Ten Employment Law Issuesfor Small Businesses

David M. Knasel, Esq.Dominion Business Law PLCTysons Corner | Leesburg, VAwww.dominionbusinesslaw.com

Disclaimer

• Information presented is for general informational purposes only.

• It is not legal advice and should not be relied upon.

• This presentation is based on Virginia law.• Every situation is unique.• Consult with an attorney for any specific case.

Issue 1: At Will EmploymentTrue or False ...

• Employment in Virginia is “at will”, meaning that an employer can fire an employee at any time.

TRUE ...

• There are exceptions and caveats:– Employment Contract can provide for a specific

term (e.g. number of years) or limits on termination (e.g. only for cause)

– There are exceptions in the law (e.g. no unlawful discrimination)

– Offer letters and Employee Handbooks can create rights for the employee

Issue 2: Personnel FilesTrue or False …

• An employee in Virginia is entitled to a copy of his or her personnel file.

FALSE …

• Private sector employees – different rules for government workers

• May be good reasons to permit• Don’t leave employee alone with file• Personnel files should be kept in secure,

limited access location

Issue 3: Right to WorkTrue or False …

• Virginia is a Right-to-Work state, which means that every citizen has a right to a job that pays at least minimum wage.

FALSE …

• Virginia is a “right-to-work” state, but …• it means that an employee cannot be forced

to join a union to get or keep a job.

Issue 4: Weekend WorkTrue or False …

• A Virginia employer may not require an employee to work on his or her Sabbath or “day of rest.”

FALSE …

• Employers can require you to work weekends• “Day of rest” law was repealed in 2005

Issue 5: Big BrotherTrue or False …

• An employer may monitor an employee’s email and voicemail.

TRUE …

• If the employee is notified that company computer and phone systems are company property and subject to monitoring

• Employer should include notice/consent in written policy or handbook

• Monitoring should only be done for legitimate business purposes

Issue 6: LunchTrue or False …

• An employee is legally entitled to at least a half-hour break for every 6 hours worked in a day.

FALSE …

• No breaks are required• Employer policies may provide

Issue 7: Docking PayTrue or False …

• An employer may only deduct from an employee’s paycheck amounts that are legally due from the employee to the employer.

FALSE …

• In Virginia, an employer may not withhold any amounts from an employee’s paycheck, unless:– Written consent signed by employee– Payroll, wage, or withholding taxes (e.g. FICA)

• Violations subject to criminal and civil penalties• Final paycheck cannot be withheld or deducted

from, but must be paid on the normal payroll schedule

Issue 8: OvertimeTrue or False …

• An employee who works less than 40 hours in one week, can make those hours up in the following week, and, as long as no more than 80 hours total are worked in the two-week pay period, no overtime will be due.

FALSE …

• Employer must pay overtime (1.5x) for all hours over 40 in any week, except …

• Does not apply to many managerial or professional employees, but …

• Just because an employee is salaried does not automatically mean he or she is not entitled to overtime pay.

• This is an area where employers frequently make mistakes, with huge consequences.

Issue 9: Independent ContractorsTrue or False …

• Workers who sign independent contractor agreements are responsible for their own taxes.

MAYBE …

• Just because a worker signs an agreement does not mean he or she is (or the IRS will agree that he or she is) in fact an independent contractor.

Issue 10: TerminationTrue or False …

• An employee in Virginia must be provided with reasonable notice of termination.

MAYBE …

• Some case law refers to at-will employment being terminable upon “reasonable notice”

• Virginia courts have split on whether any notice is required

• Good idea to address this in offer letter or employee manual

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