Employment Law Updates

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:

The Federal Trade Commission and the EEOC recently co-published two guidance documents concerning the use of background checks for employment purposes. One document is for employers, and the other is for job applicants and employees. The EEOC examines background checks in the context of employment discrimination claims, while the FTC enforces the Fair Credit Reporting Act which governs the use of background checks performed for employment purposes. These documents review and reiterate previous guidance from these agencies, but also provide “best practices”

Several months ago we alerted you to the Affordable Care Act’s requirement that you give a written notice to all employees about the new health insurance Exchanges by October 1, 2013. It is important to remember that you must also give the notice to each new employee at the time of hire or no later than within 14 days of an employee’s start date. The U. S. Department of Labor (DOL) has provided a model Exchange notice for employers who offer a health plan to some or all employees, and a separate model notice for employers who do not offer a health plan. Those model notices are found on the DOL’s web page with other information about the Act" . Employers may use one of those models or may use another form of notice, provided that the notice contain the required information as described on the DOL’s information page.

Two federal Courts of Appeal recently struck down the National Labor Relations Board rule that required employers covered by the National Labor Relations Act to post a new notice of labor rights. The courts ruled that the NLRB had exceeded its legal rule-making power in promulgating the rule. In a statement released January 6, shortly after the deadline for filing a petition for certiorari with the U. S. Supreme Court, the Board announced that it “decided not to seek Supreme Court review of two U. S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.”

The litigation concerning the poster requirement now appears to be ended. Although employers are not required to post the notice, they may do so voluntarily. The 11 by 17 inch poster is available on the NLRB website.

Open enrollment under the Affordable Care Act’s new health insurance Exchanges will begin on October 1, 2013, with coverage to begin on January 1, 2014. The Act requires employers to give a written notice to employees about the Exchanges by October 1. The U.S. Department of Labor (DOL) has provided a model Exchange notice for employers who offer a health plan to some or all

The federal 4th Circuit Court of Appeals, which includes Virginia, has struck down the National Labor Relations Board rule that required employers covered by the National Labor Relations Act to post a new notice of labor rights. Under this rule, most private-sector employers would have been required to display a poster in the workplace, plus post the notice on an employer’s Intranet if that is where they normally display workplace policies. The 4th Circuit ruled that the NLRB had exceeded its legal rule-making power in promulgating the rule. This decision follows a similar decision of the D.C. Circuit Court of Appeals which also struck down the rule.

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