James R Theuer, PLLC Attorney at Law

02/23/2024

Employers are increasingly employing training cost reimbursement agreements to discourage employees from leaving or coerce their behavior after leaving, either in conjunction with or independent of a traditional non-compete or non-solicitation agreement. Training cost reimbursement agreements are coming under increased scrutiny by the U.S. Department of Labor and the National Labor Relations Board, especially when the agreement calls for reimbursement that is unrelated to the actual cost to the employer for the training or are used to chill employee rights to engage in protected activity. Furthermore, the reimbursement amounts are tied to the workweeks when the training occurred: that can result in a minimum wage violation in such workweeks depending on the amount of the reimbursement.
Employers should implement and enforce such agreements with these concerns in mind.

10/23/2021

COVID vaccine mandates are now widespread among both public and private employers. And they are causing significant discontent if the amount of calls to my office are any indication.

Practically, the vaccine mandates are resulting in workforce disruptions with employees being terminated or quitting. Employers already struggling with a tight labor market risk labor shortages because of the mandate.

Private sector employees opposing the mandate have limited recourse. In VA and NC, reasonable accommodations for sincerely held religious beliefs or a disability (a physical or mental impairment that substantially limits a major life activity) are required by State and Federal law. Public sector employees have those rights plus constitutional protections of free exercise of religion under the First Amendment. The rules for reasonable accommodation differ depending on whether it is based on a sincerely held religious belief or a disability, and the analysis for a constitutional claim is different still.

So far, court rulings on claims by employees seeking to avoid vaccine madates have not been favorable to employees, but the devil is in the details of how the employer is processing reasonable accommodation requests. Employers who do not engage in that process in accordance with the law but merely pay lip service to it risk legal liability.

09/22/2021

Interesting study on the epidemiology of mental health in the workplace. But employers risk legal liability under Federal and (many) state anti-discrimination laws should they inquire into an applicant's mental health or act on any information based on an applicant's actual or perceived mental health.

A study found that when troubled workers go to new firms, they often raise the company’s level of anxiety, depression and stress.

10/03/2020

https://www.norfolkandportsmouthbar.org/event-3936656

Looking forward to presenting with Tom Lucas a CLE on the recent developments in Virginia and Federal employment law. Join us on 10/8.

This CLE will be available on Zoom videoconferencing and live broadcast at the City of Norfolk Courthouse First Floor Training Room with a NPBA staff moderator for a limited audience.

06/06/2020

Changes to the PPP will give businesses more flexibility. The percentage of funds that must be used for payroll is reduced from 75 to 60 percent, and the period to use the funds is extended from 8 to 24 weeks. These changes should help many businesses make full use of the program.

President Trump signed into law a bill giving companies more time and flexibility to spend funds from the federal aid program to help small businesses during the coronavirus pandemic.

05/13/2020

I am proud to have been again selected as a "Super Lawyer" for labor and employment law by SuperLawyers magazine.

Super Lawyers magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-approved

05/13/2020

Virginia has enacted a number of statutory changes this year that will significantly modify the employment at will relationship between employer and employee that is the rule for the vast majority of Virginia workers.
Of particular note, the Virginia Human Rights Act has been fundamentally amended to create a right of action by an employee against his or her employer for discrimination on the basis of race, color, religion, s*x, s*xual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran, or national origin. Previously, an individual employee had no individual cause of action under the VHRA and the classes protected were more limited. The new right applies to employees of employers with more than five employees.
The change means that employers who were not previously covered by anti-discrimination law because they had fewer employees than necessary to be covered by Federal anti-discrimination statutes are now covered. It also means that employees will have the option to proceed under Virginia law, in Virginia state courts, for anti-discrimination claims.
The new right goes into effect on July 1, 2020.

05/08/2020

Employers and employees alike often have questions about the recent Federal legislation enacted in response to COVID-19. There are two principal new laws, the Families First Coronavirus Relief Act (FFCRA) and the Coronavirus Air, Relief, and Economic Security Act (CARES).
FFRCA created two new employee leave entitlements: emergency paid sick leave and an expansion of the Family and Medical Leave Act. CARES created the Paycheck Protection Program (PPP) and supplemental unemployment insurance benefits.
In this post, I'd like to discuss the issue of how the PPP and supplemental unemployment benefits might interact. Under the PPP, small businesses and larger businesses in certain industries are eligible for forgivable loans from the Small Business Administration if, among other things, each can certify "Current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant." The funds must be used for payroll and a limited list of other expenses. Some employers who had to layoff employees might now seek to bring them back following funding of a PPP loan.
But CARES also provided a $600/wk supplement to the unemployment benefits otherwise payable under State law. As a result, a worker on layoff might be making more on unemployment than he or she did working and resist returning from layoff. Nevertheless, a worker receiving unemployment benefits must certify weekly that he or she has searched for a job but remains involuntarily unemployed; can't say that if he or she refuses to return from layoff.
The employer can still get forgiveness for the PPP loan in the case of an employee who refuses to return from layoff by making a written offer of reinstatement and documenting the employee's refusal.
These are interesting times for employers and employees.

09/24/2019

The United States Department of Labor announced today the publication of its long-awaited revision to the salary levels for certain exemptions to overtime pay under the Fair Labor Standards Act. Under the new rules, that go into effect January 1, 2020, the minimum salary required for an individual to be exempt from overtime pay rises to $684 per week from the current $455 per week. That equates to the equivalent of $35,568 per year. Below that salary level, a worker is entitled to overtime regardless of duties. (Note: the new rule does not change the current rule that hourly workers are entitled to overtime regardless of hourly wage.)

Another change in the new rules is to the highly compensated employee (HCE) exemption. The annual compensation requirement for the HCE exemption rises to $107,432 per year from $100,000 per year.

With this new rule, DOL has withdrawn its 2016 rule that never went into effect because of a legal challenge.

06/29/2019

Non-compete agreements are proliferating among private employers. While non-competes are often unenforceable because of drafting errors or lack of fit with the situation of the particular employee, they are often used as deterrents to intimidate current and former employees who do not want to risk the potential expense to defend against a claim. Expanding non-competes to interns exemplifies the current trend.

Internships have long been an opportunity for inexperienced workers to try out different industries and build valuable contacts.

09/09/2018

Employees have no expectation of privacy in - and therefore cannot prevent their employers from accessing - even private information and data on the employers' systems. But what about personal devices? Connecting personal devices to an employer's system, such as by logging in to an employer's server, can compromise information the employee would otherwise consider to be private.

Case will examine gray area that is expected to spawn more legal battles as employees increasingly use personal devices for work