taking care of business 2012

Employer and Employee Rights and Responsibilities

*“Taking Care of Business"

*Instructors

*Susan Salen, Esq., Rees Broome PC

*Thomas Willis, PCAM, Vice President Zalco Realty, Inc., AAMC Association Bridge, LLC

*Boiling down a mountain of

employment law details1. Virginia Minimum Wage Act

2. Equal Pay Act

3. Occupational Safety & Health Act (or Administration)

4. Family Medical Leave Act

5. Major Discrimination Laws

6. Hiring Process: Applications, Interviews & Testing

7. Immigration Reform & Control Act of 1986 (IRCA)

8. Drug & Alcohol Testing

9. Monitoring Employee Communications

10.Noncompete Agreements

11.Whew!

*Boiling down a mountain of

employment law detailsOur methodology for today:

1. What (is this law/issue all about)?

2. Who (really has to care about it)?

3. Where (are the hot buttons & smoking guns)?

4. How (can I find even more information to further make my brain cramp with data)? Hint – We killed a lot of trees for you.

*Virginia Laws Affecting Wages

*Virginia Minimum Wage Act

The Act in a Nutshell

Often confused with Virginia Wage Payment Law, the Virginia Minimum Wage Act sets

minimum rate of pay that employees must be paid.


To Whom Does the Act Apply?

*“Employer” is any individual, partnership, association, corporation or any person acting directly or indirectly in the interest of an employer.

*Exclusions relevant here: any person whose employment is covered by the Fair Labor Standards Act, true volunteer work, caddies on golf courses, person paid for piece work.


Hot Buttons & Smoking Guns

*Minimum Wage is the rate not less than the federal minimum wage or training wage as prescribed by the Fair Labor Standards Act.

*Current minimum wage is $7.25 per hour.

*Penalties for violation of Minimum Wage Act is fine of not less than $10.00 fine nor more than $200.00.

*Note – violations of Virginia Minimum Wage Act do not create a private right of action for wrongful discharge.

*Minimum wage law does not govern payment of accrued vacation upon termination of employment.

*Virginia Wage Payment Act


*Act regulates payment of wages, time, medium, deductions, forfeitures & penalties for violations.



“Employer” is any individual, partnership, association, corporation or any person acting directly or indirectly

in the interest of an employer.

(YOU)



*Must establish regular pay periods and rates of pay at least every 2 weeks or 2x per month. (Except executive personnel paid on salary basis may be paid 1x per month).

*Lawful money by check, electronic funds into designated financial account, or by debit card (provided employees hired prior to January 1, 2010 must consent).

*No deductions or withholding (except taxes) without signed written authorization.

*Upon request must provide written statement of gross wages and amount and purpose of any deductions.

*Enforcement through Department of Labor and Industry.

*Strict requirements for assignment of wages.

*Term “wages” does not include fringe benefits.

*There is no private cause of action for enforcement, but a violation of the act may be grounds for wrongful termination claim.

*Equal Pay Act

*Equal Pay Act


*Amendment to the Fair Labor Standards Act.

*Prohibits discrimination on basis of sex by paying employees of one sex less than employees of opposite sex for work performed under similar working conditions on jobs that require equal skill, effort and responsibility.

*Enforcement of Equal Pay Act delegated to EEOC.

*Equal Pay Act


*Virtually all employers are covered in 1of 2 ways:

1. Enterprise Coverage

*Employment relationship

*Two or more employees

*Engaged in interstate commerce

*Annual gross volume of sales or business done of at least $500,000.

2. Individual Coverage

*Employment relationship; and

*Engaged in

* interstate commerce, or

*Work in activities closely related and directly essential to production of goods in commerce.

*Equal Pay Act


* Difficult to prove

* Very rarely used

* Paycheck Fairness Act – on the horizon

* Proposed legislation that will amend EPA as follows:

1.Reduce employer’s defenses under EPA;

2. Increase damages, including punitive damages, that may be awarded for EPA claims;

3.Expand the list of protected activities under the FLSA anti-retaliation provisions.

*Equal Pay Act

Gory Details

* What an employee must prove:

1.Different wages paid to employees of the opposite sex;

2.The employees perform substantially equal work on jobs requiring equal skill, effort and responsibility;

3.The jobs are performed under similar working conditions.

*Equal Pay Act

Even More Gory Details

*Employer’s response

*Seniority system

*Merit system

*System which measures earnings by quantity or quality of production

*Any factor other than sex

*Occupational Safety & Health Act (or

Administration)OSHA

*OSHA


Regulates safety of workplaces through a mixture of cooperation and criminal

enforcement

*OSHA


*YOU*Recordkeeping requirements to employers with

10 or more employees

*OSHA


* When to cooperate

* When you must keep a record of an injury

* Should you ask for an inspection

*Family Medical Leave Act

*FMLA


*Covered Employers must provide Eligible Employees with job-protected leave for birth of child, placement of a child for adoption or foster care, serious health condition of employee, employee’s spouse, parent or child and for exigencies for family members of military personnel.

*FMLA


*Organizations with 50 or more employees within a 75-mile radius (joint employment tests may result in employer with less than 50 employees being deemed a “Covered Employer”)

*Covered employee worked at least 12 months & 1,250 hours

*Covered Military Member –an employee’s spouse, son, daughter or parent called to active duty status.

*Covered Servicemember – Current member of Armed Forces (includes National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy for serious illness or injury incurred in line of active duty.

*FMLA


*Military leave.

*When do you have to designate leave?

*What can you ask employee to provide?

*What gets you into trouble?

*Is she a key employee?

*Scary case law….

*FMLA

The Process

*Am I a covered employer?

*Is she a covered employee?

*Is the purpose of leave FMLA qualifying event?

*Must I grant FMLA leave?

*Should I request a certification form?

*How do I administer leave (intermittent?)?

*Major Discrimination Laws -

Title VII, Americans With Disabilities Act & Age Discrimination in

Employment Act

*Major Discrimination Laws

The Laws in a Nutshell

*Title VII: Prohibits discrimination in employment decisions on the basis of race, color, religion, sex and national origin.

*ADA: Prohibits discrimination against an individual on the basis of disability in regard to job application procedures, the hiring, advancement or discharge of employees, terms & conditions of employment.

*Age Discrimination in Employment Act: Prohibits an employer from failing or refusing to hire or discriminating against an employee because of an individual’s age.


To Whom Do the Laws Apply?

*15 employees for Title VII & ADA

*20 employees for ADEA



* ADAAA of 2008 violations targeted by EEOC for enforcement

* The rules have changed – the laws protect more people

* ADEA of import in reductions in force

* Title VII - Gender confusion is now protected

*Hiring Process: Applications, Interviews

& Testing

*The Hiring Process

The Issue in a Nutshell

*Take great care in preparing for the process of hiring. This is where plenty of Susan’s clients get stuck writing $15,000 checks.

*The Hiring Process

To Whom Does This Apply?

*Everyone involved in the hiring process – INCLUDING BOARD MEMBERS if they participate.

*The Hiring Process


* Application Don’ts – Don’t ask about disabilities, arrests or criminal convictions, marital status, children, ethic group or religious affiliations

* Interviews Don’ts – Don’t ask about the stuff above, no selective performance testing, no pre-offer medical exams

*Immigration Reform & Control Act of 1986

(IRCA)

* IRCA


*Mandates that US Employers verify the employment eligibility of all newly hired employees

*It is illegal to hire or recruit for a fee, a foreign national for employment knowing the foreign national is not authorized to work in the US

*Civil and criminal penalties for violations

*IRCA

To Whom Do the Laws Apply?

YOU

*IRCA


* Must re-verify right to work if original documentation provided has expiration date

* Employee chooses documentation to provide

* E-Verify (risks & rewards)

* No match letter

* Anti-discrimination protections

*Drug & Alcohol Testing



*Virginia has no general statute or regulation requiring or regulating drug testing in either employment or pre-employment


To Whom Does the Issue Apply

*Where employees operate motor vehicles or have hazardous job duties

*Federal & State contractors

*Drug and Alcohol Testing

Hot Buttons & Smoking (no pun intended) Guns

*Drug testing only when written policy is in place & consistently applied

*As a condition of employment only when there is a business necessity

*Determination of existence of grounds for reasonable suspicion testing

*Virginia law requires employers to pay for drug & alcohol testing

*Monitoring Employee Communications



*Monitoring of employer-provided electronic technology and internet access is permissible, if employees are on notice that there is no expectation of privacy when using employer systems, and if there is a legitimate reason to monitor


To Whom Do the Issues Apply?

YOU



*Why?

*Protection against direct and vicarious liability for employee misconduct (Sexual Harassment and other Unlawful Harassment)

*Protect against employees stealing your stuff or clients

*Monitor social media conducted for employer

*What are risks?

*Violation of Federal Wiretapping laws

*Violation of data privacy and security laws

*Violation of employment discrimination laws

*Violation of National Labor Relations Act

*Non-Compete Agreements



*Is a covenant not to compete enforceable?

*If so, how?


To Whom Do the Issues Apply?

YOU?



*Enforceable if:

*No more restrictive than necessary to protect legitimate business interest (time, place, scope)

*Not unduly burdensome on employee’s legitimate effort to earn livelihood (time, place, scope)

*Consistent with sound public policy (purpose can’t be to stop employee from working in the industry)

*Virginia law disfavors non-competes

taking care of business 2012

Documents

hot buttons

drug

smoking guns

interviews

foreign national

prohibits discrimination

issues apply

laws apply