Virginia Employer Law

Policy Allowing No More Than Six Months’ Sick Leave Does Not Violate Rehabilitation Act

Posted on July 11, 2014 by Elaine I. Hogan

The Tenth Circuit was recently faced with the question of whether a university’s inflexible policy disallowing sick leave longer than six months violated the Rehabilitation Act. Rejecting the claims of the plaintiff, an assistant professor who sought more than six months leave after being diagnosed with and beginning treatment for cancer, the Tenth Circuit found that this policy did not itself violate the Rehabilitation Act. Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014).…

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DOL Proposed Rule Redefines “Spouse” Under FMLA

Posted on July 3, 2014 by Elaine I. Hogan

In the wake of the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the Department of Labor has issued a proposed rule changing the definition of “spouse” under the FMLA. This proposed rule, issued on June 20, 2014, would insure that all eligible employees who are legally married, including both same-sex or opposite sex marriages, will be entitled to protection under the FMLA.…

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Pregnancy Discrimination Case Settled for $25,000

Posted on June 27, 2014 by Elaine I. Hogan

According to an EEOC press release earlier this week, a property management company in Maryland has agreed to pay $25,000 to settle a pregnancy discrimination lawsuit where the allegations were that the pregnant employee was terminated after she requested to discontinue working with certain cleaning products, but was unable to provide certain documentation from her doctor clearing her to work with cleaning chemicals. The EEOC filed suit on behalf of the employee in the United States District Court for the District of Maryland in the case of EEOC v. Greystar Management Services, L.P., No. 1:11-cv-02789.…

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FMLA Interference v. Retaliation—No Interference Claim Where No Denial of FMLA Benefits

Posted on June 20, 2014 by Elaine I. Hogan

In the case of Downs v. Winchester Medical Center, et al., No. 5:13cv00083, the United States District Court for the Western District of Virginia addressed the question of what constitutes a claim for interference in violation of the FMLA.  The plaintiff in this case asserted claims of both interference and retaliation in violation of the FMLA.  However, the only allegations supporting the interference claims were the allegations of harassment, negative reviews, discipline and termination that also supported her FMLA retaliation claim. The court agreed that while the plaintiff had properly stated a claim for retaliation in violation of the FMLA based upon these allegations, they did not support a claim for FMLA interference.…

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Employer May Be Liable Where Spurned Co-Worker Takes Action to Get Employee Fired

Posted on June 13, 2014 by Elaine I. Hogan

The Supreme Court has previously ruled on the issue of employer liability premised on a finding of negligence in cases involving hostile workplace. But, yet to be addressed by the Supreme Court is whether an employer can face liability when a co-worker (instead of a supervisor) commits a discriminatory act that influences an ultimate employment decision. The First Circuit recently answered this question in the affirmative, finding that an employer can be liable if it fires an employee based upon complaints that it knew or reasonably should have known were the product of discriminatory animus. Velazquez-Perez v. Developers Diversified Realty Corp., et al., No. 12-2226 (1st Cir. May 23, 2014).…

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Classifying Former Employee as a New Hire Can Provide Basis for Retaliation Claim

Posted on June 6, 2014 by Elaine I. Hogan

Recently, Judge Payne of the Eastern District of Virginia ruled that a plaintiff’s claim that he was retaliated against when he was rehired by his employer after engaging in protected activity, but reassigned to a new site forty-seven miles away from his original sites without the supervisory responsibilities he previously held and was classified as a new hire. Chamblee v. Old Dominion Security Company, et al., No. 3:13cv820 (April 11, 2014).…

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Eleventh Circuit Reverses Summary Judgment Ruling in Discrimination Case—Reminding District Court that in Status-based Discrimination Claims, But-for Causation Not Required

Posted on May 30, 2014 by Elaine I. Hogan

This week, the Eleventh Circuit issued a ruling in Barthelus v. G4S Government Solutions, Inc., No. 13-14121 (May 27, 2014), reversing the district court’s award of summary judgment to an employer and finding that there was a material issue of fact regarding whether the employers’ grounds for termination were merely pretext. In so ruling, the Eleventh Circuit pointed out that the claims of the plaintiff were in the “status-based category of discrimination,” and thus the employee was not required to show that the causal link between the injury and wrong was so close that the injury would not have occurred but for the act. Instead, the plaintiff must only show that the motive to discriminate was one of the motives, even if accompanied by other, lawful motives. Barthelus, p. 16.…

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I-9 Audits—What You Need to Know to Be Prepared

Posted on May 23, 2014 by Elaine I. Hogan
Posted in I-9

In 2010, Abercrombie and Fitch agreed to pay $1,047,110 to settle with ICE following an I-9 audit in which it was revealed that there were numerous technology-related deficiencies in its electronic I-9 verification system.  In 2012, after an investigation and audit of its I-9 forms, a restaurant in Dayton, Ohio was fined more than $20,000 for failing to comply with employment eligibility verification requirements.  In that case, ICE conducted the I-9 inspection after receiving information from the local police department that the company employed illegal aliens.  The restaurant ultimately reached a settlement with ICE, agreeing to pay $21,692.00. As these examples reveal, your company’s failure to comply with I-9 regulations can be extremely costly.  Additionally, along with potential fines, you could also face criminal charges or debarment.…

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Fourth Circuit Reverses Summary Judgment in Third Party Harassment Claim

Posted on May 16, 2014 by Elaine I. Hogan

In a recent decision, the Fourth Circuit has joined other circuits in holding that a negligence standard applies to third party harassment claims under Title VII, an issue the United States Supreme Court has yet to reach.  In Freeman v. Dal-Tile Corp., et al., No. 131481 (4th Cir. April 29, 2014), the Fourth Circuit concluded that a black female former employee had triable racial and sexual harassment claims under Title VII based on evidence that her employer failed to respond adequately to harassment from a customer.…

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First Circuit Reverses District Court-Per Diem Should Have Been Included in Regular Rate

Posted on May 9, 2014 by Elaine I. Hogan

Overtime under the Fair Labor Standards Act (“FLSA”) is calculated based upon an employee’s regular rate of pay.  But the issue of whether that regular rate of pay includes a per diem can be a challenging one.  Just last month, the First Circuit found that a district court improperly awarded summary judgment to an employer because the per diem paid to employees was based upon based upon and varied with the number of hours worked per week and thus should have been included in the regular rate of pay for purposes of determining overtime. See Newman, et al. v. Advanced Technology Innovation Corp., No. 13-1132 (1st Cir. April 18, 2014).…

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