Seven Things That Employers Need to Know About Virginia’s New Overtime Wage Act

Virginia recently amended its wage law in a very significant manner by enacting the Overtime Wage Act (Act). The Act took effect on July 1, 2021.

Key takeaways from the amendment include the following:

  1. The Act has changed the manner in which the regular rate of pay is calculated for salaried, non exempt employees. Under Section 40.1-29.2(B)(2) of the Virginia Code, the regular rate of pay for salaried, non exempt is now one fortieth (1/40th) of all wages paid in a particular workweek.
  2. Consequences of the change in the calculation of the regular rate for salaried, non exempt employees. The practical effect of this change is that the so-called Fluctuating Work Week (FWW) method, which exists under the (federal) Fair Labor Standards Act (FLSA), whereby an employer may calculate overtime at one half of the regular rate (as opposed to time and a half as otherwise required under the FLSA), is not legal in Virginia.
  3. The Act permits employees to bring collective actions. Employees may bring overtime claims individually, as well as also jointly with other aggrieved employees, or on or behalf of similarly situated employees as a collective action consistent with the collective action procedures of the FLSA.

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What Employers Need to Know About the Department of Labor’s Withdrawal of the Independent Contractor Rule

Marc EngelMarc Engel

On May 5, 2021, the United States Department of Labor (DOL) withdrew the Independent Contractor Rule which had been adopted by the Trump Administration which would have made it easier for employers to categorize individuals as independent contractors as opposed to employees.


The Fair Labor Standards Act (FLSA) requires all employers to pay non-exempt employees at least the federal minimum wage for every hour worked in a non overtime work week. In an overtime work week, with respect to all hours worked in excess of 40 hours in a work week, covered employers must pay a non exempt employees at least one and a half times the employee’s regular rate.

The Supreme Court has repeatedly emphasized that the test to be applied to determine whether an individual is an employee or independent contractor under the FLSA is one of “economic reality.” Under this test, the technical label of a worker as an employee or an independent contractor does not drive the analysis. Rather, it is the economic realities of the relationship between the worker and the employer that are determinative.

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What Should Employers Do About the COVID-19 Vaccine?

A Webinar featuring Employment Attorneys Marc Engel and Michael Neary

The COVID-19 vaccine raises many questions for employers. Should you mandate it? Should you recommend it? What policies do you need? 

Lerch Early employment attorneys Marc Engel and Michael Neary on February 11 presented a webinar on how employers should handle issues surrounding the COVID-19 vaccine and plan for the day when the vaccine is readily available.

To view the webinar on Zoom, click here. The passcode is #tFhB3O3.

The webinar was hosted by the Greater Bethesda Chamber of Commerce, the Greater Silver Spring Chamber of Commerce, and the Gaithersburg-Germantown Chamber of Commerce.

If you have any follow-up questions or comments, feel free to reach out to Marc at or Michael at

D.C. Enacts New Law Requiring Sexual Harassment Training by Employers of Tipped Employees (and Associated Reporting Requirements); Posting; and Notice to Employees of Employment Laws

Marc EngelMarc Engel

The District of Columbia enacted important legislation which mandates sexual harassment training for tipped employees (and associated harassment reporting requirements for employers with tipped employees). The new law also mandates postings in the workplace as well as notice to employees of various employment laws.


By way of background, the District of Columbia, in 2018 enacted the Tipped Wage Worker Fairness Amendment Act (the “Act”). The Act contained a provision which required that D.C. provide funding before the new law would take effect. This summer, D.C. repealed the funding restriction. As a result, the Act took effect on October 30, 2020. Key components of the Act are summarized below.

Employers of Tipped Employees Must Conduct Workplace Harassment Training

The Act requires that the D.C. government provide a sexual harassment training course for employees of businesses that have tipped employees (or a certified list of providers who may provide such training).

New employees who were hired before the law became effective must be trained within two years of the effective date, either online or in person. New employees who are hired after the new law became effective must receive the training within 90 days of hire unless the employee participated in training within the prior two years. Business operators, owners, and managers must be trained every two years. Like employees, business operators and owners may participate in the training either online or in person. Managers, on the other hand, must be trained in person. The law imposes upon employers a requirement to submit a certificate of training to the D.C. Office of Human Rights within 30 days after each employee, manager, owner or operator has completed the training.

Reporting Requirements for Training of Tipped Employees

Importantly, the Act imposes upon employers of tipped employees certain reporting requirements as follows:

  • File with the D.C. Office of Human Rights a copy of the employer’s policy outlining how employees can report incidences of sexual harassment concerns to management and to the D.C. government.
  • Distribute the sexual harassment policy to employees and post the policy in a conspicuous place accessible to all employees in or about the employer’s premises.
  • Document incidences of sexual harassment reported to management, including whether the reported harassment was by an owner, operator, managerial employee, or non-managerial employee.
  • Report to the D.C. Office of Human Rights on a yearly basis the number of sexual harassment allegations reported to management, and the total number of reported harassers who were owners, operators, managerial employees or non-managerial employees.

Reporting Requirements for Postings and for Information Which Must Be Provided to Employees

Within 120 days of the effective date (October 30, 2020) of the Act, the Mayor’s Office is required to create a poster which summarizes the rights of D.C. employees under numerous D.C. employment statutes, and also create a website which clearly and precisely describes the rights of employees under each of these employment laws. Thereafter, employers are required to print copies of the information posted by the District of Columbia on its website and organize it into a single source, such as a binder. Employers must make a copy of the binder available at every location where the summary poster is exhibited. Furthermore, the law requires employers to update the binder at least monthly to make sure that information is accurate, up-to-date, and matches the information that is on the website of the Mayor’s Office. Significantly, the D.C. government can impose upon employers a fine of $100.00 for each day that an employer fails to comply with the binder and posting requirements.


The Act has important consequences for employers in the District of Columbia, which can be found in the rest of the article on our website:

For more information, contact Marc at

Montgomery County Makes It Easier for Employees to Prove Unlawful Harassment

Marc EngelMarc Engel

Last month, the Montgomery County (Maryland) Council enacted amendments to the county’s anti-discrimination statute, which substantially lowers the standard for proving unlawful hostile harassment claims.

The amendment was signed into law on October 16, 2020 and takes effect on January 15, 2021. As discussed below, the amendments are likely to have a profound impact upon employers.


Sexual harassment is a form of sex discrimination prohibited by local, state, and federal law (Title VII). There are two types of unlawful harassment: (i) quid pro quo harassment (“you do this for me, and I do that for you”) and (ii) the more common type of harassment, known as hostile work environment.

Under current county, Maryland state, and federal law, in order to establish unlawful harassment, an employee must:

  • Establish that the conduct was unwelcome;
  • Was based upon the sex of the employee;
  • Was sufficiently “severe or pervasive” to alter the employee’s conditions of employment and to create an abusive work environment; and
  • The wrongdoing is imputable on a factual basis to the employer.

These requirements also apply to harassment claims based upon other unlawful factors, such as age and race.

The “severe or pervasive” prong has both a subjective and an objective component. With regard to the subjective component, an employee must show that she or he subjectively perceived, as a reasonable person would perceive, that the environment was hostile or abusive.

The conduct must also be objectively “severe or pervasive” and have a substantial effect on the terms or on the conditions of employment. The “severe or pervasive” requirement has proven challenging for employees to satisfy. The Fourth Circuit (where Maryland is located) has noted that boorish and crude behavior alone is not sufficiently “severe or pervasive” to be actionable under Title VII. As the Fourth Circuit explained: “While no one condones boorishness, there is a line between what can justifiably be called sexual harassment and what is merely crude behavior.”

Summary of Impact of New Legislation

The amendments to the Montgomery County anti-discrimination statute effectively replace the requirement that workplace conduct be sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes, with the requirement that a reasonable person in the employee’s shoes “would consider the conduct to be more than a petty slight, trivial inconvenience, or minor annoyance.”

Although the law still contains an element of objective reasonableness, the employee is only required to establish that the conduct was more than a trivial inconvenience, minor annoyance or petty slight (and not that the conduct was sufficiently “severe or pervasive” to alter the working conditions of a reasonable person in the employee’s shoes) – which is a significantly lower standard than the one used under Maryland’s state anti-discrimination law and under Title VII.


To learn about steps employers should consider taking, read the rest of the article on our website:

For more information, contact Marc at 301-657-0184 or

CDC Updates Definition of “Close Contact” as it Relates to COVID-19

Employers Should Consider Taking Several Steps

Marc EngelMarc Engel

On October 21, 2020, the Centers for Disease Control (CDC) updated its definition of “close contact” for purposes of determining whether employees have been exposed to COVID-19.  The CDC now defines Close Contact as follows:

Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.

The decision by the CDC to update the definition of “close contact” is likely to, among other things, make contact tracing even more challenging for employers.

To learn about steps employers should consider taking, read the rest of the article on our website:

For more information, contact Marc at 301-657-0184 or

Maryland Imposes Mandatory Notice Requirements for Employers in New “Mini-WARN” Act

Violators Subject to Substantial Penalties

Marc EngelMarc Engel

The Maryland legislature substantially increased the breadth and scope of the state’s so-called “mini” Worker Adjustment and Retraining Notification (WARN) Act to, among other things, impose mandatory notice requirements and stringent penalties on employers who fail to comply with the new law. The new law, known as the Economic Stabilization Act (Act), took effect on October 1, 2020.


The Act applies to employers with 50 or more employees that operate an industrial, commercial, or business enterprise in Maryland. It is patterned loosely after the federal Worker Adjustment and Retraining Notification Act (Federal WARN). The new law defines an employee as an individual who works for an employer for an hourly or salaried wage or in a managerial and supervisory capacity. The term “employee” does not include individuals who work less than an average of 20 hours per week or have worked for an employer for less than six months in the immediately preceding 12 months.

Scope and Notice Requirements

Unlike the prior iteration of the law, which had voluntary notice provisions, the Act imposes mandatory notice requirements upon covered employers. They must provide 60 days written notice before they initiate a “reduction in operations” which the law defines as (i) the relocation of a part of an employer’s operation from one workplace to another existing or proposed site or (ii) the shutting down of a workplace or a portion of the operations of a workplace that reduces the number of employees by at least 25 percent or 15 employees, whichever is greater, over any 3-month period.

The scope of the Act is broader than its federal counterpart. Unlike the Federal WARN, which applies to employers with 100 or more employees, the Act, as noted, applies to employers with 50 or more employees. Another significant difference is that the statutory triggers are significantly lower under the new Maryland law – 25% or 15 employees – in comparison to Federal WARN which contains thresholds of 33% of the workforce or 50 employees.

The written notice must be provided to affected individuals or entities 60 days before initiating a reduction in operations. The notice must be given to the following:

  1. All employees at the workplace that is subject to the reduction in operations;
  2. Each exclusive representative or bargaining agency, (i.e., a union of the impacted employees);
  3. Maryland’s Dislocated Worker Unit; and
  4. All elected local officials in the area of the impacted workplace.

The notice must include the following:

  1. The name and address of the workplace where the reduction will occur;
  2. Contact information for the supervisor (name, telephone number, email address) for those seeking further information;
  3. A statement explaining whether the reduction in operations is temporary or permanent and whether the workplace is expected to shut down; and
  4. The expected date when the reduction in operations will begin.

Benefit Continuation

The new law directs the Maryland Secretary of Labor (Secretary) to establish regulations for the appropriate continuation of benefits such as health, severance, and pension that an employer should provide to employees who will be terminated due to a reduction in operations.

Significant Penalties

Unlike its predecessor, the new law carries very stiff penalties for violators. The Act authorizes the imposition of a civil penalty of up to $10,000 per day to be assessed by the Secretary for failure to provide the required notices to all required individuals and entities. The factors to be considered by the Secretary in assessing a penalty include the gravity of the violation; the size of the employer’s business; the good faith of the employer; and the employer’s history of violations of the Act.

Open Issues; Next Steps

Significantly, the Act leaves unaddressed the geographic length of a relocation that is required to trigger the employer’s notice obligations. The Act also does not contain some of the exceptions that exist under Federal WARN, including exceptions for (i) a faltering company; (ii) unforeseen business circumstances; and (iii) a natural disaster. Because of the differences in the Federal WARN and the Act, compliance with the federal statute may not constitute compliance with the Act.

Employers considering a relocation of jobs and/or a reduction in staff in Maryland should consult with experienced counsel before doing so.

For more information, contact Marc at 301-657-0184 or

Welcome to Employment Edge

On behalf of Lerch Early & Brewer’s employment and labor attorneys, we welcome you to Employment Edge, our firm’s new blog focused on the issues impacting employers throughout the Washington, DC Metropolitan Area and beyond.

For years we have connected with you through workshops, seminars, newsletters, and in various other in-person and digital ways (especially in the time of COVID-19). Now, we are excited to bring you relevant information about the most important topics to your business or organization through our Employment Edge blog.

Here, you will find content written by our experienced employment and labor attorneys on a multitude of matters including COVID-related workplace rules; updates on new Maryland, Virginia, and District of Columbia employment related laws; new court decisions and legal trends which impact employers; and a myriad of achievable best practices for complying with the ever changing legal landscape. We believe that this is just the tip of the iceberg. We look forward to continuing to anticipate the issues which we believe you will find important in the future while being responsive in real time to issues affecting you now.

Please visit our website ( where you will find more information about our practice and our attorneys, as well as valuable articles and timely and helpful information.

Please send us your feedback, including issues and topics which you would like for us to address in future blog posts.

We look forward to hearing from you and to seeing you on Employment Edge soon!


Marc Engel and Julie Reddig
Co-chairs, Employment/Labor Practice