Employment Law Updates

Under the Americans with Disabilities Act (ADA), the use of service animals could be considered a reasonable accommodation for a disability. Service animals are usually dogs, but can be other species of animals.

In a case involving The Boeing Company, the National Labor Relations Board (NLRB) overruled one of its prior decisions concerning whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

Among other things, the NLRA protects employees' rights to discuss the terms and conditions of their employment. For example, employees are protected if they discuss their wages with each other.  Under the NLRB’s former standard, a workplace rule was found to be in violation if the rule would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

The new federal tax law creates a temporary business tax credit for eligible employers who provide paid family and medical leave to their employees. This credit applies to tax years 2018 and 2019, and is calculated based on a percentage of the amount paid to the employees, ranging from 12.5% up to 25%. Even if an employer has fewer than 50 employees and is not required to offer leave under FMLA, the new law allows those smaller employers to qualify for the credit.

Whether a worker is entitled to certain benefits or is covered by a particular law depends on the worker’s classification as an employee or independent contractor.  Government agencies such as the U.S. Department of Labor, EEOC, IRS and National Labor Relations Board (NLRB) do not all use the same test to determine that classification.  In a January 25, 2019 decision, the NLRB changed the test it had been using since 2014.

Until now, in Virginia only government employees had a right to access information in their personnel records. A new Virginia law will now require employers in the private sector to provide current or former employees with copies of certain employment-related documents upon request.

As a general rule, employers may not require employees or job applicants to take a polygraph (lie detector) test. The federal Polygraph Protection Act severely restricts the use of polygraph tests with employees or applicants. The Act prohibits most employers from requiring, suggesting, requesting or causing an employee or applicant to submit to a polygraph test, and further bars employers from requesting, using, referring to or inquiring about the results of any prior such test. In addition, the Act prohibits employers from terminating, disciplining or discriminating against an employee or applicant for refusing to take a polygraph test or for related actions.

Virginia employees often assume they are entitled by law to rest periods and meal breaks. Such a belief is a misconception. Although most employers voluntarily provide their full-time employees meal breaks and rest periods, neither Virginia nor federal law requires them. One exception is Virginia’s child labor law, which prohibits an employer from requiring or permitting a child under 16 years of age to work for more than five hours continuously without a lunch period of at least 30 minutes.

Employers are often confused about whether they may count a holiday against an employee's 12 week Family and Medical Leave Act (FMLA) entitlement. The U.S. Department of Labor has issued guidance on this subject. As explained in the DOL's FMLA Fact Sheet #28I, when a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave. However, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

There is no Virginia statute that requires employers to pay a departing employee for accrued vacation or other leave time. The Virginia Department of Labor and Industry (DOLI), however, takes the position that the employer does have an obligation to pay for accrued leave if the employer has a policy or practice of doing so. For example, if the company’s employee handbook states that accrued vacation time will be paid upon termination of employment, the company will be bound by that policy.

Employers will be required to use the newest version of the Form I-9 to verify the employment eligibility of their employees by September 18. The changes to the form mostly relate to the List of Acceptable Documents. The new form should be used when verifying the eligibility of new employees or re-verifying the eligibility of employees who have work authorizations with an expiration date. A link to the new form can be found at https://www.uscis.gov/i-9.

Employers should be aware of potential legal pitfalls in their employment application forms. A good rule of thumb is to avoid asking for information that cannot legally be considered in making a hiring decision. The following are examples of information that should generally not be requested:

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