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.

Can Older Employees Draw Unemployment Benefits and Social Security Retirement?

Posted on February 27, 2024 by admin

As individuals approach retirement age, many find themselves grappling with the decision of whether to continue working or fully retire. The prospect of job loss in such a scenario can raise questions about eligibility for unemployment benefits, especially when one is already receiving or scheduled to receive Social Security retirement benefits.

Understanding Unemployment Benefits in Virginia:

The Virginia Employment Commission (VEC) administers unemployment benefits in the state, providing financial assistance to eligible individuals who have lost their jobs through no fault of their own. To determine eligibility, the VEC considers various factors, including the claimant’s work history, reason for separation from employment, and other earned income. Regardless of age, to receive unemployment benefits, the potential worker also must be able to work, available to work, and actively seeking work.

Earned Income vs. Social Security Retirement:

Social Security is a federal program that provides financial assistance to retirees based on their lifetime contributions. Regardless of their retirement status, workers are eligible to draw their Social Security retirement benefits once they reach their qualified retirement age.

The Virginia Employment Commission considers other earned income when determining eligibility and benefit amounts for unemployment benefits. Other earned income can include wages, severance benefits, secondary jobs, or other compensation received for work performed. In most cases, unemployment benefits will be offset by other earned income. However, under Virginia Code Section 60.2-604, the weekly benefit amount payable to an individual for any week is not reduced by any amount of Social Security Act or Railroad Retirement Act retirement benefits for that week. This distinction allows individuals over their qualified retirement age to draw both unemployment and regular social security retirement benefits if they lose their job and still want to return to the workforce.

Does the Minimum Wage in Virginia Change in 2024?

Posted on February 7, 2024 by admin

No. While the Federal minimum wage for nonexempt employees still remains set at $7.25 per hour, Virginia, like many states, implements its own minimum wage law that supplements Federal standards.

As of January 1, 2023, Virginia’s minimum wage increased to $12 per hour, reflecting an increase from the previous rates of $9.50 (effective May 1, 2021) and $11.00 (effective January 1, 2022). However, there is no further increase in 2024. Absent further amendments, the minimum wage is set to rise again on January 1, 2025, to $13.50 per hour and to $15.00 per hour on January 1, 2026. Additionally, any increase in the federal minimum wage will automatically raise the Virginia rate, as the statute requires payment of the higher of the state or federal minimum wage.