Taking Care Of Business 2012


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Overview of employment law for community associations in Virginia

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Taking Care Of Business 2012

  1. 1. * Employer and Employee Rights and Responsibilities
  2. 2. * Susan Salen, Esq., Rees Broome PC* Thomas Willis, PCAM, Vice President Zalco Realty, Inc., AAMC Association Bridge, LLC *
  3. 3. *Boiling down a mountain of employment law details1. Virginia Minimum Wage Act2. Equal Pay Act3. Occupational Safety & Health Act (or Administration)4. Family Medical Leave Act5. Major Discrimination Laws6. Hiring Process: Applications, Interviews & Testing7. Immigration Reform & Control Act of 1986 (IRCA)8. Drug & Alcohol Testing9. Monitoring Employee Communications10.Noncompete Agreements11.Whew!
  4. 4. *Boiling down a mountain of employment law detailsOur methodology for today:1. What (is this law/issue all about)?2. Who (really has to care about it)?3. Where (are the hot buttons & smoking guns)?4. How (can I find even more information to further make my brain cramp with data)? Hint – We killed a lot of trees for you.
  5. 5. * Virginia Laws Affecting Wages
  6. 6. The Act in a NutshellOften confused with Virginia Wage Payment Law, theVirginia Minimum Wage Act sets minimum rate of pay that employees must be paid. * Virginia Minimum Wage Act
  7. 7. To Whom Does the Act Apply?* “Employer” is any individual, partnership, association, corporation or any person acting directly or indirectly in the interest of an employer.* Exclusions relevant here: any person whose employment is covered by the Fair Labor Standards Act, true volunteer work, caddies on golf courses, person paid for piece work. * Virginia Minimum Wage Act
  8. 8. Hot Buttons & Smoking Guns* Minimum Wage is the rate not less than the federal minimum wage or training wage as prescribed by the Fair Labor Standards Act.* Current minimum wage is $7.25 per hour.* Penalties for violation of Minimum Wage Act is fine of not less than $10.00 fine nor more than $200.00.* Note – violations of Virginia Minimum Wage Act do not create a private right of action for wrongful discharge.* Minimum wage law does not govern payment of accrued vacation upon termination of employment. * Virginia Minimum Wage Act
  9. 9. The Act in a Nutshell*Act regulates payment of wages, time, medium, deductions, forfeitures & penalties for violations. *Virginia Wage Payment Act
  10. 10. To Whom Does the Act Apply?“Employer” is any individual, partnership, association, corporation or any personacting directly or indirectly in the interest of an employer. (YOU) * Virginia Wage Payment Act
  11. 11. Hot Buttons & Smoking Guns* Must establish regular pay periods and rates of pay at least every 2 weeks or 2x per month. (Except executive personnel paid on salary basis may be paid 1x per month).* Lawful money by check, electronic funds into designated financial account, or by debit card (provided employees hired prior to January 1, 2010 must consent).* No deductions or withholding (except taxes) without signed written authorization.* Upon request must provide written statement of gross wages and amount and purpose of any deductions.* Enforcement through Department of Labor and Industry.* Strict requirements for assignment of wages.* Term “wages” does not include fringe benefits.* There is no private cause of action for enforcement, but a violation of the act may be grounds for wrongful termination claim. * Virginia Wage Payment Act
  12. 12. *Equal Pay Act
  13. 13. The Act in a Nutshell*Amendment to the Fair Labor Standards Act.*Prohibits discrimination on basis of sex by paying employees of one sex less than employees of opposite sex for work performed under similar working conditions on jobs that require equal skill, effort and responsibility.*Enforcement of Equal Pay Act delegated to EEOC. * Equal Pay Act
  14. 14. To Whom Does the Act Apply?* Virtually all employers are covered in 1of 2 ways:1. Enterprise Coverage * Employment relationship * Two or more employees * Engaged in interstate commerce * Annual gross volume of sales or business done of at least $500,000.2. Individual Coverage * Employment relationship; and * Engaged in * interstate commerce, or * Work in activities closely related and directly essential to production of goods in commerce. *Equal Pay Act
  15. 15. Hot Buttons & Smoking Guns* Difficult to prove* Very rarely used* Paycheck Fairness Act – on the horizon * Proposed legislation that will amend EPA as follows: 1. Reduce employer’s defenses under EPA; 2. Increase damages, including punitive damages, that may be awarded for EPA claims; 3. Expand the list of protected activities under the FLSA anti-retaliation provisions. *Equal Pay Act
  16. 16. Gory Details* What an employee must prove: 1. Different wages paid to employees of the opposite sex; 2. The employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; 3. The jobs are performed under similar working conditions. *Equal Pay Act
  17. 17. Even More Gory Details*Employer’s response *Seniority system *Merit system *System which measures earnings by quantity or quality of production *Any factor other than sex *Equal Pay Act
  18. 18. *Occupational Safety & Health Act (or Administration) OSHA
  19. 19. The Act in a NutshellRegulates safety of workplaces through a mixture of cooperation and criminal enforcement * OSHA
  20. 20. To Whom Does the Act Apply?*YOU* Recordkeeping requirements to employers with 10 or more employees * OSHA
  21. 21. Hot Buttons & Smoking Guns* When to cooperate* When you must keep a record of an injury* Should you ask for an inspection *OSHA
  22. 22. *Family Medical Leave Act
  23. 23. The Act in a Nutshell*Covered Employers must provide Eligible Employees with job-protected leave for birth of child, placement of a child for adoption or foster care, serious health condition of employee, employee’s spouse, parent or child and for exigencies for family members of military personnel. *FMLA
  24. 24. To Whom Does the Act Apply?* Organizations with 50 or more employees within a 75-mile radius (joint employment tests may result in employer with less than 50 employees being deemed a “Covered Employer”)* Covered employee worked at least 12 months & 1,250 hours* Covered Military Member –an employee’s spouse, son, daughter or parent called to active duty status.* Covered Servicemember – Current member of Armed Forces (includes National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy for serious illness or injury incurred in line of active duty. *FMLA
  25. 25. Hot Buttons & Smoking Guns*Military leave.*When do you have to designate leave?*What can you ask employee to provide?*What gets you into trouble?*Is she a key employee?*Scary case law…. *FMLA
  26. 26. The Process*Am I a covered employer?*Is she a covered employee?*Is the purpose of leave FMLA qualifying event?*Must I grant FMLA leave?*Should I request a certification form?*How do I administer leave (intermittent?)? *FMLA
  27. 27. *Major Discrimination Laws - Title VII, Americans With Disabilities Act & Age Discrimination in Employment Act
  28. 28. The Laws in a Nutshell* Title VII: Prohibits discrimination in employment decisions on the basis of race, color, religion, sex and national origin.* ADA: Prohibits discrimination against an individual on the basis of disability in regard to job application procedures, the hiring, advancement or discharge of employees, terms & conditions of employment.* Age Discrimination in Employment Act: Prohibits an employer from failing or refusing to hire or discriminating against an employee because of an individual’s age. * Major Discrimination Laws
  29. 29. To Whom Do the Laws Apply?*15 employees for Title VII & ADA*20 employees for ADEA * Major Discrimination Laws
  30. 30. Hot Buttons & Smoking Guns* ADAAA of 2008 violations targeted by EEOC for enforcement * The rules have changed – the laws protect more people* ADEA of import in reductions in force* Title VII - Gender confusion is now protected * Major Discrimination Laws
  31. 31. *Hiring Process: Applications, Interviews & Testing
  32. 32. The Issue in a Nutshell*Take great care in preparing for the process of hiring. This is where plenty of Susan’s clients get stuck writing $15,000 checks. * The Hiring Process
  33. 33. To Whom Does This Apply?*Everyone involved in the hiring process – INCLUDING BOARD MEMBERS if they participate. * The Hiring Process
  34. 34. Hot Buttons & Smoking Guns* Application Don’ts – Don’t ask about disabilities, arrests or criminal convictions, marital status, children, ethic group or religious affiliations* Interviews Don’ts – Don’t ask about the stuff above, no selective performance testing, no pre-offer medical exams * The Hiring Process
  35. 35. *Immigration Reform &Control Act of 1986 (IRCA)
  36. 36. The Act in a Nutshell* Mandates that US Employers verify the employment eligibility of all newly hired employees* It is illegal to hire or recruit for a fee, a foreign national for employment knowing the foreign national is not authorized to work in the US* Civil and criminal penalties for violations * IRCA
  37. 37. To Whom Do the Laws Apply? YOU * IRCA
  38. 38. Hot Buttons & Smoking Guns* Must re-verify right to work if original documentation provided has expiration date* Employee chooses documentation to provide* E-Verify (risks & rewards)* No match letter* Anti-discrimination protections *IRCA
  39. 39. *Drug & Alcohol Testing
  40. 40. The Issue in a Nutshell*Virginia has no general statute or regulation requiring or regulating drug testing in either employment or pre- employment *Drug & Alcohol Testing
  41. 41. To Whom Does the Issue Apply*Where employees operate motor vehicles or have hazardous job duties*Federal & State contractors *Drug & Alcohol Testing
  42. 42. Hot Buttons & Smoking (no pun intended) Guns* Drug testing only when written policy is in place & consistently applied* As a condition of employment only when there is a business necessity* Determination of existence of grounds for reasonable suspicion testing* Virginia law requires employers to pay for drug & alcohol testing * Drug and Alcohol Testing
  43. 43. *Monitoring Employee Communications
  44. 44. The Issue in a Nutshell*Monitoring of employer-provided electronic technology and internet access is permissible, if employees are on notice that there is no expectation of privacy when using employer systems, and if there is a legitimate reason to monitor * Monitoring Employee Communications
  45. 45. To Whom Do the Issues Apply? YOU * Monitoring Employee Communications
  46. 46. Hot Buttons & Smoking Guns* Why? * Protection against direct and vicarious liability for employee misconduct (Sexual Harassment and other Unlawful Harassment) * Protect against employees stealing your stuff or clients * Monitor social media conducted for employer* What are risks? * Violation of Federal Wiretapping laws * Violation of data privacy and security laws * Violation of employment discrimination laws * Violation of National Labor Relations Act * Monitoring Employee Communications
  47. 47. *Non-Compete Agreements
  48. 48. The Issue in a Nutshell*Is a covenant not to compete enforceable?*If so, how? * Non-Compete Agreements
  49. 49. To Whom Do the Issues Apply? YOU? * Non-Compete Agreements
  50. 50. Hot Buttons & Smoking Guns* Enforceable if: * No more restrictive than necessary to protect legitimate business interest (time, place, scope) * Not unduly burdensome on employee’s legitimate effort to earn livelihood (time, place, scope) * Consistent with sound public policy (purpose can’t be to stop employee from working in the industry)* Virginia law disfavors non-competes * Non-Compete Agreements