Virginia Employer Law

Stray Remarks by De Facto Decisionmaker Support Discrimination Claim

Posted on July 31, 2015

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).…

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

Posted on July 24, 2015

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).…

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DOL casts wider net for misclassified independent contractors

Posted on July 17, 2015

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

Posted on July 10, 2015

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).…

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Big changes in overtime proposed

Posted on July 6, 2015

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.…

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Uber driver found to be employee and not independent contractor

Posted on June 26, 2015
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.…

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

Posted on June 18, 2015

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).…

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Shifting explanations result in employer liability in Title VII retaliation claim

Posted on June 12, 2015

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.…

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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

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).…

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

Posted on May 29, 2015

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.…

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