(703) 369-4738

23
Nov
2022

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

14
Sep
2022

Vanderpool, Frostick & Nishanian, P.C. is Pleased to Announce!!

Vanderpool Frostick & Nishanian, P.C. (VF&N) is pleased to announce that Mr. Stephen Lofaso has joined VF&N as a senior associate. Stephen Lofaso is an accomplished litigator with an extensive background in business law, accounting, and business litigation.

Mr. Lofaso has a consistent record of getting positive results for his clients and as such, has effectively advocated and procured judgments or reached favorable settlements for his clients in cases ranging from breach of fiduciary duty, conversion (civil theft), breach of contract, civil conspiracy to injure business, tortious interference with contracts, detinue, unlawful detainer, and constructive eviction. Mr. Lofaso will continue his practice as part of the VF&N litigation practice group.


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

12
Sep
2022

2022 Immigration Updates: A comprehensive CLE on Basic Knowledge on Immigration Law

Written by: Lisa Shea, Esq.

VFN Attorneys Lisa Shea, Meghan Philips, and Morsal Hashimee will be presenting a CLE on 2022 Immigration Updates:  The Latest on Crimimm (immigration consequences of crimes), Special Immigrant Juvenile Status, Other Humanitarian Relief, and What’s in the News

This comprehensive CLE will presume basic knowledge of immigration and will be updating participants on changes in immigration law that affect other areas of the law.  The presentation will also explain what has been happening in immigration news so that participants have conversation starters at dinner!  This four-hour CLE will include ethics credits and lunch.  There will be time for questions during and after the presentation.  We look forward to seeing you there! The event will take place on October 6, 2022, at the City Tavern from 12:00 PM to 4:30 PM.  Lunch will be included.  Please contact Peyton Gwinn at:  deputydirector@pwcba.org  to register.  CLE credit will be available.


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

1
Sep
2022

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

17
Aug
2022

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

16
Aug
2022

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

31
May
2022

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

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

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

24
Jan
2022

Labor Reforms Targeted as Virginia Prepares for a Change in Administration

Written by: Monica Munin, Esq.

Republican governor Glenn Youngkin assumed office on January 15, 2022, enacting 11 executive orders including orders that; end mandatory masking for children in grade K-12; ban critical race theory from state classrooms; promise to “investigate wrongdoing” in Loudoun County Public Schools; and, promise to cut workplace regulations.  Consequently, the fate of recent labor reforms in Virginia, including a scheduled increase to the State’s minimum wage, domestic workers bill of rights, and the COVID-19 emergency standard, remains uncertain.  Republicans swept the State’s elections this year, claiming the governor’s office, lieutenant governor’s office, attorney general’s office, and a majority in the House of Delegates. Youngkin cast himself as an employer-friendly candidate who would eliminate “job-killing regulations” and oppose government lead vaccination mandates.

While it is not yet clear how far Republican can or will go to stem or otherwise reverse the policies implemented during the Governor Northam’s administration, Youngkin has wasted no time preparing for a change in priorities.  In addition to the 11 executive orders signed on his first day in office, Youngkin delivered an address outlining his plan for education and tax reform.  Prior to his swearing in, Youngkin had also announced that he intends to appoint George “Bryan” Slater, as state labor secretary.  Slater was a former U/S/ Labor Department official under the Trump administration and served as White House liaison to the Labor Department under President George W. Bush as well. Democrats currently retain control of the State Chamber, which is not up for reelection until 2023.

Nonetheless, incoming Republicans in the State legislature are hoping to capitalize on Youngkin’s win and pass a number of bills, including a freeze on the scheduled increase to the state’s minimum wage which would keep the minimum wage at $11, bills limiting domestic worker protections, and bills intended to prevent cities and counties from using government contracts to ensure wage rates and employee benefits beyond what is currently required by state or federal law.

Worried about what the change in administration means for your business? Confused about how to proceed? Please feel free to reach out by way of phone or email Monica Munin for guidance.

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