Diamonds are for-never? Norfolk jury awards $379,000 verdict against fraudulent jeweler.

November 8th, 2016 by JBWK

Submitted by Attorney Charles Patrick Tench On September 15, 2016, the jury in the cases of Bosun Hau v. Intercarats, LLC and Shashank Kamdar and Ming Fang v. Intercarats, LLC and Shashank Kamdar entered a substantial verdict of $379,000 against the Defendants for violations of the Virginia Consumer Protection Act (VCPA), breach of contract and […]

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Pokemon Go – Searching Has Limits!

August 25th, 2016 by JBWK

Submitted by Richard B. Donaldson, Jr. The wildly popular Pokemon Go game is creating opportunities for gamers to run afoul of trespassing laws.  Instances of game players entering private property in search of the next Pokemon capture are increasing.  While the object of the game is to have fun and get players outside in search […]

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“Roll the video tape . . . If we haven’t deleted it yet”

April 22nd, 2016 by JBWK

Submitted by Attorney Charles P. Tench Virginia Federal Court Denies Summary Judgment When Employer Deleted Video of Workplace Incident A Litigation Hold Letter is a written notice to preserve documents and other electronically stored information (“ESI”) in anticipation that a lawsuit will be filed. Its purpose is to make record custodians preserve relevant evidence so […]

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Employer Violated NLRA By Firing Employee For Discussing Salaries

February 20th, 2013 by JBWK

A Texas engineering firm landed itself in hot water with the National Labor Relations Board after firing an employee for discussing salaries with her co-workers. The Administrative Law Judge’s decision, which the NLRB affirmed, ruled that the employer’s policy prohibiting employees from discussing wages with their co-workers violated employees’ rights to discuss their working conditions […]

You Can Take It With You When You Go

February 8th, 2013 by JBWK

Your list of Twitter followers, that is. New York Times editor Jim Roberts, who had a list of more than 75,000 Twitter followers, announced he was taking them with him upon his early-retirement buyout. While he’ll likely have to change his handle to remove the NYT reference, he’s apparently free to keep his followers. CBS […]

Federal Court Dismisses EEOC’s Credit-Check Discrimination Case

February 6th, 2013 by JBWK

An Ohio federal court dealt the EEOC a major blow by dismissing its case against Kaplan Higher Education last week. The case had been the most notable one so far advancing the EEOC’s theory of “disparate impact” discrimination based on Kaplan’s use of credit reports in hiring. The court found largely technical problems with the […]

EEOC Claims Steady, Litigation Slows

January 31st, 2013 by JBWK

The EEOC released claims and litigation data for its most recent year. The result: discriminations charges trended slightly lower, while litigation nose-dived. The agency fielded nearly 100,000 complaints for retaliation and discrimination. The number was down slightly from 2011. However, the EEOC only filed 122 lawsuits during the same time, less than haf the 2011 […]

NLRB Challenges Begin

January 31st, 2013 by JBWK

After the D.C. Circuit Court of Appeals’ surprising ruling last week, several aggrieved employers have argued that NLRB decisions against them are invalid. At least two employers cited the D.C. Circuit case this week in filings with other federal appeals courts. As it’s been over a year since the NLRB started issuing arguably invalid decisions, […]

Obama NLRB Appointments Unconstitutional

January 26th, 2013 by JBWK

In a surprisising opinion released Friday, the federal D.C. Circuit Court of Appeals ruled that three of President Obama’s appointments to the National Labor Relations Board violated the Constitution. The appeals court held that Obama made the recess appointments when Congress wasn’t actually in “recess.” The ruling creates a potentially messy situation, effectively invalidating every […]

Fired Teacher Sues Claiming Fear of Kids

January 17th, 2013 by JBWK

In other Ohio news this week, a fired teacher has sued her former school district for violating the Americans with Disabilities Act based on her fear of children. The teacher, who taught high-school Spanish and French, was transferred to a middle school after the school district revamped the curriculum. She claimed the transfer, and general […]

Veganism as Religion?

January 17th, 2013 by JBWK

It’s possible, according to a federal court in Ohio. A nurse in Ohio claimed her sincerely held belief in veganism justified her refusal of a flu vaccine her employer, a hospital, required of all employees. She was fired after refusing the vaccine, which contains animal by-product. The lawsuit claims her firing violated Title VII based […]

A Friendly Office Party Reminder

November 30th, 2012 by JBWK

As Christmas approaches and holiday parties are in full swing, remember one vital issue about the office party: the rules still apply. One New York employer found that out the hard way, and is now facing a lawsuit from an employee who complained to management about sexual harassment during the 2008 and 2009 Christmas parties, and […]

Pregnancy Protection Heats Up

November 30th, 2012 by JBWK

Although pregnancy occupies an odd middle ground in employment discrimination, the EEOC is trying to ramp up protections for pregnant workers. Currently, employers are only required to treat pregnant workers the same as they treat other employees with temporary injuries, such as a broken leg. They have no obligation to provide reasonable accommodations for pregnancy […]

One Way to Lose

November 15th, 2012 by JBWK

File this one under “people who should have known better.” An employee who sued his company for discrimination had his claim dismissed and is now on the hook for paying the company’s attorneys’ fees. The employee, a computer expert by trade, first planned on suing his employer in 2009. After being told he had to […]

Court Allows Individual Liability for Wrongful Discharge

November 14th, 2012 by JBWK

The Virginia Supreme Court last week broke some new ground in answering a question from the Fourth Circuit Court of Appeals: can a manager or supervisor be personally liable for wrongful termination? Typically, wrongful termination cases are very limited in scope, only allowing a claim where the firing violated a fundamental public policy. The decision […]

Obama’s Next Four Years (In Employment Law)

November 8th, 2012 by JBWK

With the unsurprising reelection of President Obama, what major shifts in employment law will we see? Here’s one guess, from the Proactive Employer: Paycheck Fairness Act, which puts the burden on employers to explain gender-based pay gaps, will be revitalized Federal contractors’ compensation practices will be scrutinized The government will press for more contractors to […]

Lists You Shouldn’t Make

November 1st, 2012 by JBWK

A federal court from the Western District of Virginia was presented with an interesting piece of evidence: an employer-compiled list of “non-asset” employees. The employer–now a defendant in a disability-discrimination lawsuit–drafted the list of 14 “non-asset” employees it deemed were underperformers. A (now former) employee–a diabetic who was fired–claimed the list included only older workers […]

Magic Johnson Fires 7-Minute-Late Flight Attendant

November 1st, 2012 by JBWK

ABC News reports that Magic Johnson’s former flight attendant on his private jet sued him alleging a host of employment violations. She claims that her firing–for showing up 7 minutes late after being stuck at a deli trying to find two specific types of turkey Magic Johnson required on his plane–was a pretext for age […]

EEOC Addresses Domestic Violence and Title VII

October 31st, 2012 by JBWK

In a recent fact sheet, the EEOC discussed a set of questions that seem odd at first glance, and illustrate a broad trend of its expanding focus. The agency, which has recently addressed employees’ and applicants’ credit reports, high school education (or lack thereof), sexual orientation, and arrest history, is now shifting gears yet again. This […]

Former Employee vs. Small Business

October 25th, 2012 by JBWK

Bloomberg’s Businessweek offers some sound advice for small business owners facing legal threats by former employees. First, from a business owner, the delightful description of being on the receiving end of those threats: For anybody who goes through the blood, sweat, and tears of starting a business, when someone comes along with an attorney whose […]

The Ultimate Hostile Work Environment?

October 18th, 2012 by JBWK

The EEOC reports that a federal judge in Utah was so overwhelmed in a recent case by a construction company’s hostility toward African-American employees that he didn’t even give the company a chance to defend itself. Typically, employers can defend themselves by showing they had reasonable policies that employees failed to follow in reporting harassment […]

Past Year’s Top 25 Employment Law Cases

October 17th, 2012 by JBWK

It’s no secret that employment law claims can add up, but just how high? One group tried to find out, and ended up compiling the 25 most expensive employment-law settlements and verdicts over the past twelve months. The ultimate verdict? Be very careful how you treat your employees. Mercy General Hospital (Sacramento, CA) will pay […]

Who Owns Employees’ Social Media Accounts?

October 11th, 2012 by JBWK

In an interesting case in Pennsylvania, a federal court is testing how far an employer’s control over its employees’ social-media accounts can go within legal limits. In the case, the employer made its employees set up LinkedIn accounts using their company email addresses and giving the employer their password. The LinkedIn pages all followed a […]

A Warning for Healthcare Employers

October 6th, 2012 by JBWK

An interesting charge from the EEOC came out of Wisconsin last week. The agency filed a lawsuit alleging a hospital system had a practice of reviewing applicant’s records on file with the hospital in connection with extending job offers. The applicant in the recently filed suit had her job offer rescinded after the hospital reviewed […]

Supreme Court to Hear Employment Cases

October 3rd, 2012 by JBWK

The Supreme Court’s 2012-2013 terms opened this week, and it already has several employment law cases on the docket. It will rule on who may be a “supervisor” under Title VII and whether a collective FLSA claim can continue after the named plaintiff has settled, as well as further clarify how class-action claims are analyzed. […]

Fuzzy Math: How 93=89 in the 4th Circuit

September 30th, 2012 by JBWK

In an interesting reversal by the Fourth Circuit, a pro se plaintiff gets to move forward with his race and age discrimination claims. The plaintiff filed an EEOC charge and received a right-to-sue letter, a prerequisite to filing a lawsuit. Plaintiffs have 90 days from the date they receive the right-to-sue letter to file a […]

Walk the Walk

September 20th, 2012 by JBWK

Because according to one federal appeals court, simply talking the talk isn’t enough to avoid $3.5 million in punitive damages. In a hostile work environment case, the Seventh Circuit said Chrysler was so relaxed in its response to three years of severe harassment that punitive damages were warranted. It took few concrete steps to actually […]

IRS Awards Whistleblower $104 Million

September 14th, 2012 by JBWK

In the largest tax whistleblower payout ever, the IRS awarded a former UBS employee $104,000,000 for helping uncover the bank’s illegal role in helping U.S. citizens evade taxes. He was just released from more than two years in prison for his role in the scheme. The investigation he triggered resulted in UBS paying $780 million […]

NLRB Dings Employer…Again

September 14th, 2012 by JBWK

This time it’s Costco. One of its policies read: Statements posted electronically…that damage the company, defame any individual, or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement may be subject to discipline, up to and including termination of employment. The NLRB said the policy was too broad, and that […]

The FMLA and Overtime Damages

September 7th, 2012 by JBWK

A helpful reminder in valuing backpay under the FMLA: Don’t forget overtime. A recent federal appeals court ruled that a former employee–who was fired in violation of the Family and Medical Leave Act–could recover overtime wages as part of his remedy. The trial court allowed an average of 6.5 hours of overtime per week for […]

“Indefinite Reprieve” Is Not a Reasonable Accommodation

September 6th, 2012 by JBWK

Coming on the heels of the EEOC’s insistence that post-FMLA leave can be a reasonable accommodation under the ADA, one federal appeals court has provided some relief for confused employers. The Tenth Circuit Court of Appeals ruled last week that a post-FMLA “indefinite reprieve” from work is not reasonable. The court ruled that the employee […]

The NFL’s Biggest Threat?

September 2nd, 2012 by JBWK

Players’ Union talks? Bounty programs for hard-hitting players? Cheating scandals? How about workers’ comp? Via ESPN, former players seeking workers’ comp are forcing teams to foot massive insurance bills and defend mounting lawsuits. A growing class of former players claims anything from career-ending hits to cumulative brain trauma entitles them to workers’ comp benefits, often […]

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 […]

Facebook “Like” Ruling Appealed

August 14th, 2012 by JBWK

After generating nationwide debate over the First Amendment implications of a Newport News Federal District Court’s ruling that an employee “liking” a Facebook post is not protected speech, the Fourth Circuit Court of Appeals will now hear the issue. A few months back, the federal judge ruled that employees fired after “liking” a Facebook post […]

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 […]

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!) […]

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 […]

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 […]

$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 […]

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.). […]

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 […]