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Chesterfield official requiring all employees to be vaccinated: Termination is last resort

 

IMPORTANT: COVID-19 guidelines are subject to change. For a reliable, up-to-date look at how the pandemic is affecting workplace laws and rules, our firm recommends that you review the “What You Should Know” page maintained by the U.S. Equal Employment Opportunity Commission.

 

(Transcribed by The Employment Law Group)

Candace Burns (anchor): Can your employer fire you if you don’t get the COVID-19 vaccine?

Bill Fitzgerald (anchor): Workers at the Chesterfield Office of Revenue say that’s what they’re being told may happen if they don’t get the shot.

Our Brendan King spoke to an employment attorney to find out what your rights are. He joins us with that update. Brendan.

Brendan King (reporter): As more of us are getting vaccinated against the coronavirus, bosses are encouraging employees to return to the workplace, and tonight, one elected official in Chesterfield is setting the record straight on her new vaccination policy.

This letter obtained by CBS 6 has caused quite a stir.

Jenefer Hughes: I’ve had a few calls and emails, yes.

King: Chesterfield County Commissioner of the Revenue Jenefer Hughes writes she placed her employee on corrective action for failing to get a COVID-19 vaccine. Unless that employee is approved for a medical or religious exemption, she says they must vaccinated before June 30th or potentially face disciplinary action up to termination.

Hughes: I can’t live with myself if there’s any risk to a taxpayer or an employee coming into my office potentially contracting the virus and taking that to their families. I just can’t.

King: Hughes says 82% of her staff is vaccinated or going through that process. Those who are exempt will wear a mask in the office.

Hughes: I’ll bend over backwards to help them get to a place where we can retain them.

Nicholas Woodfield: Management has the right to force people into that crossroads, but is it something that you want to do?

King: Nick Woodfield serves as an attorney specializing in employment law based in D.C. He says an employer can require vaccinations before returning to the workplace – even if the vaccines received emergency approval.

Woodfield: Employers have not only a right but a duty to not create a dangerous workplace.

Ralph Northam: From the governor’s position, I’m not mandating anyone to get vaccinated.

King: Governor Ralph Northam says he’s left it up to the discretion of employers for how they want to deal with mandating the shot.

Northam: We have three effective and safe vaccines, and the only way to get this pandemic in the rearview mirror is for folks to get out there and get vaccinated.

King: Woodfield believes that a judge would side with the business owner, and if you do receive a vaccine exemption, your boss can still let you go.

Woodfield: The employer can still exclude you because you are no longer qualified to be there because you are potentially a danger in the workplace.

King [to Hughes]: So you told me termination is a last resort?

Hughes: Absolutely, yes. I do not want to lose a single person.

King: And I did reach out to the county for a comment. A Chesterfield spokesperson tells me while they are not mandating their employees to get the vaccine, since Hughes was elected to her post, she can set whatever policy she wants.

» View story on WTVR.com

Can your boss mandate you get a COVID vaccine? The answer might surprise you.

 

IMPORTANT: COVID-19 guidelines are subject to change. For a reliable, up-to-date look at how the pandemic is affecting workplace laws and rules, our firm recommends that you review the “What You Should Know” page maintained by the U.S. Equal Employment Opportunity Commission.

 

(Transcribed by The Employment Law Group)

Brendan King (reporter): As of Thursday, 2.1 million Virginians have received at least one dose of the COVID-19 vaccine. But I wanted to know: Can your boss require you to get a shot in the arm?

Megan Healy: We hope that everyone wants to get vaccinated.

King: Governor Northam’s chief workforce advisor, Dr. Megan Healy, calls that answer complicated.

Healy: Can or can they not? I think there’s law on both sides of that issue, so we really encourage them, if they are going to mandate it, to seek legal counsel.

King: She says you can refuse your dose based on your religious beliefs or if the vaccine would adversely impact a medical condition.

Healy: To return to work or to be on the frontline, the employer can ask if someone’s been vaccinated, and that’s validated. If an employee or worker says, “no, I haven’t,” that’s when you kind of move into that American Disability Act because that discloses some potential health condition that a worker does not have to disclose to their employer.

R. Scott Oswald: You know, we got a ton of calls back in March and April, and employees were scared.

King: Scott Oswald serves as managing principal of The Employment Law Group based in D.C. He argues the law tilts towards the employer.

Oswald: Ultimately, if it is a position where the essential function of the job requires that employee’s attendance, physical presence at the employer’s work site, the employer can require those employees to be vaccinated.

King: However, he encourages companies to work with their employees before issuing any mandates. Give your staff incentives to get a vaccine, or can that employee work on other duties?

Oswald: And that employer generally must accommodate that employee to the extent that the employer can. That doesn’t mean that they have to bring that employee into the workplace.

King: The experts say communication between manager and employee is paramount. You could provide your manager with a doctor’s note explaining your condition, but most importantly, communicate your limitations with your employer as soon as possible and put it in writing.

Working for you in Richmond, I’m Brendan King, CBS 6 News.

» View story on WTVR.com

Madeline Cook

Madeline Cook is an associate at The Employment Law Group® law firm, where she assists with case evaluations and consultations. She is a recent graduate of The George Washington Law School, where she was a member of the International Law in Domestic Courts journal.

Ms. Cook graduated from Seattle University in 2017 with a B.A. in political science and minors in international studies and Spanish. She also spent a semester studying at the Universidad de Sevilla in Seville, Spain.

Ms. Cook is licensed to practice law in the District of Columbia.

Evaristo Pineda

Evaristo Pineda is a communications specialist at The Employment Law Group® law firm. He previously worked for the firm as a client services specialist from 2015 to 2019 before briefly leaving and returning to TELG in August 2020. Before returning to TELG, Mr. Pineda worked as an immigration paralegal for a law firm in Bethesda, Maryland. During this time, he gained experience working on naturalization, legal permanent residency, asylum, and Special Immigrant Juvenile Status cases.

Mr. Pineda graduated cum laude from the University of Sacred Heart (San Juan, Puerto Rico) with a Bachelor of Arts degree in International Studies. While in college, he was selected for the Cordova & Fernós Internship Program, which brings students from Puerto Rico to Washington D.C. for internship opportunities. During the internship, Mr. Pineda worked for then Nevada Senator Harry Reid in the Democratic Policy & Communications Center.

Mr. Pineda brings to TELG his language skills, immigration law experience, and international background.

Ellenor Whitfield

Ellenor Whitfield is an associate attorney at The Employment Law Group® law firm. Prior to becoming an associate attorney at the firm, Ms. Whitfield worked at TELG as a Law Clerk for over 3 years.

Ms. Whitfield obtained her J.D. from American University Washington College of Law in May 2023 and graduated cum laude. While attending law school, Ms. Whitfield was a member of the American University International Law Review. Ms. Whitfield received her undergraduate degree in 2016 from Nottingham Trent University in the United Kingdom. She is licensed to practice law in the District of Columbia.

Tejal Garg

Tejal Garg is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, Ms. Garg worked as a law clerk at the Department of State’s Office of the Legal Adviser, Bregman Berbert Schwartz & Gilday LLC, and AAJC l Asian Americans Advancing Justice. Before law school, she worked as an assistant teacher at an international school in Singapore.

Ms. Garg obtained her J.D. from The George Washington University Law School in May 2020 and graduated magna cum laude with a Bachelor of Arts in International Studies from American University. She is licensed to practice law in the District of Columbia.

Jessica Curbelo

Jessica Curbelo is a graduate of the University of Florida, where she earned a Bachelor of Science in journalism.

She has worked as both writer and editor for multiple publications, including local newspapers such as the Independent Florida Alligator and the Gainesville Sun. Ms. Curbelo enjoys taking a multimedia approach to storytelling and has worked on written content as well as videos, photography, and even a podcast.

Prior to joining The Employment Law Group® law firm, she worked as a graphic designer and social media manager for a small agency focused on online business owners.

As Content Specialist, Ms. Curbelo works in the firm’s marketing department to improve the firm’s online presence and to produce content for the website and various social media platforms.

Biden Revives an Option for Quick Settlement of Federal Employee Claims

By Michael L. Vogelsang, Jr.

One of the more insidious ways in which former President Trump undermined the career security of federal employees was via a little-noted provision of a 2018 executive order: Amid a wider assault on union activity and job protections, it forbade agencies from settling individual workplace disputes by agreeing to adjust an employee’s personnel file — for example, by rescinding an unfair reprimand.

Without the option of this simple and cost-effective resolution, sometimes known as a “clean record agreement,” employees who wanted to challenge career-damaging disciplinary actions were pushed into drawn-out, expensive, and often fruitless spirals of litigation.

Now an end is in sight.

On his second full day in office, President Biden revoked the offending measure as part of a broad restoration of federal employee rights, directing the Office of Personnel Management to publish proposed rules “suspending, revising, or rescinding” the rule that resulted from Trump’s 2018 order, which became final just a few months ago at 5 C.F.R. § 432.108.

The undoing may take a while, but the path ahead is clear: Federal agencies will once again be free to settle disputes with their employees by amending a flawed performance evaluation, for example, or by changing a removal to a resignation so that the employee’s career remains intact. This will save everyone — including taxpayers — the time and expense of protracted litigation, which had become increasingly common under Trump.

Trump’s original action came as part of a flurry of executive orders he issued on May 25, 2018, on the eve of a long Memorial Day weekend, in a push to marginalize unions and strip away many of the principles enshrined in the Civil Service Reform Act of 1978: Proper notice, opportunity to succeed, progressive discipline, and more.

In the name of ensuring the “integrity” of personnel files, Section 5 of Executive Order 13839 removed federal agencies’ discretion to alter “any information about a civilian employee’s performance or conduct in that employee’s official personnel records … as part of … resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.”

Historically, such mutually agreed changes — modifying an unfair record of discipline, for example — were a primary tool by which claims of discrimination or retaliation could be resolved without long, costly battles before administrative judges, appeals tribunals, and even federal courts. These quick, no-cost agreements weren’t always possible, but they often cleared the way for employees to resume a productive career inside or outside the federal government.

The practice mostly ground to a halt at the start of summer in 2018, however. An agency’s Equal Employment Opportunity officers no longer could mediate discrimination complaints by urging supervisors to remove performance comments that employees saw as unfairly motivated. Department attorneys lost their latitude to offer, say, the deletion of a minor, years-ago suspension that was preventing an employee from transferring to a different agency.

The prohibition on changing records was never absolute. Although the final rule adopted the exact text of Trump’s executive order, it added a provision allowing agencies to remove “inaccurate information or the record of an erroneous or illegal action,” a needed exception. Agencies also could decide to cancel a proposed action based on “persuasive evidence … casting doubt on the validity of the [proposed] action or the ability of the agency to sustain the action in litigation.”

Such exceptions were policed by Trump’s Office of Personnel Management, however. For agencies, the safer option was simply to push employees into litigation if they wanted to change personnel records. Starting in mid-2018, cases that could have been settled in a couple of months instead took as long as two years to reach an administrative hearing. Many federal employees gritted their teeth and lawyered up: The alternative was a permanent black mark that could derail their careers.

Now, with Biden’s January 22 revocation, litigation can again be reserved for cases that aren’t easily resolved. Even while the Trump-era rule is being reversed, exceptions are likely to flourish. Federal employees won’t live in fear of managers with the power to etch an indelible penalty into their personnel record — and all parties, along with adjudicators and taxpayers, can welcome the return of fast, common-sense resolutions.

For agencies entering the Biden era with hollowed-out staffs and nerves still jangling, that’s a balm. And even for federal employee lawyers like me, who will see shorter engagements as a result, it’s reason to celebrate: Justice for our clients will be surer and less arduous to obtain.

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Michael L. Vogelsang, Jr. is a principal at The Employment Law Group, P.C.

International Technological University Will Pay $1.17 Million To Settle Whistleblower’s Allegations of Visa Fraud

Tech-Oriented School Falsely Certified that Foreign Enrollees Would Follow Rules for Student Visas, Say U.S. Prosecutors

Complaint: Students Worked Full-Time Jobs, ITU Gave Top Grades to No-Shows

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SAN FRANCISCO, Calif. (January 29, 2021) — A private university that caters largely to foreign workers seeking jobs in Silicon Valley will pay $1.17 million to settle claims that it misled U.S. Immigration and Customs Enforcement (ICE) for six years by falsely certifying that students qualified for F-1 visas.

The Santa Clara-based university, International Technological University (ITU), also agreed to settle claims of retaliation against a whistleblower in the case, Concepcion Saenz-Cambra, and to pay Dr. Saenz-Cambra’s legal fees. As the person who reported the alleged visa fraud, Dr. Saenz-Cambra will receive a share of ITU’s payment to the U.S. government.

The existence of the settlement, which covers a period from 2010 through 2015, was disclosed via filings this month in the U.S. District Court for the Northern District of California. The case was part of a broader battle between ITU and ICE’s Student and Exchange Visitor Program, which since 2016 had sought to shut down ITU’s ability to enroll F-1 students, according to court filings.

Dr. Saenz-Cambra is represented by The Employment Law Group® law firm. After being hired in 2014 as ITU’s director of faculty affairs, she voiced concerns about the school’s practices but was rebuffed by ITU’s since-replaced leaders, according to a complaint she filed in October 2015 under the federal False Claims Act (FCA).

Among other things, Dr. Saenz-Cambra’s complaint alleged that ITU became known as a “visa mill” by ignoring ICE rules about the education of its F-1 students — including, in some cases, by admitting non-proficient English speakers; by waiving the requirement to attend classes; by awarding high grades for substandard work, or for no work at all; and by declining to penalize cheating.

According to the complaint, many of ITU’s F-1 visa recipients worked at high-tech companies in full-time positions that were improperly accepted by ITU as student internships — a subversion of the rules for full-time employment of foreign workers, who typically would need to obtain H-1B visas.

H-1B visas are limited in supply, unlike F-1s, and carry a higher fee.

Dr. Saenz-Cambra’s complaint named Tesla Motors Inc.1 and Beta Soft Systems Inc., of Fremont, Calif.2, as conspirators in the scheme, but the U.S. government declined to pursue claims against either company. Prosecutors also didn’t pursue any of the ITU executives and board members who were named individually in the complaint. Following the settlement with ITU, all claims in the matter were dismissed on January 26, 2021, by U.S. District Judge William H. Orrick.

The FCA, originally signed into law by President Abraham Lincoln in 1863, makes it illegal to defraud the federal government. The law includes a “qui tam” provision that allows whistleblowers to file a complaint on behalf of the government and — if they prevail — to receive a portion of any resulting settlement or judgment.

The FCA typically is wielded against vendors who gain taxpayer dollars under false pretenses — via fraudulent claims on the Medicare insurance program, for example. In the ITU case, while the government said it was deprived of appropriate fees for work visa applications, the largest harm was non-monetary: The subversion of the visa system itself.

“The U.S. government has a strong interest in ensuring that programmatic benefits — in this case, student visas — go only to qualified recipients,” said Janel Quinn, a principal of The Employment Law Group (TELG), who represents Dr. Saenz-Cambra. “Prosecutors have many ways to police the misuse of federal programs, of course. The lesson here is that the False Claims Act can be a powerful tool even when the primary damage to the government isn’t financial.”

Dr. Saenz-Cambra’s lawsuit remained under seal for several years while being investigated by the Justice Department. During that time, according to an amended complaint filed in 2016, ITU learned of the probe and fired Dr. Saenz-Cambra. The university has since overhauled its leadership and recently hired back Dr. Saenz-Cambra in a different role.

The qui tam case was finally unsealed on January 8, 2021.

Ms. Quinn represents Dr. Saenz-Cambra along with R. Scott Oswald, TELG’s managing principal and leader of its qui tam practice; both are based in Washington, D.C. They worked closely on the case with Assistant U.S. Attorney Michelle Lo from the U.S. Attorney’s Office for the Northern District of California. J. Bernard Alexander III, a partner at Alexander Morrison + Fehr, LLP in Los Angeles, served as local counsel.

1 Now Tesla, Inc.
2 Beta Soft Systems appears to have stopped operating under this corporate identity.

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Case Information

United States ex rel. Saenz-Cambra v. International Technological University
No. 3:15-cv-4654
U.S. District Court for the Northern District of California, San Francisco Division
Original complaint filed on October 7, 2015
Amended complaint filed on August 15, 2016 (available here)

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About The Employment Law Group

The Employment Law Group® law firm represents whistleblowers and other employees who stand up to wrongdoing in the workplace. Based in Washington, D.C., the firm takes cases nationwide.