Employment Counseling

Can a Criminal Record Prevent You from Being Licensed Professionally in Virginia?

July 10th, 2017 by JBWK

Submitted by Matthew D. Meadows It begins with a dream. You want to start a trade, business, or practice in order to earn a better life for you and your family. You know Virginia is a great place to work and thrive, potentially allowing you to provide for yourself, your home, and your community for […]

Reading At-Will: Employee Handbook Terms

March 7th, 2017 by JBWK

Submitted by Katharine J. Westfall Employees in the Commonwealth of Virginia are generally presumed to be employed at-will, unless it can be proven otherwise, such as by a written contract for a definite duration or evidence of some specific promise by their employer.  In short, the at-will employment doctrine provides that either the employer or […]

EDVA Says Employee with Disability Not Entitled to Special Preference in Reassignment

January 26th, 2017 by JBWK

Submitted by Elizabeth S. Olcott, Esq. Contrary to guidance from the Equal Employment Opportunity Commission (“EEOC”) and rulings of some other courts, the Eastern District of Virginia (“EDVA”) held in November that the Americans with Disabilities Act (“ADA”) does not require an employer to give special preference to an employee with a disability that seeks […]

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Right to Work and Employment at Will: Two Doctrines with Different Meanings

December 17th, 2016 by JBWK

Submitted by Robyn H. Hansen I often hear the comment “Virginia is a right to work state, and therefore, my employer can fire me at any time.”  The premise is correct but the conclusion has nothing to do with the Right to Work. The Right to Work refers to the right of an employee to […]

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Federal Contractors Paid Sick Leave Requirement – January 1, 2017

December 2nd, 2016 by JBWK

Submitted by Attorney Jennifer L. Muse The final rules implementing Executive Order 13706 mandating certain federal contractors and subcontractors to offer paid sick leave to their employees becomes effective January 1, 2017.  It only applies to “new contracts,” meaning either a contract entered into on or after January 1, 2017 or one that it renewed […]

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Does claiming to be “off the clock” really mean you’re “off the clock?”

July 26th, 2016 by JBWK

Submitted by Elizabeth S. Olcott – A recent ruling from the Eastern District of Virginia suggests that the answer is yes under certain circumstances. In 2012, a home care aide left a client’s home and went to the pharmacy to pick up the client’s prescription as a personal favor to the client. During this errand, […]

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THE DEPARTMENT OF LABOR ISSUES THE FINAL RULE ON OVERTIME AND THE WHITE COLLAR EXEMPTION

May 18th, 2016 by JBWK

Submitted by:  Robyn H. Hansen, Esquire On May 18, 2016, the Department of Labor (DOL) announced the final rule to update the regulations governing the exemption from the minimum wage and overtime pay protections of the Fair Labor Standards Act (FLSA) for Executive, Administrative and Professional Employees (“White Collar Exemption”).  The final rule changes the […]

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Delay in Overtime Exemption Rule

December 9th, 2015 by JBWK

Submitted by Attorney Robyn H. Hansen According to the U.S. Department of Labor’s (“DOL”) Fall 2015 Regulatory Agenda, the Fair Labor Standards Act’s white-collar overtime exemption rule will be issued in approximately July of 2016. The proposed rule, which was published in July 2015, proposed an increase in the salary threshold for exemption from the […]

New Veterans Reporting Rule Issued

December 23rd, 2014 by JBWK

The Veterans’ Employment and Training Service issued a final rule effective October 27, 2014 revising the annual reporting requirements under the Vietnam Era Veteran’s Readjustment and Assistance Act of 1974 (VEVRAA). Federal contractors and subcontractors now must file a new VETS-4212 report, which replaces the existing VETS-100 and VETS-100A beginning in 2015. Significantly, contractors will […]

Growing Complexity Is Big Win for HR Managers

February 22nd, 2013 by JBWK

What do the ADA, ADAAA, FMLA, Title VII, ADEA, WARN, FLSA, GINA, HIPAA, ERISA, EPA, PPACA, NLRA, and USERRA all have in common (aside from taking up an entire grocery aisle of alphabet soup)? They should be keeping your human resources department very, very busy. In that case, an aptly titled article called Employment Laws Keep […]

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 […]

Who Needs A Lawyer?

February 18th, 2013 by JBWK

Most people are willing to pay for basic types of insurance: auto, health, life, disability, etc. They figure that the relatively small upfront cost will be dwarfed by the expected benefit in the event they have an accident, get sick, or die. On the other hand, many small business owners opt to be a jack […]

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 […]

Think Employment Law Doesn’t Apply to You? Think Again

February 7th, 2013 by JBWK

That’s the title of a short article from Inc. magazine, but well worth the two minutes it takes to read. It highlights the often-confusing framework of federal employment laws that can trap unwary employers, even small ones. Here’s the lead: Quick quiz: You have 35 employees. One of your junior analysts is pregnant. Do you have […]

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 […]

Stalled Legislation May Reappear in 2013

January 3rd, 2013 by JBWK

Given the hectic pace at the end of this Congress’ term, it’s no wonder they left many tasks unresolved, including some pending employment-law legislation. Here are a few things to keep an eye on in 2013 (via Jackson Lewis): The Employment Non-Discrimination Act, which would ban employment discrimination on the basis of sexual orientation The […]

New Fair Credit Reporting Act Form

December 7th, 2012 by JBWK

Employers who use background or credit checks in hiring have a minor change coming: an updated Summary of Rights form will be required starting in January. Under the federal Fair Credit Reporting Act, employers must give the form to applicants or employees if the employer takes adverse employment action against them based on the credit […]

Rounding Time

December 7th, 2012 by JBWK

Employers rounding hourly employees’ time has reared its head recently, leading to many valid questions. Obviously, the most important one is whether the practice is legal. The Department of Labor allows rounding time as long as it “averages out over a period of time.” So employers can round hourly employees’ time to the nearest 15 […]

York Man Fired for Pulling Gun on Robber

December 7th, 2012 by JBWK

A York County man is in the national spotlight after being fired by AutoZone for drawing his own gun on a man robbing the store. When a gun-wielding robber tried to hold up the AutoZone store, employee David McLean ran out to his car, grabbed his own gun, and stopped the robbery. Although plenty of […]

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 […]

Same-Sex Marriage Cases Could Impact Employment Laws

October 26th, 2012 by JBWK

The latest ruling in a series of same-sex marriage cases was issued this week from the New-York based Second Circuit Court of Appeals, finding that the federal Defense of Marriage Act is unconstitutional. The act, DOMA, prohibits federal recognition of same-sex marriages. It’s the second federal appeals court to find it unconstitutional. Other courts have […]

Redefining Workweek to Minimize Overtime

October 25th, 2012 by JBWK

A recent case from the Eighth Circuit Court of Appeals held that a company shifting its workweek from a typical Sunday-to-Saturday week to a Tuesday-to-Monday workweek to reduce overtime was okay under the Fair Labor Standards Act. The natural gas drilling company’s employees worked the same Tuesday-to-Monday seven-day shift, but the redefinition eliminated a substantial […]

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 […]

Talking Politics at Work

October 12th, 2012 by JBWK

David Siegel, the founder and CEO of the world’s largest privately owned timeshare resort company, has a history of taking workplace politics to a whole new level. After heavy campaigning within his company for George Bush during the 2000 election, Siegel has taken a different approach to this year’s presidential election: sending his 7,000 employees […]

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 […]

Update on Social-Media Password Requests

October 11th, 2012 by JBWK

Several months after employers were taken to task for demanding applicants’ social-media passwords, three states have passed legislation regulating the process. Two states, Maryland and Illinois have fairly strict rules with few or no exceptions. The third, California, recently passed its version, which allows employers more leeway. It provides an exception for employers to investigate […]

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. […]

Reasonable Accommodation for Pregnancy?

October 2nd, 2012 by JBWK

Pregnancy occupies a strange status in employment discrimination law. It’s not a disability subject to the Americans with Disabilities Act, but it’s still illegal to discriminate against a female employee because she’s expecting. The only way to determine discrimination is to compare the treatment of pregnant employees with other employees who have temporary physical conditions […]

So You’ve Violated the NLRA

September 23rd, 2012 by JBWK

With all the news about social media policies and the National Labor Relations Board delving into topics it’s long ignored, it’s good to look at the consequences of having an unlawful policy. Take an example: an employer has a social media policy completely prohibiting employees from discussing working conditions online. It violates the National Labor […]

Does Money Matter?

September 22nd, 2012 by JBWK

An interesting article in the Wall Street Journal highlights not only a technological shift, but also sparks an interesting question: will a raise entice a valued employee to stay? The article examines complex computer models fed with data from former employees. Looking at the collected data, the computer model will look at why employees leave, […]

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 […]

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 […]

New Fair Credit Reporting Act Summary of Rights

September 6th, 2012 by JBWK

The Consumer Financial Protection Bureau, a product of the recent Dodd-Frank financial overhaul, issued a new Summary of Rights under the Fair Credit Reporting Act. Under the Fair Credit Reporting Act, employers who intend to make adverse employment decisions based on credit reports or background investigations from consumer reporting agencies must give employees and applicants […]

Beware of Online “Advisors”

August 30th, 2012 by JBWK

With more and more online tools–such as the DOL’s Wage and Hour “elaw Advisors“–designed to help employers comply with federal employment laws, it’s tempting to rely on them for quick answers. But that may turn costly. The online “advisors” ask simple “yes” or “no” questions to answer, for example, whether certain employees are exempt from […]