Employment Law Updates

There has been an increase in lawsuits against employers for noncompliance with the Fair Credit Reporting Act (FCRA) involving pre-employment background checks. The FCRA has several mandatory steps that must be taken when an employer does background screening of a potential employee for criminal record, credit history, and certain other information.

Exempt and non-exempt employees are treated differently under the Fair Labor Standards Act (FLSA) when an employer closes for weather-related reasons. Under those circumstances, non-exempt employees are not entitled to pay, although they may use any accrued paid time off (PTO) to cover the absence. An employer may also have a policy that provides a certain number of paid days for inclement weather closings.

The United States Department of Labor (DOL) enforces several laws and regulations that require notices to be posted in the workplace. The required posters are available in electronic copy through the DOL. Not all employers are covered by every law or regulation

The United States Department of Labor (DOL) has issued new guidance that narrows the definition of “independent contractor.”  Under the new criteria, many workers who were previously classified as independent contractors would now be classified as employees.

Among other consequences, if considered an employee the worker will be entitled to minimum wage and overtime payments, and the employer will be required to withhold payroll taxes.

The United States Department of Labor (DOL) has issued updates to Family and Medical Leave Act (FMLA) forms. The new forms have an expiration date of May 31, 2018.

The revisions to the forms are relatively minor but add information relating to the Genetic Information Nondiscrimination Act (GINA). Employers must keep any medical information confidential under both GINA and the Americans with Disabilities Act (ADA), and health care providers should not provide genetic information during the family and medical leave certification process. Some of the new forms did not contain any revisions to the substance of the old forms, but merely received a new expiration date.

Effective July 1, 2015, Virginia has a new law restricting employers from compelling current and prospective employees to provide certain social media information. New Va. Code § 40.1-28.7:5 prohibits an employer from requiring a current or prospective employee to disclose the username and password to his/her social media account.

For employers involved with federal contracts, the federal Drug-Free Workplace Act imposes requirements that are not generally applicable to other employers. The Act applies to all federal contractors with contracts in excess of $100,000. Covered employers must take certain measures including the following:

The U. S. Department of Labor (DOL) has been beefing up its enforcement of employers’ misclassification of workers as independent contractors rather than employees. The DOL recently announced successful enforcement actions against several companies that were required to pay significant compensation for misclassifying workers.

The IRS also is more closely scrutinizing independent contractor classifications.

Effective January 1, 2015, the revised injury and illness recordkeeping and reporting requirements of the Occupational Safety and Health Administration (OSHA) went into effect. Employers were previously required to report all work-related fatalities and inpatient hospitalizations of three or more employees within 8 hours.

The new rules still require employers to report all fatalities to OSHA within 8 hours, but now employers will also have to report each single work-related inpatient hospitalization, as well as amputations and losses of an eye, to OSHA within 24 hours. The 8 and 24-hour periods are measured from the time the employer learns about the injury or fatality, not from when the event occurred. OSHA’s webpage describes the new rules.

Those employers that have 15 or more employees are subject to the Americans with Disabilities Act (ADA) and have a duty to make a reasonable accommodation of an employee’s disability.

The courts have been divided about whether allowing an employee to work from home (telecommuting) can be a reasonable accommodation. A recent decision of the U.S. Court of Appeals for the 6th Circuit provides an example of a court concluding that this potential accommodation might be reasonable.

The Federal 4th Circuit Court of Appeals (which covers Virginia) last week issued a decision of first impression concerning an employer’s liability for harassment of an employee caused by a third party such as a visiting vendor.

In that case a regular customer of the employer engaged in sexual and racial harassment of a black female employee. For the first time, the 4th Circuit adopted a negligence standard for determining if an employer is liable:

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