Category Archives: Employee Rights

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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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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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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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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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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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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Will “Jobless” Applicants Become a New Protected Class?

An employment rights debate is brewing in New York City.  Mayor Bloomburg has vetoed a local Council bill that would give protected class status to “unemployed” workers in New York City, making it illegal for employers to discriminate in their hiring practices due to job status.  Council is expectd to override the veto. This discrimination measure seeks to prevent employers from advertising [...]

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Can an Employer Require Random Alcohol Tests?

A U.S. District Court in Pennsylvania recently addressed the issue of whether an employer may utilize a random alcohol testing policy for its employees. Initially, it is important to note that drug and alcohol testing testing standards differ between government and private sector employers.  Government employers, who are subject to Constitutional search and seizure restrictions, must survive a [...]

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Newsflash: Don’t Post Vacation Pictures While You’re Out On FMLA

Under the Family Medical Leave Act (FMLA), qualified employees are entitled to take up to 12 weeks of protected medical leave in a twelve month period for certain purposes involving serious medical conditions. A qualifying purpose includes a serious health condition that renders the employee unable to perform the functions of their position. In Linebury v. Detroit Medical [...]

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Court Dismisses EEOC Suit Asserting Discriminatory Impact of Credit Checks

An Ohio U.S. District Court has dismissed the EEOC’s lawsuit against Kaplan Higher Learning Education Corp., which claimed that Kaplan’s systematic use of credit reports to screen applications for financial positions produced a discriminatory impact on minority applicants.  The decision provides some validation for a common business practice of identifying applicants whose credit background may [...]

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New FMLA Rules on the Horizon

The FLMA, which now has been in effect for 20 years, has been fine tuned over the years through regulations and Court decisions.  In March of 2013 the Department of Labor will approve its latest regulatory modifications. Notable changes involve the calculation of intermittent leave, military caregiver leave for veterans, and qualifying exigency leave for [...]

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Workplace Discrimination Trends

The Equal Employment Opportunity Commission (“EEOC”) is the Federal Agency responsible for handling initial charges of discrimination for claims involving race, gender, sexual harassment, religion, age and disability.   Within its enforcement role, the EEOC tracks the number and type of charges filed on annual basis, providing some insight into the prevalence of various claims in [...]

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Employment Law Policies: Social Media in the Workplace

There is no denying that social media as become the modern day “water cooler,” a virtual (and more public) platform where employees may gather to discuss a range of office issues.  These issues often range from personal concerns, collective work interests, office gossip, and perhaps derogatory perceptions of other employees or a business itself.   At issue [...]

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Supreme Court to Review Causation Standard in Retaliation Case

On January 18, 2013, the U.S. Supreme Court granted cert. in the case of University of Texas Southwestern Medical Center v. Nassar.  At issue is whether a plaintiff in a Title VII retaliation claim should be entitled to the more lenient “mixed-motive” instruction.  Circuit Courts have split on the issue, some holding that retaliation claims, [...]

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EEOC Releases Strategic Enforcement Plan

On December 18, 2012, the Equal Employment Opportunity Commission formally released its new Strategic Enforcement Plan, which outlines its priorities and objectives for prospective enforcement and investigation.  The EEOC identifies its priorities as follows: Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious [...]

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