Virginia Employer Law

Can You Claim Total Disability But Also Claim to be Qualified Under the ADA?

Posted on October 19, 2016 by Elaine I. Hogan

The Situation: An employee takes extended leave because of a medical condition.  After exhausting her FMLA leave, the employee asks for additional leave as an accommodation.  Because of the nature of her position and needs of the company, you cannot provide this accommodation and she is terminated.  The next day she files her application for disability benefits, claiming that she is temporarily totally disabled.  Can she claim to be a “qualified individual” under the ADA and bring a claim based on her termination?…


Requiring Transgender Employee to Use Gender-Neutral Bathroom Found to Violate Title VII

Posted on October 12, 2016 by Elaine I. Hogan

The Situation: An employee informs you that he is transgender and is in the process of transitioning to a man.  Based on concerns about other employees’ reactions, you inform him that he can no longer use the female restrooms, but also cannot use the male restrooms. Instead, he must only use the single occupancy gender-neutral restrooms.  Is this Title VII discrimination?…


Orioles Concession Stand Workers Exempt From Overtime

Posted on October 5, 2016 by Elaine I. Hogan

The Situation: Along with the more frequently discussed exemptions, the FLSA contains an exemption for employees of any amusement or recreational establishment, as long as the operations are seasonal.  But what exactly is an amusement or recreational establishment?…


21 States Challenge Changes to Overtime Rule

Posted on September 28, 2016 by Elaine I. Hogan

The Situation: As all employers are aware, in May 2016, the Department of Labor (“DOL”) announced the final rule related to overtime changes.  From many employers’ perspective, the biggest and most significant change is the dramatic increase in the minimum salary necessary for the executive, administrative and professional exemptions—from $23,660 per year to $47,476 per year.  Employers of varying sizes and types and in varying geographic regions have raised concerns about how this will affect their ongoing operations.…


Non-compete Agreement Void Based on Misclassification as Independent Contractor

Posted on September 22, 2016 by Elaine I. Hogan

The Situation: You bring someone on as an independent contractor—and as part of the agreement, he agrees to a non-competition provision. If it is determined that you really should have classified the worker as an employee, could that jeopardize the enforceability of the non-compete?…


Supervisor Faces Individual Liability Under the FMLA

Posted on September 14, 2016 by Elaine I. Hogan

The Situation: After an employee at a public agency takes a number of weeks of approved FMLA leave, a supervisor begins criticizing her performance harshly (and at times, unjustifiably).  The supervisor ends up giving her a written warning for engaging in conduct that is not generally even disciplined.  When the employee later makes another mistake and is terminated, she brings a number of claims, including a claim of FMLA interference and retaliation.  Not only does she assert claims against the employer, but also against the supervisor.  Can the supervisor be held individually liable?…


Retaliation According to the EEOC

Posted on September 7, 2016 by Elaine I. Hogan
Posted in Retaliation

The Situation: Retaliation claims continue to be a favorite of employees and are the most frequently alleged bases for discrimination.  Employers should be aware of the ever present risks of such claims.  So what is the EEOC’s take on what constitutes retaliation?…


Can’t I Do Something About These Unfounded Discrimination Claims?

Posted on August 31, 2016 by Elaine I. Hogan

The Situation: Your employee brings a claim of discrimination against your company which you believe is completely meritless. If you pursue a malicious prosecution charge against her, could you face a claim of retaliation?…


Don’t Tread on Me Flag Considered Racist?

Posted on August 24, 2016 by Elaine I. Hogan

The Situation: You have an employee that frequently wears a shirt displaying the “Don’t Tread on Me” (also known as the Gadsden flag).  Another employee complains of discrimination, claiming that this symbol is creating a hostile work environment.  Could this really be a claim?…


Half a Million Dollars for Pregnancy Discrimination Claim Against Chipotle

Posted on August 10, 2016 by Elaine I. Hogan

The Situation: One of your employees announces she is pregnant. Not long after, she complains that ever since she announced her pregnancy, her manager has been treating her differently, including not allowing her to take bathroom breaks. What sort of exposure do you have?…

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