(703) 369-4738

Business Law

26
Aug
2020

EMPLOYMENT LAW SUMMIT 2020

EMPLOYMENT LAW SUMMIT 2020

Oct. 9th, 2020: 8:30 am- 1:00 pm

If you enjoyed our 2020 Legislative Update and Business Continuity Resources COVID Series, this event will not disappoint!

Vanderpool, Frostick & Nishanian P.C in collaboration with Prince William SHRM will host our 9th annual Employment Law Summit, Moving Forward Together. The Summit offers an easy and affordable way to summarize and highlight the most up-to-date information employers need to know to identify issues currently impacting their workforce and organization.

Due to the restrictions, this year’s summit will be held virtually. Speakers will include VF&N’s very own Kristina Keech Spitler and special guest Peter Robb, General Counsel of the National Labor Relations Board.

To Learn More About the Summit or to Register,

Visit Our Event Page Here


Kristina Keech Spitler

Speaker Profile:

Kristina Keech Spitler, Esq. is a shareholder at Vanderpool, Frostick & Nishanian, P.C. and has been practicing law for thirty years.  With a background as a civil litigator and former prosecutor, as well as experience with employment, business, corporate, real estate, zoning, and municipal law, Ms. Spitler uses her extensive experience and knowledge to partner with her clients to understand their legal and business needs and provide innovative solutions that are specific to each client. Ms. Spitler focuses on Employment Law, Civil Litigation, Business/Corporate Law, and Municipal Law including matters relating to hiring and firing, breach of agreements, non-compete and restrictive covenant agreements, discrimination, disabilities and accommodations under the Americans with Disabilities Act, Fair Labor Standards Act (wage and hour law), Family Medical Leave Act, and defamation. In addition, her practice includes drafting and updating handbooks and policy manuals, management and employee training, and drafting executive, independent contractor, and severance agreements.

Ms. Spitler is a highly rated speaker and trainer on the topic of Employment Law issues. In addition to speaking at conferences and conducting training sessions for businesses, she has been a featured speaker on employment law issues on WUSA Channel 9 News and has served as a resource and quoted in Workforce Management Magazine.

Ms. Spitler has been recognized as one of Virginia’s “Most Influential Women” and a “Leader in the Law” by Virginia Lawyers Media, and as “Legal Elite” in Labor/Employment Law from Virginia Business Magazine. She has also received the AV Preeminent rating, Martindale-Hubbell’s highest professional achievement.

28
Jul
2020

Effective Immediately: New Covid-19 Emergency Temporary Standards For Business and Facility Owners

Part 1 of a Series By Kristina Keech Spitler, Esq.

On July 27th, 2020, the “New Emergency Temporary Standard – Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19” by the Virginia Department of Labor and Industry (“DOLI”) became effective and applies to virtually all employers in Virginia. It is the first of its kind in the nation as part of a state’s response to the national pandemic. 

The new Emergency Temporary Standard (“ETS” or “Standard”) sets forth mandatory actions that private and public employers are required to take to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes the coronavirus disease 2019 (“Covid-19”) to and among employees and employers. This standard will generally be effective for six months starting July 27, 2020.  However, it is likely that a permanent standard/regulation will be adopted in the interim after open to further public comments.

Classify Each Job Task/Position

The ETS requires all employers to assess the workplace jobs or positions for hazards and job tasks that can potentially expose employees to Covid-19 and classify each job task/position into one of four categories of exposure risk levels: very high, high, medium, and lower.  While review of specific definitions in the Standard for each risk level is necessary, here are some examples to help give businesses an idea of the types of job tasks that may fall into the different categories:

  • Very High – healthcare employees performing aerosol-generating procedures, healthcare/lab personnel, and morgue employees who are working with known or suspected Covid-19 patients.
  • High – Healthcare delivery and support, first responders, medical transport, and mortuary employees who are exposed within six feet of known or suspected persons with Covid-19.
  • Medium– Employees exposed within six feet of other employees, customers, or other persons known, unknown, or suspected of Covid-19.
  • Lower – Employees not exposed within six feet frequently or close contact with persons known, unknown, or suspected of Covid-19.

Pursuant to the ETS, the employer then has certain actions it should take for the safety and welfare of its employees depending upon which level of risk its employees fall, including creating an infectious disease preparedness and response plan and provide certain training within specified time frames.

Develop Policies for Employees to Report When They are Experiencing Possible Covid-19 Symptoms

The ETS also requires employers to develop and implement policies and procedures for employees to report when they are experiencing possible Covid-19 symptoms or have tested positive, a system for how they report this to their employer, a plan for what to do if an employee tests positive or has symptoms, and under what circumstances can that employee return to work safely.  Employers must inform employees of the methods of self-monitoring for symptoms of Covid-19 if they suspect possible exposure or experiencing signs of an oncoming illness and shall not permit those who are known or suspected of having it to report to or remain at work.  Employers must also talk with subcontractors and companies that provide contract or temporary employees about the importance of known or suspected to be infected persons staying home and that it will not allow such persons to report to or remain at work.

Employers Must Notify its Employees Within 24 Hours of Discovery of Possible Exposure

The ETS also requires that within 24 hours of discovery of possible exposure, employers must notify its employees, other employers whose employees were present at the worksite, the building/facility owner, and the Virginia Department of Health, of possible exposure at the worksite, while keeping the identity of the person confidential.  In the event that three or more employees present at the place of employment test positive during a 14-day period, the employer is also required to notify Virginia DOLI within 24 hours of discovery.

Building/Facility owners, within 24 hours of discovery of possible exposure, are to i) require all employer tenants to notify them of any positive Covid-19 tests for any employee or resident in the building, ii) take necessary steps to sanitize common areas in the building; and iii) notify all employer tenants in the building of one or more cases discovered in the building and identify the floor or work area where the case was located (while keeping the identity of person or persons confidential).

Employers Shall Ensure that Sick Leave Policies are Flexible and Consistent with Public Health Guidance

The ETS also provides that to the extent feasible and permitted by law including but not limited to the Family First Coronavirus Response Act (“FFCRA”), employers shall ensure that sick leave policies are flexible and consistent with public health guidance and that employees are made aware of these policies.  It is not clear exactly what type of flexible sick leave policies are required by this section.  Certainly, employers covered by FFCRA must comply with FFCRA’s leave requirements.  In addition, employers should comply with their current sick leave policies as well as leave under Family Medical Leave Act, if applicable.  

The Americans with Disabilities Act may also apply such that additional leave may be a form of a reasonable accommodation for a person with a disability.  ETS does not specify that employers must provide additional sick leave or more flexible sick leave.  However, further guidance may be provided.  Employers and employees should also be aware the ETS makes clear that nothing in the standard shall prohibit an employer from permitting an employee known or suspected of having Covid-19 from working remotely (teleworking) or other forms of work isolation that would not result in potentially exposing other employees to the virus.   

Additional Resources

Virginia DOLI has some resources regarding ETS available on its website at https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.

Should you need any assistance in understanding, implementing, or complying with the Emergency Temporary Standard, we stand ready to assist you.

Please visit our site Employment Law or call attorney Kristina Spitler at (703) 369-4738.

30
Jun
2020

Covenants Not to Compete with Low Wage Employees

(Part Four of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

A new law prohibits Virginia employers from entering into, enforcing, or threatening to enforce non-compete agreements with low wage employees. 

A “low-wage employee” is defined as a worker whose average weekly earnings during the previous 52 weeks “are less than the average weekly wage of the Commonwealth” (emphasis added).  The Virginia Employment Commission (“VEC”) determines the average weekly wage each quarter. Currently, for the first quarter of 2020, the average weekly wage is $1,204.00 a week or $62,608.00 a year.  If an employee’s average weekly earnings fall below the VEC’s average weekly earnings – they qualify as low wage employees. The law also covers low wage interns, students, apprentices, and trainees.

The new law also applies to independent contractors who are compensated for their services at an hourly rate that is less than the median hourly wage for the Commonwealth as reported by the Bureau of Labor Statistics (currently $20.30 per hour).

Under the new law, low-wage employees (including interns, students, apprentices, and trainees) and low-wage independent contractors subject to a non-compete agreement may bring a civil action against an employer and seek appropriate relief, including enjoining the conduct of the employer, ordering payment of liquidated damages, and being awarded lost compensation, damages, and reasonable attorney fees and costs. Employers who violate the law are also subject to a civil penalty of $10,000 per violation.

Employers should be cautious if they have a non-compete agreement with an employee near the low wage threshold since the VEC updates average annual wages each quarter, and the new law does not identify a date employers should use to determine whether an individual qualifies as a  low-wage employee. To illustrate how easily an employee can qualify as having a low wage, in January 2020 an individual who made $58,500 qualified as low wage, and as of April 2020 that number jumped to $62,608.

Posting Requirement: The new law also requires employers to post in the workplace a notice of the prohibition against non-compete agreements for low wage employees. Employers will be issued a warning for their first violation of the posting requirement and will be subject to a civil penalty thereafter.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

30
Jun
2020

Hiring Independent Contractors: New Laws for Virginia Employers

(Part Four of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

Employers Must Report Independent Contractors to the Virginia New Hire Reporting Center

A new law requires Employers to submit independent contractor information to the Virginia New Hire Reporting Center in the same manner as employees if the independent contractor:

  1. Has not previously had a contract with an employer; or
  2. Previously entered into a contract with an employer and received a payment pursuant to the agreement after receiving no payments for at least 60 consecutive days.

Employers Liable if Misclassify Employee as Independent Contractor and Subject to Debarment from Public Contracting

(This new law is effective January 1, 2021.)

A new law prohibits an employer from misclassifying an individual as an independent contractor if s/he is an employee.  Virginia Department of Taxation will determine the correct classification by applying Internal Revenue Service Guidelines.  Any employer, or officer or agent of the employer that fails to properly classify an individual as an employee is subject to a civil penalty of up to $1,000 per misclassified individual for a first offense, and up to $2,500 per misclassified individual for a second offense, and up to $5,000 per misclassified individual for a third or subsequent offense.

In addition to the penalties above, after an employer receives a second notice from the Department of Taxation that they misclassified an independent contractor, all public bodies and covered institutions will be prohibited from awarding a contract to that employer for up to one year. With a third or subsequent notice, all public bodies and covered institutions will be prohibited from awarding a contract to that employer for up to two years.

This law is significant for employers who have contracts with the state, local governments, and/or public institutions of higher education since they risk losing those contracts for independent contractor misclassification.  In addition, an employer faces reputational damage when they receive their first notice of misclassification from the Department of Taxation, as the law provides that the Department will notify all public bodies and covered institutions of the employer’s first misclassification.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

25
Jun
2020

Virginia Minimum Wage Increase

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

Virginia employers will need to comply with a new Virginia minimum wage increase to $9.50 an hour starting May 1, 2021. Initially the minimum wage increase was planned for January 1, 2021, but Governor Northam delayed the increase as a result of the COVID-19 pandemic.

Virginia will also increase the minimum wage several times over the next few years under the following schedule:

  • January 1, 2022 – $11.00 per hour.
  • January 1, 2023 – $12.00 per hour.
  • January 1, 2025 – $13.50 per hour.
  • January 1, 2026 – $15.00 per hour.

Although the initial start of the minimum wage increase was delayed, the subsequent wage increase dates currently remain the same.

These increases would apply to most employees in Virginia, including home care providers (the new law removed home care providers from the list of employees exempt from minimum wage requirements). 

The new minimum wage increase will not just apply to private employers, but also to the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body. 


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

25
Jun
2020

Employers Who Fail to Pay Wages: Employee Private Right of Action

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about.  These laws will significantly impact Virginia employers.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their pay statements, educate and train their supervisors/managers accordingly, and ensure compliance with upcoming state minimum wage and hour increases. If an employer is a general construction contractor, they will also want to review their subcontractor agreements, or face wage and hour liability for subcontractor violations.

Employee Private Right of Action

The General Assembly passed a new law (effective July 1, 2020) which will allow employees to bring a private cause of action against employers who fail to pay them their wages. Under the new law, employees may bring such an action individually, jointly, with other aggrieved employees, or on behalf of similarly situated employees as a collective action. 

General Construction Contractor Liability for Subcontractor Failure to Pay Wages

Under the new law, a general construction contractor is liable for subcontractor wage violations. For any construction contract entered into on or after July 1, 2020, the general contractor and subcontractor are jointly and severally liable to pay the greater of:

  1. The rate and terms in an employment agreement between the subcontractor and its employees, or
  2. The amount of wages the subcontractor is required to pay under applicable law. The general contractor is also subject to all penalties, criminal or civil under existing law.

However, this new law also requires subcontractors to indemnify general contractors (except as stated in a contract) for wages, damages, interest, penalties, or attorney’s fees owed as a result of the subcontractor’s failure to pay, unless the failure to pay subcontractor’s employees was a result of the general contractor’s failure to pay the subcontractor.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

25
Jun
2020

Required Written Statement of Hours Worked

(Part Three of a Four-Part Series

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about.  These laws will significantly impact Virginia employers.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their pay statements, educate and train their supervisors/managers accordingly.

A new law effective January 1, 2020, requires employers to provide employees with a written statement – by a paystub or online accounting – showing the employer’s name and address and the number of hours the employee worked during the pay period. An amendment to this new law, effective March 10, 2020, clarifies that employers must only provide this written statement to employees paid on the basis of:

  • (i) the number of hours worked or
  • (ii) a salary less than the DOL’s minimum salary threshold.

The amendment also clarifies that an employer must provide applicable employees with their rate of pay, gross wages earned during the pay period, the amount and purpose of any deductions therefrom, and sufficient information to enable the employee to determine how the gross and net pay were calculated.

Employers should review pay statements it provides employees to ensure compliance with this enacted law.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

19
Jun
2020

Marijuana, Arrests, Charges, and Convictions: A New Law Creates Changes For Employers.

**Part Two of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.  Vanderpool, Frostick & Nishanian, P.C.

In Part 2, we will address a new law that prohibits employers from inquiring into possession of marijuana for employee applicants, and a law that restricts state agencies and localities when inquiring about arrests, charges, or convictions for employee applicants.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their employment applications, and educate and train their supervisors/managers accordingly.

State Agencies and Localities Prohibited from Inquiring about Arrests, Charges, or Convictions from Employment Applicants.

A new law prohibits Virginia state agencies and localities from inquiring whether a prospective employee has ever been arrested, charged, or convicted of a crime until the staff interview stage of the application process. During or after the staff interview stage of the employment application process, a Virginia state agency and locality may inquire whether an employee has been arrested, charged, or convicted of a crime – but not before.     

However, the new law does not require a state agency or locality to wait until the staff interview stage under the following circumstances: positions designated as sensitive; law enforcement agencies; state agencies expressly permitted to inquire into an individual’s criminal arrests or charges; positions for employment by the local school board; positions responsible for the health, safety, and welfare of citizens or critical infrastructure; and positions with access to federal tax information in approved IRS agreements.

In response to the new law, Virginia state agencies and localities should remove from employment applications questions that ask about a prospective employee’s arrests, charges, or convictions. In addition, state agencies and localities should train employees not to ask applicants about arrests, charges, or convictions until the staff interview stage of the application process.

Prohibition Against Inquiring Into Possession of Marijuana for Employee Applicants

Private Employers

A new law provides that Virginia employers are prohibited from requiring employment applicants to disclose information concerning any arrest, criminal charge, or conviction for unlawful marijuana possession in any application, interview, or otherwise.

Public Employers

This new law also prohibits state and local government agencies, officials, and employees from requesting from applicants for governmental service, information regarding marijuana possession arrests, charges, or convictions.  Unlike the law discussed above – which prohibits state agencies and localities from inquiring into general arrests, charge, or convictions until the staff interview stage – state and local government agencies cannot inquire about marijuana possession arrests, charges, or convictions at any stage of the application process.

However, the new law does permit state agencies to use information from an arrest, charge or conviction that is open for public inspection, for purposes such as:

  1. Screening for full-time or part-time employment with the State Police or a police department or sheriff’s office that is a part of or administered by the Commonwealth or any political subdivision;
  2. Screening persons who apply to be a volunteer with or an employee of an emergency medical services agency;
  3. Screening for full-time or part-time employment with the Department of Forensic Science; or
  4. By the Department of Motor Vehicles for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration.

Penalties for Public and Private Employers

Employers should take this new law seriously since a violation can result in criminal prosecution for individuals who violate the law. A person who willfully violates this law is guilty of a Class 1 misdemeanor for each violation.

If an employer has a form inquiring whether an individual has been charged or convicted of a crime, they should include a carve out stating that this inquiry does not apply to the arrest, criminal charge, or conviction of a person for unlawful possession of marijuana. Similarly, employers should train employees not to inquire about any arrests, charges, or convictions for marijuana possession. Employers should also be aware of EEOC guidance regarding the use of employee arrests, charges, or convictions in employment decisions.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

17
Jun
2020

Sexual orientation, gender identity, and veteran status were added to the list of protected classifications in Virginia

**Part One of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq. Vanderpool, Frostick & Nishanian, P.C.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about. These laws will significantly impact Virginia employers.

Amendments to the Virginia Human Rights Act

The General Assembly passed the Virginia Values Act and other amendments that significantly amended the Virginia Human Rights Act (“VHRA” or “Act”). Generally, it

  1. added additional protected classifications;
  2. further clarified and expanded types of prohibited discrimination
  3. included the requirement that employers provide reasonable accommodations for pregnant workers
  4. expanded the definition of “employer” thus expanding the scope of employers subject to the newly revised Act; and
  5. provided new remedies. Now, almost all Virginia employers (except those with five or less employees) will be subject to the Act, which significantly increases the number of businesses covered by the Act as well as their liability associated with employment discrimination claims.

Additional Protected Classifications and Clarification/Expansion of Types of Discrimination

Sexual orientation, gender identity, and veteran status were added to the list of protected classifications under VHRA. Discrimination based on race was defined to now specifically include discrimination based on traits historically associated with race, including hair texture, hair types, and protective hairstyles such as braids, locks, and twists.

Amendments Related to Pregnancy and Childbirth

While VHRA already prohibits discrimination on the basis of pregnancy and childbirth or related medical conditions, it now specifically states childbirth and related medical conditions includes “lactation.”  Employers are also required to provide reasonable accommodations related to pregnancy, childbirth or other medical conditions including lactation, unless the accommodation would impose an undue hardship on the employer. Employers are also prohibited from taking adverse actions against an employee for requesting such accommodations.

The Act requires employers to provide notice to their employees of these rights by posting information in a conspicuous location and also including it in their employee handbooks. In addition, employers must also provide such information to new employees upon commencement of their employment, and within 10 days of an employee providing notice to the employer that she is pregnant.

Summary of Protected Classifications Under Amended VHRA

Accordingly, pursuant to VHRA as of July 1, 2020, it will be unlawful for an employer to discriminate against an employee because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or status as a veteran.

Expansion to Cover Almost All Employers

Prior to July 1, 2020, VHRA only applied to a very small group of employers that were too small to be covered by federal anti-discrimination laws. Essentially, it only applied to employers with between six and fourteen employees and the law made only it unlawful to terminate employment based on unlawful discrimination.

The new amendments significantly overhaul the VHRA. The amended VHRA defines “employer” to include every business with fifteen or more employees. Therefore, for employers with fifteen or more employees, they are now subject to the VHRA for discrimination in the employment relationship for such things as compensation, promotions, and job assignments.  In addition, the Act will apply to all employers with more than five employees for claims that an employee was unlawfully terminated due to prohibited discrimination (other than based on age).  For age-related termination claims, the Act covers employers with between six and nineteen employees.

Expansion of Remedies

Under the existing VHRA, the remedies for unlawful termination based on prohibited discrimination are limited to twelve months of back pay and recovery of attorneys’ fees of no more than 25% of the backpay award.  The overhauled VHRA no longer has any cap or limit on the type or amount of damages which can be recovered.  Unlike federal anti-discrimination statutes (which caps recoverable compensatory and punitive damages based on an employer’s size), there is no limit on the amount of compensatory damages that an employee who prevails on their claims will be able to recover – regardless of employer’s size. Punitive damages are already capped in Virginia at $350,000.  The new Act also provides that a successful claimant may recover attorneys’ fees.

Public Employers

The new laws also prohibits public employers such as the state and localities, from discriminating against an individual on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, sexual orientation, gender identity, or status as a veteran.

Employers May Not Prohibit Employees from Sharing Wage Information

A new law in Virginia provides that employers may not discharge or take a retaliatory action against employees because they:

  1. Discussed or disclosed information to another employee about their own wages and compensation, or wages of others.
  2. Filed a complaint alleging a violation of this Code with Virginia Department of Labor and Industry.

If employers have a policy prohibiting employees from discussing their wages with others, they should remove or revise this policy so that it complies with updated Virginia law.

However, employers may still prohibit employees from disclosing wage information if that employee has access to employee or applicant data as part of their essential job functions. Therefore, employers can still have a policy prohibiting HR or payroll employees from discussing employee information discovered through their job. However, employers cannot prevent these employees from disclosing this information if it is provided in response to a formal complaint, investigation, or consistent with a legal duty to furnish information.

Employers who violate this statute will be subject to a civil penalty of $100 per violation.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

16
Jun
2020

You signed a contract for your business – Can the other side come after you personally?

Let’s assume that you are the owner of a small business (a corporation or limited liability company) working to obtain a contract for services for the business. You’ve done your research, found a solid services company to work with, negotiated the services and payment details, and are at the conference room table about to sign the contract. 

Two things could happen here – (1) concerned about the success rate of small businesses, the services company requires that you, as owner of the business, sign a personal guaranty; or (2) the services company does not require any cosigner, guarantor, or personal guarantee.

The services company requires that you, as owner of the business, sign a personal guaranty.

As confident as you may feel about the success of your small business, it is actually common for owners of small corporations and/or LLCs to be required to sign personal guarantees when entering a contract for their business. In this scenario, similar to the one above where the good friend cosigned a lending agreement, you must understand that by guaranteeing or personally cosigning your business’ contract, you are signing away the limited liability rights and status that you may otherwise have had. And, in the worst case scenario where your small business defaults on the contract payment terms, the services company will be able to, within the terms of the guarantee, seek payment directly from you personally!

The services company does not require any cosigner, guarantor, or personal guarantee.

In the second scenario, where the services company does not require that anyone cosign or personally guaranty the services contract, it is imperative that you, the small business owner, take care in signing the document. While it may be second nature to just quickly and casually scribble your name on the signature line, failing to include your title and position in the business or, even better, words similar to “president, signing on behalf of small business” may be a fool’s move! 

Without ensuring that it is perfectly clear that you have signed solely on behalf of the business, you open yourself up to possibly being held personally liable for the contract terms and obligations! Even if you do sign the document as described above, you should also be sure that your signature isn’t doing “double duty.” Specifically, fine print, buried deep in the contract may state that the business signer is also personally liable, even if there is only one signature block! This is a very dubious, but increasingly common, provision; why take the tisk? As such, reviewing not only all of the terms and provisions, but also the signature block, of your small business contract, and then taking care in how you sign such contract, is crucial!

Now, what happens if you do not own the business, but rather are an employee who was tasked with obtaining a contract for the business as part of your job?

In this scenario, it is unlikely that you would have signatory power for the company. In other words, you are not able to sign a contract with any meaningful business title using the words suggested in the above paragraph. As a result, you might be signing the contract personally, which, as above, opens you up to potential personal liability for all of the terms and conditions of the contract.

So, if you are this small business employee tasked with obtaining some sort of goods or services contract for your company, while you should feel comfortable researching providers of said goods and services, when it comes time to sign a contract, it is absolutely in your best interest to hand it over to the boss.

By: Attorney Jonathan Gelber