Virginia Code Section 40.1-28.01 was passed in 2019 to prohibit any provision in a nondisclosure or confidentiality agreement that has the purpose of concealing the details of a sexual assault. The new section is not retroactive, but it does ensure that employers will not be able to rely upon non-disclosure agreements to conceal sexual assaults occurring in the workplace. At present, the language is narrowly drafted to cover current and prospective employees only. Accordingly, confidentiality agreements executed by former employees in consideration for severance or settlement payments may not be covered by the statutory protection.
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Can the NLRB outlaw confidentiality clauses in severance agreements?
The National Labor Relations Board has reversed its prior precedent, holding that confidentiality and non-disparagement clauses in severance agreements for non-managerial employees can violate an employees basic right to discuss terms and conditions of employment under Section 7 of the National Labor Relations Act – even if the employee is not covered by a union. Though traditionally linked to union activity, Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
The new standard was set forth in McLaren v. Macomb, 372 NLRB 58, as issued in February 2023. The decision does not, on its face, outlaw all confidentiality provisions, but it does take issue with broad language that prohibits the employee from discussing the terms of the agreement with any third party. The Board reasoned that an absolute ban that prohibits employees from discussing the terms of the agreements with co-workers or union representatives could produce a chilling effect that would discourage employees from bringing charges before the Board, co-operating with Board investigations or assisting their co-workers who were subjected to unlawful actions. Note that the NLRB’s ruling generally does not pertain to Supervisory personnel who have general managerial authority such as the right to hire, discipline and fire employees.
Can your employer avoid overtime payments by using an adjustable pay scheme?
In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.
The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.
In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.
https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html
Can False Rumors Serve as the Basis for Claims of Sexual Harassment?
In Parker v. Reema Consulting, the Fourth Circuit addresses a claim where a female subordinate alleges that she was subjected of repeated rumors of sleeping with her supervisor to secure a promotion. Importantly, company managers participated in the spreading of the rumors. To state a claim under Title VII for a hostile work environment because of sex, the plaintiff must allege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s sex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.
In this case, The Fourth Circuit agrees that these sex based rumors can serve as the basis for a hostile environment claim and that the continuous nature of the harassment was sufficiently pervasive as to interfere in her work.
https://law.justia.com/cases/federal/appellate-courts/ca4/18-1206/18-1206-2019-02-08.html
Is an employee entitled to be reinstated to his or her same position following FMLA leave?
Not exactly. Under the FLMA, qualified employees are entitled to 12 weeks of leave for a serious medical condition. At the end of such leave, the employer must reinstate the employee in the position held by the employee at the commencement of the leaver – or – to an equivalent position with equivalent pay, benefits and other terms and conditions of employment. In Waag v. Sotera Defense Solutions (May 2017), the Fourth Circuit considered the case of of a program manager who required FLMA medical leave after an accident. During his absence, the company moved forward by filling the program manager’s position. When he sought to return to work, they re-assigned him to a different role without changing his pay structure. In finding the re-assignment to qualify as an equivalent position, the Court considered the fact that (i) both positions were paid the same salary and benefits; (ii) both positions were senior director positions that required plaintiff to report to a vice president; and (iii) neither position included significant managerial responsibilities. In sum, the Court emphasized that restoration “does not indicate a preference for restoring covered employees to their pre-leave positions over ‘equivalent’ positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave.”
Are Managers that Investigate Discrimination Protected From Retaliation?
In addition to prohibiting job discrimination on the basis of race, color, religion, sex, or national origin, Title VII contains an Opposition Clause to protect workers from retaliation for advancing claims under the statute. Typically, the Courts have defined “opposition” broadly to include a variety of conduct in opposition to unlawful employment practices, including both formal grievances and informal complaints. In Demasters v. Carilion Clinic, the Fourth Circuit recently considered whether a manager, who failed to support a pro-management position in another employee’s sexual harassment complaint, himself engaged in protected opposition under Title VII.
At issue in DeMasters is the proper application of the “manager rule,” a doctrine applied by some courts that requires an employee to be acting outside of a management role in order to engage in protected activity. When applied, managers that routinely accept, investigate or evaluate complaints of other employees are not participating in protected activity when performing their regular job duties. After consideration, however, the Fourth Circuit rejected a per se extension of the “managers rule” to Title VII, holding that “the only qualification placed upon an employee’s invocation of protection from retaliation under Title VII’s Opposition Clause is that the manner his opposition must be reasonable.”
Demasters v. Carilion Clinic (Fourth Circuit, August 10, 2015)
Can You Draw Unemployment Benefits if You Resign From Your Job?
If you quit or otherwise leave a job voluntarily, an employee must prove “good cause” in order to receive unemployment benefits. However, an employee who is forced to resign is not deemed to have left work voluntarily when the employee had no real option to return to the job.
By statute, “good cause” does not include leaving work to become self-employed or to accompany a spouse to a new locality (unless it relates to a military transfer). General dissatisfaction with a job is not good cause. To establish “good cause,” the employee must show (1) that he or she suffers from an objectively reasonable job dispute or other conflict that serves as a necessary and compelling reason to leave employment; and (2) that he or she has exhausted all steps to resolve any conflict that would be taken by a someone desirous of retaining their employment. For example, an employee who is troubled by a conflict with a co-worker first would be expected to pursue some resolution by reporting the behavior to a supervisor or human resource office.
“Good cause” is determined on a case-by-case basis, but may include situations such as severe harassment or discrimination, non-payment of wages or significant cuts in pay, illegal or unsafe working conditions, family care obligations, or personal medical reasons. However, if your medical condition prevents you from working for any employer, you will not meet the VEC’s other requirement that you are otherwise available for work. When dealing with medical conditions that impact work ability, an employee first should consult with their physician prior to leaving a job. The VEC is more likely to accept a medical cause if your physician advised that your current position was not suitable due to physical or mental limitations.
If you are denied unemployment benefits, you have the right to appeal your claim and present your case at a hearing before an appeals examiner. You also have the right to be represented by an attorney at this hearing.
Blue Penciling of Non-Competes in Virginia?
Non-competition agreements, AKA non-competes, are presently enforceable in Virginia provided that they are drafted in terms that are reasonable with regard to duration, geography and scope. [Update: Virginia law now limits non-competes to employees meeting higher wage thresholds. 2020]. When a non-compete is facially unreasonable because it is vague or overbroad with regard to one of those components, Virginia Courts will refuse to enforce the entire restrictive covenant.
Enter the concept of “Blue Penciling … Blue Penciling is a practice where a Court can in effect redraft or “limit” unreasonable terms of an agreement in a manner that would make the agreement otherwise acceptable and enforceable. Virginia Courts have never endorsed this practice, though it is permitted in other states. As a result, Virginia employers typically do not get a second chance to reform an unreasonable agreement.
Enter the concept of “Choice of Law” … Virginia law does permit contracting parties to elect or choose the law of the State that applies to their contract, provided that it does not offend Virginia public policy. In the case of Edwards Moving and Rigging, Inc. v. W.O. Grubb Steel Erection, Inc., the Richmond U.S. District Court was presented with a non-competition agreement that stipulated to the application of Kentucky law – a State that does permit Blue Penciling. While the Court was not asked to reform the agreement in the context of a 12(B)(6) Motion to Dismiss, it did hold that Kentucky’s Blue Penciling policies were not repugnant to the public policies of Virginia, thereby opening the possibility that a Virginia Court could consider Blue Penciling at a later stage in application of Kentucky law.
Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases
Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin. The standard for liability often begins with the employment position of the alleged harasser. When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action. Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.
However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee. In such cases, an employer may be vicariously liable for the conduct of its supervisors. In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII. In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.
Does the FMLA Provide for a”Light Duty” Return to Work?
The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013). In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA). After his 12 weeks of FMLA expired, the employee requested to return to work in a light duty capacity that would eliminate some essential functions of his position. When the employer could not accommodate his request, the employee nonetheless remained on leave based upon the terms of his union’s collective bargaining agreement. Ultimately, the employee returned to work but still sued under the FMLA, contending that the employer failed to promptly reinstate him in accordance with his physician’s restrictions.
At the conclusion of an FMLA period, the FMLA requires that an employer reinstate the employee to his prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” The Seventh Circuit affirmed that the FMLA does not require an employer to return an employee to his position if that employee cannot perform an essential function of the job. 29 C.F.R. § 825.214(b). As otherwise stated, there is no such thing as obligatory light duty under the FMLA. (Note, other laws such as workers’ compensation and ADA statutes may impose different light duty obligations depending on the facts of each individual case.)