Virginia Employment Legal Questions

Generally, this kind of decision is unlawful.  Employers cannot discriminate against employees in promotion decisions on the basis of a disabling medical condition, which her fibromyalgia may be, depending upon how serious and debilitating it is.  Even if it's not, she may have a claim if the employer perceives her as disabled due to the fibromyalgia.  These cases are fact-specific, so she should call us to schedule a consultation.... Read More

The hospital probably needs to be paying your wife for her time.  Mandatory training that the hospital requires is compensable time.  Training required by the state or other non-governmental nursing groups would not be compensable.  She should keep records of the time she spends on the company training.  Please call us to schedule a consultation.... Read More

You most likely have a claim for the difference between $1100 and $919.  You had an unwritten contract with the employer that you would be paid on a salary basis.  They can change the basis for your pay, but they have to tell you first.I am also concerned by the fact that you were paid a salary.  If you did typical work at the location, such as making pretzels, cleaing, operating the cash register, taking orders, etc., you must be paid by the hour and get overtime for all hours over 40 in any given week.  For example, for that second-to-last week, you would divide $1100 by 50-something hours, then multiply that by .5 and by 10-something to get your overtime premium for that week.  You can claim back wages for two and sometimes three years back.Please call us to schedule a consultation.... Read More

Depending on the size of the company, you may have rights under the Family and Medical Leave Act (50+ employees) or the Americans with Disabilities Act (15+ employees).  I say that because of your reference to doctor’s notes.  If you have a serious medical condition that interferes with your life in a substantial way, you have a “disability” under the ADA and the right not to be discriminated against in the workplace on that basis.  If you were obtaining treatment for a serious, long-lasting medical condition, you may have qualified for FMLA leave as well.I would want to know more about the conversation where they tried to get you to resign—how did they claim that was being “kind”?  What was the basis for asking you to resign?Also, if you resign, you are more likely to be disqualified for unemployment benefits (although if you stay, the company may fire you and them claim it was for “misconduct”).Please give us a call to schedule a consultation.... Read More

No, they cannot withhold your final paycheck.  It seems like the most they should be able to do is to deduct the $100 that is in question, but even that is questionable.  If you get a lawyer involved, they will probably hand it over rather than facing incurring legal fees. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read More

This depends on how the bonus was structured.  If your bonus was a matter of contract based on your sales or productivity—like a commission—they may have a valid claim.  If the bonuses were discretionary and relatively arbitrary, the company doesn’t have much of a leg to stand on.  If you refuse to sign, and they have no legal right to the money, it could be unlawful to fire you. We can review the agreement with you and get more information to figure out what your rights are.  Please give us a call to schedule a consultation.... Read More

Not directly, but indirectly.  Under the Fair Labor Standards Act, the employer must pay you for hours worked.  Bounced paychecks are the same as non-payment.  If you bring a legal claim for these checks, in many cases, you can get double damages and attorney’s fees.  The “double damages” are called “liquidated damages,” which include all other types of damages that came from not getting paid, such as interest, inability to pay other bills, etc.    Please give me a call to schedule a consultation.... Read More

I am assuming you don’t have a written contract with the company specifying your duties and duration of employment.  I’m also assuming that you are paid by the hour and not by salary.Under the Fair Labor Standards Act regulations, whether the on-call hours are “compensable”—and count toward overtime—depends on several factors.  The larger the geographic area you are required to stay within, the less likely it is that the time is compensable.  The more often you actually receive calls under the new duties, the more likely it is that the time is compensable.  If you’re able to use the on-call time for your own benefit, as opposed to being restricted to the employer’s office, it’s more likely that the time is not compensable.Generally, a “no intoxication” rule is okay for on-call employees.  The company can also add to or subtract from your duties as it wishes.Finally, you can refuse the assignment, but they can terminate you for that. The compensability issue is very fact-specific.  Please give us a call to schedule a consultation.... Read More

In Virginia, there are no laws which require a company to have internally consistent policies or even to follow its own clear policies.  Expectations can change on a daily basis or even more frequently.  The doctrine of employment at will means that employees can be fired for any reason or no reason, including violation of a policy they had no idea existed.That said, if you are fired under those circumstances but other people are not, that can suggest unlawful discrimination or retaliation.  Further, if you are fired under those circumstances, you will ordinarily be entitled to unemployment benefits anyway, unless you had notice of the policy (whether oral or written).... Read More

This is a violation of the Fair Labor Standards Act, which entitles you to at least minimum wage for your hours worked and time and a half for each hour over 40 in a week.  Off-the-clock work counts toward the hours you are owed as well as any overtime.  The same goes for changes to your timecard.  You should keep records as best you can of all the hours they haven’t paid you for.Under the FLSA, you can often get double your unpaid wages.  Please call us to set up a consultation.... Read More

You can certainly file a charge of discrimination, and retaliation for your prior internal complaints, against both the company and the Federal Agency involved.  The complaint against the government, however, must be filed first with that Agency's EEO counselor within 45 days of your termination.  The charge against the company might need to be filed with this same EEO counselor, or with the EEOC.  There should be a web site for the Federal agency in question, or postings at the place where you worked that state where and how you can contact the EEO counselor... Read More

This is a clear violation of the Virginia Wage Payment Act and the Fair Labor Standards Act, which requires that you be paid a minimum wage as well as overtime.  If the missing hours put you over 40 hours in a calendar week, you are entitled to overtime pay for those hours.  If the missing hours leave your effective hourly wage anywhere below $7.25, you are entitled to the difference as well.   You can also get double damages and attorney’s fees in some cases.  In addition, you can bring a breach of contract action for the unpaid wages at the full amount of your normal wage.  You do not have to go through the DOL to initiate a complaint.  You can file suit in federal court to recover all of those damages. My firm represents employees in cases of unpaid wages.  If you are interested in pursuing a claim, please contact us to schedule a consultation.... Read More

“Permanent temps” are not forbidden by Virginia law and are subject to the employment at will doctrine—just like full-time employees.  If you don’t have an employment contract, you can be fired at any time for any reason or no reason, so long as it’s not an illegal reason (usually, discrimination based on race, gender, religion, ethnicity, national origin, age, disability, or military status).  You can be assigned to a new manager every day; Virginia law doesn’t interfere with a company’s poor management practices, so long as they aren’t illegal for some other reason.  You arguably have the right to “reasonable notice” before you are terminated, but that’s about it. Issues do arise when companies treat permanent temps as “independent contractors” for tax and overtime purposes.  If you get a 1099 tax form at the end of the year but spend all day at the company’s offices, work on their computers, and do work that their permanent employees do, you probably should be classified as an employee.  That means you don’t pay the “self-employment tax” and may be entitled to overtime, instead of straight time, for each hour you work over 40 in a given week.... Read More

Virginia is an at-will employment state, which means you can quit at any time for any reason or no reason OR be fired at any time for any reason or no reason, so long as it’s not an illegal reason.  The same goes for pay cuts.  If you’re paid by the hour, as long as you get more than the federal minimum wage, $7.25 per hour, and are paid time and a half for hours over 40 in a week, there’s no law broken.  However, it’s discrimination to cut your pay for certain reasons, such as race, gender, religion, ethnicity, national origin, age, disability, or military status.  Discrimination cases can be hard to prove, but if your new employer has made comments that reflect a discriminatory attitude toward you, we may be able to help.... Read More

In Virginia, vacation pay is a matter of contract.  In practice, that means that the company policy controls, unless somebody told you different or acted otherwise.  Something in writing from the owner is probably enough to argue that you got an exception to the handbook policy about carrying vacation over.  The more important question is whether it was the company's policy, either written or in practice, to pay separated employees for their accrued vacation time.  If they didn't pay anybody their accrued vacation upon separation, you may be out of luck.  If they paid everybody, they have to pay you.  If the policy was not to pay anybody but they paid everybody anyway, they probably have to pay you as well. ... Read More

Virginia employers have a lot of leeway to decide whether to promote you.  The only exception is if the company decides not to promote you for an illegal reason.  Depending on the size of the company, illegal reasons include your race, gender, religion, ethnicity, national origin, age, or disability; your complaints about discrimination; or your refusal to break the law.  It can be difficult to prove a discrimination case if the company didn’t give you a reason for being passed over.  We look at whether your supervisors made any comments that might suggest that they were racist, sexist, or the like.  If so, sometimes a jury will conclude that the failure to promote was discriminatory.  Every case is different, and it’s hard to say from the information you’ve provided.  Please give us a call to schedule a consultation.... Read More

There are several issues at play here. First, Virginia is an “employment at will” state, which means that you can be fired at any time for any reason or no reason so long as it’s not an illegal reason.  The main illegal reasons in Virginia are race, gender, religion, ethnicity, national origin, age, pregnancy, disability, and whistleblowing.  This means they can fire you even if you have overwhelmingly positive reviews throughout your tenure as long as none of those illegal reasons affected their decision.  Discrimination cases often turn on the facts of your own particular work environment. Second, you are entitled to unemployment benefits unless the employer can show misconduct.  The Virginia Employment Commission looks for a deliberate violation of a legitimate company rule or a willful disregard for the company’s interests.  The employer has the burden of proof on misconduct.  The Commission will want to know things like your hire and fire dates, pay rate, and the reason the employer gave you for the termination.  If the employer claims they fired you for breaking a company rule, the Commission will want to know whether you knew about the rule.  If you are denied benefits at the initial hearing, you have the right to appeal, at no cost, within 30 days.  I have represented other claimants at the appeal hearing stage before.  State law prohibits an attorney from collecting a fee from an unemployment claimant unless the claimant succeeds and the Commission approves the fee. Finally, while the company isn’t required by law to provide a positive reference, if you learn that they are making false statements of fact about your job performance to prospective employers, you may be able to bring a defamation action against the company and the people making the statements.... Read More

There are several potential issues here.  Your employer can change your work schedule around, but they can’t single you out based on your race, gender, religion, ethnicity, national origin, age, disability, or complaints about discrimination.  Courts like to see that your boss has made discriminatory remarks or shows obvious favoritism based on one of those categories.  You have the right to quit, and they have the right to fire you, under Virginia’s “employment at will” doctrine.  Some employers prefer to force people out because if you resign, you won’t be able to get unemployment benefits in most cases.  This keeps down the employer’s unemployment insurance premiums.  If they fire you, you’re entitled to benefits unless they can prove misconduct, which generally means that you were fired for breaking a company rule that you knew about.... Read More

Under the Fair Labor Standards Act, every hour in a week over 40 must be paid at time-and-a-half your hourly rate. Under the FLSA, a "workweek" is just a recurring seven-day or 168-hour calendar period. An employer can't get out of paying overtime for one week by giving you "comp time" during another week. For example, if you get paid $10 per hour, your overtime rate is $15 per hour.  In situations where the employer knows he is violating the law, the FLSA lets you recover twice what you are owed, going back either two or three years before the date you file a lawsuit.  This can add up, especially after you double the unpaid wages.  You may be able to recover attorney’s fees as well.  The FLSA also permits “collective actions” where one employee can try to make claims on behalf of himself and other employees.  This can be helpful when one employee’s claim is small but there are a lot of victims of the same practice.  Without knowing your job duties or your employer, I can’t say whether you might fall under an exemption to the overtime provisions, but these are the general rules.... Read More

It really depends on her job/position.  While the general FLSA rule (and most state laws) is that any hours worked over 40 in a week must be compensated at the premium rate of time-and-a-half.  However, there are many exemptions to the law - too many to list.  The most common exemption is if your wife is in a management position or a professional (engineer, architect, etc.)  But because there are so many exemptions and nuances to the exemptions, I suggest you contact a local attorney, especially to deal with any possible state law violations.... Read More

You haven't included enough information to answer your question. What is your job? Where do you work? How much business does the employer do per year ?  All of these questions need to be answered to determine whether your situation is covered under the Fair Labor Standards Act.   Michael A. Caldwell 404-979-3150... Read More

You have the option at this point to either retire now, look for a different job, or make the move the company is offering.  As they are paying you some extra money to pay you to relocate or cover your moving costs, they want to make sure you do not take that money, and then quit or retire before a 2 year period.  If you leave the company before the 2 years are up, your agreement probably requires that you repay all or a pro-rated portion of the money they paying you to relocate.  The proration may be, for example, that you have to repay half the money of if you retire after 1 year instead of 2 years later.  All of this should be spelled out in an agreement the company will have you sign before you get any of that relocation money... Read More

The answer to your question depends on whether you trust your employer or not.  Technically, you would be protected for your 8 weeks under the FMLA.  And if the employer has so chose, it could be counting the 8 week period against your FMLA allotted 12 weeks even if you do not specifically request FMLA, provided that they tell you they are counting this time against your FMLA.  It is possible, however, though certainly not a guarantee, that if neither you nor your employer refer to this 8 weeks as being under the FMLA, then should need additional time after your surgery to be off work due to complications, then you might possibly have that 12 weeks of FMLA still in the bank, so to speak, to cover you for another medical absence if needed.  This not a guarantee, however, as there are some court cases that would not allow you to get this added benefit. Contact an attorney in your area to review all your facts before deciding.  Seeking FMLA is the safer bet, especially if the 8 week period should be plenty of time to recover and the risk of complications is unlikely.... Read More

Under the Fair Labor Standards Act, if an employer "suffers [an employee] to work" the employer must pay the employee for all of the time the employee works. The pay must be at least at the minimum wage rate applicable to the state. The federal minimum wage is $7.25/hour. If an employee is breaking a rule, or disregarding an instruction by working outside of the scheduled hours, the employer must still pay the employee for all time worked; but it can also discipline the employee or even fire the employee.  The termination would not be for earning (or claiming) the minimum wage rate for all the hours worked. Rather the employer should consider the employee's action in working outside of your instructions as insubordination or disregard of the employer's instructions.   You must pay them, and you can fire them. You can't agree to withhold discipline in return for them waiving the right to be paid for the time they spent. Once they spend the time, you must pay them. It doesn't matter whether you get paid or reimbursed for what you pay them. Before you discipline them for doing this,you should announce in writing to them that working outside their scheduled visit hours will result in termination.  make sure that is clear to them. You also can dis-incentivize their working outside of scheduled times by adopting a "fluctuating work week" method of compensation.  You pay them a straight salary to cover all of the time they work. Once they have worked more than 40 hours in a pay period, you pay them an additional 50% of their "regular hourly rate of pay" (calculated by dividing the salary by the number of hours they worked in the work week) for each hour that they worked after they reached 40 hours.  This way, their hourly rate of pay decreases the more hours they work in a work week.  Michael Caldwell 404-979-3150... Read More