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May 31, 2024 Employment Law

Five Employment Law Mistakes to Avoid

Business owners have a lot on their plates at all times. From running the day-to-day operations to finding the right talent to balancing the corporate books, there is not much time left over for employers to comb through the finer points of employment law and police compliance with them. Unfortunately, this can lead to costly legal mistakes. The good news is that most employers can avoid those mistakes with the assistance of a Norfolk employment lawyer

Misclassifying Employees 

Employee classification might not sound like the most pressing or important issue in employment law, but running afoul of employee misclassification laws can have serious repercussions for offenders. There are two main types of employee misclassification: classifying employees as independent contractors and classifying employees who are non-exempt under the Fair Labor Standards Act (FLSA) as exempt. We address both below. 

Employees vs. Independent Contractors 

Whether a worker is classified as an employee or an independent contractor depends on the nature of their work. Generally, a worker is an employee when the employer has the right to direct and control the work the worker performs. An independent contractor, on the other hand, has much greater freedom in their work, including their location, hours, tools, and hourly rate. Misclassifying an employee as an independent contractor for the purpose of circumventing tax, wage and hour, or workers’ compensation laws can land employers in hot water with a variety of authorities, including the IRS. 

Exempt vs. Non-Exempt

The FLSA establishes the federal minimum wage, sets the 40-hour work week, and provides for overtime compensation for hours worked in excess of 40. However, not all employees are covered by the FLSA, and those who aren’t are referred to as “exempt.” Employers may intentionally or unintentionally classify non-exempt employees as exempt, which can subject them to lawsuits for unpaid overtime. 

Requiring the Wrong Employees to Sign Noncompete Agreements 

Noncompete agreements are employment contracts that prohibit former employees from working for their former employers’ competitors or starting competing businesses within a certain geographic area and for a certain amount of time after their employment ends. They are one of the most common types of employment contracts and have long been used in Virginia to protect employers’ investments in their employees. While noncompete agreements are enforceable in Virginia, commonwealth law prohibits them for low-wage employees. A “low-wage employee” is one whose average weekly earnings for the period of 52 weeks immediately preceding the termination are less than the average weekly wage in Virginia. For more information about which employment contracts to use in your business, please contact a Norfolk employment lawyer

Creating a Hostile Work Environment 

Sexual harassment and other forms of employment discrimination have long plagued American workplaces, but legislatures and administrative agencies across the country have taken an aggressive stance against them in the past few decades. There is a wide range of both federal and state anti-discrimination laws aimed at protecting certain protected characteristics or classes (e.g., race, sex, age, etc.), but most allow for causes of action based on claims that employers created  “hostile work environments” or allowed them to flourish. 

Hostile work environment is a subjective concept, as the types of behaviors that can lead to hostile work environments vary from workplace to workplace and often depend on the characteristics of the protected class at issue. However, some examples of employer behaviors that can lead to hostile work environment claims include: 

Employers should keep in mind that hostile work environment claims do not require that the offending party be someone in a managerial position over the complaining employee; discrimination and harassment among employees with the same seniority is sufficient. Contact a Norfolk employment lawyer for more information about creating policies and procedures to minimize discrimination and harassment in your workplace. 

Retaliating (or Creating the Appearance of Retaliation) After Employees Engage in Protected Activities  

Most employer/employee relationships in Virginia are “at will,” meaning that an employer may terminate an employee for any reason or no reason. That being said, there are certain limitations on employers’ ability to terminate employees, with one of the most well-known being anti-discrimination laws. Employers are also prohibited from terminating or otherwise retaliating against employees who engage in certain “protected activities.” These activities include: 

  • Reporting violations of law or other wrongdoing
  • Reporting regulatory violations, such as workplace safety issues
  • Refusing to cooperate with unlawful activity 
  • Making a report of discrimination or harassment
  • Participating in an internal or external investigation 
  • Testifying before a court or other government authority 

Retaliation is not limited to termination. It encompasses virtually all adverse employment actions, including demotion, reassignment to less desirable duties, segregation from other employees, and reduced hours, among other actions. 

Failing to Make Reasonable Accommodations for Disabled Employees 

Discrimination against disabled employees is illegal. However, under the Americans With Disabilities Act, employers are not merely required to refrain from discriminating against disabled employees; they also are required to make reasonable accommodations for them. A “reasonable accommodation” is a modification or adjustment that enables an employee with a disability to perform the essential functions of that position. While employers are not required to make reasonable accommodations if the accommodations would cause undue hardship, the Equal Employment Opportunity Commission (EEOC) interprets “undue hardship” narrowly, which increases the risk of an EEOC investigation if an employer denies a request for a reasonable accommodation. 

Avoid Costly Legal Mistakes With Help From a Norfolk Employment Lawyer 

Employment law is rife with pitfalls for the unwary, and an unexpected lawsuit can seriously compromise a business’ bottom line. The best way to avoid costly legal mistakes is to seek the counsel of an experienced attorney. For more information, please contact a Norfolk Employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.