Best Boss = Great Employee = Stellar Team; Rules! Rules! Rules!; Kick the Ball
by M. Jarrad Wright
Now that fall is here, it’s a good time for you to make sure you are in compliance with newly effective Commonwealth of Virginia laws affecting the workplace. This year, there are two such laws of which you need to be aware. One affects the scope of nondisclosure agreements, and the other requires you to provide certain personnel records to your employees.
The #MeToo movement has highlighted the common practice in the resolution of sexual harassment claims to require employees to keep completely confidential any information regarding the complaint that was made. This practice has come under increased criticism for covering up the wrongdoing of corporate executives and enabling them to continue their harassing and untoward behavior.
Some advocates have gone so far as to call for the ban of such agreements based on public policy grounds. Indeed, in this year alone, proposed legislation relating to limiting or prohibiting nondisclosure agreements has been introduced in 16 states.
One of those states is Virginia, where the general assembly passed a law limiting the confidentiality requirements an employer may impose on an employee. At the beginning of this year’s general assembly session, Delegate Karrie Delaney (D-Centreville) introduced House Bill (HB) 1820. The bill prohibits an employer from requiring a current or prospective employee—as a condition of employment—to sign confidentiality agreements or nondisclosure agreements that have the purpose of concealing the details relating to sexual assault claims, including rape, forcible sodomy, sexual battery, and aggravated sexual battery.
The legislation says such a nondisclosure provision is against the Commonwealth’s public policy and is void and unenforceable. The general assembly unanimously passed HB 1820, and Governor Ralph Northam signed it. The new law became effective on July 1, 2019.
Steps to take
The law applies to new confidentiality provisions being executed and renewals of nondisclosure agreements. Nonetheless, courts interpreting the new statute are likely to prohibit the enforcement of any provision in a current agreement that doesn’t conform to the new legal requirements. Accordingly, you should review your current nondisclosure agreements, including those that may be in your employee handbook, to make sure the language could not be read as running afoul of the new law.
Also, when drafting new agreements for your employees to sign, keep the new law’s limitations in mind. Given the importance of this issue, especially in the wake of mounting criticism of—and hostility to—nondisclosure restrictions, it’s advisable to consult with knowledgeable employment counsel to make certain your agreements won’t be struck down as against public policy.
In the past, private-sector Virginia employers haven’t needed to provide either current or former employees with access to their personnel files or other records, nor were employees or former employees entitled to copies of their records. That was then. In July, a new legal requirement took effect. Now, under new Virginia Code § 8.01-43.1, you must provide the following records to current and former employees:
- Dates of employment with your company;
- Their wages or salary during their employment;
- Their job description and job title; and
- Any injuries sustained during the course of employment.
Upon receipt of a written request, you will need to provide the records within 30 days. The law allows you to charge a reasonable fee per page for copying the records if they are kept in paper format and a reasonable fee for providing electronic records. If you need more than 30 days, you must provide a written notice of the delay. Such written notice will give you another 30 days to comply.
The only statutory exception to producing the required records is if the employee’s treating physician or clinical psychologist, in the exercise of professional judgment, has determined that releasing the records is reasonably likely to endanger the life or physical safety of the employee or another person. In this limited circumstance, you still must provide the records if they are to go to the employee’s attorney or authorized insurer, rather than directly to the employee. Of course, this exception is very narrow, so in most cases you will need to comply with the new law’s disclosure and production requirements.
Failure to abide by the new legal requirement can have serious consequences. Employees can enforce the new law by subpoenaing the documents from you. If you then intentionally refuse to comply with the subpoena, you may end up in court. If the court finds you failed to follow the law, it may award damages, costs, and attorneys’ fees. That is a result you don’t want to face.
Accordingly, you should review your employee handbooks, policies, and employment agreements to ensure the provisions dealing with the production of employee records conform to the new legal requirements. It’s also important to follow the time limits for record requests. To ensure that is done, you may want to designate a person within HR who is responsible for receiving, evaluating, and ultimately responding to personnel records requests. By doing so, you will be far less likely to run afoul of the new law, especially the 30-day window to respond to a written request.
Potential legal concerns
In addition to making certain you have the procedures in place to provide personnel records to current and former employees, you need to bear in mind that the records you produce, especially wage and salary information, won’t necessarily stay confidential. The documents may well be circulated among your employees who will be able to compare what they are paid to that of their colleagues.
For many employers, this may not present any problem. There always is a potential, however, that wage comparisons will indicate disparities in what employees are paid that might create legal problems for you. For example, if most of your female employees are paid less than their male peers doing comparable jobs, the wage disparity may well indicate sex discrimination.
To avoid any potential problems down the road, now is a good time to take a look at your pay practices. If disparities exist, be prepared to provide a business-related reason for the differences. If, in the course of your analysis, you determine some of the wage disparities aren’t business-justified, then you should take steps to correct any problem. Because wage disparity issues raise potential liability concerns, consult with employment counsel about how best to deal with the situation. An ounce of prevention truly will outweigh any costs of having to defend against a charge of discriminatory pay practices.
The Rocket Docket Interview Series—Interview with Jarred Wright; A Blind Man and a Website Part 2;Is Obesity a Disability Under the ADA?
Happy Anniversary DGRead!!!; The Ultimate View From The Bench; Gun Violence—Summer of Tragedy
by Jonathan R. Mook
As I am writing this message to you, the readers of Virginia Employment Law Letter, the last of the 22 funerals for the victims of the tragic shooting in El Paso are being held. It seems unfathomable that this horrific act was followed less than a day later by another mass shooting outside a bar in Dayton, Ohio.
Summer of tragedy
Put bluntly, this has been a summer of tragedy. Starting with the shootings of 12 Virginia Beach city employees by a coworker who had just resigned, the summer days have been marked by the names of the gun violence victims. And, unfortunately, by the time you read this message, I am all too certain other shootings will have been added to the list.
If the too many lives lost aren’t enough, we also seem paralyzed as a nation to come to grips with the evil that is amongst us. We appear unable or unwilling to take concrete steps to reduce the unconscionable number of persons whose lives are cut short by gunfire each year.
After the Virginia Beach mass shooting, Governor Ralph Northam summoned lawmakers back to the state capitol for a special session to take up a package of gun control measures. The governor said the action was urgently needed to prevent further killings like those at Virginia Beach.
The special session ended virtually as soon as it began, however, with no action being taken—even though opinion polls suggest a vast majority of Commonwealth residents support gun safety legislation, including a ban on silencers and high-capacity ammunition magazines, as well as broadening local government’s ability to limit guns in city buildings.
What can HR do?
Given the fractious political times, it doesn’t seem likely we can rely on our public officials to keep guns out of the hands of those who may cause harm. Fortunately, as employers, managers, and HR professionals, you can play a role in helping to lessen the chance that your coworkers will become the victims of a shooter’s hostility.
Of course, there are no foolproof tactics to ensure your business won’t become the next target of a deranged individual’s desire to seek revenge or have his 15 minutes of fame. Nevertheless, here are five measures you can take to lessen the likelihood of a tragic event from occurring:
Create secure and safe work environment. Although we’d all prefer to have an open work environment, unfortunately, you need to limit access solely to those who work there or otherwise have authorization to be present. That is probably the most basic step you can take to help prevent outsiders (including former employees and current workers’ spouses or significant others) from entering your facility to wreak vengeance or otherwise engage in violent conduct. Here are some concrete steps:
- Securing your facility can range from the simple act of installing locks on office doors to putting in more sophisticated security systems with key card access and video monitoring.
- Visitors who have been authorized to access your facility should be required to show identification and wear a visitor’s pass, which must be returned to a guard or receptionist when they exit.
- If you’ve received threats from a disgruntled former employee, alert the security guards at your facility, and provide them with a photograph of the individual.
- Stopping a potential shooter before he gets into your facility can go a long way toward preventing a tragic situation from occurring.
Institute security training. You probably provide employees and managers with training already. In addition to the traditional types of instruction, consider instituting security training to inform employees about the behavior or red flags that may indicate a coworker could be poised or planning to engage in violent behavior.
You don’t want employees providing you with mere suppositions based on their “feelings.” But, if certain actions or behaviors are causing concern that your employees observe and can articulate to human resources, encourage them to let you know. That way, you (not the employees) can evaluate the situation and take appropriate action if necessary. Let them be your eyes and ears.
Have open-door policy. Make sure (and continually emphasize to employees) that HR has an open-door policy. Any time they feel they aren’t being treated fairly, they should feel free to come to HR and discuss the situation.
Don’t let workplace problems fester. Doing so will only exacerbate the situation, which, if left unaddressed for too long, may well explode into a violent confrontation. Nick problems in the bud while they are manageable. Don’t wait until a crisis develops.
Review employee handbook and other policies. Your written policies should clearly state (1) workplace safety is of the highest priority, and (2) your company or organization has zero tolerance for violence. Also, make sure your employees understand that engaging in violent or threatening conduct will be subject to discipline that includes termination when appropriate.
Private employers should have a written policy in their handbook (and, additionally, distributed to all employees) stating that weapons are prohibited inside the workplace and in their parking areas. (Public employers have less leeway.)
If you have reason to believe an employee has brought a firearm into the workplace in violation of your written policy, take prompt action. Inform the individual that having a gun in the workplace is prohibited, and unless he removes the weapon, he will be terminated. The Second Amendment gives persons the right to bear arms, but the restriction doesn’t apply to private employers or allow employees to carry weapons wherever they like.
Impose discipline, including termination, in respectful fashion. We all remember the classic Aretha Franklin song “Respect.” The recording has as much relevance today as it did in the 1960s, not only in personal relationships with our friends, spouses, or significant others, but also with employees and coworkers.
Train your managers to be aware and understand that their actions may give rise to a violent reaction by an employee under their supervision. Negative performance reviews can certainly trigger violent reactions by the individual being evaluated. When realistically analyzing and criticizing an employee’s work, be as constructive as possible. The point of your remarks should be to alert the employee about the deficiencies and, more important, provide him with a pathway to perform better.
Accordingly, your supervisors, in conjunction with HR, should think through how a negative evaluation will be conveyed to the employee. Attacking or demeaning him for poor work performance benefits no one—not him, not you, and certainly not your company. You could be sowing the seeds of resentment that later lead to a violent outburst and the potential loss of life.
If you need to terminate an employee for job performance reasons, again, do so in a respectful—not humiliating—way. Don’t escort an employee out the door in front of all of her colleagues, which can only create bitterness on her part. Shaming an individual isn’t an appropriate technique for supervising or managing your employees.
The five recommendations above are but a few of the steps you can take to deal with what seems to be an epidemic of violence in our country. As an HR professional, you can play an important role in ensuring your workplace is safe, and employees feel secure enough to carry out their job duties in a cooperative and productive manner. To make the world a better place, the simple truth is we need to start in our own backyards. Yes, it’s only a start, but a critically important one.
The Hotline: What’s Hot Right Now?; More Pages PLEASE!; Working At Home – Reasonable Accommodation or No?
Focus on Mental Health; A Blind Man and A Website; Sexual orientation Discrimination – Did It Fly?; Who’s The Best?
by Corey Zoldan
Getting a discrimination lawsuit dismissed without a trial is never easy. Fortunately, there are multiple ways to mount a legal defense against a discrimination claim filed by one of your employees that can resolve the case in your favor before you need to face a jury. A recent case filed by the former deputy chief of the Bedford police force is illustrative.
In our December 2018 issue, we introduced you to Carla Beels Spencer, an openly gay woman who was terminated from her job as the deputy chief of police by the town of Bedford (see “Virginia court examines whether sexual orientation is protected by federal law” on pg. 3 of that issue). Spencer sued the town, alleging she was fired after only eight months on the job because of her sex (i.e., because she’s a gay woman), in violation of Title VII. She didn’t pursue a specific claim based on her sexual orientation, presumably because the status of Title VII’s protection for sexual orientation remains in flux.
As we reported in December, Bedford’s attempt to have Spencer’s entire case dismissed based on the facts she alleged in her complaint was rejected by Judge Norman Moon of the federal district court in Lynchburg. Judge Moon dismissed a portion of Spencer’s lawsuit, but he let the remainder of the case proceed to the discovery, or fact-finding, stage. Following discovery, Bedford again requested summary judgment, asking Judge Moon to dismiss the case without a trial.
At the summary judgment stage, Title VII claims based on indirect evidence of discrimination (like Spencer’s case) are examined under the burden-shifting framework enunciated by the U.S. Supreme Court in its 1973 decision in McDonnell Douglas Corp. v. Green. First, the employee must establish a prima facie (or “first impression”) case of actionable employment discrimination. Then, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. If the employer is able to do that, the burden shifts back to the employee to prove the employer’s reason is a pretext (or smokescreen) for actual discrimination.
Using the McDonnell Douglas framework, Bedford argued in its summary judgment motion that Spencer both (1) failed to establish a prima facie case for her remaining discrimination claims and (2) failed to show its stated reasons for firing her weren’t the true reasons but were simply pretext for discrimination.
In assessing Bedford’s motion, Judge Moon concluded that Spencer was able to establish a prima facie case of discrimination by showing she (1) is a member of a protected class (i.e., she is a woman), (2) was doing a satisfactory job, (3) suffered an adverse employment action when she was terminated, and (4) was treated differently than similarly situated employees outside her protected class. At this point, the burden shifted to Bedford to provide a legitimate nondiscriminatory reason for terminating her.
The primary reason Bedford gave for firing Spencer (among other performance-related secondary reasons) was that she hadn’t completed the police department’s National Law Enforcement Challenge application and had lied to the police chief about her efforts to do so. The burden then shifted back to Spencer to prove the city’s stated reason was a mere pretext for sex discrimination.
Spencer faced an uphill battle in proving pretext, Judge Moon explained, because when “the hirer and firer are the same individual [as was the case here] and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.” Further, Bedford was able to bolster its defense with e-mails that contradicted her discrimination claims as well as evidence that she lied about when she obtained certain documents requested by her supervisor.
Although Spencer clearly didn’t agree with Bedford’s explanation for her termination, Judge Moon noted such disagreement wasn’t sufficient to show the employer’s “decision to fire her for falsifying her records was dishonest or not the real reason for her termination.” Without additional proof, the judge wouldn’t allow Spencer’s personal opinions to change his analysis of the deficiencies in her case.
Based on Spencer’s lack of evidence, Judge Moon ruled there was no genuine dispute over the material facts in the case, and those facts failed to demonstrate Bedford had discriminated against her. Accordingly, he dismissed all of her remaining discrimination claims. Spencer v. Town of Bedford, C.A. No. 6:18-cv-31 (W.D.Va., May 23, 2019).
Judge Moon’s decision in this case provides insight into the evidence you will need to get an employment discrimination case dismissed before you have to go through an expensive, and often unpredictable, jury trial. The lesson here may seem obvious, but it can be easy to forget: A legitimate reason for terminating an employee should always carry the day.
You should be proactive in gathering and preserving documents and other evidence of your nondiscriminatory reason for firing an employee contemporaneously with the decision to terminate her and any related internal investigation. That evidence will be crucial in convincing a court that any adverse action you may have taken against the employee was based on objective performance factors and wasn’t tainted by discriminatory motives or stereotypes.
Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at email@example.com.
CLE: Which One of These Titles is Correct?; Nina Ginsberg, President of the National Association of Criminal Defense Lawyers; Is Obesity Covered by the ADA?
About Our Firm
DiMuro Ginsberg focuses primarily
on general and complex litigation in the areas of corporate and commercial law, business torts, RICO, criminal law, employment & labor law, and professional liability & ethics.
1101 King Street, Suite 610
Alexandria, Virginia 22314