The Employment Law Chronicle

OFCCP's Redesigned Website

2008-07-04T17:51:14Z

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.

Virginia Law on Employment of Illegal Immigrants, Va. Code § 40.1-11.1

2008-07-03T16:00:00Z

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.

Venetian Casino Resort, L.L.C. v. EEOC: D.C. Circuit Orders Injunction Against EEOC Concerning Disclosure of Employer's Confidential Information to Plaintiffs

2008-07-01T13:14:46Z

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.

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What Are An Employer's Obligations Under The Americans With Disabilities Act (ADA)?

2008-06-27T13:32:32Z

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.

Who is Covered by the Americans With Disabilities Act (ADA)?

2008-06-26T13:23:55Z

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.

]]> Definition of Disability. "Disability" means someone who:

1. Has a physical or mental impairment that substantially limits one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.

Impairment. According to the Equal Employment Opportunity Commission (EEOC), the term physical impairment means a physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting certain body systems. The term mental impairment includes pyschological disorders, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Major Life Activity. The EEOC defines major life activity as those basic activities that an average person can perform with little to no trouble. Some examples listed by the EEOC include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifing, reaching, thinking, concentrating, and interacting with others.

Substantially Limits. According to the EEOC, "substantially limits" means: (1) Unable to perform a major life activity that the average person in the general population can perform, or (2) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to ... the average person in the general population.

Reasonable Accommodation. The ADA defines "reasonable accommodation" as including, but not limited to, making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, parttime or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Essential Job Functions. The ADA states that the employer's judgment shall be given consideration in determining the essential functions of a job. If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

Americans with Disabilities Act, 42 U.S.C. §§ 12101-12113

2008-06-26T13:14:55Z

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.

Virginia Human Rights Act, Virginia Code Chapter 39, §§ 2.2-3900 et. seq.

2008-06-25T23:01:16Z

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.

4th Circuit Court of Appeals, Employment Law Decisions

2008-06-24T17:46:02Z

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.

OFCCP Investigation Into Discriminatory Testing & Screening Procedures Leads To $1.5 Million Settlement Against A Federal Contractor

2008-05-22T18:15:43Z

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.

Virginia Circuit Court: Phillips v. BJ's Wholesale Club Reminds Employers of the Importance of Workplace Safety Policies

2008-05-21T16:48:36Z

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.

DOL Adds "Elaws" for Employer Recordkeeping, Reporting and Notice Obligations

2008-05-19T14:43:37Z

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.

EEOC Best Practices: How to Test Employees Without Violating Discrimination Laws

2008-05-15T16:39:31Z

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.

]]> According to the EEOC's fact sheet , employers should consider the following:

Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.

Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.

If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.

To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.

Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.

For more information, contact:
Lori J. Searcy
Searcy Law Offices, LLC
1800 Diagonal Road, Suite 600
Alexandria, VA 22314
Ph: 703-644-4122
Email: info@searcy-law.com

Federal District Court: FLSA Collective Action Against Smithfield Foods Inc.

2008-05-15T15:30:38Z

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.

District of Columbia Human Rights Act (DCHRA), D.C. Code §§ 2.1401.01 et seq.

2008-05-06T16:07:28Z

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 government sites.

The DC Human Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin. sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation.

Family Medical Leave Act of 1993 (FMLA): 29 U.S.C. §§ 2601 et. seq.

2008-05-05T21:04:56Z

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 government sites.

The FMLA permits eligible employees of covered employers to take up to 12 weeks of job-protected, unpaid leave during any 12-month period. The National Defense Authorization Act (NDAA) for FY 2008 amends the FMLA to provide for additional categories of job-protected leave relating to members of the military.

]]> In general, eligible employees are entitled to return to work and maintain their group health benefits. Leave may be taken for the following reasons:

1. birth and care of the employee's child;

2. placement of a child with the employee for adoption or foster care;

3. care by the employee of a child, spouse or parent who has a serious health condition; or

4. care of the employee's own serious health condition

On January 28, 2008, President Bush signed the National Defense Authorization Act (NDAA) for FY 2008 into law, which amended the FMLA to provide for additional categories of job-protected leave relating to members of the military as follows:

An eligible "spouse, son, daughter, parent, or next of kin” may take up to 26 weeks of leave to care for a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.

FMLA leave may also be taken by eligible employees for "any qualified exigency...arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” As of the date of this posting, the Department of Labor had not issued regulations defining "qualified exigency," but DOL encourages employers to grant this new category of leave prior to issuance of the such regulations.

For purposes of the FMLA, the term covered employer means public agencies, including state, local and federal employers, local education agencies (schools), and most private-sector employers who employed 50 or more employees in 20 or more work weeks of the current or preceding calendar year.

For purposes of the FMLA, the term eligible employee means an employee of a covered employer who meets the following criteria:

1. has been employed by the employer for at least 12 months;
2. has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the leave; and;
3. is employed at a worksite where the employer employes 50 or more employees withn a 75-mile radius of the worksite.