Virginia Employer Law

Instagram intel—can an employer use it?

Posted on May 1, 2015 by Elaine I. Hogan

Let’s say one of your employees has a tendency to call in sick on Fridays when it just so happens to be 72 degrees and sunny out. Another employee reports to you that last Friday, that same worker posted a picture of herself on Instagram at a nearby water park, despite the fact that she had claimed to have had a stomach bug. Can you act on this report?…


Can an employee make a wrongful discharge claim on the grounds that she was forced to quit?

Posted on April 24, 2015 by Elaine I. Hogan

Perhaps so-in a recent decision from the federal court in the Western District of Virginia, the court, anticipating how the Supreme Court of Virginia would rule on this issue, found that a plaintiff may be able to state a claim of wrongful discharge against his or her employer even where he or she resigned if his or her working conditions were intolerable and the termination was in violation of the clear and unequivocal public policy of the Commonwealth of Virginia. Faulkner v. Dillon, et al., Case No.: 1:14cv00081 (March 23, 2015).…


Can an employer ask an applicant or employee for a Facebook password?

Posted on April 17, 2015 by Elaine I. Hogan
Posted in Other

No—not if the employer is in Virginia. Virginia has joined other states in taking action to protect the personal online accounts of applicants and employees. On March 23, 2015, Governor McAuliffe signed H.B. 2081 into law and the law takes effect on July 1, 2015.…


What if an employer fails to abide by its own disciplinary process—what’s the harm?

Posted on April 10, 2015 by Elaine I. Hogan

According to a decision from the First Circuit Court of Appeals earlier this year, an employer’s failure to take action in accordance with its own disciplinary process could support a finding of discrimination. Soto-Feliciano v. Villa Cofresi Hotels, Inc., No. 13-2296 (February 20, 2015). Specifically, this failure can support a finding that an employer’s alleged reasons for firing an employee were merely pretext.…


New guidance from DOL regarding workplace violence

Posted on April 3, 2015 by Elaine I. Hogan

Based on a continuing problem of violence in the workplace, the DOL has issued updated guidance related to this important topic. According to the press release announcing the issuance of the new guidelines, the Bureau of Labor Statistics reported that more than 23,000 significant injuries in 2013 occurred due to assaults in the workplace—and 70% of these were in the healthcare and social service settings. The guidance offers best practices and provides effective ways to minimize the risk of violence in healthcare and social service settings where it has been found that workers are four times more likely to suffer violence than the average sector worker. The guidance focuses on five settings: hospital settings, residential treatment, non-residential treatment/services, community care and field work. These updated guidelines can be found here:…


Supreme Court ruling strengthens protections under PDA

Posted on March 27, 2015 by Elaine I. Hogan

Earlier this week, the United States Supreme Court recently ruled in favor of protections afforded to pregnant women under the PDA, but stopped short of giving pregnant women “most-favored-nation” status. Young v. United Parcel Service, Inc., Case No. 12-1226.…


What if an employee with bipolar disorder is aggressive and disruptive? Does the ADA prevent an employer from firing that employee?

Posted on March 20, 2015 by Elaine I. Hogan

Potentially not, depending on the circumstances, according to a recent case from Eighth Circuit Court of Appeals. Walz v. Ameriprise Financial, Inc., Case No. 14-2495 (March 9, 2015). In this case, the plaintiff Marissa Walz worked for Ameriprise in a job which required good people and communication skills, along with the ability to work well in a team and exercise good time management. Walz’s bipolar disorder caused her to interrupt meetings, disturb coworkers and disrespect her supervisor. Walz’s supervisor had repeated discussions with her about her behavior and eventually issued her a formal warning. Walz applied for FMLA leave which was granted by the third party that administers these requests for Ameriprise. Walz never told Ameriprise of the reason for her FMLA leave. When Walz returned to work, provided a doctor’s note stating that she had been stabilized on her medication. Upon her return, Walz also was given and signed Ameriprise’s Individual Treatment Policy (addressing disability discrimination and the process for requesting accommodation).…


Supreme Court Agrees with DOL Regarding Interpretation of FLSA Regulations

Posted on March 13, 2015 by Elaine I. Hogan

As all employers are aware, the application of white collar exemptions under the FLSA can be particularly tricky. The DOL issues interpretive rules relating to the FLSA regulations, which provide guidance to employers in applying these exemptions. In a recent decision, the United States Supreme Court tackled the question of what the DOL has to do when it wishes to change its interpretive rules relating to a particular exemption. Ultimately, in a decision issued on March 9, 2015, the Supreme Court ended up siding with the DOL and ruling that a federal agency does not have to go through the “notice-and-comment rulemaking” procedure pursuant to the Administrative Procedure Act in order to change its interpretation of a regulation. Perez v. Mortgage Bankers Ass’n, 575 U.S. ___ (2015).…


Does an employee have to specifically ask for a religious accommodation?

Posted on March 6, 2015 by Elaine I. Hogan

The United States Supreme Court heard argument this past week on this very issue in the case of EEOC v. Abercrombie & Fitch Stores, Inc., a case appealed from the Tenth Circuit Court of Appeals. Samantha Elauf was a teenager in Tulsa, Oklahoma who applied to work at an Abercrombie & Fitch store in 2008. Elauf, a Muslim, wore her headscarf (“hijab”) to the interview. Abercrombie has a “not hats” policy for sales associates and thus did not hire Elauf. Of course, Title VII prohibits denying employment based on a religious practice, unless accommodating the practice would impose a substantial burden. The EEOC brought a lawsuit on Elauf’s behalf and won in federal district court, but then the Tenth Circuit reversed the decision, agreeing with Abercrombie’s argument that it was not required to give Elauf a religious accommodation because she had not specifically asked for one (basically never told Abercrombie that she wore her hijab for religious reasons).…


DOL Amends Definition of Spouse in FMLA Regulations

Posted on February 27, 2015 by Elaine I. Hogan

The big news from the Department of Labor this week was the amendment of the definition of “spouse” in the regulations applying the FMLA. Of course, in 2013, the Supreme Court found that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional in United States v. Windsor, 570 U.S. ___ (2013). Following this decision, President Obama directed the Cabinet to review all relevant federal statutes to implement the decision, including as it related to federal benefits and programs. Soon after, the DOL announced that under the definition of spouse at that time, eligible employees would be able to take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state in which same-sex marriage was recognized.…

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