Employment Counseling

Employee Fired for 50-Year-Old Prank

August 29th, 2012 by JBWK

Richard Eggers’ story is making internet rounds as a lesson in unintended consequences. Wells Fargo fired him from his customer-service job of seven years because of his criminal conviction. The bank cited new Dodd-Frank banking legislation that imposes tougher rules on banks hiring employees with checkered pasts. His crime: using a cardboard cutout of a […]

Are Your Interns Really Interns?

August 26th, 2012 by JBWK

Over at Forbes, a useful piece on determining whether your interns are really interns–or whether you need to cough up minimum wage for all of them. While there’s a six-factor test to determine whether interns are truly interns–and therefore unpaid–the bottom line is this: do you use interns to perform productive work that eliminates the […]

Telecommuting as a Reasonable Accommodation

August 25th, 2012 by JBWK

Although federal courts in Virginia typically find an employee’s physical presence at work to be an essential job function under the ADA, there are some instances where it’s not. Enter telecommuting as a reasonable accommodation. A federal court in Ohio highlighted this recently, ruling that a county must consider telecommuting as a reasonable accommodation on […]

And Now the EEOC?

August 22nd, 2012 by JBWK

We reported last week that the National Labor Relations Board struck down an employer’s policy asking employees not to discuss pending investigations. Now, the Equal Employment Opportunity Commission seems to be heading down the same road. The EEOC’s Buffalo field office recently notified an employer that it “flagrantly” violated Title VII by adopting a policy […]

Firing Employees on FMLA Leave

August 19th, 2012 by JBWK

You might bring unwanted trouble on yourself, but you can do it. In a recent example, the Third Circuit Court of Appeals ruled that an employer legally fired an employee who abused her FMLA leave. The employee claimed she couldn’t work at all, but continued working at her part-time job from home while on FMLA […]

NLRB’s Reach Expanding Yet Again?

August 14th, 2012 by JBWK

The NLRB has been extremely busy lately, dealing with posting of unionization rights, social media policies, at-will employment, and now confidentiality of internal investigations. In a July ruling, the NLRB held that an employer’s practice of asking employees not to discuss ongoing, internal investigations with other employees violated the National Labor Relations Act. The employer […]

No Individual Enforcement of FLSA Lactation Breaks

July 24th, 2012 by JBWK

A federal court in Iowa ruled that there is no private right of action for an employer’s denial of an employee’s rights under the Patient Protection and Affordable Care Act (PPACA) amendment to the Fair Labor Standards Act (FLSA).  This amendment requires employers to provide employees who are nursing mothers reasonable break time and a private location to […]

Careful With Those Emails

July 20th, 2012 by JBWK

Email is a great way to connect easily, but it’s also a great way to find out everything you have said. And if you don’t want someone else reading it, you probably shouldn’t be writing it. Case in point: a recent age discrimination and FMLA case from a federal trial court in Roanoke. Before firing […]

Buying a Business? Don’t Forget a Noncompete

July 19th, 2012 by JBWK

Employers typically think of noncompete agreements for their current or prospective employees. But if you’re considering buying a business (whether from a current partner or competitor, or from a retiring owner), don’t forget they should have noncompetes, too. You don’t want to buy out a direct competitor only to have him set up shop down […]

Social Media and the Law Explained

July 19th, 2012 by JBWK

Still confused about social media and the law? Don’t understand why the National Labor Relations Board cares about your company’s Facebook policy? Can’t seem to draft a valid social media policy? That’s okay, most people are in the same boat. There’s some more help, though. A useful explanation of why social media policies matter, and […]

When Are Your Employees No Longer Your Employees?

July 14th, 2012 by JBWK

Mitt Romney has been catching flack lately after Securities and Exchange Commission filings showed he remained the “CEO, Chairman, and sole shareholder” of a private equity firm three years after he claimed to have quit. He defended the records by saying he wasn’t involved in the decisionmaking during those three years and retired “retroactively.” His […]

Seven Steps to Avoid Employment Claims

July 10th, 2012 by JBWK

As any human resources representative or small business owner knows, employment law claims–even frivolous ones–can be a big burden. Anyone looking to be proactive in avoiding them should read this simple primer for several effective ways to reduce employment claims and lawsuits. While these techniques themselves pose some burdens, they are much easier (and cheaper!) […]

HIV/AIDS and the ADA

July 8th, 2012 by JBWK

In another bit of useful guidance, the Department of Justice has released a fact sheet containing frequently asked questions regarding HIV/AIDS and the Americans with Disabilities Act (available here). It contains several very helpful questions and answers for employers, such as: Can an employer consider health and safety when deciding whether to hire an applicant […]

DOL Publishes FMLA Guide

July 6th, 2012 by JBWK

The Department of Labor published a 20-page booklet (available for download here) with a basic primer on Family and Medical Leave Act questions. It’s primarily directed toward employees, but contains information small employers will find useful as well, including who can use FMLA leave, when they can use it, reinstatement rights, medical certifications, and several […]

Certain Government Employees Can Now Keep Guns in Cars

July 5th, 2012 by JBWK

Effective July 1, 2012, localities must now allow employees to keep guns and ammunition locked in their cars on workplace property. While private-sector employers can restrict all gun possession on their property, including their parking lots, governmental employers are subject to different rules under the U.S. and Virginia Constitutions. In Virginia, they may only restrict […]

10 Rules for Social Media Background Checks

July 1st, 2012 by JBWK

With employers’ broad use of social media as a background check on applicants becoming a hot-button issue, it’s imperative to make sure you’re doing it right. To help, there is a useful guide outlining ten guidelines employers should follow when conducting these social media searches. While there is more detail on each at the link, […]

HR Rep Personally Liable for Retaliation

July 1st, 2012 by JBWK

Using a post-Civil War statute, a federal appeals court held a human resources representative and a mid-level manager could be personally liable for race-based retaliation against a former employee. The case involved an employee at a chemical plant who complained of racial harassment over the course of several years. His supervisor and the plant’s HR […]

Supreme Court Says Pharmaceutical Sales Exempt from FLSA

June 24th, 2012 by JBWK

The Supreme Court this week released an opinion ruling that pharmaceutical sales reps are exempt from the overtime requirements of the FLSA because they are “outside salesmen.” The ruling, though, is more significant because it rejected the Department of Labor’s interpretation of the exemption. The DOL tried to present a very narrow definition of “sales” […]

Judge Rejects Emotional Distress Claim

June 22nd, 2012 by JBWK

In an opinion released earlier this month, a federal judge in Alexandria rejected a sweeping set of claims by a terminated employee. After allegedly being fired for reporting his boss’s sexual harassment of other employees, the plaintiff sued for Title VII violations, intentional infliction of emotional distress, breach of contract, and wrongful termination. Highlighting the […]

EEOC Sues for Religious Discrimination in Hiring

June 15th, 2012 by JBWK

The EEOC filed a lawsuit against Voss Lighting, a national lighting company, alleging that it refused to hire an applicant because he wasn’t a Christian. The company, whose website says its mission is “to sell….to tell” the gospel is now facing scrutiny in the face of charges it refused to hire a non-Christian for an […]

AG Affirms Firearm Ban

June 15th, 2012 by JBWK

In a recently issued opinion, Virginia’s Attorney General reaffirmed that private employers may prohibit firearms on company property. The opinion, which largely discussed the recent statutory amendment allowing people to keep loaded guns in their cars, noted that the law still allows private employers to restrict or prohibit firearms on the employer’s private property. Employers […]

$25 Million Verdict in Racial Harassment Case

June 14th, 2012 by JBWK

In a startling case in New York, ArcelorMittal Steel wound up with a $25 million judgment against it based on harassment of an African-American employee in the company’s Pennsylvania plant. With most of the judgment coming from punitive damages, the case involved only one plaintiff, who was subjected to ongoing racial harassment over the course […]

Time for a Minimum Wage Increase?

June 10th, 2012 by JBWK

In more employment-related legislation, the House of Representatives is considering a bill to raise the federal minimum wage to $10.00 per hour. It would change every year based on the Consumer Price Index. It would also increase the minimum wage for tipped employees to 70% of the normal minimum wage, or $7.00 per hour if […]

Paycheck Fairness Act Tossed

June 10th, 2012 by JBWK

The Senate failed to bring the so-called Paycheck Fairness Act to a vote–not unexpectedly–in what’s been largely seen as an election-year political maneuver. In basic terms, the bill would shift the burden to the employer to prove gender disparities in wages were based on a legitimate business justification besides discrimination (such as seniority, education, etc.). […]

Helpful Reminder on Wage Deductions

June 9th, 2012 by JBWK

At Wage & Hour Insight, a helpful guide on how to recover money from employees without violating the Fair Labor Standards Act. The bottom line for the FLSA is that employees must generally receive free and clear the minimum wage for their hours worked. Obviously, certain deductions like payroll taxes may be made, but others […]

NLRB Issues Third Social Media Memo

June 1st, 2012 by JBWK

The National Labor Relations Board’s Acting General Counsel has released another summary of recent social media cases. The latest summary includes seven cases, six of which resulted in the NLRB finding at least part of the employers’ policies unlawful. It did, however, clear the seventh in its entirety. It also helpfully included the entire seventh […]

EEOC Charges by State

May 23rd, 2012 by JBWK

The EEOC has released a chart breaking down the number and types of EEOC charges by state. So how does Virginia stack up? It had a total of 3,181 charges filed last year, putting it in 10th place overall. Virginia has about 2.6% of the total U.S. population, but had about 3.2% of the overall […]

Don’t Forget About Taxes

May 23rd, 2012 by JBWK

Taxes are often overlooked when settling employment claims, but they can play a crucial role. When a former employee collects back pay as part of a legal settlement, for instance, those payments are still considered wages subject to withholding and payroll taxes. The tax treatment of employment-related lawsuits and settlements is complicated. Tax treatment depends […]

Employees Talking and Driving Pose Risk to Companies

May 21st, 2012 by JBWK

In what may be a fairly obvious connection, the Washington Post reports that employees who cause car crashes while on the clock–and on their cell phones–are a huge potential liability to employers. The Post notes that juries have awarded over $20 million in some cases–paid by the employer, not the employee-driver. In response, a growing list of […]

Public-Company CFO Fired for Social Media Posts

May 18th, 2012 by JBWK

In a move he probably regrets, Gene Morphis, the now-former CFO of Francesca Holdings, Inc., was fired for his Facebook and Twitter postings about the company. The ex-CFO, reports the Wall Street Journal, posted online about board meetings, earnings calls, and investor presentations in violation of the company’s social-media policies. The company said it terminated […]

Federal Judge Denies FLSA Settlement

May 17th, 2012 by JBWK

The Fair Labor Standards Act is one the most complex federal employment laws–and no doubt one of the most violated. However, it’s also unique in that any settlement of a FLSA lawsuit must be approved by the court or the Department of Labor. And that’s not as easy as it may seem. An Alexandria federal […]

Identifying Trade Secrets in Litigation

May 13th, 2012 by JBWK

In an interesting New York case, a trial judge has ordered the plaintiff in a trade secrets case to disclose in discovery to the corporate defendant the precise trade secrets it accuses a former employee of stealing. The plaintiff, a financial company, accused a former employee of stealing crucial pieces of computer code and using […]

The IRS Wants Answers

May 11th, 2012 by JBWK

On how to deal with the various PPACA issues it’s required to address within the next two years. The IRS issued requests for comments on several aspects of the PPACA, whose future is uncertain in light of litigation pending before the U.S. Supreme Court. The IRS is continuing to draft regulations and request comments on […]

Blue Penciling (Again)

May 9th, 2012 by JBWK

After the long-awaited blue penciling case was withdrawn from the Virginia Supreme Court’s docket, it may be some time before there’s another clear indicator of the official view on the practice. But a federal judge in the Eastern District of Virginia has ruled that blue penciling is not so egregious as to violate Virginia “public […]

EEOC Forced to Divulge Hiring Practices

May 6th, 2012 by JBWK

The EEOC, which has taken an aggressive stance on employers’ use of background checks, is now being forced to divulge how it uses background checks on its own applicants and employees. But it’s not Congress requesting the information; it’s a defendant in a discrimination lawsuit. The quick backstory: The EEOC sued Kaplan Higher Education alleging […]

Grooming Standards v. Religious Beliefs

May 5th, 2012 by JBWK

Religious accommodation is one of the thorniest areas of Title VII, causing near-constant confusion. A recent EEOC settlement, however, helps to highlight a good example of what not to do. A North Carolina company operating Taco Bell franchises settled an EEOC charge based on its treatment of a Nazirite employee. He had not cut his hair […]

The Perils of Facebook

May 2nd, 2012 by JBWK

In an interesting decision last week, a federal judge in the Eastern District of Virginia held that a public employee’s “like” of a Facebook page was not First Amendment-protected speech. The court held the employees’ First Amendment rights were not violated after they were allegedly terminated as a result of their election-related activities in support […]

Rethinking Unpaid Summer Interns

April 29th, 2012 by JBWK

The college year is soon ending, and many students will become unpaid interns for the summer. But, regardless of the industry, employers need to be careful if they simply assume they don’t have to pay them. The Department of Labor has set out a six-part test to determine whether interns must be paid. But the […]

EEOC Issues Guidance on Criminal Background Checks

April 26th, 2012 by JBWK

As we’ve mentioned before, the EEOC has increasingly focused on employers’ use of arrest and conviction records in making hiring decisions. Now, the EEOC has issued formal guidance on the topic. The entire document is available here. Nothing seems to have changed substantively from the EEOC’s previous guidance letters. Its main concerns are (1) treating […]

EEOC Ruling Protects Transgender Employees

April 25th, 2012 by JBWK

In a ruling issued this week, the EEOC held that Title VII protects transgender employees and applicants under its rules barring discrimination based on sex or gender. It is the first time the EEOC has held Title VII’s protections extend to transgender individuals. The ruling is available here (pdf). Before the ruling, only a handful […]

“Blue Penciling” Case Was Withdrawn from Court

April 20th, 2012 by JBWK

The long-awaited case pending in the Virginia Supreme Court on “blue penciling” was withdrawn from the Court’s docket on December 15, 2011, less than a month after oral argument. “Blue penciling” refers to a provision in a noncompetition agreement that allows a court to limit the scope of a noncompete to make it enforceable. Several […]

NLRB Posting Rule Officially Postponed

April 19th, 2012 by JBWK

After one federal court upholding the NLRB posting requirement, and another striking it down, the federal D.C. Circuit Court of Appeals has now issued an emergency injunction postponing the rule’s implementation. The injunction indefinitely delays the posting rule, which was scheduled to take effect April 30. As of now, employers do not have to comply with […]

Maryland First State to Ban Facebook Login Requests

April 14th, 2012 by JBWK

After gathering national attention for the past few weeks, Maryland has become the first state to specifically prohibit the practice of requesting employees’ and applicants’ Facebook login information. The new law, effective October 1, 2012, prohibits employers from requesting or requiring that employees or applicants provide access information to any personal electronic accounts. It also […]

NLRB Posting Rule Delayed Again?

April 13th, 2012 by JBWK

After being proposed and delayed several times, there is now further uncertainty over whether the National Labor Relations Board may require employers to display posters about employees’ organizational rights. After being upheld by one federal court in Washington, D.C. earlier this year, a South Carolina federal court has now ruled that the NLRB exceeded its […]

On High-School-Education Discrimination

April 8th, 2012 by JBWK

As we’ve noted before, the EEOC has provided guidance on when it is–and isn’t–appropriate for employers to require a high-school diploma for a job. After causing a stir with its informal letter last fall, the EEOC followed up with a Q&A aimed at clarifying its guidance. The questions and answers, which will hopefully clear up […]

On Orange-Shirt Discrimination

April 7th, 2012 by JBWK

In another interesting discrimination scenario, a Florida law firm is facing national scrutiny for firing a group of 14 workers for….wearing orange shirts. The firm thought the employees–who wore the orange shirts to match for their post-work happy hour–were involved in some sort of mass protest. They were all gathered and summarily fired, according to […]

On Obesity Discrimination

April 4th, 2012 by JBWK

CBS MoneyWatch flagged an interesting issue that is beginning to surface quite often: Is it OK to discriminate against obese people? It tells the story of the Victoria Hospital system in Texas, which instituted a new policy of refusing to hire anyone with a Body Mass Index (BMI) exceeding 35. It provides some perspective: the […]

Facebook Access Draws Congressional Heat

April 2nd, 2012 by JBWK

After gaining national attention (which we covered here) two U.S. Senators are requesting that the EEOC and the Justice Department investigate whether employers requesting applicants’ Facebook credentials violates federal law. Senators Blumenthal and Schumer sent letters to the DOJ and EEOC asking them to investigate whether the access requests violate the federal Stored Communications Act or […]

Federal Court Orders Arbitration

March 27th, 2012 by JBWK

In a ruling released this week, a federal trial judge in Richmond has ordered the parties to an ADA lawsuit to binding arbitration and dismissed the suit. When the plaintiff was hired, she signed an employment application agreeing to binding arbitration of any and all claims related to her employment. The application also required the […]

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 […]