Labor and Employment Law Cocktail

Guns-in-Cars Bill Fails By Timothy M. McConville, Esq.

The Virginia General Assembly in its 2011 session again considered, but did not pass, a bill relating to the storage of a firearm in an employee’s vehicle while the vehicle is parked on employer property. In the past, the General Assembly rejected attempts to prohibit employers from barring the possession of firearms on employer property. This year’s attempt to address this issue provided that any employer that does not prohibit the storage of a lawfully possessed and transported firearm by an employee in the employee’s vehicle while the vehicle is parked on the employer’s property is not liable for any civil damages resulting from the storage or use of such firearm by a person other than the employer. The bill failed to get out of committee in the House.

General Assembly Enacts E-Verify Requirement for State Contractors By Timothy M. McConville, Esq.

While the Virginia General Assembly adjourned earlier this year without passing any bills that impose new obligations on all employers, it did enact new code provisions relating to employers that contract with a state agency. The General Assembly passed, and Governor Robert McDonnell signed into law, legislation that requires covered state contractors to register and participate in the federal E-Verify program operated by the U.S. Department of Homeland Security. The E-Verify program is designed to verify the work authorization status of newly hired employees under the Immigration Reform and Control Act of 1986. The new law, which becomes effective on December 1, 2013, requires covered contractors to verify information and work authorization of its newly hired employees performing work pursuant to a covered public contract.

Personal Liability of Supervisors for Retaliation Not Barred by Res Judicata Despite Identical Prior Claims Against Them in their Official Capacity by Lauren Piana, Esq.

The Fourth Circuit recently reversed the dismissal of a §1983 retaliation claim by the U.S. District Court for the Western District of Virginia, and remanded the case for further proceedings, holding that supervisors who allegedly retaliated against plaintiffs under §1983 could be sued in their individual capacities, even though there had been previous administrative hearings which made the same allegations against the supervisors in their official capacities.

4th Circuit to Consider Whether Retaliation Claim Against a Non-Employer Will Stand Under the FLSA by Lauren Piana, Esq.

The Department of Labor has filed an amicus brief on appeal to the Fourth Circuit in support of a reversal of a recent holding from the U.S. District Court for the Eastern District of Virginia, wherein the District Court granted the Defendant’s Motion to Dismiss the Plaintiff’s anti-retaliation claim under the Fair Labor Standards Act (“FLSA”) because the Defendant (SAIC) was never an employer of the Plaintiff. 

 

Non-Compete Restricting Work “Similar” To That Of Employer May Be Unenforceable By Lauren Piana, Esq.

In Daston Corp. v. MiCore Solutions, Inc., et al., Case No. CL-2010-9318, a recent July 30, 2010 holding, Judge Michael F. Devine of the Fairfax County Circuit Court in Fairfax, Virginia, held that a non-compete provision which restricted two former employees from providing services to any client of an employer that were “substantially similar or related” to services provided by the employees during their employment with employer, was overbroad and unenforceable.

Virginia Expands “Mini” COBRA Law, Requires Notices by Small Employers by Stefan H. Black, Esq.

Virginia recently enacted a new law which increases small businesses’ obligation to notify their employees of their right to receive ongoing health insurance coverage. 

FMLA Controls: Consider a Prohibition on Misrepresentations in Connection with the Use of Leave by Timothy M. McConville, Esq.

Ask a human resource professional weary of questionable leave requests under the Family and Medical Leave Act ("FMLA") if the Act fairly balances the interests of employers and employees, and the likely answer is that the scales tip decidedly against the employer.  While this belief is an understandable response to persistent problems with the FMLA, the employer does have options.

Card Check Bill Would Expand Power of Organized Labor by Timothy M. McConville, Esq.

Organized labor’s allies in Congress continue to pursue major legislation to increase organized labor’s ability to unionize private-sector workplaces across the country. The legislation, commonly known as the card check bill, would amend the National Labor Relations Act (“NLRA”), the federal labor relations statute that applies to the vast majority of private-sector employers in the United States. The card check bill (S.560, H.R.1409) would revise the NLRA by adding provisions to ease the unionization of employees and allow an arbitrator to impose a collective bargaining agreement on the employer, union, and employees.

Case Law Update: Company Potentially Liable for Store Manager’s Sexual Harassment by Stefan H. Black, Esq.

On April 1, 2010, the Fourth Circuit Court of Appeals issued its decision in Whitten v. Fred’s Incorporated, Case No. 09-1265 (4^th Cir. Apr. 1, 2010).  The decision suggests the harsh reality that even lower-level managers who are not authorized to hire and fire their subordinates may be deemed “supervisors” for Title VII purposes.  Moreover, the case also emphasizes the importance of promptly and reasonably responding to all sexual harassment complaints.

Regulations Remain on “Leave” by Timothy M. McConville, Esq.

On November 13, 2008, the Accrued Sick and Safe Leave Act (the “Act”) became effective, making the District of Columbia one of two jurisdictions in the United States to require employers to provide paid sick leave. While the effective date of compliance was in November of 2008, the final regulations interpreting the Act still have yet to be adopted. As a result, employers are left with more questions than answers. On February 5, 2010, a second round of proposed regulations were published for public comment. It remains to be seen when the proposed regulations will be finalized. Summary of the Act: