Employment Law Chronicle for Virginia & the District of Columbia

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.

As a courtesy to employers and employment lawyers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on government sites.

The Displaced Workers Protection Act of 1994, as amended by the Way to Work Amendment Act of 2006, requires certain new contractors who employ 25 or more people to retain eligible displaced food service, janitorial, building maintenance, non-professional health care, and security workers who performed similar services under a prior contract.

The full text of the DWPA, as amended, is found in Title 32 (Labor) of the D.C. Code.

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.

Increasing its on-line advisory tools, the U.S. Department of Labor launched a new "elaws" tool to help employers comply with federal labor laws by determining the recordkeeping, reporting and notice requirements that apply to them.

What are elaws? According to DOL, "The elaws advisors are free, Web-based tools designed to help employers and workers understand the department's major employment laws. By asking a series of questions, the advisors simulate a conversation with a Department of Labor expert and guide users to customized information explaining the requirements of each law. By asking questions such as size of business, location and type of industry through multiple choice or yes and no questions, the FirstStep Employment Law Overview Advisor determines which federal employment laws apply to each user. The advisor then provides information from the Labor Department's Employment Law Guide on the basic provisions of these laws."

Elaws are available at www.dol.gov/elaws/firststep.

Employers in Virginia, the District of Columbia and nationwide need to ensure that testing and selection procedures used to screen job applicants or existing employees for advancement or other opportunities do not have a discriminatory impact on the basis of race, sex, age, disability or other protected category. In recent years, testing and selection criteria have been a prime target of the Equal Employment Opportunity Commission's (EEOC) enforcement efforts. For example, in November 2006, the Eighth Circuit affirmed a $3 million judgment in EEOC v. Dial Corp resulting from a strength test that appeared to have excluded women from entry-level jobs. In 2007, Ford Motor Company, two of its affiliates, and the UAW entered into a $1.6 million settlement stemming from cognitive apprenticeship tests that appeared to have excluded African Americans. That settlement came on the heels of an $8.5 million settlement in a related case.

In the wake of these multi-million dollar judgments and settlements, the EEOC issued a fact sheet to assist employers in understanding how to avoid employment discrimination claims based on tests and other selection criteria.

Continue reading " EEOC Best Practices: How to Test Employees Without Violating Discrimination Laws " »

According to the Richmond Times-Dispatch, approximately 230 workers have filed a federal lawsuit against Smithfield Foods Inc. under the Fair Labor Standards Act alleging that the Company failed to pay 30-45 minutes of daily overtime for donning and doffing of protective gear, walking to and from the production line, and working after the day officially ends.