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by ARLnow.com Sponsor — December 17, 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. My employer refuses to pay me overtime, claiming I’m an independent contractor. But I’m not. I’ve been working for this company for years. What can I do?

A. Employers often try to dodge responsibility for paying workers overtime by classifying them as independent contractors rather than employees. The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime for hours worked exceeding 40 hours per week.

Independent contractors can provide services to a business, just as employees do. But independent contractors are self-employed rather than employed by the business they serve. Of course, differentiating an independent contractor from an employee can be quite difficult. It is even possible for some independent contractors to become employees over time if their relationship with the contracting business changes.

“In determining whether a worker is an employee covered by the FLSA, a court considers the ‘economic realities’ of the relationship between the worker and the putative employer,” the 4th U.S. Circuit Court of Appeals said in Schultz v. Capital Integration Security (2006).

To determine whether someone is an employee or independent contractor, courts will conduct what is known as a Silk test, which is named after a 1947 U.S. Supreme Court case. As the 4th Circuit explained in Schultz, this test consists of six factors:

  1. the company’s ability to control how work was performed;
  2. opportunities to reap profits or incur losses, depending on the worker’s managerial skill;
  3. the worker’s investment in equipment or hiring of other workers;
  4. skill requirements;
  5. whether the working relationship was temporal or long lasting; and
  6. “the degree to which the services rendered are an integral part of the putative employer’s business.”

After weighing these Silk factors, the U.S. District Court for the Eastern District of Virginia in Kennedy v. A Touch of Patience Shared Housing (2011) concluded the plaintiff, who had sued for unpaid minimum and overtime wages, was not an independent contractor as the defendant had claimed.

She actually qualified as an employee under the FLSA. The plaintiff performed a variety of services for a housing facility operator, including, cooking, serving meals, cleaning, and helping residents with household tasks, such as laundry and taking medication.

The court in Kennedy noted that the plaintiff claimed she had not exerted supervisory or managerial control “and exercised no control, discretion, or independent judgment with respect to her own duties.” She was paid in fixed cash amounts “at generally regular intervals” rather than reaping or incurring managerial skill-dependent profits and losses.

Further, over four and a half months she worked at two facilities and performed tasks that did not require special skills. Lastly, the plaintiff had claimed her services “were integral to defendant’s business.”

Workers who believe they have been misclassified as independent contractors should consult with an experienced employment law attorney, who could prepare an FLSA lawsuit. Employers, too, should consult with an attorney to determine whether certain workers should be classified as employees or independent contractors.

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 — December 3, 2014 at 2:30 pm 560 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 a supervisor does something appalling to a subordinate, but only just once, can he still create a hostile work environment?

A. By and large, courts have found that hostile work environments are not spontaneous. In most cases, they are many days, weeks, months, or years in the making. That is because anti-discrimination laws, such as Title VII of the Civil Rights Act, prohibit employers from discriminating against employees with respect to their “compensation, terms, conditions, or privileges of employment.”

Rarely will a supervisor’s or co-worker’s single action or utterance be “sufficiently severe and pervasive” enough to have such an effect.

“Hostile work environments generally result only after an accumulation of discrete instances of harassment,” the 4th U.S. Circuit Court of Appeals said in Boyer-Liberto v. Fontainebleau Corp. (2014). “Their very nature involves repeated conduct.” Due to this nature, the court in this case found one of the employer’s employees did not create a hostile work environment when she allegedly called the appellant, a hotel hostess, a racial slur.

The employer terminated the appellant over poor performance issues a little more than a month after it hired her, prompting her to file a complaint with the Equal Employment Opportunity Commission (EEOC). The court said “a coworker’s use of that term twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe or pervasive as to change the terms and conditions” of the appellant’s employment.

In contrast, Okoli v. City of Baltimore (2011) involved an African American executive assistant who had suffered from a dozen incidents over a four-month period during which her supervisor, among other things, said he wanted to have sex with her in a Jacuzzi, inquired about her underwear, talked about his sex life with other women, fondled her leg under a table, and forcibly kissed her. The 4th Circuit in Okoli (2011) said the appellant presented a “strong claim for hostile work environment” and added that “some of the incidents may have been severe enough to be actionable in and of themselves.”

The court in Okoli explained further, that “a single incident [of sexual harassment that] was extraordinarily severe can be actionable.” The important question is: What type of incident qualifies as “extraordinarily severe?” In Whitten v. Fred’s, Inc. (2010), the 4th Circuit provided some guidance when it noted, “[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment for purposes of Title VII liability.” But even in cases involving sexual assault, the victim would need to prove the employer was liable for the attacker’s actions.

Employees should not tolerate a hostile work environment, and it is crucial for them to put employers on notice of any discriminatory conduct immediately. Consult with an experienced employment law attorney who could assess when the employer’s conduct was severe and pervasive enough to create a hostile work environment.

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 Sponsor — November 19, 2014 at 2:30 pm 821 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. With everything happening in Iraq and Syria, people in my office have been expressing their disapproval of my Islamic beliefs. At what point does this become discrimination?

A. Several years after the terrorist attacks on the World Trade Center and Pentagon, the U.S. 4th Circuit Court of Appeals in EEOC v. Sunbelt Rentals, Inc. (2008) pointed out that Muslims had become “targets of gross misapprehensions and overbroad assumptions about their religious beliefs.” But while the events of 9/11 “shook the foundations of our buildings, [they] did not shake the premise of our founding — that here, in America, there is no heretical faith.”

Title VII of the Civil Rights Act protects employees from religious-based harassment that creates a hostile or abusive work environment. As abhorrent as anti-Islamic or anti-Semitic statements are, not all of them will violate Title VII. For a co-worker’s or supervisor’s anti-Islamic comments to create a hostile work environment, they must be unwelcome and “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere.” Further, it must be shown that the employer engaged in, or did not take adequate steps to stop, the harassment, according to the 4th Circuit.

Harassment can be religious-based when co-workers or supervisors use religious epithets or other offensive religious terms, such as “Taliban” or “towel head,” or when they tease a Muslim employee about his kufi (traditional headgear) or beard, the court noted in Sunbelt Rentals. It is important for the employee to file an internal complaint in accordance with the employer’s anti-discrimination policy. This action would clearly establish that such discriminatory comments are unwelcome and place on employers the responsibility of countering such misconduct.

Initially, a district court dismissed the religious discrimination claim raised by the Muslim employee in Sunbelt, saying the co-workers’ comments were merely part of the “coarse behavior that goes on in the workplace.” The court also said some things the employee complained about, such as the hiding of his time card, had no connection to his religion. It also did not believe the co-workers’ comments were sufficiently severe or pervasive to create a hostile work environment because the employee did not mention the “explicitly religious incidents” in his written complaint to human resources.

On appeal, however, the 4th Circuit disagreed with the lower court’s decision, saying the employee persistently suffered from religious harassment of “the most demeaning, degrading, and damaging sort.” Key to this finding was the fact that the discriminatory conduct was “persistent, demeaning, unrelenting, and widespread.” The court stressed, “[W]e cannot regard as ‘merely offensive,’ and thus ‘beyond Title VII’s purview’ … constant and repetitive abuse founded upon misperceptions that all Muslims possess hostile designs against the United States.”

Employees who believe they are being harassed because of their religion and are working in a hostile work environment “must clear a high bar in order to satisfy the severe or pervasive test,” the appellate court said. That is why it is crucial for employees to consult with an experienced employment law attorney who can gather the testimony and other evidence necessary to pass that test.

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 — November 5, 2014 at 2:00 pm 707 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 a co-worker’s pranks create a hostile work environment?

A. While the people who perform or witness pranks may find them to be hilarious, these rascally acts often end up humiliating the pranked person. Some of the factors that need to be considered to determine whether office pranks can rise to the level of unlawful hostile work environment include the frequency and severity of the acts and why a particular individual became the target of pranksters.

In cases where there are multiple pranksters or multiple victims of different demographics, it could be difficult to prove the mischievous behavior created a hostile work environment in violation of anti-discrimination laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

The case Mason v. Wyeth, Inc. (2006), for example, involved a plaintiff with a hearing impairment who worked in an office in which several employees — including himself — routinely committed pranks against one another. One co-worker had a penchant for sneaking up to other employees, including the plaintiff, and startling them by poking or pinching them or making loud noises. A doctor later told the plaintiff, who was suffering from depression, that this prank playing was exacerbating his mental health problems.

However, the 4th U.S. Circuit Court of Appeals in Mason rejected the plaintiff’s hostile work environment claim because there was insufficient evidence that this sneaky co-worker pranked the plaintiff because of his disability. The court noted that although this co-worker “may have led the pack in the prank-playing shenanigans that developed among the men,” he was not the only participant and the plaintiff was not “his sole target.” The court said, “the work environment in the Department was permeated with the perhaps sophomoric and juvenile behavior of its employees.”

It may be easier to establish a hostile work environment claim when the pranks target a particular demographic and the pranksters use language reflecting their animosity toward the victim’s race, color, sex, national origin, religion, disability, or age. The case, Equal Employment Opportunity Commission v. Xerxes, Inc. (2011), involved a class of black individuals who had repeatedly been subjected to racial slurs and pranks. Some pranks involved unknown coworkers turning off bathroom lights, throwing wet paper towels, and tampering with and hiding a toolbox.

Finding that there was a genuine issue of material fact as to whether the employer had been notified about the harassment and had failed to stop it, the 4th Circuit vacated a lower court’s ruling dismissing the case and remanded it for further proceedings. In a concurring opinion, a circuit judge said, “The record also contains evidence that anonymous pranks were played on them and vile anonymous threats made to them. No one should be subjected to such abuse in the workplace.”

Pranks, especially when they are driven by discriminatory motives, are not funny. Consult with an experienced employment law attorney of you believe you are the victim of discrimination based on race, sex, color, national origin, religion, disability, or age.

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 — October 22, 2014 at 1:40 pm 346 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 job requires me to do much driving between multiple offices. Should I get paid overtime for this work-related travel?

A. Some employers have this notion in their heads that anything done away from a desk or a work station is not work, and certainly not compensable work. But when employees must be away from their desks or work stations so they can drive between job sites, that travel time under certain circumstances can be compensable under the Fair Labor Standards Act (FLSA).

The FLSA requires employers to pay employees not exempted from the law overtime at a rate of time and a half for any hours exceeding 40 hours per work week. When taking travel time into account, on top of any work performed at locations traveled to and from, employees can exceed this 40-hour threshold.

Federal regulation states that “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.”

The emphasis here is on the phrase “part of his principal activity.” A “principal activity,” the U.S. District Court for the Eastern District of Virginia noted in Epps v. Arise Scaffolding and Equipment, Inc. (2011), “embraces not just the predominant or principal function of an employee but also ‘all activities which are an integral and indispensable part of the principal activities.’” Hence, time spent traveling is compensable if the employee is “required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work,” according to the regulation.

Generally, the time an employee spends travelling from home to a work site or vice-versa is not compensable. You’ll note that the regulation does limit the definition of travel time to “travel from job site to job site.” Further, under an exemption to the FLSA’s travel time requirement created under the Portal-to-Portal Pay Act, “an employer need not compensate an employee for time spent traveling to the place of performance of the principal activity or for activities which are preliminary or postliminary to the principal activity,” the Eastern District noted in Harder v. ARCO Welding, Inc. (2013).

Examples of travel not covered by the FLSA identified by the court in Epps include “bridge workers’ boat ride to job site” and “well drilling crews’ mandatory ride to well site.” In these situations, the travel precedes the start of the principal activity. But any travel that occurs “after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is…covered by the FLSA,” the court added.

Employees who believe they have been wrongly denied overtime for work-related travel should consult with an experienced employment law attorney, who can prepare for them an FLSA lawsuit. Employers, too, should consult with an experienced employment law attorney, who could help them determine whether an employee’s travel time is compensable.

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 — October 8, 2014 at 2:30 pm 340 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 are some sneaky ways employers usually try to retaliate against employees who have filed discrimination complaints?

A. Most employers know state and federal laws prohibit them from retaliating against employees who complain about unlawful discrimination. Most employers also know that they can be hit with stiff penalties for engaging in such prohibited retaliation. Knowing this, and upset with certain employees for asserting their rights, some employers will still try to tip toe the line between legitimate business practices and unlawful retaliation. Sometimes they cross that line.

Employers who want to retaliate against an employee — and who know that they should not do so — will likely try to avoid any actions that would amount to an unequivocal adverse employment action. Anti-discrimination laws, such as Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, prohibit employers from taking an adverse employment action against an employee protected under these laws.

As the U.S. Court for the District of Maryland noted in Wright v. Kent County Dep’t of Soc. Servs. (2014), an adverse employment action “is a discriminatory act that adversely affects the terms, conditions, or benefits of a plaintiff’s employment.” Adverse employment actions, the court added, typically come in the form of “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion.”

Employers who want to sneakily punish an employee who has asserted his or her rights under Title VII will probably avoid any of these obvious adverse employment actions, which are black-and-white issues. For example, either an employee was fired or he or she was not. Instead, employers may pursue employment actions in the gray area.

For instance, the employer may try to isolate the employee by moving his or her desk or exclude him or her from certain work-related discussions. It is usually much easier for an employer to provide a legitimate reason for taking these employment actions than more severe employment actions, such as termination.

Unfortunately, as the court noted in Wright, “Title VII does not remedy everything that makes an employee unhappy.” Employees who have been ostracized because of their protected activities must show that the employer’s attempts to isolate them did adversely affect the terms, conditions, or benefits of their employment. Employees in such predicaments should immediately contact an experienced employment law attorney who can prepare for them a retaliation lawsuit.

Mathew B. Tully. Esq. 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 — September 25, 2014 at 2:30 pm 479 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 have a disability, and my employer is trying to remove me because it claims I cannot perform the “essential functions” of my position. How do you tell the difference between essential and non-essential functions?

A. Under the Americans with Disabilities Act (ADA), employers are required to provide disabled employees with reasonable accommodations, such as a part-time schedule or reassignment to a vacant position, so long as they are able to perform their position’s essential functions. In addition to being able to perform these essential functions either with or without a reasonable accommodation, employees seeking ADA protection must have a “physical or mental impairment that substantially limits one or more major life activities.”

What qualifies as an “essential function” is largely a matter left to the discretion of employers. The ADA states, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” But that does not mean an employer’s assertion that something is a position’s essential function is not open to debate.

Equal Employment Opportunity Commission (EEOC) regulation states that essential functions include “fundamental job duties of the employment position the individual with a disability holds or desires” and exclude “marginal functions of the position.”

When trying to determine whether a particular task qualifies as a position’s essential function, employees should ask whether the position “exists… to perform that function;” whether there is a “limited number of employees available among whom the performance of that job function can be distributed;” and whether the function is “highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function,” according to the regulation.

Evidence that courts will consider when determining whether a function is essential include written job descriptions, time spent performing the function, collective bargaining agreement terms, consequences of the function not being performed, and the work experience of people who previously held the position or those who hold similar positions, according to the EEOC regulation. It should be noted that job descriptions in advertisements may not alone be sufficient to dispute an employer’s claim that a function is essential.

For example, Thompson v. Heiner’s Bakery (2012), involved a delivery truck driver who, due to his heart defibrillator, was not able to obtain Department of Transportation (DOT) medical certification needed to operate any of his employer’s carrying-capacity-upgraded delivery trucks. The employee requested — and the employer refused — an accommodation in the form of a suspension of the delivery truck fleet upgrade and allowing him to drive a non-upgraded vehicle. The employee claimed driving a higher capacity truck was not an essential function for his position, and to support this claim he presented as evidence an employer truck driver job advertisement was silent on the subjects of gross vehicle weight ratings or DOT medical certification. (more…)

by ARLnow.com Sponsor — September 10, 2014 at 2:45 pm 1,038 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 a Virginia employer fire someone for no reason?

A. In Virginia, employees work at the will of employers. Under the at-will employment doctrine, “the employment may be terminated for any reason upon reasonable notice, but the presumption may be rebutted if sufficient evidence is produced to establish that the employment is for a definite, rather than an indefinite term,” the Supreme Court of Virginia said in Progress Printing Co. v. Nichols (1992).

So an employer generally does not need a reason to terminate an employee. Virginia employers can even rescind at-will employment offers without a reason, the Fairfax County Circuit Court said in Podraza v. Northern Virginia Psychiatric Group, P.C. (1990).

Usually, employees who have executed an employment contract have reached an agreement with the employer to perform work during a set period. At-will employees do not have this guarantee that they will be employed for such a period. The court in Progress Printing Co. did note that “an employment condition [included in an employee handbook, for example] which allows termination only for cause sets a definite term for the duration of the employment.”

However, employee handbooks usually include language stating the document does not constitute an employment contract with the employer and the employee works at the will of the employer.

In Virginia, there are exceptions to the at-will employment doctrine. Employers cannot terminate an at-will employee when the discharge would amount to a violation of public policy. Under this public policy exemption, employers cannot, for example, terminate at-will employees because they refused to engage in a criminal act.

“[A]llowing the employment at-will doctrine to ‘serve as a shield for employers who seek to force their employees, under the threat of discharge, to engage in criminal activity’ would violate this most compelling public policy,” the U.S. District Court for the Eastern District of Virginia said in Williams v. Virginia (2012).

It is important to remember that the at-will employment doctrine does not override anti-discrimination laws, such as Title VII of the Civil Rights Act and the Americans with Disabilities Act. Inexplicable terminations, or terminations where the employer provides contradictory reasons for the action, tend to raise red flags for unlawful discrimination or retaliation. Employees who believe they have been wrongfully discharged should immediately contact an experienced 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 — August 27, 2014 at 3:00 pm 686 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.

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