Employment Counseling
No Facebook Password, No Job?
March 21st, 2012 by JBWK
In a growing trend, more employers are exceeding typical interview questions and getting into something more telling: Facebook. The USA Today reports on the surge. Instead of the traditional background-check process of asking for references, some employers are asking interviewees for their Facebook login and password on the spot. Others have required applicants to log on their […]
Discriminatory Severance Packages Under Title VII
March 17th, 2012 by JBWK
In a ruling of first impression, the Fourth Circuit held last week that providing discriminatory severance packages can create a cause of action under Title VII. In Gerner v. County of Chesterfield (opinion), the plaintiff, a former female employee, alleged the County offered her a severance package less-favorable than those offered to similarly situated males. The […]
7th Circuit Allows Class Action Claim Against Merrill Lynch
March 15th, 2012 by JBWK
In a significant employment class-action case following the Supreme Court’s Wal-Mart decision last year, the 7th Circuit has ruled that 700 black brokers at Merrill Lynch may proceed in a class against the bank. The opinion is available here. The plaintiffs claim that two of Merrill Lynch’s policies disparately impacted black brokers. At issue are the […]
Small Business Owner Personally Liable for Unpaid Wages
March 9th, 2012 by JBWK
In a striking example of failing to follow the ten rules in the post below, an Alexandria federal judge held the owner of a small flooring contractor personally liable for almost $90,000 in unpaid wages and overtime. In Jin v. Any Floors, Inc., the court held that the sole owner of the now-defunct corporation exercised enough control over […]
Wage and Hour Compliance for Small Businesses
March 8th, 2012 by JBWK
Wage & Hour Insights provides a list of 10 golden rules for wage and hour compliance for small businesses. While the list is simplistic and doesn’t account for all the law’s nuances, following it will prevent the majority of violations small businesses routinely commit: Pay the minimum wage Pay non-exempt employees overtime for more than […]
10th Circuit on Leave as Reasonable Accommodation
March 7th, 2012 by JBWK
The 10th Circuit Court of Appeals has weighed in on the hot-button issue of whether leave is a reasonable accommodation under the ADA. The EEOC has made this a major issue, arguing that additional leave beyond the FMLA-required twelve weeks may be required as a reasonable accommodation under the ADA. The 10th Circuit limited that […]
EEOC Provides Guidance on Employment of Disabled Veterans
March 4th, 2012 by JBWK
With the rapid changes in the ADA and evolving issues facing employers, the EEOC has provided a useful guidance document on the employment and reemployment of disabled veterans. It is available on the EEOC’s website, here. The guidance document discusses recent changes made under the ADA Amendments Act, as well as what is required–and what […]
Federal Court Upholds NLRB Posting Rule
March 3rd, 2012 by JBWK
A federal trial judge in Washington, D.C., has ruled that the NLRB has the authority to require employers to post the proposed poster informing employees of their right to organize under the National Labor Relations Act. The deadline for compliance has been pushed back several times, and is now scheduled to take effect April 30, […]
Being Rude to Everyone Is Not Discrimination
February 25th, 2012 by JBWK
A Richmond federal judge has granted an employer summary judgment in a sexual harassment case involving a public school principal in Colonial Heights. The general basis of the claim was that the new principal–who was hired to impose greater discipline and structure–was demanding, intimidating, and difficult to work with. There were two allegations of the […]
4th Circuit on Inability to Work Overtime Under ADA
February 18th, 2012 by JBWK
The 4th Circuit, in a published opinion last week, held that a former employee’s inability to work overtime did not “substantially limit” a major life activity as to give him protection under the ADA. The court held that the employee, who was released to work forty hours per week, but who could not work overtime, […]
Constitution Doesn’t Protect Town Employee’s Internal Complaints
February 18th, 2012 by JBWK
Following a broad ruling by the U.S. Supreme Court in 2006, a federal judge held last week that a Virginia town employee’s internal complaints to his supervisors were not constitutionally protected. The employee was the head of the town’s water and waste utilities department until he was fired. Over the course of several years, he […]
FMLA Doesn’t Apply to Overseas Worksites
February 9th, 2012 by JBWK
In a ruling of first impression, a federal trial judge in Alexandria this week held that the Family and Medical Leave Act does not apply to a U.S. citizen employed by a U.S. company performing services at the U.S. embassy in Baghdad, Iraq. The plaintiff, an employee of a State Department contractor, worked inside the […]
Expanded Definition of “Disabled” Under ADA
February 9th, 2012 by JBWK
A federal court decision in the Western District of Texas highlights the impact of the expanded definition of “disability” after the ADA Amendments Act. The ADAAA statutorily expanded the definition of who is “disabled” after it became difficult for plaintiffs to show they were disabled, cutting their cases off before trial. Congress instead wanted the […]
NLRB Issues New Summary of Social Media Cases
January 30th, 2012 by JBWK
In a follow up to its early memo summarizing social media cases, the NLRB Office of General Counsel has issued an updated report discussing its social media cases from the past year. It does not forge much new ground. The two big takeaways are still: (1) the need for narrowly tailored policies that don’t restrict […]
Internal Complaints Enough for Retaliation Suit Under FLSA
January 29th, 2012 by JBWK
In a case of first impression, the Fourth Circuit Court of Appeals held that an internal complaint about an employer’s failure to pay overtime could form the basis of a FLSA retaliation claim. In Minor v. Bostwick Laboratories, an employee complained to her company’s chief operating officer that employees were not being paid for overtime […]
EEOC Releases Draft Strategic Plan for Comment
January 20th, 2012 by JBWK
The EEOC has released a draft of its 2012-2016 Strategic Plan for public comment. The Plan, which sets out EEOC’s goals and initiatives for the next four years, is now open for comment. It focuses largely on systemic discrimination and a reduction of backlogged charges. Its focus is unsurprising, especially given the EEOC’s recent attention […]
Proof of Competition Not Required Under Trade Secrets Act
January 19th, 2012 by JBWK
The Virginia Supreme Court last week rejected the argument that an employer must prove that a former employee who took trade secrets to his current employer was actually in competition with the prior employer. The trial court dismissed the GSI’s (the former employer) claim against the employee, now employed by Boeing. GSI argued the employee […]
U.S. Supreme Court Upholds “Ministerial Exception” to Employment Discrimination Laws
January 13th, 2012 by JBWK
The U.S. Supreme Court has settled the so-called “ministerial exception” issue exempting religious organizations from federal antidiscrimination laws based on their hiring and firing of “ministers.” The Court held that a religious-school teacher, who was also a “minister” in the same denomination, could not maintain her lawsuit alleging she was fired in violation of the […]
No Word on Blue Pencil Decision
January 13th, 2012 by JBWK
Although, according to its normal schedule, the Virginia Supreme Court should have issued its long-awaited “blue pencil” decision last week, it didn’t. Employers have been waiting to see, first, if the Court will address the blue pencil issue, and, second, what its view will be. Blue pencil provisions allow a court to limit an employer/employee […]
Pepsi to Pay $3.13 Million for Improper Use of Criminal Records
January 13th, 2012 by JBWK
Pepsi will pay $3.13 million to settle charges of nationwide hiring discrimination based on its improper use of criminal background checks. It has also changed its employment and hiring policies. As readers know, the EEOC has recently indicated its interest in employers using criminal background checks to screen applicants. As we mentioned several months ago, […]
Federal Law Now Allows Hostile Work Environment Claim Under USERRA
January 7th, 2012 by JBWK
The Uniformed Services Employment and Reemployment Act of 1994 (USERRA) has long prohibited firing employees based on their military or reserve service. Although USERRA’s protection of servicemembers went above and beyond many federal employment laws, one thing was missing. Until the end of last year, employees had no cause of action for a hostile work […]
NLRB Delays Posting Rule…Again
January 7th, 2012 by JBWK
For the second time since its release last fall, the NLRB has delayed implementing the rule requiring employers to display posters informing employees of their organizing rights. Initially, the rule was to take effect November 14, 2011. It was delayed until January 31, 2012. Now, in the face of two lawsuits challenging its validity, the […]
Employment and Healthcare Named Two of 2012’s “Hottest” Areas of Law
December 18th, 2011 by JBWK
In a nod to what many employers already know, employment law and healthcare law have been named by Virginia Lawyer’s Weekly as two of the “hottest” areas of law for 2012. It cited healthcare’s growing regulatory complexity–and overlap with employee benefits and insurance–in addition to the uncertainty over the 2010 healthcare reform law’s future. Labor […]
Employees Cannot Be Fired for Refusing to Waive Future EEOC Claims
December 18th, 2011 by JBWK
A federal judge in Illinois has all but ruled in the EEOC’s favor in an ongoing dispute with a German-based chemical company that forced employees to give up their right to file future EEOC charges. The company, Cognis, required certain employees to sign “last chance agreements” as a condition of their continued employment. One provision […]
Tax Court Allows Corporate Whistleblower to Remain Anonymous
December 9th, 2011 by JBWK
In a thorough opinion released last week, the U.S. Tax Court ruled that a corporate whistleblower may remain anonymous to protect his professional reputation. The individual, a former corporate executive, alerted the IRS to potential tax fraud at his company. Although he has since left the company and joined another, he argued that disclosure of […]
EEOC Issues Informal Letter on High-School Diploma Requirements
December 6th, 2011 by JBWK
The EEOC released an informal letter dated November 17, 2011 answering a question posed regarding high-school diplomas as they relate to job requirements. The issue: if a job applicant was prevented from receiving a high-school diploma because of a condition that would qualify as a “disability” under the ADA, may an employer automatically exclude the […]
EEOC Announces Record-Setting Year
November 26th, 2011 by JBWK
The EEOC had a record-setting FY2011, which ended September 30, topping the number of charges received and money recovered in any previous year. The EEOC received 99,947 charges in FY2011 alone, nearly 275 every single day of the year. It recovered $364.6 million for victims of workplace harassment and discrimination, a pace of about $1 […]
Supreme Court to Decide FLSA Exemption Case
November 25th, 2011 by JBWK
The U.S. Supreme Court announced it will decide whether pharmaceutical sales reps are exempt from the FLSA’s overtime requirements. The case arose from the 9th Circuit, which determined the sales reps were, in fact, exempt. More importantly, however, the Supreme Court will also decide how much (if any) deference it will give to the Secretary […]
Why Employers Settle Sexual Harassment Claims
November 11th, 2011 by JBWK
With sexual harassment again revealing itself to be a hot political issue, CBS News explains why employers often settle sexual harassment claims, even those deemed meritless. The three biggies: Reputation damage to the company Legal costs of defending the case Indirect damage to the business’ bottom line (firing the harasser CEO) The (correct) bottom line: […]
New Chain-of-Custody Form for DOT Drug Testing
November 11th, 2011 by JBWK
For employers required to perform Department of Transportation drug and alcohol testing, a new Custody and Control Form for specimens is required on December 1, 2011. If you are a DOT-regulated employer and don’t have an updated drug and alcohol testing plan, you need one. If you do have one, but haven’t updated it in […]
Virginia Supreme Court Invalidates Overbroad Non-Compete
November 4th, 2011 by JBWK
In an opinion released today, the Virginia Supreme Court struck a non-compete agreement between a pest control company and an employee that prohibited the employee from working in any capacity for a competitor. In Home Paramount Pest Control Companies, Inc. v. Shaffer, the Court addressed only the so-called “function” prong of the analysis. Non-competes must be reasonable […]
Virginia Supreme Court Hears “Blue Pencil” Case
November 4th, 2011 by JBWK
The Virginia Supreme Court heard oral argument this week in the long-awaited case that will hopefully address the thorny “blue pencil” problem. “Blue pencil” provisions–common in non-compete agreements–basically say a judge can rewrite the parties’ non-compete agreement if the judge thinks it’s too broad to be enforceable as drafted. The Virginia Supreme Court has never […]
The Uniqueness of Title VII’s Religious Protection
November 1st, 2011 by JBWK
As paraphrased by a federal judge in Richmond: Title VII’s treatment of religion has been said to constitute a special category of discrimination. This is because the statute defines religion to include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an […]
EEOC and AT&T Settle Age Discrimination Suit
October 30th, 2011 by JBWK
While not particularly noteworthy in the fact that they settled the suit, the EEOC had alleged AT&T violated the law in its practice of refusing to consider for employment former AT&T employees who had opted to receive a voluntary early retirement package. Some employees voluntarily retired about ten years ago–and were barred by AT&T from […]
EEOC Issues Informal Guidance on Arrest and Conviction Records
October 29th, 2011 by JBWK
In an informal (and nonbinding) advisory opinion letter, the EEOC has shed some light on its views of employers using arrest and conviction records in making initial hiring decisions. Although it does not set forth any strict standards, and is not binding, it does contain some helpful guidance: When using automatic exclusions for criminal convictions, […]
Sexual Harassment Not Just Limited to Employees
October 20th, 2011 by JBWK
The EEOC announced that it has settled a sexual harassment case it filed against an employer in California. However, as opposed to the typical supervisor or coworker harasser, the harasser in this case was the employer’s landlord. Various female employees complained about the landlord’s harassment, but the employer made only a “superficial” investigation. The harassment […]
U.S. Supreme Court to Rule on Ministerial Exception to Discrimination Laws
October 16th, 2011 by JBWK
The Supreme Court heard oral arguments last week in an important case for religious organizations: how far the First Amendment-based “ministerial exception” extends to preempt federal employment discrimination laws. In its simplest form, the ministerial exception holds that the federal discrimination laws don’t apply to religious organizations in their employment decisions regarding religious positions. The […]
Expect Your Employees to Answer Their Cell Phones? Expect Workers’ Compensation Liability
October 14th, 2011 by JBWK
In a recent ruling from the Virginia Court of Appeals, where most workers’ compensation issues are finally decided, the Court held that an employee injured in a car accident after seeing her personal cell phone illuminate was entitled to workers’ compensation. The employee, a home hospice care nurse, was driving home from a mandatory training […]
Question about Wrongful Termination?
October 13th, 2011 by JBWK
The basic answer is: don’t worry about it; it nearly doesn’t exist. One of the most frequent issues terminated employees raise is that their termination was “wrongful.” In that, they typically mean they were terminated without a good reason, or for a bad reason. The most frequent answer that lawyers give them is that it […]
EEOC Sues Hotel Franchise for Discrimination Against Whites
October 9th, 2011 by JBWK
In an uncommon lawsuit, the EEOC has alleged that a hotel franchise in Colorado illegally discriminated against employees and applicants based on their race: white. The employer, according to the EEOC, subscribed to a stereotype that non-Hispanics are “indolent” and therefore discriminated against them in making employment decisions. While it’s a fairly atypical lawsuit for […]
NLRB Pushes Back Posting Requirement
October 6th, 2011 by JBWK
The NLRB, which recently implemented a rule requiring employers under its jurisdiction to post 11×17 employee-rights notices, has pushed back the required posting date to January 31, 2012. It was originally scheduled to take effect this November. According to the NLRB, it did so to address issues relating to which employers fall under the NLRB’s […]
Defamation Based on “Allegations”
September 30th, 2011 by JBWK
In an interesting opinion released this week from the Eastern District of Virginia, the court held that an employer’s statement that a former employee/financial advisor was discharged “after allegations were made that accused him of” violating investment-related statutes or rules was not defamatory. Wells Fargo Advisors, LLC filed a required response to a securities-industry employee-termination questionnaire. […]
A Letter No Employer Wants to Write–Ever
September 27th, 2011 by JBWK
When the EEOC settled a disability discrimination case on behalf of a now-deceased employee, Anne Whitledge, who died from brain cancer, it didn’t just get her family money. The settlement included the typical money damages ($160,000 going to her estate), employer discrimination training, and injunctive relief prohibiting discrimination. The unconventional part: the EEOC required the […]
9th Circuit Overturns Class-Action Certification Based on Wal-Mart Case
September 27th, 2011 by JBWK
The 9th Circuit last week overturned a class-action certification of certain female employees of the wholesaler Costco, relying on the recent U.S. Supreme Court decision Wal-Mart, Inc. v. Dukes. The Wal-Mart case, followed by the 9th Circuit Costco case, denied class-action status to broad swaths of female employees who alleged a systematic, nationwide culture of bias […]
IRS Launches Settlement Program for Misclassified Workers
September 24th, 2011 by JBWK
After announcing a new information-sharing plan to crack down on misclassified workers (employees who are labeled independent contractors), the IRS has now made details public about a voluntary settlement program for employers with misclassified workers. The employers must satisfy certain criteria: they must have consistently treated their workers as independent contractors; they must have filed […]
Equal Pay Act and the EEOC
September 23rd, 2011 by JBWK
The EEOC has sued a Texas agency for violating the Equal Pay Act, a lesser-used, but potentially costly, federal discrimination statute, alleging it routinely paid women less than men who occupied similar positions. The EEOC received only 1,044 Equal Pay Act claims in 2010, a small portion of the 99,922 overall discrimination claims it received […]
Employee vs. Independent Contractor Crackdown
September 20th, 2011 by JBWK
The IRS, DOL, and various state agencies announced that they have entered a series of information-sharing agreements in their joint efforts to crack down on misclassification of workers as independent contractors. Employers will sometimes use the independent contractor (mis)classification to avoid paying employer-side payroll taxes and subjecting themselves to employment laws that don’t apply outside […]
Unemployment Discrimination?
September 17th, 2011 by JBWK
Along with a number of other employment-related provisions, the proposed American Jobs Act President Obama has presented contains an important provision quickly becoming a hot-button issue: discriminating against the unemployed. The American Jobs Act, in its current form, would prohibit employers from excluding applicants who are presently unemployed. One state, New Jersey, has banned the […]
Beware of OSHA…
September 16th, 2011 by JBWK
…but not because they’re inspecting your plant for safety violations. OSHA has recently fined two employers (on the order of hundreds of thousands of dollars) and ordered the reinstatement of fired whistleblowers after OSHA found the companies violated Sarbanes-Oxley’s whistleblower protection provisions. Whistleblowers have had a notoriously difficult time prevailing under Sarbanes-Oxley’s protections, winning only […]
4th Circuit Tosses Claim for Religious Harassment and Retaliation
September 15th, 2011 by JBWK
In an important ruling this week, the 4th Circuit held that Title VII, when applied to “religious organizations”, not only allow religious-based discrimination in hiring and firing decisions, but also essentially allows religious-based harassment and retaliation. The plaintiff, a former nurse at a Catholic assisted living facility, claimed she was harassed, fired, and retaliated against […]