Virginia Employer Law
The Second Circuit agrees–an oral complaint to a supervisor may support a retaliation complaint under the FLSA
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).…READ MORE
Look out—possibly more hostile work environment claims ahead
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.…READ MORE
Can the EEOC come after your company without at least trying to resolve the matter?
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.…READ MORE
Instagram intel—can an employer use it?
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?…READ MORE
Can an employee make a wrongful discharge claim on the grounds that she was forced to quit?
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).…READ MORE
Can an employer ask an applicant or employee for a Facebook password?
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.…READ MORE
What if an employer fails to abide by its own disciplinary process—what’s the harm?
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.…READ MORE
New guidance from DOL regarding workplace violence
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: https://www.osha.gov/Publications/osha3148.pdf…READ MORE
Supreme Court ruling strengthens protections under PDA
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.…READ MORE
What if an employee with bipolar disorder is aggressive and disruptive? Does the ADA prevent an employer from firing that employee?
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).…READ MORE