Author Archives: admin

Is an employee entitled to be reinstated to his or her same position following FMLA leave?

Not exactly.   Under the FLMA, qualified employees are entitled to 12 weeks of leave for a serious medical condition.  At the end of such leave, the employer must reinstate the employee in the position held by the employee at the commencement of the leaver – or – to an equivalent position with equivalent pay, benefits [...]

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Are Managers that Investigate Discrimination Protected From Retaliation?

In addition to prohibiting job discrimination on the basis of  race, color, religion, sex, or national origin, Title VII contains an Opposition Clause to protect workers from retaliation for advancing claims under the statute.   Typically, the Courts have defined “opposition” broadly to include a  variety of conduct in opposition to unlawful employment practices, including both formal grievances [...]

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EEOC Conciliation Obligations to be Decided by Supreme Court

The U.S. Supreme Court recently heard oral argument in in Mach Mining v. EEOC (S.Ct. 2015).  At issue is the Equal Employment Opportunity Commission’s (EEOC) obligation to resolve administrative complaints of discrimination filed under its jurisdiction, which includes civil rights statutes such as Title VII.  Historically, the EEOC has exercised agency discretion in deciding the extent [...]

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Do Employers Have to Provide Paid Sick Leave?

While Federal and Virginia laws govern some aspects of minimum wages, overtime and medical leave, there is no Virginia law that expressly requires private sector employers to provide paid sick leave to its employees. Under the Family Medical Leave Act (FMLA), qualified employees are entitled to take up to 12 weeks of protected medical leave for [...]

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Can You Draw Unemployment Benefits if You Resign From Your Job?

If you quit or otherwise leave a job voluntarily, an employee must prove “good cause” in order to receive unemployment benefits.   However, an employee who is forced to resign is not deemed to have left work voluntarily when the employee had no real option to return to the job. By statute, “good cause” does not include leaving work to become self-employed [...]

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Can You Receive Social Security Disability and Workers’ Compensation Benefits at the Same Time?

The Virginia Workers’ Compensation statute provides wage benefits to workers who are injured by accident at work.  If an employee is unable to return to their job or a light duty assignment due to a workplace accident, wage benefits are paid out at two-thirds of the worker’s average weekly wage for a maximum of 500 weeks. Under Social [...]

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2015 Minimum Wage Increases

Although the Federal minimum wage remains at $7.25, more than 20 states will increase their minimum wage for hourly works in 2015.  The new rates will vary by state, ranging from $7.50 to $9.47 hour.  Virginia remains on par with the default Federal rate.

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EEOC Updates Pregnancy Discrimination Guidelines

The EEOC has issued a July 2014 update to its Pregnancy Discrimination Enforcement Guidelines – the first such update in nearly three decades.  ( See EEOC Pregnancy Discrimination Guidelines  http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm )   Under the Pregnancy Discrimination Act, it is unlawful for an employer to discriminate on the basis of one’s pregnancy.  Most notably, the new Guidelines seek to expand [...]

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Sarbanes-Oxley Retaliation Update

Following the infamous Enron scandal, Congress enacted the Sarbanes-Oxley Act of 2002. Among its other regulatory provisions, the statute includes retaliation protection for employees of pubic companies that engage in whistleblower activities associated with the investigation of corporate fraud.  In Lawson v. FMR LLC, the U.S. Supreme Court recently affirmed that these employee protections extend [...]

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Temporary Conditions Under the Americans with Disabilities Act

     The Americans with Disabilities Act (“ADA”) makes it unlawful for a covered employer to discriminate against a qualified individual on the basis of disability. When asserting rights under the Americans with Disabilities Act, an employee first must establish that he or she meets the statutory definition of “disabled.”        Following the amendment of the [...]

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More Momentum For A Minimum Wage Increase

While the Fair Labor Standards Act currently sets the Federal minimum wage at $7.25 per hour, the law permits states and localities to require higher wages within their jurisdiction.   California recently became the latest state to move to a higher minimum wage, ahead of legislation proposed by the Obama administration.  The new California law will [...]

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Department of Labor to Implement New FLSA Regulations for Home Health Care Workers

The Fair Labor Standards Act (“FLSA”) requires most employers pay their employees minimum wages and further mandates overtime pay for all hours in excess of a regular 40 hour workweek.  However, the FLSA does contain several notable exemptions.   One of these exemptions, the “Companionship Exemption,” excludes certain home health care employees from minimum wage and overtime [...]

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U.S. Supreme Court Rejects Mixed-Motive Instruction for Title VII Retaliation Cases

Title VII of the civil Rights Act of 1964 is the primary Federal statute that prohibits employers from discriminating against employees on the basis of the race, religion, sex and national origin. In order to lessen and clarify a plaintiff’s burden of proof in discrimination cases, Congress amended Title VII in 1991 to provide that discrimination occurs when a [...]

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Blue Penciling of Non-Competes in Virginia?

Non-competition agreements, AKA non-competes, are enforceable in Virginia provided that they are drafted in terms that are reasonable with regard to duration, geography and scope.  When a non-compete is facially unreasonable because it is vague or overbroad with regard to one of those components, Virginia Courts will refuse to enforce the entire restrictive covenant. Enter the [...]

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Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases

Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin.   The standard for liability often begins with the employment position of the alleged harasser.  When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive [...]

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EEOC Updates ADA Disability Guidance for Individuals with Epilepsy and Diabetes

The Equal Employment Opportunity Commission (“EEOC”) is the U.S. Agency responsible for administering several anti-discrimination statutes, including the Americans with Disabilities Act (“ADA”). The Americans with Disabilities Act and ADA Amendments Act of 2008 prohibit discrimination against qualified individuals who have impairments that substantially limit a major life activity, have a record of a substantially limiting impairment, or [...]

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Successor Liability Found for FLSA Overtime Claim After Asset Purchase

In March 2013, the Seventh Circuit held in Teed, et. al. v. Thomas & Betts Power Solutions, L.L.C, that a buyer of a prior company’s assets could be liable for FLSA overtime claims asserted against the predecessor.  A company seeking to assume another business commonly will “buy the assets” of a defunct or insolvent company in [...]

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Picking Off Lead Plaintiff Ends FLSA Collective Action

Under the Fair Labor Standards Act (“FLSA”) collective actions for unpaid overtime are treated differently than typical “class” actions.  In an FLSA suit, a plaintiff can sue individually and on behalf of similarly situated employees.  However, other plaintiffs must affirmatively consent to join the case, which is different that the “opt out” procedures of Rule [...]

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Can Your Employer Lay Claim to Your Social Media Account?

Your employer sets up personal Twitter and Linked-In accounts for you to help promote their business.  The employment relationship invariably ends, and both parties lay claim to ownership of the accounts.  Who prevails? A Federal Court in Pennsylvania addressed this issue recently in the case of Eagle v. Edcomm, et al.  In Eagle, the employer had key employees [...]

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Does the FMLA Provide for a”Light Duty” Return to Work?

The Seventh Circuit recently addressed the interplay of FMLA and “light duty” restrictions in James v. Hyatt Regency Chicago (7th Cir., 2013).   In James, the plaintiff suffered from a visual condition and subsequent eye injury that prompted surgery and an associated request for Family Medical Leave (FMLA).   After his 12 weeks of FMLA expired, the employee requested to [...]

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