Employment Law Updates

The Equal Employment Opportunity Commission (EEOC) announced on June 2, 2016 an increase in the maximum penalty for employers that fail to comply with certain federal notice-posting requirements. The maximum penalty will increase from $210 to $525.

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

The United States Department of Labor (DOL) has issued new guidance that narrows the definition of “independent contractor.”  Under the new criteria, many workers who were previously classified as independent contractors would now be classified as employees.

Among other consequences, if considered an employee the worker will be entitled to minimum wage and overtime payments, and the employer will be required to withhold payroll taxes.

The United States Department of Labor (DOL) has issued updates to Family and Medical Leave Act (FMLA) forms. The new forms have an expiration date of May 31, 2018.

The revisions to the forms are relatively minor but add information relating to the Genetic Information Nondiscrimination Act (GINA). Employers must keep any medical information confidential under both GINA and the Americans with Disabilities Act (ADA), and health care providers should not provide genetic information during the family and medical leave certification process. Some of the new forms did not contain any revisions to the substance of the old forms, but merely received a new expiration date.

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.

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