Category Archives: Employment

Injured on the Job? Here’s What You Need To Know

What to do after an accident at work: There are few things you should do to protect your legal rights to compensation. If a person is injured at work the person is probably entitled to compensation. By state Law, every employer is required to provide worker’s compensation insurance coverage for it’s employees. Employers are required to provide a reasonably safe work environment for their employees. When the employers don’t provide a healthy and safe work environment employees are injured as a result. Even when the employer had made an effort to keep the work place safe employees can still be injured on the job. Injuries might include broken bones, occupational illnesses or even psychological related injuries.
It is important to know the workers rights when they are injured on the job and how to protect them. First most important thing to do after you are injured at work is important to report the injury to the employer this is the best way to protect your legal rights. Report the injury within a certain period of time as required by most states. Which means that the injury should be reported immediately or within the same day that it happened. Next step would be is to file a claim with your state workers compensation court which provides a formal notice of your injury to your employer, court and your employer’s insurance company.

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Layoffs & Reductions-in-Force: Avoiding the Legal Pitfalls & Perils

Unfortunately, in today’s economy, plant closures and downsizings have become all too common. Treating employees with fairness and dignity are always necessary and good business practices. Fairness is also key to minimizing the risk of post-layoff employment discrimination lawsuits, which can end up costing the business more than was saved from the layoff.

Because an ounce of prevention is worth a pound of cure, here are some tips for employers to consider before restructuring the company’s workforce:

1. Document the Business Purpose for the Layoff: The key phrase here is “business purpose.” Layoffs driven by a well-defined, documented business purpose are less likely to violate employment discrimination and other laws than layoffs broadly aimed at lowering payroll expenses.

2. Retain Legal Counsel: One size does not fit all. Employers considering layoffs or other workforce restructurings should engage legal counsel early in the process. Reductions-in-force require knowledge of many cross-sections of employment law. For example, among the legal issues that Searcy Law Offices addresses in workforce restructurings are:

Employee Contract Obligations

Collective Bargaining Obligations

Employee Handbook & Company Policy Obligations

Employee Benefit Rights & Employer Obligations

Employee Leave Rights & Employer Obligations

WARN Act Notices

Hiring and Promotion Freezes

Employee Severance & Separation Benefits

Employee Releases

Standardized Exit Procedures & Interviews

Protection of Company Property, Trade Secrets & Confidential Information

Legal Analysis of Layoff List (assess risk of potential employment discrimination claims based on race, color, sex, religion, national origin, age, disability, and other protected classes).

3. Identify Neutral Company Decisionmakers. Individuals involved in the decision-making process should be neutral, objective, and unbiased. It may help to ensure that diverse groups are represented in the decision-making process. Neutrality minimizes the risk of employment discrimination lawsuits. In addition, if an employee does sue the company, the decisionmakers will be the company’s key witnesses and first line of defense.
4. Identify Objective Selection Criteria: To ensure fairness, let the business purpose guide the selection criteria, which should be objective and free from bias. Once a preliminary list of individuals selected for layoff is developed, the list may need to be adjusted to cure problems that existed in the selection criteria. Adjustments should be subjected to legal analysis (as should the the final layoff list) to ensure that there is no disparate, discriminatory adverse impact on a protected class of people.

5. Be Consistent: Fairness and consistency are the keys to minimizing the risk of employee lawsuits from layoffs. Focusing on the business purpose, engaging legal counsel early in the process, identifying neutral decisionmakers, and using objective selection criteria are important factors to ensure fairness. Inconsistent application of the selection criteria or excepting certain employees from layoffs based on subjective criteria should be avoided. Such exceptions often become “Exhibit A” in a costly employment discrimination lawsuit.

Virginia Occupational Safety and Health Act (§§ 40.1-49.3 thru 51.3)

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.

Pursuant to the Federal Occupational Safety and Health Act (OSHA), Virginia has received approval for the Virginia OSHA program. In addition to adopting the federal standards almost verbatim, Virginia has enacted additional safety and health requirements. As a consequence, all Virginia employers are required to: (a) comply with numerous safety and health regulations; and (b) comply with the “general duty clause,” which requires employers to provide a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical injury.”

Links to select provisions of the Virginia Occupational Safety and Health Act are provided below:

VA Code § 40.1-49.8. Duties of employers. This provision describes the employer’s duty to provide a safe workplace free from recognized hazards. It also describes disclosure, notice and reporting requirements.VA Code § 40.1-51.2. Rights and duties of employees. This provision explains employees’ obligations to comply with all workplace health and safety rules and regulations. It also provides employees with the right to report workplace health and safety violations.

VA Code § 40.1-51.2:1. Discrimination against employee for exercising rights prohibited. This provision protects whistleblowers as follows:

No person shall discharge or in any way discriminate against an employee because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.

VA Code § 40.1-51.2:2. Remedy for discrimination. This provision states the procedures and remedies for filing whistleblower claims for reporting workplace safety and health violations. In general, the employee has 60 days to file a complaint.

Virginia Employment Law: Cost of Medical Examinations or Reports (VA Code § 40.1-28)

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.

As set forth in Virginia Code Section 40.1-28, it is illegal for Virginia employers to require employees to pay for medical examinations as a condition of employment.

Grievance Procedures for Virginia Public Employees

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

The Virginia Personnel Act, which is found at Title 2.2, Chapter 29 of the Virginia Code (§§ 2.2-2900 thru 2905) mandates a grievance procedure for State employees, but it includes a number of exceptions. Specifics of the State grievance procedure are in Title 2.2, Chapter 10 ((§§ 2.2-3000 thru 3008).

Virginia Code Sections 15.2-1506 and 15.2-1507 requires all Virginia localities with more than 15 employees to establish a grievance procedure or be subject to the State’s grievance procedure.

VA Code § 15.2-1506. Establishment of grievance procedure, personnel system and uniform pay plan for employees.

Notwithstanding any other provision of law to the contrary, general or special, every locality which has more than fifteen employees shall have a grievance procedure for its employees that affords an immediate and fair method for the resolution of disputes which may arise between the public employer and its employees and a personnel system including a classification plan for service and a uniform pay plan for all employees excluding employees and deputies of division superintendents of schools.Notwithstanding the provisions of any local charter, a locality may establish a personnel system for local administrative officials and employees based on merit and professional ability. Such system shall consist of rules and regulations that provide for the general administration of personnel matters, a classification plan for employees, a uniform pay plan, and a procedure for resolving grievances of employees as provided by general law.

VA Code § 15.2-1507 establishes specifics of and exclusion from the public employee grievance procedure.

Federal Immigration Law: Administration Cracking Down on Employers Who Hire Undocumented Workers

Employers in Virginia, the District of Columbia and throughout the nation should take note of the Obama Administration’s increasing focus on companies who employ undocumented workers. As summarized in this Business Week article, the Government has launched a new round of worksite investigations and notified 1,000 companies that their I-9s are being audited.

Employers should take the enforcement initiatives seriously particularly in light of the increasing number of employers who are being arrested for violations of immigration laws and the substantial increases in fines in recent years.

D.C. Employment Law Case: N’Samba Ndondji v. Interpark, Inc. (Race Discrimination; National Origin Discrimination; Adverse Employment Actions)

While this District of Columbia federal court opinion deals with several important employment law issues, of particular note is the Court’s explanation of: (1) the distinction between race discrimination and national origin discrimination claims; and (2) the test for “adverse employment actions” under Title VII and the D.C. Human Rights Act (DCHRA).

In this case, Mr. Ndondji sued his former employer under Section 1981, Title VII and the DCHRA alleging race discrimination, national origin discrimination, and retaliation. By way of background, the DCHRA and Title VII protect employees against race discrimination, national origin discrimination, and other forms of employment discrimination. Section 1981 applies to racial discrimination only.

In dismissing the employee’s race discrimination claims, the Court held that Mr. Ndondji had failed to allege facts to establish that alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.

The Court dismissed most of Mr. Ndondji’s remaining claims on grounds that the claims were procedurally barred or that Mr. Ndondji had failed to identify any “adverse employment action” taken by his employer that could satisfy the test under Title VII or the District of Columbia Human Rights Act. This was true even though Mr. Ndonji had identified at least five different adverse actions that he believed violated the employment laws.

“Race Discrimination and National Origin Discrimination Claims are Ideologically Distinct”

As the Court explained, race and national origin are “ideologically distinct categories” of employment discrimination laws. Race discrimination relates to an employee’s “ancestry or ethnic characteristics.” National origin discrimination relates to where the employee was born. While an employee’s racial or ethnic characteristics may be linked to his national origin, a lawsuit alleging race discrimination must allege facts to show that the discrimination happened because of race, not just national origin.

In his EEOC charge and in his federal lawsuit, Mr. Ndondji’s claims centered on discrimination against “foreign nationals” and more specifically against Angolans. In dismissing his race discrimination claims, the Court noted that Mr. Ndondji never identified himself as a “Black Angolan,” nor did he explain why identifying himself as “Angolan” should be considered a “very distinct” ancestral or ethnic characteristic. It was also relevant to the Court’s analysis that Mr. Mr. Ndondji’s complaint failed to identify the race of the individuals who allegedly discriminated against him or the race of employees who were treated more favorably that Mr. Ndondji.

“Adverse Employment Actions”

Another notable aspect of this case is the litany of adverse actions alleged by the employee each of which failed to rise to the level of an “adverse employment action” for purposes of establishing a claim of employment discrimination under Title VII or the D.C. Human Rights Act.

As employment lawyers in the District of Columbia know, to prevail under Title VII or the DCHRA on a claim of employment discrimination, an employee must demonstrate that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. As the Court explained, in general, an adverse employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’”

Much time has been spent and ink spilled by courts and employment lawyers over what is or is not an adverse employment action for purposes of an employment discrimination lawsuit. This opinion is of note because, under the facts as alleged, not one of the following five alleged employer actions satisfied the test for an adverse employment action: 1) undesirable transfers or reassignments; (2) increased workload; (3) management reprimands; (4) employer spying and disciplinary write-ups; and (5) placement on a performance improvement plan (PIP).

Whether you represent employers or employees in employment discrimination lawsuits, if you practice employment law in the District of Columbia, you should read the opinion in its entirety and understand its implications.

Employees in D.C. & Virginia May “Self-Check” Employment Eligibility Through E-Verify

This week, the U.S. Department of Homeland Security (DHS) launched “E-Verify Self-Check,” which allows employees in select states, including Virginia and the District of Columbia, to check their employment eligibility status before seeking work. Potential employees may also correct errors that may undermine employment opportunities. According to the press release, Self-Check will be expanded to additional states on a rolling basis.

D.C. Employment Laws: District of Columbia Family and Medical Leave Act (DCFMLA), D.C. Code Section 32-501 et. seq.

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

The District of Columbia Family and Medical Leave Act (DCFMLA) provides eligible employees with up to 16 weeks of medical leave and 16 weeks of family leave for qualifying events. The DCFMLA also provides certain benefit and job protections to employees who take family or medical leave. Special restrictions apply to family and medical leave for school employees.

In addition to explaining the DCFMLA, this article summarizes other D.C. leave laws relating to family members, including the District of Columbia’s paid sick leave law (Accrued Sick and Safe Leave Act) and the District of Columbia Parental Leave Act.

Employer Coverage: The DCFMLA applies to employers in the District of Columbia who employ 20 or more employees. It applies to D.C. Government employees but not to federal employees.

Individuals Covered: Employees must have worked for a covered employer for at least 1 year without a break in service with at least 1,000 hours during the 12-month time period before the family or medical leave.

What “medical leave” is allowed under the DCFMLA?

Eligible employees are entitled to take up to 16 weeks of “medical leave” during each 24-month period, meaning leave for the employee’s own serious health condition.

What is a “serious health condition” under the DCFMLA?

The DCFMLA defines “serious health condition” as a “physical or mental illness, injury, or impairment that involves: (A) Inpatient care in a hospital, hospice, or residential health care facility; or (B) Continuing treatment or supervision at home by a health care provider or other competent individual.”

What “family leave” is allowed under the DCFMLA?

Eligible employees are entitled to take up to 16 weeks of family leave during each 24-month period. Under the DCFMLA, family leave means leave for the birth of the employee’s child, adoption of a child by the employee, foster care placement of a child with the employee, or for the employee to care for a family member who has a serious health condition. Family members include people to whom the employee is related by blood, legal custody or marriage, the employee’s foster child or child who lives with the employee and for whom the employee has permanently assumed parental responsibility, and the employee’s eligible partner with whom the employee has a committed relationship.

How much notice does an employee have to give an employer before taking DCFMLA family or medical leave?

Employees must give employers reasonable notice of the need for family or medical leave. Where possible, notice must be provided at least 30 days in advance of the leave. If it is not possible to provide 30 days’ notice, employees must provide advance notice of the need for leave as soon as possible. In emergency situations, where advance notice of the need for leave is not possible, the employee must provide notice of the need for family or medical leave not later than two business days after the absence starts.

May an employer require an employee to provide medical certification for family or medical leave?

With some exceptions, an employer may require medical certification in support of family or medical leave under the DCFMLA.

Are employees in the District of Columbia entitled to paid sick leave?

The DCFMLA is an unpaid leave law. A separate law, the District of Columbia Accrued Sick and Safe Leave Act (“ASSLA”), requires D.C. employers to provide employees with up to seven days (varies based on employer size) of paid sick leave for absences due to the employee or family member’s medical condition, domestic violence or sexual abuse. For more information about the District of Columbia’s paid sick leave law, see this article.

What is the District of Columbia Parental Leave Act?

Under D.C.’s Parental Leave Act, unless the leave would cause unusual difficulty for the company, an employee who is a child’s natural parent, legal guardian (appointed or actual), aunt, uncle, grandparent (or spouse or domestic partner of one of the foregoing) may take up to 24 hours of parental leave during each 12-month period to attend or participate in a school event. Ten days’ notice is required unless the need for leave could not have been reasonably foreseen.

Establishing a DCFMLA Claim: The DCFMLA recognizes the following theories of recovery:

Entitlement or Interference Theory: It is illegal for an employer to interfere with, restrain, or deny the employee a right protected under the DCFMLA. Under the entitlement theory, a violation may be established regardless of the employer’s intent.

Retaliation or Discrimination Theory: It is illegal for an employer to discharge or discriminate in any manner against any person because the person opposes a practice that is illegal under the DCFMLA; files or attempts to file a DCFMLA charge; institutes, attempts to institute, or facilitates institution of a DCFMLA proceeding; or gives information or testimony in connection with a DCFMLA inquiry or proceeding.

Enforcement: An employee has one year to file a claim under the DCFMLA with the District of Columbia Office of Human Rights or directly in court.

Remedies: An employee who wins a DCFMLA case may recover money damages, liquidated damages, interest, costs and attorney’s fees. Damages may be reduced on a showing of “good faith.”