Virginia Employer Law

Did She Quit or was She Fired? In FMLA Context, Could Mean Liquidated Damages

Posted on March 16, 2016 by Elaine I. Hogan

The Situation: Your HR Director is under a lot of stress—both based on some personal issues and some issues between her and the CEO. According to the CEO, during a heated conversation, she quits. She claims she just told the CEO that she was thinking of quitting and that she was actually fired when she subsequently tried to request FMLA leave based on psychological distress. What sort of FMLA claims could you face?…


Does Harassment Based on Sexual Orientation Count as Sex Discrimination?

Posted on March 9, 2016 by Elaine I. Hogan

The Situation: One of your supervisors has been making offensive comments to a gay employee about his sexual orientation fairly frequently.   The employee complains to you, but you don’t take it seriously and thus, don’t take any action.  The employee then quits.  Could you face a possible claim under Title VII?…


Sick Leave for Federal Contractors—DOL’s Proposed Rule

Posted on March 2, 2016 by Elaine I. Hogan

The Situation: Your company does jobs for the federal government. You don’t currently provide employees with sick leave. Will you be required to change this practice?…


Obesity = Impairment?

Posted on February 24, 2016 by Elaine I. Hogan

The Situation: You are hiring for a position that has some significant safety concerns. You offer the job to an applicant, contingent upon a successful medical screening. The screening ends up showing that the applicant is morbidly obese and you are concerned about the risks that could be associated with his performing the functions of the job. You decide not to hire him. Can he succeed on a claim of discrimination?…


Can Automated Response to Online Employment Application Show Knowledge of Age?

Posted on February 17, 2016 by Elaine I. Hogan

The Situation: You have an online application process. When a candidate submits his job application online, he automatically receives an email telling him that his application has been submitted, that you will review his background to determine if his qualifications meet with posting requirements, and that you will contact him if it does. You don’t hire a particular applicant and he claims that it was because of his age-pointing to the automated email as evidence that you had knowledge of his age (which would have been obvious based upon the information in his resume). Is this enough to assert a claim under the ADEA?…


Damages for Failure to Hire Even After Felony Drug Arrest?

Posted on February 10, 2016 by Elaine I. Hogan

The Situation: You decide not to hire a job applicant based upon a determination that he is medically unqualified for the job. He then files a charge with the EEOC, claiming that you have discriminated against him based on his actual and perceived disability. About six months later, the applicant is arrested and charged with possession and intent to distribute a controlled substance. Does this arrest (which would have likely prompted his termination had he been an employee) at least limit the damages available to him even if he could succeed on his claim?…


Can Medical Marijuana User be Fired for Positive Drug Test?

Posted on February 3, 2016 by Elaine I. Hogan

The Situation: As part of your post-hiring process, you make new employees undergo a drug test. One such employee tests positive for marijuana—but explains that he is using marijuana medicinally at the recommendation of his doctor. Your policy states that you will terminate any new employee who does not provide a clean drug screen. Can you terminate him?…


Drop and Give Me Thirty (Or Fourteen If You’re a Woman)—Is This Discrimination?

Posted on January 27, 2016 by Elaine I. Hogan

The Situation: Physical fitness is a necessary component for certain jobs in your organization and so you develop a physical fitness assessment for prospective employees. Based on a thorough analysis of gender norms and abilities, you determine specific standards—which are different for men and women. A male is unable to complete one of the tasks and claims the differing standards constitute discrimination. Could he have a claim under Title VII?…


Transgender Employee Fired for Clear Policy Violation—Is Employer Still At Risk For Title VII Claim?

Posted on January 20, 2016 by Elaine I. Hogan

The Situation: An employee informs you that she is going through a gender transition and then a few months later you catch her sleeping on the clock. After you terminate her (just like you have terminated others who engaged in similar conduct), she claims that you discriminated against her based upon her sex in violation of Title VII when you terminated her based on her transgender status. Are you protected from this type of claim based on the clear policy violation supporting the termination?…


Exotic Dancers—Independent Contractors or Employees?

Posted on January 13, 2016 by Elaine I. Hogan
Posted in Other

The Situation: A private club enters into independent contractor agreements with a number of exotic dancers which state that they can choose the days they work, along with their dance routines and songs. The agreements also provide that the dancers keep all the tips they earn while performing and half of each “couch dance” fee collected. The dancers agree to pay the club certain fees for the ATM and jukebox. Are these dancers actually employees?…

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