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Virginia Construction Lawyer | Roanoke VA Attorney

Virginia Construction Lawyer | Roanoke VA Attorney

No Notice Required: Virginia’s At-Will Rule

Posted in Employment Practices, News

Today’s guest author is David Paxton, Esq.   David advises and represents businesses, business owners, and executives in the areas of labor & employment law, complex litigation and whistleblower claims.Paxton_1200x1200

For at least 110 years, Virginia has followed the at-will doctrine that employees working under an agreement that does not specify its duration or require cause for termination may be separated from employment simply by being given “reasonable notice.”[1] An open question in recent years has been what constitutes “reasonable notice” under this at-will rule?

Last Thursday, June 2, the Supreme Court of Virginia decided this issue. The case involved a claim by a long-term employee (17-year tenure) who was abruptly terminated without any advance notice. The former employee argued that she should have been given some reasonable period of advance notice before the employer terminated the relationship. The Supreme Court disagreed.

In Johnston v. William E. Wood & Associates, Inc., the Court refused to impose any minimum notice requirement on an employer’s right to terminate an employee with or without cause.[2] (The corollary to the Court’s ruling is that employees are free to quit without giving advance notice either.) Justice McCullough, who joined the Supreme Court on March 3, 2016, authored a unanimous opinion and noted as follows:

Imposing a requirement of reasonable advance notice is antithetical to the flexibility that lies at the heart of the at-will doctrine and would undermine the indefinite duration element of at-will employment.

This concept of “reasonable notice,” according to Justice McCulloch, simply means effective notice that the employment relationship has ended so the employee no longer performs services.

This ruling clarifies an important issue for many employers, especially when making decisions about long-term employees. The question of whether an employer “should” provide advance notice of termination is now solely a business decision, as opposed to one that is a legal requirement. There may be good business reasons for an employer to provide and require advance notice of termination of the relationship.

Many employers who rely on the at-will doctrine still use written employment agreements that require a specific period of advance notice of termination (or in lieu thereof, severance) by the employer, and advance notice by the employee of the intent to resign, where no “good cause” exists. These contractual obligations to provide advance notice will continue to be enforceable in Virginia following Johnston.

Employers often need written employment agreements to address important obligations, e.g., non-disclosure of confidential information, protection of trade secrets, restrictive covenants against unfair competition, compensation and other matters. As part of these agreements, employers typically address issues of termination. Johnston provides employers with flexibility they need to design these agreements, where the relationship is governed by the at-will doctrine, as best suits their needs. An employer may now elect to impose whatever advance notice requirement it believes is reasonable (two weeks, 30 days, or longer) to minimize business disruption by an abrupt or undesired resignation and not worry about being second-guessed by the courts. Keep in mind that the at-will doctrine is designed to be a “mutual one” so whatever advance notice requirement is expected of the employee should also apply to the employer, absent the existence of some form of “good cause” or “misconduct” warranting an immediate termination without prior notice.

The preparation of effective employment agreements and the enforcement of those agreements is an important part of Gentry Locke’s practice. The law as it relates to restrictive covenants (i.e., non-competition, non-solicitation and anti-piracy clauses), as well as the protection of “trade secrets,” is constantly evolving and requires careful monitoring so that agreements can be updated. If your company needs assistance with preparing or revising employment agreements, or you are an executive who has questions as to the enforceability of certain provisions, you are encouraged to contact W. David Paxton or any member of the Gentry Locke Labor and Employment Team.

[1] Stonega Coal & Coke Co. v. Louisville & Nashville R.R. Co., 106 Va. 223, 226, 55 S.E. 551, 552 (1906).


[2] Johnston v. William E. Wood & Associates, Inc., ____ Va. ____, ___ S.E.2d ___, 2016 Va. LEXIS 67 (Va. Sup. Court, June 2, 2016).

2016 — Focus on Construction Safety

Posted in Employment Practices

Bigstock-Brick-Broken-on-hardhat-3646790The recent “constructor” magazine issued by the Associated General Contractors has provided in a feature article a useful reminder to those in the construction industry about the importance of focusing on worker safety.

I’d recommend the article as a concise, useful read to any of you.  There are some themes that emerge that are worth emphasizing:

  • Hiring temporary employees and bringing on new employees is a prime time for problems.  Ensuring that these workers do not fall through the cracks, are given the attention and training they need, and are given regular consultation and attention as they work their way into their jobs is important.  We have seen numerous cases in both the construction and in general industry with serious injuries to temporary and new workers because they are moved forward with work before fully understanding how to do it safely.
  • But don’t forget about employees after the initial orientation and testing.  Construction companies with successful safety records are making safety part of the culture.  Regular meetings that promote safety in an educational and interesting manner do help.  As the article suggests, including these as part of a monthly lunch meeting can be a way to reach employees, and having peers — not just supervisors — lead the discussion can be more meaningful.
  • Lessons learned can be valuable teaching tools.  As the article suggests, learning from real-life accidents and incidents can be helpful.
  • Don’t forget about the potential language barriers involved in training.  OSHA is paying close attention to the ability of employers to convey safety training and concepts to those whose first-language is not English.  That, plus the better safety results, are good reasons to focus on removing this barrier.
  • Lastly, the article focuses on some very practical on-the-job ways to keep safety understandable and accessible.  These include:  developing “pocket safety guides” for particular tasks assigned, establishing “craft-specific safety mentoring” program, providing badges that show the level of safety training of each employee, and providing “Stop Work” cards that employees can issue if they see safety hazards.

Construction law is full of cases, citations, injuries, and disputes (related to OSHA, insurance, indemnity, and much more) where the root cause of the problem is an accident on the construction site.  The new year provides a chance to focus on safety.  Beyond these tips, focusing on the provisions of your safety program, focusing on the contract provisions in the construction agreements you issue and sign, and examining your company’s safety and training culture can provide benefits to workers and the company in the long run.

Don’t Get Snowed in by New DOL Pay Transparency Regulations

Posted in Uncategorized

IMG_20140213_130120_129Our guest authors are Brad Tobias and Lindsey Coley.

Like the roads in our region affected by the recent Winter Storm Jonas, the avenue of compliance for federal contractors has just become a little more treacherous. The Department of Labor’s Final Rule affecting federal government contractors’ policies on pay transparency went into effect on January 11, 2016. [1] The Rule, which implements Executive Order 13665, which was signed by President Barack Obama back in April 2014, is the DOL’s effort to promote pay transparency by barring policies of certain federal contractors which previously prevented workers from discussing their wages. Now, covered federal contractors are prohibited from firing or otherwise disciplining employees or job applicants for discussing their pay or the pay of their co-workers.  This new Rule, unlike the National Labor Relations Act, applies to all employees and applicants, including supervisors and managers.[2]

This new Rule has several parts, and this article will explain what steps covered federal contractors will need to take in order to comply with this Rule and avoid potential audits, fines, or debarment. This Rule applies to employees and applicants of federal contractors or subcontractors that have contracts over $10,000 that are entered into or modified after January 11, 2016.

What the Rule prohibits

Employees and applicants of federal contractors now have a protected right to inquire about, discuss or disclose their own compensation or the compensation of other employees. If contractors discipline, harass, demote, terminate, deny employment or otherwise discriminate against employees or applicants for these discussions, then they open themselves up to investigations by the Office of Federal Contract Compliance Programs (“OFCCP”) and penalties. However, the Rule does not impose any requirement on covered contractors  to disclose information to applicants or employees regarding the compensation paid to other employees, even if employees request such information.

It is important to note that the term “compensation” is very broadly defined.  For purposes of this Rule, “compensation” includes any payments made to an employee or offered to an applicant, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing and retirement.

If contractors violate this Rule and dismiss the employee/applicant, then they may be required to reinstate or hire the employee or applicant, and to compensate the individual for back pay, front pay, a pay raise, or some combination of these remedies.  Compensatory and punitive damages are not available in enforcement actions under the Rule.

How to Stay Compliant

  1. Update Handbooks & Policies

The Rule requires that affected contractors incorporate the non-discrimination provision into their employee handbooks and disseminate the non-discrimination provision to employees and job applicants.  We recommend that handbooks be revised and updated, and that the non-discrimination provision be posted on the company’s website if individuals can submit an employment application online.

  1. Update Subcontracts and Purchase Orders

Covered contractors are responsible to ensure their subcontractors comply.  If your subcontracts and purchase orders include the full language of the EEO clause, instead of incorporating it by reference, contractors will need to update the language in their documents to reflect the new pay transparency rules.

  1. Posting the New DOL Notices in the Workplace

Contractors must post the new pay transparency non-discrimination notice in the workplace. Contractors are now governed by three posting requirements under OFCCP regulations. These include posting:

  • An “EEOC is the law” poster
  • An “EEO is the law” poster supplement
  • The new nondiscrimination notice on pay transparency.

Each of these posters is available online on the OFCCP website.

Employer Defenses

When facing an audit or investigation, in addition to demonstrating that the decision to discipline the employee was for an unrelated, legitimate reason, the OFCCP recognizes two specific, but limited defenses when defending against claims for violations of the new pay transparency rule. The two defenses are: (a) the “essential job functions” defense which applies in the HR/Finance/Audit/IT personnel and (b)  the “workplace rule” defense, which applies when the employer can show a different reason for the adverse action.

  1. The Essential Job Functions Defense

Under the “essential job functions” defense, a contractor can defend against a claim of discrimination by showing that it took adverse action against an employee because the employee (a) had access to the compensation information of other employees or applicants as part of his or her essential job duties and (b) disclosed such information to individuals who did not otherwise have access to it. The term “essential job functions” means the fundamental job duties of the employment position an individual holds. A job function may be considered essential if (i) the access to compensation information is necessary in order to perform that function or another routinely assigned business task; or (ii) the function or duties of the position include protecting and maintaining the privacy of employee personnel records, including compensation information. The DOL has provided an example of how the defense works:

Sam is an information technology professional at a federal contractor and one of his weekly tasks is to ensure that personnel data, including individualized pay data, has not been compromised. While performing a routine security check, Sam notices that his coworker Sally makes $10,000 less a year than Ted, a colleague who does the same job as Sally. The next day, Sam informs Sally of Ted’s pay. In this example, the contractor could defend an adverse action against Sam because he revealed pay information that he discovered performing one of his essential job functions. Access to employees’ compensation data is necessary to perform one of Sam’s routinely assigned tasks. Additionally, Sam’s task involved protecting the privacy of personnel information.

  1. The “Workplace Rule” Defense

The “workplace rule” defense allows for a contractor to defend against a discrimination claim by showing that it took adverse action against an employee for violating a consistently and uniformly applied workplace rule that does not prohibit employees or applicants from discussing or disclosing their compensation. That is to say, employers are not liable if they take adverse action against employees or applicants who are discussing pay while they are simultaneously violating another workplace rule. The DOL provided an example of when this defense might apply:

ABC Corporation, Inc. allows employees to take a 20-minute break for every three hours worked. Jennifer and Sally take a 30-minute break during which they discuss their pay. Their manager refuses to pay both Jennifer and Sally for the extra 10 minutes taken during their break, which is the usual penalty for exceeding the allotted 20-minute break time. In this example, the contractor can defend an allegation that it unlawfully penalized Jennifer and Sally for discussing pay by explaining that Jennifer and Sally were penalized for violating the consistently and uniformly applied workplace rule that employees lose pay if they take a break longer than 20 minutes.

Recommendations and Conclusion

Covered federal contractors and subcontractors are strongly encouraged to update their handbooks, policies, practices and guidelines to be sure that they comply with this new Rule.   Policies must not expressly prohibit discussion of compensation, nor  contain language that will be construed as “tending to prohibit” or discourage applicants or employees from discussing compensation.

Additionally, though the Rule does not impose any explicit training requirements, federal contractors and subcontractors should train managers and supervisors on these new rules to ensure they do not take potentially discriminatory actions against applicants or employees who discuss compensation information. In this regard, separate and apart of this new OFCCP Rule, Section 7 of the National Labor Relations Act (“NLRA”)  already protects nonsupervisory employees who engage in concerted activity by discussing compensation issues with co-workers. This NLRA provision applies even in the non-union setting.  Accordingly,  employers who violate this new OFCCP Rule should also expect unfair labor practice charges to be filed if employees are disciplined.

Last, employers must appropriately document the reasons for disciplinary action, especially termination decisions.  Whenever an employee has engaged in some form of “protected activity,” which now includes discussing compensation, in close proximity in time to the decision to discipline, the employee is going to claim retaliation. This puts a premium on making sure the reasons for disciplinary action are understood and documented at the time.

If you have questions about these issues, contact any of the attorneys who are part of our Employment team.

[1] The final rule is entitled “Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions” and can be found here.

[2]  Compared to Section 7of the National Labor Relations Act (“NLRA”), which protects the rights of only non-supervisory employees to engage in certain protected concerted activity, this Rule provides broad protections to all employees who discuss their pay, including for both non-supervisory and supervisory-level personnel.

Announcing the VBA Construction Law Blog

Posted in News, Uncategorized

VBAlogoThe VBA Construction and Public Contracts Law Section now has a blog. Our friend Scott Kowalski, and our friend and former colleague Josh Johnson, are heading this project on behalf of the VBA Construction and Public Contracts Law Section. Please check out the VBA Construction Law Blog using the link below.


“Ban the Box” May Soon be the Law for Government Contractors

Posted in Employment Practices, Enforcement, News, Procurement Issues, Uncategorized

Tobias_1200x1200Our guest author is Bradley C. Tobias, an associate attorney in our Employment and Labor practice group. Brad focuses on labor and employment issues, civil rights claims, and federal and state court litigation. 

What is the “Ban the Box?”

Many employers are starting to see the term “ban the box” creep into the lexicology of phrases and buzzwords which permeate the regulatory framework imposed on government agencies and government contractors. Across the country, 19 states and more than 100 cities and counties have enacted various versions of “ban the box” legislation and rules.

So what does this term mean? Put simply, the term refers to a requirement to remove any questions regarding a person’s criminal history from job applications. Employers may recoil at the idea that that they cannot ask their job applicants about their criminal history. What is important to note, however, is that the “ban the box” rules currently in force around the county, including here in Virginia, generally do not prevent employers from ever conducting a criminal background check on job candidates or inquiring into their criminal history. Instead, the rules delay the time when these background checks and inquiries can occur. Any inquiry about criminal history and all background checks must be delayed until after the employer has made a determination that the applicant is otherwise qualified for the position.

On November 2, 2015, President Obama announced that he would be issuing an executive order requiring federal agencies to “ban the box” and to “delay inquiries into criminal history until later in the hiring process.” This directive will apply exclusively to those who seek employment with a federal agency. Private employers, even those who are federal government contractors, will remain unaffected by the new order, which has not yet been formally issued.

“Ban the Box” in Virginia

Here in Virginia, state government agencies are also subject to this “ban the box” rule. In April 2015, after the General Assembly failed to pass more comprehensive legislation, Virginia Governor Terry McAuliffe issued an executive order that requires all state government agencies to discontinue using job applications that asked the candidate to disclose whether he or she had been previously convicted of crime. Several other localities have followed suit. With the issuance of this state executive order, Virginia became the 15th state out of what is now 19 states which have adopted orders and/or legislation mandating that employers “ban the box” on initial job applications.

As of today, the “ban the box” rules do not apply to private employers in Virginia. As such, there is currently no rule or order that prohibits federal or state government contractors or their subcontractors from including questions about criminal history on their job applications or inquiring into this area before a job offer is extended.

Legislation “Banning the Box” is Moving Ahead in Congress

Despite genuine concerns about implementing this new rule, the “ban the box” movement which is designed to create a more open hiring process appears to be gaining bi-partisan support in Congress. In September 2015, legislators from both parties introduced a bill in both the Senate and the House which would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.

The Senate version of the bill was approved with unanimous support by the Senate Homeland Security & Governmental Affairs Committee, and some predict that the bill may be fast-tracked through the Senate and combined with the House version. The Senate version of the bill, S.2021, states that contractors may not verbally or through written form request the disclosure of criminal history record information regarding an applicant before the contractor extends a conditional offer to the applicant. The bill as it is currently drafted includes several exceptions for certain positions, including those which relate to law enforcement and national security, require access to classified information, or involve interaction with minors.

What Could “Ban the Box” Mean for Government Contractors?

From a legal perspective, if the “ban the box” rule becomes the law, and questions about past criminal convictions are prohibited on initial job applications, employers will need to think through their hiring procedures. Under these rules, the employer is first required to make a determination that the candidate is qualified for the job before requesting the background check. This rule is very similar to the protections put in place under the Americans with Disabilities Act, which now prohibits employers from asking applicants about their past workers compensation claims and medical problems before first determining the candidate was otherwise qualified for the job.

If this proposed rule becomes the law, it is certain that the change in timing will increase the likelihood that a rejected candidate will challenge the decision to “withdraw” the job offer. There are several ways these claims may arise based on laws and rules that predate the “ban the box” movement. First, employers must comply with the Fair Credit Reporting Act (FCRA) disclosure and consultation requirements before taking any adverse action based on background searches. In recent years, there has been a rash of FCRA claims against employers and credit agencies for errors in background reports and for failing to ensure full compliance with FCRA. This new law is likely to make those types of claim more likely.

The second area of legal challenge will come from a rejected applicant based on a claim that the decision to withdraw the job offer is discriminatory and based on his/her status as a minority. Title VII prohibits employers from wholesale rejection of applicants with criminal history without a justification that is job-related and consistent with business necessity. The Equal Employment Opportunity Commission (EEOC) has argued, and courts have held, that adopting this type of rule (exclude all those with a criminal history – arrest or conviction) has a disparate impact on minority candidates.

The EEOC has warned employers about the use of criminal background checks in hiring, and has sued employers who relied on arrest records (and even convictions) when refusing to hire job applicants if the employer could not convincingly demonstrate the criteria (no criminal history) was job-related. The EEOC’s Guidance advises employers against making an employment decision based on conviction records without first considering the following three factors in determining whether the decision is job-related: (i) the nature and gravity of the offense; (ii) the time that has passed since the conviction and/or the completion of the sentence; and (iii) the nature of the job held or sought.

The EEOC Guidance also suggests that employers should give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense. While this Guidance does not carry the force of law, it may be considered favorably by a court and will certainly be the framework the EEOC uses when judging complaints received from rejected job candidates, so it is worth including in the process used to evaluate whether to withdraw a job offer.


Government contractors should pay close attention to the legislation currently pending in Congress. Although the “ban the box” rules currently only apply to government agencies and their employees, this effort will not go away soon. Even without this new rule, employers must make sure they are making thoughtful decisions about when to ask about past criminal records and how to respond to that information when it is discovered. It is especially important that employers are vigilant in their efforts to document compliance with FCRA, and maintain their hiring records for the required time periods mandated by federal law. If you have questions about these issues, contact any of the attorneys who are part of our Employment team.

Update on VOSH Inspections of Contractor’s Licenses

Posted in Licensing Issues, VOSH

Construction workerOn July 28th, we provided an outline of the new Department of Labor and Industry policy that would have DOLI inspectors from its occupational safety and health division (VOSH) checking on contractors’ licenses on the inspected construction site, and on the “independent” status of those working on the sites.  The latter issue focuses on whether the workers are independent contractors or should be treated as employees of those above them in the chain of contracting.

Since then, there has been a lot of discussion and activity related to the policy and its application.  And, we can report, there have been referrals by VOSH to the Department of Professional and Occupational Regulation (DPOR) and likely other state agencies as a result.  Though the fines that we have seen thus far are not large, there is certainly an opportunity for them to be.

The number one question that we have gotten on this is “whether the general contractor on a project needs to collect the contractors’ licenses for all working on the project, or just for its immediate subcontractors.”  Thus far, our answer has been that it is best to collect them all and have them — in paper form or electronically — in the job trailer and prepared should an inspection occur.  Of course, the general contractor can be cited by DPOR if it is contracting with an unlicensed subcontractor, so it is extremely good practice to have those in hand and to confirm that they are current.

Likely, the issues related to the independent contractor vs. employee issues are going to be more complicated than the licensing issues, but we expect we will begin seeing those issues show up as well.  Primarily, these issues can arise where trade subcontractors hire-on labor forces to perform work, and how they should be treated.  If you are in that situation, give it advance thought and be prepared.

The application of this new policy has begun, and will continue to evolve.  We’ll try to update as we learn more.

The Trial of a Virginia Construction Law Case (Seminar Style)

Posted in Claims, Contract Issues, Damages, E-Discovery, Mechanic's Liens, Uncategorized

36th Annual Construction CLESome things do get better and better with time.  The Virginia Construction Law Seminar that is held annually in Charlottesville seems to be one of those.  As Chris Hill, a colleague in the Virginia construction bar, recently posted, the seminar is a great time for updating on Virginia law and crossing paths with other industry attorneys and professionals.

Having just tried a week-long case in South Carolina, the theme focusing on handling a construction law trial was timely and appealing for me.  Hearing excellent trial reminders and pointers from the stature of Steve Saltzburg of George Washington law school in D.C. reminds you that there’s always more to learn in preparing for and handling a trial.  There were also excellent presentations on:

  • How electronic records (yes, those hundreds of emails you send everyday can be evidence) are handled within our well-aged rules of evidence;
  • The challenges of proving damages in a construction law trial, and why they are as important as proving entitlement;
  • The nuances of preparing expert witnesses to testify at trial, and how to handle effectively the direct and cross-examinations; and
  • The vital step of identifying the law of the case — through jury instructions — early on in the case and building your case around those instructions.

Sprinkled within these useful trial presentations, there were some meat-and-potatoes construction topics that sparked lively discussion (that could only happen at a construction attorney seminar).

  • The Spearin Doctrine, which we have previously outlined, is a long-standing principle of Virginia (and national) construction law.  Based upon language in certain contracts, that principle seems to be eroding and subject to attack.
  • Scary reminders about the limitations of the 150-day and 90-day rules within the context of filing mechanic’s liens in Virginia were part of an excellent “advanced course” on handling (or running away from) mechanic’s liens.

And, of course, this program would not be complete without the book-end presentations of legal ethics and an update on the case decisions and statutory updates from the last year that affect the practice of construction law in Virginia.

Once again, the program delivered, and arguably better than ever before.  Thanks to all who were involved in putting it together, and presenting.  And, thanks for the reminder that, no matter how long you’ve been at this, there’s always more to learn (and re-learn).



Seeing Double: Temp Agency Employees & the Joint Employer Doctrine

Posted in Employment Practices

Paxton_1200x1200We recently reported on new Guidance from the Department of Labor regarding its effort to combat what it views as the misclassification of workers as independent contractors, instead of employees. A new court decision makes it clear that even if a worker is correctly designated as an “independent contractor,” the business where s/he is assigned to work may nevertheless have liability under federal anti-discrimination laws under the “joint employer” doctrine.

David W. Paxton, a partner in Gentry Locke’s Employment Group explains in more detail here:   http://www.gentrylocke.com/article/temp-agency-employees-the-joint-employer-doctrine/

Update: Compliance with New VOSH Policy on Worker Misclassification and Contractor Licensing

Posted in Employment Practices, News, Regulatory Issues, VOSH

The Virginia Department of Labor and Industry (DOLI) regulates the workplace through its Occupational Safety and Health (VOSH) Program. On July 1, 2015, DOLI began implementing a new VOSH Policy to combat misclassification of workers.

Misclassification occurs when an employer improperly classifies a worker as an independent contractor who should in fact be an employee.

Employers in the construction industry – already heavily regulated by VOSH – should expect the policy to have significant implications for them. VOSH inspections are no longer just about health and safety violations in the traditional sense. Now inspectors are on the lookout for worker misclassification issues and making sure contractors and subcontractors are properly licensed.

What follows is an overview of the objectives, procedures, and penalties associated with the new VOSH Policy preventing worker misclassification – as well as strategies for coming into compliance.  

I.  VOSH Policy Objectives

The new VOSH Policy follows an Executive Order by Governor Terry McAuliffe establishing an inter-agency taskforce to examine the issue of worker misclassification and payroll fraud. As stated in a June 2, 2015 Public Service Announcement, the new VOSH Policy represents DOLI’s commitment to “aggressively pursue” Governor McAuliffe’s initiative to “root out the destructive practice of misclassification of workers in Virginia.”

How is misclassification of workers “destructive”? Misclassification itself is not illegal, but it can result in payroll fraud, reduced workers’ compensation and unemployment insurance protections, and violations of the tax code and other laws designed to protect workers.[1]

Most misclassification is thought to be intentional. DOLI estimates that employers can improperly avoid payroll taxes up to 40% by misclassifying employees as independent contractors.

In the construction industry, misclassification is considered “destructive” to the bid process. In a June 2, 2015 Memorandum to VOSH Staffers, DOLI advised that the new policy is intended to “level the playing field” between employers who currently provide all legal protections for their workers against those who misclassify: “Employers who misclassify can undercut the bids of those honest contractors who follow the law. Assuring that all employers are playing by the same rules when it comes to classifying employees will help to assure that the construction bid process is fair for all and improve safety and health and other legal protections for workers.”

As discussed below, the new VOSH Policy requires contractors to provide proof of their DPOR contractor’s license, as well as proof that their subcontractors are also DPOR-licensed. If VOSH determines that a construction employer has contracted with an unlicensed subcontractor, VOSH will refer both parties to the DPOR for possible sanctions. Doing business with an unlicensed subcontractor raises a red flag. It signals a willingness to cut corners on the job site – whether in misclassifying workers to avoid costs, or in providing a safe and healthy work place.

VOSH is undertaking an outreach program to explain the new policy to employers and employees. Brochures, posters, PowerPoint presentations, and other educational materials are available at a new misclassification page on DOLI’s website.[2]  

II.  VOSH Policy Overview

Whenever VOSH has “reasonable cause” to believe that worker misclassification has occurred, the following procedures will apply: 

  • No leniency for small employers or “good faith.” If VOSH proposes citations and penalties for the employer, it will not afford penalty reductions based on the size or good faith of the employer.
  • Proof of licensure. On construction multi-employer worksites, VOSH will require each contractor (e.g. general contractors, prime subcontractors, and lower-tier subcontractors) to provide proof of its DPOR contractor’s license as well as proof that its subcontractors are also licensed by DPOR.
  • DPOR Referral. If it is determined that a construction employer has contracted with an unlicensed subcontractor, VOSH will make a written referral to the DPOR for possible sanctions against both the contractor and its unlicensed subcontractor. DPOR sanctions may include fines, probationary terms, license suspension, or license revocation.
  • VEC / VWCC Audits. In misclassification cases where the contract’s value for the specific subcontractor’s job is less than $1,000 (and, therefore, the subcontractor is not required to hold a DPOR license), VOSH will make a written referral to the Virginia Employment Commission (VEC) and/or the Virginia Workers’ Compensation Commission (VWCC) for potential audits of the alleged employer’s employment practices. In some cases, VOSH may make such referrals for cases involving contract values of $1,000 or more.
  • Computerized Tracking – retroactive to January 1, 2015. VOSH is now tracking misclassification issues in its OSHA Information System (OIS) through the use of the State Strategic Initiative Program (SSIP) Code “Misclassification.”
    • Regional Directors and Certified Safety & Health Officials (CSHOs) must now indicate on all inspections and unprogrammed activities whether the issue of misclassification has arisen during the inspection or investigation.
    • Regional Directors and CSHOs must also review all cases opened since January 1, 2015. Where they have “reasonable cause” to believe that misclassification may have occurred, they must update the OIS by selecting the SSIP Code “Misclassification.”
    • The “Misclassification” Code must be entered for both the employer and the purported independent contractor.

                    Source: June 2, 2015 Memorandum from DOLI to VOSH.

III.  Compliance Strategies

Because the VOSH Policy is new, the details of how DOLI, VOSH, and the DPOR will enforce it in practice are not yet clear. The “reasonable cause” threshold is likely to be relatively low, given DOLI’s stated commitment to aggressively pursue “destructive” misclassification issues.

To avoid the potential penalties listed above, employers in the construction industry should consider the following strategies:

  • Review all independent contractor arrangements for compliance with the VOSH Policy.
    • Words not determinative. A written agreement is not sufficient to determine a worker’s status. Even though a contract refers to “independent contractors,” the practical and economic realities may say otherwise.
    • For each arrangement, reconsider the question, “Is that worker an employee or an independent contractor?”
      • VOSH considers the following factors in making this determination:
        • Factor 1: Who has responsibility to control the workers?
          • Employees must comply with instructions on how, when, and where to work.
          • Independent Contractors are hired to provide goods or services and usually do not receive detailed instructions from the hiring party
        • Factor 2: Does the alleged employer have the power to control the workers?
          • The hiring party’s right to insist on a particular sequence of work, and not just the end result, usually indicates an employer-employee relationship
        • Factor 3: Who pays the worker’s wages?
          • If the hiring party pays wages, likely an employer-employee relationship.
          • If the hired party can hire and pay assistants without the employer’s consent, likely an independent contractor relationship.
        • Factor 4: Whom do the workers consider their employer?
          • VOSH takes into account the workers’ subjective beliefs, although this factor is by no means determinative if the practical and economic realities show otherwise.
        • Factor 5: Does the alleged employer have power to hire, fire, or modify the workers’ employment conditions?
          • The hiring party’s right to assign additional work indicates an employer-employee relationship.
          • An independent contractor typically agrees to provide specific services, and is free to accept or decline additional jobs.
        • Factor 6: Does the ability of the workers to increase their income depend on efficiency rather than on initiative, judgment, or foresight?
          • If pay is based on efficiency, more likely an employer-employee relationship.
          • If pay is based on initiative, judgment, or foresight, more likely an independent contractor relationship.
        • Factor 7: How are the worker’s wages established?
          • Payment by the hour, week, or month generally points to an employer-employee relationship.
          • Payment by the job generally indicates that the worker is an independent contractor. Independent contractors typically cover all expenses not specified in the contract, and bear the risk of suffering financial loss in providing the services.

Source: VOSH Field Operations Manual. See also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) (applying similar 12-factor test)

  • The most important of these factors are responsibility and power to control the worker. Generally, a worker is an employee if the hiring party can control both what will be done and how it will be done. A worker is an independent contractor if he is not subject to the employer’s control about how to perform service.
  • Again, VOSH inspectors will not rely solely upon labels but will look at the practical and economic realities of the situation.
  • Contractors should ensure that their subcontractors possess the required contractor’s license issued by DPOR.
    • Require potential subcontractors to furnish a copy of their DPOR licenses during the bid process. State this requirement in the request for bids.
    • Require subcontractors to furnish a copy of their DPOR licenses again at the time of executing the subcontract. State this requirement in the subcontract.
    • Require subcontractors to ensure that their subcontractors (i.e., sub-subcontractors) are DPOR-licensed as necessary (i.e., contracts valued at $1,000 or more) and in the correct specialty. State this requirement in the subcontract.
    • Maintain copies of all DPOR licenses in a central location – electronically and in hard copy. If possible, maintain at the job site in the event of a VOSH inspection.
  • Subcontractors should ensure their DPOR licenses are for their precise classification or specialty for the scope of work performed.
    • DPOR contractor licenses consist of two parts: (1) the class of license (A, B, or C), which determines the monetary value of the contracts/projects that may be performed; and (2) the classification/specialty, which determines the type of work allowed.
      • Classifications/specialties: asbestos; blast/explosive; building; electrical; elevator/escalator; fire sprinkler; gas fitting; HVAC; lead abatement; liquified petroleum gas; manufactured home contracting; natural gas fitting provider; plumbing; radon mitigation; sewage disposal system; and water/well pump
    • Make sure DPOR licenses match the scope of work performed.
  • January 1, 2015 look-back. Under the new policy, Regional Directors and CSHOs are to review all cases opened since January 1, 2015 where they have “reasonable cause” to believe that a misclassification may have occurred, and to update OSHA’s Information System (OIS). Again, all it takes is “reasonable cause” for VOSH to assign the SSIP Code “Misclassification.” Red flags include contracting with unlicensed subcontractors, and exerting significant control over workers but calling them independent contractors. ; and regular intervals but calling them independent contractors

IV.  Conclusion

Virginia is undoubtedly cracking down on worker misclassification and contractor licensure issues. DOLI has identified that worker misclassification undermines businesses that follow the law, costs Virginia millions of dollars in tax revenues, and denies workers legal protections and benefits.

The new VOSH Policy has significant implications for the construction industry. Contractors should review all independent contractor arrangements for compliance with the VOSH Policy. Using the seven-factor VOSH test, contractors should reconsider the question, “Is that worker an employee or an independent contractor?” Contractors should ensure that their subcontractors possess the required licenses issued by DPOR. Contractors and subcontractors alike should evaluate whether the DPOR licenses are for the precise classification/specialty for the scope of work performed. Maintaining proper licensure, and furnishing proof thereof, should be written contractual obligations.

VOSH is tracking misclassification issues on its OIS computer database with a new “Misclassification” code. All it takes is “reasonable cause” for VOSH to assign a “Misclassification” code. VOSH inspectors are looking back at all cases opened since January 1, 2015 to determine whether to assign this code.

Gentry Locke attorneys are available to assist the construction industry understand and comply with the new VOSH Policy.

[1] See Va. Code § 60.2-212 (unemployment compensation); Va. Code § 40.1-29 (minimum wage requirements); Va. Code § 40.1-49.3 (VOSH); Va. Code § 65.2-101 (workers’ compensation); 29 U.S.C. § 2601 et seq. (FMLA); 29 U.S.C. § 201 et seq. (FLSA); 42 U.S.C. § 12101 et seq. (ADA). [2] http://www.doli.virginia.gov/vosh_enforcement/employee_misclassification.html