U.S. Supreme Court to Hear Healthcare Reform Case

November 14th, 2011 by JBWK

The U.S. Supreme Court announced Monday that it will hear several related issues regarding the 2010 Patient Protection and Affordable Care Act (or PPACA). The major issue is the constitutionality of the law’s requirement that every American must purchase health insurance. In addition to addressing that specific question, it will also hear some related arguments […]

Why Employers Settle Sexual Harassment Claims

November 11th, 2011 by JBWK

With sexual harassment again revealing itself to be a hot political issue, CBS News explains why employers often settle sexual harassment claims, even those deemed meritless. The three biggies: Reputation damage to the company Legal costs of defending the case Indirect damage to the business’ bottom line (firing the harasser CEO) The (correct) bottom line: […]

New Chain-of-Custody Form for DOT Drug Testing

November 11th, 2011 by JBWK

For employers required to perform Department of Transportation drug and alcohol testing, a new Custody and Control Form for specimens is required on December 1, 2011. If you are a DOT-regulated employer and don’t have an updated drug and alcohol testing plan, you need one. If you do have one, but haven’t updated it in […]

Virginia Supreme Court Invalidates Overbroad Non-Compete

November 4th, 2011 by JBWK

In an opinion released today, the Virginia Supreme Court struck a non-compete agreement between a pest control company and an employee that prohibited the employee from working in any capacity for a competitor. In Home Paramount Pest Control Companies, Inc. v. Shaffer, the Court addressed only the so-called “function” prong of the analysis. Non-competes must be reasonable […]

Virginia Supreme Court Hears “Blue Pencil” Case

November 4th, 2011 by JBWK

The Virginia Supreme Court heard oral argument this week in the long-awaited case that will hopefully address the thorny “blue pencil” problem. “Blue pencil” provisions–common in non-compete agreements–basically say a judge can rewrite the parties’ non-compete agreement if the judge thinks it’s too broad to be enforceable as drafted. The Virginia Supreme Court has never […]

The Uniqueness of Title VII’s Religious Protection

November 1st, 2011 by JBWK

As paraphrased by a federal judge in Richmond: Title VII’s treatment of religion has been said to constitute a special category of discrimination. This is because the statute defines religion to include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an […]

EEOC and AT&T Settle Age Discrimination Suit

October 30th, 2011 by JBWK

While not particularly noteworthy in the fact that they settled the suit, the EEOC had alleged AT&T violated the law in its practice of refusing to consider for employment former AT&T employees who had opted to receive a voluntary early retirement package. Some employees voluntarily retired about ten years ago–and were barred by AT&T from […]

IRS Clarifies Taxation of Employer-Provided Cell Phones

October 30th, 2011 by JBWK

Clarifying a somewhat confusing issue, the IRS recently issued guidance on the taxation of employer-provided cell phones. The guidance applies to cell phones provided for “noncompensatory” purposes–that is, the cell phone is not just an added perk to attract or retain employees. The provision of an employer-provided cell phone must, in other words, be business […]

EEOC Issues Informal Guidance on Arrest and Conviction Records

October 29th, 2011 by JBWK

In an informal (and nonbinding) advisory opinion letter, the EEOC has shed some light on its views of employers using arrest and conviction records in making initial hiring decisions. Although it does not set forth any strict standards, and is not binding, it does contain some helpful guidance: When using automatic exclusions for criminal convictions, […]

Sexual Harassment Not Just Limited to Employees

October 20th, 2011 by JBWK

The EEOC announced that it has settled a sexual harassment case it filed against an employer in California. However, as opposed to the typical supervisor or coworker harasser, the harasser in this case was the employer’s landlord. Various female employees complained about the landlord’s harassment, but the employer made only a “superficial” investigation. The harassment […]

IRS Announces 2012 COLA Increases

October 20th, 2011 by JBWK

The IRS released today the 2012 annual cost-of-living increases for various tax and employee benefit programs. In addition to addressing compensation limits for IRA contributions and pension plans, the IRS increased by $500 the annual elective deferral maximum for 401(k) plans from $16,500 to $17,000 and increased the total annual deferrals across all defined contribution […]

What Is Deferred Compensation and Why Does It Matter?

October 19th, 2011 by JBWK

Nonqualified deferred compensation plans (as opposed to tax-favored “qualified” retirement plans) have become a popular option for employers to attract and retain management employees, often providing the so-called “golden handcuffs” to encourage key employees to stay for a certain number of years or until certain performance targets are reached. But planning for nonqualified deferred compensation […]

U.S. Supreme Court to Rule on Ministerial Exception to Discrimination Laws

October 16th, 2011 by JBWK

The Supreme Court heard oral arguments last week in an important case for religious organizations: how far the First Amendment-based “ministerial exception” extends to preempt federal employment discrimination laws. In its simplest form, the ministerial exception holds that the federal discrimination laws don’t apply to religious organizations in their employment decisions regarding religious positions. The […]

Expect Your Employees to Answer Their Cell Phones? Expect Workers’ Compensation Liability

October 14th, 2011 by JBWK

In a recent ruling from the Virginia Court of Appeals, where most workers’ compensation issues are finally decided, the Court held that an employee injured in a car accident after seeing her personal cell phone illuminate was entitled to workers’ compensation. The employee, a home hospice care nurse, was driving home from a mandatory training […]

Question about Wrongful Termination?

October 13th, 2011 by JBWK

The basic answer is: don’t worry about it; it nearly doesn’t exist. One of the most frequent issues terminated employees raise is that their termination was “wrongful.” In that, they typically mean they were terminated without a good reason, or for a bad reason. The most frequent answer that lawyers give them is that it […]

EEOC Sues Hotel Franchise for Discrimination Against Whites

October 9th, 2011 by JBWK

In an uncommon lawsuit, the EEOC has alleged that a hotel franchise in Colorado illegally discriminated against employees and applicants based on their race: white. The employer, according to the EEOC, subscribed to a stereotype that non-Hispanics are “indolent” and therefore discriminated against them in making employment decisions. While it’s a fairly atypical lawsuit for […]

DoL Sues Medical Practice for Profit-Sharing Plan Loans

October 9th, 2011 by JBWK

The Department of Labor has alleged, in a lawsuit filed in federal court, that a physician, as the sole owner and CEO of his practice, illegally funneled nearly all of his practice’s profit-sharing plan assets back to the practice to fund its operations. The plan held retirement plan assets for four other employees of the […]

NLRB Pushes Back Posting Requirement

October 6th, 2011 by JBWK

The NLRB, which recently implemented a rule requiring employers under its jurisdiction to post 11×17 employee-rights notices, has pushed back the required posting date to January 31, 2012. It was originally scheduled to take effect this November. According to the NLRB, it did so to address issues relating to which employers fall under the NLRB’s […]

Manager Acquitted on Sexual Assault Charges After Record Sexual Harassment Verdict

October 1st, 2011 by JBWK

A former manager at Aaron’s Rents, Inc. has been acquitted of criminal charges following a whopping $95 million sexual harassment verdict awarded by a federal jury in Illinois earlier this summer. Although the judgment was reduced to just over $40 million by the judge, it represents one of the (if not the) largest sexual harassment verdicts […]

Defamation Based on “Allegations”

September 30th, 2011 by JBWK

In an interesting opinion released this week from the Eastern District of Virginia, the court held that an employer’s statement that a former employee/financial advisor was discharged “after allegations were made that accused him of” violating investment-related statutes or rules was not defamatory. Wells Fargo Advisors, LLC filed a required response to a securities-industry employee-termination questionnaire. […]

A Letter No Employer Wants to Write–Ever

September 27th, 2011 by JBWK

When the EEOC settled a disability discrimination case on behalf of a now-deceased employee, Anne Whitledge, who died from brain cancer, it didn’t just get her family money. The settlement included the typical money damages ($160,000 going to her estate), employer discrimination training, and injunctive relief prohibiting discrimination. The unconventional part: the EEOC required the […]

9th Circuit Overturns Class-Action Certification Based on Wal-Mart Case

September 27th, 2011 by JBWK

The 9th Circuit last week overturned a class-action certification of certain female employees of the wholesaler Costco, relying on the recent U.S. Supreme Court decision Wal-Mart, Inc. v. Dukes. The Wal-Mart case, followed by the 9th Circuit Costco case, denied class-action status to broad swaths of female employees who alleged a systematic, nationwide culture of bias […]

IRS Launches Settlement Program for Misclassified Workers

September 24th, 2011 by JBWK

After announcing a new information-sharing plan to crack down on misclassified workers (employees who are labeled independent contractors), the IRS has now made details public about a voluntary settlement program for employers with misclassified workers. The employers must satisfy certain criteria: they must have consistently treated their workers as independent contractors; they must have filed […]

DOL to Re-Propose ERISA “Fiduciary” Regulation

September 23rd, 2011 by JBWK

After the much-criticized proposed rule by the Department of Labor’s Employee Benefits Security Administration regarding ERISA’s definition of an employee plan “fiduciary”, the DOL has decided to “re-propose” the rule in light of public comments it received. Most notably, the proposed rule seeks to expand the scope of plan investment advisers who are deemed “fiduciaries” […]

Equal Pay Act and the EEOC

September 23rd, 2011 by JBWK

The EEOC has sued a Texas agency for violating the Equal Pay Act, a lesser-used, but potentially costly, federal discrimination statute, alleging it routinely paid women less than men who occupied similar positions. The EEOC received only 1,044 Equal Pay Act claims in 2010, a small portion of the 99,922 overall discrimination claims it received […]

Employee vs. Independent Contractor Crackdown

September 20th, 2011 by JBWK

The IRS, DOL, and various state agencies announced that they have entered a series of information-sharing agreements in their joint efforts to crack down on misclassification of workers as independent contractors. Employers will sometimes use the independent contractor (mis)classification to avoid paying employer-side payroll taxes and subjecting themselves to employment laws that don’t apply outside […]

Unemployment Discrimination?

September 17th, 2011 by JBWK

Along with a number of other employment-related provisions, the proposed American Jobs Act President Obama has presented contains an important provision quickly becoming a hot-button issue: discriminating against the unemployed. The American Jobs Act, in its current form, would prohibit employers from excluding applicants who are presently unemployed. One state, New Jersey, has banned the […]

Beware of OSHA…

September 16th, 2011 by JBWK

…but not because they’re inspecting your plant for safety violations. OSHA has recently fined two employers (on the order of hundreds of thousands of dollars) and ordered the reinstatement of fired whistleblowers after OSHA found the companies violated Sarbanes-Oxley’s whistleblower protection provisions. Whistleblowers have had a notoriously difficult time prevailing under Sarbanes-Oxley’s protections, winning only […]

4th Circuit Tosses Claim for Religious Harassment and Retaliation

September 15th, 2011 by JBWK

In an important ruling this week, the 4th Circuit held that Title VII, when applied to “religious organizations”, not only allow religious-based discrimination in hiring and firing decisions, but also essentially allows religious-based harassment and retaliation. The plaintiff, a former nurse at a Catholic assisted living facility, claimed she was harassed, fired, and retaliated against […]

New Disclosure Obligations for Adverse Employment Actions Based on Credit Reports

September 12th, 2011 by JBWK

New rules implemented as part of the Dodd-Frank financial overhaul have altered the required notifications employers must give employees and applicants if they take adverse employment action based in whole or in part on the employee’s or applicant’s credit report or score. The new rules, which took effect in July, require employers who take adverse […]

The $1.39 Reasonable Accommodation

September 9th, 2011 by JBWK

The EEOC has sued Walgreens after a diabetic employee was fired for eating a $1.39 bag of chips, which she paid for after her shift ended, to stave off an attack of hypoglycemia. She had worked for Walgreens for 18 years with no disciplinary record. The EEOC’s position: “Accommodating a disability does not have to […]

4th Circuit Doesn’t Rule on Healthcare Reform’s Constitutionality

September 8th, 2011 by JBWK

The long-awaited decisions from the Richmond-based 4th Circuit Court of Appeals on the constitutionality of the 2010 Patient Protection and Affordable Care Act’s individual mandate took a different tack: neither reached the ultimate issue of whether the requirement that individuals buy health insurance is constitutional. Liberty University v. Geithner, dealing largely with the tax/penalty aspects […]

EEOC Continues Leave of Absence Pursuit

September 7th, 2011 by JBWK

The EEOC has been on a recent streak of suing employers who fail to offer their employees leaves of absence as reasonable accommodations under the ADA. In our prior post discussing post-FMLA leave as a reasonable accommodation, the staggering settlement amounts involved in these cases hopefully opened employers’ eyes to avoiding this expensive mistake. Continuing […]

ADAAA Impact

September 1st, 2011 by JBWK

A recent decision from the federal court in the Western District of Virginia highlights an important issue arising from the 2008 ADA Amendments Act. A former employee alleged her former employer fired her after finding out she was dyslexic. She sued, claiming the employer violated the Americans with Disabilities Act. The ADA has always prohibited […]

NLRB Requires Employer Posting of Union Rights

September 1st, 2011 by JBWK

The National Labor Relations Board issued its final rule last week on new required postings notifying employees of their rights under the National Labor Relations Act. The posting requirement becomes effective November 14, 2011. The NLRB will have 11×17 printable posters available on its website by November 1. Additionally, there are methods of electronic distribution […]

Say on Pay Sails By Shareholder Meetings

August 31st, 2011 by JBWK

The Dodd-Frank-required rule requiring a non-binding shareholder vote on executive compensation for public companies (Say on Pay) came and went this annual meeting season without much fanfare, at least according to a BNY Mellon report The report–studying 500 public company annual shareholder meetings–found that about two-thirds of the companies’ say-on-pay advisory votes were supported by […]

Watch What You Say

August 25th, 2011 by JBWK

A federal court in Pennsylvania this week allowed part of an employee’s ERISA lawsuit to continue based on a resolution adopted by the employer’s board of directors twelve years ago despite the fact that the employer never amended the plan itself to reflect the resolution. The employer, back in 1999, passed a resolution that recommended […]

When Compensation Is Not “Compensation”

August 24th, 2011 by JBWK

The IRS’s Summer 2011 Retirement News for Employers points out a perhaps uninteresting but important issue: what counts as “compensation” for purposes of your company’s retirement plans? A plan has to define “compensation” for purposes of, among other things, calculating salary deferrals, employer matching contributions, and discretionary contributions. For example, a plan may provide that an […]

NLRB Summary of Social Media Cases

August 23rd, 2011 by JBWK

Still trying to figure out what the National Labor Relations Board is doing about social media and protected activity? Who better to explain it than the Office of the General Counsel of the NLRB in its Report Concerning Social Media Cases

4th Circuit Okays Termination of Post-Retiree Health Benefits

August 23rd, 2011 by JBWK

The 4th Circuit in a published opinion released yesterday affirmed the longstanding rule that companies can freely terminate their post-retiree, ERISA-governed health benefits as long as there is no contractual obligation to continue them. Citing escalating healthcare costs, New Century Aluminum modified or terminated its post-retiree health benefits for some retirees in 2007. Predictably, they […]

Care Needed When Revamping Employer Group Health Plans

August 22nd, 2011 by JBWK

A new study from the National Business Group on Health has found that, among large employers, more than half plan on raising their employees’ share of premium contributions in 2012 given escalating healthcare costs. However, any employer that plans on raising employee contributions has to keep in mind the Affordable Care Act’s new requirement that fully […]

EEOC Sues Defense Contractor for Employees’ Stereotype-Based Harassment

August 19th, 2011 by JBWK

The EEOC on Wednesday sued defense contractor DynCorp International in the Eastern District of Virginia for its employees’ alleged harassment after out-of-court settlement talks failed.  The basis: male employees harassing a male coworker who didn’t fit the typical gender stereotype of a man. From the EEOC’s press release: According to the EEOC’s complaint,  from October […]

Pushing Back Retirement

August 17th, 2011 by JBWK

A recent issue brief from the Center for Retirement Research at Boston College highlights an increasingly important issue for employers: older workers who are putting off retirement in favor of longer careers. The brief, available here, cites several factors causing the increasing average retirement age.  Among them, improved health and longevity, more highly educated workers, […]

Post-FMLA Leave as a Reasonable Accommodation

August 16th, 2011 by JBWK

Think you can automatically fire an employee as soon as their FMLA leave expires?  Think again. As highlighted by several recent EEOC cases and public guidance meetings, the EEOC has taken a stand against inflexible leave policies that fail to consider whether further unpaid leave after an employee’s FMLA (or non-FMLA) leave expires can be […]

4th Circuit: Job Applicants Not Protected by FLSA’s Retaliation Provisions

August 15th, 2011 by JBWK

In a published opinion released on Friday, the 4th Circuit ruled that a job applicant cannot sue a prospective employer under the FLSA’s anti-retaliation provisions. Natalie Dellinger sued her former employer, CACI, Inc., for FLSA violations.  While the lawsuit was pending, she disclosed to her prospective employer, SAIC, that she had sued CACI for FLSA […]

Circuits Split Over Healthcare Law’s Constitutionality

August 12th, 2011 by JBWK

Today the federal Court of Appeals for the Atlanta-based 11th Circuit struck down as unconstitutional the so-called individual mandate of the Patient Protection and Affordable Care Act, which requires all individuals to either purchase health insurance coverage or pay a penalty.  The 11th Circuit case has been closely followed because it includes 26 states as […]

Sealing FLSA Settlements

August 11th, 2011 by JBWK

As an employer, you know (or should know) the importance of keeping accurate time records for employees under the FLSA.  You’ve probably also have had–in some form–a dispute with an employee over their hours worked or entitlement to overtime.  But once that dispute turns into a lawsuit, you may be surprised to learn that even […]


August 11th, 2011 by JBWK

Welcome to the new Virginia Employment & Benefits Law blog maintained by Jones, Blechman, Woltz & Kelly’s Employment Law practice group! For those unfamiliar with the firm, we are a full-service law firm serving the Virginia Peninsula and surrounding areas.  Please feel free to visit our website to view our attorney bios and browse our […]