From Virginia Employer Law Blog

Posted on October 18, 2017

Is it Okay to Give Women More Parental Leave?

the situation

A company implements a new parental leave policy which allows more time off for biological mothers than biological fathers, along with offering new mothers better benefits related to their transitions back to work. Could this be unlawful? (more…)



Posted on October 11, 2017

Can a Company Trade Services for Pay?

The Situation: A fitness studio offers its customers the opportunity to trade a free monthly membership for a few hours of cleaning each week. It is a completely voluntary arrangement.  Could......

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Posted on October 4, 2017

“But I Was Just Kidding!” Is That a Defense to a Discrimination Claim?

the situation

During an industry-wide conference related to success strategies, a company executive is taking notes.  The notes include a page with the header “Attracting and Retaining employees,” and underneath, writes “Fire all the old people.”  The owner claims he was only kidding when he wrote this and was referring to a similar statement made in a joking manner by another company’s president.  Eight months later, a 77-year old employee is terminated. Can he bring a claim of age discrimination based upon these notes?

the ruling

Although the employer will be able to present evidence related to the intent of the owner when writing such a note, this type of statement in written form would at least be enough to get an age discrimination claim before a jury, according to a federal court in Alabama. Wheat v. Rogers & Willard, Inc., Case No. 16-0282 (S.D. Al. September 26, 2017). According to the Complaint, Ralph Wheat began working for Rogers & Willard as a project manager/estimator in 2006.  In 2014, at the age of 77, Wheat was terminated.  He ended up filing a lawsuit against Rogers & Willard, claiming that he was terminated based upon his age in violation of the ADEA.  He claimed he had direct evidence discrimination based upon some notes that one of the company’s owners had made during a meeting of a construction peer group in May of 2013 while discussing how to operate his company more successfully.  These notes included the comment “’Fire all the old people; Fiat President”, a comment about many large companies bringing in new blood, a reference to the need to mentor the replacements of the “Older Guys—Ralph & Jerry,” and a reference to a vision of the future which included the phrase “i.e. new younger employees.” The employer argued that these notes are not direct evidence of age discrimination.  One of the arguments made by the employer was that the owner who had written these notes had offered an innocent explanation of them.  The owner had provided an affidavit which said that he did not mean that his company should actually “fire all the old people,” but that he was only remembering what he had heard the president of Fiat say at an earlier conference in a joking manner.  But the court disagreed that this explanation could wholly defeat employee’s claim.  Instead, the employer could provide his explanation that he was not really being serious to a jury, but the jury would not “be required to accept such self-interested explanations over the plain meaning of the words themselves.”  Additionally, the court rejected the employer’s argument  that the eight months that had passed between the writing of these notes and Wheat’s termination was dispositive.

the point

While an owner or manager might think it is clear that he or she is joking or not being literal, if something is said or written that is derogatory toward a protected class , an employee may at least have enough to pursue a claim.  Employers must be sure that all executives and supervisors are well trained and aware that no such statements should be made-no matter what the context or what the intention. Originally published on the Virginia Employer Law Blog by Elaine Hogan.

Posted on September 27, 2017

Could Denying A Request for an Extension of Medical Leave Violate the ADA?

The Situation: You have an employee who has been out on medical leave because of a serious health condition.  But before his scheduled return-to-work-date, the employee requests an additional two months......

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Posted on September 20, 2017

Could Supervisor’s Statements Regarding Biracial Dating Create a Hostile Work Environment?

The Situation: Caucasian employee has an African American spouse with whom she has several children. The employee’s supervisor begins complaining to her about his concerns that his daughter is dating an......

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Posted on September 13, 2017

What Counts as Bad Faith Under the FMLA?

The Situation: An employee requests to use a month of FMLA leave based upon an injury and the request is approved. The employee tells HR that she has an appointment with......

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Posted on September 6, 2017

Two Week Countdown to Start Using Revised I-9 Form

The Situation: In July of this year, U.S. Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9 for employers to use to establish the eligibility of individuals for......

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Posted on August 30, 2017

Does Employee’s Falsification of Employment Application Automatically Defeat Retaliation Claim?

The Situation: An employee complains that he is being harassed based on his sexual orientation and the fact that his partner is African American. Not long after he lodges this complaint,......

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Posted on August 23, 2017

Can You Cut a Pregnant Employee’s Shifts to Avoid Unpredictability?

The Situation: A restaurant has an automatic scheduling system which allows employees to input their availability and then generates a schedule accordingly a few weeks in advance.  One of the restaurant’s......

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Posted on August 9, 2017

Does Time on Mobile Device Support a Claim for Unpaid Overtime?

The Situation: You have employees who are doing work after hours on their mobile devices. Although you have a procedure for submission of any overtime worked, these employees do not report......

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