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......

Posted on October 12, 2017

Autonomous systems innovators converge on Blacksburg

Unmanned systems, such as driverless cars and drones, become more visible every day. But does the public trust the technology? That question and others will challenge leaders in the field......

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......

Posted on October 5, 2017

Intel Uses Drones, AI to Help Save Polar Bears and Whales

Today, on World Animal Day, Intel Corp. is announcing two successful wildlife research expeditions powered by artificial intelligence (AI) and drones. In two separate collaborations with a wildlife photographer and conservationist,......

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......

Posted on September 21, 2017

Davenport appointed to serve on Virginia State Bar Study Committee on the Future of Law Practice

Darius Davenport has been appointed to serve on the Virginia State Bar Study Committee on the Future of Law Practice.  The committee is charged with evaluating developments in technology, legal education, and professional services, and assessing how these changes will impact the practice of law.  The committee seeks to illuminate the changing landscape of the practice of law both to help educate lawyers and to help prepare them for the future.

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......

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......

Posted on September 12, 2017

Equifax Data Breach

Equifax, one of the largest credit score providers in America, announced on September 7, 2017 that it was the victim of a large-scale hack that exposed the personal information, including......

Posted on September 8, 2017

Micro drones swarm above Metallica

Metallica’s European WorldWired tour, which opened to an ecstatic crowd of 15,000 in Copenhagen’s sold-out Royal Arena this Saturday, features a swarm of micro drones flying above the band. Shortly......

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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