Virginia News & Analysis

  • Virginia State University prof's pay discrimination claim rejected by 4th Circuit

    The 4th Circuit recently rejected a female college professor's claim that she was paid less than two male university employees because of her gender. The court found the employee had not shown the other two employees she compared herself with performed work that was substantially equal to hers. The court's decision provides helpful guidance for employers reviewing their pay practices to ensure employees are being paid in a nondiscriminatory manner.

  • Agency Action

    NLRB switches standard relating to CBA changes. The National Labor Relations Board (NLRB) in September adopted the "contract coverage" standard for determining whether a unionized employer's unilateral change in a term or condition of employment violates the National Labor Relations Act (NLRA). In doing so, the NLRB abandoned the "clear and unmistakable waiver" standard. Under the contract coverage standard, the Board will examine the plain language of the parties' collective bargaining agreement (CBA) to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, the employer will not have violated the NLRA. If the CBA doesn't cover the employer's disputed action, the employer will have violated the Act unless it demonstrates the union waived its right to bargain over the change or it was privileged to act unilaterally for some other reason. The decision is M.V. Transportation, Inc.

  • Workplace Trends

    Growing skills gap called serious drag on business. A new survey of HR leaders shows the skills gap grew by 12% since last year. According to the study "Closing the Skills Gap 2019" from Wiley Education Services and Future Workplace, 64% of the 600 HR leaders surveyed said there is a skills gap in their company, up from 52% in the 2018 report. This year, 44% of HR leaders reported it was more difficult to fill their skills gap than it was last year, and 42% said the skills gap was making their company less efficient. The report also found that 40% of employers estimate that a skill is usable for four years or less and that fast-paced obsolescence escalates the need to hire or train workers.

  • What's the meaning of 'sex'? Supreme Court will finally provide the answer

    The Employment Law Question of the Decade is: Does the prohibition against sex-based discrimination include discrimination based on gender identity and sexual orientation? After countless debates on the issue in courts throughout the land, including in Virginia, the U.S. Supreme Court is finally primed to give its answer in three cases being argued this term. Whatever answer the Court gives will irrevocably change the landscape for employers across the country. And even as the Court is considering this blockbuster question, Gavin Grimm is continuing the fight to retain his court victory allowing him to use the school restroom that corresponds to his gender identity.

  • Rape allegations don't preclude that employee was acting within the scope of employment

    The Virginia Supreme Court recently reemphasized the jury's role in resolving fact issues, while reaffirming the standard for establishing an employer's vicarious liability for its employees' tortious (wrongful) acts.

  • Employer settles ADA employee testing suit

    In our November 2018 issue, we discussed a disability discrimination case filed by an employee with attention deficit hyperactivity disorder (ADHD) who couldn't read and claimed he had been placed on indefinite unpaid leave after failing a written test even though he was able to perform his essential job functions. Although the case has now ended, the litigation provides some useful lessons for employers in dealing with employees who have intellectual disabilities.

  • New OT rule sparks questions beyond where to set salary threshold for 'exempt' status

    The thought of immigration enforcement agents surrounding a workplace, seizing business records, questioning employees, and even making arrests is worrisome to say the least. But it has been and likely will continue to be a reality for many employers since audits and raids by U.S. Immigration and Customs Enforcement (ICE) are on the upswing. Plus, the Social Security Administration has once again begun sending "no-match letters" to employers that have W-2 forms with mismatched names and Social Security numbers. Now referred to as educational correspondence (EDCOR) or an employer correction request (ECR), the letters require employers to take action to resolve the problem. So the signals are clear: Employers with undocumented workers are on notice that they face serious consequences.

  • Preparation, training help employers cope with unsettling ICE news

    The thought of immigration enforcement agents surrounding a workplace, seizing business records, questioning employees, and even making arrests is worrisome to say the least. But it has been and likely will continue to be a reality for many employers since audits and raids by U.S. Immigration and Customs Enforcement (ICE) are on the upswing. Plus, the Social Security Administration has once again begun sending "no-match letters" to employers that have W-2 forms with mismatched names and Social Security numbers. Now referred to as educational correspondence (EDCOR) or an employer correction request (ECR), the letters require employers to take action to resolve the problem. So the signals are clear: Employers with undocumented workers are on notice that they face serious consequences.

  • Agency Action

    USCIS releases guidance on employment authorization. U.S. Citizenship and Immigration Services (USCIS) in August announced new policy guidance to address its discretion to grant employment authorization to foreign nationals who are paroled into the United States, including those who are otherwise inadmissible. The agency explained that certain foreign nationals may be paroled into the country for urgent humanitarian reasons or significant public benefit, but they aren't entitled to employment authorization solely because of that. Instead, they must establish eligibility and apply for employment authorization. USCIS will consider employment authorization for parolees only when, based on the facts and circumstances of each individual case, it finds a favorable exercise of discretion is warranted. The agency said it is taking the action in response to "the national emergency at the southern border."

  • 'Complete victory, for now': Gavin Grimm wins again, but saga not over

    After years of litigation that took him to the steps of the U.S. Supreme Court, Gavin Grimm finally obtained what he has been fighting to achieve—a court decision declaring his legal right to use the restroom at his high school that aligns with his gender identity. Assuming it is upheld on appeal, the court's ruling recognizing the rights of transgender persons may have significant impact for years to come not only in Virginia but also across the rest of the country as well.