Employment Law Update – Winter 2020
VIRGINIA COURT RECOGNIZES NOVEL “CONSTRUCTIVE DEMOTION” CLAIM
Constructive discharge has long been recognized as a viable theory of discrimination and retaliation. In short, courts can hold an employer liable for creating or allowing a work environment so intolerable because of unlawful discrimination or retaliation that an employee quits. But recently, a federal judge in Roanoke expanded on the constrictive discharge concept, ruling that an employee can also sue her employer for a “constructive demotion.” Diana Salmons was a female instructor for Commercial Driver Services, Inc. (CDS), a company that provided training and job placement for truck drivers. After working for CDS for about a year, Salmons was promoted to a co-lead instructor and began to supervise other instructors. Salmons claims that, during her employment, she was subjected to “unwelcome inappropriate remarks and sexually aggressive behavior.” For example, Salmons contends that male instructors made sexual comments about female students, called her “Dirty D,” and discussed their genitalia in front of her. She also claims that a male co-worker slapped her buttocks and told her that he would “take her to bed any time.”
Salmons alleges that she complained to CDS’s General Manager, Crystal Kennedy, on several occasions, but that Ms. Kennedy did nothing to address her complaints of discrimination and harassment. Instead, Salmons claims that Kennedy told her to “stop pouting and put your big boy pants on.” After complaining to CDS, Salmons contends that the behavior towards her got worse. When she complained to Kennedy about another male co-worker, Salmons says that Kennedy refused to take her formal complaint or do anything about the conduct, but, instead, called the male co-worker into the meeting, informed him of Salmons’ claims, and allowed the male co-worker to yell and curse at her. According to Salmons, Kennedy told her that she shared blame for the way she was treated.
Ultimately, Salmons stepped down from her position as co-lead instructor. She stated in an e-mail to CDS that she “felt forced to step down from her supervisor position … because of all the harassment.” She “just could not take it anymore.” About eight months later, Salmons says she asked for her co-lead instructor position back since she had only stepped down because of the harassment she was experiencing. CDS would not reinstate her to her position and, per Salmons, told her that she needed to meet one-on-one with the male employee about whom she was complaining. At this point, Salmons alleges that she quit, indicating that she had “no other choice.”
In addition to claims of sexual harassment, constructive discharge, and gender-based pay discrimination, Salmons filed a claim against CDS for discriminatory and retaliatory “constructive demotion.” Faced with these claims, the District Court Judge decided that he would “recognize constructive demotion as a claim under Title VII.” Applying the same criteria for assessing constructive discharge cases – whether the employer deliberately makes working conditions so intolerable that an employee is forced to quit – the court had no problem finding that Salmons’ lawsuit adequately alleged intolerable working conditions that were deliberately created or permitted by CDS for the purpose of having Salmons step down from her supervisory position and allowed Salmons’ constructive demotion claim to proceed to trial.
PRACTICAL TIPS FOR COMPLYING WITH JURY DUTY RULES
Keeping the “wheels of justice” turning can create headaches for employers when their employees are called to serve on juries. Every state has laws pertaining to obligations jury duty may impose upon employers. Here are a few tips for managing employee leave due to jury duty in Virginia:
1. Understand what employees must be paid
When employees miss work to serve on juries, the most frequent issue that employers face is whether to pay employees during their jury service. Non-exempt employees are fairly straightforward: they are paid for hours worked, so they do not need to be paid for jury service. Exempt employees present a trickier question because exempt employees who perform any work during a workweek usually must be paid for that workweek. In practical terms, this means that an exempt employee who reports for a full workweek of jury duty and does no work during that workweek does not need to be paid for the week. If the exempt employee does any work (including checking and responding to email), then the employee must be paid for the entire workweek. Additionally, Virginia state law prohibits employers from requiring employees to use PTO or other paid leave during jury service.
2. Have a written jury duty leave policy
Your jury duty leave policy should be included in your employee handbook and require employees to notify supervisors of upcoming jury duty service, and show proof of summons and proof of serving. It should also specify how employees should handle early dismissals. In Virginia, an employee who serves on a jury for four or more hours, including travel time, in one day cannot be required to report to work on or after 5:00 p.m. on the day of the appearance or before 3:00 a.m. on the following day. The policy should also address whether employees are paid or not during jury duty leave. If you don’t have a policy in order, our team can help you develop one to fit your needs.
3. Prepare for the employee’s absence
Although most jury duties last only a few days or a week, some can last much longer, including grand jury proceedings and lengthy civil trials. For shorter absences, consider reassigning employees or dividing work among other employees. For longer absences, employers may need to hire a temporary replacement. Remember, however, that the employee serving on jury duty cannot be fired or demoted because of jury service. Employers who keep a temporary employee over an employee returning from jury duty may face legal action.
HANDLING TOXIC EMPLOYEES
Prior attendees of the Employment Law Update day-long program our K&C Employment Team presents every year may well have seen a mock scenario featuring Antoine Merriweather. Antoine is that problem/toxic employee who regularly creates headaches for HR. Most HR professionals have had to deal with one or more “Antoines” in their careers. This is why one of the goals of the employment law update program is to help HR professionals deal with toxic employees like Mr. Merriweather.
While being updated on the law can help you determine whether or not there is any legal risk in dealing with a problem employee, there are certainly a number of practical steps that employers can take to “cleanse” their workplace of toxicity. To provide a valuable practical perspective in this regard, Mauricio Velasquez, the President of the Diversity Training Group, was contacted for this article. Mauricio suggested three practical steps that can help any employer deal with toxic employees. First, he recommends that an employer write down a list of behaviors that can never be accepted in the workplace and another list of behaviors that are preferred. He indicated that employers should get suggestions and feedback from all employees before finalizing these lists but the behaviors should ultimately be posted or published where everyone can see and read them easily.
The second step Mauricio suggested was to act on the recognition that for the employer to be successful, toxic employees should not remain in their jobs at the expense of productive employees. But management should keep in mind that any employment action based on toxic behavior should focus on the actions that are having a negative impact on other employees.
The final step Mauricio recommends is to make sure all employees understand that they have a shared responsibility to ensure that the workplace is respectful, professional and productively engaged. This prevents some employees in a toxic workplace from shirking their obligation to help by claiming that they are innocent bystanders not responsible to contribute to a positive work environment. Above all, Mauricio suggests that employers should not simply ignore toxic behavior even when the toxic employee has been employed for a long time and only recently became unproductive, difficult, negative, or unhappy.
Mauricio Velasquez has published an article on dealing with toxic employees entitled “CALLING OUT Toxic Employees Leads to CLEANING UP Toxic Workplaces.” Mauricio is also a dynamic speaker who will be the featured luncheon speaker at the Richmond showing of the 36th Annual Employment Law Update on April 2, 2020, at the Richmond Convention Center. At that program, Mauricio will be educating attendees on Emotional Intelligence and how EI can be used to help make workplaces more positive. A number of speakers from key government agencies, like the EEOC’s Acting District Director, Tom Colclough, will also be presenting on April 2. Other useful topics to be presented will include: avoiding retaliation claims, dealing with workplace violence, handling problem absenteeism, conducting effective misconduct investigations and performing self-audits. To register for this day-long program, visit www.kaufcan.com/events or call 757.624.3232.
OSHA/VOSH PENALTIES INCREASE
Each year the federal Occupational Safety and Health Administration (OSHA) and it’s Virginia partner, VOSH, perform thousands of workplace inspections, most of which result in Citations that include penalties to the employer. Since 2015 when the penalties increased nationwide by nearly 80%, smaller increases indexed to inflation have occurred each year. Effective January 1, 2020, the maximum penalty for a serious (most often cited) violation increased to $13,494. The maximum penalty for a repeat or willful violation is ten times that amount or $134,937. It should be noted that each Citation may carry multiple penalties.
About 40% of OSHA and VOSH inspections occur in preplanned, unannounced visits for higher hazard industries such as manufacturing and construction, but the majority of inspections result from worker complaints, referrals from other public agencies, local first responders, and observations of health and safety staff as they travel their localities. Current regional emphasis programs for Virginia employers include reducing fall hazards, noise control, combustible dust, and maritime safety including ship building and repair, cargo handling and navigation.
Workplace safety is important for all employers, but accidents happen, which is why Kaufman and Canoles routinely assists clients in responding to OSHA/VOSH Citations. This assistance can help with abatement of violations and/or substantial reduction of penalties.
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 2021.