Archive | June 2013

Virginia law on disclosure of employee information

VA photoWhile I don’t practice in Virginia, I have clients who have operations or locations in the Commonwealth.  Virginia has a new law that becomes effective July 1 restricting employers from providing certain personal information of their employees.  The law covers disclosure of current or past employees’ home phone numbers, mobile phone numbers, email addresses, shift times, or work schedules to third parties.

Virginia Code Section 40.1-28.7:4 states that “[a]n employer shall not, unless an exemption . . . applies, be required to release, communicate, or distribute to a third party any current or former employee’s personal identifying information,” which includes the information listed above.

There are four express exemptions in the statute.  Specifically, the statute does not “apply to a release, communication, or distribution of personal identifying information that is:

  1.  Required pursuant to any applicable provision of federal law that preempts the provisions of this section or of state law that requires an employer to release, communicate, or distribute personal identifying information;
  2. Ordered by a court of competent jurisdiction;
  3. Required pursuant to a warrant issued by a judicial officer; or
  4. Required by a subpoena issued in a pending civil or criminal case, or by discovery in a civil case.”

Importantly, the statute is not an express prohibition against an employer’s disclosure of personal identifying information of its employees. By using the language “shall not … be required to release,” the statute appears to give an employer a safe harbor against releasing such information to someone that is requesting it (including, for example, a former employee that requests his or her own information to initiate litigation against the former employer). However, employers who choose to voluntarily disclose personal identifying information of current or former employees do so at their own risk, as such practices may be prohibited under other state or federal laws and regulations. It is recommended, therefore, that companies operating in Virginia be sure to review current employee manuals, privacy practices and human resource policies to ensure that personal identifying information of employees is not being disclosed to third-parties save for in instances set out in the exemptions identified above.

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USERRA Protections

userraWith the recent observance of Memorial Day and the anniversary of D-Day, it is a good time to remember that federal and state law establish protections for current military personnel.  The Uniformed Services Employment and Reemployment Act (USERRA) provides rights for employees of private employers who serve in the Armed Forces, Reserves, National Guard or other “uniformed services.”  USERRA prohibits private employers from discriminating or retaliating against employees based on their service and offers benefits, reemployment rights, and some protection from termination after military leave.

Tennessee also has a military leave statute that offers protections to employees.  The state law protects private employees who serve in the state militia, the reserve component of the U. S. armed forces or the Tennessee National Guard, or who attend military schools for a limited period.

Also, don’t forget that employers must display USERRA rights posters in the workplace.  And there are FMLA regulations that attach to military personnel and family caregivers of military personnel.

For more information on USERRA, you can visit the website of the U. S. Office of Special Counsel here:  http://www.osc.gov/userra.htm.

Legal Issues from Unpaid Summer Interns

internI wrote last summer about issues involving volunteer interns; it’s that time of year again to consider your practices involving interns.  With more and more students and job seekers who need resume-building opportunities, there are many requests to job shadow or obtain unpaid work experience.  Employers must use care to avoid running afoul of wage and hour laws.

The DOL has listed several factors in reviewing whether the FLSA is implicated, including if the internship is similar to educational training, is really for the benefit of the intern, does not displace regular employees, and offers no immediate advantage to the employer.  Based on the factors, most interns should be paid for work they perform.

The complete DOL fact sheet is available here:  Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act.