Virginia Employer Law

Tenth Circuit Tackles Supervisor Issue

Posted on February 28, 2014

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.…

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No Adverse Employment Action = No Claim for Retaliation

Posted on February 21, 2014

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).…

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SNOW DAY! Do you have to pay exempt employees?

Posted on February 14, 2014

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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Outside Sales Exemption Applies to Mortgage Loan Officer

Posted on February 7, 2014

Exemptions under the Fair Labor Standards Act (“FLSA”) continue to be the source of much litigation in our district and across the country.   Last month, the Eastern District of Virginia tackled the outside salesperson exemption and found that a mortgage loan officer qualified for the exemption, even though she spent only about 25-30% of time out of the office selling and didn’t necessarily close deals outside of the office.  See Hartman v. Prospect Mortgage, LLC, Case No. 1:13cv1432 (E.D. Va. January 7, 2014).…

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A Sufficiently Severe Temporary Impairment May Constitute a Disability

Posted on January 31, 2014

There is no question that the ADA Amendments Act of 2008 (“ADAAA") broadened the meaning of “disability and provide employees even greater protection under the ADA. However, there remain some areas of uncertainty with regard to this new, broader definition. One such question was how the permanence of an impairment (or lack thereof) would affect the disability determination. The Fourth Circuit addressed this issue head on in Summers v. Altarum Institute, Corp., No. 13-1645 (4th Cir. January 23, 2014) and, while noting that it was the first appellate court to apply the expanded definition of “disability” under the ADAAA, concluded that a severe temporary impairment can constitute a disability.…

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A Reminder That Employees May Have to Pay for Bringing Unsuccessful Discrimination Claims

Posted on January 24, 2014

We all know that Rule 54 of the Federal Rules of Civil Procedure provides that a prevailing party is entitled to costs (not including attorneys’ fees) unless a federal statute, the rules themselves, or a court order provides otherwise. The district court has the discretion to deny the award of costs, but must articulate some good reason for such a denial. Often, in employment discrimination cases, employees claim they shouldn’t be required to pay attorneys’ fees on the grounds of financial inability. In Arthur v. Pet Dairy and Land-O-Sun Dairies, LLC, No. 6:11-cv-00042 (W.D.Va. 2013), a judge in the Western District of Virginia rejects exactly this kind of argument from an unsuccessful plaintiff, finding that the plaintiff’s claims that he was unable to pay were too “tenuous” to justify denying the defendant’s request for costs.…

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Retaliation Claims–Beware the Trickle-Down Effect of the “Wishes of the King”

Posted on January 15, 2014

Generally speaking, when an employee clearly violates established policy, employers feel pretty comfortable terminating that employee, regardless of his past complaints of discrimination or about overtime, particularly where other employees have been fired for violating the same policy.  Not so fast, warns the First Circuit in Travers v. Flight Services & Systems, Inc., 2013 U.S. App. LEXIS 24706 (1st Cir. 2013). Joseph Travers was a skycap employed by Flight Services & Systems, Inc., which provided services to JetBlue.  Travers filed a lawsuit alleging Fair Labor Standards Act (FLSA) violations against JetBlue in April 2008 and then amended the complaint to include his employer as a defendant about a year later.  The CEO of Flight Services was very vocal in his disdain for Travers and the legal action he had taken and, according to Travers’ supervisor, repeatedly told the supervisor to get rid of Travers and talk him into dropping the lawsuit.  In September 2010, while the motion to conditionally certify the FLSA case in Travers’ case was still pending, Flight Services received a complaint about Travers from a customer.  She reported that Travers had solicited her for a tip.  Flight Services’ employee handbook specifically bars the solicitation of tips.  Travers was first suspended pending investigation and then terminated by a general manager, with the approval of the Director of Human Resources.  Travers filed another lawsuit asserting retaliation.…

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It Isn’t All About the Ultimate Decisionmaker—Fourth Circuit Vacates Summary Judgment in Favor of Employer in ADEA Case

Posted on January 8, 2014

As employers, we often focus on what knowledge was in the hands of the ultimate decisionmaker at the time a crucial employment decision is made.  However, as the Fourth Circuit reminds us in its decision in Harris v. Powhatan County School Board, No. 12-2091, the knowledge and intent of those who have the power and ability to influence those decisionmakers also must be considered and can support a claim for discrimination. Alexander Harris was a seventy-two-year-old African American custodial worker whose position as a custodial worker for the Powhatan County School System was eliminated in 2009 after fifty-two years of employment.…

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