Virginia Employer Law

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

Posted on May 9, 2014

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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Telecommuting—A Reasonable Accommodation?

Posted on May 2, 2014

Can an employee request the ability to work from home as a reasonable accommodation? And how easy is it for an employer to demonstrate that an employee’s physical presence in the workplace is required? In a world in which telecommuting is becoming ever more prevalent, yet companies still maintain that they benefit greatly from employees’ face to face interactions with both their coworkers and customers, these are difficult questions for employers. In its recent decision in EEOC v. Ford Motor Company, No. 12-2484 (April 22, 2014), the Sixth Circuit Court of Appeals addressed these complex issues, reversing the district court’s decision awarding summary judgment to Ford and finding that the EEOC had created a genuine issue of material fact as to whether the employee was otherwise qualified for the position where she was unable to be physically present in the workplace at all times due to a disability and had also created a genuine issue of material fact as to whether she was improperly terminated in retaliation for exercising her rights under the ADA.…

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Burden of Showing Materially Adverse Action in Title VII Retaliation Claim Less Onerous Than Required to Show Adverse Employment Action for Purposes in Title VII Discrimination Claim

Posted on April 25, 2014

In its recent decision in Laster v. City of Kalamazoo, et al., No. 13-1640 (March 13, 2014), the Sixth Circuit Court of Appeals reminded us that the type of adverse action required to support a retaliation claim under Title VII is very different than that necessary to support a claim for discrimination under Title VII. In Laster, the Sixth Circuit reversed the district court’s summary judgment ruling as it pertained to the plaintiff’s Title VII retaliation claim on the grounds that the plaintiff had sufficiently stated a claim for retaliation in violation of Title VII when he had identified a number of ways in which a reasonable worker could have been dissuaded from making or supporting a charge of discrimination.…

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Fourth Circuit Rules That Retirement Plan Violates ADEA

Posted on April 18, 2014

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.…

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

Posted on April 11, 2014

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.…

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EEOC Has to Pay for Unreasonably Instituting Litigation

Posted on April 4, 2014
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).…

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Ninth Circuit Rules–Employee Can Decline FMLA Leave

Posted on March 28, 2014

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.…

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And Another Non-Compete Bites the Dust

Posted on March 21, 2014

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.…

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

Posted on March 14, 2014

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 http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm). 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.…

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

Posted on March 7, 2014

On Monday, the United States Supreme Court granted cert in a case involving the question of whether time spent by employees working for Amazon.com 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 Amazon.com 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.…

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