The Perils of Common Sense – Judge Permits Age Discrimination Suit to Go to Trial

Vincent Jackson
Vincent Jackson
10/22/2020
A recent case from the United States District Court for the Eastern District of Virginia, Richmond Division,  demonstrates that employers must always choose their words carefully, especially when they’re about to fire poor-performing employees. In Granet v. Presidio, Inc.,  Civil Action No. 3:19-cv-821, the plaintiff was a 54-year old account manager who alleged that his former employer forced him to resign due to his age.  Presidio countered...
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Employee Leave to Vote on Election Day

Garrett Wozniak
Garrett Wozniak
10/14/2020
Election day is a couple weeks away -- November 3, 2020.  Now that I’ve told you something you already know, here is a reminder of Maryland law requiring employers to provide employees time off to vote.  Maryland employers must allow any employee who claims to be a Maryland registered voter up to two (2) hours of leave from work on election day so that the employee can cast a ballot if the employee does not have two (2) continuous off-duty hours...
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DOL Issues Guidance On Federal Contractor Diversity Training

Garrett Wozniak
Garrett Wozniak
10/13/2020
On September 22, President Trump issued Executive Order 13950, which states that United States policy is “not to promote race or sex stereotyping of scapegoating.”  The Order prohibits federal contractors from training employees in a manner that promotes race and sex stereotyping or scapegoating. Last week, the Department of Labor’s Office of Federal Contract Compliance (OFCCP) issued answers to FAQs concerning what E.O. 13950 permits and...
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EEOC Proposing To Share More Details With Employers During The Conciliation Process

Randi Klein Hyatt
Randi Klein Hyatt
10/09/2020
The Equal Employment Opportunity Commission (EEOC) has issued a newly proposed Rule that would alter the conciliation process, which the EEOC uses as a method of alternative dispute resolution with employers that have had a finding of "reasonable cause" issued against them at the conclusion of the EEOC's investigation.  Conciliation is technically a voluntary alternative to litigation after the agency has determined, based upon its investigation,...
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D.C. Laws To Take Effect on Workplace Postings and Notices, and Sexual Harassment Training and Reporting.

Before we get into the new requirements, some legislative history is warranted.  In 2018, the District of Columbia passed the Tipped Wage Workers Fairness Amendment Act, designed to, among other things, repeal an initiative that would have eliminated the tip credit system in D.C.  That 2018 law mandated local government funding before several provisions of the statute could be implemented that include the postings and sexual harassment training...
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No Magic Words Necessary to Request FMLA Leave

Clifford Geiger
Clifford Geiger
10/05/2020
There are no magic words an employee needs to utter to trigger rights under the Family and Medical Leave Act (“FMLA”).  The Ninth Circuit’s recent decision in Rouse v. Wynn Las Vegas, LLC, No. 18-17452 (9th Cir. 2020) illustrates the point.  In that case, Rouse sent his employer an email saying he wanted to take three days of paid vacation to have surgery.  Even though Rouse did not mention the FMLA, the court found that the email, as well...
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Stress Caused By A Difficult Supervisor Is Not A Disability

Employers often encounter claims that an employee is suffering work-related stress and needs an accommodation for a disability.  The employee often wants reassignment to a different supervisor, usually because of the supervisor’s management style, although the employee may characterize the problem as harassment, bullying, or in other pejorative terms.  Assuming it turns out that the employee is complaining about anxiety or stress caused by the...
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EEOC Opinion Letter Presents New Interpretation Of Its Authority To Sue Employers For Systemic Discrimination

Jeffrey Maylor
Jeffrey Maylor
09/30/2020
On September 3rd, the EEOC issued an opinion letter that reversed course on its authority under Section 707 of Title VII of the Civil Rights Act of 1964 to initiate discrimination actions against employers.  The EEOC concluded it does not have the power to sue employers for discriminatory workplace practices without first complying with other procedural steps.  The opinion letter answered two questions: 1) does a pattern or practice claim under...
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DOL Proposes New Independent Contractor Rule

Darrell VanDeusen
Darrell VanDeusen
09/22/2020
The U.S. Department of Labor (DOL) announced on September 21, 2020 a notice of proposed rulemaking (NPRM) that re-defines “employee” under the Fair Labor Standards Act (FLSA) as it relates to independent contractors.  https://www.dol.gov/agencies/whd/flsa/2020-independent-contractor-nprm.  The  NPRM is available for review and public comment for 30 days after it is published in the Federal Register. The issue of who qualifies as...
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In Its Own Backyard: EEOC Must Confront Discrimination Lawsuit by Former Attorney

Darrell VanDeusen
Darrell VanDeusen
09/21/2020
Those of us who deal with the Equal Employment Opportunity Commission on a regular basis sometimes lose track of the fact that it, like the folks we represent as management attorneys, is an employer too.  And, it is subject to many of the same anti-discrimination and anti-retaliation legal requirements as the employers it investigates.  A recent decision from the D.C. Circuit shows that even the EEOC is sometimes required to explain its actions...
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