Ask General Counsel: What’s the difference between a 1099 contractor and a W-2 employee?

Published by Ask General Counsel on InsideNova, 5/12/2021 The distinction between a 1099 independent contractor and a W-2 employee is important, as this classification affects federal income tax, Social Security and Medicare taxes, as well as impacts eligibility for Medicare benefits. It is important that business owners correctly determine whether individuals are employees or self-employed. If a
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Ask General Counsel: Are non-compete agreements enforceable in Virginia?

Changes to laws regarding non-compete agreements
Published by Ask General Counsel on InsideNova, 4/28/2021 A well-drafted non-compete agreement can be enforceable. The problem is that many non-compete agreements are not “well drafted” and, as such, are not enforceable. On a weekly basis, we receive calls from employers and employees asking about the enforceability of non-competition agreements. Our answer, generally, is YES,
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Ask General Counsel: Can employers require employees to receive COVID-19 vaccinations?

Published by Ask General Counsel on InsideNova, 4/13/2021 Can employers require employees to receive COVID-19 vaccinations? Yes, with some exceptions and if the mandatory vaccine policy is job-related and consistent with business necessity. The Equal Employment Opportunity Commission (“EEOC”) issued new guidance that preemptively answers some questions that may arise now that COVID-19 vaccinations are beginning to
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Department of Labor Clarifies Test for Classifying Employees and Independent Contractors under FLSA

The line between employee and independent contractor has historically been unclear. However, on January 6, the Department of Labor (DOL) provided clarification on the test for employee versus independent contractor under the Fair Labor Standards Act (FLSA). The “final rule” streamlines and clarifies the test and should “reduce worker misclassification, reduce litigation, increase efficiency, and
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Employee Must Meet Employer’s Legitimate Expectations to Establish Case of Employment Discrimination

In two recent cases, the Eastern District of Virginia found that the plaintiffs weren’t able to establish claims of discrimination, because they weren’t able to establish that they met employers’ legitimate expectations at the time of the adverse employment action. These cases can offer helpful guidance for employers. Employment Discrimination—Disparate Treatment Title VII of the
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Western District of Virginia Finds Employee Diagnosed With Cancer “Disabled” Under the ADA

In a recent case, the court found an employee diagnosed with Stage IV inoperable Adenocarcinoma pancreatic cancer had a disability under the Americans with Disabilities Act (“ADA”). The court further held that the employee was entitled to reasonable accommodations in the form of a modified work schedule to obtain chemotherapy treatment. The court concluded that
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It May Be Time to Update Your Workplace Social Media Policy…

The use of social media has created unique issues for employers and employees. Individuals often choose to use social media as a platform for voicing opinions and concerns, including complaints about issues in the workplace. While many employers would likely choose to just prohibit any negative comments on social media by employees, these types of
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Employer Not Required to Make Safety Exemptions for Employee in ADA Case

In a recent case, the federal court for the Western District of Virginia answered the question of whether an employer must exempt an employee from a requirement to wear safety equipment because she has a physical condition that prevents her from wearing the safety equipment. The court ultimately concluded that the Americans with Disabilities Act
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Are you Asking job Candidates Illegal Questions During an Interview?

Here are some tips on what not to ask to avoid a liability. Want to avoid complaints and discrimination allegations flowing from your company or organization’s hiring practices? Then, you need to be very careful in your hiring processes and interview questions. Imagine the scenario where a 55-year-old male applies for a job. During the
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DOL Overtime Update Client Alert

The U.S. Department of Labor recently announced a change to the Fair Labor Standards Act (FLSA) that will make over a million more American workers now eligible for overtime pay. Business owners should be aware of this new rule, which goes into effect on January 1, 2020. The new rule changes the earnings threshold necessary
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Employer Needs Legitimate, Non-Discriminatory Grounds for Termination

In a recent case, Haynes v. Waste Connections Inc., the Fourth Circuit affirmed denial of summary judgment against employer on claims of race discrimination and retaliation. While this case was decided on a particular set of facts, the ruling may offer guidance for other employers and employees. The Facts James Fountain, a white man, hired
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