Virginia Employer Law

Fourth Circuit Rules That Retirement Plan Violates ADEA

Posted on April 18, 2014 by Elaine I. Hogan

Just a few weeks ago, the Fourth Circuit weighed in on the question of whether an employee retirement benefit plan maintained by Baltimore County discriminated against employees based on their age by requiring older employees to pay a greater percentage of their salaries based on their ages at the time of enrollment in the plan. In Equal Employment Opportunity Commission v. Baltimore County, No. 13-1106 (4th Cir. March 31, 2014), the Fourth Circuit ruled that such a plan did unlawfully discriminate against workers based on age and thus violated the ADEA.…


Request for Vacation Not Protected by FMLA and Cannot Support Interference Claim

Posted on April 11, 2014 by Elaine I. Hogan

Does an employee’s request for leave have to be protected by the FMLA to give rise to a potential interference or retaliation claim? Last month, the Eleventh Circuit answer said yes in the case of Hurley v. Kent of Naples, Inc., et al., No. 13-10298 (11th Cir. 2014). Hurley was employed as the CEO for Kent of Naples, a company providing security services. About seven years into his employment, Hurley sent an email to his superior with the subject line “Vacation Schedule,” providing a vacation schedule for the next two years consisting of eleven weeks of vacation. His superior responded via email that the vacation request was denied and asking Hurley to schedule a meeting to dismiss the matter further.…


EEOC Has to Pay for Unreasonably Instituting Litigation

Posted on April 4, 2014 by Elaine I. Hogan
Posted in Title VII

Title VII includes a fee-shifting provision, allowing district courts discretion to award reasonable attorneys’ fees to a prevailing party. But what if the non-prevailing party is the EEOC? The Fourth Circuit recently affirmed a district court’s award of attorneys’ fees to a prevailing defendant in a case brought by the EEOC where the district court had determined that the EEOC acted unreasonably in initiating litigation. EEOC v. Propak Logistics, Inc., No. 13-1687 (4th Cir. March 25, 2014).…


Ninth Circuit Rules–Employee Can Decline FMLA Leave

Posted on March 28, 2014 by Elaine I. Hogan

Employers are all aware that employees do not have to specifically ask for FMLA leave in order for it to be available. However, what if an employee specifically asks that leave not be counted as FMLA leave? In a recent decision, the Ninth Circuit ruled that an employee can affirmatively decline FMLA leave, even where the reason for an absence would entitle him or her to FMLA leave. Escriba v. Foster Poultry Farms, No. 11-17608; 12-15320.…


And Another Non-Compete Bites the Dust

Posted on March 21, 2014 by Elaine I. Hogan

Employers and lawyers alike know how tough it can be to draft a non-compete certain to be enforceable in Virginia.  On March 6, 2013, in an Opinion Letter, Judge White of Fairfax Circuit Court denied a motion for preliminary injunction seeking to enforce a non-compete on the grounds that success on the merits was unlikely based on the overbroad geographic and durational scope of the restrictions.  See Wings, LLC v. Capital Leather, LLC, Case No. CL-2014-9.…


New Guidance From EEOC on Religious Garb and Grooming in the Workplace

Posted on March 14, 2014 by Elaine I. Hogan

Last week, the EEOC issued two new technical assistance publications related to workplace rights and responsibilities regarding religious dress and grooming under Title VII. The two publications issued by the EEOC are a question and answer guide, titled “Religious Garb in the Workplace: Rights and Responsibilities” and a fact sheet to accompany this publication (found at According to the EEOC press release regarding these publications, religious discrimination charges have been steadily increasing and the EEOC received 3721 charges asserting religious discrimination in fiscal year 2013.…


United States Supreme Court to Weigh In on Whether Time Spent in Security Screenings is Compensable under FLSA

Posted on March 7, 2014 by Elaine I. Hogan

On Monday, the United States Supreme Court 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”). In Integrity Staffing Solutions, Inc. v. Busk, No. 11-16892 (9th Cir. 2013), two warehouse workers for a company providing warehouse staffing and space to asserted that their employer had violated the FLSA by failing to properly compensate them, including failing to compensate them for time spent waiting to pass through a security check at the end of their shifts. These plaintiffs alleged that they had to wait up to 25 minutes to be searched and had to remove their wallets, keys and belts and then pass through metal detectors.…


Tenth Circuit Tackles Supervisor Issue

Posted on February 28, 2014 by Elaine I. Hogan

In Vance v. Ball State Univ., 133 S.Ct. 2434, 2441 (2013), the Supreme Court resolved a conflict among the circuits regarding what level of authority a harasser must have in order to qualify as a supervisor under Title VII in the context of a claim of sexual harassment.  However, there remain questions as to how to apply the Supreme Court’s directive in Vance.  Just this week, the Tenth Circuit addressed some of these issues in Kramer v. Wasatch County Sheriff’s Office, et al., No. 12-4058 (February 25, 2014), finding that a bailiff’s immediate supervisor who had engaged in egregious acts of sexual harassment toward her could be a supervisor under Title VII.…


No Adverse Employment Action = No Claim for Retaliation

Posted on February 21, 2014 by Elaine I. Hogan

Where employee voluntarily quit her job at a restaurant in anticipation of a transfer to a different location that never came to fruition, she has not suffered an adverse employment action and thus has no claim for retaliation.   Last week, in Andrews v. CBOCS West, Inc., et al., No. 12-3339 (7th Cir. 2014), the Seventh Circuit ruled that Cracker Barrel was entitled to summary judgment where a waitress at Cracker Barrel had elected to quit with the idea that she would transfer to another location, despite her assertion of numerous unsavory facts regarding discriminatory conduct on the part of her supervisor (and a lack of responsiveness to complaints about this conduct from the company).…


SNOW DAY! Do you have to pay exempt employees?

Posted on February 14, 2014 by Elaine I. Hogan

Even here in Hampton Roads, where we rarely see much snow at all, we have had to confront the various issues that can arise in the workplace during a snowstorm.  Do we close the office? What do we do if we remain open, yet an employee doesn’t come in?  The Department of Labor issued an opinion letter in 2005 (FLSA2005-46) addressing an employer’s question regarding deductions from pay in the event of an employee’s absence due to adverse weather conditions. Basically, if an employee is exempt under the Fair Labor Standards Act (“FLSA”) and the employer makes the decision to close the workplace because of a snowstorm, that exempt employee must be paid for the full week, without any deductions.  However, if an exempt employee does not come into work because of adverse weather conditions even though the workplace remains open, a deduction to his or her salary can be taken, but only if he or she is absent for a full day.…

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