Employment Law Chronicle for Virginia & the District of Columbia

In a decision "not recommended for full text publication," the Sixth Circuit struck down provisions in an employment application that required prospective employees to waive their rights to a judicial forum for employment-related claims and to agree to shorten the statute of limitations for all employment disputes to six months. According to the Court, the employees had not knowingly, intelligently, and voluntarily waived their right to a judicial forum because when the employees signed the waivers "they had no idea" of what the grievance process they were agreeing to entailed.

Continue reading "Employees Not Required to Arbitrate Employment Claims (Alonso v. Huron Valley Ambulance Inc., 6th Cir.)" »

Today, the Ninth Circuit certified an enormous class action against Wal-Mart Stores based on alleged gender discrimination in violation of Title VII "encompassing all women employed by Wal-Mart at any time after December 26, 1998," subject to some modifications. As set forth in the Court's decision, this employee class action targets the following:

Plaintiffs allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men. Plaintiffs contend that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.

The complete, 137-page opinion is here: Dukes v. Wal-Mart Stores.

In Gross v. FBL Financial Services, Inc. (Gross), an important 5-4 employment law decision, the Supreme Court of the United States held that a "mixed-motive" jury instruction is "never proper" in a suit brought under the Age Discrimination in Employment Act (ADEA). A "mixed-motive" case exists where the employee presents evidence that the employer's adverse decision was motivated, in part, by unlawful discrimination even if the employer was motivated by other, lawful reasons.

In analogous Title VII cases, where an employee presents direct evidence that the employer's adverse decision was motivated in part by unlawful employment discrimination (because of race, sex, religion, national origin, or color), a burden-shifting mechanism kicks in. Instead of the norm where the burden of persuasion rests with the employee, the jury in a Title VII mixed-motive case is instructed that the employer bears the burden of persuasion to establish that it would have made the same adverse decision absent the alleged unlawful discrimination.

Based on the majority's view of differences in the statutory language of Title VII and the ADEA, the Court refused to apply Title VII's burden-shifting mechanism to ADEA claims. Under Gross, regardless of whether an employee presents direct (or other) evidence that age was a motivating factor in the employer's adverse decision, the employee always retains the burden of persuasion to establish "but-for" causation, i.e., that age discrimination was, in fact, the reason for the adverse decision. As a practical matter, Gross makes age discrimination claims, which were already difficult for employee's to establish because of the comparatively high "but-for' causation standard, ever more difficult from the employee's perspective.

Held: Vacated and remanded, THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

Reversing a National Labor Relations Board (NLRB) decision, a divided 2-1 panel of the Fourth Circuit held that an employer's termination of a union employee for calling a supervisor a "stupid f***ing moron" did not violate the National Labor Relations Act (NLRA). The full text of the decision and pointed dissent can be found here.

Media General Operations, Inc., d/b/a The Tampa Tribune v. National Labor Relations Board, No. 08-1153 (March 13, 2009). Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.

The U.S. Court of Appeals for the Fourth Circuit's recent decision in Dotson v. Pfizer explains that Family and Medical Leave Act ("FMLA") rights are triggered by an employee's request for leave covered by the FMLA, without regard to whether the employee mentions "FMLA" or uses any other term of art in the statute. Since the Fourth Circuit decides appeals from Virginia federal courts, the decision is particularly important for Virginia employers.

In this case, employee James Dotson (Dotson) was awarded more than $722,000 on his FMLA interference and retaliation claims, including $333,305 in statutory liquidated damages, $375,000 in attorneys' fees, and $14,265 in costs. Each party appealed different rulings of the trial court. On appeal, the Fourth Circuit affirmed the judgment, except as to the trial court's denial of pre-judgment interest. Holding that pre-judgment interest on FMLA damage awards is mandatory, the Fourth Circuit remanded the case, directing the trial court to recalculate Dotson's damage and fee awards to include pre-judgment interest.

The following arguments made by Pfizer and rejected by the Fourth Circuit provide clear guidance to employers that the burden is on employers -- not employees -- to understand and properly apply the FMLA:

Continue reading "Family and Medical Leave Act: "Magic Words" Not Required to Invoke FMLA Rights (Dotson v. Pfizer, March 4, 2009, 4th Circuit)" »

In two recent decisions, the U.S. Court of Appeals for the Fourth Circuit focused on relevant standards of review for two issues of interest to Virginia immigration and employment lawyers:

In Woods v. Prudential Ins. Co., No. 07-1580 (June 11, 2008), the Fourth Circuit concluded that the trial court erroneously applied the "abuse-of-discretion" standard of review to plaintiff's ERISA claim instead of the more rigorous "de novo" standard of review to determine whether the plan administrator properly denied plaintiff's benefit claim.

In Teshome-Gebreegziabher v. Mukasey, No. 08-1060 (June 16, 2008), the Fourth Circuit clarified that the "clear and convincing" standard of review applies to an immigrant's motion to stay deportation.

According to the Richmond Times-Dispatch, approximately 230 workers have filed a federal lawsuit against Smithfield Foods Inc. under the Fair Labor Standards Act alleging that the Company failed to pay 30-45 minutes of daily overtime for donning and doffing of protective gear, walking to and from the production line, and working after the day officially ends.