Volume ICHAPTER 1: TITLE VII AND THE RECONSTRUCTION ERA
STATUTES1.1 OVERVIEW
1.101 The Civil Rights Act of 1964
1.102 The Civil Rights Acts of 1866 and 1870
1.103 The Civil Rights Act of 1871
1.104 The Civil Rights Act of 1871—The Ku Klux Klan Act
1.105 The Civil Rights Act of 1991
1.106 The Lilly Ledbetter Fair Pay Act
1.2 EXHAUSTION OF ADMINISTRATIVE REMEDIES
1.201 In General
1.202 When Filing Period Begins
1.203 Filing with Deferral Agency
1.204 Filing with the EEOC
1.205 “Right-to-Sue” Letter
1.3 THEORIES OF DISCRIMINATION AND PROOF
1.301 Disparate Treatment Theory
1.302 Disparate Treatment Class Actions
1.303 Mixed Motive Cases
1.304 Disparate Impact Theory
1.305 Defenses
1.306 Remedies
1.4 SEXUAL HARASSMENT
1.401 Statutory Prohibition
1.402 Administrative Guidelines
1.403 Judicial Rulings
1.404 Types of Harassment
1.405 Standards of Proof
1.406 Employer Liability
1.407 Supervisor Liability
1.408 Procedure
1.409 Remedies
CHAPTER 2: EQUAL PAY ACTS—FEDERAL AND STATE2.1 INTRODUCTION TO THE FEDERAL EQUAL PAY ACT
2.101 Overview
2.102 Employers and Employees Covered
2.2 RIGHTS, RESPONSIBILITIES, AND PRINCIPAL
DEFENSES UNDER THE FEDERAL EQUAL PAY ACT
2.201 Wage Disparities Based on Sex
2.202 Purpose
2.203 Equal Work
2.204 Components of Equal Work
2.205 Retaliation
2.206 Principal Defenses
2.3 PROCEDURAL ISSUES OF THE FEDERAL EQUAL PAY
ACT
2.301 Statute of Limitations
2.302 No Administrative Prerequisites to Suit
2.303 Venue
2.304 Legal and Equitable Relief; Jury Trials
2.305 Burden of Proof
2.306 Discriminatory Intent Need Not Be Proved
2.307 Agency Enforcement Authority
2.308 Class Actions
2.4 REMEDIES AND DAMAGES UNDER THE FEDERAL
EQUAL PAY ACT
2.401 Back Pay
2.402 Liquidated Damages
2.403 Costs and Attorney Fees
2.404 Front Pay
2.405 Prejudgment Interest
2.406 Equitable Relief
2.407 No Punitive or Compensatory Damages for Pain
and Suffering
2.408 Criminal Penalties
2.5 THE VIRGINIA EQUAL PAY ACT
2.501 Introduction
2.502 Rights, Responsibilities, and Principal Defenses
2.503 Procedural Issues
2.504 Remedies and Damages
CHAPTER 3: THE AGE DISCRIMINATION IN EMPLOYMENT
ACT3.1 INTRODUCTION
3.2 COVERAGE AND BASIC ELEMENTS
3.201 Coverage
3.202 Basic Elements of Age Discrimination Cases
3.3 PLAINTIFF’S BURDEN OF PROOF
3.301 In General
3.302 Inferring Discrimination from Pretextual Explanation
3.303 Hostile Work Environment
3.304 Disparate Impact Theory
3.4 EMPLOYER’S DEFENSES AND JUSTIFICATIONS
3.401 Introduction
3.402 Statutory Defenses
3.403 Refuting Employee’s Prima Facie Case
3.404 After-Acquired Evidence
3.405 Employee’s Showing That the Offered Justification
Was Pretextual
3.5 PROCEDURAL ISSUES
3.501 Filing the Claim
3.502 Accrual
3.503 Tolling the Statute of Limitations
3.504 Class Actions
3.505 Mandatory Arbitration
3.506 Surviving Summary Judgment
3.6 REMEDIES AND DAMAGES
3.601 Introduction
3.602 Back Pay
3.603 Hiring or Promotion Orders
3.604 Front Pay
3.605 Liquidated Damages
3.606 Costs and Attorney Fees
3.607 Interest
3.608 Punitive and Compensatory Damages
3.609 Retaliation
3.610 Criminal Penalties
3.611 Supervisors Not Personally Liable
3.7 VIRGINIA STATE LAW CAUSE OF ACTION FOR AGE
DISCRIMINATION
3.8 RELEASES OF CLAIMS AND SEVERANCE OPTIONS
3.801 Release of Claims
3.802 Varied Options for Lay-Off Packages Permissible
CHAPTER 4: STATE AND FEDERAL DISABILITIES ACTS4.1 INTRODUCTION
4.2 APPLICABILITY
4.3 “QUALIFIED INDIVIDUAL”
4.301 “Qualified Individual” Defined
4.302 Record of Disability, or Perception as Having
Disability
4.4 CONDUCT PROHIBITED
4.401 Conduct Related to Terms, Conditions, and Privileges
of Employment
4.402 Classes of Conduct Prohibited
4.403 Reasonable Accommodation
4.404 Retaliation
4.5 LITIGATION ISSUES
4.501 Standard for Determining Whether an Employer
Discriminated on the Basis of a Disability
4.502 Procedural Prerequisites to Filing an ADA Lawsuit
4.503 Bankrupt Plaintiffs
4.504 Pleading
4.505 Effect of Application for Social Security Benefits
4.506 Admissibility of Receipt of Workers’ Compensation
Benefits
4.507 Grievance Files and the Virginia Department of
Employee Dispute Resolution (EDR)
4.6 MEDICAL EXAMINATIONS, INQUIRIES, AND
DISCLOSURE OF MEDICAL INFORMATION
4.601 Medical Examinations Generally
4.602 Impermissible Inquiries
4.603 Examinations and Inquiries After Offer of
Employment
4.604 Permissible Inquiries
4.605 Employee Medical Examinations
4.606 Voluntary Medical Examinations
4.607 Duty of Confidentiality
4.7 DEFENSES
4.701 Neutral Qualification Standards
4.702 Risk to Health or Safety of Others
4.703 Undue Hardship
4.704 Conflicting Federal Laws
4.705 Transitory and Minor Impairment Is a Defense to a
Claim of “Regarded as” Having an Impairment
4.706 Religion
4.707 Food Handlers
4.708 Uncorrected Vision
4.709 Waiver of Liability
4.8 ENFORCEMENT AND REMEDIES
4.9 THE VIRGINIANS WITH DISABILITIES ACT
4.901 Overview
4.902 Employers Covered
4.10 EMPLOYEE RIGHTS AND EMPLOYER RESPONSIBILITIES
UNDER THE VDA
4.1001 Conduct Prohibited
4.1002 Definitions
4.1003 Reasonable Accommodation
4.1004 Retaliation
4.11 PROCEDURE UNDER THE VDA
4.1101 The Virginia Office for Protection and Advocacy and
the DisAbility Law Center of Virginia
4.1102 Private Cause of Action
4.1103 Statute of Limitations
4.12 REMEDIES ALLOWED BY THE VDA
4.1201 Damages
4.1202 Nonmonetary Relief
4.1203 Attorney Fees
4.1204 Exclusive Remedies
4.1205 The VDA and the 1995 Amendments to the VHRA
APPENDIX 4-1: WHAT EMPLOYERS SHOULD DO TO PREVENT
CHARGES OF A VIOLATION OF THE ADA
CHAPTER 5: FEDERAL DISCRIMINATION CLAIMS, THE
VIRGINIA HUMAN RIGHTS ACT, AND
LOCAL AGENCIES5.1 INTRODUCTION
5.2 RIGHTS AND RESPONSIBILITIES OF LOCAL HUMAN
RIGHTS AGENCIES
5.201 Delegation to Local Agencies
5.202 Virginia’s Local Deferral Agencies
5.203 Interplay Between the EEOC and Local Deferral
Agencies
5.204 Local Agencies Not Designated by the EEOC
5.3 LIFE CYCLE OF COMPLAINT FILED WITH LOCAL
AGENCY
5.301 Filing
5.302 Investigation
5.303 Subpoenas
5.304 Fact-Finding Conference
5.305 Conciliation Agreement
5.306 Public Hearing
5.307 Finding of “Cause” or “No Cause”
5.4 CONSEQUENCES OF LOCAL AGENCY’S FINDING OF
LIABILITY
5.401 “Right-to-Sue” Letter
5.402 No Preclusive Effect to Deferral Agency Findings
5.403 Admissibility of Deferral Agency’s Findings
5.404 Limited Private Right of Action
5.5 THE VIRGINIA HUMAN RIGHTS ACT
5.501 Overview
5.502 Employers Covered
5.6 EMPLOYEE RIGHTS AND EMPLOYER RESPONSIBILITIES
UNDER THE VHRA
5.601 Conduct Prohibited
5.602 Retaliation
5.7 PROCEDURE UNDER THE VHRA
5.701 The Division of Human Rights(DHR)
5.702 The Complaint
5.703 The DHR’s Investigative Tools
5.704 Results of the Investigation
5.705 Confidentiality
5.706 Private Cause of Action
5.707 Decisions Under the VHRA
5.8 REMEDIES UNDER THE VHRA
5.801 Administrative Action
5.802 Court Action
5.9 CONCLUSION
CHAPTER 6: QUI TAM WHISTLEBLOWER LITIGATION6.1 INTRODUCTION
6.101 What Is a “Qui Tam” Action?
6.102 The Virginia Fraud Against Taxpayers Act (VFATA)
and the Federal False Claims Act (FCA)
6.103 History and Development of the VFATA
6.104 Federal Incentives for States to Pass False Claims
Legislation
6.2 DEFINITIONS UNDER THE VFATA AND FCA
6.201 Any “Person”
6.202 “Claim”
6.203 “Knowing” and “Knowingly”
6.204 “Obligation”
6.3 PROHIBITED CONDUCT UNDER THE VFATA
6.301 Types of Prohibited Conduct Generally
6.302 Knowingly Presenting False or Fraudulent Claim
6.303 Knowingly Making or Using False Record or
Statement Material to a False or Fraudulent Claim
6.304 Conspiring to Commit Violation of the VFATA
6.305 Violations Involving Government Property
6.306 “Reverse False Claims”
6.307 “False Certification” Cases
6.4 CIVIL PENALTIES
6.5 TREBLE DAMAGES
6.501 Rationale
6.502 Limitations on Damages
6.6 LIMITATIONS ON FCA AND VFATA ACTIONS
6.601 Limitations of Section 8.01-216.8
6.602 Nonapplicability to Taxes
6.603 Statutes of Limitations
6.7 PRACTICE MATTERS PRECEDING SERVICE OF THE
COMPLAINT
6.701 The Disclosure Statement
6.702 The “Original Source” Exception to the Public
Disclosure Bar
6.703 Documentation for the Relator’s Claim
6.704 Filing Under Seal
6.705 Working With the Government During the Seal Period
6.706 Partial Unsealing of the Complaint
6.707 Intervention or Non-Intervention
6.708 Service on Defendants
6.709 Alternative Remedies Under Section 8.01-216.6(H)
6.8 PRACTICE MATTERS FOLLOWING SERVICE OF THE
COMPLAINT
6.801 Government as Party in Interest
6.802 Motion to Dismiss
6.9 ANTI-RETALIATION PROVISIONS FOR
WHISTLEBLOWERS
6.901 Sections 8.01-216.8 of the VFATA and 31 U.S.C.
§ 3730(h) of the FCA
6.902 Damages Available Under the VFATA and the FCA
6.903 Anti-Retaliation Protections for State and Local
Employees
CHAPTER 7: GOVERNMENT CONTRACTORS—EQUAL
OPPORTUNITY AND AFFIRMATIVE ACTION7.1 INTRODUCTION
7.2 APPLICABILITY OF LAWS AND REGULATIONS
7.3 EQUAL OPPORTUNITY AND AFFIRMATIVE ACTION
GENERALLY
7.301 Applicability
7.302 General Requirements
7.303 Affirmative Action Programs
7.304 Other Requirements
7.305 Enforcement
7.4 AGE DISCRIMINATION
7.5 VETERANS
7.501 In General
7.502 Prohibitions
7.503 Affirmative Action Plan
7.504 Other Requirements
7.505 Enforcement
7.6 DISABLED INDIVIDUALS GENERALLY
7.601 In General
7.602 Prohibitions
7.603 Invitation for Applicant to Claim Benefit of
Section 503
7.604 Medical Examinations and Information
7.605 Affirmative Action Plan
7.606 Enforcement
7.7 DISABLED INDIVIDUALS AND INFORMATION
TECHNOLOGY
7.701 In General
7.702 The Standards
7.703 Exceptions to the Standards
CHAPTER 8: WRONGFUL DISCHARGE8.1 WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC
POLICY
8.101 Overview
8.102 Elements of a Bowman Claim
8.2 CASE LAW DEVELOPMENT
8.201 Discharge of Employee in the Exercise of a Statutory
Right
8.202 Standing Requirements for Bringing a Claim
8.203 Discharge of an Employee for Refusing to Commit a
Criminal Act
8.3 DETERMINING THE EXISTENCE OF A PUBLIC POLICY
8.301 In General
8.302 Lawrence Chrysler Plymouth Corp. v. Brooks
8.303 City of Virginia Beach v. Harris
8.304 Rowan v. Tractor Supply Co
8.305 Wrongful Discharge Based on the Virginia Wage
Payment Act
8.4 STATUTORY PREEMPTION OF WRONGFUL DISCHARGE
CLAIMS
8.401 In General
8.402 Mannell v. American Tobacco Co
8.403 Cauthorne v. King
8.404 Pruitt v. Johnston Memorial Hospital, Inc
8.405 Porter v. Elk Remodeling, Inc
8.5 INDIVIDUAL LIABILITY FOR BOWMAN CLAIMS
8.6 STANDARD OF PROOF AND DAMAGES
8.7 CONSTRUCTIVE DISCHARGE IN VIRGINIA
8.701 In General
8.702 Dowdy v. Bower
8.703 Molina v. Summer Consultants, Inc
8.704 Padilla v. Silver Diner
8.705 Gochenour v. Beasley
8.706 Barron v. NetVersant-Northern Virginia, Inc
8.707 Lundy v. Cole Vision Corp
8.708 Magallon v. Wireless Unlimited, Inc
8.709 Fereol de Gastyne v. Entrust, Inc
8.710 Case Evaluation
8.8 CONCLUSION
CHAPTER 9: EMPLOYMENT AGREEMENTS9.1 INTRODUCTION
9.2 RIGHTS, RESPONSIBILITIES, AND PRINCIPAL
DEFENSES
9.201 Essential Elements of Employment Contracts
9.202 Certainty
9.203 At-Will Employment
9.204 Noncompete Clauses
9.205 Oral Contracts
9.206 Employee Manuals
9.207 Implied Contracts
9.208 Intentional Interference with Contractual Relations
9.3 STATUTE OF FRAUDS
9.301 In General
9.302 Performance Versus Termination
9.303 Memorandum
9.304 Equitable Estoppel
9.4 STATUTE OF LIMITATIONS
9.5 IMPOSSIBILITY
9.6 REMEDIES AND DAMAGES
CHAPTER 10: UNFAIR COMPETITION10.1 INTRODUCTION
10.2 COVENANTS NOT TO COMPETE
10.201 In General
10.202 Factors Determining Enforceability
10.203 Protection of Employer’s Interests
10.204 Impact on Employee
10.205 Impact on Public
10.206 Rules of Construction
10.207 Burden of Proof
10.208 Breach by Employer Releases Covenant
10.209 Consideration
10.210 Assignment
10.211 Relationships Other Than Employer-Employee
10.3 REMEDIES
10.301 Injunctive Relief: State Court
10.302 Injunctive Relief: Federal Court
10.303 Damages
10.304 Declaratory Judgment
10.4 CHOICE OF LAW
10.5 RESTRAINTS IMPOSED BY LAW
10.501 In General
10.502 Solicitation of Former Employer’s Customers
10.503 Misuse of Confidential Information
10.504 Statutory Conspiracy to Injure Business
10.505 Common Law Conspiracy
10.506 Tortious Interference with Contracts
10.6 THE VIRGINIA UNIFORM TRADE SECRETS ACT
10.601 In General
10.602 Customer Lists
10.603 Novel Combination of Old Information
10.604 Independent Discovery
10.605 Readily Ascertainable Information
10.606 Access to Other Information
10.607 Maintaining Secrecy
10.608 Misappropriation by Improper Means
10.609 Noncompetitive Use
10.610 Employer Liability
10.611 Remedies
10.612 Statute of Limitations
10.7 THE DEFEND TRADE SECRETS ACT
10.701 Purpose and Operation of the Act
10.702 Remedies
CHAPTER 11: TORT ACTIONS11.1 INTRODUCTION
11.2 CONSPIRACY
11.201 Common Law Conspiracy
11.202 Statutory Conspiracy
11.3 FRAUD
11.301 In General
11.302 Actual Fraud
11.303 Standard of Proof and Pleading Requirements
11.304 Statute of Limitations
11.305 Sea-Land Service, Inc. v. O’Neal
11.306 Economic Loss Doctrine
11.307 Source of Duty Rule
11.308 Fraud Cannot Be Based on Contract
11.4 DEFAMATION
11.401 Introduction
11.402 General Principles
11.403 Defamation Per Se
11.404 Privilege
11.405 Damages
11.406 Procedural Issues
11.5 INFLICTION OF EMOTIONAL DISTRESS
11.501 In General
11.502 Negligent Infliction of Emotional Distress
11.503 Intentional Infliction of Emotional Distress
11.504 Statute of Limitations
11.505 Workers’ Compensation Act as Bar
11.6 EMPLOYER LIABILITY FOR EMPLOYEES’ ACTIONS
11.601 Overview
11.602 Respondeat Superior
11.603 Negligent Hiring or Retention
11.604 No Claim for Negligent Supervision
11.605 Basis of Liability
11.606 Nature of the Plaintiff’s Injury
11.607 Potential Claims of Immunity
11.7 ASSAULT AND BATTERY
11.701 In General
11.702 Elements of Claim
11.703 Sexual Assault
11.704 Workers’ Compensation Act as Bar
11.705 Respondeat Superior
11.706 Common Carriers
11.707 Statute of Limitations
11.708 Damages
11.8 TORTIOUS INTERFERENCE
11.801 Interference with Contract Rights
11.802 Interference with At-Will Relationships
11.803 Interference with Contract Expectancy
11.804 Interference with Prospective Business or Economic
Advantage
11.805 Privilege Issues
11.806 Interference by Co-Employees
11.807 Statute of Limitations
11.9 OPPRESSION OF MINORITY SHAREHOLDERS
11.901 In General
11.902 Elements
11.903 Burden of Proof
11.904 Parties
11.905 Damages
INDEX
Volume II CHAPTER 12: WAGE AND HOUR LAW
12.1 INTRODUCTION
12.101 Scope of Chapter
12.102 Federal Wage and Hour Law
12.103 State Wage and Hour Laws
12.104 State Wage Payment Laws
12.105 Local “Living Wage” Laws
12.2 THE FAIR LABOR STANDARDS ACT—RIGHTS,
RESPONSIBILITIES, AND PRINCIPAL DEFENSES
12.201 Scope of Coverage
12.202 Exceptions to Coverage
12.203 Minimum Wage
12.204 Overtime Compensation
12.205 Equal Pay Act
12.206 Child Labor
12.207 Retaliation
12.208 Time Worked
12.209 Workweek
12.210 Recordkeeping and Posting
12.211 Exemptions from Minimum Wage and Overtime
12.212 Examples of Common Problems for Employers
12.3 WAGE AND HOUR INVESTIGATIONS AND
ENFORCEMENT PROCEDURES
12.301 The Enforcement Agency
12.302 The Audit
12.303 Request for DOL Opinion
12.304 Civil Litigation
12.305 Practical Litigation Considerations
12.4 REMEDIES
12.401 Employee Claims
12.402 Civil Monetary Penalties
12.403 Injunctive Relief
12.404 Criminal Penalties
APPENDIX 12-1: QUESTIONNAIRE FOR POTENTIAL PLAINTIFF
IN FAIR LABOR STANDARDS ACT CASE
CHAPTER 13: PRIVACY, TESTING, INVESTIGATIONS, AND SEARCHES13.1 INTRODUCTION
13.2 INVESTIGATIONS IN THE HIRING PROCESS
13.201 Obtaining Information from Applicants and Former
Employers
13.202 Background Investigations by Outside Firms
13.203 Arrest and Conviction Records
13.204 Applicants with Prior Military Service
13.205 The Interview
13.3 TESTING APPLICANTS AND EMPLOYEES
13.301 Medical Examinations and Inquiries
13.302 Drug Tests
13.303 Polygraph Tests
13.304 Paper and Pencil Honesty Tests
13.4 EMPLOYEE SURVEILLANCE AND SEARCHES
13.401 Surveillance
13.402 Searches
13.5 MONITORING EMPLOYEE COMMUNICATIONS
13.501 In General
13.502 The Federal Wiretap Statute
13.503 State Laws
13.504 Surreptitious Audiotaping or Videotaping of
Conversations
13.505 Rules Prohibiting Workplace Recordings
13.506 Computer Monitoring
13.507 Accessing Computer Files
13.508 Voice Mail
13.509 Unsolicited Email
13.510 Opening Mail
13.511 Employer-Issued Electronic Devices
13.512 Social Media
13.513 Practical Guidelines for Employers
13.6 CLAIMS ARISING FROM FAILURE TO INVESTIGATE
13.601 Negligent Hiring
13.602 Negligent Retention
13.603 Negligent Supervision
13.7 CLAIMS ARISING FROM EMPLOYER INVESTIGATIONS
13.701 Implications of Negligent Investigation
13.702 Breach of Contract
13.703 Disparate Treatment
13.704 Defamation Claims Against Employer
13.705 Intentional Infliction of Emotional Distress
13.706 Procedure
13.707 Damages and Remedies
13.8 PRIVACY OF PLANS PROVIDING HEALTH-RELATED
BENEFITS
13.801 What Is HIPAA?
13.802 To Whom Does HIPAA Apply?
13.803 Implementing HIPAA’s Privacy Rules
CHAPTER 14: EMPLOYMENT OF FOREIGN NATIONALS14.1 INTRODUCTION
14.2 DEFINITIONS
14.201 Immigrant
14.202 Nonimmigrant
14.203 Immigration Status
14.204 Visa
14.205 Passport
14.206 Form I-94
14.207 Change of Status
14.208 Adjustment of Status
14.209 Employment Authorization Document
14.210 Form I-9
.211 E-Verify
14.3 GOVERNMENTAL ENTITIES INVOLVED IN THE
IMMIGRATION PROCESS
14.301 In General
14.302 Department of Homeland Security
14.303 Department of State
14.304 Department of Labor
14.4 NONIMMIGRANT VISAS
14.401 In General
14.402 Visitors for Business or Pleasure—The B Visa
14.403 Visa Waiver Program/ESTA
14.404 Intracompany Transfers—The L Visa
14.405 Specialty Occupations—The H-1B Visa
14.406 The TN Visa
14.407 Extraordinary Ability Visas—The O-1 Visa
14.408 E-1 Treaty Trader and E-2 Treaty Investor Visas
14.409 Certain Specialty-Occupation Professionals from
Australia: The E-3 Visa
14.410 Trainees—The H-3 Visa
14.411 Exchange Visitor Program—The J Visa
14.412 Students—The F Visa
14.5 IMMIGRANT VISAS
14.501 In General
14.502 Employment-Based Immigration Categories
14.503 Three-Step Permanent Residence Process
CHAPTER 15: FAMILY AND MEDICAL LEAVE ACT15.1 INTRODUCTION
15.2 COVERAGE
15.201 In General
15.202 Employers
15.3 EMPLOYEES ELIGIBLE FOR LEAVE
15.301 In General
15.302 “Employed by the Employer for at Least 12 Months”
15.303 Hours of Service
15.304 “50 Employees . . . Within 75 Miles”
15.4 EMPLOYEES’ RIGHTS
15.401 Events That Trigger Entitlement to FMLA Leave
15.402 Definitions
15.403 Length and Timing of FMLA Leave
15.404 When Paid Leave May Be Substituted for FMLA
Leave
15.405 Employee’s Right to Return to Work After FMLA
Leave
15.406 Employee’s Rights upon Return to Work
15.5 NOTICES
15.501 Employer’s Required Notices
15.502 Employee’s Notice of Need for FMLA Leave
15.6 REQUIREMENTS FOR HEALTH BENEFIT
CONTINUATION
15.601 Employer Must Maintain Coverage
15.602 When FMLA Leave Is Over
15.603 Recovering Employee’s Portion of Health Premiums
After Leave
15.604 Recovering Employer’s Portion of Health Premiums
After Leave
15.605 Definition of “Returned to Work”
15.7 OTHER BENEFITS THAT MUST BE CONTINUED
15.8 MEDICAL CERTIFICATIONS
15.801 Employer’s Right to Require Medical Certification
15.802 Employer’s Right to Require Certification of Fitness
15.9 EMPLOYER RECORDKEEPING
15.901 In General
15.902 Required Records
15.903 When Records Are Not Required
15.10 PROVISIONS RELATING TO AIRLINE FLIGHT CREW
EMPLOYEES
15.1001 In General
15.1002 Hours of Service Eligibility Requirement
15.1003 Method of Calculation of Leave
15.1004 Recordkeeping Requirements
15.1005 Flight Crew Employees and USERRA
15.11 RELEASE OF CLAIMS
15.12 FILING A COMPLAINT OR SUIT
15.13 REMEDIES AND DAMAGES
CHAPTER 16: UNIFORMED SERVICES EMPLOYMENT AND
REEMPLOYMENT RIGHTS ACT OF 199416.1 INTRODUCTION
16.101 Background
16.102 Purpose
16.103 Covered Services
16.104 Covered Employers
16.105 Covered Employees
16.2 RIGHTS AND RESPONSIBILITIES
16.201 In General
16.202 Discrimination
16.203 Retaliation
16.204 Accommodation
16.205 Burden of Proof
16.206 Notice to Employees
16.3 NOTICE TO EMPLOYER
16.4 BENEFITS DURING LEAVE
16.401 In General
16.402 Interaction of USERRA with the Family and Medical
Leave Act
16.403 Health Benefits
16.404 Accumulated Paid Leave
16.5 REEMPLOYMENT
16.501 In General
16.502 Unreasonableness or Impossibility
16.503 Undue Hardship
16.504 Brief, Nonrecurrent Period of Employment
16.505 Five-Year Limit
16.506 Dishonorable Discharge
16.507 Documentation
16.6 TIME FOR REPORTING TO OR APPLYING FOR WORK
16.601 In General
16.602 Military Service Less Than 31 Days
16.603 Military Service More Than 30 Days but Less Than
181 Days
16.604 Military Service More Than 180 Days
16.605 Extension of Time for Convalescence
16.606 Effect of Untimely Reporting or Application
16.7 POSITION UPON REEMPLOYMENT
16.701 In General
16.702 Military Service Less Than 91 Days
16.703 Military Service More Than 90 Days
16.704 Two or More Persons Entitled to Reemployment in
Same Position
16.705 Disabled Persons
16.706 Unqualified Persons
16.8 BENEFITS ON REEMPLOYMENT
16.801 Prior Law
16.802 Seniority and Related Benefits
16.803 Pension and Retirement Benefits
16.804 Health Benefits
16.805 Retention Rights
16.9 SEVERANCE AGREEMENTS
16.10 ENFORCEMENT AND PENALTIES
16.11 VETERANS’ BENEFITS IMPROVEMENT ACT OF 2008
16.12 VETERANS’ BENEFITS ACT OF 2010
16.13 VOW TO HIRE HEROES ACT OF 2011
CHAPTER 17: OCCUPATIONAL SAFETY AND HEALTH LAW17.1 INTRODUCTION
17.101 Federal Regulatory Framework
17.102 State Enforcement
17.2 EMPLOYERS’ RIGHTS AND RESPONSIBILITIES
17.201 Employers’ Primary Obligations
17.202 Employers’ Other Duties
17.3 EMPLOYEES’ RIGHTS AND RESPONSIBILITIES
17.301 Compliance with Regulations
17.302 Nondiscrimination Rules
17.303 Work Refusals
17.4 INSPECTION PRIORITIES AND PROCEDURES
17.401 Authority to Conduct Inspections and Prioritization
17.402 Procedures During Inspection
17.403 Warrants
17.5 CITATION PROCEDURES AND DEFENSES
17.501 Elements of an OSHA Violation
17.502 Characterization of the Violation
17.503 Penalties
17.504 Defenses
17.6 CONTESTING AND LITIGATING CITATIONS
17.601 Contesting
17.602 Time Limits
17.603 Notice of Contest; Petition to Modify Abatement
Period
17.604 Litigation
17.605 Discrimination Cases
CHAPTER 18: COBRA—CONTINUATION COVERAGE
REQUIREMENTS OF EMPLOYEE HEALTH
CARE PLANS18.1 INTRODUCTION
18.101 Purpose
18.102 Availability and Premiums
18.103 Other Federal Health Care Legislation and Rules
18.2 SCOPE OF COVERAGE
18.201 Health Care Continuation Coverage
18.202 Qualifying Events
18.203 Qualified Beneficiaries
18.204 Final Treasury Regulations
18.205 COBRA Premium and the 2009 COBRA Subsidy
18.3 RIGHTS, RESPONSIBILITIES, AND PRINCIPAL
DEFENSES
18.301 Notice to New Employees
18.302 Election Rights
18.303 Employer’s Duty to Notify Administrator
18.304 Beneficiary’s Duty to Notify Administrator
18.305 Notice of Right of Election
18.306 Mailing COBRA Notices and Election Forms
18.307 Incapacitated Former Employees
18.308 Length of Continuation Coverage
18.309 Mergers and Acquisitions
18.310 “Other Coverage” Rule
18.311 Equitable Estoppel
18.312 Fraudulent Claims
18.313 Preemption of State Laws
18.314 COBRA and the Family and Medical Leave Act
18.315 Notice if COBRA Coverage Is Unavailable
18.316 Notice if COBRA Coverage Is Terminated
18.317 Trade Adjustment Assistance Benefits
18.4 PROCEDURAL ISSUES
18.401 In General
18.402 Evidence
18.403 Exhaustion of Administrative Remedies
18.404 Sovereign Immunity
18.405 Preemption
18.406 Statute of Limitations
18.5 REMEDIES AND DAMAGES
18.501 Excise Tax
18.502 Participant Enforcement Suits
18.503 Penalties for Notice Violations
18.504 Damages
18.505 Attorney Fees
18.506 Other Penalties
18.507 State and Local Government Plans
APPENDIX 18-1: MODEL COBRA CONTINUATION COVERAGE
GENERAL NOTICE
APPENDIX 18-2: MODEL COBRA CONTINUATION COVERAGE
ELECTION NOTICE
CHAPTER 19: ERISA LITIGATION19.1 INTRODUCTION
19.101 Overview
19.102 Administrative Agencies
19.103 Coverage
19.104 Types of Plans
19.105 Fiduciaries
19.106 Employees
19.107 Plans
19.108 Plan Sponsors
19.109 Plan Administrators
19.110 Participants
19.111 Beneficiaries
19.112 Multiemployer Plans
19.113 Affordable Care Act
19.114 Same Sex Marriage and Employee Benefits
19.2 RIGHTS, RESPONSIBILITIES, AND PRINCIPAL
DEFENSES
19.201 Overview
19.202 Right to the Plan Documents
19.203 Summary Plan Description
19.204 Civil Enforcement Provisions
19.205 Preemption
19.206 Benefit Claims
19.207 Fiduciary Breach Claims
19.208 Equitable Relief Claims
19.209 Procedural Claims
19.210 Federal Common Law Claims
19.211 Retaliation Claims
19.212 Severance Claims
19.213 Estoppel Claims
19.214 Subrogation Claims
19.215 Arbitration
19.216 Claims for Retiree Medical Benefits
19.217 Standard of Judicial Review
19.218 Cash Balance Plans
19.219 Blackout Periods
19.220 Fiduciary Duties Where Employer Stock Is a
Retirement Plan Investment Option
19.221 Anti-Cutback Rule
19.222 Fiduciary Exception to the Attorney-Client Privilege
19.3 PROCEDURAL ISSUES
19.301 Exclusivity of Remedy
19.302 Standing
19.303 Jurisdiction
19.304 Venue
19.305 Service of Process
19.306 Removal
19.307 Exhaustion of Administrative Remedies
19.308 Statute of Limitations
19.309 Right to Jury Trial
19.310 Judicial Review
19.311 Multiemployer Plan Contributions and Withdrawal
Liability
19.4 REMEDIES AND DAMAGES
19.401 In General
19.402 Plan Administrator’s Failure to Provide Information:
Section 502(c)(1)
19.403 Enforcing Terms of Plan: Section 502(a)(1)(B)
19.404 Breach of Fiduciary Duty: Section 502(a)(2)
19.405 Enforcing ERISA Provisions: Section 502(a)(3)
19.406 Interference with Protected Rights: Section 510
19.407 Attorney Fees
19.408 Injunctive Relief
CHAPTER 20: THE NATIONAL LABOR RELATIONS ACT20.1 INTRODUCTION
20.101 In General
20.102 History
20.103 Scope of the NLRA
20.104 Jurisdictional Requirements
20.105 Preemption
20.2 RIGHTS AND RESPONSIBILITIES OF EMPLOYEES,
EMPLOYERS, AND UNIONS
20.201 Protected Activities
20.202 Union Organizing
20.203 Determining the Bargaining Unit
20.204 The Election Campaign
20.205 Access to Employer’s Property
20.206 Duty to Bargain in Good Faith
20.207 Purchases, Acquisitions, and the Obligation to
Recognize the Union
20.208 Unfair Labor Practice Charges
20.209 Decertification
20.210 Polling
20.3 PROCEDURE
20.301 The National Labor Relations Board
20.302 General Counsel
20.303 Investigation and Hearing
20.304 Arbitration
20.4 REMEDIES
20.401 Enforcement
20.402 Bargaining Orders
20.5 CONCLUSION
CHAPTER 21: PUBLIC SECTOR ISSUES21.1 EMPLOYMENT DISCRIMINATION GENERALLY
21.101 Introduction
21.102 First Amendment Free Speech Protection
21.2 CIVIL RIGHTS STATUTES
21.201 42 U.S.C. § 1981
21.202 42 U.S.C. § 1983
21.203 Eleventh Amendment Immunity
21.3 OTHER FEDERAL STATUTES AND REGULATIONS
21.301 Title VII of the Civil Rights Act of 1964
21.302 Age Discrimination in Employment Act
21.303 Americans with Disabilities Act
21.304 Equal Pay Act
21.305 Virginia Fraud Against Taxpayers Act
21.4 STATE-MANDATED GRIEVANCE PROCEDURE
21.401 Introduction
21.402 Procedural Requirements
21.403 Law Enforcement Exception
21.404 Employees of Department of Corrections and
Department of Juvenile Justice
21.405 Employees of Local Constitutional Officers
21.5 LABOR RELATIONS AND CONCERTED ACTIVITY
21.501 Collective Bargaining
21.502 Union Membership
21.503 Labor Disputes and Strikes
21.6 PRIVACY CONSIDERATIONS
21.601 Search of Persons and Property
21.602 Polygraph Testing
21.603 Controlled Substance and Alcohol Testing
21.7 “BAN THE BOX” HIRING POLICY
CHAPTER 22: UNEMPLOYMENT COMPENSATION22.1 INTRODUCTION
22.2 RIGHTS, RESPONSIBILITIES, AND PRINCIPAL
DEFENSES
22.201 Initial Application for Benefits
22.202 Initial Determination
22.203 Disqualification from Receiving Benefits
22.204 Discharge Due to Misconduct in Connection with
Work
22.205 Refusing Suitable Work
22.206 False Statements
22.207 Claimant in Prison
22.208 Severance Pay
22.209 Overpayment of Benefits
22.210 Defenses for Employers
22.3 PROCEDURES FOR ADJUDICATING CLAIMS
22.301 Deputy Level
22.302 Appeals Examiner Level
22.303 Commission Level
22.304 Judicial Review of VEC Determinations
22.305 Other Procedural Matters
22.306 Timeliness of VEC Appeal
22.307 Postponement of Appeal Hearings
22.308 Continuances
22.309 Withdrawal of Appeal
22.310 Attorney Fees
22.4 REMEDIES AND DAMAGES
22.401 Benefits Available to Claimants
22.402 Benefit Charges
22.403 Computation of Employer Tax Rate
22.404 VEC Publications
TABLE OF AUTHORITIES
INDEX