Blog: Opinions & Observations
When Is an Employer Liable for an Employee's Workplace Misconduct?
June 25, 2018
This month, the Fourth Circuit Court of Appeals issued a decision addressing when employers can be held liable for the actions of their employees. Garnett v. Remedi SeniorCare of Virginia, LLC concerned a situation where an employee went on sick leave for a day. While she was gone, her supervisor told her coworkers that she was having gynecological surgery and, therefore, must have an STD. The employee sued the supervisor and her employer for...
Read MoreBorrowed Servants on Virginia's Waterfront: A Muddied Predicament for Employers
May 30, 2018
Third party access to waterfront property has become a norm and necessity for most waterfront businesses. Preventing third party access often results in lost business opportunities and profits. In some cases, prevention can result in breach of contract or tortious interferences with business suits brought against the property owner and/or operator. Yet, allowing third party access complicates employment relationships at the worksite and the legal...
Read MoreDo Employers Have to Pay Interns Overtime or Minimum Wage?
May 17, 2018
With summer approaching, employers are hearing from college students looking for internships. In the past, the Department of Labor (“DOL”) made it almost impossible for “for profit” employers to establish unpaid internship programs that did not violate the Fair Labor Standards Act (“FLSA”). The DOL used a rigid, six-factor test that prohibited employers from gaining an immediate advantage from the intern’s activities, which severely limited the intern’s...
Read MoreDoes Title VII Protect against Employment Discrimination Based on Sexual Orientation?
March 21, 2018
Most Americans are aware that Title VII of the Civil Rights Act of 1964 prevents discrimination by employers against employees “because of such individual’s race, color, religion, sex, or national origin.” In a highly-anticipated decision, the Second Circuit Court of Appeals, which covers several northeastern states, recently overturned its own precedent and became the second federal appellate court to find that Title VII protects individuals who are...
Read MoreConsult an Attorney before Making Changes to Employee Compensation to Avoid Violating FLSA
November 13, 2017
An employer in Ohio recently learned that Benjamin Franklin’s advice of “an ounce of prevention is worth a pound of cure” can be applied to employee compensation systems. When the new owner took over the Brown Derby Roadhouse restaurant, it decided to reclassify restaurant servers as independent contractors. In doing so, the owner implemented a “table renting” system, where the servers received no pay from the restaurant, kept all of their tips, but had...
Read MoreDeciphering Who Is a Joint Employer
October 20, 2017
If your company uses contract labor or temporary staffing, recent agency actions and court decisions may have turned your company into a joint employer who is legally responsible for its contract workers’ overtime pay. Traditionally, companies were not considered joint employers unless they had direct control over the wages and other conditions of employment of another company’s employee. However, Obama-era agency actions significantly broadened the...
Read MoreCan Local Governments Discipline Employees for Violation of their Social Media Policies?
August 08, 2017
Earlier this year the Fourth Circuit decided a case that pitted two fundamental interests against each other: a public employee’s First Amendment right to free speech and the government’s ability to provide efficient and effective service to the public. In the age of social media, the historic tension between these two interests has only become more contentious.In Grutzmacher v. Howard County, 851 F.3d 333 (4th Cir. 2017), a battalion chief of Maryland’s...
Read MoreSame or Equivalent: Placing Employees Returning from FMLA Leave
May 22, 2017
On May 16, 2017, the Fourth Circuit Court of Appeals issued a written opinion addressing two issues regarding the placement of returning employees. The Court held that employers have a choice on whether to restore an employee returning from FMLA leave to the employee’s old position or to assign the employee to an “equivalent” one, which may give employers more flexibility in making staffing decisions.Under the Family and Medical Leave Act (“FMLA”),...
Read MoreAvoiding the Employee Retaliation Trap
March 07, 2017
Employers can be liable under Title VII of the Civil Rights Act of 1964 without ever actually discriminating against an employee. For example, a Roanoke hair stylist recently brought suit against her former employer alleging that it subjected her to a hostile work environment in violation of Title VII because she was a Caucasian woman dating an African-American man and that the salon terminated her in retaliation for complaining about harassing...
Read MoreThe Importance of Carefully-Worded Job Descriptions - March 2016
March 04, 2016
by Jeffrey D. WilsonWhile employers are not legally required to draft job descriptions for most positions, many do anyway in an effort to define job duties. This week the Fourth Circuit Court of Appeals issued an opinion that, while not groundbreaking, serves as a reminder of how important it is to properly word position descriptions, including those used to advertise job openings.In Stephenson v. Pfizer, Inc., No. 14-2079 (4th Cir. Mar. 2, 2016), the...
Read More