Employment Law Updates

Employers are increasingly using the hair follicle drug test rather than the more frequently used urine and blood tests to test for drug use by employees. Recent federal legislation will allow employers of commercial drivers to add hair testing as an option in addition to urine testing. The hair test offers some advantages over other forms of testing:

On May 11, the President signed into law the new Defend Trade Secrets Act of 2016 (DTSA). This new statute contains two significant features that employers should note.

The law’s most prominent feature provides for the first time a civil claim in federal courts for misappropriation of trade secrets. Until now, trade secret misappropriation claims have been handled primarily in state courts under laws such as the Virginia Uniform Trade Secrets Act. The state laws have some limitations that are remedied by the new federal statute. For example, the DTSA will allow companies to pursue trade misappropriation that occurs across state and international borders. The new statute also defines “trade secrets” broadly. Greater uniformity in trade secret law nationwide will be a likely result of the DTSA.

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

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