New Developments Affecting Grimm Transgender Lawsuit

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Issues involving the rights of transgender individuals continue to be in flux. President Trump’s ban on transgender individuals serving in the U.S. military has been stymied by the courts, and several states have enacted legislation prohibiting discrimination on the basis of sexual orientation or gender identity discrimination.

Here in Virginia, the efforts of Gavin Grimm to use the high school bathroom that corresponds to his gender identity continues to wend its way through the courts. As DiMuroGinsberg attorney Jayna Genti advises in her article in the November, 2017 issue of the Virginia Employment Law Letter, Grimm’s case is now back in Norfolk federal district court, where the judge presently is considering whether to dismiss the suit because Grimm graduated from high school in June, 2017.

Earlier this year, Grimm’s case was set for decision by the U.S. Supreme Court. At the last moment, however, the high court remanded the case to the Fourth Circuit Court of Appeals, based in Richmond, for further consideration in light of the position taken by the U.S. Department of Justice that federal education law does not protect transgender students. The Fourth Circuit, in turn, decided that the issues in Grimm’s case should be handled in the first instance by the federal district court in Norfolk, where the case was filed over three years ago.

If you would like to obtain a copy of Jayna’s article entitled “New Developments Affecting Grimm Transgender Lawsuit,” please contact Michele Kraftschik.

Contact Michele

Employer to Pay Double Damages in FMLA Suit

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When an employee takes leave under the Family and Medical Leave Act (“FMLA”), the employee is expected to specify a return-to-work date. If the employee fails to come back to work following the leave, as a general matter, the employer may terminate the wayward employee.

However, employers must be careful about acting too swiftly. The consequences of a premature termination can be quite significant, as a Virginia employer recently found out when a Virginia federal court awarded over $700,000 to a wrongfully terminated employee.

An article discussing the case, Perry v. Isle of Wight County, by DiMuroGinsberg attorney, Jayna Genti, appears in the October, 2017 issue of the Virginia Employment Law Letter. The article explores the facts that gave rise to the lawsuit as well as the rationale of the court in deciding to award the plaintiff double damages for the employer’s unreasonable conduct.

If you would like to obtain a copy of the article entitled “Employer Hit With Bad Faith Double Damages in FMLA Suit,” please contact Michele Kraftschik at mkraftschik@dimuro.com.

Avoiding ADA Accommodation Mistakes

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There continues to be an increase in workplace accommodation requests by individuals with disabilities. Where a disabled individual requests a workplace accommodation, the Americans with Disabilities Act (“ADA”) requires employers to respond to the request and attempt to accommodate an individual’s disability.

Recently, DiMuroGinsberg partner, Jonathan R. Mook, was quoted in an article in the October, 2017 issue of HR Magazine about the various steps that employers should follow in managing ADA accommodation requests. As Jonathan observed, “employers are seeing more requests, and they are taking them more seriously.” This is because, as Jonathan explains, to litigate an ADA accommodation claim usually “will cost ten to twenty times the amount that it would have cost the employer” to implement a reasonable request. Additionally, an employer should designate one person or unit in the HR department to receive and manage all accommodation requests. As Jonathan advises, such requests, “should not be handled ad hoc by a supervisor.”

If you would like to obtain a copy of the article entitled “Trust the Process,” by Jennifer Arnold, please contact Jonathan at jmook@dimuro.com.

DiMuroGinsberg awarded 12 “Best Law Firms” rankings

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We are pleased to announce that DiMuroGinsberg has received 12 practice area rankings on the 2018 “Best Law Firms” list published by U.S. News & World Report and Best Lawyers®.

National Awards:

Tier 3

  • Commercial Litigation
  • Real Estate Law

Metropolitan Washington DC Awards

Tier 1

  • Commercial Litigation
  • Criminal Defense: General Practice
  • Ethics and Professional Responsibility Law
  • Personal Injury Litigation – Plaintiffs

Tier 2

  • Criminal Defense: White-Collar
  • Real Estate Law

Tier 3

  • Business Organizations (Including LLCs and Partnerships)
  • Corporate Law
  • Employment Law – Management
  • Personal Injury Litigation – Defendants

Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise.

For further information about the Best Law Firms designations and to view our clients’ comments, visit our page at www.bestlawyers.com.

Click here to download full article.

The Impact of the Charlottesville Protests on Virginia Employers

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By: Stacey Rose Harris and Noor Chughtai

Since 1924, a statue of Confederate general Robert E. Lee riding his horse Traveller has stood in what is now known as Emancipation Park in Charlottesville. Until last year, most people paid little heed to the statue. But that changed dramatically when the city voted to remove the statue as part of the recent national trend to reconsider public displays that may be perceived to honor those who fought to uphold slavery.

The Charlottesville Protests

We know all too well that on Friday, August 11th, white supremacists and neo-Nazis gathered to protest the removal of the statue. And, when counter-protestors from movements such as Black Lives Matter arrived on scene, chaos and brutality followed. Many were injured, and a young woman was killed after being rammed by a car driven by a person who had espoused white supremacist views.

Americans nationwide reacted in horror to the violence that occurred in Charlottesville and to the sight of neo-Nazis parading in a torch lit march on the grounds of the University of Virginia, founded by Thomas Jefferson. Such a sight certainly raised concerns about the prevalence of racism and anti-Semitism within our society.

Political Speech and Employment

In the wake of the violence in Charlottesville, it is not surprising that many persons have taken it upon themselves to pressure employers to fire those who attended the protest as white supremacists and neo-Nazis. Indeed, a twitter account with the handle @yesyoureracist has sought help in identifying those who participated in the protest that sided with the white nationalists. With the assistance of their followers, @yesyoureracist has managed to pressure a restaurant in California to secure the resignation of an employee who participated in the Charlottesville protest, and it is likely that other employers will come under similar public pressure.

Such pressure can be of significant concern to a business. It is important for a company to maintain its reputation and to take steps to prevent anything that could cause it to be the subject of disrepute. A business also may wish to use its position within the community to send a message that rejects ideologies that are threatening to the public good and are inimical to what the country stands for. Thus, many employers are now asking whether they should consider firing a worker for off-the-job political conduct or speech that is racist and beyond the pale, and if they do, could they face legal repercussions.

Legal Protections for Speech

Under Title VII of the Civil Rights Act of 1964, employees are protected from being fired based on such protected categories as race, color, sex, national origin and religion. Political beliefs, however, are not protected by Title VII. The First Amendment prohibits the government from interfering in a person’s ability to exercise his or her freedom of speech, and it protects governmental employees. Private employers, however, are not subject to the same constitutional restraints.

In addition to federal laws, certain states have laws that serve to protect employees due to their political involvement and activities. New York and California are two such states with laws on the books that do, in fact, limit the freedom of private employers to terminate employees for off-duty political speech. In New York, certain private employers are precluded by statute from terminating workers for “lawful” political speech outside the workplace, which can include anything from participation in an legally-sanctioned rally to social media posts. Similarly, in California, private employers are prohibited from retaliating against employees for any legal, off-duty political speech, and further, may not make any rule or policy that could be construed to forbid, or control, in any way, an employee’s political speech.

Virginia, however, is not one of those states. Virginia strongly adheres to the doctrine of at-will employment, and a private employer is entitled to hire or fire an employee for any reason that is not discriminatory (i.e., on the basis of race, gender, national origin, religion) or in violation of public policy (i.e. for refusing to commit a crime or engage in an otherwise unlawful act). Thus, a private employer in Virginia may terminate an employee because it does not approve of that employee’s participation in political protests, because it does not approve of the way the employee dresses, or for no reason at all. Indeed, if you are firing an employee for political speech in an at-will state such as Virginia, the best policy may be to give no reason except that the employee’s services are no longer needed. Refraining from providing any further explanation will also help avoid any potential defamation claims by the employee if a prospective employer inquires as to the reason for the termination.

Bottom Line:

For a Virginia employer, ultimately the question of whether to terminate an employee for off-duty conduct—political or otherwise—of which the employer disapproves—will likely come down to a common-sense balancing test. On one hand, you should ask whether the employee’s conduct may be harmful to your business, or simply represents the type of conduct you choose not to support. This should be balanced against potential distraction and upheaval at the work place that may be generated by the termination of the employee, and any potential perceived unfairness by other employees or the public.

That being said, if you truly are interested in taking a moral stand against racism and anti-Semitism in the wake of the horrific events in Charlottesville, terminating employees who have racist views you find abhorrent may not be the best way to do so. Rather, a more productive response may be to reinforce in your workplace what Mary T. Barra, CEO of General Motors, has said are the “values and ideals that unite us – tolerance, inclusion, and diversity.” We all know that acting responsibly and leading by example is the best way to work toward what Kenneth Frazier, CEO of Merck, has said is the “American ideal that all people are created equal.” Charlottesville has reminded us that we have a ways to go before we achieve that ideal. We cannot rest on our laurels.

Noor Chughtai was an intern this past summer with DiMuroGinsberg, P.C. Stacey Rose Harris is a partner at DiMuroGinsberg. She may be reached at sharris@dimuro.com.

Click here to download full article.

Is It OK To Fire An Employee For A False Harassment Report?

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Federal anti-discrimination law generally protects an employee who reports discriminatory conduct, including sexual harassment at work. However, do the legal protections apply when an employee knowingly makes a false report of being harassed?

Recently, the Fourth Circuit Court of Appeals (whose rulings apply to all Virginia employers) answered this question with a definitive “no.” An article discussing the Fourth Circuit’s decision by DiMuroGinsberg attorney, Jayna Genti, appears in the August, 2017 issue of the Virginia Employment Law Letter. As Jayna’s article explains, the focus of analysis as to whether an employer acted unlawfully is on the employer’s subjective motivation for the action it took. If the employer’s subjective motivation was prompted by its belief that the report of harassment was knowingly false, then the employer may not be liable for illegal retaliation.

If you would like to obtain a copy of Jayna’s article entitled “Fourth Circuit: It’s OK to Fire Employee for False Harassment Report,” please contact Michele Kraftschik at mkraftschik@dimuro.com.

Is Your Workplace Going to the Dogs (or Pigs)?

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We all are familiar with individuals who have sight impairments and use a service dog to navigate public spaces or assist an employee in the workplace. The Americans with Disabilities Act (“ADA”) contains specific provisions entitling an individual with a disability to bring a service animal into businesses open to the public in most situations.

However, the employment provisions of the ADA “do not limit the types of animals that an employee may need in the workplace as a reasonable accommodation,” according to DiMuroGinsberg partner, Jonathan R. Mook, in an article in SHRM Online. If a disabled employee has a snake, bird or, even, a pig as a comfort animal, an employer may need to assess the employee’s request to bring the animal to work and decide whether the request would create an undue hardship on the employer’s operations. The article discussing the assessment process, entitled “Set Ground Rules for the Different Types of Service Animals,” may be found at here.

If you are interested in obtaining additional information about an employer’s obligation to reasonably accommodate disabled employees, you may contact Jonathan at jmook@dimuro.com.

Best Practices for Addressing Workplace Crime

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How should an employer react when an employee is accused of committing a crime? How can an employer protect its rights while shielding the business from legal scrutiny? Should you talk to the accused employee about the accusations?

Answers to these and other questions are the subject of an article by DiMuroGinsberg partner, Andrea Moseley. The article entitled, “My Employee Is Accused of a Work Related Crime – What Should I Do?” appears in the online employment law newsletter, HR Hero, by BLR publications. As Andrea’s article explains, properly dealing with an employee who has been accused of criminal behavior will depend upon the specific circumstances.

Where an employee is formally accused of wrongdoing and is represented by counsel, Andrea advises that an employer should not discuss the matter without first speaking with the employee’s attorney. Additionally, in situations where an employer has received a request for records or a subpoena, it usually is advisable for the employer to retain its own counsel to evaluate the propriety of the records request, especially where the request may be invasive, expensive or burdensome to comply with.

Click here for a copy of Andrea’s full article.

Seven DiMuroGinsberg partners recognized by The Best Lawyers in America©.

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DiMuroGinsberg is proud to announce that the following attorneys will be listed in the 2018 edition of The Best Lawyers in America© for their achievement in certain fields of law.

  • Bernard J. DiMuro
    • Commercial Litigation
    • Ethics and Professional Responsibility
  • Nina J. Ginsberg
    • Criminal Defense – General Practice
    • Criminal Defense – White-Collar
  • Michael S. Lieberman
    • Appellate Practice
  • Jonathan R. Mook
    • Employment Law – Management
  • Harvey B. Cohen
    • Commercial Litigation
    • Personal Injury Litigation – Plaintiffs
    • Personal Injury Litigation – Defendants
  • Stacey Rose Harris
    • Commercial Litigation
  • C. Thomas Hicks III
    • Business Organizations including LLCs and Partnerships
    • Corporate Law
    • Real Estate Law

The Best Lawyers in America selection process involves a rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. We are very proud of our attorneys for being recognized by their peers for excellence in their specialties of law.

Fourth Circuit Revives FMLA Claims

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Written by Jayna Genti

The Family and Medical Leave Act (“FMLA”) generally requires employers of 50 or more employees to allow their employees to take up to 12 weeks of unpaid leave for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse, or parent who has a serious health condition.  A question arises, however, as to who is the “employer” for FMLA purposes where two or more businesses or entities exercise control over the working conditions of the employees, such as where a company outsources its payroll and administrative functions to a staffing firm.  In that case, there would be a primary and secondary  employer of the employees, which have overlapping obligations under the statute. This principle is illustrated by a recent Fourth Circuit decision involving the City of Alexandria.

Quintana’s Employment

In 2011, Monica P. Quintana (“Quintana”) began working for the City of Alexandria (“City”) answering phone calls from residents and directing callers to the appropriate City department.  Approximately a year later, the City contracted with Randstad US, L.P. (“Randstad”) to administer the payroll and perform related administrative functions for Quintana’s position.

The City characterized Randstad as Ms. Quintana’s new employer and told her to complete portions of a Randstad employment application form.  The City, however, also presented the change as a condition of Quintana’s continued employment with the City and told Quintana that all other aspects of her employment would remain the same.

For the remainder of Quintana’s time in her position, Randstad’s role remained limited to payroll and related administrative functions.  Quintana continued to report to City supervisors regarding all matters not related to payroll, and the City continued to control Quintana’s job title, compensation, work schedule, job functions and day-to-day work duties.

Quintana Takes Leave

On January 9, 2014, Quintana learned that her husband had been hospitalized and was in a coma. Later that day, Quintana asked her supervisor, Lisa Baker, who was a City employee, if she could take leave starting the next day to care for her husband.  Baker told Quintana that she could take leave without losing her job, as long as she was not gone for more than three months.  No one at the City indicated that Quintana was required to notify or obtain approval from Randstad to take leave.  Nonetheless, Quintana still notified Randstad that she was taking leave to care for her husband, with permission from the City.

On January 10, Quintana requested any necessary Family and Medical Leave Act (“FMLA”) forms from the City.  The City never provided Quintana with the forms or any notice about her rights and responsibilities under the FLMA.  After Quintana commenced her leave, she updated her supervisors and co-workers at the City regarding her husband’s condition and the status of her leave.

Quintana’s Termination

On January 16, Quintana notified Baker that she hoped to return to work soon.  However, on January 17, Baker emailed Quintana indicating that because the City had not heard from her in over a week, the City had replaced her.  This email was the only notice of Quintana’s termination.  Quintana sought reinstatement or alternative employment numerous times from the City and from Randstad, but without success.

The Lawsuit

Quintana sued the City and Randstad in Alexandria federal district court, asserting violations of the FMLA.  Quintana claimed that the City, as her primary employer, and Randstad, as her secondary employer, both denied her rights under the FMLA and retaliated or discriminated against her for exercising those rights.  In the alternative, Quintana claimed that Randstad was her primary employer and the City was her secondary employer.

Both the City and Randstad asked the district court to dismiss the case, contending that Quintana’s complaint failed to allege any FMLA violations.  In addressing the City’s request, the federal court assumed that the City was the secondary employer of Quintana and concluded that she had not alleged sufficient facts in her complaint to state a claim against the City.

Quintana appealed the decision to the Fourth Circuit Court of Appeals , which is based in Richmond, and whose decisions apply to the federal courts in Virginia, as well as those in West Virginia, Maryland, and North and South Carolina.

Fourth Circuit Decision

In addressing Quintana’s appeal, the Fourth Circuit explained that under the FMLA, only the primary employer is responsible for giving required notices to employees seeking leave, providing FMLA leave, and restoring the employee to his or her old job following FMLA leave.  By contrast, the secondary employer has a so-called “conditional reinstatement obligation” and is responsible only for accepting the employee returning from FMLA leave.  Both primary and secondary employers, however, are liable for “interference” and “retaliation” under the FMLA.  Additionally, in determining which of two joint employers is the primary employer, the Fourth Circuit said that a court should focus on which employer has the authority or responsibility to (1) hire and fire, (2) assign or place the employee, (3) make payroll, and (4) provide employment benefits.

In considering whether Quintana’s complaint stated an FMLA claim against the City as a primary employer, the Fourth Circuit emphasized that “[i]t is not fatal to Ms. Quintana’s complaint that all factors do not strongly indicate that the City is her primary employer.”  In her complaint, Quintana alleged that (1) the City had the authority and responsibility to hire and fire her and to assign or place her, (2) the City determined her compensation, and (3) the City unilaterally interviewed, hired, assigned, evaluated, and terminated her.  In light of these allegations, the Fourth Circuit ruled that Quintana had sufficiently alleged that the City was her primary employer and, therefore, had the responsibility to provide FMLA leave and restore her to her job following leave.

Moreover, even if the City were a secondary employer, the Fourth Circuit found that Quintana had alleged numerous instances of conduct by the City that could establish that it unlawfully interfered with, or denied, her FMLA benefits.  Such interference included failing to give proper notice or approval of Quintana’s request for FMLA leave, failing to restore Quintana to her phone answering position or to a substantially equivalent position, and terminating Quintana’s employment while she was on FMLA qualifying leave.

Finally, the Court found that the January 17 email from Baker terminating Quintana because she took leave sufficiently demonstrated that the City terminated Quintana because she engaged in activity protected by the FMLA.  The Fourth Circuit’s decision is Quintana v. City of Alexandria, No. 16-1630 (4th Cir. June 6, 2017).

 The Takeaway

If you are an employer covered by the FMLA, prudence dictates that you should comply with the requirements of the statute whether you believe you should be classified as a primary employer or a secondary employer.  This is true for two reasons.  First, because the determination of primary versus secondary employment is predicated on a fact-based analysis, which requires weighing a number of factors, the outcome of the analysis can change over the course of an employee’s tenure.  Accordingly, rather than having to engage in a new evaluation each time one of the various factors changes, it usually is much easier to assume that all of the FMLA obligations apply.  Second, both primary and secondary employers are responsible for ensuring that they do not interfere with, or retaliate against, an employee who seeks to exercise his or her FMLA rights.

Thus, the safest route for you is not to rely on a specific employer designation as being primary or secondary, but, instead, to comply to the best of your ability with all the requirements of the FMLA that are under your control.  And, when in doubt, it always is wise to consult with legal counsel experienced in these matters to avoid the possibility that a lawsuit will be filed against you, as occurred with the City of Alexandria.

Editor’s Note:   A discussion of best practices to follow in outsourcing various business functions may be found in the article “Avoiding Employment Problems When You Decide to Outsource,” by DiMuroGinsberg partner, Milton Whitfield, which appears in the December, 2016 issue of the Virginia Employment Law Letter.

This article appears in the July, 2017 issue of the Virginia Employment Law Letter.

Click here to download a copy of the article.

To subscribe to the Virginia Employment Law Letter, please contact mkraftschik@dimuro.com.