In a landmark decision on Thursday, the National Labor Relations Board (“NLRB” or “Board”), by a 3-2 vote, determined that its long-standing “joint-employment jurisprudence” had grown “increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships, i.e., shift work, contract workers, and temporary employee relationships[,]” across the U.S.
Consider the following scenario. You are an employer to which the FMLA and ADA apply. One of your employees has been on unpaid FMLA leave due to medical conditions that have required ongoing treatment by a team of doctors. The employee has exhausted all of his sick leave and paid time off and is nearing the conclusion of the twelve weeks of unpaid FMLA leave to which he is entitled. You prepare a letter informing him that he must report back to work on the day after his leave has run out. Just before that date, however, the employee provides you with a doctor’s note stating that the employee requires additional medical testing as a part of his treatment, is unable to return to work at the present, and without the additional testing, it is unclear when the employee will be able to return to his job.
July 26, 2015 marked the twenty-fifth anniversary of The Americans with Disabilities Act (“ADA”), which created comprehensive federal protections for individuals with disabilities in all areas of public life, including the workplace, providing equal access to the same employment opportunities and benefits available to persons without disabilities. In signing the law into effect twenty-five years ago, President George H.W. Bush noted:
With today’s signing of the landmark Americans [with] Disabilities Act, every man, woman and child with a disability can now pass through once-closed doors into a bright era of equality, freedom and independence.
Workplace violence has become a growing concern for businesses across the country. In Virginia, employers of all sizes are actively considering, many for the first time, whether it would be prudent to have extra security personnel on hand and wondering whether they can be held liable for actions taken by security guards on their premises. The good news for employers in the Commonwealth is that such liability can be mitigated with the right policies in place.
Part 1 of this article can be found here.
The Fair Credit Reporting Act
Having considering the perils summarized above, an employer who still decides to use employee criminal background checks faces additional restrictions under other federal statutory provisions, namely the Fair Credit Reporting Act (“FCRA”). An employer who uses consumer reports to make employment decisions, including hiring, retention, promotion or reassignment, must comply with the FCRA. The Federal Trade Commission (“FTC”) enforces the FCRA.
Use of employment-related background checks by employers to discover information about the work history, education, criminal record and financial history of job applicants has become ubiquitous. In one recent survey of employers, 92% of those responding stated that they subjected all or some of their job candidates to criminal background checks. The reasons for increased employer reliance on criminal background checks are straightforward – to control theft and fraud and address heightened concerns about potential liability for workplace violence and negligent hiring. It is not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check. However, anytime an employer uses that information to make an employment decision, irrespective of how the employer has obtained the information, the employer must comply with federal anti-discrimination and credit reporting laws, and state and local restrictions.
The Department of Labor (DOL) has just released its long-awaited Notice of Proposed Rulemaking to the white collar exemption under the Fair Labor Standards Act (FLSA). The amendments, if passed, will significantly increase the minimum salary test (from $23,660 to $50,440) for hours worked over 40 in a work week. The amendments will have far-reaching impacts on many industries that will need to reclassify many currently exempt employees and corresponding wage and hour policies.
In response to a directive from President Obama, the Department of Labor (DOL) has been working since Spring 2014 to revise the white collar exemption under the Fair Labor Standards Act (FLSA). The revisions are expected to significantly increase the minimum salary test and the primary duties test.
What does the FLSA provide for and what is the white collar exemption?
The FLSA is a federal statute that establishes minimum wage, overtime pay, recordkeeping and child labor standards. The statute requires that most employees be paid, at least, the federal minimum wage and overtime pay at one and one-half the regular rate of pay for all hours worked over 40.
Take Your Dog to Work Day (“TYDTWDay”), sponsored by Pet Sitters International, is Friday, June 26, 2015. Every year, more than 10,000 companies participate, to celebrate dogs and encourage adoptions from local shelters. This event also presents a great opportunity to partner with a local animal rescue, such as Arlington Chamber members Homeward Trails Animal Rescue and theAnimal Welfare League of Arlington.
If your company is considering allowing pets for the day, there are some legal implications to consider.
Effective July 1, 2015, employers in Virginia will be prohibited from requesting usernames and passwords for social media accounts of current employees or applicants. Specifically, Va. Code 40.1-28.7:5 will prohibit employers from:
- Requiring a current or prospective employee to disclose the username and password to his social media account;
- Requiring a current or prospective employee to add an employee, supervisor, or administrator to his list of contacts;
- Using any login information inadvertently obtained to access an employee’s social media account;
- Disciplining an employee for exercising his rights under this section;
- Refusing to hire an applicant for exercising his rights under this section.