Required Employment Posters
In Virginia, employers must post certain labor and employment posters outlining relevant laws at their place of business in a conspicuous place. If your winery’s workforce is not proficient in English, you must provide notice in the language the employee speaks. An all-encompassing source that includes mandatory posters under federal and Virginia employment law can be found here: http://www.allinoneposters.com/Virginia-Federal-Combo.html.
Federal Posters
Equal Employment Opportunity (EEO)
Ø This poster includes all relevant information regarding employee rights under Title VII and should be posted by every winery with 15 or more employees.
Fair Labor Standards Act (FLSA)
Ø This poster sets forth the federal minimum wage and the payment of time and a half for overtime hours for covered and nonexempt employees.
Employee Rights Under the Family and Medical Leave Act*
Ø Winery employers must inform employees of their rights to up to 12 weeks of unpaid, job-protected leave for certain family and medical reasons. Wineries who employ 50 or more employees in 20 or more work weeks must post this information.
Job Safety and Health: It’s the Law Poster*
Ø Wineries that employ 50 or more employees in 20 or more work weeks must post this signage.
Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
Ø The MSPA requires farm labor contractors, agricultural employers, and agricultural associations to meet certain minimum requirements in their dealings with migrant and seasonal agricultural workers.
Americans with Disabilities Act (ADA)
Ø The ADA applies to winery employers with 15 or more employees.
Employee Polygraph Protection Act (EPPA)
Ø The EPPA generally prevents private sector employers from using lie detector tests.
State Posters
Virginia Occupational Safety and Health Act*
Ø The “Job Safety and Health Protection” poster advises employees of their rights and responsibilities under the OSHA law.
Virginia Unemployment Compensation Act (UC)*
Ø This poster advises winery employees when they are eligible for unemployment insurance benefits and how to apply.
Virginia Workers’ Compensation (VWC)
Ø The “Workers’ Compensation Notice” (VWC 1) advises employees and employers of their rights and responsibilities under the Workers’ Compensation Law in case of injury or occupational disease.
Virginia Department of Social Services (VDSS)
Ø The Earned Income Tax Credit (EITC) IRS publication 4194 advises low-to-middle income working individuals and families about the federal earned income tax credit and state low income credit.
*Failure to post may result in a citation of penalty.
Top Federal Employment Laws
· FLSA (Fair Labor Standards Act)
The Fair Labor Standards Act establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting winery employees. The federal minimum wage is $7.25/hour. All employees should be classified as either exempt of non-exempt. An exempt employee may be exempt from overtime requirements, and, in some cases, minimum wage. Whether an employee can be classified as exempt depends on his/her job duties, not simply whether he/she is paid a salary. Non-exempt employees are entitled to overtime pay for all non-exempt employees for all hours worked over 40 hours. Overtime pay is 1.5x an employee’s “regular rate of pay.” The “regular rate of pay” is the actual rate paid to the employee for normal non-overtime hours worked in a workweek (it is a real calculation, not an agreed-upon rate). Record keeping is essential and mandated by the FLSA.
· FMLA (Family Medical Leave Act)
The Family and Medical Leave Act is a law that provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. Employees are eligible and their employer has 50 or more employees within 75 miles. Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.
· ADA (Americans with Disabilities Act)
The civil rights law prohibits employers with more than 15 employees from discriminating based on disability. A potential or current employee with a disability is an individual who:
o Has a physical or mental impairment that substantially limits one or more major life activities;
o Has a record of such an impairment; or
o Is regarded as having such an impairment.
An employer is required to provide a reasonable accommodation to the known disability of a qualified applicant/employee if it would not pose an “undue hardship” on the operation of the employer’s business. A reasonable accommodation may include, but is not limited to:
o Making existing facilities used by employees readily accessible to and usable by persons with disabilities;
o Job restructuring, modifying work schedules, reassignment to a vacant position;
o Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
· GINA (Genetic Information Nondiscrimination Act)
Under Title II of GINA, it is illegal for employers with 15 or more employees to discriminate, harass, or retaliate against employees or applicants because of genetic information. Title II prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
· USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994)
The Uniformed Services Employment and Reemployment Rights Act establishes rights and responsibilities for uniformed service members and their civilian employers. This law protects the job rights of individuals who voluntarily or involuntarily leave employment positions to perform service in the uniformed Services. It also prohibits employers from discriminating against past and present members of the uniformed Services and applicants to the uniformed Services.
· Civil Rights Act of 1964
The Civil Rights Act prohibits employers with 15 or more employees from discriminating based on race, color, religion, sex, or national origin.
Top Virginia Employment Laws
· Virginia with Disabilities Act (“VDA”)
The ADA is a federal law that applies to employers with more than 15 employees and prohibits discrimination against qualified individuals with a disability. The VDA mirrors the ADA and applies to all employers, regardless of size. Under the VDA, employers must provide reasonable accommodations to qualifying individuals unless it would create an “undue burden.” Unlike the ADA, there is a presumption under the VDA that any accommodation that costs more than $500 creates an undue burden for employers with fewer than 50 employees.
· Virginia Human Rights Act
The Virginia Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, or disability.
· Pre-Employment Inquiries Regarding Criminal Convictions
Ø There is no federal law that clearly prohibits employers from asking about arrests and convictions during the pre-employment stage, but the EEOC has strongly discouraged such inquiries. Virginia law currently favors employers in this area and only restricts inquiries into “any arrest or criminal charge against [an applicant] that has been expunged [i.e., sealed through a legal proceeding].”
Ø In April 2015, Governor Terry McAuliffe signed an executive order “banning the box” on most state employment applications and “encouraging” private employers to do the same. Similarly, several municipalities in Virginia have passed “ban the box” laws. While this likely does not affect wineries, employers are well-advised to tread lightly in this area and to inquire into criminal backgrounds only when doing so is job-related and consistent with business necessity.
· Virginia Wage Payment Act (“VWPA”)
Ø Salaried employees must be paid at least once a month. Hourly employees must be paid at least every two weeks. The VWPA also imposes restrictions on withholding wages from employees’ paychecks. Specifically, the law provides that “[n]o employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without the written and signed authorization of the employee” (emphasis added). As such, employers should obtain a written and signed authorization prior to withholding anything other than payroll, wage, or withholding taxes from a paycheck. Also, employers should ensure that the amount withheld does not drop the employee’s hourly wage rate below the federal minimum wage of $7.25 per hour. Further, upon termination, if an employee does not return a uniform or employer-owned item, the employer cannot simply deduct the value of the item from the employee’s final paycheck.
Ø The penalties for failing to comply with the VWPA range from a Class 1 misdemeanor (if the value of the wages earned and not paid by the employer is less than $10,000) to a Class 6 felony.
· Special Duties Owned to Employees Who are Victims of Crimes
Under Virginia law, every employer must allow an employee who is a victim of a crime to leave work to attend all criminal proceedings relating to a crime against the employee. Employers are not required to compensate employees for such absences, but may not discharge an employee for exercising the right to attend a criminal proceeding. Furthermore, employers may not refuse to hire, or discriminate against, an individual because the individual leaves work to attend a criminal proceeding. Indeed, employers may only limit the duration of an employee’s leave if the employee’s leave creates an undue hardship to the employer’s business.
Types of Employees
Work Authorization for Non-U.S. Citizens
Under the Immigration and Nationality Act (INA), employers may only hire persons who may legally work in the United States (i.e., citizens and aliens authorized to work in the U.S). The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing the Employment Eligibility Verification form (I-9). I-9’s must be filled out within three days from the date of hire, and employers must keep each I-9 on file for at least three years, or one year after employment ends, whichever is longer.
Migrant/Seasonal Workers
Ø The Migrant and Seasonal Agricultural Worker Protection Act (MSPA) safeguards most migrant and seasonal agricultural workers in their interactions with agricultural employers.
Ø The H-2A program is for agricultural employers who anticipate a shortage of domestic workers to bring foreign workers to the United States to perform agricultural labor or other temporary or seasonal services. In order to qualify for this program, you must file an application with the Department of Labor stating that there are not sufficient workers in the U.S. who are able, willing, qualified, and available to do the work. Your winery must engage in “positive recruitment efforts” which includes placing a newspaper advertisement on two separate days, one of which must be a Sunday, in an area where the workers will be used, and in other multistate publications. This is a program for wineries who typically hire larger numbers of temporary seasonal labor and whose alternative choice would be hiring from the undocumented population.
o H-2A limitations
§ There is no upward progression potential for temporary workers. They may only come in during the exact same time period annually.
§ H-2A workers and U.S. workers in corresponding employment must be paid a certain rate (2017: $10.77) and must be provided housing and transportation to the job site if your winery requires them to be away from their residence overnight.
· Notice for Terms and Conditions of Housing
Each person or organization that owns or controls a facility or real property used for housing migrant workers must comply with federal and state safety and health standards. A written statement of the terms and conditions of occupancy must be posted at the housing sitewhere it can be seen or be given to the workers. The written statement must include the following information on the terms and conditions of occupancy of such housing:
Ø The name and address of the farm labor contractor, agricultural employer, or agricultural association providing the housing
Ø The name and address of the individual in charge of the housing
Ø The mailing address and phone number where persons living in the housing facility may be reached
Ø Who may live at the housing facility
Ø The charges to be made for housing
Ø The meals to be provided and the charges to be made for them
Ø The charges for utilities
Ø Any other charges or conditions of occupancy
If the terms and conditions of occupancy are posted, the statement must be displayed and maintained during the entire period of occupancy. If the terms and conditions of occupancy are provided to the worker through a statement (rather than through a posting), this statement must be provided to the worker prior to occupancy. Employers may use a DOL form, WH Form 521 – Housing Terms and Conditions (PDF), to satisfy this requirement
· Notice of Employment Terms
Each farm labor contractor, agricultural employer, and agricultural association that recruits any migrant agricultural worker must provide the following information at the time of recruitment, while seasonal workers must be given the information when they are offered work, in writing, if requested. The information required to be disclosed includes the following information:
Ø The place of employment (with specifics, such as the name and address of the employer or the association)
Ø The wage rates (including piece rates) to be paid
Ø The crops and kinds of activities on which the worker may be employed
Ø The period of employment
Ø The transportation, housing, and any other employee benefits to be provided, if any, and any costs to be charged for each
Ø Whether state workers’ compensation or state unemployment insurance is provided
Note: If workers’ compensation is provided, this information must include the name of the workers’ compensation insurance carrier, the name of the policyholder, the name and telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given. This requirement in the section above may be satisfied by giving the worker a photocopy of any workers’ compensation notice required by state law.
· Payroll Statements for Workers
In addition to making records of payroll information, the farm labor contractor, agricultural employer and agricultural association must provide each migrant or seasonal agricultural worker a written statement of this information. This information must be provided at the time of payment for each pay period which must be no less often than every two weeks. In addition to the payroll information specified below, such statement shall also include the employer’s name, address, and employer identification number assigned by the Internal Revenue Service.
Employee Handbooks
Common Pitfalls of Employee Handbooks
Ø Employers often make their employee handbooks too inflexible. To try to avoid this kind of inflexibility, try to use language such as “may” versus “will,” “should” versus “must,” and “typically/ordinarily” in place of “always.”
Ø It is also advantageous to avoid unconditional promises, promises of continued employment, and rigid discipline policies without disclaimers
Ø To enforce policies listed in your employee handbook, be sure to consistently enforce polices, clearly outline consequences for violations, and to clearly identify exceptions to policies. Once you distribute policies, make your employees acknowledge, in writing, their receipt.
Ø Language to avoid relating to social media
o Prohibiting posts discussing employer’s non-public information, confidential information, and matters (without further clarification of the meaning of these terms);
o Prohibiting employees form harming image and integrity of company, making statements that are detrimental, disparaging, or defamatory to employer, and prohibiting employees from discussing workplace dissatisfaction;
o Prohibiting posts that are inaccurate or misleading or contain offensive, demeaning or inappropriate remarks; and instructing employees to use friendly tone and not engage in inflammatory discussions;
o Requiring employees to secure permission prior to posting photos, music, videos, quotes and personal information of others;
o Prohibiting non-commercial use of employer’s logos or trademarks;
o Discouraging employees from “friending” co-workers;
o Prohibiting online discussion with government agencies concerning company;
o Encouraging employees to solve work problems in workplace rather than posting about such problems online; and
o Threatening employees with discipline or criminal prosecution for failing to report violations of unlawful social media policy.
Social Media & the National Labor Relations Act (“NLRA”)
Your employees are probably connected to social media. The dangers of employee posts range from casting your winery in a negative light to revealing company secrets. Here are some points to consider.
Terminating an Employee for Social Media Activities
Ø The First Amendment restricts government control of speech. First Amendment protections of all speech (including social media) are not extended to private employers.
National Labor Relations Act (NLRA) protects rights of employees to act together to address working condition, with or without a union.
Ø Employees cannot be disciplined if posts concern “protected concerted activities.”
Ø Recent NLRB decisions point to broadening definition of “protected concerted activities.”
Ø Protections extend to work related conversations conducted on social media.
Ø “Protected concerted activity” defined:
Ø “An individual employee’s conduct is concerted when he/she acts ‘with or on the authority of other employees,’ when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings ‘truly group complaints to the attention of management.’
Ø Such activity is concerted even if it involves only a speaker and a listener, ‘for such activity is an indispensable preliminary step to employee self-organization.’
Ø Key: shared employee concerns regarding terms and conditions of employment
Ø On the other hand, comments made ‘solely by and on behalf of the employee himself’ are not concerted. Comments must look toward group action; ‘mere griping’ is not protected.”
Ø Concerted activity may lose protection when the employee behaves recklessly or maliciously, such as sabotaging equipment, threatening violence, spreading lies about product, or revealing trade secrets.
Ø Things to Consider Before Disciplining an Employee for Social Media Activity:
o Check whether employee’s post attracted or solicited response from co-workers
o Calls for co-workers to take action likely constitutes “protected” activity.
o Complaints about work or co-workers—even if vulgar—can be considered “protected activity.
Ø Be especially sensitive to messages that reference collective bargaining or labor requirements.
Ø Investigate whether complaints voiced online were previously brought to employer’s attention.
Virginia Law on Social Media & the NLRA
Virginia Law
H.B. 2081 prohibits employers from requiring current or prospective employees from sharing login information for social media or from requiring employees to add supervisors as contacts.
Employer Risks
Ø Googling information posted on internet sources is generally considered public, and because information posted on web page “profiles” generally consists of voluntary disclosures, employers are not restricted from accessing such information.
Ø To limit potential for illegal use of information learned and minimize appearance of impropriety in hiring practices, it is best to utilize Internet searches only after the employer has met the applicant in person, face-to-face.
Ø Employers should conduct only searches with the applicant’s name and key words that would reveal information pertinent to hiring decision.
Use Of Social Media To Vet Prospective Employees/Legal Risks and Potential Landmines
Ø Too Much Information
Ø Discrimination Allegations
Ø Too Little Information
Best Practices and Policies to Minimize Employer Risk
Ø Obtain the applicant’s consent and only conduct the review after a conditional job offer has been extended.
Ø Avoid relying exclusively on the results from any social network review in making any employment decisions.
Ø Consider ways to verify and confirm what information has been accessed.
Best Practices and Policies to Minimize Employer Risk
Ø Make sure you’ve got the right person.
Ø Be consistent with your searches. Do not discriminate when Googling based on the person’s race, age, gender or name (national origin bias).
Ø Googling may pull up photos, which means you may have to explain whether you considered the individual’s race/age/disability in your hiring decision.
Ø Be certain that you have effective and compliant Fair Credit Reporting Act authorizations and disclosures that legally permit appropriate background checks.
Trade Secrets
A trade secret is any type of information that derives independent economic value from not being generally known. Trade secrets can take many forms; they can be formulas, plans, designs, patterns, supplier lists, customer lists, physical devices, processes and just about any kind of secret information that relates to a business.
Virginia Trade Secrets Act
Ø To establish a violation of the Act, you must show:
o Existence of a “trade secret”
o Confers a competitive advantage on its owner
o It is subject to reasonable efforts to maintain its secrecy.
Ø The Act prohibits “misappropriation” of trade secrets
Ø The maximum amount of time you can wait before bringing a lawsuit after the misappropriation occurred is three years.
Whistleblower Statute
Ø The Private Sector Whistleblower Protection Streamlining Act of 2012
o This Act provides protections to employees who are retaliated or discriminated against by an employer for disclosing threats to public safety or violations of law.
Document Retention Policy & Record Keeping
Document Retention Policy (DRP)
Ø Properly retaining documents can be the difference between winning and losing a lawsuit that could be filed against you by an employee.
Compliance with Federal and State Laws and Regulations
Ø Many documents must be kept for a specific period of time pursuant to federal, state or local laws.
Ø The timelines for keeping given documents have changed multiple times over the years, and should be checked frequently for compliance with the most current federal and state regulations.
Ø Documents have certain regulated retention timelines.
Ø Employment and personnel records are governed by numerous federal laws, including:
i. Title VII Of The Civil Rights Act
ii. Americans with Disabilities Act (ADA)
iii. Age Discrimination in Employment Act (ADEA)
iv. Fair Labor Standards Act (FLSA)
v. Equal Pay Act
vi. Family and Medical Leave Act (FMLA)
vii. Occupational Safety and Health Act (OSHA)
viii. Immigration Reform and Control Act (IRCA)
ix. Employee Retirement Income Security Act (ERISA)
x. Executive Order 11246 (Gov. Contractor Affirmative Action)
xi. Consolidated Omnibus Budget Reconciliation Act (COBRA)
Record Keeping Requirements Under Virginia and Federal Law
Ø NOTE: THIS DOES NOT CONSTITUTE A COMPREHENSIVE SURVEY OF ALL RECORD RETENTION REQUIREMENTS.
Title VII of the Civil Rights Act
Ø Employers with 15 or more employees must keep the following types of records for a period of one (1) year from the time the record is made or the personnel action is taken, whichever is later:
o Hiring
o Promotions
o Demotion
o Transfer
o Layoff
o Terminations
o Rates of pay
o Selection to training programs
o Employers with more than 100 employees (50 or more if federal contractor or cub) need to have an EEO-1 report filed with the EEOC in September each year.
o A copy of the most recent report filed for each reporting unit must always be retained at each unit or company or divisional headquarters.
o Federal Contractors should keep EEO-1 submissions for last 3 years.
Americans with Disabilities Act (ADA)
Ø Employers with 15 or more employees are covered under the ADA and must retain the following records:
o Personnel or employment records for one (1) year from the date the record is made, or one year from the date of the personnel action involved, whichever occurs later, including:
o Requests for reasonable accommodation
o Application forms
o Other records having to do with hiring, promotion, demotion, transfer, layoff, termination, rates of pay, and selection for training or apprenticeship.
o Involuntary Termination= Two (2) years from the date of termination.
o Political jurisdiction’s or educational system’s personnel or employment records
o Two (2) years from the date the record is made or the personnel action involved occurred, whichever is later.
Fair Labor Standards Act (“FLSA”)
Ø Three (3) years from the last effective date:
o Individual employment contracts,
o Collective bargaining agreements,
Ø Plans, trusts, certificates, and required notices
Ø Three (3) years:
o Sales and purchase records, by total dollar volume – weekly, monthly, or quarterly
Ø Two (2) years:
o Order, shipping, and billing records
Records of additions to and deductions from each individual employee’s wages, all employee purchase orders, records used in determining amount and computation of any additions to or reductions from wages
Occupational Safety and Health Act (“OSHA”)
Ø Most employers with 11 or more employees and all public‑sector employers are required to keep, for five (5) years following the year to which records pertain:
Ø OSHA 300 (the log of work-related injuries and illnesses)
Ø OSHA 300-A (the summary of work-related injuries and illnesses)
Employment Retirement Security Act (“ERISA”)
Ø Any employer with retirement and/or welfare benefit plans is subject to the recordkeeping and reporting requirements under the ERISA.
Ø For not less than six (6) years, employer must retain:
Ø Summary Plan Descriptions
Ø Annual Reports
Ø Notices
Ø Documents necessary to certify any information contained within the above.
Ø In addition, all records related to each employee’s participation in the plan for determinations of benefits due or that may become due pursuant to the plan must be retained for as long as they are relevant.
Virginia Unemployment Compensation Act
Ø Employers in Virginia with one or more employees must keep records containing complete payroll records on all EEs for four (4) years (from tax period) including:
Ø Employee’s name and Social Security number
Ø Date hired, rehired, or returned to work
Ø Date and reason for the separation from employment
Ø State in which services were performed
Ø Schedule of work hours per day
Ø Employee absences
Ø Wages payable and dates covered for each pay period as well as total wages paid for each quarter to include:
o tips
o cash value of other forms of compensation
o special payments (bonuses, gifts, prizes, severance pay)
o payments of advancement or reimbursement for business expenses
Virginia Child Labor Law
Ø All Virginia employers that employ minors (workers under age 18) must keep records regarding the time worked by the minor, including the start and stop times and meal periods.
Ø Records must be kept for 36 months.
General Guidelines
Ø Statutes define minimum retention periods, with certain exceptions (ex. Form I-9s), a longer retention period may be prudent.
Ø SHRM has generally supported retention of:
i. Personnel records for 7 years after termination
ii. Medical/benefits records for 6 years after plan year
iii. Hiring Records: 2 years after hiring decision (unless federal contractor)
Ø General Financial Records – 5 years
Ø Contracts – 5 years from the date of termination of the agreement
Ø If contract documents relate to potential litigation – 10 years
Ø Accounting Records (banks statements, expense reports, etc.) – 7 years
Ø VA Society of CPAs recommendation
Ø Workers’ comp claims and payroll records – 10 years
Ø VA Society of CPAs recommendation
Ø Tax Records- 4 years from the date the tax is paid
Healthcare & Other Benefits
Affordable Care Act (ACA):
Ø Generally speaking, wineries with less than 50 or more full-time-equivalent employees (employee who works an average of 30 hours per week) do not have to worry about the ACA employer mandate.
o If you are a smaller winery, you have the option of purchasing health insurance for your employees using the small business marketplace called SHOP (Small Business Health Options Program). Your winery may also qualify for a tax credit for providing health insurance. If you use SHOP, however, you must offer coverage to all of your full-time employees
Ø Wineries that employ 50 or more full-time-equivalent workers must offer insurance coverage or face a tax penalty, called the “employer shared responsibility payment.”
Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA):
Ø COBRA is a federal law that allows employees to keep their employer’s group health plan coverage for a limited time after their employment ends. COBRA applies to employers with 20 or more employees.
Breaks:
Ø Virginia does not require employers to provide breaks, including lunch breaks, for workers sixteen years and older. An employer who chooses to provide a break in excess of twenty minutes does not have to pay wages for lunch periods or other breaks if the employee is free to leave the worksite. According to federal law, breaks twenty minutes or shorter typically must be paid.
Paid Leave:
Ø Virginia does not require employers to provide employees with paid or unpaid vacation benefits, sick leave, or holiday leave. An employer is not required to pay an employee for responding to a jury summons, but may not take any adverse action against an employee for doing so.