowly drawn. Drafters of such provisions who use the broadest language possible and cut and paste such language from other agreements do so at their peril.

Phrases such as “directly or indirectly,” or “manage, operate, control, be employed by, participate in, or connected in any manner with…” are frequently seen in describing the functional limitations imposed on the employee. The Court’s recent decision signals a risk in using these words. It also makes it clear that limitations of duration, geographic scope, and function must be considered together and not separately in assessing whether to enforce the restrictive covenant.

The Virginia employment attorneys at Sands Anderson are available to counsel and assist with the drafting of these restrictive agreements and to render advice concerning their enforcement.

Related articles

• Virginia Supreme Court on Non-Competes (lawprofessors.typepad.com)

This random comment fell right in line with the just reported findings by Mercer’s October 2011, What’s Working survey.     The survey finds that employees leave for a host of nonfinancial reasons as well, with a key factor being “how you are treated….”

When I’m leading training sessions for human resources professionals, I remind participants that in spite of the many laws they must know, if they will remember but one rule, they will usually get the law right, quoting Maya Angelou: “People will forget what you said, People will forget what you did, but people will never forget how you made them feel.”  When workers believe that they have not been treated fairly they seek to strike back.  Sometimes they vote quietly with their feet because of how they feel about their “work, co-workers, bosses and the general work environment,” according to Colleen O’Neill at Mercer.

Perhaps fueled by the Occupy Wall Street movement, it is clear that more terminated employees are not voting so quietly. The EEOC’s charge statistics certainly show a steady increase.    And, although the year-to-date numbers are not posted, it is clear from speaking with fellow defense oriented employment lawyers, charges are up across the board. To paraphrase the famous line from the movie Network, workers are “Mad as H_ _ _ and Not Going to Take it Anymore.”

The tide has clearly turned since the end of the official recession.  Making sure that employees understand their workplace situation is key to your company’s economic health. Virginia may be an “at-will” employment state, but if employees don’t feel that they have been treated fairly, your company may become part of the EEOC’s new statistics.

If you need assistance with workplace decisions, The Virginia Workplace Lawyers at Sands Anderson would be pleased to assist you.

            As Fox Searchlight Productions learned earlier this month, as happy as the recent graduates were when working with Natalie Portman on the movie Black Swan, as soon as the movie wrapped, the students realized that they may have been wronged by not having been paid a wage.  Two of the interns brought a class action lawsuit against the production company for minimum wage and overtime compensation. 

            The interns claimed that they were employees not interns.  Where did the production company go wrong (would not any sensible young person crave to be on the set of a major movie)? It was the activities that were given to the graduates while on the set.  One of the graduates worked in accounting, reviewing files, running errands, printing, delivering paperwork and mailing materials.  The other graduate performed office assistant type duties such as making copies, preparing expense reports, preparing coffee, taking lunch orders, and taking out the trash. 

            The problem with the arrangement is that the duties assigned were clearly given not for a training or educational purpose.  The beneficiary of the work performed was the production company not the workers. 

            The U.S. Department of Labor has developed a list of criteria that must be met for a work experience to be unpaid: DOL Wage & Hour Division Fact Sheet No. 71 (April 21, 2010.)   

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.      

Although each factor is important, the experience must be primarily for training purposes and the beneficiary of the experience must be the intern.  The Black Swan lawsuit brings attention to the issue and every employer should be aware of the potential liability in having interns.  Employees may also file a complaint with the U.S. Department of Labor instead of filing a lawsuit. 

            Before you agree to provide an internship opportunity, check with an experienced employment attorney.  The Virginia Workplace Lawyers at Sands Anderson would be pleased to assist you.

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The NLRB’s rule was initially scheduled to take effect on November 14, 2011 but has now been postponed to January 31, 2012. The NLRB’s decision to postpone the rule cites uncertainty about which businesses are subject to the rule. However the rule also remains subject to court challenges and possible Congressional action to overturn it. While the future implementation of the rule remains in some doubt, employers would be wise to understand and address the requirements of the rule and plan for it to take effect.

The posting requirement applies to all private sector employers (including labor unions) subject to the National Labor Relations Act. It includes employers regardless of the number of employees, but excludes agriculture, railroad and airline employers. In addition to the physical posting, the final rule requires every covered employer to post the notice on an Internet or Intranet site if personnel rules and policies are customarily posted there.

The NLRB has posted frequently asked questions (FAQs) about the rule.

While some HR consultants see the new posting rule as a tempest in a teapot, others share concerns that the posters will prompt questions and unwanted discussions by employees and could lead to further repercussions. Failure to post the notices as required can be considered an unfair labor practice in itself and anyone, including employees and possibly union organizers, can file charges with the NLRB against employers within six (6) months of alleged violations of the notice requirement. Whether or not the poster is successful in bringing the union conversation into the workplace, many commentators see a need for management to strategically consider how management should talk with employees about union issues.

The rollout of the new NLRB rule should not be used as an opportunity to attack an employee’s decision to consider a union or even to bash unions or criticize the wisdom of the poster. It is, however, an opportunity for management to enlighten employees on management’s position regarding unions. Clearly, if you are not familiar with your employees’ rights under the National Labor Relations Act in the non-union, or union, workplace, now is the time to think about those issues before the January 31 deadline requires posting. This is a potential mine field for all employers.

If you need assistance with these issues, Sands Anderson’s Virginia employment attorneys  are available to help you work through your strategies.

The 9/11 attacks destroyed tens of thousands of vital records, irreplaceable documents and art.  The businesses affected lost employee records, customer lists and many, many more documents vital to business operations. As many employers on the East Coast are undoubtedly discovering, it doesn’t take a disaster as devastating as 9/11 to cause an interruption in business.  Earthquakes, hurricanes, floods and fires are just a small sample of the very real disasters that can strike your business.  Are you prepared to pick up the pieces? 

Creating a BCP so that you can get your business up and running as soon as possible after a disaster is vital to your company’s long-term survival.  A BCP should include lists of emergency contact information, both internal and external, and a detailed recovery plan and should be developed with employees from all business units and levels of your company.

Begin by assessing the potential risks to your business’ ability to deliver products or services to customers.  Arizona business may need to plan for the effects of an evacuation due to forest fires, but not for a hurricane.  Businesses in Richmond, Virginia, on the other hand, would be more likely to plan for flooding as a result of a hurricane, for an office fire or even for an earthquake.

After determining the risks that your business might face, consider how to mitigate the effects of those risks on business operations.  The objective is to compile a detailed step-by-step guide to getting your business running again.  You should:

• Identify the employees who are critical to the operations of your business, as well as a backup for each position in case key personnel are not available.  Your list should include every available means of contacting these individuals (e.g., business phone, home phone, cell phone, business and home email).
• Identify the critical products and services you provide to your customers and record the contact information for your most important customers so that you can stay in touch.
• Identify an alternative location from which to operate your business in the event your office is inaccessible. 
• Identify contingency equipment options.  If, for example, the equipment your company uses to operate is its computers, contingency equipment options might include identifying which of your employees can telecommute.
• Identify what protections you need to take to preserve confidential client information.  
• It is vital that your BCP includes a technology recovery plan.  You should regularly back up important IT data, such as customer lists, banking information, employee records and anything else that would be necessary to starting your business again.  Back up the information and arrange a secure off-site storage location.  Redundancy is the key. 

Once you have all the necessary information, put your plan in writing.  Create step-by-step instructions on what to do, who should do it, when it should be done and how.  Ensure that critical personnel have copies of the plan and keep a copy off-site, too.  Then, practice and maintain your plan.  Review your plan periodically and walk through the plan with an imaginary disaster in mind.  Then, make changes where needed.

There are a number of websites that offer additional suggestions on developing a BCP, including the Federal Emergency Management Agency (FEMA) and Inc. .  You can also contact your Virginia employment attorney for assistance in preparing a plan.

Employers, and IT companies who support business computer systems, are likely to find this sort of information in their possession or custody in the course of working on their own systems, or, if the company is in the IT industry, while working on customers’ computers.  Businesses and IT companies may also find this material in a specific search of an employee’s computer based upon a report of misconduct. 

Two major questions facing business are (1) when can you legally search an employee’s computer? and (2)  what do you do when you find child porn on the employee’s computer?

 Neither federal nor Virginia state law prohibits employers from searching an employee’s computer in the non-governmental context.  (Employees of the government are protected by the 4^th Amendment right against unlawful searches or seizures.  A different topic for another day.)   In general, best practices require that the employer have employee permission and recognition that the computer is the property of the employer’s and subject to search.  (For example, this would be included in the Handbook receipt acknowledgment document.)  The extent of the employer’s rights remains somewhat cloudy absent such permission.

When a business does find inappropriate material involving children, the law is very clear that the employer or IT consultant has a duty to report the child pornography to the cyber tip line at the National Center for Missing and Exploited Children.  

The federal law that mandates this duty to report specifically requires that “electronic communication service providers” report child pornography. (18 USC § 2258A. Reporting requirements of electronic communication service providers and remote computing service providers.)  An “electronic communications service” means “any service which provides to users the ability to send or receive wire or electronic communications.”  The term “electronic communication,” for purposes of the reporting requirement, means “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” 

All of which is to say that both the business/employer that provides the computer or phone system over which the data is communicated, as well as the IT company that helps the employer maintain those systems, are covered by this law.

A business or IT service company ignores child porn at its peril.  Failing to report the information to the National Center for Missing and Exploited Children violates the Section 2258A reporting requirements.    Deleting the material might make the company an accessory to the underlying crime of possessing the information in the first place.  Making copies of the material and then transmitting the copies, except at the direction of law enforcement officials or as required by section 2258A, also runs afoul of the laws proscribing possession of child pornography.  A first violation of Section 2258A carries a penalty of up to a $150,000 fine.  A second violation can be penalized by up to $300,000.

What if an IT company’s  client insisted on a confidentiality agreement to prevent the IT company from sharing information it finds on the client’s hard drives?  Does that agreement trump the disclosure obligation in Section 2258A?  Nothing in the statute itself creates such an exemption.  Generally, private parties cannot contract to consent to criminal activity, especially criminal activity that affects third parties who are not parties to the agreement. 

Section 2258A also requires electronic communications service providers to preserve the report they make to the National Center for Missing and Exploited Children, and to preserve and safely store the images they find that triggered the NCMEC report in the first place.  They may not share the fact of the report with others except for law enforcement purposes.  If the pornography the provider reports is commingled with other images, even inoffensive images, the provider must preserve those images as well.

The boundaries describing private individuals’ and companies’ obligations to monitor and report possible criminal behavior in the electronic era continue to expand.  Legislation currently pending in Congress would require internet service providers to log users’ IP addresses for 18 months so as to better identify which internet users connected to what internet sites and when.  That tool would aid law enforcement in proving a particular user accessed particular pornography.  Some privacy advocates have objected to the log requirement.  Some companies are concerned that they are being enlisted into increasingly broad law enforcement roles.

Protecting children from sexual exploitation remains a top law enforcement priority.  That effort will likely only grow with the broad proliferation of internet connected electronic devices.  The law can be expected to change to try and keep pace with the technology’s capacity.  An IT service provider who encounters child pornography should first act to secure and preserve the data, and second very quickly get competent advice regarding to whom it may, to whom it must, and to whom it must not, make an appropriate report. 

What do you think about this obligation as a business?  Will you find it difficult to comply? 

If you need any assistance with Virginia Workplace Law, the Virginia employment lawyers at Sands Anderson PC are available to assist.

While many are poking fun at the case and it is making headlines across the HR blogosphere, the case serves as a stark wake-up call for employers.

No longer, can you say to an employee, “If you don’t like the working conditions here, you may choose to leave.” If an employee has a workplace complaint that could be linked to a health condition, you must ask yourself as the employer, “Do I have a need to accommodate this request?” In the Nevada situation, the employee had debilitating claustrophobia. She claimed the employer refused her request to move her to a more open area.

Under the new ADA, practically every health condition of significant duration qualifies as a “disability.”  In fact, the new ADA requires employers not to dwell on the question of whether the condition is a disability or not.  The ADA requires employers to engage in an interactive process with the employee to determine whether or not a reasonable accommodation exists. If the employer engages in this process in good faith, the employer will protect themselves from punitive damages.   If the employer fails to engage in this process, the employee’s damages (and your risk of suit) increase considerably. (Punitive damages are awarded based upon the number of employees employed. The range is from a low of $50,000 (15-101 employees) to high of $300,000 (more than 500 employees).)

The lesson learned from the cubicle case is that when employees complain about workplace conditions, employers, must pay attention and determine whether or not the complaint about the condition or requirement is linked to a health issue for the employee. If it is, even if the complaint appears frivolous, employers must in good faith engage in the reasonable accommodation process. This is a huge mindset change for employers. But if you remember that under the new ADA “We are all disabled now,” and train your managers to report such complaints so that you can initiate the interactive process, you will go a long way toward avoiding becoming the most recent headline.

If you need assistance in learning about the new ADA and its requirements, or with training your managers, the employment lawyers at Sands Anderson are available to assist.

In Whiting, the Supreme Court determined that the Federal Immigration Reform and Control Act (“IRCA”) does not preempt (i.e. nullify) provisions of Arizona’s law imposing civil penalties on employers who hire unauthorized aliens and mandating certain employers to conduct employee background checks through E-Verify. The Court did rule that the IRCA does prohibit states from imposing “civil or criminal sanctions” on employers who hire unauthorized aliens. This is significant because current Virginia law makes it a class 1 misdemeanor under Section 40.1-11.1 for a business to hire unauthorized workers. Under the Supreme Court’s ruling, that provision is now not enforceable. (However, note that the Virginia statute also makes it a requirement for employer application forms to ask prospective employees if they are legally eligible for employment in the United States.)

The US Supreme Court did make it clear though that states may impose penalties through “licensing and similar laws.” Thus, it upheld as legal the Arizona provision that allows Arizona courts to suspend or revoke licenses necessary to do business in that state when employers intentionally or knowingly employ unauthorized aliens.
Of equal importance is the Court’s decision to uphold portions of Arizona law that mandated the use of E-Verify by employers. E-Verify is an online system that can confirm employment authorization for new hires through queries in databases maintained by the Department of Homeland Security and the Social Security Administration. Federal law makes E-Verify optional in most cases but a number of states, including Virginia, have now made it mandatory for certain employers and the trend seems to be to add to that list of employers.
Beginning December 1, 2012 under Virginia Code §40.1-11.2, all agencies of the Commonwealth of Virginia, must enroll in the E-Verify program and use the program for each newly hired employee who is to perform work within the Commonwealth. Additionally, beginning on December 1, 2013, any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the E-Verify program and those who fail to do so can be debarred from contracting with any agency of the Commonwealth for a period up to one year. Similarly, virtually all private employers with federal contracts must use E-Verify (there are some exceptions).

It should be noted that at least ten other states have passed similar legislation, including neighboring state, Tennessee. The Department of Homeland Security indicates that a large number of businesses are enrolling each week in the E-Verify program as more and more states mandate its use. It appears likely that the Virginia legislature will continue its effort to increase the number of private employers who may be required to participate in the E-Verify program. Employment lawyers at Sands Anderson are ready and willing to assist employers as they meet this requirement and begin use of the E-Verify program.

Don’t discount this news simply because it’s happening to print media, which for sure, has been struggling with the advent of web based news. Alongside the Times Dispatch news was news that Foot Levelers in Roanoke is laying off twenty for a restructuring. In speaking with my fellow employment lawyers, I know that we are all beginning to dust off the layoff/furlough policies that we had hopefully put away for awhile.

If your company is facing the prospect of a layoff or furlough, be sure to keep the following checklist in mind:

For Layoffs:

1. Does the WARN Act apply?  This should be your initial question. If you have 100 or more employees, you may need to comply with the Worker Adjustment and Retraining Notification Act.

2. How are employees selected? When selecting employees for layoff, the employer cannot discriminate against a protected class of employee. Obviously, employers may not use selection criteria that discriminate on the basis of age, race, ethnicity, gender, national origin, disability, or other protected classification. However, even if the criteria are non-discriminatory, you must analyze whether or not the result has a disparate impact on one or more protected class of employees. If it does, you must re-think your process.

3. Popular selection criteria include:

Seniority – i.e. last hired. But, if you’ve recently instituted aggressive affirmative action efforts, it may disproportionately affect minority employees and therefore be deemed discriminatory. If you are a government contractor, this will be an issue for your affirmative action plan compliance.

Job classification or pay grade, such as part-time, temporary and highly compensated. Selecting the highest paid employees for layoff may have a disproportionate impact on older employees. Be prepared to demonstrate that cost not age, motivated the use of salary.

Merit/performance. This can be dangerous because most employers do not consistently keep their files well-documented and it may be easier for an employee to claim retaliation, discrimination or even defamation. If you use this basis, make sure the evaluations are validated, unbiased, and well-documented and based upon provable facts or well-based opinions.

Knowledge, skills and abilities. For example, who will you need for the newly organized company to function? Again, you must be able to adequately document individual employee knowledge, skills and abilities.

Perform a “dry-run” analysis of how a layoff policy will affect different protected employee groups. If the dry run shows that an adverse impact occurs in a protected class (i.e. a disproportionate number are of a particular race, age, sex), then the employer should change the selection criteria or be able to justify the decision with concrete facts to show business necessity.

Other factors to consider:

• Who is in charge of making the layoff determinations? The person making the decisions should be different than the person selecting the layoff criteria.

• How will you notify employees?

• Consider other policies. (What does your Handbook say? Do you have enforceable non-competes?)

• Severance payments. Will you offer and if so how much? You will need a release of all claims.

If Initiating a Furlough Consider:

1. Make sure the exempt status is not affected.

2. Check the impact on applicable contracts (including non-competes) and collective bargaining agreements.

3. Consider the impact on benefits such as 401(k) contributions, H1-B visa prevailing wage requirements.

4. Determine whether vacation or PTO must or may be used pursuant to state law and whether employees may borrow from future vacation.

5. Provide advance notice in compliance with state law and in consideration of employees’ financial obligations.

6. Inform employees that no work is permitted during the furlough; this includes checking voicemail and email.

7. Centralize reporting of any emergency.

8. Make sure reductions do not have an adverse impact against a single group within a protected status.

What are you seeing or experiencing? Is the economy impacting your business?

If you need any assistance with restructuring of your business, the Virginia Workplace Lawyers at Sands Anderson would be pleased to assist you.

OSHA recently announced a new joint effort with the Departments of Labor and Transportation to reduce the incidents of accidents and near-accidents attributable to texting while driving. The Assistant Secretary of Labor in charge of OSHA, David Michaels, PhD, MPH, said, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.” In fact, according to research conducted by the Virginia Tech Transportation Institute, drivers who text are 23% more likely to have an accident or near-accident than the average driver.  Although the joint effort is new, OSHA is not proceeding under a new law or new regulation. It is simply applying existing regulations in a new way.

Asst. Sec. Michaels has a strong message for employers: OSHA will use its enforcement powers to hold employers responsible for cell phone-related accidents caused by their employees if OSHA determines that the employer’s policies – - or lack thereof – - contributed to the accident. OSHA will pursue employers who by policy or practice create situations in which employees have a strong incentive or are required to use their cell phones while driving if an accident and personal injury result. 

So, where does that leave you, the employer? It leaves you in need of a clear, unequivocal and enforced written cell phone use policy. At a minimum, your policy should:

1. Prohibit texting while driving on company business or in a company-owned vehicle;
2. Require the use of a hands-free device for phone calls while driving on company business or in a company-owned vehicle; and
3. Require that employees pull over to a safe place before making phone calls or texting if they do not have a hands-free device or need to make notes while talking.

In addition to keeping OSHA from calling on you, having a cell phone use policy may help you reduce lost productivity during the work day and may even help you avoid liability if one of your employees causes an accident while on company business. If you need any assistance crafting a cell phone use policy, please contact a Virginia Employment Attorney.

The media, including blogs, have largely focused on how the new regulations didn’t really change much, which is true. So from a media perspective, this “effective date” has largely gone unnoticed. This is an unfortunate message because this assumes that management has already been instituting the major changes demanded by the 2008 Amendments that are now “old” news. In my experience, businesses still do not understand those changes. Do you? If you can’t answer “yes” to the following questions, you still have some work to do:

1. Do you have a detailed job description noting the essential functions of each job?
2. Have you instructed and trained all of your managers to report to human resources when employees state they are not performing or underperforming due to a health situation?
3. Do you know that when you are given information by an employee that they are not performing due to a health-related reason that you are on notice that you must now engage in the interactive process to determine if a) they are disabled and b) if a reasonable accommodation is in order?
4. Did you know that the law now treats most significant health-related issues as a “disability.” In other words, employers are expected to work with their employees if they have significant health issues to determine if there is a way to keep them employed.
5. Did you know that if you engage in a good faith effort to reasonably accommodate an employee that the law forecloses the award of punitive damages?

If you need any assistance with turning your “no” into “yes,” please contact a Virginia Employment Attorney.

This is a HUGE change in policy and procedure, and is certainly the DOL’s first step in attempting to move away from the Supreme Court’s opinion in Overnight Transportation Co. v. Missel, 316 US 572 (1942).  Plaintiffs have been arguing for years that the  reliance on Missel to award only a  .5 premium to employees who have been improperly classified as exempt is unfair.  It is my understanding that the DOL will be interpreting any misclassification under this new standard.  So, if the employee received bonuses or premium payments, and they were improperly classified as exempt, the argument the DOL intends to use is that since the fluctuating workweek does not apply, Missel does not apply and therefore the payment premium amount is 1.5 instead of .5. 

In addition, last week, the DOL unveiled an software application (app) that employees may download to their phone to track hours worked. We believe this is an effort to get the first “blackberry” case going by the DOL (i.e. managers who call non-exempt employees at home to ask questions, or to email, the app will track the hours as compensable hours that should be compensated).

This is very important information, because the “heat” is really on to get those job classifications correctly analyzed.

If you have any questions, you should be contacting a Virginia employment lawyer.

Employers will once again have to worry about “getting it right” upon receipt of a no-match letter. And, unfortunately, once again, there are only questions, and no clear answers.

The government states it will send a letter when employee information on the W-2 Form is either incomplete or a reported name or Social Security number does not match with the government’s records. The letters will be sent on an employee by employee basis. (In the past the Social Security Administration sent the employer a letter with a listing of names that had a number mismatches.)  According to the administration, the new letters will be sent when the government is unable to reach the individual directly about the discrepancy.

The new process is replete with legal issues for the employer. The letter tells the employer to first compare the information listed on the government’s letter to the employer’s records. If the records match, the employer is directed to “ask” the employee to give the name and Social Security number exactly as it appears on the employee’s Social Security card. Then, the form notes “(While the employee must furnish the SSN to you, the employee is not required to show you the Social Security card. But, seeing the card will help ensure that all records are correct.”) If there is a problem between the government’s records and the social security information given/shown by the employee, then the employer is directed to tell the employee to contact any Social Security office.

The question for the employer now becomes, what do you do?

First, as you may recall, you are not allowed to ask employees for their social security card as part of the I-9 process.  Now, you are being requested to “ask” for the information, and the suggestion is strongly made that you look at the card. There are no good answers yet, but here are a few tips to consider if you get these letters:

1. Don’t rely on a copy of the card in your records if you did receive it for I-9 purposes.

2. If you are going to ask for the actual SSI card, you need to make sure you always ask for the card from each employee who is the subject of the no-match letter. Asking only employees of a particular race or culture would be discriminatory.

3. If you decide to always ask for the card, then either always make a copy of the card, or never make a copy of the card. Whatever you decide, be consistent.

4. If the card looks fake, you are probably now on notice that the employee is not lawfully working. If you have reason to believe the card is fake, hope that the employee doesn’t show up to work again. If the employee returns to work, you will need to determine what next steps you may legally take to determine their status.

5. If you determine that the Social Security card does not show the employee’s correct name or Social Security number, or there is some other error, you must direct the employee to any Social Security office.

Unfortunately, the letter is completely silent about how long the employee has to correct the problem, and what you are to do if the problem remains uncorrected. On the other hand, you are directed by the letter to start using the correct name or Social Security number if you determine either is incorrect. So, how do you get the correct information? Stay tuned…….

If you need assistance with issues arising from receipt of the no-match letters, the Virginia Employment lawyers at Sands Anderson will be pleased to hear from you.

We’d also like to know what you think. What problems do you anticipate these letters will present for you?

Imagine you are the owner of a business with about 50 employees.  Your product is well-known and there are limited suppliers in the United States.  Your best salesman generates about 50% of your company’s gross sales – or about $100 million a year.  He is on salary plus commission under his employment contract and is earning at least three times as much as any other employee. 

Now imagine that this super-star has a very messy personal life, and he’s well-known around town for partying and womanizing.  He’s been divorced three times (once after being discovered in bed with another woman by his first wife),  experienced a brutal custody battle, was accused of beating his second wife and now he’s missed a key sales meeting in New York.  Turns out he was found by hotel staff drunk and naked in a hotel room that’s been trashed.  He is hospitalized in New York (his mother rushed to be with him and says it is very serious).  Upon his release, he enters a three-week rehab program. 

He comes back to work.  At the local Arts Council fundraising dinner, where your VP of Marketing is getting an award and your company has a table, the employee  complains loudly about what a “stupid, stupid man” you are, how your company is exploiting his sales experience and contacts, he doesn’t get paid enough for all the crap he has to put up with — and your company would be nothing without him. 

Can you even fire someone for their outside conduct that reflects unfavorably on your company?  What are your potential legal liabilities?  Does it matter if the employee had an illegal drug problem? A booze problem? Would it matter if he were bi-polar or otherwise mentally ill? 

Would the answer be any different if the employee were Charlie Sheen? 
 
If we were the employment attorneys advising the company and its owner in this scenario, first we would look to the employment contract.  Is this employment-at-will where the employee can be fired at any time for any reason that is not discriminatory?  Are there notice provisions?  Or are there specific guidelines for termination that must be met before the employee can be fired?

We would make sure the personnel record is up to date and all performance-related conversations and observations are entered. We would look at how the company treated other employees in similar situations. 

In light of the very liberal definitions of disability under the Americans with Disabilities Act (ADA), we would have to consider whether the employee is in a protected class and whether the termination would be in violation of the ADA.  And if his “stupid, stupid boss” comment is made in front of co-workers, we would also consider whether this public comment is protected activity under the National Labor Relations Act. 

The stakes are high if you handle it wrong.  Charlie Sheen was in fact fired after his off-the-clock antics, and in fact sued the studio, the producer and the production company for $100 million.  The complaint alleges breach of contract, conspiracy, and breach of state and federal laws that protect ill employees. 

What do you do when your super-star employees lose their Sheen?