Virginia Employer Law

New Rule Prohibits Government Contractors from Discriminating Against Employees Based on Sexual Orientation and Gender Identity

Posted on December 5, 2014 by Elaine I. Hogan

On Wednesday, the Department of Labor announced a new rule aimed at protecting those working for government contractors from discrimination based upon their sexual orientation or gender identity. The new rule implements Executive Order 13672, which was signed by President Obama on July 21, 2014.…


Eleventh Amendment Bars FLSA Claim against Supervisors at Eastern State Hospital Where Actions Inextricably Tied to Official Duties

Posted on November 21, 2014 by Elaine I. Hogan

Earlier this week, the Fourth Circuit directed the district court to dismiss a FLSA claim brought by a nurse against two of her supervisors at Eastern State Hospital, finding that there was no basis for individual liability and sovereign immunity barred the claims. Martin v. Wood, et al., Case No. 13-2283 (4th Cir. Nov. 18, 2014).…


Tipped Employees Must Have Actual Notice of Use of Tip Credit

Posted on November 14, 2014 by Elaine I. Hogan

The tip credit permitted under the Fair Labor Standards Act (“FLSA”) has always presented challenges to restaurants and other employers seeking to apply it correctly. Last month, the First Circuit addressed the tip credit and the question of the type of notice which must be given to employees regarding its use in the case of Perez v. Lorraine Enters., No. 13-1685 (1st Cir. Oct. 1, 2014). The First Circuit ruled that constructive knowledge of the application of the tip credit is not enough, but rather employees must have actual notice that tips are to be treated as part of their wages.…


District Court Has Jurisdiction over Retaliation Claim Related to Prior Charge, Even Prior Charge that was Untimely

Posted on October 31, 2014 by Elaine I. Hogan

The Fourth Circuit recently ruled that the district court properly ruled that it had jurisdiction over a claim of retaliation in violation of Title VII asserted by an Old Dominion University professor, even though the retaliation claim was not contained within her initial EEOC charge and that charge was, in fact, untimely. Hentosh v. Old Dominion University, No. 13-2037 (4th Cir. September 24, 2014). The Fourth Circuit’s ruling was based on the fact that the retaliation was reasonably related to the initial charge and its own prior decision that a claim for retaliation can be asserted for the first time in federal court.…


Even Extremely Flexible Schedule Accommodation Request Not Unreasonable as a Matter of Law

Posted on October 17, 2014 by Elaine I. Hogan

The United States Court of Appeals for the D.C. Circuit recently reversed the decision of the district court in the case of Solomon v. Vilsack, No. 12-5123 (D.C. Cir. August 15, 2014), a case involving an employee’s request to have significant flexibility in the her working hours as a reasonable accommodation for her disability. The district court had granted summary judgment to the employer, the Department of Agriculture, on the grounds that a “maxiflex work schedule” such as that sought by the plaintiff was an unreasonable accommodation request as a matter of law. The Court of Appeals disagreed, stating that “[n]othing in the Rehabilitation Act establishes, as a matter of law, that a maxiflex work schedule is unreasonable” and leaving for remand the factual question of whether this request would have been reasonable on this case.…


No FMLA Retaliation Where Employer Can Show Employee Terminated for Improperly Accessing Supervisor’s Email

Posted on October 10, 2014 by Elaine I. Hogan

The decision of the United States District Court for the Western District of Virginia in the case of Downs v. Winchester Medical Center, et al., No. 5:13cv00083 regarding what constitutes a claim for interference in violation of the FMLA was the topic of a posting from a few months ago. The district court had found that while the plaintiff had properly stated a claim for retaliation in violation of the FMLA based upon these allegations, but that her claims not support a claim for FMLA interference.   Last month, the district court granted summary judgment to the employer, finding that the employer had a legitimate, nondiscriminatory reason for the termination of the employee, namely, her inappropriate accessing of her supervisor’s email, and thus that her retaliation claim failed as a matter of law. Downs, Memorandum Opinion (August 18, 2014).…


Executive Order 13658 “Establishing a Minimum Wage for Contractors” Final Rule

Posted on October 3, 2014 by Elaine I. Hogan

On Tuesday, the U.S. Department of Labor issued the final rule that raises the minimum wage for workers on federal contracts to $10.10 an hour. The 338 page rule, which takes effect on January 1 2015, implements Executive Order 13658. The final rule provides for employers guidance as to which contracts and which employees are covered. Contractors must fulfill certain obligations to comply with the new minimum wage provisions, including recordkeeping requirements. The rule also establishes an enforcement process and will protect the right of workers to receive the new minimum wage.…


No USERRA Claim Where Vet Terminated Based on Threats Made Against Co-workers

Posted on September 26, 2014 by Elaine I. Hogan
Posted in Other

In a recent decision, a judge in the Eastern District of Virginia dismissed the claims asserted by a United States Army veteran with PTSD that his employer had terminated him in violation of both the Uniformed Services Employment and Reemplyoment Rights Act (“USERRA”) and the Americans with Disabilities Act (“ADA”). Williamson v. Bon Secours Richmond Health System, Inc., Case No. 3:13-cv-704 (July 28, 2014). In this case, other employees had reported that the plaintiff had made a number of threatening statements about taking violent actions against co-workers. The court found that the employer was entitled to judgment as a matter of law on plaintiff’s claims of discrimination under USERRA and the ADA and his failure to accommodate claim under the ADA.…


Decertification of Nationwide Collective Action under FLSA Does Not Prohibit Plaintiffs from Seeking Conditional Certification of Statewide Collective Action

Posted on September 19, 2014 by Elaine I. Hogan

Recently, a court in the Eastern District of Virginia was faced with the question of the effect of another district court’s decertification of a nationwide collective action on the efforts of employees here in Virginia to bring a statewide collective action.  See Allen v. Cogent Communications, Inc., No. 1:14cv459 (August 28, 2014).  The employer Cogent Communications, Inc., an internet and network service provider, argued that the plaintiffs were collaterally estopped from bringing a collective action in the Eastern District of Virginia based on…


The Fluctuating Workweek—A Working Option?

Posted on September 12, 2014 by Elaine I. Hogan

The general rule under the Fair Labor Standards Act (“FLSA”) is that non-exempt employees have to be paid for overtime at a rate of one and a half times their regular rate of pay. However, there is another option available to employers---the fluctuating workweek method, sometimes called the halftime method. If the fluctuating workweek model applies, an employee that is paid a fixed salary but has hours that fluctuate on a week to week basis is paid at an overtime premium rate of only half time, instead of time and a half. Sounds like a win for the employer, right? But employers must be careful—this model only applies in specific circumstances and if not carefully applied, an employer could end up owing big.…

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