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The NLRB’s Evolving Stance on Employment Noncompete Agreements

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The National Labor Relations Board (NLRB) has taken a clear stance on employment noncompete agreements, challenging their legality under the National Labor Relations Act (NLRA). The NLRB General Counsel’s memorandum, released in May 2023, asserts that such agreements infringe upon employees’ rights outlined in Section 7 of the Act. This development has far-reaching implications for both employers and employees, prompting a reevaluation of traditional employment practices.

The NLRB argues that overbroad non-compete agreements violate the NLRA by impinging on employees’ ability to exercise their Section 7 rights. These agreements, which traditionally aim to protect employers’ investments in employee training and intellectual property, are potentially unlawful when they restrict workers from engaging in collective action to improve working conditions. The memorandum specifically highlights instances where non-compete agreements hinder employees from seeking alternative employment, thereby limiting their bargaining power during labor disputes and undermining solidarity among workers.

The NLRB emphasizes that non-compete provisions are problematic when construed by employees as denying them the freedom to quit or change jobs, limiting their access to other employment opportunities commensurate with their skills and preferences. This denial of access has potential ripple effects, such as a weakened bargaining position during labor disputes and a loss of solidarity among workers.

The GC’s opinion is not currently settled law, but it is being implemented into NLRB policy. For example, a recent NLRB complaint alleges that a medical clinic violated the NLRA by imposing non-compete and non-solicitation provisions on employees, hindering their ability to engage in certain activities for 24 months post-employment termination. The NLRB now seeks to rescind these agreements.

Virginia’s New Law Limiting Nondisclosure Agreements Relating to Sexual Assault and Harassment

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In a significant move towards promoting transparency and accountability in the workplace, Virginia recently enacted Virginia Code § 40.1-28.01, which places limitations on employers’ use of nondisclosure and confidentiality agreements concerning claims of sexual assault and harassment. The statute provides that no employer shall require an employee or a prospective employee to execute or renew any provision in a nondisclosure or confidentiality agreement, including any provision relating to non-disparagement, that has the purpose or effect of concealing the details relating to a claim of sexual assault or a claim of sexual harassment as a condition of employment. Any such provision is against public policy and is void and unenforceable.

While the term “sexual assault” is not explicitly defined in the statute, the law specifically applies to claims arising under Virginia laws related to rape, forcible sodomy, aggravated sexual battery, and sexual battery. The statute defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

Crucially, the law is narrowly tailored to apply to applicants and current employees, arguably leaving room for nondisclosure or confidentiality agreements with former employees. This means that provisions commonly found in severance and settlement agreements, which are executed post-employment, will likely remain unaffected by this legislation.

Are Employees Entitled to a Copies Personnel Files and Pay Records?

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Personnel Files

In Virginia, the ability to access employee personnel files varies between private and public sector employees. Absent a subpoena or litigation discovery process, private sector employees in Virginia do not have a statutory right to obtain a copy of their complete personnel files, which are considered the property of the employer. In contrast, public sector employees in Virginia generally have the right to review their personnel files.

Job and Pay Information

However, Virginia law does guarantee access to certain information for all employees. VA Code § 8.01-413.1(B), mandates that employers furnish employees, upon written request, copies of employment records reflecting:

  1. Dates of Employment
  2. Wages or Salary Information
  3. Job Description and Title
  4. Work-Related Injuries

Timely Compliance

Employers are obligated to respond to employee requests within 30 days. If this timeframe is unattainable, the employer may extend the response period by an additional 30 days upon providing a written explanation of the reason for the delay. The employer may charge a reasonable fee for the records. If the records or papers are kept in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records or papers are kept in electronic format, the employer may charge a reasonable fee for the electronic records.

Enforcement

Should an employer fail to comply with a written request, the employee may obtain a subpoena duces tecum, as stipulated in VA Code § 8.01-413.1(C). If a court determines that an employer willfully refused compliance, whether by ignoring subsequent requests or imposing excessive charges, the court may award damages for all expenses incurred by the employee to obtain such copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.

Virginia’s Return to Federal Overtime Standards

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Virginia’s journey into overtime regulation took an interesting turn with the passing of the Virginia Overtime Wage Act (VOWA) in March 2021. However, amidst widespread confusion and concerns from employers, the state has decided to realign its overtime obligations and exemptions with the federal Fair Labor Standards Act (FLSA) beginning July 2022.

The 2022 VOWA amendments largely return the state to the overtime standards that were in place prior to the enactment of the VOWA in 2021. By realigning with the FLSA, employers (and judges) once again can rely on years of federal regulations, DOL guidance, and governing case law to determine their overtime obligations to employees.

While the recent amendments largely align Virginia’s overtime obligations with the FLSA, some significant changes should be noted:

Private Right of Action: The new amendments preserve an employees’ private right of action under VOWA, granting them access to state courts for individual or collective-action claims for unpaid wages and overtime.

Damages and Penalties: Similar to the FLSA, VOWA also allows for heightened damages and penalties for overtime violations. These provisions include automatic liquidated damages equal to the amount of unpaid wages, pre-judgment interest at 8% per year, and civil penalties of $1,000 for each violation, with the possibility of treble damages for “knowing” violations. These enhanced damages could incentivize employees to pursue claims in state courts.

Statute of Limitations: Prior to the 2022 amendments, VOWA had established a three-year statute of limitations for all violations, regardless of whether they were willful. With the changes, the FLSA’s two-year statute of limitations for non-willful violations will be reinstated. However, the VOWA’s imposition of double damages and possible treble damages for knowing violations remains intact.

Virginia’s return to federal overtime standards brings predictability to employers who were grappling with the complexities of the VOWA. By aligning with the FLSA, employers can once again rely on well-established federal regulations and case law to navigate overtime obligations. In any event, the swings of this legislative battle should be a signal for Virginia employers to review their overtime policies and procedures to ensure compliance with the amended laws.

How to Appeal a Denial of Long-Term Disability Benefits

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What Should You Do if an Insurance Company Denies Your Claim for Long-Term Disability Benefits?

Suffering from a long-term disability can be an incredibly challenging and life-altering experience. Thankfully, many employer’s offer individuals long-term disability (LTD) insurance benefit to provide financial support during these difficult times. In some cases, these plans may provide initial benefits to persons who are not immediately eligible for Social Security Disability Benefits.


Understanding Long-Term Disability Policies and ERISA:

If your LTD plan is issued through your employer, the policy most likely is governed by the Employee Retirement Income Security Act (ERISA), which can present a unique set of challenges. ERISA is a federal law that establishes minimum standards for retirement, health, and other welfare benefit plans offered by employers. ERISA also impacts the rules and regulations surrounding your claim process and subsequent appeals. ERISA provides protection for both the plan participants and the insurance companies, aiming to ensure fairness in the administration of benefits.


ERISA imposes certain requirements on insurance companies, such as providing participants with plan information, a clear explanation of the claim denial, and a fair appeals process. However, it also sets deadlines and limitations on the claimant’s ability to present evidence, making the claim process complex and challenging to navigate without a proper understanding of it’s procedure. Importantly, ERISA mandates that claimants must exhaust an insurance company’s internal appeals process before pursuing any legal action. Your first objective should be to familiarize yourself with the specific requirements and deadlines for submitting an appeal, which are usually spelled out at the end of the denial letter. While plans may vary, in most cases you have only 180 days to submit your initial denial appeal. However, filing an immediate appeal also can be a mistake. You must use this 180 day window to properly develop an appeal if you are to expect a different result. For this reason, you should contact an attorney immediately after receiving the denial letter.


Steps to Take if Your Long-Term Disability Claim Is Denied:

1. Carefully read the denial letter from the insurance company, as it should outline the reasons for the denial and the procedures for submitting an appeal. Understanding the insurance company’s rationale is crucial in preparing your appeal. For example, did they rely upon the opinion of an outside medical consultant or did they just not receive all of your medical information in a timely manner?

2. Request a copy of the insurer’s file, including any adverse medical opinions upon which they relied to deny your claim.

3. Collect all relevant medical records, test results, and other evidence that support your disability claim.

4. Consult with your healthcare providers to ensure you have a comprehensive and up-to-date record of your condition. If the insurance company lists the opinion of an outside medical consultant, ask your own provider whether they agree or disagree with those conclusions. Your doctor’s can play a crucial role in responding to a denial, but a short letter stating you are disabled may not be sufficient. It is important to ask the right questions.

5. Eventually, you must submit an appeal letter that addresses the reasons for the denial and provides additional evidence to support your disability claim. Prior to sending in your appeal, consider seeking assistance from an experienced attorney who specializes in disability and ERISA claims.

6. In cases where all other options have been exhausted, filing a lawsuit may be the final course of action. Understand that ERISA lawsuits usually are limited to a review of the administrative record. Do not assume that you will be able to introduce new and additional evidence to a neutral jury, which is why the proper development of the initial administrative appeal is often the key to a successful claim.

New Virginia Law Permits Leave for Organ and Bone Marrow Donors

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Beginning July 1, 2023, Virginia Law will include a new provision for employee leave for the purpose of organ or bone marrow donation. Pending Va. Code Section 40.1-33.8 allows for up to 60 days of unpaid business leave for employees for the purpose of organ donation and up to 30 days of unpaid leave for the purpose of bone marrow donation. However, not every employee will qualify. The new statute is structured similarly to the qualifying elements of FMLA leave. An eligible employee must have been employed for 12 months and worked at least 1,250 hours during the previous 12 months. Also, qualifying employers only include those with 50 or more employees.

Like the FMLA, during qualifying periods of leave, the employer must consider the employee as continuously employed and must reinstate the employee to the same or equivalent position upon their timely return. Retaliation is specifically prohibited for exercising these rights, but the statute does not contain an express provision for an individual cause of action. As structured, violations can be asserted to the Commissioner or the Virginia Department of Labor and Industry within 1 year. VDOLI is then responsible for investigating the claim and if warranted, issuing a notice of any founded violation, which primarily would include civil penalties.

SSDI: What Is My Last Insured Date?

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When applying for Social Security Disability benefits, your “last insured date” is a key factor that initially dictates whether you are eligible to apply for benefits. The last insured date is the date on which your eligibility for Social Security Disability Insurance (SSDI) benefits ends. When you apply for SSDI benefits, the Social Security Administration (SSA) will look at your work history to determine your last insured date. To receive SSDI benefits, you must prove that your disability onset date occurred before your last insured date.

To be eligible for SSDI benefits, you must have earned a predetermined number of quarterly work quarters. Once you have earned enough credits to qualify for SSDI, you become “insured” for disability benefits. To earn credit for a work quarter, an individual must have earned a minimum amount of money during that quarter. For example, the amount of earnings required for a quarter of coverage in 2023 is $1,640.

Generally, an individual over 31 years of age needs to have earned 40 work quarters in total. Also, 20 of the work quarters must have been earned in a 10 year look-back period immediately before the onset of your disability. (i.e. did you work in 20 of the past 40 quarters?). Based on this math, if you have not worked for more than 5 years (20 quarters) then you likely will no longer be insured for SSDI purposes. You still can apply for benefits, but you must prove that your disability began prior to the last insured date.

Younger individuals may be eligible with fewer work quarters. If you are under 24, you only need to earn 6 credits in the 3 year period before the onset of disability. If you are between ages 24 and 31, you need to earn credits for working half the quarters between age 21 and the onset of disability.

Based on these formulas, if you no longer are able to work due to a permanent disability, it is important to initiate your application for SSDI benefits in a timely manner.

Social Security Disability Benefits: Compassionate Allowances

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Waiting for the Social Security Administration (SSA) to approve Social Security Disability Insurance (SSDI) benefits can be a frustrating process, even more so if you have life-threatening medical issues. Compassionate Allowances (CAL) can speed up the approval process for those with the most debilitating and terminal conditions. The amount of benefits available for a Compassionate Allowance is the same as the regular SSDI or SSI benefit, but the time frame for review and approval is significantly shortened.

The Social Security Administration (SSA) adopted compassionate allowances in response to complaints that the SSDI application procedure was too drawn-out and cumbersome. CAL identifies specific medical illnesses that are so serious that they unquestionably meet the SSA’s disability requirements. Currently, there are over 240 conditions on the Compassionate Allowances list, including various types of cancer, genetic disorders, and neurological disorders. The SSA adds new conditions intermittently. The current list can be found at https://www.ssa.gov/compassionateallowances/conditions.htm.

CAL provides much-needed financial support to those who are facing immense medical and financial challenges. For those facing terminal illnesses, the expedited approval process under CAL is intended to provide access to benefits during one’s lifetime.

To be considered for a Compassionate Allowance, the applicant should advise SSA of their qualifying medical condition when applying for benefits. SSA reviews the application and medical records to determine if the applicant meets the Compassionate Allowance criteria. If qualified, SSA will then expedite the Claimant’s application.

Are Commissioned Employees Entitled to Overtime?

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The answer depends on their line or work and their pay structure. FLSA regulations do provide an overtime exemption for certain employees of retail and service establishments who are paid on a commission basis. Retail and service establishments are defined as establishments that have a recognized retail concept and where 75% of sales are not goods for resale. Factors relevant to the “retail concept” might include whether the business sells goods or services to the general public or whether the business participates in the manufacturing process.

To qualify for the exemption under Section 7(i):

1. the employee must be employed by a retail or service establishment;

2. the employee’s regular rate of pay must be at least one and one-half times the applicable minimum wage; and

3. more than half the employee’s total earnings in a representative period must consist of commissions.

The representative period cannot be less than 1 month, or more than one year.  If all of these these elements are not satisfied, the employee would remain entitled to overtime pay.  Because the employer must verify that the regular rate of pay exceeds 1.5x the minimum wage, the employer still needs to track total hours worked during each pay period.

Prior to 2020, the U.S. Department of Labor published lists of businesses that they considered to be retail or non-retail.  The new rule withdraws their arbitrary reliance on the lists, allowing more industries to argue for the exemption.  

Can Your Employer Require You to Undergo a Fitness for Duty Examination?

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The Americans with Disabilities Act (ADA) considers that employers may request fitness-for-duty examinations under limited circumstances. The legality of such exam requests sometimes can be complicated.

Generally, the ADA requires Employers to provide reasonable accommodations to individuals with disabilities unless doing so would impose an undue hardship. However, the ADA also permits employers to establish qualification standards that are job-related and consistent with business necessity. In some instances, a fitness-for-duty exam may be necessary to determine whether an employee can perform their job duties, with or without accommodations.

To require a fitness for duty examination, the employer must have a reasonable belief that (1) the employee’s ability to perform his or her essential job functions is impaired by a medical condition or (2) the employee poses a direct threat to safety of others due to a medical condition. The reasonable belief must be based on objective evidence, such as observations of the employee’s job performance or medical documentation. If properly supported, an Employee’s refusal to submit to a reasonable fitness for duty examination can be a basis for disciplinary action. However, if the request is not supported by objective evidence or overbroad in scope, an Employer’s termination of an employee based on an overreaching exam or refusal to submit to such an exam may lead to claims of ADA violations.

Under the ADA, a fitness-for-duty exam must be job-related and consistent with business necessity. In other words, the exam must be necessary to ensure that an employee remains capable of performing the essential functions of their job. The exam must be tailored to the employee’s specific job duties and cannot be overly broad or intrusive.

A fitness for duty exam also should not be abused as a means of discovery into an Employees entire medical history, especially if unrelated to the asserted impairment. The EEOC takes the position that an Employer’s request for medical records must be narrowly tailored to an employee’s job requirements. An overbroad release for medical records or a questionnaire seeking a detailed medical history could be improper, as it might allow the Employer to inquire about unrelated medical conditions or genetic information in violation of the Genetic Information Non-Discrimination Act.

In some limited circumstances, however, a fitness for duty exam may be required without having to articulate evidence of impairment or threat. For example, Employees out of work on worker’s compensation or FMLA leave may be required to submit a fitness for duty certification to return to work. Also, an employee requesting accommodation under the ADA may have to provide medical documentation to substantiate the medical condition requiring accommodation.