Spying on Your Spouse? Think Twice!

March 19th, 2015 by JBWK

Submitted by Herbert V. Kelly, Jr. Tech-savvy spouses are becoming increasingly aware of spyware programs that can monitor and record smart-phone use to include phone calls, text messages, internet activity and photos. The use of these spyware programs may constitute a violation of Virginia Code § 19.2-62, a criminal statute, which makes it unlawful to […]

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Light Duty Only for On the Job Injuries may be a Thing of the Past

March 5th, 2015 by JBWK

Submitted by Elizabeth S. Olcott Employers should keep an eye out for a ruling from the United States Supreme Court concerning pregnancy in the workplace and the potential for discrimination. In December, the Supreme Court heard oral arguments in Young v. UPS, in which the Plaintiff argued that she was the victim of gender and […]

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The Gift that Isn’t a Gift: Loudoun County Circuit Court rules that ex-fiancée must return $46,646.00 engagement ring

February 6th, 2015 by JBWK

Zsa Zsa Gabor once said, “I never hated a man enough to give him his diamonds back.” Apparently, the defendant in a recent Loudoun County Circuit Court case agrees. With a price tag of $46,646.00, who can blame her? In the case of Peter v. Langley, the Court followed the majority of U.S. jurisdictions and […]

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Worker’s Compensation: Employee Not Entitled to Both TTD and Retirement Benefits

January 21st, 2015 by JBWK

In McKellar v. Northrop Grumman Shipbuilding, Inc., 63 Va. App. 448, 758 S.E.2d 104 (2014), the Court of Appeals of Virginia recently held that a claimant who was injured on the job only two weeks before he was scheduled to retire was not eligible for temporary total disability (“TTD”). The claimant was injured but able […]

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IRS Issues Guidance Expanding Cafeteria Plan Election Change Rules

December 23rd, 2014 by JBWK

The IRS recently issued guidance allowing cafeteria plans to allow election changes mid-year in two circumstances arising as a result of the Affordable Care Act. First, the guidance permits a prospective election change if an employee’s hours drop below 30 hours per week. Second, the guidance permits an employee to revoke a prior election to […]

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EEOC Assault of Employer Wellness Plans

December 23rd, 2014 by JBWK

The EEOC has brought its third lawsuit in recent months challenging an employer sponsored wellness program under the Americans with Disabilities Act and Genetic Information Nondiscrimination Act, asking a federal court in Minnesota to enjoin the implementation of any penalty or cost imposed on employees who decline to participate in the employer’s wellness program. In […]

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Courts Issue Troubling Rulings Involving FMLA Notices

December 23rd, 2014 by JBWK

Two recent cases involving the method for delivering FMLA notices to employees have raised significant questions for employers. In August of this year, a federal Court of Appeals found that an FMLA notice sent to an employee through the U.S. Mail provided only a weak presumption that the employee had actually received the notice, which […]

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Key Retirement Plan Limits for 2015 Announced

December 23rd, 2014 by JBWK

On October 23, 2014, the IRS announced cost-of-living adjustments to the monetary limitations for pension plans and other retirement-related items for tax year 2015. The table below lists the key 2015 limits and corresponding 2014 limits: 2015 2014 401(k)/403(b) elective deferral maximum $ 18,000 $17,500 §415 defined benefit dollar maximum $210,000 $210,000 §415 defined contribution […]

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New Veterans Reporting Rule Issued

December 23rd, 2014 by JBWK

The Veterans’ Employment and Training Service issued a final rule effective October 27, 2014 revising the annual reporting requirements under the Vietnam Era Veteran’s Readjustment and Assistance Act of 1974 (VEVRAA). Federal contractors and subcontractors now must file a new VETS-4212 report, which replaces the existing VETS-100 and VETS-100A beginning in 2015. Significantly, contractors will […]

Marriage Questioned in Guardianship Case

December 23rd, 2014 by JBWK

In Virginia, marriages that are deemed either void or voidable are defective marriages which are legal nullities. Although both void and voidable marriages are improper marriages under the law, there are distinct differences in how they are remedied. A marriage which is void is one which can never be ratified and may be dissolved by […]

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HB 791 and Homeowner’s Associations

December 23rd, 2014 by JBWK

A bill has recently been passed which affects Homeowner’s Associations. The bill, titled HB 791, makes several changes to Virginia Code sections 16.1-106 and 55-513. A majority of these changes benefit Associations, but owners benefit as well. The changes went into effect July 1, 2014. The most notable changes that Associations should be aware of […]

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What is the authority of campus police beyond the campus? It depends on the circumstances.

December 23rd, 2014 by JBWK

Virginia Code § 23-234 (available here: https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+23-234) gives campus police powers on streets “immediately adjacent” to school properties. Some cities and counties have entered into mutual aid agreements with colleges and universities. State law also gives authority to campus police when in close pursuit of an individual but courts have limited this authority to cases […]

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School Teacher Caught Drinking on Camera

December 23rd, 2014 by JBWK

A Federal District Court in Big Stone Gap, Virginia considered whether school officials who captured a middle-school special education teacher drinking alcoholic beverages on a camera hidden in a stuffed animal in his school office were excessively intrusive and unreasonable. The Court observed that the operational realities of a government office may limit or even […]

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DUI in the Driveway: Supreme Court of Virginia affirms DUI conviction involving parked vehicle on private property

December 23rd, 2014 by JBWK

Based on the acronyms “DUI” and “DWI,” it’s easy to understand why most people think that you must be “driving” to be convicted of Driving While Intoxicated in Virginia (a violation of Virginia Code § 18.2-266). In fact, it is a violation of law to “drive or operate” a motor vehicle while intoxicated. “Operating a […]

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IRS Issues Guidance Expanding Cafeteria Plan Election Change Rules

December 23rd, 2014 by JBWK

The IRS recently issued guidance allowing cafeteria plans to allow election changes mid-year in two circumstances arising as a result of the Affordable Care Act. First, the guidance permits a prospective election change if an employee’s hours drop below 30 hours per week. Second, the guidance permits an employee to revoke a prior election to […]

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Don’t Ask Too Much of Your Non-Compete

September 22nd, 2014 by JBWK

http://www.forbes.com/sites/richardtuschman/2013/02/18/employee-non-compete-agreements-one-size-doesnt-fit-all/

EEOC Settles First GINA Lawsuit

May 25th, 2013 by JBWK

The EEOC has reached a settlement in its first-ever GINA lawsuit. Passed in 2008, GINA, the Genetic Information Nondiscrimination Act, prohibits employers from basing employment decisions on genetic factors, including an applicant’s family medical history. The case, which settled for $50,000, involved an employer-mandated physical for a job applicant. The doctor asked questions about the […]

New Virginia Employee Privacy Law

May 24th, 2013 by JBWK

Starting July 1, 2013, employers will not be required to hand out employees’ private information, including their phone numbers, email addresses, shift times, or work schedules, to third parties unless required by law. The Keeping Employees’ Emails and Phones Secure Act, or KEEP Act, mirrors a federal bill that stalled in Congress last year. Although […]

Another Blow to NLRB Recess Appointments

May 23rd, 2013 by JBWK

Although it didn’t make quite as much of a splash as the D.C. Circuit’s ruling, another federal appeals court has invalidated the President’s recess appointments to the National Labor Relations Board. The federal Third Circuit Court of Appeals, sitting in Philadelphia, adopted the same logic as the D.C. Circuit in invalidating the NLRB recess appointments. It ruled […]

OSHA Lets Unions In During Inspections of Non-Unionized Workplaces

May 20th, 2013 by JBWK

In a dramatic shift from its prior interpretations, the federal Occupational Safety and Health Administration has released a new interpretation of its regulations allowing outside union representatives to accompany employees during OSHA inspections. Previously, employees in unionized and non-unionized workplaces could designate a representative to accompany the inspector during “walkaround” inspections. The representative typically had […]

NLRB Posting Rule Struck Down

May 16th, 2013 by JBWK

In what could be its death blow, the federal D.C. Circuit Court of Appeals struck down the National Labor Relations Board’s rule requiring every employer to display posters explaining employees’ union and organizing rights. After two federal trial courts invalidated the NLRB rule, the D.C. Circuit ruled that the Board exceeded its authority in mandating […]

$240 Million Win for Harassment Victims

May 8th, 2013 by JBWK

An EEOC lawsuit has resulted in a staggering $240 million award to 32 employees of a turkey processing facility in Iowa. (Alas, the company is now defunct, so the likelihood of recovery is slim.) The mentally disabled employees, who were paid 41 cents an hour and housed in a rodent-infested bunkhouse, were reportedly “abused, harshly […]

NLRB Mass Chaos, Part III

April 12th, 2013 by JBWK

As if the D.C. Circuit’s decision rendering the National Labor Relations Board ineffective and the pending cases in several other circuits haven’t caused enough confusion, more has been added to the mix. President Obama has nominated three nominees to the NLRB, but the Senate must confirm them. One is a current NLRB member and the two […]

Federal Court Lets “Gender Stereotype” Case Move Forward

April 12th, 2013 by JBWK

A federal court in Richmond ruled last week that an apparently effeminate, but heterosexual, male who was harassed based on “gender stereotypes” could take his case to trial. In refusing to grant the employer summary judgment, the trial court judge held that the complaint alleged harassment based on “failing to comply with accepted gender norms,” […]

Employers Make Changes to Avoid Health Insurance Coverage

April 12th, 2013 by JBWK

Reporting on a widely popular trend, the Wall Street Journal ran a piece last week on small businesses’ strategies to address the health-insurance mandate kicking in next year. The new law requires employers with 50 or more full-time employees to begin offering group health insurance to all full-time employees (those averaging over 30 hours a week). […]

4th Circuit Upholds Arbitration Agreement for FLSA Claim

April 5th, 2013 by JBWK

In a promising opinion for employers, the Fourth Circuit this week upheld an arbitration agreement restricting an independent contractor’s FLSA lawsuit arguing he was an employee. Shuttle Service, an airport taxi company, entered a “franchise agreement” with a driver. The driver was deemed an independent contractor under the agreement. In addition, the agreement contained a […]

Questions Remain in NLRB Recess Appointment Case

April 4th, 2013 by JBWK

Since the D.C. Circuit Court of Appeals January 25 ruling invalidating President Obama’s recess appointments to the National Labor Relations Board, over 70 cases pending in federal appeals courts have cited it in attempts to undo adverse Board decisions. The D.C. Circuit Court opinion, which will affect not only the NLRB but every federal agency, […]

“European” Is Protected Class for National-Origin Discrimination

April 3rd, 2013 by JBWK

A federal case in Alexandria last month raised an interesting issue that’s caused conflict within federal trial courts: What does a reverse-discrimination plaintiff need to prove? The federal trial court, which ended up granting summary judgment to the employer, ruled that “Europeans” occupy a protected class under Title VII’s prohibition on national-origin discrimination. The employer […]

March Madness Office Pool = Jail?

March 22nd, 2013 by JBWK

Most workers don’t think twice about completing their brackets and throwing some money in the pot during the annual March Madness office pool. And they probably shouldn’t. But many employers probably don’t know they could wind up in jail–yes, jail–if they get busted. Gambling is illegal in almost every state, and a March Madness pool […]

The “Everything About Me” Folder

March 21st, 2013 by JBWK

In a startling decision a few weeks ago, a Colorado federal judge sanctioned the EEOC for failing to turn over a virtual “Everything About Me” folder for every plaintiff participating in a sexual harassment class-action case. The EEOC, which filed suit on behalf of a class of female employees allegedly harassed by a manager, initially resisted […]

Getting on Board with BYOD

March 20th, 2013 by JBWK

Soaring personal smartphone and tablet use has created a quandary for some human resources departments: when, and under what circumstances, should the company embrace a bring your own device–or BYOD–approach to connectivity. The benefits are obvious. An employee using his or her personal device saves the company money (by not having to provide a phone, […]

Think Twice About Your Severance Agreement

March 1st, 2013 by JBWK

In a probably-common but always-preventable situation, a former Hallmark executive was forced to return her entire $735,000 severance payment after she disclosed Hallmark’s confidential information under a consulting agreement several years after her non-compete expired. When Hallmark eliminated Janet Murley’s job, VP of Marketing, it offered her a fairly generous severance package: $735,000; health insurance; […]

One Size Does Not Fit All

March 1st, 2013 by JBWK

Employment contracts and non-compete agreements are now standard fare in many professions. They certainly serve a good business purpose, but a misguided or poorly drafted agreement can cause headaches down the line. In a recent Forbes column, employment lawyer Richard Tuschman raised a great question: Should you try to draft a non-compete agreement enforceable in […]

Discrimination is Legal

February 28th, 2013 by JBWK

Mostly. People tend to get fired up about discrimination at work. But they all too often get fired up about the wrong kinds of discrimination. It’s perfectly legal for supervisors, human resources managers, and every other level of employee to discriminate based on legal factors. If your boss loves the Redskins, he can axe all of the […]

Growing Complexity Is Big Win for HR Managers

February 22nd, 2013 by JBWK

What do the ADA, ADAAA, FMLA, Title VII, ADEA, WARN, FLSA, GINA, HIPAA, ERISA, EPA, PPACA, NLRA, and USERRA all have in common (aside from taking up an entire grocery aisle of alphabet soup)? They should be keeping your human resources department very, very busy. In that case, an aptly titled article called Employment Laws Keep […]

Employer Violated NLRA By Firing Employee For Discussing Salaries

February 20th, 2013 by JBWK

A Texas engineering firm landed itself in hot water with the National Labor Relations Board after firing an employee for discussing salaries with her co-workers. The Administrative Law Judge’s decision, which the NLRB affirmed, ruled that the employer’s policy prohibiting employees from discussing wages with their co-workers violated employees’ rights to discuss their working conditions […]

Who Needs A Lawyer?

February 18th, 2013 by JBWK

Most people are willing to pay for basic types of insurance: auto, health, life, disability, etc. They figure that the relatively small upfront cost will be dwarfed by the expected benefit in the event they have an accident, get sick, or die. On the other hand, many small business owners opt to be a jack […]

You Can Take It With You When You Go

February 8th, 2013 by JBWK

Your list of Twitter followers, that is. New York Times editor Jim Roberts, who had a list of more than 75,000 Twitter followers, announced he was taking them with him upon his early-retirement buyout. While he’ll likely have to change his handle to remove the NYT reference, he’s apparently free to keep his followers. CBS […]

Think Employment Law Doesn’t Apply to You? Think Again

February 7th, 2013 by JBWK

That’s the title of a short article from Inc. magazine, but well worth the two minutes it takes to read. It highlights the often-confusing framework of federal employment laws that can trap unwary employers, even small ones. Here’s the lead: Quick quiz: You have 35 employees. One of your junior analysts is pregnant. Do you have […]

Federal Court Dismisses EEOC’s Credit-Check Discrimination Case

February 6th, 2013 by JBWK

An Ohio federal court dealt the EEOC a major blow by dismissing its case against Kaplan Higher Education last week. The case had been the most notable one so far advancing the EEOC’s theory of “disparate impact” discrimination based on Kaplan’s use of credit reports in hiring. The court found largely technical problems with the […]

A Parting Gift to Remember

February 1st, 2013 by JBWK

When Minnesota grocer Joe Lueken wanted to retire at the end of 2012, he apparently had no trouble finding a succession plan: give away the company to the employees. For free. Leuken, who ran a local grocery store, created an employee stock ownership plan, or ESOP. Typically, employees have to contribute money to an ESOP […]

EEOC Claims Steady, Litigation Slows

January 31st, 2013 by JBWK

The EEOC released claims and litigation data for its most recent year. The result: discriminations charges trended slightly lower, while litigation nose-dived. The agency fielded nearly 100,000 complaints for retaliation and discrimination. The number was down slightly from 2011. However, the EEOC only filed 122 lawsuits during the same time, less than haf the 2011 […]

NLRB Challenges Begin

January 31st, 2013 by JBWK

After the D.C. Circuit Court of Appeals’ surprising ruling last week, several aggrieved employers have argued that NLRB decisions against them are invalid. At least two employers cited the D.C. Circuit case this week in filings with other federal appeals courts. As it’s been over a year since the NLRB started issuing arguably invalid decisions, […]

Obama NLRB Appointments Unconstitutional

January 26th, 2013 by JBWK

In a surprisising opinion released Friday, the federal D.C. Circuit Court of Appeals ruled that three of President Obama’s appointments to the National Labor Relations Board violated the Constitution. The appeals court held that Obama made the recess appointments when Congress wasn’t actually in “recess.” The ruling creates a potentially messy situation, effectively invalidating every […]

Fired Teacher Sues Claiming Fear of Kids

January 17th, 2013 by JBWK

In other Ohio news this week, a fired teacher has sued her former school district for violating the Americans with Disabilities Act based on her fear of children. The teacher, who taught high-school Spanish and French, was transferred to a middle school after the school district revamped the curriculum. She claimed the transfer, and general […]

Veganism as Religion?

January 17th, 2013 by JBWK

It’s possible, according to a federal court in Ohio. A nurse in Ohio claimed her sincerely held belief in veganism justified her refusal of a flu vaccine her employer, a hospital, required of all employees. She was fired after refusing the vaccine, which contains animal by-product. The lawsuit claims her firing violated Title VII based […]

IRS Mileage Rate Rises in 2013

January 11th, 2013 by JBWK

The IRS has slightly raised its reimbursement rate for mileage–including employees’ mileage in many instances. The new rate is 56.5 cents per mile.

14-Year Sexual Harassment Case Ends

January 11th, 2013 by JBWK

In what was surely a nightmare for everyone involved, the nation’s largest Burger King franchisee has settled a 14-year-long lawsuit brought by the EEOC alleging a pattern of sexual harassment throughout its 572 stores. The case, which began in 1998, expanded to include 90,000 current and former employees. It then got reduced to about 500 […]

High-Tech Spying to Catch Employee Misconduct

January 11th, 2013 by JBWK

A recent NPR article highlights a growing trend in employee surveillance: corporate investigators. Repurposing counterterrorism software, these high-tech investigators are now focusing their sights on corporate workplaces, using pattern and behavior analysis to track down insider trading, embezzlement, or other illicit conduct. The techniques, which may track employees’ emails, phone calls, and other electronic activity, rely […]

Top 5 Posts for 2012

January 4th, 2013 by JBWK

Thanks to each of you for continuing to make Virginia Employment & Benefits Law a success in 2012! Here’s a recap of the 5 most viewed posts during 2012: York Man Fired for Pulling Gun on Robber New Fair Credit Reporting Act Form (odd choice, but hey) Talking Politics at Work A Friendly Office Party Reminder […]