Virginia Employer Law

Same-Sex Training Policy Results in Millions in Liability?

Posted on June 8, 2016 by Elaine I. Hogan

The Situation: For a number of reasons, including trying to avoid any potential sexual harassment claims, you implement a policy under which you only allow job candidates to be trained by employees of the same gender prior to completing the hiring process.  Based on a smaller pool of female employees who can train them, female applicants end up having to wait quite a while to receive the necessary training (and thus less are hired).  Does this constitute discrimination?…

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Could Drinking a Beer Constitute a Legitimate Use of FMLA Leave?

Posted on June 1, 2016 by Elaine I. Hogan

The Situation: You have an employee who has requested intermittent FMLA leave because of some mental health conditions, including depression and anxiety. One morning, the employee tells his supervisor that he needs to use some of this leave because he is experiencing severe stress and anxiety. Another employee reports to you that as the employee was clocking out, he ran into a coworker who was also leaving the jobsite and they made plans to have lunch. You send someone to the restaurant to confirm that the employee is there and he observes the employee drinking a beer. You end up firing the employee. Can he bring a claim of FMLA retaliation against you?…

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Discriminatory Strength Test Can Cost Millions?

Posted on May 25, 2016 by Elaine I. Hogan

The Situation: In an effort to minimize the chance of work-related injuries, you have applicants for physically demanding positions undergo a strength and agility test. Your workforce ends up being significantly male. Should you be concerned about being hit with claims of discrimination?…

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In Case You Haven’t Already Heard…The New Overtime Rule is Here

Posted on May 18, 2016 by Elaine I. Hogan

We have all been anxiously awaiting the publication of the Department of Labor’s Final Rule updating the overtime regulations since the issuance of the Notice of Proposed Rulemaking back in July of 2015.  The wait is now over.  So what do you need to know about the Final Rule?…

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Can You Discriminate By Making an Employee Do Less For the Same Money?

Posted on May 11, 2016 by Elaine I. Hogan

The Situation: You decide to shift supervisory responsibilities away from one of your current supervisors to a new supervisor, but keep the old supervisor at the same rate of pay with the same job title.  Could this be considered an adverse action that could support a discrimination claim?…

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Training Time—Compensable or Not?

Posted on May 4, 2016 by Elaine I. Hogan

The Situation: You have a new business that will require a number of employees with a particular skill set. You find a way to get a local community college to offer a free training course focused on this particular skill.  At the conclusion of the course, you open for business.  Can the employees make a claim that they should have been paid for the time spent learning the skill at the community college?…

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Keeping Your Story Straight—The Importance of Consistency to Avoid FMLA Interference Liability

Posted on April 27, 2016 by Elaine I. Hogan

Keeping Your Story Straight—The Importance of Consistency to Avoid FMLA Interference Liability by Elaine Inman Hogan, “The Job Description”, published by The Defense Research Institute (April 26, 2016) As employment lawyers, we are all too aware of the importance of consistency and the dangers of inconsistency when it comes to the application of employment policies.  Another area in which inconsistency can leave employers vulnerable is providing a reason(s) for employment decisions, including those related to interference claims under the FMLA.  Two different cases in recent years illustrate this point.  To read full article, click on link below - [caption id="attachment_719" align="alignleft" width="300"] The Job Description, Defense Research Institute[/caption]…

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Fired for F-Bombs?

Posted on April 20, 2016 by Elaine I. Hogan

The Situation: You have received some reports that one of your supervisors is demeaning and hostile toward employees and “drops f-bombs on a daily basis.”  You investigate the complaints and determine that the complaints are substantiated.  You counsel the supervisor but don’t take any formal disciplinary action. The supervisor then lets you know he may be asking for FMLA leave.  In the meantime, you receive more complaints about the vulgar language and conduct and you decide to fire the employee. Will he be able to make an FMLA interference claim?…

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Routine Deletion of Video Records Could Cost You

Posted on April 13, 2016 by Elaine I. Hogan

The Situation: One of your employees gets into a physical altercation with a supervisor.  The employee and the supervisor point the finger at each other, each claiming the other started it.  Fortunately, you have video footage of the incident from surveillance cameras in the relevant area.  You review the footage and decide the employee is to blame. You fire the employee.  The employee then claims he was discriminated against because of his race when you fired him and not his supervisor. The problem is that the video was deleted as part of your routine information purging protocol.  Could this mean trouble?…

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Title VII Liability for Racist Remarks of a Non Decisionmaker?

Posted on April 6, 2016 by Elaine I. Hogan

The Situation: Based on reports made by your supervisor about some performance problems of one of his subordinates, you fire him.  The terminated employee then claims that the supervisor made a number of racist statements to him.  Since the supervisor didn’t make the decision to fire the employee, can your company still face a claim under Title VII for discrimination?…

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