Andrea Moseley to speak at the Southeastern Association of Law Schools (SEALS) Annual Meeting

Andrea’s program, “Growing Cannabis Law: When Grass Becomes Cash,” will be part of the legal educator panels and discussion groups that offer law professors an opportunity to enhance their classroom teaching.

The panel’s discuss will focus on the law reforms that are sprouting throughout the country. Many states now permit restricted medicinal or recreational use, possession, sale, cultivation, and transportation, creating a cash-crop business opportunity. Yet federal law still prohibits cannabis activities. If a state passes a law to decriminalize cannabis, however, the federal government permits it so as long as a state regulation system is in place.

This discussion group will explore the many facets of law relating to cannabis such as property, commercial, and criminal law. They will examine vexing issues including state-federal conflicts and discriminatory effects as well as whether decriminalization promotes substance abuse. Also considered will the banking, tax, bankruptcy, intellectual property, insurance, international trade, interstate transportation, and antitrust implications.

Read more about the SEALS program here.

Is Your Noncompete Enforceable?

Noncompete agreements can be an effective way to prevent your employees from leaving your employ to work for a rival business using the skills, information and contacts they acquired while working for you. However, for a noncompete to be effective, it has to be enforceable as demonstrated by the decision in NVR, Inc. v. Nelson from the federal district court in Alexandria.

An article analyzing the court’s decision by DiMuroGinsberg attorney, Jayna Genti, appears in the June, 2017 issue of the Virginia Employment Law Letter. Jayna’s article entitled “Virginia Court Voids Employer’s Noncompete,” discusses the problems the court found with the noncompete’s indefinite geographic limitations and overbroad scope. As Jayna’s article explains, noncompetes must be drafted to ensure that the restrictions are clear and definite and do not unduly restrict the work opportunities of a former employee.

Click here for a copy of Jayna’s article.

For a copy of the opinion, NVR, Inc. v. Nelson, or to subscribe to the Virginia Employment Law Letter, please contact mkraftschik@dimuro.com.

Venue in Patent Infringement Cases – Where Do We Stand?

As has been widely publicized, the Supreme Court recently affirmed that the rules governing where a patent infringement case may be brought against corporate defendants are distinct from those involving other causes of action in the federal system. Specifically, the Court held that in patent cases, the relevant statute, 28 U.S.C. § 1400(b), mandates that the case be brought where the accused corporate infringer is incorporated or has committed acts of infringement and has a regular and established place of business, whereas in other federal cases, venue is proper wherever the corporation is subject to personal jurisdiction, 28 U.S.C. § 1391(c). TC Heartland LLC v. Kraft Foods Group Brands, LLC, ___ U.S. ___, 137 S. Ct. 1514, 1516-17 (2017). The Court affirmed that its 1957 decision in Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 226 (1957) still controls on the issue of venue in patent cases, and held that the ruling by the Court of Appeals for the Federal Circuit (“Federal Circuit”) that Fourco had been overruled by intervening amendments to the venue statute – a rule that had controlled in patent infringement cases for 27 years – was incorrect. Id.

The impact of the TC Heartland decision is, on the one hand, straightforward, but not so much on the other. It is now clear that for purposes of patent infringement, a corporation “resides” only where it is incorporated. TC Heartland, 137 S. Ct. at 1517. At the same time, the rule still stands that a defendant can waive its challenge to venue, and a venue challenge must generally be made at the pleadings stage. Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979); Fed. R. Civ. P. 12(b), 12(h)(1). Accordingly, must cases where venue was proper under the now-rejected Federal Circuit rule be transferred in light of TC Heartland’s change of the law? And, what are the parameters of a “regular and established place of business” under TC Heartland? An early decision from the Eastern District of Virginia (“EDVA”), one of the first decisions applying TC Heartland, addresses both these questions.

Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15cv21, 2017 WL 2556679 (E.D. Va. Jun. 7, 2017) involved a litigation filed in 2015 under the Federal Circuit’s interpretation that venue in a patent infringement case is proper in any district where the corporation is subject to personal jurisdiction. The defendants had initially conceded that venue was proper under what they believed was controlling law, but had moved to transfer to a more convenient forum. Id. at *1. Defendants’ motion was denied, and the parties moved forward with the litigation, including claim construction proceedings, a motion for summary judgment, and motions in limine. Id. Days after the final pretrial conference, the TC Heartland decision issued and defendants brought a renewed motion to transfer. Id.

The EDVA first found that defendants’ delay in bringing the venue challenge was not excused as an exception that is available “when there has been an intervening change in the law recognizing an issue that was not previously available.” See Holland v. Big River Minerals Corp., 181 F.3d 597, 605-06 (4th Cir. 1999). The EDVA found that defendants’ “assumption that Fourco was no longer good law was reasonable but wrong,” and the delay was therefore not excused because the law technically had not changed. Id. at *2-*3. Notably, the EDVA also found that the argument of the second defendant failed because it wanted to remain in the same jurisdiction as the other defendant, and had therefore waived its right to challenge venue. Id. at *4. In response to alternative theories of proper venue put forth by the plaintiff, the EDVA left open the possibility that proper venue could be established under TC Heartland by showing, for example, that salespeople in the district or activities such as warehousing by a related entity (e.g., a subsidiary or sister entity) related to the infringement could constitute a regular and established place of business. Id. at *4. The EDVA’s decision was upheld by the Federal Circuit two days later. See In Re Sea Ray Boats, Inc., 2017 WL 2577399, at *1 (Fed. Cir. Jun. 9, 2017).

From this early decision, we now know two things. First, transfer will not necessarily be automatic, despite TC Heartland’s seeming reversal of law that has been followed for 27 years, at least in cases where substantial preparation for trial has taken place. Second, the boundaries of what constitutes a “regular and established place of business” remain undefined, and must be determined under the facts of each case. What does seem clear is that “regular and established places of business” are not just headquarters. Thus, venue in jurisdictions with a large concentration of tech centers, such as Northern Virginia, seems likely to be proper in a large number of cases.

Cecil Key is a member of DiMuroGinsberg’s IP Group, along with Jay Kesan and Teresa Summers. For more information about this topic or any Intellectual Property matter, you may contact Cecil at ckey@dimuro.com.

To download a copy of this white paper, click here.

Changing Times: Marijuana in the Workplace

As Bob Dylan sang, “the times they are a changin’,” and this never has been truer than with public attitudes toward the use of marijuana. Once feared as a drug that would create “Reefer Madness,” as the title of a 1930’s movie proclaimed, marijuana use increasingly has become acceptable among the general population both for medicinal and recreational purposes.

This year, the Republican and Democratic candidates running for governor have called for decriminalizing marijuana use, and in response to a request from Senate Majority Leader Tommy Norment, the Virginia State Crime Commission will be studying whether marijuana should be decriminalized in the Old Dominion. The Commission’s executive committee has said that it will issue the study this year.

So, what does all of this portend for Virginia employers? If marijuana is decriminalized in Virginia, does that mean that persons who use marijuana to treat medical conditions that rise to the level of disabilities now may find protections under the Americans with Disabilities Act (“ADA”) and be entitled to use marijuana as a reasonable workplace accommodation? In order to seek some guidance on these and other questions involving marijuana use, the Virginia Employment Law Letter asked DiMuroGinsberg partner, Jonathan R. Mook, who is a nationally recognized authority on the ADA, as to what he thinks employers need to know.

How is marijuana use dealt with under the ADA?

Because marijuana still is an illegal drug under federal law, it comes within those provisions of the ADA that exempt from the statutes’ protections persons who are engaging in the illegal use of drugs.  That means there are no limitations on employers asking questions about whether a job applicant or employee currently is engaging in the use of marijuana or for employers to test for such use, and if the answer is “yes” or the test is positive, take a job action such as refusal to hire or termination.  There also is no need to accommodate an employee who currently is using marijuana, even if for medical purposes.

What conditions are treated with medical marijuana?

Medical marijuana has been prescribed for a variety of medical conditions including PTSD, pain relief (instead of opioids), and to enhance appetite for those persons who are HIV positive.  Importantly, even though the ADA allows an employer to take a job action against an applicant or employee based upon the use of marijuana, the employer may run into problems if the employer bases the job action on the underlying medical condition that the person has.  In the latter event, the ADA would come into play.

What is the importance of state law?

Any legal protections that an employee may have will be founded upon state laws legalizing use of marijuana for medicinal or recreational purposes.  Hence, Virginia employers who have operations outside of the Commonwealth need to keep current on the marijuana laws in each of the states in which they have operations and abide by those laws.

How is the legalization of marijuana in other states affecting employer attitudes toward “drug free” workplaces?

Particularly in those states that have laws allowing for the use of recreational marijuana, many employers are considering adjusting their “drug free workplace” policies to recognize the reality that many otherwise qualified job applicants may test positive for marijuana use. That’s because signs of marijuana use can turn up in drug tests long after the drug’s mind-altering effects have worn off. Automatically disqualifying all applicants who test positive severely reduces the available pool of qualified individuals.

Employers, therefore, are beginning to evaluate, on an individualized basis, job applicants who test positive for marijuana, rather than disqualifying those applicants off the bat.  This change in employer practices has occurred irrespective of whether the state in which the employer is located has an explicit state law protecting job applicants or employees who use, for example, medical marijuana.

Given these changing times, what’s the bottom line for employers?

At base, employers have rules prohibiting their employees from engaging in the use of drugs because of the negative impact such use can have on employee performance and workplace safety. Even if marijuana use is legalized in the Commonwealth, employers still have these legitimate concerns, and should be able to discipline employees for any poor or unsafe performance of their job duties that occurs due to marijuana use. Thus, if you suspect that an employee is coming to work impaired by the effects of smoking marijuana, remember the best way to deal with the issue is to focus on the employee’s job performance problems, irrespective of what may be the cause.

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

To download a copy of the article, click here.

Navigating protections for workers with addictions

Jonathan Mook, in an article written by Tammy Binford for HR Hero, offers tips to HR and employers on how to handle an employee’s addiction to prescription medication. When do the medications taken constitute a disability under the ADA? What should you do if you believe their addiction poses a safety threat to the organization?

Click here to read the full article “Dealing with Hidden Disability: Navigating Protections for Workers with an Addiction.”

Jonathan R. Mook is a nationally recognized authority on the Americans with Disabilities Act and is a co-editor of the Virginia Employment Law Letter. For questions regarding this article or other employment law issues, you may contact Jonathan at jmook@dimuro.com.

How To Protect Against and Respond to Cyberattacks – Part 2

by Milton Whitfield and Jayna Genti DiMuroGinsberg PC

Last month, we reported on the costs of data breaches and steps you can take to help prevent what has become a very common occurrence at businesses and organizations across the country. If a data breach occurs at your organization, you need to be aware of Virginia laws that require you to undertake a number of steps to mitigate the potential harm to any individuals who may be affected.

States act to protect individuals against identity theft

Virginia, along with 46 other states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands, has enacted legislation requiring private-sector, governmental, and educational entities to notify individuals when there are data security breaches involving personally identifiable information. These security breach laws typically include provisions addressing:

  • Who must comply with the law (e.g., businesses, data/information brokers, and governmental entities);
  • What is considered “personal information” (e.g., a person’s name combined with his Social Security number (SSN), driver’s license, or state ID; financial account numbers);
  • What constitutes a breach (e.g., unauthorized acquisition of data);
  • What’s required with regard to notice (e.g., who must be notified and the timing or method of notice); and
  • What is exempt (e.g., encrypted information).

Virginia’s security breach notification laws include Virginia Code § 18.2-186.6 (breach of personal information), § 32.1-127.1:05 (breach of medical information), and § 22.1-20.2 (student data security). Some of the key aspects of these Virginia laws that employers should understand are set out below.

Virginia’s security breach notification laws

Who is subject to Virginia’s laws? The data breach laws apply to any individual, legal, or commercial entity that owns or licenses computerized data that include personal information and any organization supported by public funds that owns or licenses computerized data that include medical information of a resident of the Commonwealth.

What constitutes “personal information”? Virginia’s data breach laws protect the personal and medical information of Virginia residents. “Personal information” means the first name or first initial and last name in combination with and linked to one or more of the following types of information belonging to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted:

  • SSN;
  • Driver’s license number or state ID card number issued in lieu of a driver’s license number; or
  • Financial account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a person’s financial accounts.

What is “medical information”? “Medical information” means the first name or first initial and last name in combination with and linked to one or more of the following types of information belonging to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted:

  • Any information about an individual’s medical or mental health history, mental or physical condition, or medical treatment or diagnosis by a healthcare professional; or
  • An individual’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in an individual’s application and claims history, including any appeals.

What is a “security breach”? A “breach of the security of the system” means the unauthorized access and acquisition of your unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained as part of your database of personal information and that causes, or you believe has caused or will cause, identity theft or other fraud affecting any resident of the Commonwealth.

Are there any exceptions? A breach of the security of your system doesn’t include the good-faith acquisition of personal information by your employees or agents if the personal information isn’t used for an unlawful purpose or subject to further unauthorized disclosure.
What is the “encryption safe harbor”? The unauthorized acquisition of your encrypted or redacted data, without access to the encryption key, doesn’t trigger the notice requirement under the statutes. The safe harbor isn’t available if personal information is encrypted but the encryption key is compromised.

What is “encryption”? “Encryption” means the transformation of data through the use of an algorithmic process into a form in which there’s a low probability of assigning it meaning without using a confidential process or key, or securing the information by another method that renders the data elements unreadable or unusable.

When are your notification obligations triggered? If a security breach causes, or you reasonably believe it has caused or will cause, identity theft or other fraud affecting a Virginia resident, notification is required.

What are the notice procedures? You must provide written, telephonic, or electronic notice to victims of a security breach without unreasonable delay, unless the disclosure would impede a law enforcement investigation (in which case notification is delayed until it’s authorized by the law enforcement agency). Notice to affected residents must contain specific information described in the statutes. You may provide substitute notice by means prescribed in the statute if your notification costs exceed $50,000, more than 100,000 people are affected, or you have insufficient contact information or do not have consent to provide notice by the primary means required by the statute.

What is “substitute notice”? Substitute notice includes all of the following:

  • E-mail notice if you have e-mail addresses for the affected residents;
  • Conspicuous posting of the notice on your website; and
  • Notice to major statewide media.

When must you notify the AG and consumer reporting agencies? You also must provide notice to the Office of the Virginia Attorney General (AG) without unreasonable delay. If you are required to notify more than 1,000 persons of a security breach at one time, you are also required to notify consumer reporting agencies without unreasonable delay.

What are your third-party notice requirements? If you maintain computerized data that include personal information you don’t own or license, you must notify the owner or licensee of any security breach without unreasonable delay following your discovery of the breach.

Are there other exemptions? You are considered to be in compliance with Virginia law if:

  • You maintain and comply with your own notification procedures as part of an
    information security policy and those procedures are consistent with the timing requirements of the Virginia data breach statutes;
  • You comply with the notification requirements or procedures imposed by your primary or functional state or federal regulator; or
  • You are subject to, and in compliance with, federal requirements under Title V of the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), or the Health Breach Notification Rule promulgated by the Federal Trade Commission (FTC).

How does Virginia enforce its notification laws? The AG may bring a lawsuit and impose a civil penalty not to exceed $150,000 for a security breach or a series of breaches of a similar nature that are discovered in a single investigation. Individuals may bring an action to recover direct economic damages resulting from a violation of the Virginia data breach statutes. Violations by state-chartered or licensed financial institutions are redressed by the primary state regulator. Violations by insurance companies are redressed by Virginia’s State Corporation Commission.

Are private lawsuits permitted? Although security breaches are generally enforced by the AG, nothing in Virginia’s data breach notification statute precludes an individual whose personal or medical information has been compromised from bringing a lawsuit and seeking recovery of economic damages.

Bottom line

The specific steps that you must follow when your security is breached can be quite complicated, as this article confirms. Accordingly, if you experience a data breach, it’s always wise to consult with legal counsel experienced in data breach laws. An experienced attorney can ensure that you are complying with all of your legal requirements. That’s significant because, as our article next month will explain, you may have obligations under federal law as well as Virginia law.

Milton Whitfield and Jayna Genti are attorneys with DiMuroGinsberg PC and contributors to Virginia Employment Law Letter. They may be reached at mwhitfield@dimuro.com or jgenti@dimuro.com.

© 2017 Used with permission of Fortis Business Media, Brentwood, TN 37027.

All rights reserved. http://store.hrhero.com/hr-products/newsletters/vaemp

To download a copy of the article, click here.

Read Part 1

How To Protect Against and Respond to Cyberattacks – Part 1

by Milton Whitfield and Jayna Genti

The number of cyberattacks in Virginia since January of last year is roughly one attack every four seconds. According to a 2016 Cost of Data Breach Study of the Ponemon Institute, which conducts independent research on data protection, malicious or criminal attacks continue to be the primary cause of data breaches nationwide. According to the study, fifty percent of incidents involved a malicious or criminal attack, 23 percent were caused by negligent employees, and 27 percent involved system glitches which included both IT and business process failures. (The study is available at https://securityintelligence.com/media/2016-cost-data-breach-study/.)

To help you deal with this very real concern for all Virginia business and governmental entities, we shall be exploring in this and the next three issues of the Virginia Employment Law Letter (1) the financial costs of data breaches and steps you can take to improve your data protection procedures, (2) Virginia’s legal requirements for notifying consumers and other affected individuals of a data breach, (3) the federal laws that may be impacted by a data breach and the legal avenues of redress you have against the perpetrators, and (4) the recent cybersecurity initiatives being undertaken by Virginia Governor Terry McAuliffe. First, let’s turn to the monetary impact a data breach may inflict upon your operations.

Data Breach Costs

The Ponemon Institute study not only documents the prevalence of data breaches and their causes, but also the monetary consequences of a breach. According to the study, the increase in data breach costs, in large measure, is due to an increase in three types of expenditures:

  • Notification costs. These include, for example, costs associated creating a contact database, determining all regulatory requirements, engaging outside experts, postal expenditures, secondary mail contacts, and inbound communication set-up.
  • Post data breach costs. These costs encompass help desk activities, inbound communications, special investigative activities, remediation activities, legal expenditures, product discounts, identity protection services, and regulatory interventions.
  • Lost business costs. These costs arise from abnormal turnover of customers, increased customer acquisition activities, reputation losses, and diminished goodwill.

Mitigating the Damage

Fortunately, there are steps you can take to mitigate the harm from cyberattacks. The Ponemon Institute report found that you can reduce the cost of data breaches by instituting improvements in your data governance programs and investing in certain data loss prevention controls and activities. Accordingly, as part of your data governance program, you should consider (1) implementing an incident response plan, (2) appointing a Chief Information Security Officer (“CISO”), (3) creating employee training and awareness programs, and (4) developing a business continuity management strategy.

The cost of a data breach also can be reduced when you participate with other business in the sharing of information about cyber threats and attacks. Installing data loss prevention technologies, such as encryption and endpoint security solutions, also can help prevent data breaches in the first place.

If these measures are not successful and a data breach occurs, you have a number of legal obligations, particularly under Virginia law to notify affected individuals. Next month, we shall be exploring what those obligations entail.

Editor’s Note: Prior articles in the Law Letter discussing cybersecurity include “Feeling Insecure? Understand Notice Requirements Under State Security Breach Laws” (December, 2014) and “Hackers Gonna Hack: Know the Security Threats Facing Your Business” (July, 2015).

Milton Whitfield is a partner at DiMuroGinsberg, P.C. and an experienced business lawyer who specializes in representing companies in complex corporate and technology transactions, including outsourcing and licensing of business processes, information technology, and related sourcing services. He also advises companies on various energy, government contract, regulatory, and transaction matters. Milton may be contacted at mwhitfield@dimuro.com. Jayna Genti is an attorney with DiMuroGinsberg, P.C., and a former federal law clerk for U.S. Magistrate Judges Michael S. Nachmanoff and T. Rawles Jones, Jr., of the Eastern District of Virginia and U.S. District Judge David Briones of the Western District of Texas.

Published in the March, 2017 Virginia Employment Law Letter by BLR Publishing

To download a copy of the article, click here.

To subscribe to the Virginia Employment Law Letter, please contact mkraftschik@dimuro.com.

Read Part 2

Jonathan Mook co-presents “Website Accessibility”

“Website Accessibility: HR’s Strategic Guide to Meeting Digital Accessibility Standards Amid Increased Regulatory Oversight”, a Live Virtual Workshop: Tuesday, April 18, 2017

Is your organization’s website fully accessible to disabled individuals? If it’s not, you could be subjected to costly legal scrutiny, as lawsuits challenging inaccessible websites proliferate and the Department of Justice is in the process of issuing website accessibility standards.

Some federal circuit courts of appeal have already ruled that the Americans with Disabilities Act (ADA) applies to e-commerce and websites offering goods and services unconnected to a physical place. This raises the issue of what businesses should do to ensure that their websites—as places of public accommodation—are ADA accessible.

Website accessibility is especially important for the job application process. The ADA requires employers to ensure that job applicants and employees with disabilities can fully participate in the workplace, and the Equal Employment Opportunity Commission has interpreted this requirement to include computer and website accessibility.

So, how can you tell if your website is fully accessible and how it could be better optimized to ensure that it’s available and functional for anyone who visits the site?

Join DiMuroGinsberg attorney, Jonathan Mook and fellow presenters on April 18 for a comprehensive virtual workshop on emerging legal risks companies like yours now face. You’ll also learn more about HR’s role in conducting a website accessibility audit to determine whether it meets or misses the mark concerning your recruiting and other employment practices.

Click here to register. http://store.hrhero.com/website-accessibility-041817

ADA Does Not Require Preference for Disabled in Filling Job Vacancy

By: Jonathan R. Mook

To fulfill your obligations under the Americans with Disabilities Act (“ADA”), you need to attempt to accommodate a disabled employee in performing the essential functions of his or her current position. If that is not feasible, the ADA says that you then must consider transferring the disabled worker to a vacant job he or she can perform. But what if there is a more qualified applicant for that vacant position? Do you need to give a preference to the disabled worker in filling the job opening? Recently, the federal district court in Richmond said “no” in a lawsuit brought against the Sheriff of the City of Richmond. The court held that an employer still may fill the job vacancy by following its policy to hire the best qualified candidate.

The Facts
In 2003, Emily Hall began working as a deputy sheriff for the City of Richmond. Nine years later, she was diagnosed with heart disease, and her doctors implanted an internal cardiac defibrillator and pacemaker to treat her condition and prevent heart failure. Hall’s heart disease prevented her from continuing to perform her duties as a deputy sheriff, and she requested, as an accommodation for her disability, that she be reassigned to a payroll technician job that had become vacant.

Hall possessed the minimum qualifications necessary for the position, which she could have performed notwithstanding her heart problem. However, she was the least qualified of the applicants according to their comparative qualifications under the City’s internal evaluation system. Because the City maintains an official policy of hiring the “most qualified” candidate for open positions, Hall was not chosen to fill the vacant payroll technician job. With no other vacant positions available, Hall was terminated.

Hall’s Discrimination Claim
Hall filed a charge of disability discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) claiming that she had been discriminated against in violation of the ADA. The EEOC found cause to believe that the City had failed to accommodate Hall’s disability by not transferring her to the payroll job, because there was no dispute she was qualified for the vacant payroll position, even if not the most qualified.

When the matter could not be settled informally, the United States Department of Justice sued Richmond Sheriff, C.T. Woody, Jr., on Hall’s behalf. In response to the lawsuit, Woody contended that reasonable accommodation under the ADA does not require an employer to violate an otherwise non-discriminatory, “most qualified” hiring policy by transferring a disabled employee to a vacant position for which that employee is only minimally qualified.

The Court Decision
Senior U.S. District Court Judge Robert E. Payne agreed with Woody’s reading of the ADA and dismissed the lawsuit against him. In doing so, Judge Payne emphasized that in enacting the ADA, Congress did not intend the Act to operate as an affirmative action statute. Instead, “Congress passed the ADA to eliminate barriers to equal opportunity facing disabled Americans, not to grant disabled employees a competitive edge.”

Accordingly, Judge Payne held that any preferences necessary in the form of reasonable accommodations are only those required to “level the playing field for disabled employees, nothing more.” As the court explained, “the ADA does not require minimally qualified disabled employees to be granted special preferences in hiring over non-disabled applicants.” In fulfilling its obligation to consider reassignment to a vacant position as a reasonable accommodation, an employer need only consider a disabled worker on an equal basis with all other applicants. United States v. Woody, 2016 U.S. Dist. LEXIS 162231 (E.D. Va. Nov. 22, 2016).

Bottom Line
The extent of an employer’s obligation to transfer a disabled employee to a vacant position as a reasonable accommodation has been one of the more unsettled areas of ADA law. Prior to Judge Payne’s decision in Woody, no federal court in Virginia had directly addressed the issue. The Woody decision, therefore, is a ground breaking one, which provides important guidance to employers as to the extent of their ADA obligations.

Significantly, the decision reaffirms the basic principle of the ADA to ensure that persons with disabilities receive equality of opportunity and assistance, in the form of reasonable accommodations, to perform their job duties. The ADA is not a “preference” statute, however, requiring you to prefer disabled individuals over those who do not have disabilities when filling a job vacancy.

For more information about this topic and other labor and employment law topics, please contact Jonathan Mook at 703-684-4333 or by email at jmook@dimuro.com.

To download a copy of this article, click here.

Why You Should Comment On EEOC Harassment Guidance

Shortly before the inauguration of President Trump, the U.S. Equal Employment Opportunity Commission (“EEOC”) published its proposed Enforcement Guidance on Unlawful Harassment in the Workplace, which constitutes a substantial update of the Commission’s prior guidance issued more than 25 years ago.  The time for comments on the EEOC’s proposal recently was extended until March 21, 2017.

Employers should take advantage of the opportunity to provide input to the Commission advises DiMuroGinsberg partner, Jonathan R. Mook, in a recent article in HR Daily Advisor entitled “Stakeholders Get More Time to Comment on EEOC Harassment Guidance,” by Kate McGovern Tornone.  In that article, Jonathan emphasizes that the EEOC’s proposed guidance contains several notable provisions, including a prohibition on harassment based on sexual orientation and sexual identity, which represents an expansion of the law prohibiting sex discrimination.  Additionally, Jonathan points out that the proposed guidance also recommends that employers conduct “civility” training for their employees and appears to eliminate the “unwelcomeness” standard for sexual harassment.

Given the importance of the EEOC’s proposed guidance, Jonathan recommends that all employers obtain a copy of the proposal and submit comments on those aspects with which they disagree or find problematic.  Since harassment claims continue to increase, the EEOC’s enforcement guidance will have critical importance for all employers in the coming years.

If you would like to obtain a copy of the EEOC’s Proposed Enforcement Guidance on Unlawful Harassment, please contact Jonathan at jmook@dimuro.com.

To download a copy of this article, click here.