Virginia Employer Law

Is Telling Someone You Want to Maximize Longevity a Bad Idea?

Posted on May 24, 2017 by Elaine I. Hogan

The Situation: A 60 year old man applies to be a General Manager of a restaurant after spending over twenty years in the restaurant industry, a number of which were served in a managerial capacity. After interviewing the applicant over the phone, the hiring manager decides to bring him in for a face-to-face interview with the owner. The restaurant also asked him for some information for a background check and receives information about the applicant’s age. After a very brief face-to-face interview with the owner, the hiring manager informs the applicant that he isn’t going to get the job because the restaurant is really trying to maximize longevity. Is the restaurant looking at potential liability for an age discrimination claim?…


Duane Reade Settles FLSA Collective Action for $13.5 Million—But Can’t Make Plaintiffs’ Counsel Keep Quiet About It?

Posted on May 17, 2017 by Elaine I. Hogan

The Situation: A group of employees brings a FLSA collective action against an employer, claiming they were misclassified as exempt and denied overtime pay over a number of years.  After many years of litigation, the employer is able to reach a resolution, agreeing to pay the plaintiffs millions.  Of course, the lawyers who represented the group of plaintiffs are proud of their victory. Can the employer make it a condition of settlement that the law firm can’t post about the victory on social media?…


Can You Tell a Pregnant Applicant That You Really Need Someone Long Term ?

Posted on May 11, 2017 by Elaine I. Hogan

The Situation: A job applicant makes it through several rounds of interviews successfully and receives a job offer. However, before she accepts it, she lets the prospective employer know that she is pregnant and asks about maternity benefits. The employer rescinds the job offer, explaining that they really need someone who can be in the position for the long haul. Is this pregnancy discrimination?…


FMLA Retaliation Claim Even Where Actual Decisionmaker Didn’t Know About Use of Leave?

Posted on May 3, 2017 by Elaine I. Hogan

The Situation: An employee requests and is approved for FMLA leave based on a mental health condition.  While she is out, she accumulates a backlog of work. According to her supervisor, after she returns, she continues to have performance problems, including not meeting certain metrics and otherwise just not meeting his standards.  Based on a recommendation from her supervisor, upper management decides to demote the employee. When performance issues continue, the owner decides to fire her, without any knowledge of her use of FMLA leave. Can this employee still make a case for retaliation under the FMLA?…


Calling Your Boss a Nasty Motherf**ker is Protected Activity?

Posted on April 26, 2017 by Elaine I. Hogan

The Situation: An employee has a problem with the way he has been treated by a supervisor and decides to share his disdain for him on Facebook—calling the supervisor a “nasty motherf**ker” and also saying “F*ck his mother” and “f*ck his whole family!”  Is this not a proper basis for termination?…


Even if Staffing Company is Paying Employees, You Could be on the Hook for Unpaid Wages

Posted on April 19, 2017 by Elaine I. Hogan

The Situation: You go through a temporary staffing company for a certain group of employees and that company takes care of paying the employees. If the staffing company fails to properly pay these employees, what type of consequences could you face?…


Employee Wellness Program—Potential Risks Under ADA?

Posted on April 12, 2017 by Elaine I. Hogan

The Situation: You implement a voluntary employee wellness program which requires employees to undergo health risk assessments and complete a health history questionnaire.  One of the incentives is that employees who complete the health risk assessment are not required to pay their monthly premiums for single coverage health insurance.  An employee raises concerns about the confidentiality of her health information if she participates and the voluntariness of the program and ultimately decides not to. If that employee ends up being fired, could she make a claim under the ADA?…


Twelve Million Dollars to be Paid out by Restaurant Chain for Age Discrimination

Posted on April 5, 2017 by Elaine I. Hogan

The Situation: The EEOC took aim at Texas Roadhouse in 2011, claiming that the restaurant chain engaged in a pattern or practice of age discrimination by refusing to hire applicants over the age of 40. According to a press release issued by the EEOC, Texas Roadhouse has now agreed to pay a total of $12 million to an as-yet unidentified group of prospective employees, along with agreeing to take a number of corrective actions to ensure no further discrimination.…


Discrimination Based on Perceived Sexual Orientation??

Posted on March 29, 2017 by Elaine I. Hogan

The Situation: An employee claims that she was repeatedly harassed by her supervisor in ways seemingly related to her sexual orientation—frequently saying that she dressed like a lesbian and similar remarks. The employee is actually heterosexual and married to a man. But based on the supervisor’s conduct, other employees begin to actually think that the employee is gay and she begins to feel compelled to explain her sexual orientation. If the employee quits because of the alleged harassment, can she bring a claim under Title VII?…


Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim

Posted on March 22, 2017 by Elaine I. Hogan

The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…

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