Virginia Employer Law

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…

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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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Audit Associates Properly Classified as Exempt Under FLSA

Posted on September 5, 2014 by Elaine I. Hogan

The Second Circuit Court of Appeals affirmed the district court’s award of summary judgment to KPMG LLP in the case of Pippins v. KPMG LLP, No. 13-889 (2d Cir. July 22, 2014), agreeing that because the plaintiffs were employed as accountants in a field of advanced science and learning, deployed knowledge customarily acquired by a prolonged course of specialized education and exercised independent professional discretion and judgment, they were properly classified as exempt under the Fair Labor Standards Act (“FLSA”). Although the plaintiffs argued that they were mere audit associates who performed only entry-level accounting tasks which were specifically circumscribed by their employer, the Second Circuit rejected this argument and found that these employees qualified for the learned professionals exemption.…

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Expert Testimony Not Necessary to Support FMLA Claim

Posted on August 29, 2014 by Elaine I. Hogan

In order to be entitled to FMLA leave, an employee must be able to show that he or she is afflicted with a serious health condition and that the condition renders him or her unable to perform the essential functions of her job. But is a plaintiff who has brought a claim under the FMLA required to present expert testimony verifying that a serious health condition rendered him or her unable to work? Recently, the Seventh Circuit Court of Appeals reversed the district court’s award of summary judgment to an employer on this issue, finding that expert testimony is not necessary in order to make this showing. Hansen v. Fincantieri Marine Group, LLC, et al., No. 13-3391 (7th Cir. August 18, 2014).…

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Threat to Discipline Based on False Report to EEOC Could Support Retaliation Claim

Posted on August 22, 2014 by Elaine I. Hogan

In Cox v. Onondaga County Sheriff Department, No. 12-1526 (2d Cir. July 23, 2014), the Second Circuit recently held that threats made by an employer to charge employees with making a false report to the EEOC could establish a prima facie case of unlawful retaliation in violation of Title VII, shifting the burden of proof to the employer to show a non-retaliatory purpose for the action.…

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Summary Judgment Affirmed for Employer Using Monday-Sunday Workweek to Calculate Overtime

Posted on August 15, 2014 by Elaine I. Hogan

Last month, the Fifth Circuit Court of Appeals faced the question of whether the Fair Labor Standards Act (“FLSA”), an employer has to use a certain workweek to maximize overtime for employees. The Fifth Circuit ruled that there is no such obligation on an employer. Johnson v. Heckmann Water Resources, Inc. No. 13-40824 (July 14, 2014).…

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Ninth Circuit Reverses Summary Judgment on Issue of Whether Policy Prohibiting Male Deputies from Supervising Female Inmates is Discrimination

Posted on August 8, 2014 by Elaine I. Hogan

In a recent decision, the Ninth Circuit found that there were material issues of fact in dispute precluding summary judgment in favor of a county where male deputies claimed a policy prohibiting male deputies from supervising female inmates in the housing units of the jails operated by the County was unlawful sex discrimination in violation of Title VII. Anderson v. City & Cnty of San Francisco, No. 11-16746 (9th Cir. July 2, 2014).…

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Summary Judgment Granted to Plaintiff Claiming FBI’s Gender-Based Push-up Requirements in Violation of Title VII

Posted on August 1, 2014 by Elaine I. Hogan

Is it discrimination for the FBI to require its male trainees to perform 30 push-ups while only requiring 14 push-ups from its female trainees in a physical fitness test? In June, a federal court in the Eastern District of Virginia ruled that it was. Bauer v. Holder, Case No. 1:13-cv-93 (E.D.Va. June 10, 2014). A male FBI trainee failed to perform the required 30 push-ups and argued that this requirement discriminated against him on the basis of sex in violation of Title VII in light of the fact that female trainees are only required to perform 14 push-ups. The Attorney General argued that this does not constitute impermissible discrimination because the different standards are based on innate physiological differences between males and females and these standards impose no greater burden on men than on women.…

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Right to FMLA Leave Not Forfeited Based on Failure to Provide Anticipated Duration

Posted on July 25, 2014 by Elaine I. Hogan

If an employee properly requests FMLA leave, but fails to advise her employer of how long she plans to be out, is the employer obligated to hold the position open? Late last month, the Seventh Circuit decided that yes, in a situation involving unforeseeable leave, the employer is still obligated to allow the employee to come back to work, provided she has not used more than 12 weeks of leave, despite her failure to provide information regarding the duration of her leave. See Gienapp v. Harbor Crest, et al., No. 14-1053 (7th Cir. June 24, 2014).…

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New Guidance from EEOC on Pregnancy Discrimination

Posted on July 18, 2014 by Elaine I. Hogan

Earlier this week, the EEOC issued a Notice titled Enforcement Guidance: Pregnancy Discrimination and Related Issues. The EEOC provides an overview of statutory protections, discussing the Pregnancy Discrimination Act (“PDA”), the Americans with Disabilities Act (“ADA”), and other requirements affecting pregnant workers, including the Family Medical Leave Act (“FMLA”), Executive Order 13152 Prohibiting Discrimination Based on Status as Parent, Section 4207 of the Patient Protection and Affordable Care Act which requires that employers provide reasonable break time for nursing mothers, and state laws that relate to pregnant workers. The EEOC provides a number of helpful examples of what would and would not constitute unlawful discrimination and is a useful tool for employers to review. This guidance can be found at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.…

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