Virginia Employer Law

Get your story straight—employer’s change in explanation can be evidence of pretext

Posted on July 10, 2015 by Elaine I. Hogan

Yet again, an employer is burned by asserting inconsistent reasons for the termination of an employee.  In a recent case, the Eighth Circuit Court of Appeals found that an employee had presented sufficient evidence of an unlawful termination based on his use of FMLA leave where the employer offered differing stories as to the reason for the termination.  Hudson v. Tyson Fresh Meats, Inc., 2015 U.S. App. LEXIS 8479 (8th Cir. 2015).…


Big changes in overtime proposed

Posted on July 6, 2015 by Elaine I. Hogan

Earlier this week, the Department of Labor announced a proposed rule that will greatly expand overtime protections. One of the significant changes is that the white collar exemptions will no longer be applicable to a large group of salaried employees--those making less than $50,440 on an annual basis.…


Uber driver found to be employee and not independent contractor

Posted on June 26, 2015 by Elaine I. Hogan
Posted in Other

A big issue facing Uber and other similar on-demand car service companies is whether their drivers are independent contractors or employees. This classification issue is tricky for employers of all types and sizes — as the lines aren’t always clear and the implications significant. Earlier this week, the California Labor Commissioner ruled against Uber, finding that one of its drivers was an employee and not an independent contractor and thus entitled to reimbursement for expenses under California law. (Barbara Berwick v. Uber Technologies, Inc., State Case No. 11-46739 EK). Uber is appealing that ruling, but it faces similar challenges in other venues, including a class action lawsuit over the same issue in federal court.…


Transgender former police officer states a claim under Title VII-but fails to show sufficient evidence of discrimination

Posted on June 18, 2015 by Elaine I. Hogan

Last week, the district court ruled that although discrimination based on transgender status was a cognizable claim under Title VII, the plaintiff had failed to demonstrate that the rejection of her application to be part of a volunteer mounted patrol was discriminatory. Finkle v. Howard County, Maryland, Case No. SAG-13-3236 (D. Md. June 12, 2015).…


Shifting explanations result in employer liability in Title VII retaliation claim

Posted on June 12, 2015 by Elaine I. Hogan

So a supervisor offers a couple of different explanations for action taken against an employee—how much does that matter? Maybe quite a bit, according to an opinion issued by Judge Jackson last week. See Mohammed v. Central Driving Mini Storage, Inc., Case No. 2:13cv00469 (E.D. Va. 2015). In this case, the court awarded a former employee of the storage company $150,730.19 in back pay and his attorneys’ fees and costs based on a claim that he was fired after he complained about having to work on his Sabbath.…


Employers face possible claims for failure to accommodate even where there is no actual knowledge of a need for accommodation

Posted on June 5, 2015 by Elaine I. Hogan

Back in March, I posted about the case before the United States Supreme Court involving a girl who claimed that she was discriminated against because of her religion when Abercrombie & Fitch didn’t hire her because of her headscarf. The Tenth Circuit had found that because the plaintiff did not inform Abercrombie before its hiring decision that her practice of wearing a headscarf was based on her religious beliefs and that she would thus need an accommodation. On Monday, the Supreme Court reversed that decision, holding that to prevail in an disparate treatment claim under Title VII, an applicant must only show that her need for an accommodation was a motivating factor in the employer’s decision, and not that the employer actually knew of her need. EEOC v. Abercrombie & Fitch, Inc., 575 U.S. ___ (2015).…


But we didn’t tell him to work off the clock -do we still have to pay overtime?

Posted on May 29, 2015 by Elaine I. Hogan

Many employers have been faced with this situation. An employee who is classified as non-exempt and so entitled to overtime decides to do some work from his home computer at night—maybe to score some brownie points with a hard-to-please supervisor or maybe to make up for a failure to get enough done during the workday. Or an employee clocks out, but then sticks around and helps some friends on the next shift get some things done. Regardless of the reason, if an employee voluntarily decides to do some work off the clock and management knows about it, unless he qualifies for an exemption under the FLSA, an employer must pay him—and at the overtime rate for hours that exceed forty in a week.…


The Second Circuit agrees–an oral complaint to a supervisor may support a retaliation complaint under the FLSA

Posted on May 22, 2015 by Elaine I. Hogan

Back in 2011, the Supreme Court ruled that an oral complaint can serve as the grounds for a retaliation claim under the FLSA. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). But in Kasten, the oral complaint was made to a government agency and so the question still remained—what about an oral complaint to a supervisor? In a recent decision, the Second Circuit Court of Appeals joined other circuits (including the Fourth Circuit) and decided that yes, even an oral complaint to a supervisor can provide the foundation for a retaliation claim under the FLSA—as long as it is sufficiently clear and detailed for a reasonable employer to understand it as an assertion of rights protected by the statute and a call for their protection. Greathouse v. JHS Security Inc., No. 12-4521 (April 20, 2015).…


Look out—possibly more hostile work environment claims ahead

Posted on May 15, 2015 by Elaine I. Hogan

Following the recent ruling of the Fourth Circuit after an en banc rehearing, employers may face more claims for hostile work environment. In Boyer-Liberto v. Fountainebleau Corp., No. 13-1473 (4th Cir. May 7, 2015), the Fourth Circuit overturned a prior decision by its own panel and the district court and found that an extremely serious instance of harassment, even if it is isolated, can support a claim for hostile work environment and also provide a basis for a claim of retaliation if the isolated incident is physically threatening or humiliating.…


Can the EEOC come after your company without at least trying to resolve the matter?

Posted on May 8, 2015 by Elaine I. Hogan

Not without at least complying with its duty to attempt to conciliate the matter. In a unanimous decision issued last week, the Supreme Court held that courts have the authority to review whether the EEOC has fulfilled its obligations under Title VII to attempt conciliation. Mach Mining, LLC v. EEOC, No, 13-1019 (April 29, 2015). This is important for employers and gives them more of a legitimate chance to resolve a matter if the EEOC has found cause in a Title VII case. However, the review permitted is fairly limited.…

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