Employment Law Update – Winter 2004

    By Labor & Employment

    EEOC Reaps Record $385 Million in Benefits During Fiscal Year 2003

    The Equal Employment Opportunity Commission (EEOC) obtained a record $385 million for victims of discrimination during its Fiscal Year 2003. Most of these funds were obtained at the administrative level, but a record of nearly $150 million was obtained through litigation. Even though the number of charges filed was down slightly, the total dollars obtained exceeded the previous year by over $80 million.

    Of the 87,755 cases resolved by the EEOC in FY 2003, the most commonly asserted type of discrimination was race, which led to 35% of all filings. Sex discrimination was alleged in 30.3% of charges filed, age discrimination led to 23.6% of the cases and disability discrimination led to 19% of the 2003 cases.

    EEOC in High Gear

    This record amount of dollars obtained is directly related to the increase in EEOC litigation activity. Even with slightly fewer charges filed at the administrative level, EEOC attorneys took more of these cases to court than they did in 2002. This national trend is consistent with increased litigation activity by the EEOC in Virginia. Local trends and statistics will be discussed by EEOC’s Richmond Area Director, Gloria Underwood, at the March 25th Richmond showing of K&C’s 20th Annual Update.

    SHRM Praises EEOC Mediation Program

    As the Equal Employment Opportunity Commission (EEOC) prepares to expand its voluntary Mediation Program, it continues to receive favorable reviews from employer representatives. During a December 2, 2003, Commission meeting devoted to examining the Mediation Program, a number of employers praised it as a faster and more efficient way to resolve discrimination complaints. Like those employers at the meeting, the Society for Human Resource Management (SHRM) gave high marks to the program similar to positive feedback from a number of large employers represented at the meeting.

    Last year, approximately 8,000 cases were successfully resolved through EEOC mediation. A satisfactory resolution was indicated by the vast majority of participants. Those results, and the recognition that mediation is faster, cheaper and more efficient than litigation, bode well for future expansion. Participants seem to be recognizing that mediation allows parties an easier and more efficient method to obtain a resolution than traditional methods.

    The success and expansion of mediation have led to the EEOC Mediation Program being highlighted as part of K&C’s 20th Annual Employment Law Update.

    It’s a New Year: Time For Your FMLA Compliance Check-Up

    The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees within 75 miles of the worksite to provide 12 weeks of unpaid leave during a 12-month period to eligible employees for certain medical and family-related reasons.

    You should periodically do a check-up on your company’s FMLA compliance just as you would with your own health. This is an important step in reducing the risk of being sued for failing to provide this federally mandated leave. To reduce FMLA risks, here are some important points to consider:

    1. Does it apply? The FMLA does not cover all employers, and even if it applies, it does not necessarily cover all employees. Before granting FMLA leave, make sure you know whether your company is covered, and if so, whether a requesting employee is even eligible for the leave.
    2. Have you included a description of your FMLA policy in your employee handbook? The FMLA requires an employer who is covered under the law to include a provision in its employee handbook detailing its FMLA policies if the handbook also provides other employee benefit descriptions. If the handbook does not contain other employee benefit descriptions, then a separate written notice must be provided to employees. Employers covered by the FMLA are also required to post a sign in the workplace describing FMLA’s protections.
    3. Do you have a uniform procedure for handling leave requests? You might think about designating one FMLA compliance officer to handle all FMLA requests to make sure that FMLA leave requests are always handled the same way each time. This will prevent any claims that certain employees have received different treatment.
    4. Do you require proper notice for FMLA requests? The FMLA allows an employer to require 30-days notice for foreseeable leave requests. An employer is not required to grant leave to eligible employees who do not follow this rule. You may need to be flexible for emergency medical or family care needs.
    5. Do you require medical certifications? You are permitted to require medical certifications from your employees who want to take FMLA leave for either their own or a family member’s serious health condition. If you want a second opinion, you may require it, but you must also pay for it. If there is a disagreement about the medical issues, then you can send the employee to a mutually agreed-upon third health care provider for a binding opinion at the company’s cost.
    6. Do you have employees that request intermittent FMLA leave? The FMLA allows leave for approved medical reasons for as little as one hour, but you don’t need to grant such short leaves if your payroll system uses larger increments (e.g., 1/2 days). Also, someone on intermittent leave can be shifted to a different position that can accommodate intermittent absences. Finally, you can reduce an employee’s salary – but not his/her hourly wage – while he/she is on intermittent FMLA leave.
    7. Do you maintain the employee’s job while he/she is on FMLA leave? The FMLA requires an employer to restore an employee who has been on FMLA leave to his/her prior position or an equivalent one. If the employee would have been terminated regardless of being on leave (e.g, in a reduction in force), job restoration is not required.
    8. Do you require the use of vacation and/or sick days while an employee is on FMLA leave? The FMLA allows an employer to require, with few exceptions, employees to take their vacation or sick days while they are out on FMLA leave.

    These are but some of the areas into which you should look when considering how well your FMLA leave program is running. The K&C Employment Team has prepared an FMLA package to assist employers with these, and other requirements of the law. For an FMLA package, please contact one of our attorneys.

    Jury Awards $325,000 After Employer Requires Psychiatric Exam

    This past November, an Illinois utility worker was awarded $325,000 in emotional distress damages as a result of being asked by his employer to submit to a mental examination after he demonstrated erratic behavior at work.

    The plaintiff in Jackson v. Lake County was a senior utility worker named Don Jackson. Mr. Jackson’s performance appeared to deteriorate, and his employer observed that he appeared to get lost when driving his truck; he regularly forgot instructions and work assignments, and he began to take much longer to perform his duties. Mr. Jackson filed a complaint with his employer alleging that he was the victim of hazing and harassment on the job by co-workers who were humiliating him. Mr. Jackson’s employer recommended that he undergo a psychological examination, and when Mr. Jackson refused to submit to such an examination, he was suspended without pay and ultimately fired.

    After hearing the evidence in the ensuing wrongful discharge lawsuit, the jury found that the employer’s actions were inappropriately intrusive and sympathized with Mr. Jackson, awarding him with a large damage award. Following the jury verdict, Mr. Jackson’s attorney, Robin Potter, stated that “The jury simply believed that if a man can perform his job, do not interfere.”

    This case points out that employers should be careful not to assume or imply that an employee has a mental disorder when addressing erratic behavior in the workplace. While an employer has legitimate concerns relating to work performance and potential risks to other employees, the rights of the individual employee should not be ignored during the disciplinary process.

    DOL Dramatically Increases Amounts Collected for Wage-Hour Violations

    The U.S. Department of Labor (DOL) collected over $182 million from employers during its Fiscal Year 2003 for violations of the Fair Labor Standards Act (FLSA). This represents an increase of 20% from the amounts collected during FY 2002. Most of what was collected resulted from employee complaints regarding overtime and minimum wage pay practices. Like the EEOC, the DOL collected substantially more funds even though the number of complaints decreased slightly from the prior year.

    The Wage and Hour Division of the DOL also decreased the average number of days it took to resolve complaints. In FY 2003, it took an average of 108 days to resolve a complaint which was down roughly 16% from the 129 it took on the average in FY 2002.

    Practical Pointer

    Although DOL Wage-Hour audits are less common than discrimination charges, employer mistakes in compensating employees can be very expensive. For this reason, employers are well-advised to keep abreast of wage-hour requirements and to periodically audit pay practices to make sure employees are being paid properly. To help employers in this regard, the former District Director of the Richmond District Office of the DOL Wage-Hour Division, Gilbert Parker, will be on hand on March 25, 2004, at the 20th Annual Employment Law Update to provide attendees with valuable advice on how to reduce this potential liability.

    Barry, Whitt Tabbed for Bar Association/CLE Posts

    Two members of the K&C Employment Team have been selected for leadership roles in organizations tasked with educating lawyers throughout Virginia on labor and employment matters. Bob Barry will begin his two-year tenure as State Chairman of the Labor and Employment Section of the Virginia Bar Association on January 1, 2004. Burt Whitt was asked by the CLE Committee of the Virginia Law Foundation to continue to chair its efforts to educate lawyers throughout the state on employment law developments. Both positions require ongoing efforts to present educational opportunities on employment law topics for Virginia lawyers.

    Gone With The Wind

    This past November, a federal judge in Richmond (the former capital of the Confederacy) refused to recognize Confederate Southern-Americans as a protected class under Title VII. In Chaplin v. DuPont Advance Fiber Systems, employees who were bothered by a workplace ban on the display of the Confederate flag on tee-shirts and bumper stickers sued their employer claiming this violated their rights as Confederate Southern-Americans. Since the Fourth Circuit Court of Appeals had previously ruled that Confederate-Americans is not a protected class, Judge Henry Hudson was not just whistling Dixie when he said that the employees did not have the right to fly the confederate flag in the workplace.

    The K&C employment team is considering this particular case as a candidate for one of the Most Outrageous Cases for 2003. Be sure to attend the next presentation of the 20th Annual Employment Law Update in Richmond to see if this case makes the list.

    20th Annual Update Highlights Most Popular Topics and Speakers

    On March 25th, the K&C Employment Law Team will host the second showing of the 20th Annual Employment Law Update at the Greater Richmond Convention Center. This year’s program features new information and materials on the most popular topics to be presented by some of our best-received speakers. For example, hear Richmond hired gun attorney Harris Butler, who specializes in suing employers, provides his valuable perspective to employers interested in avoiding court during The K&C Discipline & Discharge Clinic with all new video vignettes.

    The first showing of this program in Chesapeake received rave reviews, so reserve your seat now! Attendees of this year’s program will receive more than just popcorn and peanuts (also included!). To commemorate our 20th Anniversary, each attendee will receive One Free Admission Ticket to attend one of Kaufman & Canoles’ new Supervisory Training Clinics to be offered at later dates to be announced at the seminar.

    For more information or to register, please contact Kristen Bown at (757) 624-3232 or email her at

    This program has been approved for 5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at

    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.