Tag Archives: Virginia Employment Lawyer

Overtime Exemption Thresholds for Salaried Workers Set to Change in 2025

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The U.S. Department of Labor’s final rule on overtime exemptions, announced on April 23, 2024, is set to bring significant changes to the salary thresholds for exempt employees starting July 1, 2024, with further increases planned for 2025. This rule aims to extend overtime protections to millions of workers and update the regulations under the Fair Labor Standards Act (FLSA).

Key Changes

On July 1, 2024, the minimum salary threshold for executive, administrative, and professional employees to be classified as exempt from overtime rose to $844 per week or $43,888 annually. This marks a substantial increase from the previous threshold of $684 per week or $35,568 annually. As currently planned, an even more significant change is scheduled for January 1, 2025, when the salary threshold will further increase to $1,128 per week or $58,656 annually. Similarly, the highly compensated employee exemption increased to $132,964 on July 1, 2024, and is set to increase again to $151,164 on January 1, 2025.

Impact and Considerations

Assuming they take effect as scheduled, employers must carefully evaluate their workforce to identify roles that may be affected by the new thresholds. Some key considerations include:

  1. Reclassification: Employers may need to reclassify some exempt employees as non-exempt if their salaries fall below the new thresholds.
  2. Salary Adjustments: For employees near the threshold, companies might consider raising salaries to maintain exempt status.
  3. Compliance Costs: Businesses should anticipate increased labor costs, either through higher salaries or potential overtime payments.
  4. State Laws: Employers must also be aware of state-specific overtime laws, which may have higher thresholds or different requirements

Like all Agency regulations, final implementation may be challenged or delayed by court challenges or politics. As we near the implementation of the 2025 date, Employers should monitor U.S. Department of Labor updates to track the status of this pending change.

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.

New FTC Rule Targets Non-Compete Clauses: Key Implications and Ongoing Legal Battles

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The Federal Trade Commission (FTC) has introduced a transformative rule that fundamentally alters the landscape of non-compete agreements in the United States. Published in the Federal Register on May 7, 2024, the rule is set to take effect on September 4, 2024. This sweeping regulation prohibits employers from entering into non-compete agreements with most workers, aiming to eliminate what the FTC views as an “unfair method of competition.”


Overview of the Final Rule

The Final Rule broadly defines a non-compete clause as any employment term that prevents or penalizes a worker from seeking or accepting work with another employer or starting a business in the U.S. after their current employment ends. This applies not only to employees but also to independent contractors, externs, interns, and volunteers. The FTC’s prohibition targets both new non-compete agreements and existing ones, making them unenforceable after the effective date.

Prohibitions on Existing and New Non-Compete Agreements

While the rule applies comprehensively, it carves out a specific exception for “senior executives.” These are defined as individuals earning at least $151,164 annually and holding policy-making positions. Employers can maintain existing non-compete agreements with these senior executives, but cannot enter into new ones post-September 4, 2024. This exception, however, is quite narrow and applies only to those who meet stringent criteria regarding compensation and decision-making authority.

Noteworthy Exceptions

Bona Fide Sale of a Business: Non-compete clauses associated with the genuine sale of a business entity remain permissible. The FTC defines a bona fide sale as one conducted in good faith between independent parties with the opportunity for negotiation, excluding agreements tied to stock repurchase rights or mandatory redemption programs.

Other Post-Employment Restrictions: While the rule does not explicitly ban non-disclosure agreements or non-solicitation agreements, it prohibits any post-employment restriction that effectively functions as a non-compete. Thus, overly broad or onerous restrictions could be scrutinized under this rule.

Garden Leave Arrangements: These arrangements, where an employee remains employed and compensated during a notice period, may be allowed if they do not impose post-employment restrictions. Careful drafting is essential to ensure they do not act as de facto non-competes.
Pre-Effective Date Breaches: The rule allows for enforcement actions related to breaches of non-compete agreements that occur before the effective date.

Pre-existing Causes of Action: Employers can still enforce non-compete clauses if the cause of action related to the non-compete accrued before the rule’s effective date​

Notification Requirement

Employers are mandated to notify affected workers in writing that their non-compete clauses are no longer enforceable. This notice must be delivered individually by hand, mail, email, or text message before the rule’s effective date. The FTC has provided model notices to facilitate compliance with this requirement.

Ongoing Legal Challenges

The implementation of the Final Rule is not without contention. Since its publication, multiple lawsuits have been filed challenging the FTC’s authority. These legal battles argue that the FTC overstepped its constitutional and statutory authority. They also assert that non-compete agreements traditionally have been governed by state law. These challenges will likely result in prolonged litigation, creating uncertainty about the rule’s final implementation and enforcement​

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

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

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.