Tag Archives: Richmond Employment Lawyer

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

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 Minimum Wage Law: Status Update March 2024

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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.

NLRB’s New Joint-Employer Rule

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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.

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.  

Virginia Law to Strengthen Ban on Employment Contracts that Limit Disclosure of Sexual Harassment in the Workplace.

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Virginia code Section 40.1-28.01 currently prevents employers from using non-disclosure or confidentiality agreements to conceal the details of sexual assaults occurring in the workplace. As recently signed into law, the statute will be amended to include broader claims of sexual harassment. The modified statute also will void non-disparagement provisions that could be asserted to stifle free speech of victims of sexual assault or harassment. While “sexual assault” is already defined in various criminal statutes, the modified provision will apply the definition of “sexual harassment” found in Virginia Code Section 30-129.4, which states:

Sexual harassment” means 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.

The final version of the amendment does not go so far as to void provisions that limit the disclosure of other discrimination complaints.

Can your employer prevent you from sharing wage information with others?

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In the past, it was not uncommon for employers to enforce strict confidentiality policies that limited an employee’s ability to discuss their own wage or salary information with co-workers, presumably for the purpose of deterring requests for wage increases or concealing disparate pay structures.

Passed in 2020, Virginia Code Section 40.1-28.7:9 now holds that “no employer shall discharge from employment or take other retaliatory action against an employee because the employee (i) inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation or (ii) filed a complaint with the Department alleging a violation of this section.” However, the law does specifically address restrictions on prior employees, thereby leaving open the issue of whether employers can enforce confidentiality provisions in settlement or severance agreements entered into post-termination.

On the national level, the National Labor Relations Act (NLRA) also prohibits employers from disciplining non-supervisory employees for discussing their pay with co-workers. The NLRA protects employees’ rights to engage in “protected concerted activities,” which includes discussing wages, benefits, and other working conditions with their colleagues.

In combination, these law provide protection for employees who discuss their wages with other employees, and employers who violate these protections can face legal consequences. Employees who believe they have been retaliated against for discussing their wages or for filing a complaint related to wage discrimination can file a complaint with the appropriate government agency or seek legal counsel.

Virginia employees now protected if they miss work to attend eviction proceedings.

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A little known amendment to the Virginia code now affords employees a new basis for job protection in the event they are compelled to attend court for an unlawful detainer or eviction. It is now unlawful for an employer to “discharge [an employee] from employment or take any adverse personnel action against him as a result of his absence from employment due to appearing at any initial or subsequent hearing on such summons, provided that he has given reasonable notice of such hearing to his employer.” Although the statute does not specify a private cause of action, the established policy could be cited as a basis for wrongful discharge under Virginia common law, also known as a Bowman claim.

2023 Minimum Wage Increase

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Historically, the Fair Labor Standards Act has created a national minimum wage for hourly employees. Though the federal minimum wage remains at $7.25 per hour, Virginia is now among the states that have set a higher minimum wage standard under state law. The Virginia Minimum Wage Act, passed in 2020, establishes incremental wage increases that will raise the minimum wage to $15 per hour by 2026. Effective January 1, 2023 the minimum wage in Virginia increases to $12 per hour. Absent amendments to the law, the next increase will occur in January 2025. Virginia law adopts federal exemptions under the FLSA and also includes its own exceptions, such a babysitters working fewer than 10 hours per week, students participating in a bona fide educational programs, golf caddies, taxicab drivers and persons employed in summer camps for children.

Are Non-Competes Enforceable in Virginia?

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For years, companies have required that new employees sign covenants not to complete as a way blocking them from seeking work with competitors. If taken to an extreme, these provisions can substantially limit employment opportunities for workers in their chosen field within their own locality. As of 2020, Virginia law now protects “low wage” employees from being restricted in their future employment.

As defined by the statute, a “covenant not to compete” means a covenant or agreement, including a provision of a contract of employment, between an employer and employee that restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer. the new lay strictly prohibits employers from requiring or enforcing non-competes for low wages employees and provides a private cause of action for violations.

A “low wage employee” means an employee whose average weekly earnings are less than the average weekly wage of the Commonwealth as determined pursuant to subsection B of § 65.2-500. In 2022, that number was set at $1,290 or $67,080 annually.

Not everyone is covered by the new law. Besides those who earn in excess of the threshold, the law does not cover persons whose earnings are derived primarily from sales commissions, incentives, or bonuses paid to the employee by the employer. The law also does not apply retroactively to persons who signed non-competes prior to 2020.