Labor & Employment Law

Calculating Available Leave Under the FMLA

May 10, 2011, 2:26 PM

Regulations implementing the Family and Medical Leave Act (FMLA) explain that, except in the case of leave to care for a covered service member with a serious injury or illness, an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. The regulations also explain that the employer is permitted to choose any one of four options for determining the "12-month" period.

Choosing Reasonable Accommodation Under the ADA

May 3, 2011, 3:29 PM

Title I of the Americans with Disabilities Act (ADA) requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

Who May Be Evaluating Your Decisions?

April 26, 2011, 3:35 PM

A recent jury verdict generated significant attention for its staggering amount: $25 million, in favor of an employee who had sued his employer. As has been reported, this verdict was so large that the judge issued an order requiring the plaintiff to accept a smaller award of $2 million or submit to a new trial.

How Long Is Your Company's "Introductory Period?"

April 16, 2011, 8:45 AM

Many employers classify new employees as "Introductory" or "Tryout" period employees for some period of time at the outset of employment. Designating an "Introductory" or "Tryout" period can be beneficial, as it informs new employees of their initial evaluation period and sets up a framework for evaluating new employees. For employers who use such mechanisms, its important to consider the effect of these provisions on potential liability under the Virginia Unemployment Compensation Act.

Is Your FMLA Policy Up to Date?

April 5, 2011, 4:09 PM

Department of Labor regulations implementing the Family and Medical Leave Act (FMLA) require that covered employers include notice of the Act's provisions in employee handbooks. Specifically, the Department of Labor takes the position that this notice must include all of the information set forth in the Department of Labor's Employee Rights and Responsibilities Under the Family and Medical Leave Act poster.

Is Bankruptcy Discrimination Unlawful?

April 1, 2011, 2:20 PM

That depends. According to the Bankruptcy Code, private employers may not terminate or discriminate against current employees on the basis of bankruptcy. By comparison, public or governmental employers are forbidden not only from terminating employment or discriminating against current employees on the basis of bankruptcy, but also from denying employment on the basis of bankruptcy. Interestingly, what that means is private employers are not prohibited from denying employment on the basis of bankruptcy. As a practical matter, private employers who may wish to deny employment on the basis of bankruptcy are reminded to not hire employees until proper credit checks are complete. Once hired, the additional protections applied to employees complicate matters significantly.

Did That Employee Request FMLA Leave?

March 23, 2011, 2:15 PM

For the purposes of requesting Family and Medical Leave Act (FMLA) leave, is there a legal difference between the employee who tells his supervisor in passing "I am having back surgery next Monday and need time off" and the employee who delivers a letter to human resources that says "I have been diagnosed with a serious health condition and request one month of FMLA leave"? Probably not.

Unpaid Internships: Employers Beware

March 17, 2011, 9:20 AM

With today's overcrowded labor market and summer breaks on the horizon, students and other unemployed individuals may apply for unpaid "internships", as they can appear to be a good way to get a foot in the door for a future employment opportunity. However, "for-profit", private sector employers must be very careful, as the Department of Labor has promised increased audits of employers who hire unpaid interns.

Religious Discrimination and Requirement to Accommodate

March 1, 2011, 9:27 AM

An employer's duty to reasonably accommodate its employees is not limited to situations involving employees with disabilities under the Americans with Disabilities Act (ADA). Indeed, Title VII prohibits religions discrimination and requires covered employers to reasonably accommodate employees' sincerely held religious beliefs, unless doing so would impose an undue hardship on the employer.

Update: NLRB settles case about Facebook activity

February 23, 2011, 9:36 AM

As we wrote about late last year, the National Labor Relations Board (NLRB) filed an unfair labor practice claim against a Connecticut ambulance company that fired an employee after she posted comments critical of her boss on Facebook. The parties have avoided a hearing on that claim by entering into a global settlement.

A Documentation Refresher

February 14, 2011, 3:19 PM

Judges, juries, and administrative agencies like the Equal Employment Opportunity Commission (EEOC) and Virginia Employment Commission (VEC) want to see employers document important personnel actions, such as counseling sessions, disciplinary actions, and terminations, among other things. Keep in mind, however, that not all documents are created equal.

The Evolving Threat of Retaliation Claims

February 7, 2011, 2:40 PM

As the number of retaliation charges filed with the Equal Employment Opportunity Commission (EEOC) each year continues to rise (see EEOC Statistic Charges on the Rise), the U.S. Supreme Court has issued a decision that expands the definition of who may file retaliation lawsuits.

Credit Checks and Employment Decisions

January 27, 2011, 10:01 AM

The Equal Employment Opportunity Commission (EEOC) has consistently taken the position that relying on an applicant's credit history in making hiring decisions can have a disparate impact on women and racial minorities. As the sluggish economy continues into 2011, the EEOC has indicated a new focus on this issue. In October of last year, the EEOC held a public meeting and considered testimony from a panel of experts about the effect of relying on credit reports in making employment decisions. Shortly thereafter, on December 21, 2010, the EEOC filed a lawsuit against Kaplan Higher Education Corporation, in which the EEOC challenged Kaplan's practice of denying employment based on credit history. According to the EEOC's lawsuit, this practice has a disparate impact on racial minorities and is not justified by business necessity.

EEOC Charges on the Rise

January 25, 2011, 11:34 AM

According to a recent report from the Equal Employment Opportunity Commission (EEOC), Charges of Discrimination rose to record levels during the EEOC's most recently completed fiscal year (period ending September 30, 2010). Total charges soared to 99,922 during that period, an increase of 7.2% over the previous fiscal year and the highest level of new charges ever recorded by the EEOC.

Who is Protected Under USERRA?

January 21, 2011, 2:29 PM

A recent case highlights the difficulty employers may face when trying to identify employees who are covered by the Uniformed Services Employment and Reemployment Rights Act ("USERRA").

Its Not Too Late for New Year's Resolutions

January 19, 2011, 9:17 AM

2011 is underway and its about time you cleaned out your in-box and checked everything off your 2010 to-do list. Here are a few places you should pay particular attention:

Santa Visits Capitol Hill

December 17, 2010, 4:48 PM

Santa's sleigh rode down Pennsylvania Avenue on December 6th and arrived on Capitol Hill with a huge pack full of multiple gifts for big girls and boys. Congressional leaders and the President delivered an extension of the Emergency Unemployment Benefits Program that will soon be tied up in a red bow by both Houses of Congress. This eighth extension continues emergency unemployment benefits up to 86 weeks in Virginia and up to 99 weeks in many other states. Why a red bow--because the unemployment benefits have been wrapped up with an extension of what have come to be called the Bush era tax cuts, meaning that the money for the benefits is not specifically funded and adds to the national debt.

Employee Benefits Litigation: DOLs New Proposed Rules Expand Definition of Who Can Get Sued as a Fiduciary under ERISA

December 14, 2010, 9:27 AM

Over the course of the last few years, there has been an explosion of litigation under the Employee Retirement Income Security Act of 1974 (ERISA). Any employer offering employee retirement plans needs to keep a careful eye on the ever growing reach of the plaintiffs bar in this area. A major part of the growth in ERISA litigation has come in the form of class actions against plan fiduciaries for breaches of their duties under ERISA.

Inexact Use of Labels to Avoid Wage-Hour Liability A Dangerous Game

December 9, 2010, 11:58 AM

One of the most common mistakes employers make in the wage-hour area is giving an employee a salary and classifying that employee as exempt from overtime without considering that employees duties. Employers sometimes find out the hard way that paying an employee a salary of at least $455 a week is only one of a number of requirements that must be met before an employee will be considered exempt from overtime compensation. When employees are misclassified and not properly paid for overtime, the liability to employers can be dramatic when one considers that all misclassified employees have a right to back pay going back two or three years.