The document provides an overview of key employment laws and responsibilities for employers and employees. It discusses several major federal and state laws, including the Virginia Minimum Wage Act, Equal Pay Act, Occupational Safety and Health Act, Family Medical Leave Act, discrimination laws, hiring laws, Immigration Reform and Control Act, drug and alcohol testing laws, monitoring employee communications, and non-compete agreements. For each topic, it outlines what the law covers, who it applies to, and important considerations or "hot buttons" for compliance. The document is intended to help human resources professionals and employers understand and navigate complex employment compliance issues.

1. *
Employer and Employee Rights and
Responsibilities

2. * Susan Salen, Esq., Rees Broome PC
* Thomas Willis, PCAM, Vice President
Zalco Realty, Inc., AAMC
Association Bridge, LLC
*

3. *Boiling down a mountain of
employment law details
1. Virginia Minimum Wage Act
2. Equal Pay Act
3. Occupational Safety & Health Act (or Administration)
4. Family Medical Leave Act
5. Major Discrimination Laws
6. Hiring Process: Applications, Interviews & Testing
7. Immigration Reform & Control Act of 1986 (IRCA)
8. Drug & Alcohol Testing
9. Monitoring Employee Communications
10.Noncompete Agreements
11.Whew!

4. *Boiling down a mountain of
employment law details
Our 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. * Virginia Laws Affecting Wages

6. The Act in a Nutshell
Often confused with Virginia Wage Payment Law, the
Virginia Minimum Wage Act sets minimum rate of pay
that employees must be paid.
* Virginia Minimum Wage Act

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. 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. The Act in a
Nutshell
*Act regulates
payment of wages,
time, medium,
deductions,
forfeitures &
penalties for
violations.
*Virginia Wage Payment
Act

10. 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.
(YOU)
* Virginia Wage Payment Act

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. *Equal Pay Act

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. 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. 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. 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. 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. *Occupational Safety &
Health Act (or
Administration)
OSHA

19. The Act in a Nutshell
Regulates safety of workplaces through a mixture of
cooperation and criminal enforcement
* OSHA

20. To Whom Does the Act Apply?
*YOU
* Recordkeeping requirements to employers with 10 or
more employees
* OSHA

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. *Family Medical Leave Act

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. 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. 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. 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. *Major Discrimination Laws -
Title VII, Americans With
Disabilities Act & Age
Discrimination in
Employment Act

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. To Whom Do the Laws Apply?
*15 employees for Title VII & ADA
*20 employees for ADEA
* Major Discrimination Laws

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. *Hiring Process: Applications,
Interviews & Testing

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. To Whom Does This Apply?
*Everyone involved in the hiring
process – INCLUDING BOARD MEMBERS
if they participate.
* The Hiring Process

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. *Immigration Reform &
Control Act of 1986 (IRCA)

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. To Whom Do the Laws Apply?
YOU
* IRCA

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. *Drug & Alcohol Testing

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. To Whom Does the Issue Apply
*Where employees operate motor vehicles
or have hazardous job duties
*Federal & State contractors
*Drug & Alcohol Testing

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. *Monitoring Employee
Communications

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. To Whom Do the Issues Apply?
YOU
* Monitoring Employee
Communications

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. *Non-Compete Agreements

48. The Issue in a Nutshell
*Is a covenant not to compete enforceable?
*If so, how?
* Non-Compete Agreements

49. To Whom Do the Issues Apply?
YOU?
* Non-Compete Agreements

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