| Publication Date: | 2015 |
| Electronic Forms: | 43 |
| Print (515 pages, softcover, 1 volume) | |
| Electronic (searchable PDF via direct download, USB, or CD) | |
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| Online Publications Library: Access our full library of books online with universal search and links to primary law. * currently sold out in print | |
| Product #: | 897 |
Content Highlights:
Few areas of Virginia jurisprudence have evolved in complexity over the past 30 years to the same degree as employment law. Exceptions to the “at will” doctrine have pushed the resolution of many workplace issues from the conference room to the courtroom. With this evolution has grown the importance of forms such as personnel policies and employment agreements. Changes in technology have given rise to new issues such as monitoring email and blogging that we never would have dreamed about 20 years ago.
This book, and the more than 40 editable electronic forms included therein, provides guidance in all phases of the employment process, from hiring to termination. Practical advice is included on the use of each form. It may be used to answer employment law questions and issues that confront Virginia businesses daily, as well as a guide to navigate policies that become the subject of a dispute.
The materials complement Virginia CLE®‘s two-volume deskbook Employment Law in Virginia (2016) and can be used in conjunction, or on their own.
1.1 INTRODUCTION
1.2 ADVERTISING FOR EMPLOYEES
1.201 Overview
1.202 Prohibited Language
1.203 Permissible Language
1.3 GUIDELINES FOR THE APPLICATION PROCESS
1.301 Employment Applications and Interview Questions
1.302 Affirmative Action Compliance for Government
Contractors
1.303 Inquiries About Disabilities: The Americans with
Disabilities Act
1.304 Drug and Alcohol Testing
1.4 NEGLIGENT HIRING AND BACKGROUND CHECKS
1.401 Overview
1.402 Theory of Negligent Hiring
1.403 Elements of Negligent Hiring
1.404 Negligent Hiring Theory in Virginia
1.405 Negligent Supervision Theory in Virginia
1.406 Criminal Background Checks
1.407 Fair Credit Reporting Act
1.408 Employment References
1.409 Employee Polygraph Protection Act of 1988
1.5 OFFERS OF EMPLOYMENT
1.501 The Offer Letter
1.502 Immigration Reform and Control Act of 1986
1.6 REPORTING REQUIREMENTS
CHAPTER 2: ESTABLISHING THE EMPLOYMENT RELATIONSHIP:
THE USE OF EMPLOYMENT AGREEMENTS AND RELATED
ISSUES
2.1 EXPRESS EMPLOYMENT AGREEMENTS
2.101 In General
2.102 When Is an Employment Agreement Useful?
2.103 Typical Employment Agreement Provisions and Drafting
Tips
2.104 Sample Employment Agreement
2.2 CLASSIFYING EMPLOYEES UNDER THE FAIR LABOR
STANDARDS ACT
2.201 In General
2.202 What the FLSA Regulates
2.203 What the FLSA Does Not Regulate
2.204 Covered Employees
2.205 Who Is an “Employee”?
2.206 Employer’s Individual Liability
2.207 Joint Employees
2.208 “Exempt” Employees
2.209 Duties Test—Executive Employees
2.210 Duties Test—Administrative Employees
2.211 Duties Test—Professional Employees
2.212 Duties Test—Computer Employees
2.213 Outside Salespersons
2.214 Motor Carrier Employees
2.215 Miscellaneous Exemptions
2.216 Payment on a “Salary Basis”
2.217 Effect of Improper Deductions
2.3 INDEPENDENT CONTRACTORS
2.301 The Employer-Employee Relationship
2.302 Federal Taxation Issues
2.303 Wage and Hour Issues
2.304 Discrimination Laws
2.305 Labor-Management Laws: National Labor Relations Act
2.306 Unemployment Compensation
2.307 Workers’ Compensation
2.308 Sample Independent Contractor Agreement
2.4 VIRGINIA WAGE PAYMENT LAWS
2.401 In General
2.402 Medium of Payment
2.403 Pay Schedules
2.404 General Rule Regarding Wage Withholding
2.405 Application of the Virginia Wage Payment Statute
2.406 Payment of Commissions After Termination
2.407 Private Causes of Action Under the Virginia Wage
Payment Act
2.408 Sample Wage Withholding Authorization for Cash
Advances
CHAPTER 3: COVENANTS NOT TO COMPETE
3.1 INTRODUCTION AND OVERVIEW
3.101 History of Virginia Law Regarding Restrictive Covenants
3.102 General Principles
3.2 CONTRACT FORMATION
3.201 Consideration
3.202 Acceptance
3.203 Termination
3.3 REASONABLENESS OF RESTRAINT
3.301 Guidelines in Assessing Reasonableness
3.302 Criteria for Assessing Reasonableness
3.4 MISCELLANEOUS ISSUES
3.401 Reformation and Blue Penciling
3.402 Separability and Severability
3.403 Indirect Participation in a Competing Business
3.404 Assignability of Noncompetition Agreements
3.405 Effect of Bankruptcy on Restrictive Covenants
3.406 Noncompetition Agreement and Nonrenewal of
Employment Contract
3.407 Resignation and Reemployment
3.408 Enforceability of Covenants in Business Purchase
Agreements
3.409 First Breach Defense
3.410 Choice of Law Provisions
3.411 Statute of Limitations
3.412 Restrictive Covenants Contained in Settlement and
Separation Agreements
3.5 PRACTICAL CONSIDERATIONS IN LITIGATING
NONCOMPETE AGREEMENTS
3.501 Injunctions and Temporary Restraining Orders
3.502 Availability of Declaratory Relief
3.503 Responding to a Noncompetition Claim with a Demurrer
3.504 Responding to a Noncompetition Claim with a Plea
in Bar
3.505 Proving Damages
3.6 DRAFTING CONSIDERATIONS FOR NONCOMPETITION
AGREEMENTS
3.7 MODEL RESTRICTIVE COVENANT PROVISIONS
3.701 General Noncompetition Provision
3.702 Nonsolicitation or Nonservice of Customers
3.703 Nonsolicitation or Non-Hiring of Employees
3.704 Successors and Assigns Provision
3.705 Severability and Reformation Provision
3.706 First Breach Provision
CHAPTER 4: DRAFTING EFFECTIVE PERSONNEL POLICIES AND
MANUALS
4.1 OVERVIEW
4.2 CONTRACT CLAIMS ARISING FROM EMPLOYMENT
HANDBOOKS
4.201 Employment-at-Will Presumption
4.202 Employee Handbook as Implied Contract
4.203 Statute of Frauds
4.3 GENERAL DRAFTING PRINCIPLES
4.301 Reasons for Maintaining Written Policies or a Personnel
Manual
4.302 Written Policies by Large and Small Employers
4.303 Appropriate Level of Detail for Policies
4.304 Importance of Following Written Policies
4.4 CONTRACT CLAIMS BASED ON HANDBOOK PROVISIONS
4.401 In General
4.402 Disclaimer of Contract Rights and Affirmation of
“At-Will” Status
4.403 Merger Clauses
4.404 Acknowledgment of Receipt of Manual
4.405 Reservation of Rights Clause
4.406 Avoid “Signing” the Manual
4.407 Avoid Using Language That Promises Permanent or
Continued Employment
4.5 WRITTEN POLICIES EVERY EMPLOYER SHOULD HAVE
4.501 In General
4.502 Equal Employment Opportunity and Nondiscrimination
4.503 Sexual and Other Unlawful Harassment
4.504 Reasonable Accommodation
4.505 COBRA Health Care Continuation Coverage
4.506 Family and Medical Leave Act Policy
4.507 Workplace Safety and Prevention of Violence
4.508 Workplace Monitoring Policy
4.509 Union Avoidance Policies
4.510 Policy on Improper Deductions from Exempt Employee
Salaries
4.511 Overtime
4.512 Break Time for Nursing Mothers
4.513 Reemployment Rights of Employees Engaged in Military
Service
4.6 OPTIONAL WRITTEN EMPLOYMENT POLICIES
4.601 In General
4.602 Introductory Period for Newly Hired Employees
4.603 Progressive Discipline and Termination
4.604 Social Media Policy
4.7 PERSONNEL DOCUMENTATION
4.701 In General
4.702 Reasons to Maintain Documentation
4.703 Importance of Documentation
4.704 Documentation by Supervisor
4.705 Content of Documentation
4.706 Copies of Disciplinary Documentation
4.707 Tone of Disciplinary Communications
CHAPTER 5: SEVERING THE EMPLOYMENT RELATIONSHIP
5.1 OVERVIEW
5.2 PROVIDING EMPLOYEES REASONABLE NOTICE OF
TERMINATION
5.201 Reasonable Notice Not Defined
5.202 Courts That Have Required Reasonable Notice
5.203 Courts That Have Refused to Require Reasonable Notice
5.3 SEVERANCE PAY
5.301 Severance Payments to Individual Employees
5.302 Severance Payments Under an Established Policy
5.4 PUBLIC POLICY WRONGFUL DISCHARGE
5.401 Wrongful Discharge Claims
5.402 Discrimination Actions
5.403 Statutory Basis Requirement
5.404 Federal Law as Statutory Basis
5.405 Statutory Preemption of Wrongful Discharge Claims
5.406 Refusal to Engage in Criminal Conduct
5.407 Member of Class Intended to Be Protected by Policy
5.408 Individual Liability for Wrongful Discharge Claim
5.5 WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
ACT (WARN)
5.501 Introduction
5.502 Coverage of the WARN Act
5.503 Triggering Events Under WARN
5.504 Contents of the WARN Notice
5.505 Timing of the WARN Notice
5.506 Exceptions to the 60-Day Rule
5.507 Penalties for Failure to Give a Timely WARN Notice
5.508 Sample WARN Notice
5.6 PARTIAL PLAN TERMINATION UNDER ERISA
5.7 COBRA HEALTH CARE CONTINUATION COVERAGE
5.701 Overview
5.702 Plans Covered by COBRA
5.703 Employment Termination as a Qualifying Event Under
COBRA
5.704 “Qualified Beneficiary”
5.705 COBRA Notice and Election Period
5.706 Payment of COBRA Premiums
5.707 Period of Continuation Rights Under COBRA
5.708 Penalty for Failure to Provide COBRA Notice
5.8 THE VIRGINIA HEALTH CARE CONTINUATION STATUTE
5.9 THE HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT OF 1996 (HIPAA)
5.901 Overview
5.902 Common Employer Misunderstandings About HIPAA
5.903 Eligibility for Coverage
5.904 Portability and Special Enrollment Requirements
5.905 HIPAA and New Hires
5.906 Denial of Health Insurance Based on Health Status
5.907 Privacy Rules
5.908 Security Standards
5.10 PRACTICAL GUIDELINES FOR ADVISING EMPLOYERS ON
SEVERING THE EMPLOYMENT RELATIONSHIP
TABLE OF FORMS
APPENDIX OF FORMS
TABLE OF AUTHORITIES
INDEX
Edward Lee Isler, Isler Dare, P.C. / Tysons Corner
Edward Lee Isler is a founding partner with Isler Dare, P.C. in Tysons Corner, Virginia. The firm’s practice is dedicated solely to the representation of management in labor, employment, and benefits law. A native of McLean, Mr. Isler graduated in 1983 from the University of Virginia with a B.A. in Government and Economics. In 1987, Mr. Isler graduated from the College of William & Mary, Marshall-Wythe School of Law, where he served as a member of the board of editors of the William & Mary Law Review and was inducted into the Order of the Coif.
Upon graduation, Mr. Isler served for a year as a judicial clerk to the Honorable James C. Turk, Chief Judge for the United States District Court, Western District of Virginia. He then spent seven years practicing labor and employment law with a national firm, Gibson, Dunn & Crutcher, in Washington, D.C., and two years with a regional labor and employment firm, Kruchko & Fries, in McLean. Mr. Isler is a member of the Virginia and the District of Columbia Bars and is admitted to practice before numerous federal circuit and district courts as well as the United States Supreme Court. He has extensive experience representing employers before the EEOC and in federal and state court litigation.
Mr. Isler is a frequent speaker at management employment law seminars and continuing legal education courses. For more than a decade, he served as a member of the Executive Council of the Labor Relations & Employment Law Section of The Virginia Bar Association, most recently as Chair of the Section in 2010-11. He also is a past Planning Chair of the Virginia CLE Annual Employment Law Update.
Steven W. Ray, Isler Dare, P.C. / Tysons Corner
Steven W. Ray is also a partner with Isler Dare, P.C. Mr. Ray earned a B.S. in Finance from San Diego State University in 1981. In 1984, Mr. Ray graduated from the University of the Pacific, McGeorge School of Law, in Sacramento, California, where he was the managing editor of the McGeorge Law Review.
Mr. Ray is a recent past President of the Fairfax Bar Association and has previously served as Chair of the Continuing Legal Education and Revenue Development Committees of that association. He is admitted to practice in Virginia, Maryland, the District of Columbia, and California, in the United States Supreme Court, and before numerous federal and district courts. Before establishing Ray & Isler in April 1997, Mr. Ray represented employers in the Washington, D.C. area for 10 years as an attorney with Kruchko & Fries in McLean and Epstein, Becker & Green in Washington, D.C.
Mr. Ray is a frequent speaker on labor and employment law issues before professional and business organizations, speaking on subjects such as workplace security, sexual harassment, union organizing, the Fair Labor Standards Act, the Service Contract Act, and affirmative action. He regularly writes articles for several local trade publications and has published numerous articles on labor relations issues in business and legal journals.
Lori H. Turner, Isler Dare, P.C. / Tysons Corner
Lori H. Turner, also a partner at Isler Dare, P.C., is a co-author of Chapter 3. Ms. Turner graduated from Randolph-Macon College with a double major in Economics and French. Ms. Turner earned her Juris Doctor from the University of Pittsburgh in 2004, graduating Magna Cum Laude and Order of the Coif. Following her graduation, Ms. Turner joined IslerDare, P.C. (previously Ray & Isler, P.C.) as an associate. In 2011, Ms. Turner was named a partner in the firm.
Ms. Turner served as the Vice-Chair for the Employment Law Section of the Fairfax County Bar Association from 2008 to 2010. In 2010, Ms. Turner was named as a Virginia Rising Star by Virginia Super Lawyers in the Employment and Labor category. Ms. Turner counsels and litigates in all areas of employment law.
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