Virginia Employer Law

Differing Discipline for Facebook Comments May be Discrimination

Posted on October 2, 2015 by Elaine I. Hogan

In today’s digital culture, employers are well advised to have social media policies which hopefully prevent employees from posting things that reflect poorly on the employer. But the question of how to apply some of these policies is unfamiliar territory. For example, how do you determine what kinds of comments warrant discipline? And how do you make sure you are imposing the same discipline for the same type of behavior? A TV station in Louisiana recently faced this very issue. A former reporter claimed that he was discriminated against when he was fired because of a comment he made on Facebook. He argued that other employees (of a different race and gender) were not fired even though they too had made some inappropriate comments. The district court recently denied the employer’s motion for summary judgment as to the discrimination claim, finding that the employee had presented enough evidence to go to trial on his race and gender discrimination claims. Redford v. KTBS, LLC, et al., Case No. 5:13cv3156 (September 28, 2015).…


Even Age Difference of Eight Years Can Support ADEA Claim if Other Factors Present

Posted on September 25, 2015 by Elaine I. Hogan

As all employers are aware, employment decisions such as hiring, firing and promoting should not be made on the basis of an individual’s age. And one of the key components of a claim based on the denial of a promotion is that the individual who was promoted was substantially younger. So does this mean that if candidates are close enough in age, employers are safe from an age discrimination claim? Perhaps not.  Last month, the Ninth Circuit found that even a difference of eight years could be enough to support an ADEA claim where there was other evidence of age discrimination. France v. Johnson, No. 13-15534 (7th Cir. 2015).…


Travel to Break Area Makes Meal Break Compensable

Posted on September 18, 2015 by Elaine I. Hogan

Generally, employers feel pretty comfortable considering a thirty minute meal break non-compensable under the FLSA, as long as workers are not required to perform any work duties during that time. But what if the workers have to travel to get to where they can eat? Can that travel time end up making the meal break compensable? Earlier this week, the Fifth Circuit decided it might. Naylor, et al. v. Securiguard, Inc., et al., Case. No. 14-60637 (5th Cir. 2015).…


Federal Government Contractors Required to Provide Paid Sick Leave

Posted on September 11, 2015 by Elaine I. Hogan
Posted in Sick Leave

Employers of all sizes are faced with the challenging decision of whether to give their employees paid sick leave and, if so, how much. A new executive order signed by President Obama on Monday will now mandate that federal government contractors and subcontractors provide sick leave and even dictates how much.   The new executive order will require federal contractors and subcontractors to give workers the ability to earn up to at least seven days (or 56 hours) of paid sick leave on an annual basis—employees will earn an hour of paid leave for every 30 hours of work. The leave can be used by employees to care for themselves, a family member (like a child, parent, spouse, domestic partner), or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.…


EEOC Cracks Down on Pre-Hire Employment Assessments

Posted on August 28, 2015 by Elaine I. Hogan

Earlier this week, the EEOC announced that Target has agreed to pay $2.8 million dollars to resolve a charge of discrimination related to the use of employment assessments that disproportionately screened out applicants for certain positions based on race and sex.   The EEOC took the position that the tests violated Title VII because they were not sufficiently job-related and consistent with business necessity.  The EEOC also found that a psychological assessment was a pre-employment medical examination that violated the ADA and that Target had violated record-keeping requirements by failing to maintain sufficient records to assess the impact of its hiring procedures. As a part of the resolution, Target has agreed to discontinue use of these assessments, make changes to its applicant tracking systems, perform a predictive validity study for its other assessments for adverse impact based on race, ethnicity and gender, and to provide the EEOC with a summary of these studies on an annual basis.  Finally, Target agreed to bring on an outside consultant to provide at least two hours of training once a year to all personnel involved in the development of the assessments. The lesson here is that employers need to be careful about any assessments used to screen out applicants for employment.  Just because they don’t directly address issues of race, ethnicity, gender, or disability does not mean that they don’t expose an employer to claims under Title VII or the ADA.…


New Checklist from OFCCP Related to Affirmative Action

Posted on August 14, 2015 by Elaine I. Hogan

The Rehabilitation Act prohibits discrimination against individuals with disabilities and requires government contractors and subcontractors to take affirmative action to give jobs to and promote qualified individuals with disabilities.  According to the DOL, an affirmative action program is meant to provide individuals with disabilities with equal employment opportunity-it is supposed to be dynamic in nature and have measurable objectives and involve internal auditing.  These affirmative action requirements under Section 503 apply to all government contracts and subcontracts over $15,000 for the purchase, sale or use of personal property or nonpersonal services.  The written affirmative action programs requirements found in Subpart C of the Section 503 rule apply to every government contractor with 50 or more employees and a contract of $50,000 or more. The regulatory authority (OFCCP) has now developed an interactive checklist for contractors—the purpose of the checklist is to make contractors aware of their obligations and help them to comply with these obligations.  The checklist can be found here.…


I-9 Violations Can Lead to Huge Fines

Posted on August 8, 2015 by Elaine I. Hogan
Posted in I-9

A recent decision from the agency reviewing civil penalties for I-9 violations serves as a reminder to employers of the dangers of failing to properly complete I-9s.…


Stray Remarks by De Facto Decisionmaker Support Discrimination Claim

Posted on July 31, 2015 by Elaine I. Hogan

When is an employer liable for “stray” remarks? How connected do the stray remarks need to be to the adverse employment action? Earlier this summer, the Second Circuit reversed a district court’s award of summary judgment to an employer on a discrimination claim involving stray remarks in a denial of tenure case where the remarks were made by the de facto decisionmaker within the same school year as the denial of tenure, clearly suggested racial bias and were about the plaintiff’s qualifications as a teacher. Tolbert v. Smith, et al., No. 14-1012 (2d Cir. June 24, 2015).…


EEOC Rules– Sexual Orientation Discrimination Equals Sex Discrimination under Title VII

Posted on July 24, 2015 by Elaine I. Hogan

On July 15, 2015, the EEOC clarified that, at least for claims made against the federal government, all complaints of discrimination based on sexual orientation constitute sex discrimination claims under Title VII. Baldwin v. Foxx, Secretary, Dept. of Transportation, EEOC Appeal No. 0120133080. The case involved David Baldwin, an air traffic controller who filed an EEO complaint against the Federal Aviation Administration, claiming that he was subjected to discrimination on the basis of his sex and retaliation for his prior protected activity. Baldwin claimed that he was not chosen for a permanent position as a front line manager because he is gay, pointing to numerous negative comments made by his supervisor about his sexual orientation (like “we don’t need to hear about that gay stuff” in response to Baldwin talking about a trip with his partner and being told that he was a distraction when he talked about his male partner).…


DOL casts wider net for misclassified independent contractors

Posted on July 17, 2015 by Elaine I. Hogan

The DOL is continuing in its initiative to address misclassification and make sure there are more employees and less independent contractors in the future. The Wage and Hour Division of the DOL issued Administrator’s Interpretation 2015-1: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors on Wednesday, July 15, 2015.…

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