What is the Role of Disability Determination Services (DDS) in Social Security Disability Claims?

Posted on April 1, 2024 by admin

Social Security disability claims usually begin at the local Social Security Administration (SSA) field office where the applicant lives. The SSA field office collects and processes applications for disability benefits through various channels, including in-person, mail-in and online applications. SSA field offices first verify non-medical eligibility requirements, such whether the applicant has acquired enough prior work credits to receive SSDI benefits or whether an applicant’s current earnings exceed the threshold for gainful employment.

Once non-medical eligibility is verified, the SSA field office forwards the case to a separate Disability Determination Service office (DDS) for medical evaluation of disability. Though federally funded, DDSs operate as State agencies. In Virginia, Virginia Disability Determination Services partners with SSA and the Virginia Department of Social Services to review and make initial decisions on eligibility for SSDI, SSI, and Medicaid programs. Local DDS offices serve as critical gatekeepers in the disability evaluation process. Their primary responsibility is to assess medical evidence and make the initial determination as to whether a claimant is disabled or blind under the law.

At the initial application stage, DDSs seek and acquire evidence from the claimant’s identified medical providers, relieving the applicant of the burden and expense of ordering their own medical records. If that evidence is insufficient, DDS may order and require a consultative examination (CE) to obtain additional medical assessments and opinions. DDS then forwards the cumulative file information to reviewing physicians to evaluate the evidence and make recommendations regarding the severity of the applicant’s condition and their residual functional capacity. After making a final determination, DDS returns the case to the local SSA field office for appropriate administrative action.

If DDS determines that the claimant is disabled, SSA proceeds to compute and pay-out the subject benefits. If the DDS finds the claimant not disabled, the claimant may appeal the adverse decision though several stages. Following the first appeal, DDS will reevaluate the claim on Reconsideration. If DDS upholds its denial, a claimant may appeal again and then receive an evidentiary hearing before an SSA Administrative Law Judge.

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Richmond Socials Security Disability Lawyer

Employment Background Checks: An Overview

Posted on April 1, 2024 by admin

Purpose Employee Background Checks

In the dynamic landscape of modern employment, organizations face multifaceted challenges in identifying and selecting the right candidates to join their teams. The hiring process has evolved beyond mere resume scrutiny and interviews. It now demands a thorough assessment of an individual’s background to mitigate potential risks and ensure the integrity of the workforce. The benefits of a sound background screening process are numerous:

Verification of Credentials: Confirmation of academic credentials and past job experience enables employers to identify and hire individuals who possess the requisite skills and qualifications to meet performance needs and expectations.

Mitigating Risks of Misconduct: By requiring applicants to complete comprehensive background screenings, employers can preemptively identify red flags, thereby insuring against potential liabilities and safeguarding organizational assets.

Protecting Business Reputation: The repercussions of hiring an unsuitable candidate extend far beyond the confines of the workplace. Instances of employee misconduct or negligence can precipitate irreparable damage to an organization’s brand image, eroding consumer trust and stakeholder confidence.

Fostering a Secure Work Environment: Background screenings play a pivotal role in this regard by enabling employers to identify individuals with a history of criminal or other unlawful behavior, thereby fostering a secure and harmonious work environment conducive to productivity and collaboration.

When To Conduct Employee Background Checks?

The timing of employee background checks plays a pivotal role in shaping the efficiency and integrity of the hiring process. With many companies, all new hires must undergo a background investigation as a prerequisite for finalizing the job offer. However, conducting background checks on all applicants is neither economic nor recommended for equal employment purposes. Background screening should not be used as a mechanism to reduce a broad pool of initial applicants.

Generally, one of two approaches is commonly used, but once established, a company’s process should be applied consistently. First, the organization may elect to screen identified finalists following the conclusion of interviews. Alternatively, a company may require a background check after making a conditional offer of employment. The latter method is preferred by the Equal Employment Opportunity Commission and may even be required by “ban-the-box” laws in some states. In Virginia, public sector employers may not inquire about an applicant’s criminal history or pending criminal cases on a job application or before an initial interview. This law does not currently apply to private companies, but the EEOC recommends deferring any such questions until after the identification of final candidates for a position. A job application should never ask about arrests.

Note, some professions in Virginia require specific background checks under law. For example, school employees and certain licensed care employees must undergo a criminal background check with the Virginia State Police. Commercial truck drivers similarly must submit to a DOT review.

Who Conducts the Employee Background Check?

While some limited criminal information may be available online to the general public or via State Police inquiries, businesses often utilize professional credit reporting agencies (CRAs) to perform these inquiries, as they have standing databases cultivated for this specific purpose. Depending on the provider, a report might include information on a candidate’s prior areas of residence, educational and professional qualifications, criminal history, driving record, credit background, civil judgments and other information. Importantly, the use of a CRA to conduct an employee background check is considered an order of a “consumer report,” which implicates compliance obligations with the Fair Credit Reporting Act (FCRA). While the FCRA does not limit the manner in which you may utilize background information, it does include strict authorization, notice and disclosure provisions designed to protect employee rights to a fair and accurate report.

What Employee Information is Restricted?

Both private and public sector employers are prohibited from asking about arrests, criminal charges, or convictions related to the simple use or possession of marijuana. If asked to disclose information about criminal charges and convictions, an applicant may exclude information about these offenses. This law does not apply to more serious offenses such as the distribution or intent to distribute marijuana.

Employers also may not require applicants or employees to provide social media usernames or passwords, or ask to be added to a candidate’s list of social media contacts. Likewise, an employer cannot refuse to hire a candidate for refusing to provide this information. However, Virginia law does not prohibit an employer from viewing information about a current or prospective employee that is publicly available. See Va. Code § 40.1-28.7:5.

Employers may not require job applicants to disclose information about expunged arrest records for any type of offense. See Va. Code § 19.2-392.4

Employers may not fire or otherwise discriminate against an employee solely based upon an applicant’s bankruptcy. Certain financial based businesses are excluded. Federal employers may not discriminate against applicants either, but Courts are split as to whether this protection applies to the private sector. See 11 U.S.C. 525 (b).

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Richmond Employment Attorney

Virginia Minimum Wage Law: Status Update March 2024

Posted on March 29, 2024 by admin

Virginia Governor Glenn Youngkin has vetoed Virginia’s latest proposed minimum wage increase. The subject bill, which had passed the House of Delegates with a 51-49 party-line vote, aimed to raise the current minimum wage of $12 per hour to $13.50 by January 2025 and then to $15 by January 2026. The preceding wage law from 2020 incrementally raised the minimum wage from $9.50 to $12.00 per hour as of January 1, 2023.

Governor Youngkin’s veto of the bill will continue to stir debate across the state. Youngkin argues that the non-market increases in wages would raise costs on small businesses, without regard to economic differences in the varying regions across the state. Advocates for the wage increase argue that it would help working families afford basic necessities and keep up with inflation. Additional debate continues as to whether government mandated wage increases, as opposed to free-market increases, contribute to rises in inflation.

While additional wage increases between 2023 and 2026 required legislative action, Va. Code Section 40.1-28.10 still includes a unique wage adjustment scheme. Beginning October 1, 2026, and every year thereafter, the state must determine the adjusted state hourly minimum wage for the following January 1. The adjusted wage is calculated by adding (i) the current state hourly minimum wage rate to (ii) a percentage of that rate equivalent to the percentage increase in the United States Average Consumer Price Index for all urban consumers (CPI-U) published by the Bureau of Labor Statistics, or a successor index, over the most recent available calendar year. This adjustment ensures that the minimum wage keeps pace with inflation, and the adjustment amount cannot be negative.

Court Strikes Down NLRB Joint Employer Rule

Posted on March 21, 2024 by admin

On March 8, 2024, the U.S. District Court for the Eastern District of Texas vacated the National Labor Relations Board’s (NLRB) 2023 joint employer rule. The new rule, which was set to take effect on March 11, 2024, expanded the criteria for determining joint employer status, potentially increasing the number of businesses classified as joint employers. The vacated rule would have placed more employers at risk of being deemed joint employers, affecting their liabilities and responsibilities towards employees. Under the proposed 2023 rule, an entity could be deemed a joint employer under common-law agency principles if it had authority to control essential terms and conditions of one’s employment, even if the the control was indirect. The Court found that the new rule failed to provide a clear standard for employers to follow.

The ruling has significant implications for businesses, particularly those who work with contractors or franchisees. The current ruling leaves the 2020 joint employer rule in place, which requires direct and immediate control over employees to establish a joint employer relationship. However, other U.S. District Courts are certain to consider the issue in their jurisdictions, likely resulting in a final review by the U.S. Supreme Court.

The Pregnant Workers Fairness Act

Posted on March 19, 2024 by admin

The new Pregnant Workers Fairness Act (PWFA) provides pregnant workers with options for reasonable accommodations to continue their employment without risking their health or the health of their unborn child. The act, which took effect in June of 2023, is a critical supplement to existing laws that currently protect against pregnancy discrimination.

Key Provisions of the PWFA

Similar to Title VII and the Americans with Disabilities Act, the PWFA applies to employers with 15 or more employees. The Equal Employment Opportunity Commission is responsible for issuing regulations to implement and enforce the act. Under the PWFA, employers must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer to suffer “undue hardship.”

The PWFA borrows the same definitions of “reasonable accommodation” and “undue hardship” as utilized under the Americans with Disabilities Act. “Reasonable accommodations” are changes to the typical work environment or work process. An “undue hardship” is one that cause a significant difficulty or expense for the employer. Suggested accommodations might include: additional break times, flexible hours, uniform modifications, or excuse from strenuous activity or unsafe exposures.

For employers, the PWFA mandates a balance between the needs of the business and the health of their employees. It encourages a collaborative approach to find suitable accommodations that do not impose an undue hardship on the operation of the business. For employees, the act provides a clear legal framework that supports their right to work and maintain a safe and healthy pregnancy.

Can You Return To Work If You Receive Social Security Disability Benefits?

Posted on March 14, 2024 by admin

Navigating a return to work can be challenging when you’re receiving Social Security Disability (SSDI) benefits. However, the Social Security Administration (SSA) offers programs that allow beneficiaries to work without immediately losing their benefits. In general, you must report work and any income earned while you are receiving SSDI benefits, including workers’ compensation benefits. If you earn more than $1,050 in gross income per month, you must report these wages through your Social Security account. Failure to report income can result in the termination or suspension of your benefits and action by SSA to recoup overpayments.

Trial Work Period (TWP): The TWP allows you to test your ability to work for at least 9 months. During this period, you’ll receive your full SSDI benefits regardless of how much you earn, as long as you report your work activity and continue to have a disabling impairment. In 2024, any month where you earn over $1,110 before taxes counts toward your TWP.

After the TWP, you enter a 36-month extended period of eligibility (EPE). During this time, you still can receive benefits for any month your earnings are below the substantial gainful activity (SGA) limit, currently set at $1,550, or $2,590 if you’re blind for 2024.

Medicare Coverage: During the TWP and for 93 months thereafter, you can typically retain your Medicare Part A coverage at no cost. If you have Part B, you can keep it by continuing to pay the premium.

Ticket to Work Program: The SSA’s Ticket to Work program is designed to help SSDI recipients find suitable employment and attain financially independence. The program is offered at no cost and participation is voluntary. This program aims to help people with disabilities move towards financial independence by connecting them with employment services and support for success in the workforce.

Additional information and resources can be found by visiting the Choose Work website.

For legal assistance with a pending Social Security Disability Appeal, call attorney D. Scott Gordon at 804-440-6557 or visit dsgordonlaw.com

NLRB’s New Joint-Employer Rule

Posted on March 5, 2024 by admin

The National Labor Relations Board (NLRB) is the federal agency that enforces the National Labor Relations Act (NLRA), which protects the rights of workers to organize and bargain collectively with their employers.

On October 27, 2023, the NLRB published a final rule that changes the standard for determining when two or more entities are joint employers of a group of employees under the NLRA. In the modern workforce, it is not uncommon for an employee to be technically hired by one entity while being contracted to provide services to another business that essentially controls their daily work performance. The new rule provides more clarity and guidance to parties covered by the NLRA regarding their rights and responsibilities when more than one statutory employer possesses the authority to control or exercises the power to control particular employees’ essential terms and conditions of employment.

The new rule implements established common-law standards by considering the an employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. Essential terms and conditions of employment include: wages, benefits, and other compensation; hours of work and scheduling; the assignment of duties to be performed; the supervision of the performance of duties; work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; the tenure of employment, including hiring and discharge; and working conditions related to the safety and health of employees.

The effective date of the rule for new cases is February 26, 2024. For more information, you can read the NLRB’s fact sheet.

Understanding FinCEN’s New Rule for Reporting Ownership Interests in Corporations

Posted on March 1, 2024 by admin

The Financial Crimes Enforcement Network (FinCEN) recently implemented a significant rule that affects businesses across the United States. As a business owner, it’s crucial to understand this new requirement and ensure compliance.

What Is the New Mandate?

The Corporate Transparency Act (CTA) introduced a beneficial ownership information reporting provision. Under this rule, most businesses—whether corporations, S corporations, partnerships, or other entities—must report their beneficial owners to FinCEN. The goal is to enhance national security, prevent illicit use of the financial system, and identify potential bad actors.

Who Needs to File?

The new rule applies to a wide range of entities, except sole proprietors and certain exempted categories. If you’re a business owner, you’ll need to report any stockholders who own 25% or more of your company. Additionally, beneficial owners include individuals with substantial control over your entity, such as CEOs, CFOs, or chief operating officers. The rule provides standards for determining ownership interests, covering not only shares but also profit interests, warrants, options, and other instruments. The Agency’s Small Entity Compliance Guide provides specific information about reporting obligations and exemptions.

When to File?

The reporting period began on January 1, 2024, and businesses must submit their BOI reports by December 31, 2024. New entities created after January 1, 2024, have 90 days from their formation to file.

Can You Qualify for Social Security Disability Benefits with Epilepsy?

Posted on February 29, 2024 by admin

Living with epilepsy poses unique challenges, especially when it hinders the ability to maintain employment. Social Security Disability benefits can provide crucial financial support for individuals grappling with the impact of epilepsy on their daily lives.

Proving Your Claim:

To be considered for Social Security Disability benefits due to epilepsy, you must present medical documentation demonstrating that your epilepsy prevents you from working at a gainful employment level. Additionally, you need to have accumulated enough work credits through your employment history. Relevant medical conditions would include timing and frequency of seizures; post-seizure Issues, such as impaired thinking, fatigue, or disruptions to daily activities; and continued seizures despite medication.

Understanding Epilepsy Under SSA Listing 11.02:

The Social Security Administrations Blue Book serves as a comprehensive guide that outlines the conditions that qualify automatically for Social Security Disability benefits. As characterized in the Blue Book, epilepsy is a pattern of recurrent and unprovoked seizures that are manifestations of abnormal electrical activity in the brain. There are various types of generalized and “focal” or partial seizures. The most common potentially disabling seizure types are generalized tonic-clonic seizures and dyscognitive seizures. Generalized tonic-clonic seizures are characterized by loss of consciousness accompanied by a tonic phase. Dyscognitive seizures are characterized by alteration of consciousness without convulsions or loss of muscle control. To meet the automatic qualification criteria for this listing, you must demonstrate:

A diagnosis of epilepsy, as documented by a detailed description of a typical seizure and characterized by A, B, C, or D below:

A. Generalized tonic-clonic seizures occurring at least once a month for at least 3 consecutive months despite adherence to prescribed treatment.

B. Dyscognitive seizures, occurring at least once a week for at least 3 consecutive months despite adherence to prescribed treatment.

C. Generalized tonic-clonic seizures, occurring at least once every 2 months for at least 4 consecutive months despite adherence to prescribed treatment; and a marked limitation in one of:
-Physical functioning;
-Understanding, remembering, or applying information;
-Interacting with others;
-Concentrating, persisting, or maintaining pace; or
-Adapting or managing oneself

D. Dyscognitive seizures occurring at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment ; and a marked limitation in one of the following:
-Physical functioning;
-Understanding, remembering, or applying information;
-Interacting with others;
-Concentrating, persisting, or maintaining pace; or
-Adapting or managing oneself.

Successfully navigating the Social Security disability benefits process for epilepsy requires a nuanced understanding of the specific criteria outlined in Listing 11.02 and alternative argument for qualification. By providing detailed documentation and adhering to the prescribed treatment, individuals with epilepsy can enhance their chances of qualifying for benefits. Please contact my office directly should you wish assistance with you claim.

D. Scott Gordon, Attorney

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