Employment Law Updates

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:

The U.S. Department of Labor today issued its long-awaited final regulations confirming the proposed changes to the Fair Labor Standards Act overtime pay exemptions. The salary level that is required as part of the test for an employee to be classified as exempt has been $455 per week for many years. The new regulations increase this level to $913 per week. The change on an annual basis is from $23,660 to $47,476. The new salary level goes into effect on December 1, 2016.

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.

As an example, businesses with fewer than 50 employees are not required to post a notice about the Family and Medical Leave Act (FMLA). More information is available from the DOL about the most recent poster requirements at the Poster Advisor on their website.

Effective July 1, 2017, a new Virginia law requires employers and payroll service providers to notify the Office of the Attorney General “without unreasonable delay” after discovery of a breach of computerized employee payroll data that compromises the confidentiality of the data.

National origin discrimination is one of the forms of discrimination prohibited by the federal civil rights law known as Title VII. The Equal Employment Opportunity Commission has issued new guidance in a question-and-answer format about this type of discrimination. Here is an example of the types of issues addressed by the guidance:

A federal judge in Texas yesterday issued a nationwide preliminary injunction preventing the U.S. Department of Labor’s new overtime rule from going into effect as scheduled on December 1.

Office Hours

Mon - Fri 8:30 am - 5 pm
Sat Closed
Sun Closed

Contact Us

925 Main St., Suite 300 
Lynchburg, VA 24504 

434-846-2768
434-847-0141
This email address is being protected from spambots. You need JavaScript enabled to view it.
pldr law firm facebook icon