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Inconsistent Remote Work Policies Create Legal Troubles for EPA: Tips & Best Practices for Employers?

Written by: Monica Munin, Esq.

On October 20th, the American Federation of Government Employees Local 704 (“Local 704” or “the Union”) filed a lawsuit on behalf of Environmental Protection Agency (“EPA”) employees located in Region 5, alleging that the EPA is intentionally withholding records subject to the Freedom of Information Act (“FOIA”) for the purposes of delaying the union’s investigation into discrepancies in the application of the agency’s remote work policy across different regions of the country.  Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, is the largest of the EPA’s ten (10) regions.  According to the Union, Region 5 employees “faced unfair denials of their requests for remote work compared [to other regions].”

The lawsuit is just one example of how inconsistent remote work policies can create problems for employers as employees and their managers acclimate to their “new normal.” Generally, employers are not required to offer employees the option to work remotely, with the main exception being requested for accommodation under the Americans with Disabilities Act (ADA). However, policies viewed as inconsistent or unfair can create other problems for employers and dampen employee morale during a time when it is increasingly difficult to find and retain quality employees. To avoid grievances and allegations of discrimination or disparate treatment, I would generally recommend that employers consider creating and including a comprehensive remote work policy that includes, at a minimum, the following:

  • The name and contact information of the person responsible for processing and evaluating a request to work remotely.
  • A clear definition of what is a general request to work remotely as well as an explanation of how a request to work from home to accommodate a disability differs from a general request to work remotely (as a reminder requests for an accommodation under the ADA are subject to a different analysis and process as the federal law requires employers to engage in an interactive dialogue with the employee that focuses on the employee’s limitations and essential job functions, employers have more discretion with respect to requests for remote work that are not based upon a need to accommodate a disability).
  • What positions are eligible for remote work?
  • What criteria the Company will use when evaluating a remote work request?
  • An explanation of what the Company expects from remote workers as well as clear guidelines for supervision and performance monitoring.
  • A disclaimer that the Company retains the right to change its policy or decision based upon the needs of the business and/or the employee’s performance while working remotely.
  • A summary of how remote employees will be included in Company culture and decision-making.

The pandemic brought about a massive change in how and where employees do their work, a change that is likely here to stay for the long haul. While we are just beginning to see the legal ramifications of this change, employers can safeguard against potential discrimination claims or grievances/ general employee dissatisfaction by investing the time and resources necessary to create a clear and comprehensive remote work policy. Questions about your telework policy? Need guidance regarding this or other employee handbook topics? Contact Monica Munin, Esq. at mmunin@vfnlaw.com.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Tune In!

Bradley Marshall is a guest speaker on Crime Time: With Virginia Defense Attorney podcast. In this Episode 81: Teaching the Law to Law Enforcement, he provides insight on how law enforcement views criminal justice and their training. https://www.buzzsprout.com/1703185/11348714

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Prince William County’s Pathway to the 2040 Comprehensive Plan: One Step Closer

Written by: Olaun Simmons, Esq.

The Prince William County Board of Supervisors have been working diligently to finalize the 2040 Comprehensive Plan. When it is adopted by the Board of County Supervisors, the 2040 Comprehensive Plan will help guide future land use and development for properties in Prince William County.  

The most recent draft of the Land Use Chapter of the 2040 Comprehensive Plan was issued in August 2022. The goal of the Land Use Chapter is to provide an official statement of the County’s vision for land use and to provide the aspirational goals for the County’s future development and growth.

Additionally, the “Pathway to 2040 Proposed Long-Range Use Interactive Map” provides information regarding the proposed long-range use designations for properties within the County including primary and secondary uses, compatible zoning districts, and density designations.

If you have questions related to the draft 2040 Comprehensive Plan and the ways in which it may affect your rezoning application, special use permit application, or the desired use of your property, please contact me at (703) 369-4738 or osimmons@vfnlaw.com.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


The Mixed Use District  – A Flexible Approach to Use and Density

Written by: Olaun Simmons, Esq.

In 2021, Prince William County adopted a new zoning district entitled “Mixed Use District (MXD).” The new Mixed Use District seeks to provide a thoughtful approach to development because it allows for flexible land development, promotes
transit-oriented development, and encourages a mix of residential and commercial uses in a single zoning designation. Under the MXD umbrella, there are three tailored mixed-use zoning designations that provide specific details and guidance regarding allowable uses and density.

Mixed Use District-Neighborhood (T-2)

The Mixed Use District-Neighborhood (MXD-N) is intended for smaller-scale mixed-use developments that are surrounded by lower-density residential areas, as well as in neighborhood corridors, or at the edges of town centers. The MXD-N allows for by-right uses such as single-family detached homes, craft breweries, and coffee shops; secondary uses such as child-care facilities and farmer’s markets, and special uses such as kennels and indoor shooting ranges. In terms of density, the MXD-N has a Transect 2 designation which allows for a residential density of 0 – 4 du/acre and non-residential density of 0 – 0.23 FAR.

Mixed Use District-Community Zoning District (T-3 and T-4)

The Mixed Use District-Community Zoning District (MXD-C) is intended to encourage a diversification of uses, including residential, commercial, and civic uses. The MXD-C is intended for a variety of sites and in smaller mixed-use areas that are well served by transit. The MXD-C allows for by-right uses such as distilleries, hotels, and religious institutions; secondary uses such as attached single-family dwellings and farmer’s markets; and special uses such as bed and breakfasts, retail stores, and restaurants. In terms of density, the MXD-C allow for more density than the MXD-N. The MXD-C has two transect designations: T-3 and T-4. Transect 3 allows for a residential density of 4 – 12 du/acre and non-residential density of up to 0.57 FAR, and Transect 4 allows for a residential density of 8 – 24 du/acre and non-residential density of up to 0.1.38 FAR.

Mixed Use District – Urban Zoning District (T-5 and T-6)

Finally, the Mixed Use District – Urban Zoning District (MXD-U) is intended to encourage the development or redevelopment of mixed-use centers that combine new or existing retail development with a variety of housing, offices, studios, live-work space, civic buildings, and other complementary uses arranged in a cohesive, compact, and walkable environment. The MXD-U zone must be located along existing or planned high-capacity multi-modal transportation corridors. The MXD-U allows for by-right uses such as assisted living facilities, multi-family dwellings, and hotels; special uses such as attached single-family dwellings on lots in excess of one acre; and special uses such as restaurants and self-storage centers.  In terms of the allowable density, the MXD-U allows for the most density. The MXD-U has two transect designations: T-5 and T-6. Transect 5 allows for a residential density of 20 – 50 du/acre and non-residential density of up to 2.30 FAR, and Transect 6 allows for a residential density of 50 -100 du/acre and non-residential density of up to 3.0 FAR.

The new MXD zoning designation is designed to provide developers with the flexibility needed to obtain the desired mix of commercial and residential uses and density on the site. The flexibility provided by the MXD will also be useful for developers who are seeking to revitalize aging properties within Prince William County.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Department of Labor Announces Enhanced Enforcement of Trench-Related Safety Standards

Written by: Monica Munin, Esq.

The United States Department of Labor announced enhanced enforcement initiatives intended to address a sharp rise in trench-related fatalities on July 16, 2022. In the announcement, available here: Alarming rise in trench-related fatalities spurs US Department of Labor to announce enhanced nationwide enforcement, additional oversight | Occupational Safety and Health Administration (osha.gov), the United States Occupational Safety & Health Administration (“OSHA”) indicated that the agency is considering referring cases for criminal prosecution as part of a “crackdown” on trenching and evacuation violations. The agency noted that “enforcement staff will consider every available tool at the agency’s disposal.”

Twenty-two (22) individuals employed in trenching and excavation work met their demise during the first six months of 2022, more than the 15 deaths recorded for all of 2022. Jessica E. Martinez, co-executive director for the National Council for Occupational Safety and Health commented on the enhanced enforcement initiative, stating “there is no reason—ever—for a worker to die unprotected in a trench collapse…workers have been building trenches for literally thousands of years. We know how to do it safely: Slope the trench at a safe angle, shore it up, or shield workers with appropriate safety equipment.” Assistant Secretary for Occupational Safety and Health, Doug Parker, added “The Occupational Safety and Health Administration is calling on employers engaged in trenching and excavation activities to act immediately to ensure that required protections are fully in place every single time their employees step down into or work near a trench…In a matter of seconds, workers can be crushed and buried under thousands of pounds of soil and rocks in an unsafe trench. The alarming increase in the number of workers needlessly dying and suffering serious injuries in trenching accidents must be stopped.”

Generally, OSHA requires employers to provide workers with a safe workplace. As applied to trenching and excavation, OSHA requires the following specific protections:

  • Daily inspection of the trench by competent persons
  • Cave-in protection measures
  • A safe manner to enter and exit the trench
  • The removal of equipment and material from the edge of the trench
  • Verification each day that the trench is free of standing water and atmospheric hazards
  • A protective system for trenches five feet or deeper
  • A protective system designed by a registered professional engineer for trenches 20 feet or deeper

OSHA has also developed the following “slogan” for trench safety:

  • SLOPE or bench trench walls by cutting back the trench wall at an angle inclined away from excavation.
  • SHORE trench walls by installing aluminum hydraulic or other types of supports to prevent soil movement.
  • SHIELD trench walls by using trench boxes or other types of supports to prevent soil cave-ins.

OSHA takes the position that all trench fatalities are preventable, and the imposition of criminal penalties adds to the number of reasons employers should seek out advice from an attorney familiar with OSHA requirements to avoid such citations. If you have a question regarding compliance with OSHA Safety Standards as it pertains to trenches and excavation, or anything else, please email Monica Munin, Esq. at mmunin@vfnlaw.com for more information.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


National Night Out

VF&N Shareholder Bradley Marshall was excited to join our client, the Town of Haymarket, for their annual National Night Out celebration!  Bradley is the Town’s prosecutor for misdemeanor and traffic offenses.  National Night Out enhances the relationship between neighbors and law enforcement while bringing back a true sense of community. Furthermore, it provides a great opportunity to bring police and neighbors together under positive circumstances.  Pictured: Bradley Marshall and Haymarket Police Chief Allen Siebert.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


2022 Beat the Odds Awards       

The Prince William County Bar Foundation, in collaboration with the Prince William County Bar Association, was proud to host this year’s Beat the Odds Celebration and Awards Banquet!  The event was held on June 23rd at the beautiful Old Hickory Golf Club in Woodbridge.  Nearly two hundred guests gathered to celebrate 12 remarkable graduating seniors and 2 rising seniors. 

We presented each of the graduating seniors with a $2,000 Beat the Odds scholarship to help them further their education, be it in community college, four-year college, technical and vocational school, apprenticeships, internships, and more.  We presented both rising seniors with Phoenix Awards, consisting of a fully loaded laptop computer to further their studies during their senior year.  Each Beat the Odds and Phoenix Award winner receives a commemorative plaque and are also paired with a volunteer attorney mentor from the local bar to help guide them in their education.

 Prince William County Bar Foundation President Bradley Marshall, who acted as master of ceremonies for the event, said “these kids have overcome tremendous obstacles such as abuse and neglect, delinquency, truancy, foster care, substance abuse, and mental illness, but have persevered to truly ‘beat the odds’ and have bright futures ahead of them.”

This years Beat the Odds winners have big plans for the future.  For example, Alyssa graduated with a 4.25 GPA and will be attending Lynchburg University in the fall.  Madelyn has overcome tremendous adversity but reminded the crowd that past experiences do not define someone; she will be attending Virginia Commonwealth University later this year.  Mariah had a child at a young age, but she used it to motivate her to be a better student; she will attend Northern Virginia Community College (NOVA) with plans to transfer to Howard University. Sisters Cynthia, Karen, and Yaharia have faced enormous obstacles, but all three plan to attend NOVA in the fall and transfer to other colleges.  Angela, who immigrated from Cameroon, Africa, worked hard to assimilate and will be attending Yale University and plans to go on to medical school.  Antwoine, who also won a Phoenix Award in 2021, received a Beat the Odds scholarship this year and will attend Old Dominion University.

These scholarships and awards provide an opportunity for these remarkable young people to overcome their circumstances and maximize their future potential.  These opportunities simply would not be possible without the generous support of our sponsors.  Thank you to the law firm of Blankingship & Keith, the law firm of Compton & Duling, Fraternal Order of Police Lodge #43, the Gratitude Ladies Giving Group, Kevin and Barbara Hutto, the Knights of Columbus John Paul I Council, Philip and Laura Stark, the Carluzzo Foundation, Inc., the law firm of Vanderpool, Frostick, and Nishanian, and our biggest sponsor, who provided not one but five scholarships this year, Wind River Chimes.  We cannot think our community partners enough for their support. 

The Bar Foundation would also like to thank the PWC Police Department and Sheriff’s Department for providing a joint honor guard for the event, to the Old Bridge Chamber Orchestra for providing the evening’s music, Sorin Pasarin with Little Film Studio for providing photography services, Deem Printing for the printed programs, the wonderful staff at Old Hickory Gold Club for their hospitality, and last but certainly not least, Virginia Governor Glen Youngkin for providing pre-recorded remarks to this year’s winners. 

Thank you to all of our donors, volunteers, and guests for attending, and congratulations to these 14 remarkable young people on their tremendous achievements and their very bright futures!

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Prince William Chamber 2022-2023 Annual Meeting

The Prince William Chamber of Commerce (PWCC) had a great day at its Annual Meeting on June 16th, hosted at the Farm Brewery at Broad Run! Rick Nishanian is the new Chairman of the Board for the PWCC and the fourth VFN partner to serve in this role. Please congratulate Rick on this great accomplishment.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Beware of Office Birthday Parties!

Written by: Monica Munin, Esq.

One Kentucky employer got a nasty surprise after inadvertently hosting a birthday party on behalf of an employee who requested that his birthday not be observed due to social anxiety. Kevin Berling, a former employee of Gravity Diagnostics, sued the Company after he was fired for behavior, he exhibited in response to an unwanted birthday party.

Berling had approached his office manager to request that the Company not throw him an office birthday party. He explained that he had an anxiety disorder as well as a propensity for panic attacks that becomes exacerbated when he is the center of attention. Berling also indicated he had accumulated “bad memories” associated with his birthday that made parties upsetting to him. The Office Manager inadvertently forgot to pass on the information to the rest of the company and was out of the office on Berling’s birthday.  As a result, a birthday party, including balloons and a banner, was set up for Berling in the office break room. When Berling heard about the party, he suffered a severe panic attack and went to his car to hide from the celebration.  The next day Berling was called into a meeting to discuss the incident where his managers allegedly scolded and belittled him for his reaction to the unwanted birthday party.  Berling indicated one manager accused him of “stealing his co-worker’s joy.”  The meeting led to another panic attack with Berling clenching and unclenching his fists as instructed by his therapist to try and mitigate his panic symptoms. His behavior further alarmed his managers who asked him to immediately leave the property and assumed he was on the verge of a violent outburst.  Later that week Berling was terminated “because of the events of the previous week.” Berling then brought suit alleging discrimination under a Kentucky disability law similar to the Americans with Disabilities Act (ADA) and retaliation for exercising his rights. The Company asserted that Berling had been fired due to a legitimate fear of violence rather than because of his anxiety. A jury sided with Berling and found that the Company violated Berling’s disability rights, awarding him $450,000. The jury essentially held that Berling’s reaction was a reasonable mitigating measure to control his panic attacks and that the manager’s assumption Berling was on the verge of violence was discriminatory. Berling’s attorney, Anthony Bucher, summarized the incident to the British Broadcasting Company by stating:

“He had a panic attack. That is all. And, because representatives from Gravity Diagnostics did not understand his panic response and were unnerved by his response, they assumed he was a threat. Assuming that people with mental health issues are dangerous without any evidence of violent behavior is discriminatory.”

The incident serves as a reminder to employers that mental disabilities can qualify for protection under disability discrimination statutes and that employees are not required to file a formal request for accommodations in order to be entitled to those protections. Here, the jury found that Berling’s request was an exercise of his right to a reasonable accommodation under Kentucky disability law even though he did not explicitly refer to the law or use the phrase “reasonable accommodation.” Federal and Virginia state disability statutes have also been interpreted by courts as providing expansive rights to eligible employees. Employees do not need to use specific “buzz words” in order to be entitled to protections under the statutes. It is vitally important that employers ensure their supervisors and staff are familiar with employee rights under disability law and that they receive training regarding what a request for an accommodation can look like. Further, training should be sure to include general information regarding mental disabilities. While the facts in Berling’s case are unique, we can be sure that disability cases involving mental health disorders are likely to continue to evolve as courts attain a better understanding of the nature of such disabilities.

Need supervisor training? Unsure about a disability matter or other employment law issue? Contact Monica Munin, Esq. at mmunin@vfnlaw.com for answers.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


Community Meeting with American Legion Post 114

Written by: Olaun Simmons

VF&N’s Olaun Simmons attended a community meeting with American Legion Post 114 and People, Inc. to discuss the revitalization of the historic American Legion Post building and the development of duplexes on Prince William Street in Manassas, Virginia.

If you have any questions on how VF&N can assist you, please feel free to reach out by way of phone or email Olaun Simmons.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer