Vanderpool, Frostick & Nishanian, P.C. is honored and proud to announce that 11 of its attorneys have been selected by the Virginia Business Magazine as 2022 Legal Elite. Virginia Business Magazine recognizes each year the leading attorneys in Virginia by practice area. We congratulate our selected attorneys for their great achievement.
(Part Four of a Four-Part Series)
By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.
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:
(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
**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.
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.
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.
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:
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
In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.
If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.
By: Kristina Keech Spitler, Esquire
FOR THE MOST UP TO DATE INFO, PLEASE VISIT OUR COVID-19 PAGE
Given the fast-paced and changing nature of the impacts of the COVID-19 (Corona Virus) pandemic, businesses are working to respond in the best manner possible for the safety of their employees and customers while remaining in compliance with various employment laws and evaluating their ability to keep their businesses viable. On the evening of March 18, 2020, President Trump signed Families First Coronavirus Response Act (“FFCRA”) which amongst other provisions, includes the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, and the Tax Credits For Paid Sick and Paid Family and Medical Leave that generally apply to all employers with fewer than 500 employees.
Businesses are evaluating how to respond to this pandemic which includes dealing with the following challenges (to name just a few of the many issues and concerns):
Please note that this summary is designed to provide general information, is not intended to constitute legal advice, and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, please consult with an attorney.
Employers have a number of issues to consider in this difficult time. If you need legal counsel, please feel free to contact me at 703 369 4738 or kspitler@vfnlaw.com. In addition, please stay safe and healthy.
Employers should frequently review the website for the Center for Disease Control (CDC) regarding guidance and regular updates including its Interim Guidance for Businesses and Employers. https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
Employers should also frequently visit the website for the Virginia Department of Health. http://www.vdh.virginia.gov/coronavirus/
“The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” This statement is contained in OSHA’s Guidance on Preparing Workplaces for COVID-19. Employers should review this resource at the website referenced below. https://www.osha.gov/Publications/OSHA3990.pdf
While working remotely (also called telecommuting or teleworking) is not new and many employers (both small and large) have been allowing employees to do so and/or providing it as a benefit to employees for flexibility and work/life benefit reasons, the COVID-19 pandemic is forcing all employers to consider this as an option for business continuity reasons. If you already allow remote working, you should review and if necessary, amend existing policies – particularly if you previously only allowed remote working for limited periods such as one day per week. If you are new to teleworking or who have previously been reluctant to allow it, there are many resources available on the internet that can help you manage teleworking employees. Below is a site for an article from Harvard Business Review on how to manage newly remote workers. https://hbr.org/2020/03/a-guide-to-managing-your-newly-remote-workers
Employee leave is not a simple issue and involves various laws (and now including the newly enacted Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act as part of the Families First Coronavirus Response Act). Employers should consult with legal counsel to ensure compliance with leave laws.
Generally, employers will need to comply with their current policies or amend them regarding any paid or unpaid leave to provide employees. Employers should also look at their vacation policies. Employers will need to decide if they are going to allow employees to take advance leave/vacation and/or go into the negative if employees need to take leave related to the Corona virus or other illnesses. Employers may need to amend various policies to address these issues. In addition, please see the FFCRA summary below as the Act requires paid sick leave related to the Corona virus under certain conditions for all employers with fewer than 500 employees.
Employers will also need to comply with existing FMLA laws and regulations. Generally, the FMLA applies to employers with 50 or more employees within a 75-mile radius and would not apply to smaller employers. However, please see the FFCRA summary below as the Act amends the FMLA to deal with the Corona virus and applies to all employers with fewer than 500 employees.
For convenience, I have included the website below for Department of Labor’s “COVID19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers” which was published prior to the enactment of FFCRA. https://www.dol.gov/agencies/whd/fmla/pandemic
The FFCRA was enacted quickly in response to the Corona virus and, in part, requires all private for-profit and not-for-profit employers with fewer than 500 employees along with government employers (“Covered Employers”) to provide certain paid sick leave and paid family and medical leave to employees. It also provides that these employers will get a tax credit as described below. There are a lot of unanswered questions about this new legislation. As of the date of this article, DOL has not published any regulations or guidance on compliance with FFCRA. Stay tuned as guidance is expected. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that they “shall take effect not later than 15 days after the date of the enactment of this Act.” As part of FFCRA, it was signed by President Trump on March 18, 2020 so that it would go into effect under the Act by April 2, 2020 at the latest. Both acts end on December 31, 2020.
Covered Employers shall provide employees for immediate use (regardless of how long they have been employed) with up to 10 days of paid sick leave if the employee is unable to work or telework for the following reasons:
The amount of hours of paid sick time for full-time employees is up to 10 days (80 hours). Part time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Unused paid sick leave may not be carried over from one year to the next.
The amount Covered Employers must pay to an employee who is unable to work or telework for one of the above reasons will be the following:
Covered Employers may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave provided under this Act. The Act does not address how to handle if the employer has already provided sick or other type of leave to employees prior to its enactment.
It shall be unlawful for employers to discharge, discipline, or in any other manner discriminate against any employee who takes leave under this Act and who has filed any complaint related to this Act or has or will testify about any such proceeding. Violations of this Act will be considered violations of the Fair Labor Standards Act and employees may be entitled to unpaid wages, liquidated damages, and attorneys’ fees and costs.
Covered Employers are required to post and keep posted in conspicuous places on their premises a notice regarding the rights under this Act. This notice will be prepared by the Secretary of Labor and available at a later date. Secretary of Labor shall make a publicly available model notice within 7 days of enactment.
Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection.
In addition, the Secretary of Labor shall have the authority to issue regulations to: 1) exclude certain health care providers and emergency responders from the definition of employee, including allowing employers of such health care providers and emergency responders to opt out; 2) to exempt small businesses with fewer than 50 employees from the requirements of providing paid sick leave under reason #5 above (the employee is caring for a son or daughter whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions) when the imposition of such requirements would jeopardize the viability of the business as a going concern; and 3) as necessary to carry out the purposes of this Act.
This Act amends the existing Family and Medical Leave Act of 1993. The Act provides that Employees who have been employed for at least 30 days with a Covered Employer will be entitled to take up to 12 weeks of job-protected Emergency FMLA leave for a qualifying need related to a public health emergency of COVID-19. The Act defines this to mean that the employee is unable to work or telework in order to care for a child (under the age of 18) if the child’s school or place of care has been closed or the childcare provider is unavailable due to COVID-19. The first two weeks of the Emergency FMLA leave are unpaid under this Act. During this time, Employee sick leave may be under the Emergency Paid Sick Leave described above or the employee may elect, but may not be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave already provided by the employer. Thereafter, the remaining 10 weeks would be paid Emergency FMLA leave. The amount of pay shall be no less that two-thirds (2/3) of the employee’s usual pay, up to $200 per day ($10,000 total). When the need for such leave is foreseeable, employee shall provide the employer with such notice as is practicable.
It is unclear at this time whether or how employer-provided paid leave would run concurrently with this Emergency FMLA leave and how it would interact with the traditional FMLA leave benefits.
As this is job-protected leave, this means that the employer must restore the employee to the same or equivalent position when s/he returns to work from such leave. However, for Covered Employers who employ fewer than 25 employees, the Act provides that this job restoration provision shall not apply if 1) the position does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave; and 2) the employer makes reasonable efforts to restore the employee to an equivalent position during the year following the conclusion of the leave period.
Similar to the Emergency Paid Sick Leave Act, Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection. In addition, the Secretary of Labor shall have the authority to issue regulations to 1) exclude certain health care providers and emergency responders from the definition of employee; and 2) to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.
Covered Employers who provide Emergency Paid Sick Leave and Emergency FMLA Leave will be eligible for refundable tax credits on their payroll tax payments equal to 100% of the amount paid (up to the maximum amount authorized by each Act) during each quarter.
For employers who are covered by the Americans with Disabilities Act (15 or more employees), the U.S. Equal Employment Opportunity Commission (“EEOC”) has provided guidance on complying with the ADA and Rehabilitation Act, including requirements for reasonable accommodations and rules about medical examinations and inquiries. On March 19, 2020, the EEOC clarified that while both Acts continue to apply, they do not interfere with or prevent employers from following the guidelines and suggestions by the CDC or state/local public health authorities. See the EEOC’s webpage and the EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act below. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm https://www.eeoc.gov/facts/pandemic_flu.html
Employers need to be careful to ensure that they are complying with the FLSA when evaluating how to correctly pay their employees (exempt and nonexempt) given all the variables in play during this pandemic. Employers should consult with legal counsel to ensure they are complying with the FLSA. In addition, please see the guidance that the Department of Labor has provided: “COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers.” https://www.dol.gov/agencies/whd/flsa/pandemic
Evaluating whether a business should close down now and conserve resources with the hope of being able to reopen in the future is a complicated and difficult decision. The decisions regarding whether to terminate, layoff or furlough some or all employees is equally as difficult. Both issues are beyond the scope of this article. In the event that employers do terminate employees and/or significantly reduce their hours, generally the employees may apply for unemployment benefits with the Virginia Employment Commission. Note that beginning March 15, 2020, the one week waiting period and the requirement to conduct a weekly job search has been suspended by the Governor in response to the pandemic. See the Virginia Employment Commission website below. http://www.vec.virginia.gov/
Businesses should also be aware of the Worker Adjustment and Retraining Notification Act (“WARN Act”) which generally requires that employers with 100 or more employees provide certain notices of intention when closing a facility with 50 or more employees and/or laying off 50 or more employees. The Virginia VEC has established a rapid response team to help in this situation. See VEC website above.
Join Vanderpool, Frostick & Nishanian, P.C.’s employment law attorneys Kris Spitler and Brendan Cassidy for a presentation on how to create an effective and compliant employee handbook.
Whether you are creating a brand new handbook or revising your current handbook, spending the time to properly craft the policies in your employee handbook can help ensure that they fit your Company’s business needs, do not expose it to liability, and provide employers with defenses against common charges brought by employees.
Wednesday, Oct. 23rd
6:30 p.m. – 8:30 p.m.
Centerfuse in Manassas
Join VF&N’s litigation attorney Brett Callahan as she presents at the Oct. YPNOVA Success Series Seminar: Avoiding Litigation.
Ms. Callahan will cover common mistakes businesses make that can lead to or increase the risk of litigation related to contracts, real estate, employment, intellectual property, business formation, and compliance.
Open to the public, YPNOVA membership not required.
In a press release by the Australian Minister for Defence; issued March 06, 2019 it was announced that “the Royal Australian Navy (RAN) will receive a new sovereign air transportable Submarine Rescue Service capability under a contract with Phoenix International (Australia).”
Attorney Christopher Collins speaks to the proposal efforts, the due diligence performed to vet subcontractors and the importance of solid teaming agreements.
ICE Agents have been active recently in the Prince William area and other parts of the VA/DC/MD metropolitan area, investigating businesses (especially small and medium companies) to determine compliance with properly completing and retaining I-9 forms. Employers in industries involving construction, restaurants, landscaping, and janitorial/cleaning services are frequently (but by no means the only) targets of ICE investigations.
U.S. Immigration and Customs Enforcement (ICE) (an agency within the Department of Homeland Security) has significantly increased its efforts to reduce unlawful immigration employment practices under the Immigration Reform and Control Act (IRCA). Employers are legally required to verify the identity of the person they hire and to confirm that they are eligible to work in the United States. The law further requires that employers document this process by completing a Form I-9 for each person they hire.
ICE has focused enforcement efforts on employers who hire an illegal workforce. They follow up on tips provided by the public and conduct random and unannounced audits of employer records to determine if the company has complied with its legal obligations. They do not need probable cause to investigate your business nor do they need to have a tip.
The mandatory I-9 forms must be completed every time you make a new hire. The form must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later. If ICE has been given a tip or the business has been selected for an audit, ICE will present you with a Notice of Inspection.
The notice of inspection usually requests the following records from the company:
Upon notice, you have three business days to provide the investigating officers with the requested documents.
Failure of employers to comply with IRCA can result in substantial civil fines and ultimately, possible criminal prosecution if you are found to have knowingly violated the law.
If you have not yet been the subject of an investigation, you can take steps to protect your business. Employers should conduct confidential internal audits of your I-9 forms with the help of your employment lawyer. This process can help you correct any potential problems before an inspection and avoid possible fines. It is also beneficial to have knowledgeable employment counsel conduct periodic training of your personnel assigned to handle your I-9s.
Kristina Keech Spitler, Esq., with Vanderpool, Frostick & Nishanian is ready to help your business respond to an ICE inspection, provide a confidential internal Form I-9 audit, and/or help train your personnel to properly complete and retain I-9 forms.
Kristina Keech Spitler is a Shareholder and Head of the Employment Law Practice of Vanderpool, Frostick & Nishanian, PC. With over thirty years of experience, Kris has been recognized as “Legal Elite” in Employment Law by Virginia Business Magazine, as well as a “Leader in the Law” and an “Influential Women of Law” by Virginia Lawyers Weekly. You can reach Kris at (703)369-4738 or kspitler@vfnlaw.com.
** The information contained in this website is provided for informational purposes only and should not be construed as legal advice.
The government directs 23% of its procurement to small businesses from local, state & federal agencies, large primes and military installations. But some contracts are just too large for many to handle alone. When this is the case, small businesses can team up with one or more other businesses to collectively perform the contract. Learn from a panel of experts, to include VF&N attorney Kris Spitler and attorney Chris Collins, on how teaming is a great way for small businesses to build credibility and demonstrate proficiency to the government and other contractors.
Highlights will include how to raise the bar and maintain your business’ reputation; strategically vet external/internal partners before you win the contract; ask the pre-questions that matter to long-term collaborations; and address some of the common legal concerns regarding teaming.
Presented by the Government Contracting Council of the Prince William Chamber of Commerce.
Thursday, May 2, 2019 from 8:00-10:00 a.m.
9720 Capital Ct., Ste. 203; Manassas VA 20110
$35/Non chamber members.
Register today: Click Here
Light breakfast provided.