Virginia Employer Law

Watch Out for Age-based Commentary

Posted on February 20, 2015 by Elaine I. Hogan

Is calling an employee “old man” discriminatory? It could be--just yesterday, the EEOC announced that Wal-Mart has agreed to pay $150,000 and provide other relief to a resolve an age and disability lawsuit filed by the EEOC on behalf of an employee. The EEOC charged that Wal-Mart discriminated against the employee by subjecting him to harassment, discriminatory treatment, and discharge because of his age and refused to provide a reasonable accommodation for his disability.…


The stats are in—retaliation continues to top the list of charges filed with the EEOC

Posted on February 13, 2015 by Elaine I. Hogan
Posted in Retaliation

On February 4, 2015, the EEOC released its data regarding 2014 charges. In fiscal year 2014, 88,778 charges of workplace discrimination were filed with the EEOC. Apparently, the number of charges filed was actually down a little from recent fiscal years, but the EEOC attributes this, at least in part, to the government shutdown during the reporting period. Retaliation charges top the list yet again. In fiscal year 2014, 42.8% of all charges filed with the EEOC were for retaliation. This is the highest percentage to date. The second most common charge was race discrimination, making up 35% of the charges. Sex discrimination claims (including pregnancy and sexual harassment) accounted for 29.3% of the charges. Disability claims made up 28.6% and age discrimination claims made up 23.2% of the charges. National origin claims accounted for 10.8% of the charges and the remaining 8.6% of the charges included discrimination claims based on religion (4%), color (3.1%) and claims under the Equal Pay Act (1.1%) and the Genetic Information Non-Discrimination Act (.4%). What does this mean for employers? The danger of retaliation claims continues to grow. We need to continue to make sure managers and supervisors are aware of the implications of a complaint about discrimination or harassment—and that they know to report it up the line so that appropriate action can be taken in terms of investigating and responding to the complaint, but also so that we can insure that no inappropriate action is taken because of the complaint.…


If an employee underreports his time—and his employer knows about it—can the employer use that conduct to get around liability for unpaid overtime under the FLSA?

Posted on February 6, 2015 by Elaine I. Hogan

What if an employee does not keep accurate time records in violation of company policy? Is an employer able to shift the blame onto the employee for any resulting unpaid overtime? In a recent decision from the Eleventh Circuit Court of Appeals, the court found that if the employer knows that the employee is underreporting his time in this way, it cannot rely upon his failure to comply with company policy regarding time records as a defense to a FLSA claim. Bailey v. TitleMax of Georgia, Inc., No. 14-11747 (11th Cir. January 15, 2015).…


What if an employee quits before hearing us out on our response to her reasonable accommodation request? Is my company liable?

Posted on January 30, 2015 by Elaine I. Hogan

No—according to a recent decision of the First Circuit Court of Appeals. EEOC v. Kohl’s Department Store, Inc., No. 14-1268 (1st Cir. Dec. 19, 2014). If an employee quits when she gets a negative response to her request for accommodation and fails to actually participate in the interactive process, the employer does not face liability. In this case, an employee suffering from type I diabetes worked for Kohl’s as a sales associate. The employee made a request for a particular type of accommodation related to her disability, which involved a particular schedule. Kohl’s was not willing to agree to the schedule outlined by the employee, but was willing to talk about other schedule options. But, before they could continue the conversation with the plaintiff, she stormed out and quit (and ignored Kohl’s later efforts to contact her and resume the discussion). The First Circuit found that Kohl’s was not liable.…


Punitive Damages Allowed in Title VII Case Even Where Only Nominal Damages Awarded

Posted on January 23, 2015 by Elaine I. Hogan
Posted in Title VII

Title VII allows both compensatory and punitive damages and there is a statutory cap that applies, depending upon the size of the employer ($300,000 in the case of employers with more than 500 employees). 42 U.S.C. § 1981a. In a sexual harassment case before the Ninth Circuit, the question was whether punitive damages are available in a case where a jury has awarded only nominal damages in the amount of $1.00 and not compensatory damages. The Ninth Circuit, ruling en banc, overruled a prior panel decision and decided that an award of punitive damages in this case would be permissible and would not violate due process. Arizona v. ASARCO LLC, No. 11-1784 (9th Cir. Dec. 10, 2014).…


Court Refuses to Approve Settlement of FLSA Collective Action

Posted on January 16, 2015 by Elaine I. Hogan

One of the unique features of a FLSA action is that any settlement must be approved by the court. At times, this can prove challenging for parties who must not only figure out how to satisfy one another, but how to make sure the court can also get on board with the settlement. In a case recently decided in the Western District of Missouri, the district court refused to approve a FLSA collective action settlement between a group of loan officers and a bank. Branson, et al. v. Pulaski Bank, No. 4:12-CV-01444 (D. Mo. Jan. 12, 2015).…


Walmart Sanctioned For Destroying Evidence in Title VII Retaliation Case

Posted on January 9, 2015 by Elaine I. Hogan

What happens if a critical piece of evidence has been destroyed—even if allegedly unintentionally and in the course of regular business? In a recent decision out of the Northern District of Georgia in a Title VII and ADEA retaliation case, the court found that the destruction of the evidence created a presumption that the stated reason for the termination of the plaintiff was pretextual and that retaliation was the but-for cause of the termination. Abdulahi v. Wal-Mart Stores East, L.P., Case No. 1:12cv4330 (N. D. Ga. December 18, 2014).…


WDVA Rules No Right to Jury Trial in WARN Act Case

Posted on January 2, 2015 by Elaine I. Hogan
Posted in Other

The Fourth Circuit Court of Appeals has not weighed in on whether there is a right to a jury trial under the Worker Adjustment and Retraining Notification Act (“WARN”). In a recent case in the Western District of Virginia, Judge James P. Jones ruled that there is no such right either created by statute or under Seventh Amendment. Creech, et al. v. Virginia Fuel Corporation, Case No. 2:14cv0006 (W.D. Va. November 24, 2014).…


Supreme Court Rules in Favor of Employer as to What is Compensable Time

Posted on December 19, 2014 by Elaine I. Hogan

In March, we reported that the United States Supreme Court had granted cert in a case involving the question of whether time spent by employees working for in security checks at the end of their shifts was compensable under the Fair Labor Standards Act (“FLSA”). On December 9, the Supreme Court issued its ruling in this case and decided that the time that the workers spent waiting to undergo and then undergoing the security screenings was not compensable under the FLSA. See Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ___ (December 9, 2014).…


Former Bank Executive Prevails in Suit Regarding Severance Payment

Posted on December 12, 2014 by Elaine I. Hogan

Last month, Judge Poston of Norfolk Circuit Court ruled that the former President of Shore Bank and Executive Vice President of Operations for Hampton Roads Bankshares, was entitled to $655,495.43 in severance pay, plus interest, despite the defendants’ arguments that they were prohibited from making this type of golden parachute payment as a recipient of Troubled Asset Relief Program (“TARP”) funds and that Shore Bank did not owe Harvard the severance because his base salary was paid by a holding company previously created by Shore Bank. The court further awarded the plaintiff attorneys’ fees in the amount of $155,000.…

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