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 harder for men to prove sex discrimination than women?
A. Generally, men should not face a heavier burden for proving sex discrimination than women. Discrimination complaints or lawsuits filed by a member of a majority class, such as male, are referred to as “reverse discrimination” cases, and they are not uncommon. In fact, one-third of sex discrimination complaints filed in the federal sector in FY 2012 were filed by men, according to Equal Employment Opportunity Commission (EEOC) statistics.
For standard discrimination cases in which a member of a minority class, such as female, black or disabled, courts require plaintiffs to initially show the following:
- they are members of a class protected under laws such as Title VII of the Civil Rights Act;
- they were qualified for the position for which they applied; and
- the employer’s rejection of their application gave “rise to an inference of discrimination.”
These factors form the basis of what is known as the McDonnell Douglas framework, so-named after the 1973 U.S. Supreme Court decision in which these factors were outlined, the 4th U.S. Circuit Court of Appeals noted in McNaught v. Virginia Community College System (2013).
Over the years, as the 4th Circuit further noted in McNaught, appellate courts have reached differing opinions as to whether this standard framework — or a framework that placed a greater burden on majority class plaintiff — should be applied to reverse discrimination cases.
On one side there were five circuit courts, including the U.S. Circuit Court for the District of Columbia, that held majority class plaintiffs to a higher standard, requiring them to show “background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against [majority groups]…or evidence that there is something ‘fishy’ about the facts at hand.”
Meanwhile, three other circuit courts just required majority class plaintiffs to show they satisfied the standard McDonnell Douglas framework.
For years, the 4th Circuit, which has jurisdiction over Virginia district courts, declined to pick a side in this standard-versus-enhanced framework debate. But that ended with the court’s decision in McNaught. The 4th Circuit decided to apply the standard framework, noting that the “application of the same test to both ‘ordinary’ discrimination plaintiffs and ‘reverse’ discrimination plaintiffs better reflects overarching principles expressed by the Supreme Court,” namely “that Title VII prohibited reverse discrimination ‘on the same terms’ as discrimination against minority groups.”
The bottom line is discrimination based on race, color, sex, gender, national origin, religion, disability, and age is unlawful. Employees who believe they have been subjected to discrimination based on any of these factors should immediately consult with an experienced employment law attorney.
Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in 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.
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 very liberally tracks the hours I work. How can I claim overtime when there are no records I worked at least 40 hours a week?
A. Conventional logic says that if there is no record of something then it did not happen. However, this rationale generally will not work with employers who try to dodge their duty to pay employees overtime wages by not properly maintaining time and attendance records.
The Fair Labor Standards Act (FLSA) requires employers to pay covered employees who worked more than 40 hours during a work week at a rate of at least time-and-a-half. Further, the FLSA’s implementing regulation requires employers to “maintain and preserve payroll or other records” for employees not exempted from the act.
Most employers, to varying degrees, preserve and maintain such records. But an employer’s failure to do so will not save it from an FLSA lawsuit for unpaid overtime wages. An “employee should not be penalized ‘on the ground that he is unable to prove the precise extent of uncompensated work,'” the 4th U.S. Circuit Court of Appeals said in Lee v. Vance Executive Production (2001). Employers tend to run into problems when an employee who they thought was exempted from the FLSA turns out having a non-exempt status, or when the employee works “off the clock.”
In either case, to overcome the legal challenges posed by “inadequate or inaccurate” records, the 4th Circuit said in Lee that the employee must show he or she “performed work for which he was improperly compensated” and “how the amount and extent of that work as a matter of just and reasonable inference.” The court stressed that an employee does not need to “prove each hour of overtime work with unerring accuracy or certainty.” Instead, “enough evidence must be offered so that the court as ‘a matter of just and reasonable inference’ may estimate the unrecorded.”
It will not be enough, however, for the employee to only show he or she worked so many hours over 40 hours during a given work week. The employee must also show the employer knowingly allowed this uncompensated work to be performed. To support his or her case, the employee could show the employer engaged in “a pattern or practice of employer acquiescence in such work,” the 4th Circuit noted in Pforr v. Food Lion (1988).
Employees who believe they have been improperly denied overtime wages for hours they worked should immediately contact an employment law attorney who could prepare for them an FLSA lawsuit. Employers should also consult with an employment law attorney to determine which employees are eligible for overtime wages.
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.
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 pneumonia. I requested FMLA leave and submitted medical documentation from my doctor describing my condition. My employer now wants me to get another doctor’s opinion. Should I go through with it?
A. Employees suffering from a serious health condition that impairs their ability to do their jobs are allowed to take up to 12 workweeks of unpaid leave, or paid leave under certain circumstances, so long as they as they have worked at least 1,250 hours for the employer over the past 12 months. For an illness to qualify as a serious health condition, it must result in inpatient care or the “continuing treatment by a health care provider,” federal regulation states.
Pneumonia is generally understood to be an FMLA-covered illness and was even listed as an example of a serious health condition in the Senate report for the act, the 4th U.S. Circuit Court of Appeals noted in Miller v. AT&T (2001).
Employers are allowed the require employees to provide medical documentation “to substantiate that the leave is due to the serious health condition of the employee,” the regulation states. However, one doctor’s diagnosis of pneumonia does not make FMLA leave automatic.
When the validity of the medical certification provided by the employee is in doubt, the employer can require him or her to get a second opinion. The employer can select the physician who would provide the second opinion. When the first and second medical opinions differ, the employer could require the employee to get a third opinion from a health care provider on whom they jointly agreed. The third opinion is “final and binding,” the regulation states. The employer must foot the bill for the second and third opinions and compensate the employee for out-of-pocket travel expenses.
Employers generally should not wait too long before requesting a second opinion. The FMLA “does not suggest that an employer must pursue these [subsequent opinion] procedures or be forever foreclosed from challenging whether an employee suffered from a serious health condition,” the 4th U.S. Circuit Court of Appeals said in Rhoads v. Federal Deposit Insurance Corp (2001).
The 4th Circuit, however, did point out there are “potential pitfalls for an employer who chooses not to pursue a second opinion.” Namely, employers who wait months or years to challenge a physician’s contemporaneous notes may have difficulty proving that there was a “genuine issue of material fact” as to whether the employee who went on FMLA leave was actually incapable of performing his or her job because of a serious health condition.
Employees who believe they have been improperly denied FMLA leave should immediately consult with an experienced employment law attorney. Employers, too, should consult with an experienced employment law attorney to determine whether an employee is eligible for FMLA leave.
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.
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:
- the company’s ability to control how work was performed;
- opportunities to reap profits or incur losses, depending on the worker’s managerial skill;
- the worker’s investment in equipment or hiring of other workers;
- skill requirements;
- whether the working relationship was temporal or long lasting; and
- “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.
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.
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.
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.
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.
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.
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. Read More
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.
