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 […]

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 […]

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After the long-awaited blue penciling case was withdrawn from the Virginia Supreme Court’s docket, it may be some time before there’s another clear indicator of the official view on the practice.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 […]

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 […]

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 […]

The $3 Million Decimal Point

March 23rd, 2012 by JBWK

Bloomberg reports that J.P. Morgan is defending a lawsuit in London over a misplaced decimal. The offending punctuation mistake: offering a mid-level trader an employment agreement (in the South African currency rand) for about $3,100,000, a number the bank says should have been $310,000. The employee accepted the agreement, but refused to work after realizing […]

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 […]

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 […]

Largest Workplace Harassment Verdict Ever?

March 2nd, 2012 by JBWK

In what NPR is reporting to be possibly the largest workplace harassment verdict in history for a single plaintiff, a California jury has awarded a former nurse at Mercy General Hospital in Sacramento a whopping $168 million verdict. It consisted of $125 million in punitive damages and $42.7 million in compensatory damages. The case is […]

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 […]

$1.1 Million in Attorneys’ Fee for Former Employees

February 24th, 2012 by JBWK

In a move that hopefully will inspire employers to be careful when lodging complaints against former employees, the Fourth Circuit upheld a $1.1 million award of attorneys’ fees and costs to four former employees. Wachovia Securities (now part of Wells Fargo Advisors) filed arbitration proceedings against four former brokers who left for a competing firm, […]

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 […]

Two Racial Slurs Not Enough for Hostile Work Environment

February 9th, 2012 by JBWK

In a decision granting summary judgment to Fairfax County Public Schools, a federal judge in Alexandria ruled that two alleged instances of a coworker using racial slurs was insufficient to create a hostile work environment. The plaintiff claimed a coworker twice used racial epithets toward her, creating a hostile work environment based on her race. […]

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 […]

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 […]

Don’t Forget About Plan Damages

January 29th, 2012 by JBWK

A federal court in California, while rejecting an employee’s claim for damages, provided a good reminder of what all is at stake in wage discrimination litigation. Obviously, employees can recover back wages, compensatory damages, and, on occasion, things like punitive damages in employment discrimination cases. But employers also face another potentially large issue: retirement plan contributions. […]

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 […]

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 […]

Be Mindful of Who You Pay Out of Your 401(k)

December 2nd, 2011 by JBWK

One plan sponsor learned the hard way: Orthopedic Associates is on the hook for a participant’s $770,000 in benefits that the plan wrongfully distributed to his ex-wife. The Second Circuit Court of Appeals held that the plan must pay the participant all of his accrued benefits, despite the fact it already paid those same benefits […]

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: […]

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 […]

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 […]

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 […]

Manager Acquitted on Sexual Assault Charges After Record Sexual Harassment Verdict

October 1st, 2011 by JBWK

A former manager at Aaron’s Rents, Inc. has been acquitted of criminal charges following a whopping $95 million sexual harassment verdict awarded by a federal jury in Illinois earlier this summer. Although the judgment was reduced to just over $40 million by the judge, it represents one of the (if not the) largest sexual harassment verdicts […]

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 […]

4th Circuit: Job Applicants Not Protected by FLSA’s Retaliation Provisions

August 15th, 2011 by JBWK

In a published opinion released on Friday, the 4th Circuit ruled that a job applicant cannot sue a prospective employer under the FLSA’s anti-retaliation provisions. Natalie Dellinger sued her former employer, CACI, Inc., for FLSA violations.  While the lawsuit was pending, she disclosed to her prospective employer, SAIC, that she had sued CACI for FLSA […]

Sealing FLSA Settlements

August 11th, 2011 by JBWK

As an employer, you know (or should know) the importance of keeping accurate time records for employees under the FLSA.  You’ve probably also have had–in some form–a dispute with an employee over their hours worked or entitlement to overtime.  But once that dispute turns into a lawsuit, you may be surprised to learn that even […]