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by ARLnow.com — August 27, 2014 at 3:00 pm 646 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. If an employee makes mistakes because he has dyslexia, can an employer fire him because of poor performance?

A. The American with Disabilities Act (ADA) prohibits employers from discriminating against employees and job candidates who have a “a physical or mental impairment that substantially limits one or more major life activities.”

Learning is considered a “major life activity,” and dyslexia is a learning disability. So long as the person with dyslexia is qualified for a position, meaning he or she can perform its essential functions with or without a reasonable accommodation, employers generally should not terminate someone solely because of this learning disability.

In Shively v. City of Martinsville (2009), the U.S. District Court for the Western District of Virginia defined “dyslexia” as “a cognitive condition that affects one’s ability to read and process the written language. In many instances, letters and numbers are transposed in the mind, making it difficult to accurately convey letters and numbers in the proper order.” The court noted that the tendency for people with dyslexia “to confuse or transpose numbers and letters… would affect a broad class of jobs, such as accounting, bookkeeping, or practicing law.”

Employers may be required to provide qualified employees with a reasonable accommodation, such as the provision of a reader or more time to complete a task. An accommodation would not be reasonable if it imposes an undue burden on the employer. A diagnosis of dyslexia alone may not be enough to require an employer to provide a reasonable accommodation.

“A person does not qualify as ‘disabled’ simply by submitting evidence of a medical diagnosis of an impairment,” the U.S. District Court for the District of Maryland said in Fleetwood v. Harford Systems Inc. (2005). “Rather, an individual must offer evidence that the limitation caused by the impairment ‘prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives,’ and that the impact of the impairment is permanent or long-term.”

Even if the dyslexia does not result in an actual limitation caused by the impairment, a diagnosis of this learning disability could result in a perceived substantial limitation in a major life activity. Such a perceived limitation would afford an employee ADA protection, but “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that this perception caused the adverse employment action,” the U.S. District Court for the Western District of Virginia said in Marshall v. Wal-Mart Stores (2001).

In Shively, the court noted that an employee must more than “merely assert that the Defendants perceived her as being disabled; she must allege all of the elements of her cause of action. She must allege that Defendants perceived her as suffering from an impairment that substantially limited one or more major life activities.”

People who believe an employer discriminated against them because they have dyslexia, or are perceived to suffer from an impairment that substantially limits one or more major life activities, should immediately contact an employment law attorney who could prepare a disability discrimination lawsuit.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com Sponsor — August 13, 2014 at 2:30 pm 430 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Before firing me, my supervisor used to tease me about being too old. He put me through much emotional distress and it has only worsened because I cannot find new employment. If I win my age discrimination lawsuit, what kind of damages can I expect to receive?

A. When it comes to damages, the Age Discrimination in Employment Act (ADEA), which protects workers 40 years of age and older from age discrimination, differs from other federal anti-discrimination laws.

For instance, while victims of race, sex, national origin, or religious discrimination can receive under federal law a monetary award for their pain and suffering or emotional distress caused by the employer’s unlawful conduct, such compensatory damages are not extended to victims of age discrimination. Instead, the ADEA limits its relief to “judgments compelling employment, reinstatement, or promotion, the recovery of unpaid minimum wages or overtime pay, and reasonable attorneys’ fees and costs,” the 9th U.S. Circuit Court of Appeals noted in Ahlmeyer v. Nevada System of Higher Education (2009).

In the ADEA, Congress explicitly stated the law’s purpose is “to help employers and workers find ways of meeting problems arising from the impact of age on employment.” The 9th Circuit in Ahlmeyer noted that this intent resulted in a “narrower scope of the ADEA [that] is reflected in the more limited relief Congress afforded plaintiffs.” Hence, there is the ADEA’s exclusion of compensatory damages for pain and suffering and punitive damages. These types of damages are available under Title VII of the Civil Rights Act.

To an extent, the unavailability of compensatory damages for pain and suffering and punitive damages in ADEA cases can be offset by the availability of liquidated damages in cases where the employer willfully discriminated against the employee or applicant because of his or her age. Similar to willful violations to the Fair Labor Standards Act (FLSA), which provides minimum wage and overtime protections, willful ADEA violations require the payment of lost wages and an equal amount as liquidated damages.

Only relief in the form of “amounts owing as unpaid wages or unpaid overtime compensation” can be doubled. Front pay, such as unrealized stock option appreciation, cannot be doubled, the 10th U.S. Circuit Court of Appeals noted in Greene v. Safeway Stores, Inc. (2000). While not the same as compensatory damages for pain and suffering and punitive damages, this doubling of lost wages can represent a significant award.

For instance, the 4th U.S. Circuit Court of Appeals held that the plaintiff in Loveless v. John’s Ford, Inc. (2007) was entitled to liquidated damages because a jury had found his employer willfully violated the ADEA when it terminated his employment. After the plaintiff worked at an automobile dealership for 28 years, his supervisor told him he was being “retired.” The supervisor said he wanted to hire “younger, more aggressive Managers, people that he [could] groom to the way that he does business.” The supervisor also referred to another older employee as a “dinosaur.”

A jury decided the employer willfully discriminated against the plaintiff on the basis of his age and awarded him $250,000 in back wages. A district court later denied the plaintiff liquidated damages because “such an award would bestow a windfall” on him. However, the 4th Circuit ruled the plaintiff had “suffered a pecuniary loss of $250,000, and thus a liquidated damages award would not bestow a windfall on him.”

Workers who believe they have been subjected to age discrimination should immediately contact an employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com Sponsor — July 30, 2014 at 2:30 pm 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I did not file any formal complaint after my supervisor sexually harassed me, but I did make it crystal clear to management that I was not happy with the situation. Am I still protected against retaliation?

A. Employees can fight sex discrimination and sexual harassment by either participating in the legal system created by Title VII of the Civil Rights Act to counter this problem, or by opposing such unlawful conduct in the workplace. Either way, employees should be protected against retaliation. However, it is not always easy to prove an employee’s opposition activity is protected under the law.

Title VII protects workers who “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” For the most part, these participation protections address activities that are straightforward and tied to definitive actions: either an employee filed a lawsuit in federal court or a complaint with the Equal Employment Opportunity Commission, or he or she did not; or either an employee talked to an investigator or testified in court, or he or she did not.

Title VII also protects workers who “opposed any practice made an unlawful employment practice.” However, as the U.S. District Court for the Eastern District of New York noted in Perry v. Kappos (2011), “‘opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful…’ whereas ‘[participation] activity is protected conduct regardless of whether that activity is reasonable.’” Not only must the employee’s belief that the employer engaged in discrimination be reasonable; so, too, must the employee’s opposition activity be reasonable.

The utilization of formal grievance procedures, informal protests and the vocalization of opinions all fall within the meaning of opposition activity, according to the 4th U.S. Circuit Court of Appeals in Laughlin v. Metropolitan Wash. Airports Auth. (1998). Such opposition activity should not be “disruptive or disorderly,” and it must strike a balance between the intent of the law and Congress’ “desire not to tie the hands of employers in the objective selection and control of personnel.”

In Laughlin, the 4th Circuit found that a secretary who copied confidential information and sent it to an outside party — believing the information represented the employer’s attempt to cover up a discriminatory act — engaged in opposition activity that was “disproportionate and unreasonable under the circumstances.” Consequently, the court found the secretary’s actions did not merit protection against retaliation under Title VII and the employer’s decision to terminate her “was sound.”

One type of opposition activity that merits Title VII’s protection against retaliation involves “complaining to the employer… and participating in an employer’s informal grievance procedures… when done in a manner that is ‘not disruptive or disorderly,’” the 4th Circuit noted.

Employees who believe they have been subjected to unlawful retaliation, either for their participation of opposition activity, should immediately consult with an employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by Ethan Rothstein — July 16, 2014 at 2:30 pm 411 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My supervisor hates the fact that I have to miss work every so often so I can fulfill my obligations to the Reserves. Lately, he’s been reducing my responsibilities and pushing me to change my hours or move me to another department so I do not have to work under him. What should I do?

A. Members of the National Guard and Reserves already sacrifice much in their service to America; they should not have to sacrifice more because an employer resents their obligations to the military. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from denying members of the armed forces from any benefit of employment because of their military obligations.

The term “benefit of employment” is fairly broad in that it is not limited to the usual set of employee benefits, such as a health plan, pension plan, bonuses, and vacation. A benefit of employment also includes “any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement.” Reductions in responsibilities, shift changes and transfers strike at the very benefits of employment that USERRA aims to protect.

USERRA violations occur “only if the employee’s military status is a ‘motivating factor,’” the 4th U.S. Circuit Court of Appeals said in Francis v. Booz Allen & Hamilton, Inc. (2006).

“To establish a certain factor as a motivating factor, a claimant need not show that it was the sole cause of the employment action, but rather that it is one of the factors that a truthful employer would list if asked for the reasons for its decision,” the U.S. District Court for the Western District of Virginia said in Baylor v. Comprehensive Pain Mgmt. Ctrs. (2011).

Given that “discrimination is seldom open or notorious,” USERRA cases often rely on circumstantial evidence. Such circumstantial evidence could include the timing between the adverse employment action and the employee’s military service, differing explanations for why such actions were taken, negative comments made toward or about service members, and more favorable treatment of non-service member employees, according to the U.S. Court of Appeals for the Federal Circuit in Sheehan v. Department of the Navy (2001).

Employees who believe their employer has discriminated against them because of their military duty should immediately consult with an experienced federal employment law attorney who can prepare for them a USERRA lawsuit and represent them in federal court.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — July 2, 2014 at 2:30 pm 773 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I’m swamped at the office and often work 12-hour days. My employer says I’m not allowed to work overtime, so I end up working off the clock. Can I collect overtime for this off the clock work?

A. Employers cannot prohibit overtime and knowingly benefit from it without compensating employees for such work. The figure of speech, “You cannot have your cake and eat it, too,” certainly applies to such situations.

The Fair Labor Standards Act (FLSA) requires employers to pay employees not exempt from the law overtime at a rate of at least time-and-a-half for hours worked over 40 hours during a work week. Exempt employees include certain executive, administrative, professional and outside sales employees, among others.

The fact that an employee was not ordered to stay after hours and voluntarily worked off the clock to complete certain tasks does not automatically disqualify him or her for overtime. “Work not requested but suffered or permitted is work time… The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time,” federal regulation states.

As this regulation suggests, employer knowledge is important to FLSA overtime claims. Knowledge that an employee is working off the clock makes the employer obligated to provide compensation for such work, the U.S. District Court for the Eastern District of Virginia noted in Truslow v. Spotsylvania County Sheriff (1992).

Employers’ refusal to authorize overtime does not necessarily make them immune to FLSA overtime claims. Employers should not close their eyes to the off-the-clock work performed by employees and expect these refusals to save them in court.

As the Eastern District Court noted in Truslow, employers must act to stop any unwanted overtime work they know, or should know, is being performed. An employer cannot “stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.”

This knowledge requirement could be satisfied if the employer observed the employee working overtime or was told he or she was working overtime. Additionally, an employer could have constructive knowledge of overtime work performed in situations where a “plaintiff’s job required the task that took up the overtime hours and plaintiff had not been prohibited from working the extra time,” the Eastern District Court said in Gonzales v. McNeil Technologies, Inc. (2007).

Employees who believe they are not being compensated for overtime hours worked off-the-clock should consult with an experienced employment law attorney who can prepare an FLSA lawsuit. An attorney can help the employee calculate how much overtime compensation he or she should receive and show that the employee knew or should have known such overtime work was being performed.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

 The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by Ethan Rothstein — June 18, 2014 at 2:30 pm 507 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. If someone is fired and replaced by another person of the same race or sex, would a discrimination lawsuit filed by the terminated employee have a leg to stand on in court?

A. An employer’s decision to replace a terminated black or female employee with a white or male employee may raise an inference of race or sex discrimination. This inference usually will not be drawn when an employer replaces a black or female employee with someone of the same protected class. However, under certain circumstances, the opposite may be true.

Usually, for a discrimination lawsuit to avoid dismissal, courts will require an employee in a protected class (e.g., black or female) to show that she “was performing her job duties at a level that met her employer’s legitimate expectations at the time of the adverse employment action” and “the position remained open or was filled by similarly qualified applicants outside the protected class,” the 4th U.S. Circuit Court of Appeals said in Lettieri v. Equant Inc. (2007).

However, the 4th Circuit has created a so-called “different decision-maker exception” to this outside-the-protected-class requirement. When the person who fired the employee does not hire the replacement employee, there is “no probative value whatsoever as to whether the first individual’s firing decision was motivated by the plaintiff’s protected status,” the court said in Lettieri.

In such situations, “the replacement hiring decision would not have contributed to a presumption of gender discrimination on the part of the first decision-maker, who fired the plaintiff.” The 4th Circuit identified another exception to the outside-the-protected-class requirement that applies to cases where a defendant employer hired someone within the plaintiff employee’s protected class “to disguise its own act of discrimination toward the plaintiff.”

Employees who believe they have been subjected to unlawful discrimination should immediately contact an employment law attorney. If the employer replaced you with someone of the same protected class, an attorney could help show the same person was not behind the hiring and firing actions or that the hiring of someone of the same protected class was a ruse meant to conceal a discriminatory firing.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

 The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — June 4, 2014 at 2:45 pm 911 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. What can I do if my former employer, against whom I filed a race discrimination complaint, is trying to sabotage my efforts to get a new job?

A. Most employers know, or at least they should know, that federal and state laws prohibit them from retaliating against employees for engaging in protected activities such as filing a discrimination lawsuit or a complaint or participating in an Equal Employment Opportunity Commission workplace investigation. But the fact that an employee no longer works for the employer, does not mean it can badmouth him or her with prospective employers.

Negative job references, along with other efforts to harm a former employee’s employment or employment prospects, can qualify as the type of retaliation prohibited by laws such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Virginia Human Rights Act. However, that does not mean employers are barred from giving a negative reference for a former employee. If the employee performed poorly and there is documentation saying as much, a negative job reference may be merited, as the 4th U.S. Circuit Court of Appeals noted in Harris v. Prince George’s County Pub. Sch. (1998).

Many employers will attempt to sidestep this issue by providing only basic information, such as dates of employment, when providing references. But a refusal to provide a post-employment job reference because of an employee’s prior protected activity could constitute unlawful retaliation, the 2nd U.S. Circuit Court of Appeals noted in Pantchenko v. C. B. Dolge Co. (1978).

Employers are also asking for trouble if they try to brand a former employee as a troublemaker by calling attention to an Equal Employment Opportunity (EEO) charge or discrimination lawsuit. As the U.S. District Court for the Eastern District of Virginia explained in Coles v. Deltaville Boatyard, LLC (2011), a former employer’s attempts to disparage others from employing a complainant would constitute actionable retaliatory conduct because it would dissuade “a reasonable worker from making or supporting a charge of discrimination… Certainly, an employee recently fired by one employer might be dissuaded from filing an EEOC charge for that termination if he knows that it would lead to a warning that he might do the same to subsequent employers.”

People who believe a former employer is retaliating against them for trying to protect themselves against discrimination should immediately contact an employment law attorney. Depending on the circumstances, an attorney could help them recover lost wages and compensatory damages for emotional distress caused by the former employer’s unlawful retaliation.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com Sponsor — May 21, 2014 at 2:30 pm 787 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Several weeks ago I told my employer that a supervisor had been sexually harassing me, and today I was fired. Does this count as unlawful retaliation, even though some time has passed since I complained?

A. Anti-discrimination laws such as Title VII of the Civil Rights Act prohibit employers from retaliating against employees who assert their rights by complaining to the employer, filing a charge with the Equal Employment Opportunity Commission, or filing a lawsuit in federal court. This does not mean, however, that once an employee complains or files a charge or a lawsuit, he or she becomes immune to adverse employment actions. If an employee performs poorly after the filing, for example, the employer can fire or demote him or her.

In order for a retaliation to avoid dismissal, the employee, with the help of his or her attorney, must be able to prove three things: 1. the employee engaged in an activity protected by a law such as Title VII, which covers sexual harassment; 2. the employer subjected the employee to an adverse action; and 3. “the protected activity was causally connected to the adverse action,” the U.S. District Court for the Eastern District of Virginia noted in Chapman v. Geithner (2012).

The amount of time between the protected activity and adverse action will greatly influence a court’s determination as to whether there is a causal connection. “As temporal proximity fades, the inference of causal connection weakens,” the Eastern District court noted in Sturdivant v. Geren (2009). The question then becomes: How much time passed is too much?

In Miles v. Dell, Inc. (2005), the 4th U.S. Circuit Court of Appeals noted that a delay of three years between the protected activity and adverse employment action “negated the inference of causation,” and the same was true for a delay lasting 13 months. Even a three-to-four month delay is too long, according to Sturdivant. But a causal link can exist when the delay is 10 weeks, the Eastern District court noted in Pinkett v. Apex Communications Corp. (2009). Even more, the court added a causal link can exist for longer periods – from seven months to one year – when there is evidence of “ongoing discriminatory animus.”

Employees who believe their employers have subjected them to unlawful retaliation for engaging in protected activities under laws such as Title VII should immediately contact an employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C. Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

by ARLnow.com — May 7, 2014 at 2:30 pm 781 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I took 10 weeks of FMLA leave off from work so I could care for my teenage son, who was injured in a serious car accident. When I returned to work, I was given a completely different job. Can employers do that?

A. Depending on the size of the employer and how long an employee has worked for it, the Family Medical Leave Act (FMLA) may allow him or her to take up to 12 weeks of unpaid leave if, among other reasons, he or she needs to care for an immediate family member suffering from a serious health condition. After completing or exhausting his or her FMLA leave, the employee should be returned to the same position he or she held before going on leave.

Alternatively, the employee should be given an “equivalent position” that has equivalent benefits, pay, and other terms and conditions of employment as his or her old position. Additionally, this equivalent position should “involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority,” according to U.S. Department of Labor (DOL) regulation.

Unable to let a position sit vacant for the period an employee is on FMLA, employers will often fill it with someone else or split the position’s duties among other employees. However, these actions do not give the employer a viable excuse to deny reinstatement; instead they often impose on it the burden of establishing an equivalent position for the person returning from FMLA leave. While a returning employee may not be thrilled with having to assume a new position, “an employee does not have an absolute entitlement to restoration of his pre-leave position after taking FMLA leave,” the 4th U.S. Circuit Court of Appeals said in Csicsmann v. Sallada (2006).

What qualifies as an “equivalent position” is often a sticking point between employees and employers. Keep in mind, equivalent means “virtually identical” — not actually identical — and the reinstatement requirement does not extend to “de minimis [minor], intangible, or unmeasurable aspects of the job.” Factors such as a position being less prestigious and less visible than the pre-leave position “are the very intangible aspects of the position appropriately excluded from an equivalency determination,” the 4th Circuit noted in Csicsmann.

If the employer reinstates an employee returning from FMLA to a position in a different geographic location that requires more commuting in terms of time or distance, such a reinstatement would likely not be considered equivalent. Even if the employee is transferred to a different — yet equivalent — geographic work location, he or she should return to the same shift or an equivalent work schedule. Opportunities for bonuses, profit-sharing and other similar discretionary or non-discretionary payment must likewise be the same as or equivalent to those of the pre-leave position, according to the DOL regulation.

Employees who have been reinstated to different positions upon their return from FMLA leave should immediately consult with an employment law attorney. An attorney can prepare for them an FMLA interference lawsuit and represent them in federal court.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — April 9, 2014 at 2:30 pm 477 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Is it possible for a white-collar worker to earn too much annually to qualify for overtime wages?

A. The Fair Labor Standards Act (FLSA) requires employers to pay employees not exempted from the law at a rate of at least time-and-a-half for periods worked in excess of 40 hours during a workweek. The law does exempt certain professional, administrative, executive, computer, and outside sales employees, meaning they can work over 40 hours during a workweek and not qualify for overtime wages.

While an employee’s duties, authority, and skill level will largely influence his or her FLSA status, compensation is another factor that needs to be considered. First of all, employees cannot be considered exempt if they are paid on a salary or fee basis not less than $455 per week, or $23,660 annually. It should be noted that news reports have indicated the Obama administration may attempt to change this minimum income exemption threshold by executive order.

At the other end of the wage spectrum, employees who make $100,000 or more annually are generally considered exempt employees. The hard part is figuring out the FLSA status of employees who fall within these two income levels.

The FLSA “was meant to protect low-paid rank and file employees, not higher-salaried managerial and administrative employees who are seldom the victims of substandard working conditions and low wages,” the 4th U.S. Circuit Court of Appeals said in Counts v. South Carolina Electric & Gas Company. This case involved 17 utility company employees who sued for unpaid overtime wages. They earned between $52,000 and $65,000 annually, and the court noted that “[h]igher earning employees such as the plaintiffs are more likely to be bona fide managerial employees.”

Similarly in Darveau v. Detecon, Inc. (2008), the 4th Circuit said that an employee who held the position of director of sales and had an annual compensation of $150,000 “satisfies the salary requirement.” However, it added that “salary alone is not dispositive under the FLSA.” Other factors that need to be considered, so far as determining bona fide administrative employee status goes, are whether the primary duty of the employee is “the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers” and whether his or her “primary duty includes the exercise of discretion and independent judgment with respect to matters of significance,” the court said, citing U.S. Department of Labor regulations.

Employees and employers should consult with an experienced private sector employment law attorney to determine when overtime wages should be paid.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — March 26, 2014 at 3:25 pm 1,113 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I work for a real estate company and my boss keeps calling me “cutie” and “sexy,” though he has not made any sexual advances toward me. Is that enough to support a hostile work environment claim?

A. Title VII of the Civil Rights Act prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Without question, a supervisor’s sexual harassment can negatively impact a subordinate’s conditions of employment. But a few tasteless comments made by a supervisor alone may not create a hostile work environment. It may be a different story if the comments are extremely disturbing, incessant and clearly unwelcome.

“Not all sexual harassment that is directed at an individual because of his or her sex is actionable. Title VII does not attempt to purge the workplace of vulgarity,” the U.S. 4th Circuit Court of Appeals said in Hopkins v. Baltimore Gas & Electric Company. In this case, a male employee claimed his supervisor of the same gender harassed him and created a hostile work environment by making inappropriate comments such as, “You only do that so you can touch me” after they bumped into each other and “Ah, alone at last” when in the bathroom together. However, the 4th Circuit affirmed a lower court’s dismissal of the case. “A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage,” the appellate court said.

Hostile work environments involve unwelcome, sex-based conduct that “was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment,” and it can be linked to the employer, the U.S. 4th Circuit noted in Colie et al. v. Carter Bank & Trust, Inc. (2010). Colie, for example, involved a female bank supervisor who repeatedly called female employees “baby” and told them, among other things, they looked “sexy,” had “sexy” legs and looked “sexy” with their hair down. And even though the employees complained to bank executives about this inappropriate, unwelcome conduct, it continued.

While the employer claimed the employees alleged “nothing more than the sporadic use of rude language and occasional teasing,” the court found this characterization to be “in sharp contrast to the factual allegations.” It noted, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Consequently, the court refused the employer’s request to dismiss the case.

Employees should not let employers get away with sexual harassment that changes the conditions of their employment. They should not tolerate a hostile work environment and should immediately contact an employment law attorney who can prepare for them a discrimination lawsuit.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com

by ARLnow.com — March 12, 2014 at 2:30 pm 941 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My federal agency demoted me. How much time do I have to decide whether I want to file an appeal with the Merit Systems Protection Board? Are there any legitimate excuses for missing this deadline?

A. Under Section 1201.22 of the Code of Federal Regulations (CFR), the deadline for filing an appeal with the Merit Systems Protection Board is either 30 calendar days after the effective date of the adverse action or 30 calendar days after the appellant receives the agency’s decision. In cases where the aggrieved employee and agency mutually agree to attempt to resolve the problem through mediation, the filing deadline can be extended to 60 calendar days. If an MSPB administrative judge delivers an unfavorable decision, the appellant generally has 35 calendar days after that decision is issued to file a petition for review (PFR) to the full MSPB under 5 CFR § 1201.114.

“To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case,” the Board said in John A. Stolarczyk v. Department of Homeland Security (2012). Factors that the Board said it will consider in a good-cause-for-an-untimely-filing analysis include: 1. the delay’s length; 2. the excuse’s reasonableness and evidence of due diligence; 3. pro se representation (i.e., legal representation on one’s own behalf); and 4. “the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition.”

In Stolarczyk the Board noted that attorney filing mistakes, whether due to miscommunications or confusion over or a misunderstanding about deadlines, do not qualify as good causes for late filings. And the fact that an appellant is not being represented by a lawyer does not mean the Board will automatically cut him or her a break. “We have consistently denied a waiver of our filing deadline if a good reason for the delay is not shown, even where the delay is brief and the appellant is pro se,” the Board said in Gary L. Jack v. Department of the Air Force (2012). However, good cause can be established if, for example, the appellant can show “he was unable to file his petition on time due to illness, or mental or physical incapacity,” the Board said in Grimaldi M. Gonzalez v. Department of Veterans Affairs (2009).

To avoid late MSPB filings, federal employees should always contact an experienced federal employment law attorney immediately after receiving notice of an adverse action. An attorney can ensure all filing deadlines are met.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — February 26, 2014 at 2:30 pm 1,057 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My agency is accusing me of falsifying documents. Yes, I inputted some incorrect information, but that was a mistake. What can I do?

A. Falsification is a serious charge — one that could result in the removal of a federal employee. This offense “raises serious doubts regarding [an employee’s] honesty and fitness for employment,” a Merit Systems Protection Board (MSPB) administrative judge said in Steve Durfee v. Department of Defense (2010). While agencies will not tolerate falsification offenses, they should not be so strict as to not take into account the fact that mistakes can and do happen.

Falsification occurs when an employee “knowingly supplied incorrect information with the intention of defrauding or deceiving the agency,” the administrative judge noted in Durfee. He added that “[b]ecause there is seldom direct evidence on the issue, circumstantial evidence must generally be relied upon to establish the element of intent.”

An employee may have a reasonable explanation for why incorrect information was provided, but that may not always save him or her from discipline, at least initially. That’s what happened to the senior safety and heath specialist in Ralph A. Deskin v. U.S. Postal Service (1997). The agency proposed to remove the employee for allegedly falsifying information in a report and cover letter on a workplace safety program called “Supervisors’ Training Observation Program” (STOP).

Initially, the employee submitted a report indicating that 50 percent of customer service employees and 90 percent of processing and distribution employees had “STOP knowledge.” After being told to correct inaccuracies in the report, the employee revised it to indicate that only five percent of customer service employees and 10 percent of processing and distribution employees had “STOP understanding.”

These “glaring discrepancies” between the two report drafts and the untrue statements in the accompanying cover letter prompted the agency’s removal proposal, which a deciding official reduced to a demotion. The employee filed a petition for review with the MSPB, but an administrative judge sustained the agency’s action.

(more…)

by ARLnow.com — February 12, 2014 at 2:30 pm 643 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My federal agency has proposed my removal, but I know other people who got away with a 90-day suspension for the same misconduct. Can agencies do that?

A. Generally, similarly situated employees should not receive disparate penalties for similar misconduct. The penalty previously imposed on similarly situated employees is one of the 12 so-called mitigating “Douglas factors” that deciding officials should weigh when deciding on discipline. However, not all employees – even those who hold the same title – are similar. Years of experience and prior misconduct could differentiate them. Further, not all types of misconduct – even when the charges go by the same name – are equal.

Traditionally, the Merit Systems Protection Board (MSPB) had held that employees were not deemed similarly situated if they did not share the same supervisor and work unit. Consequently, the Board considered these factors to be “outcome determinative,” it noted in Joe Lewis Jr. v. Department of Veterans Affairs (2010). However, prompted by a U.S. Court of Appeals for the Federal Circuit decision, the Board in Lewis adopted what it called a more “flexible approach” under which employees could be deemed similarly situated even though they did not share the same work unit or supervisor.

In fact, the Board in Rasheed Dennis v. Department of Housing and Urban Development (2013) identified factors that are “relevant considerations, but none of them is a threshold requirement or outcome determinative in a disparate penalty analysis.” These factors include: 1. “whether a comparative employee worked in the same organizational unit, had the same supervisor and/or deciding official”; 2. “whether the events occurred relatively closely in time;” 3. “whether the difference in treatment was knowing and intentional”; 4. “whether an agency began levying a more severe penalty for a certain offense without giving notice of a change in policy”; and 5. “whether an imposed penalty is appropriate for the sustained charge(s).”

If the employee, with the help of a federal employment law attorney, manages to establish himself or herself as similarly situated to comparators who received more lenient punishments, the agency then must provide a legitimate explanation for the penalty disparities.

Federal employees who are facing discipline for alleged misconduct should immediately contact a federal employment law attorney who can represent them in the agency’s misconduct investigation, reply to proposed discipline, and/or prepare and litigate their MSPB appeal. Depending on the circumstances, an attorney can show the agency failed to properly consider penalties meted out to similarly situated comparators, it treated similarly situated employees more leniently, or its explanation for the different penalties is not legitimate.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

by ARLnow.com — January 29, 2014 at 2:30 pm 911 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Can my federal agency remove me because I was arrested for drunk driving?

A. Agencies should not treat federal employees as though they are guilty until proven innocent. To do so would effectively deny employees of their due process rights. As a Merit Systems Protection Board (MSPB) administrative judge noted in John B. Richardson v. Department of the Interior (2006), “an agency cannot base a removal action upon a charge of arrest.”

However, it might be a different story if the agency based the removal action on a driving while intoxicated (DWI) conviction. The administrative judge in Richardson added that “charging an individual with being subjected to an arrest… without charging the underlying misconduct or conviction… cannot substantiate a charge of misconduct, because they are premised solely on accusations by the alleged victim and district attorney, rather than evidence showing that the charged conduct occurred.”

While an agency may not be able to remove an employee solely because he or she was arrested for DWI, it may try to indefinitely suspend him or her without pay while a criminal case is pending or if a conviction on whatever was charged could result in imprisonment. Depending on the circumstances, the agency may give the employee seven to 30 days advanced notice of an indefinite suspension.

Just because an agency cannot remove an employee on the grounds of a DWI arrest alone, does not mean he or she is immune to removal actions. Much depends on what the employee does or does not do after the arrest. In Donald W. Roby v. Department of Justice (1993), the Board said an agency could remove an employee who had been arrested for DWI for failing to follow a supervisor’s instructions and concealing facts pertaining to a DWI charge’s disposition, along with absence without leave (AWOL). The Board noted that these two offenses constitute “serious misconduct,” which is punishable by removal.

If an agency attempts to remove an employee who was convicted of DWI — and he or she is an alcoholic — this adverse action may not constitute unlawful discrimination. In Paul R. Overstreet v. Department of the Interior (2007), an MSPB administrative judge said, “disability discrimination based on alcoholism does not shield Federal employees from uniformly applied discipline for breaches of the public trust of sufficient severity and type to disqualify them from Federal public service or service in their position.”

He added that “where criminal or other serious misconduct relates directly to a fundamental requirement of his position, the employee is no longer otherwise qualified, and the discipline imposed cannot reasonably be regarded as [disability] discrimination.”

Federal employees who have been arrested for DWI and are facing removal or indefinite suspension should immediately contact a federal employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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