Category Archives: Employment Policies

What’s is Virginia’s Right-to-Work Law?

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For decades, Virginia’s right-to-work law has been a defining feature of the Commonwealth’s labor landscape. Va. Code § 40.1-58 et seq., prohibits requiring any employee to join a union or pay union dues as a condition of employment. Supporters consider it a safeguard of individual worker freedom, while opponents view it as a structural barrier that weakens unions and depresses wages. With the recent of introduction of SB 32, a bill seeking to repeal the law in its entirety, Virginia is reexamining a policy that has shaped workplaces for generations.

One of the most persistent misconceptions in employment law is the belief that “right-to-work” means an employer may fire an employee at any time, for any reason. That is incorrect. The doctrine permitting termination without cause is called “at-will employment,” and Virginia, like most states, follows “at-will” as its default rule. “Right-to-work” laws have nothing to do with hiring or firing. They relate solely to whether union membership or fees can be required as a condition of employment.

Virginia adopted its right-to-work in 1947, in the same period that Congress enacted the Taft-Hartley Act, which expressly permitted states to ban contractual requirements compelling union membership. The core language declares it “the public policy of the Commonwealth” that a worker cannot be denied employment because of membership or non-membership in a union. In practice, this means employers and unions may not negotiate union-shop or agency-shop clauses that would require represented employees to join a union or pay fees to support representation.

Virginia’s right-to-work law does not ban unions. It does not prohibit workers from organizing, voting for union representation, or engaging in collective bargaining where otherwise permitted. Instead, it restricts labor-management agreements requiring workers to financially support the union that represents them. This restriction can create a “free rider” problem often cited by labor organizations. Unions in right-to-work states must represent all employees in the bargaining unit, even non-members that choose not to pay dues. In effect, non-member employees still receive the benefit of higher wages, benefits, and grievance representation without paying for those services, thereby weakening unions’ finances, reducing bargaining power, and helping keep union membership low.

With a pending Administration change, SB 32, https://lis.virginia.gov/bill-details/20261/SB32 seeks to repeal Virginia’s right-to-work statute outright and allow employers and unions to negotiate contracts requiring employees covered by a collective bargaining agreement to either join the union or pay a fee to support its representational activities. (Under current law, public-sector workers would remain exempt from mandatory fees regardless of SB 32’s fate). Repeal would not impose automatic membership on every worker, but it would open the door for unions and employers to negotiate contracts that require represented employees to either join the union or pay equivalent fees as a condition of employment. Labor advocates argue this proposed change will strengthen workers’ collective bargaining power, potentially leading to improved wages, benefits, and working conditions. Business groups counter that mandatory fees will drive up labor costs, potentially making Virginia less competitive in attracting new businesses and encouraging existing employers to relocate to right-to-work states. With these competing interests, any change is certain to be highly contested.

Richmond Employment Lawyer

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Potential Expansion of Vicarious Liability for Virginia Employers

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A new Virginia law under Va. Code Section 8.01-42.6 potentially changes the legal landscape for subject employers, especially those in industries serving vulnerable populations. This legislation creates a new path for holding employers accountable for the harmful acts of their employees, even if those acts were intentional and fell outside the traditional “scope of employment.”

Previously, Virginia’s respondeat superior doctrine protected employers from liability for most intentional torts by its employees, such as assault or abuse if the act was not performed to benefit the employer. The new law introduces a different standard, allowing a plaintiff to hold an employer vicariously liable if the employee’s tortious conduct occurred while they had contact with a designated “vulnerable victim” and the employer failed to exercise reasonable care to prevent the harm. Vulnerable victims are defined as those at a substantial disadvantage due to a physical or mental condition, with the law specifically listing patients, residents of assisted living facilities, and passengers of certain carriers, among others.

This change places a greater risk on subject employers, who can no longer rely on the defense that an employee’s intentional act was personally motivated. Instead, a plaintiff can argue that the employer’s own negligence in hiring or supervision created the opportunity for the harm to occur. This shift particularly impacts healthcare and assisted living businesses. Patients and residents are per se vulnerable victims, heightening the importance of credentialing, staffing oversight, chaperone policies, incident reporting, and prompt corrective action to demonstrate reasonable care and control.

Virginia Employment Lawyer

The Introduction of AI Into the Hiring Process

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From initial job postings to final hiring decisions, AI-driven tools are reshaping how companies evaluate and select employees. While these technologies promise unprecedented efficiency, they also introduce a complex web of legal and ethical challenges, chief among them the risk of algorithmic bias and discrimination.  The question is not whether AI can discriminate, but how to prevent it from doing so.

The legal theory of “disparate impact” is particularly relevant to AI hiring systems. Under this doctrine, employers can be held liable for discrimination even if they didn’t intend to discriminate, provided their practices have a disproportionate negative effect on protected groups. This means that an AI system that consistently screens out candidates from certain ages, genders, racial or ethnic groups could violate federal law, regardless of whether the algorithm explicitly considers those factors.  For example, AI may identify and use seemingly neutral data points that are, in fact, proxies for protected characteristics. A candidate’s zip code could be a proxy for their race or national origin.  Gaps in employment history, which can be a proxy for gender, may also be unfairly penalized. Because AI models “learn” from the data they are trained on, if that data reflects historical or societal biases, AI potentially can learn and perpetuate those same biases.

Employers are responsible for the outcomes of their hiring practices, regardless of whether those decisions are made by a human or an algorithm. The EEOC has issued guidance emphasizing that AI selection tools must not result in “disparate impact,” which occurs when a neutral policy or practice disproportionately disadvantages a protected group. The EEOC treats algorithmic tools as selection procedures” under Title VII, expects adverse impact monitoring and warns that employers can remain liable even when vendors design/administer the tool. The EEOC’s position is clear: an employer cannot evade liability by outsourcing their selection procedures.

A growing number of jurisdictions are enacting specific regulations for AI in employment. New York City’s law, for example, requires employers to conduct an independent bias audit of any automated employment decision tools. States like Illinois and Colorado have also passed laws requiring employers to prevent algorithmic discrimination and provide notice to applicants when using AI. Recent court decisions also establish that AI vendors can be held liable as “agents” of employers, representing a fundamental shift in liability. In Mobley v. Workday, a federal court allowed collective action to proceed based on allegations that a software company’s AI screening tools caused disparate impact against applicants 40 and older, and recognizing potential vendor liability under an employer “agent” theory.

Strategies for Employers

Given the significant legal risks, employers must be proactive in their use of AI. Here are critical steps to take:

  1. Conduct a Disparate Impact/Bias Audits: Before deploying any AI tool and on an ongoing basis, regularly audit its outcomes to ensure it is not disproportionately screening out protected groups. If a disparate impact is found, the tool must either be revised or validated as job-related and consistent with business necessity.
  2. Maintain Human Oversight: AI should be a tool to augment, not replace, human decision-making. Ensure that a human is “in the loop” and can review and override any automated decisions.
  3. Vet Your Vendors: Employers cannot escape liability by outsourcing. Before purchasing an AI tool, demand transparency from the vendor regarding their bias testing, data sources, and the algorithm’s decision-making process. Include contractual protections that hold vendors accountable for discriminatory outcomes.
  4. Provide Reasonable Accommodations: Ensure AI tools are accessible and offer alternative assessment methods for candidates with disabilities, as required by the ADA.
  5. Be Transparent with Candidates: Inform applicants and employees when AI is being used in the hiring process and explain how it will affect them.
  6. Develop Clear Policies: Establish clear internal policies on the ethical and legal use of AI in hiring and provide training to HR staff and managers on how to use these tools responsibly and identify potential bias.

The integration of AI into hiring processes represents a transitional moment in employment law and practice. The technology that was intended to eliminate human bias potentially creates new forms of systematic discrimination. Courts continue to apply traditional anti-discrimination principles to AI-powered hiring decisions, and the legal trajectory clearly favors expanded liability rather than reduced oversight. For employers, the path forward requires a fundamental shift in thinking about AI hiring tools. Rather than viewing them as neutral technological solutions, they must be understood as powerful systems that require active management.

Preventing Workplace Harassment

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Workplace harassment remains a significant challenge for many organizations, with far-reaching consequences for both employees and employers. Proactive strategies are essential for creating safe, respectful, and legally compliant work environments. To prevent workplace harassment, it is crucial to foster a culture of respect and accountability. This involves not only setting clear behavioral expectations but also empowering employees to report concerns without fear of retaliation.

Understanding Legal Obligations

The legal landscape for workplace harassment is evolving, with significant recent developments emphasizing the importance of proactive measures. In Virginia, employers must comply with both federal and state laws. Key federal laws include Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, gender and sex, including sexual harassment. Virginia’s state laws reinforce these protections and can include additional requirements.

Notably, not all workplace harassment or bullying is illegal. Harassment is a form of employment discrimination that violates specific laws such Title VII or the Americans with Disabilities Act. For harassment to be considered unlawful, it must be unwelcome or unwanted, it must be severe or pervasive enough to create a hostile or offensive work environment for reasonable people, and it must relate back to a protected category or right. Isolated incidents and annoyances are generally not considered illegal, unless they are extremely serious. Additionally, the unwelcome conduct generally must be based on factors such as race, color, religion, sex, pregnancy, national origin, age or disability. Rude or offensive behavior that does not meet these standards may be discouraged and subject to discipline, though not necessarily unlawful.

Developing Comprehensive Anti-Harassment Policies

The foundation of any strategy to prevent workplace harassment is a comprehensive anti-harassment policy. This policy should clearly define what constitutes harassment, outline the procedures for reporting and investigating complaints, and specify the consequences for violators. Key elements of an effective policy include:
Clear Definitions: Define harassment broadly to include sexual harassment and other forms of discriminatory behavior. A company may also extend its policies to incorporate additional standards relating to bullying, threats of violence or similar behaviors.
Reporting Mechanisms: Provide multiple channels for employees to report harassment, ensuring confidentiality and protection from retaliation.
Investigation Procedures: Establish clear, fair, and prompt investigation procedures to address complaints.

Training and Education

Training is crucial in fostering a harassment-free workplace. Employers should implement regular training programs that educate employees about their rights and responsibilities, the company’s policies, and how to recognize and report harassment. Training should be:
Mandatory and Regular: Ensure all employees, including managers and supervisors, undergo regular training sessions.
Tailored to the Workplace: Customize training content to address specific workplace environments and challenges.

Foster a Culture of Respect

Building a respectful workplace culture goes beyond compliance with legal requirements. It involves fostering an environment where all employees feel valued and safe. Strategies to create such a culture include:

Leadership: Ensure that company leadership demonstrates a strong commitment to preventing harassment by modeling respectful behavior and actively promoting the company’s policies.
Employee Engagement: Encourage employees to participate in creating a positive work environment through open communication and involvement in policy development.
Zero-Tolerance Policy: Enforce a zero-tolerance policy for harassment consistently, ensuring that all complaints are taken seriously and addressed promptly.

Implementing Preventive Measures

Proactive measures are essential to prevent harassment before it occurs. These can include:

Regular Audits and Surveys: Conduct regular workplace audits and employee surveys to identify potential risks and areas for improvement.
Anonymous Reporting Systems: Implement anonymous reporting systems to allow employees to report harassment without fear of retaliation.
Monitoring and Evaluation: Continuously monitor the effectiveness of anti-harassment policies and training programs, making adjustments as needed based on feedback and incident reports.

Legal Compliance and Updates

Staying informed about legal developments is critical for compliance. Employers should:

Monitor Legislative Changes: Keep abreast of changes in federal and state laws and consult with legal experts to ensure policies and practices are up-to-date and legally compliant.
Documentation and Record-Keeping: Maintain thorough documentation of all harassment reports, investigations, and training activities to demonstrate compliance and support potential legal defenses.

Responding to Complaints

When harassment complaints arise, the response must be swift, fair, and thorough. Key steps include:

Immediate Action: Take immediate action to address complaints, including separating the parties involved if necessary.
Fair Investigation: Conduct a fair and impartial investigation, ensuring confidentiality and respect for all parties.
Appropriate Remedies: Implement appropriate remedies, including disciplinary action against perpetrators and support for victims.

Preventing workplace harassment in Virginia requires a comprehensive, proactive approach that combines strong policies, effective training, a respectful workplace culture, and continuous legal compliance. By implementing these strategies, employers can not only comply with legal obligations but also create a safer, more inclusive, and productive work environment for all employees.

dsgordonlaw.com

Recent Developments in U.S. Employment Law: Top 5 Issues for 2024

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As we move through 2024, several key developments in U.S. employment law are poised to impact employers and employees alike. Here are the top five issues shaping the landscape:

  1. Overtime Pay Expansion
    The Department of Labor (DOL) has proposed changes to the Fair Labor Standards Act (FLSA) that would increase the salary threshold for overtime pay eligibility. The new rule would raise the threshold to $55,068 annually, making an additional 3.6 million workers eligible for overtime pay. The rule, if implemented, will require employers to adjust their payroll practices to ensure compliance​.
  2. Non-Compete Agreements Under Scrutiny
    The Federal Trade Commission (FTC) is advancing a rule to ban non-compete agreements. This proposed rule aims to void existing non-compete clauses and prohibit future agreements. The rule has generated significant debate and legal challenges, with final decisions expected later this year. Employers should review their contracts to prepare for potential changes​.
  3. Joint Employer Status
    The National Labor Relations Board (NLRB) has revised the standard for determining joint employer status. The new rule, effective February 26, 2024, broadens the criteria to include indirect and reserved control over essential employment terms. This change means that businesses could face increased liability for labor practices of their contractors and franchisees​.
  4. Minimum Wage Increases
    Several states and localities have enacted minimum wage increases effective January 1, 2024. Employers need to adjust their payroll systems to comply with these new rates​.
  5. OSHA’s Expanded Reporting Requirements
    The Occupational Safety and Health Administration (OSHA) has introduced new reporting requirements for high-hazard industries. Effective January 1, 2024, businesses with 100 or more employees in certain sectors must submit detailed injury and illness records electronically. This rule aims to enhance workplace safety transparency and accountability​.

These developments reflect a broader trend towards greater worker protections and regulatory oversight. Employers should stay informed and proactive in adapting to these changes to ensure compliance and foster a fair and safe working environment.

FLSA Salary Exemption Thresholds to Increase on July 1, 2024

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The Fair Labor Standards Act (FLSA) is undergoing significant revisions concerning salary exemptions for executive, administrative, and professional employees. The U.S. Department of Labor (DOL) has finalized a new rule, effective from July 1, 2024, which raises the salary threshold for exempt employees under these categories.

In review, the FLSA regulates payment of minimum and overtime wages, ensuring fair compensation for employees across various industries in the United States. Under the FLSA, certain employees may qualify for exemption from minimum wage and overtime pay requirements under the executive, administrative, or professional classifications. These exemptions, commonly denoted as the “white collar” exemptions, are contingent upon a series of tests evaluating both salary and job duties.

To qualify for the exemption, the employee first must be paid on a “salaried” basis. The salary basis test mandates that employees receive a predetermined, fixed salary immune to reductions stemming from variations in work quality or quantity, guaranteeing a minimum level of compensation for any week involving work performance. In addition, the salary must exceed a minimum threshold.

The new DOL rule increases the threshold salary level previously set at $684 per week. For executive, administrative, and professional employees, the salary threshold increases to $844 per week effective July 1, 2024, translating to an annual salary of $43,888. The threshold then is to be raised to $1,128 per week or $58,656 annually, commencing January 1, 2025. The threshold for highly compensated employees similarly increases from $107,432 to $132,964. Furthermore, the introduction of periodic adjustments is slated to occur every three years, starting from July 1, 2027.

Salary based compensation is not the only criteria for the overtime exemption under the FLSA. Employees also must satisfy the “job duties” test, which delineates several categories of potentially exempt employees. For the executive exemption, the employee’s primary duty must entail managing the enterprise or a recognized department, involving supervision of at least two full-time employees and possessing the responsibility to hire or fire personnel. Similarly, the administrative exemption necessitates primary duties encompassing office or non-manual work directly related to business operations, coupled with discretion and independent judgment on significant matters. Finally, the professional exemption applies to roles demanding advanced knowledge in specialized fields, typically acquired through advanced education.

Compliance with these new standards requires employers to reassess their payroll structures. Crucially, job titles alone do not confer exempt status; rather, exemption eligibility hinges upon the alignment of an employee’s specific job duties and salary with the Department of Labor’s regulatory standards.

What is the “Interactive Process” for Reasonable Accommodation under the Americans with Disabilities Act?

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The Americans with Disabilities Act (“ADA”) requires that employers provide reasonable accommodation to qualified individuals with disabilities, provided that the accommodation does not cause undue hardship. A reasonable accommodation enables the qualified individual with a disability to perform the essential functions of the subject position. Common reasonable accommodations under the Americans with Disabilities Act (ADA) are adjustments or modifications that enable individuals with disabilities to perform their job duties effectively.

What are Examples of Reasonable Accommodations?

Accommodations can vary widely depending on the individual’s needs and the nature of the job, but they often include changes such as:

Modifying Work Schedules: This could involve altering start and end times, allowing for flexible scheduling, or providing part-time work options.

Job Restructuring: This may include reallocating or redistributing non-essential job functions, changing job duties, or redefining roles and responsibilities.

Equipment or Device Modification: Providing or modifying tools, devices, or office equipment to assist an individual in performing their job tasks.

Work Environment Adjustments: Making changes to the physical workspace, such as ergonomic furniture or accessible facilities, to accommodate mobility or sensory impairments.

Policy Modifications: Altering workplace policies to accommodate the needs of individuals with disabilities, such as allowing service animals in the workplace or modifying attendance policies.

Providing Assistive Technologies: Offering software or hardware that assists individuals with disabilities, such as screen readers, voice recognition software, or TTY devices for communication.

Communication Aids: Ensuring effective communication by providing qualified interpreters, note-takers, or transcription services.

Accessible Formats: Providing materials in accessible formats, such as Braille, large print, or audio recordings.

Leave: Granting time off for medical appointments, treatment, or recovery related to a disability.

Reassignment: Moving an employee to a vacant position for which they are qualified if they are unable to perform their current job even with accommodations.

It’s important to note that what constitutes a reasonable accommodation is highly individualized and must be determined on a case-by-case basis. The goal is to enable the employee to perform the essential functions of their job without causing undue hardship to the employer.

How Does the ADA Interactive Process Work?

To address a need for accommodation, the ADA mandates that employers engage in an “interactive process” to identify reasonable accommodations for employees with disabilities. This process is a collaborative dialogue between the employer and the employee to understand the limitations arising from the disability and explore the types of accommodations that could enable the employee to perform essential job functions. The process should be flexible and tailored to the individual’s specific needs.
The interactive process begins when an employee signals the need for an accommodation, either verbally or in writing. Employers should respond promptly, ideally documenting the communication to ensure a clear record of the request and subsequent discussions. During the interactive process, it is crucial for employers to consider the employee’s suggestions, as they are often most familiar with their own needs and potential solutions. However, the employer is not bound to provide the specific accommodation requested if there are other effective alternatives available.

Can the Employer Request Medical Information?

Under the ADA, employers are limited in their ability to request medical information from employees. Generally, employers can request medical information when it is job-related and consistent with business necessity. This need for additional information typically occurs when an employee requests an accommodation under the ADA, and the disability or need for accommodation is not obvious. In such cases, the employer may ask for documentation to understand the nature of the disability and the need for accommodation. However, employers should not request an employee’s complete medical records, as they are likely to contain information unrelated to the disability and need for accommodation. The request for medical information must be specific to the reason for the accommodation and cannot be overly broad.

If an employee provides incomplete or insufficient medical documentation in relation to a request for reasonable accommodation under the ADA, EEOC guidance suggests that the employer has the right to ask for the necessary information to substantiate the employee’s claim of a disability and the need for accommodation. The employer should inform the employee why the documentation is insufficient and allow a reasonable amount of time for the employee to provide the necessary details. If the employee fails to provide the requested documentation without a valid reason, the employer may not have a duty to continue the accommodation process. However, it is crucial for the employer to ensure that the request for additional documentation is made in good faith and not as a means to delay or deny the accommodation.

If medical documentation is necessary, employers should keep all medical information and discussions related to the accommodation confidential, as required by the ADA. All such records should be kept in separate files apart from regular personnel records to ensure confidentiality and access should be limited to authorized personnel only. It is important for employers to train managers and HR personnel on the ADA’s requirements, ensuring that requests are handled appropriately and that the company’s actions are in compliance with federal law.

How Does an Employer Evaluate A Request for Reasonable Accommodation?

The mutual goal of the interactive process is to find an accommodation that serves the employee need, without imposing an undue hardship on the operation of the business. Undue hardship refers to significant difficulty or expense relative to factors such as the employer’s size, financial resources, and the nature of the operation. Small employers may face unique challenges in providing accommodations due to limited resources. Employers can assess the reasonableness of an accommodation under the Americans with Disabilities Act (ADA) by considering several key factors, including whether the requested accommodation will impose a direct threat to the health or safety of others, decrease efficiency in other jobs, cause other employees to carry a significantly increased workload, or conflict with another law or regulation.

In all cases, the ADA does not require an employer to eliminate an essential function of the employee position or lower production standards that are applied uniformly to employees with and without disabilities. The reasonableness of an accommodation is assessed on a case-by-case basis, taking into account the unique circumstances of each request. Employers should consider the effectiveness of the accommodation in enabling the employee to perform their job duties, as well as the accommodation’s impact on the operation of the business. Factors such as the nature and cost of the accommodation, the overall financial resources of the facility or the employer, the number of employees impacted, disruption to normal business processes, and the effect on resources should be assessed. Employers also may consider how an accommodation effects other employees, though the mere fact that an accommodation might impact other employees’ workloads or morale does not automatically constitute undue hardship. Employers also cannot base their decisions on the possible unfounded fears, stereotypes, or prejudices of other workers. Instead, they should focus on the accommodation’s objective impact on the operation of the business.

If a particular accommodation seems too burdensome, employers must evaluate whether other options could meet the employee’s needs without imposing an undue hardship. This assessment may involve looking at alternative accommodations that are less costly or disruptive to the business. The ADA does not require employers to provide the exact accommodation requested by the employee if another effective accommodation is available that meets the employee’s needs. In some cases, a temporary or trial period for the accommodation might be appropriate to evaluate its impact.

dsgordonlaw.com

Richmond Employment Lawyer

Virginia Employment Lawyer

Employment Background Checks: An Overview

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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).

dsgordonlaw.com

Richmond Employment Attorney

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.