Labor & Employment Law

Limits on Personal Liability for Supervisors

December 7, 2010, 12:17 PM

Since 1998, the law in Virginia has been that supervisors cannot be held liable in their individual capacity for harassment claims filed under Title VII. Lissau v. Southern Food Serv. Inc., 159 F.3d 177 (4th Cir. 1998). Recently, a federal court in Virginia addressed the question of whether a supervisor can be held individually liable for wrongful discharge under Virginia's common law.

Timing of Personnel Decisions is Important

December 6, 2010, 11:10 AM

Employers are often faced with tough personnel decisions. Those decisions become even more difficult when problematic employees assert rights under leave or discrimination laws. Once an employee has asserted such rights, any subsequent disciplinary action may appear to be in violation of those rights. That is why employers must take legitimate action in a timely manner, avoiding subsequent claims or complaints by problematic employees. Similarly, once a problematic employee has asserted such rights, employers must carefully consider the timing of their personnel actions.

Monitoring Employee Activity On-Line

December 3, 2010, 4:04 PM

Employers rightfully may be a little hesitant now in taking disciplinary action against an employee based on the employees comments made on a social medium. Earlier this month, the National Labor Relations Board issued an unfair labor practice complaint accusing an employer of illegally firing an employee for criticizing her supervisor on her Facebook page. The NLRB issued the complaint against an ambulance service for firing one of its employees for posting negative remarks about her supervisor on her personal Facebook page from her home computer. The Board also complained that the employers blogging and Internet posting policy contained in its employee handbook was too broad.

Can Employers Go Too Far With Social Media Policies? The NLRB Thinks So.

December 1, 2010, 10:09 AM

Earlier this month, the National Labor Relations Board ("NLRB") issued a complaint against a Connecticut company alleging that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on Facebook. The complaint also alleges that the company maintained and enforced an overly broad internet policy.

Plenty of H-1B Numbers Still Available for Foreign Workers

November 19, 2010, 10:07 AM

With the downturn in the economy, the infamous H-1B lottery for professional and specialty occupations was not necessary for the current year. Over 20,000 H-1B visa numbers are currently available and employers may still hire qualified foreign nationals in this temporary non-immigrant status without significant delays.

Will The Stored Communications Act Shield Wall Postings and Comments on Social Networking Sites from Civil Subpoenas?

November 12, 2010, 2:47 PM

Based on a recent case from the Central District of California, Crispin v. Christian Audigier, Inc., 2010 U.S. Dist. Lexis 52832 (Crispin), the answer appears to be yes. In Crispin, the plaintiff was served with subpoenas that sought all communications referring or relating to any defendant. The magistrate judge upheld subpoenas served on social networking sites Media Temple, Facebook, and MySpace for webmail, private messaging, wall postings and comments.

The Fair Labor Standards Act and Unpaid Internships

November 11, 2010, 3:49 PM

When faced with the unfortunate realities of high unemployment rates and limited job openings, job seekers (and students in particular) are eager to take advantage of any opportunities that may come their way including the unpaid internship. While the thought of free labor from a well-educated, enthusiastic student certainly sounds enticing, employers must be cognizant of the laws affecting unpaid internships.

EEOC Commissioners Signal Sensitivity to Business Concerns, but Vigorous Enforcement

November 5, 2010, 3:37 PM

In an informal presentation to the Virginia State Bar early in October (moderated by Kaufman & Canoles employment law partner John M. Bredehoft)two current Commissioners of the U.S. Equal Employment Commission reiterated the Commission's continuing commitment to a workplace free of discrimination and harassment. Commissioners Victoria Lipnik and Chai Feldblum discussed the regulatory challenges facing the EEOC in the near term, including implementation of the final administrative regulations for the 2008 amendments to the Americans with Disabilities Act and for the Genetic Information Nondiscrimination Act (GINA), which became effective less than a year ago.

Title VII

November 2, 2010, 12:52 PM

As many of you are aware, Title VII forbids discrimination, among other things, on the basis of religion. The law forbids treating a person unfavorably based on the employees religion in any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, fringe benefits, and other terms or conditions of employment. It is important to note, however, that the law protects not only members of traditional, organized, religious groups but its protection extends to individuals who have sincerely-held ethical or moral beliefs, so long as the belief system rises to the level of a traditionally-held religious belief. An employer is required to reasonably accommodate these beliefs unless to do so would cause an unreasonable burden on the employers business. This includes the obligation, when reasonable, to make adjustments to the work environment, the work day, or the employees schedule in order to allow an employee to observe his or her religion.

Social Networking Strikes Again

October 29, 2010, 3:10 PM

Employers are faced with a broad range of issues associated with their employees' use of social media. One common question from employers is: "Can we do anything about employees posting on their personal social media accounts on their own time?" As lawyers often say: it depends.

When You Fire an Employee, Youd Better Get Your Story Straight

October 27, 2010, 10:13 AM

When faced with a lawsuit from an employee alleging discriminatory termination, an employer needs to show that there was a legitimate, non-discriminatory explanation for its actions. The employee then has to prove that these legitimate reasons are nothing more than a pretext for discrimination. To many human resource personnel fluent in employment law, this is not a surprise. The natural inclination then, when firing an employee who falls within a protected class, is to document all the non-discriminatory reasons for the termination. While such documentation is critical, HR personnel and in-house decision makers need to be aware of the importance of (i) identifying the actual legitimate reasons early, and (ii) being consistent when presenting these reasons in any future litigation.

Supreme Courts First Look at Employee Texting Rights Leaves Employers Scratching Heads

October 21, 2010, 1:58 PM

The law regarding employee privacy rights when using employer-owned communication devices has not developed nearly as fast as the technology and increasing use of such devices. However, most employers were somewhat comforted when the recent and much discussed U.S. Supreme Court ruling in City of Ontario v. Quon did little to change the controlling law in Virginia. First, the Quon holding is limited to public employers, who must comply with the Constitutions prohibition on unreasonable searches. Private employers have no such requirement and the Supreme Court ruled that the City of Ontario was not unreasonable when it fired an employee following a review of usage of employee pager text messages.

Health Care Reform and Breast Pumps in the Workplace

October 19, 2010, 2:43 PM

Buried in the voluminous pages of the health care bill is an amendment to the Fair Labor Standards Act (FLSA) that requires employers to take reasonable steps to support women who need to use breast pumps at work. All employers are required to provide such employees with a clean, private location in which to pump. These locations must have a door with a lock and an electrical outlet, but do not need to be used exclusively for pumping. Employers must provide their employees with unpaid breaks, as necessary, to pump. Employers with fewer than 50 employees may avoid compliance if they can show that providing such a location would cause a hardship for them.

Employment Practices Liability Insurance Policies

October 14, 2010, 10:52 AM

With the continued increase of employment-related claims, many of which are decided by federal and state juries, Employment Practices Liability Insurance (EPLI) policies have been more widely used by businesses. EPLI is a very specialized insurance designed to cover claims by current, former or prospective employees who claim their legal rights as employees have been violated. These policies are generally designed to protect against wrongful termination, discrimination and sexual harassment claims. Other claims alleged in employment litigation, such as defamation, invasion of privacy, negligent hiring, supervision, promotion or retention, or even intentional torts, such as assault and battery and emotional distress, can be covered. Whistleblower claims and wage and hour claims may be covered with regard to cost of defense (attorneys fees and related litigation costs), but actual damages (for example, unpaid wages in an overtime case) usually are not covered. Directors and Officers insurance liability policies and Errors and Omissions insurance do not typically cover employment-related claims.

OSHA and VOSH Seeking Stronger Penalties

October 12, 2010, 9:57 AM

Legislative and administrative changes are on the way at OSHA (Occupational Safety & Health Administration) and by federal-state obligation, at our Virginia equivalent VOSH (Virginia State Occupational Safety and Health). Virginia enforces federal occupational and health standards (OSH) under an agreement with OSHA, and federal standards have long applied in the Commonwealth of Virginia. An Obama administration priority has emerged in both the rigor of OSH enforcement and amount of penalties.

What Types of Notice Trigger FMLA Rights?

October 11, 2010, 11:16 AM

Employers are often required to determine whether an employee is invoking his or her Family and Medical Leave Act (FMLA) rights. The law is clear than an employee need not specifically request "leave under the Family and Medical Leave Act" by name. Instead, as long as an employee provides enough information for his or her employer to reasonably conclude that leave is for an FMLA-qualifying reason, he or she has put the employer on notice that the desired leave is for FMLA purposes. A common question from employers is: "what is enough information?"

Richmond Judge Reminds Employers that Non-Employee May Create Harassment Liability

October 7, 2010, 3:14 PM

A Richmond Circuit Court recently held that an employee had a valid claim against her employer for hostile work environment harassment, based on the unwanted sexual advances and inappropriate sexual comments of a vendor. Recognition of such a claim in Poe v. Old River Cabinets, Inc. emphasizes the need for employers to police workplace harassment in their work environments even when the offending party is not one of their employees. So, vendors or customers who engage in inappropriate conduct or use inappropriate language may need to be counseled to stop. --Labor & Employment Practice Group

Mental Health Issues and the ADA

October 5, 2010, 11:31 AM

Recently CNNs website featured a lead article discussing depression among employees. It asked the question, should you tell your employer about your depression? While employers often do not know when employees are dealing with mental health issues, once an employee puts an employer on notice of such a concern, the employer should carefully observe the legal boundaries created by that knowledge. If the workplace has 15 or more employees, the Americans with Disabilities Act applies. Even if the workplace has fewer than 15 employees, the Virginia Human Rights Act requires equal treatment of those with qualified disabilities, including mental health conditions. While employees must be able to complete the essential functions of their jobs to be protected under these acts, the employer may be required reasonably to accommodate an employee's known health condition, where such accommodation does not create an undue burden on the employer.