Employment Law Updates

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.

The U.S. Treasury Department announced yesterday that the Affordable Care Act’s “Pay-or-Play” mandate is being delayed one year to 2015. The mandate requires larger employers (50 or more full-time employees, including full-time equivalents) to provide health insurance to all employees or face yearly penalties. The regulations implementing the mandate have not yet been finalized, and the Treasury cited concerns of business owners about the law’s reporting requirements as the reason for the delay.

Employers should be aware of a new Virginia law set to take effect July 1. Under the new statute, employers are not required to disclose the “personal identifying information” of current and former employees to third parties unless one of the specified exceptions applies. As signed into law on March 18, Virginia Code § 40.1-28.7:4 defines “personal identifying information” as home telephone number, mobile telephone number, email address, shift times, or work schedule.”  There are four exemptions specified in the law, allowing release of a current or former employee’s personal identifying information when it is required (1) pursuant to federal law that preempts the statute; (2) by a court order; (3) pursuant to a judicially issued warrant; or (4) by a subpoena in a pending civil or criminal case or by discovery in a civil case.

New regulations regarding the Family and Medical Leave Act issued by the U.S. Department of Labor (DOL) will go into effect tomorrow, March 8. These new regulations are not as extensive as others issued in the past, and many of the changes focus on military members and their families. For example, the regulations expand the definition of a qualifying exigency arising from a military

Part of the Patient Protection and Affordable Care Act (PPACA) involves preventive care and wellness. Prior to the PPACA, company wellness programs such as smoking cessation or weight loss programs have been limited by restrictions of the Americans with Disabilities Act and HIPPA. As guidance to the PPACA, the U.S. Department of Labor (DOL) has issued  concerning how employers can structure and operate their wellness programs. The programs can include incentive payments and premium discounts. Along with the proposed regulations, the DOL released a research paper, “,” which provides more information about wellness programs.

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The U.S. Department of Labor’s Wage and Hour Division has released an Employee Guide to the Family and Medical Leave Act (FMLA), a 16-page, plain language booklet designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides. Although the booklet is entitled “Employee Guide”, it contains some valuable basic information for employers. The Guide can be accessed on the Wage and Hour Division’s website: CLICK HERE.

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The Equal Employment Opportunity Commission (EEOC) has issued a new guidance concerning the use of criminal background checks in the employment application process. The EEOC has cautioned employers in the past about the use of criminal background checks to automatically disqualify employment applicants, because of its potential discriminatory impact on certain minority groups. The new guidance discourages blanket exclusions of applicants who have been convicted of crimes, and encourages the use of “individualized assessments” to determine whether the exclusion of an applicant because of a criminal record is job related and consistent with business necessity.

The Acting General Counsel of the National Labor Relations Board (NLRB) has issued a third report in its series on social media cases brought to the agency. The report, issued on May 30, 2012, covers seven cases involving employers’ social media policies governing the use of social media by employees. The NLRB found some of the policies to be unlawful, and cautioned that it believes

We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights. Under this rule, most private-sector employers would be 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 Equal Employment Opportunity Commission has issued two revised guides concerning the rights of veterans with disabilities under the Americans with Disabilities Act. These revised guides reflect changes resulting from the ADA Amendments Act which makes it easier for veterans with service-connected disabilities to receive reasonable accommodations that will allow them to work. The revised guide for employers explains how legal protections for veterans with disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act and how employers can prevent disability discrimination. It also includes information for employers about the process of hiring veterans, including organizations that can assist employers in finding qualified veterans for jobs and determining accommodations in the hiring process.

We recently notified you that the National Labor Relations Board had issued a rule requiring employers covered by the National Labor Relations Act to post a new notice of labor rights. NLRA-covered employers would have been required to display a poster in the workplace by November 14, 2011, plus post the notice on the employers’ Intranet if that is where they normally displays workplace policies. Most private-sector employers are covered by this new rule.

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