In an effort to promote hiring and promotion of individuals with disabilities in the federal government, the U.S. Equal Employment Opportunity Commission (EEOC) has issued a new question-and-answer guide, which can be found here.
Here are some web links of use to Virginia employment lawyers and employers:
Virginia Department of Labor & Industry (DOLI). The DOLI provides information about labor laws that affect Virginia employers, including the federal Fair Labor Standards Act (FLSA), and Virginia laws relating to Wage Payment, Child Labor, Minimum Wage, and Right-to-Work.
Virginia Department of Taxation. The Department of Taxation provides tax forms, information about employer withholding and other business taxes, and on-line services relating to business registration, tax filing, and tax payments.
Virginia Employment Commission (VEC). In addition to providing employment assistance to job seekers and allowing employers to post jobs on-line, the VEC provides labor-market information and administers programs relating to unemployment insurance and compensation, including publication of an employer's handbook to the Virginia Unemployment Compensation Act (check the VEC's website for updates to this 2007 version).
Virginia New Hire Reporting Center. As indicated on this site, "Federal and State law requires employers to report newly hired and re-hired employees in Virginia to the Virginia New Hire Reporting Center. This site will provide you with information about reporting new hires including reporting online and other reporting options."
Virginia State Corporation Commission (SCC). Among other services provided by the SCC, of particular note to new employers is a Business Registration Guide, which provides step-by-step guidance for employers to comply with registration, filing, and tax laws.
Virginia Workers' Compensation Commission (VWCC). The VWCC administers the Virginia Workers' Compensation Act. Its website provides information, including an informational guide that explains your obligations as an employer under the Workers' Compensation Act.
Federal contractors in Virginia, the District of Columbia and nationwide should check out the Office of Federal Contract Compliance Programs' (OFCCP) new website, which aims to make it easier for employers to find and use information relating to compliance with OFCCP regulations. As readers of this blog know, OFCCP has responsibility for various programs relating to anti-discrimination and affirmative action obligations of federal contractors.
As part of The Employment Law Chronicle's ongoing effort to chronicle workplace laws affecting employers in Virginia and the District of Columbia, please take note that Virginia Code Section 40.1-11.1, entitled "Employment of illegal immigrants," sanctions referral or employment of individuals who cannot document their eligibility to work in the United States, providing in part:
It shall be unlawful and constitute a Class 1 misdemeanor for any employer or any person acting as an agent for an employer, or any person who, for a fee, refers an alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States for employment to an employer, or an officer, agent or representative of a labor organization to knowingly employ, continue to employ, or refer for employment any alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States.
While the law does not require an employer to use an employment application, an employer who chooses to use an employment application must ask prospective employees if they are legally eligible to work in the United States.
To view the complete text of this statute, follow links to the Code of Virginia at this site.
In a key ruling for employers who need to protect the confidentiality of information submitted to the Equal Employment Opportunity Commission (EEOC) in connection with charges filed by employees, the U.S. Court of Appeals for the District of Columbia Circuit reversed and remanded this case, instructing the district court to issue an injunction prohibiting the EEOC from disclosing an employer's confidential information to plaintiffs or other third parties without notifying the employer in advance of the disclosure.
At issue were two "irreconcilable" EEOC policies. The EEOC's Compliance Manual allowed the EEOC to disclose confidential information to plaintiffs or other third parties without notifying the submitter in advance of the disclosure. By contrast, the EEOC's regulations implementing the Freedom of Information Act (FOIA) prohibited the EEOC from disclosing confidential information to third parties without notifying the submitter before the disclosure.
The Court held as follows:
[W]e remand this case to the district court to enjoin the Commission from disclosing Venetian’s confidential information without adhering to the notice and other requirements of the agency’s regulations implementing the FOIA. The EEOC's policy of permitting disclosure of confidential information without notifying the submitter is "arbitrary and capricious" in violation of the Administrative Procedures Act (APA) because the discloser without notification policy is inconsistent with the EEOC's own policies under the Freedom of Information Act (FOIA), which require notification to a submitter before any confidential or other information is disclosed. If and when the EEOC provides an adequate justification for the conflict between its policies, the injunction may be dissolved.
The practical upshot is that unless the EEOC provides a coherent rationale reconciling its inconsistent pre-disclosure notification policies, the EEOC must notify the employer in this case before disclosing the employer's confidential information. Going forward, in cases where the EEOC cannot provide a coherent rationale to deviate from the pre-disclosure notification requirements in its FOIA regulations, this decision provides support for the argument that an employer (or other submitter of confidential information to the EEOC) must be notified before the EEOC releases such information to a plaintiff or other third party.
From the perspective of this writer, who represents employers before the EEOC and has handled FOIA matters involving various federal agencies, this outcome seems fair and balanced.
The ADA requires covered employers to make a reasonable accommodation to the known disability of a qualified applicant or employee if the accommodation would not impose an "undue hardship" on the employer's business.
In general, undue hardship means an action that requires significant difficulty or expense, when considered in light of these factors:
(i) the nature and cost of the accommodation needed under the ADA;(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered
entity.
The ADA protects employees or applicants who satisfy the test of being a "qualified individual with a disability," which means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. If an employee or applicant satisfies the definition of being a qualified individual with a disability, then the employer must provide a reasonable accommodation unless doing so would impose an undue hardship on the employer's operations.
Continue reading "Who is Covered by the Americans With Disabilities Act (ADA)?" »
As a courtesy to lawyers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on public sites.
The ADA prohibits employment discrimination against "a qualified individual with a disability" because of the disability in regard to job application procedures, hiring, promotion, discharge, compensation, training, or other terms, conditions, and privileges of employment. The ADA also governs medical examinations and disability-related inquiries.
Covered Employers. The ADA applies to education instutitions, state, local, and private-sector employers with 15 or more employees; employment agencies; labor organizations; and joint labor management committees. It does not apply to the federal government or private membership clubs (other than a labor organization). Coverage of multinational employers depends on a variety of factors, as explained here by the Equal Employment Opportunity Commission.
As a courtesy to lawyers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on public sites.
The Virginia Human Rights Act prohibits discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability.
In two recent decisions, the U.S. Court of Appeals for the Fourth Circuit focused on relevant standards of review for two issues of interest to Virginia immigration and employment lawyers:
In Woods v. Prudential Ins. Co., No. 07-1580 (June 11, 2008), the Fourth Circuit concluded that the trial court erroneously applied the "abuse-of-discretion" standard of review to plaintiff's ERISA claim instead of the more rigorous "de novo" standard of review to determine whether the plan administrator properly denied plaintiff's benefit claim.In Teshome-Gebreegziabher v. Mukasey, No. 08-1060 (June 16, 2008), the Fourth Circuit clarified that the "clear and convincing" standard of review applies to an immigrant's motion to stay deportation.
The U.S. Department of Labor's, Office of Federal Contract Compliance Programs (OFCCP) issued a press release announcing a $1.5 million settlement against a federal contractor accused of discriminating against women and certain minority men in hiring procedures. OFCCP determined that applicant testing and screening procedures used by a Texas company, Vought Aircraft Industries, disproportionately eliminated African American men, Asian men, and all women from certain beginner jobs in aircraft assembly.
This case serves as a reminder to federal contractors and subcontractors in Virginia, the District of Columbia, and nationwide that it is important to screen your screening tools to eliminate the potential for claims of sex, gender or other forms of employment discrimination.
The Virginian-Pilot reports that a former employee filed suit in Norfolk Circuit Court seeking $65 million against BJ's Wholesale Club for failing to warn or take precautions to protect the former employee from her estranged husband who came to the workpace, killed the employee's sister, and shot the employee. According to the article, the lawsuit alleges that on the day of the shooting, the employee's manager at BJ's received several phone calls and a visit from the husband threatening the employee, but the Company did not warn or protect the employee.
While the outcome of this case remains to be seen, an important take-away for employers is that it is critically important to develop, implement, and communicate to employees specific procedures to respond to workplace threats.
