Virginia Employment Law Blog
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The clock is always ticking if you're an hourly employee

The clock is always ticking if you’re an hourly employee

One of the most frequent stumbling blocks for clients is tardiness. Whether it’s coming to work on time or coming back from breaks in a timely fashion, we cannot stress this enough: you must be on time for work. Even if your boss says he doesn’t care. Even if you stay late to make up the time. Even if you work through lunch to make up the difference. You have got to be at work on time. If the schedule says 9 am, you need to clock in at 9 am.

Obviously, some of this varies from job to job. A lot of professional positions do not have a set schedule. Many accountants, lawyers, and executives are not expected to be at work at any given time. The same is true for many people who telecommute. For those individuals who have a traditional, scheduled time of arrival, however, being on time to work is critical.

This is especially important in those discrimination and harassment cases based on protected class status. As a reminder, the following count as protected classes in Virginia, under either the laws of the Commonwealth or federal law:

  • Race
  • Color
  • National origin
  • Religion
  • Sex (including pregnancy, childbirth, and related medical conditions)
  • Disability: physical or mental
  • Age
  • Genetic information
  • Marital status
  • Citizenship Status

Even if you feel you have been subject to harassment or discrimination based on one of the protected classes listed above, under Virginia’s at-will employment doctrine, you can be fired for “any reason or no reason,” unless that reason is illegal.

If you have been subjected to discrimination or harassment, you presumably feel that your termination was based on a different basis that the reason your employer gave you when you were let go, if they gave you a reason at all. Your first task in litigation will be to show that there is a reason to believe that discrimination or harassment took place.

Once you have crossed that hurdle, your employer has an opportunity to present “legitimate, nondiscriminatory reasons” for your termination. This is where the tardiness can come back to hurt you. Regardless of what the understanding was at the time, it looks terrible in litigation if you employer can produce timesheets that show you were consistently late for shifts, that you consistently took overlong breaks, or that you were in any way undependable.

Even if there was an understanding at the time, the documents will make you look unreliable. In short, they look like a “legitimate, nondiscriminatory reason” for your termination.

Being late does not ruin a case. Tardiness is a bad fact that can be overcome in litigation, but it’s a bad place to start. If at all possible, be on time for as many of your shifts as you can, as often as you can.

If you have a reason why you cannot be on time, whether it is a family reason or a disability reason, talk to your employer. If you need help talking to your employer, hire counsel to help you seek that accommodation under the Family and Medical Leave Act or the Americans with Disabilities Act.

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WFNjBOx4On December 22, 2014 a federal judge struck down a new provision of the Fair Labor Standards Act (“FLSA”) that would have entitled most home-care workers to minimum wage and overtime just ten days before that provision was to take effect, according to Bloomberg BNA. As it stands, the FLSA exempts “any employee” who provides “companionship services” form the minimum wage and overtime provisions of the FLSA and also exempts “live-in” domestic service providers from the overtime provision of the FLSA. The new rule, proposed in December 2011, provoked over 26,000 public comments from industry and labor groups and others.

D.C. District Court Judge Richard L. Leon struck down provisions of the Department of Labor’s (“DOL”) new regulation that would have removed the minimum wage and overtime exemptions for home-care workers who are employed by third-party businesses, which, but for Judge Leon’s order, otherwise have made those individuals eligible for minimum wage and overtime. The Home Care Association of America and two other organizations brought suit against the DOL, claiming that the DOL violated administrative procedure in issuing this new regulation; Judge Leon agreed.

Although the D.C. District Court invalidate those provisions of the DOL’s new regulation, others remained intact. One provision that was not struck down narrows the types of duties for which home-care workers are exempt from minimum wage and overtime for “companionship services.” These services now include “only social, physical and mental ‘fellowship’ activities and ‘protection’ services, such as being present when a client is inside the home to monitor the person’s safety,” according to Bloomberg BNA. In short, this means that the number of activities for which a home-care worker will not receive minimum wage and overtime is smaller, thus making it easier for these workers to obtain these wage protections.

Jason Surbey, a DOL spokesperson, laid out the DOL’s strong disagreement with the court’s opinion and emphasized that the new, narrower definitions of “companionship services” will apply:

“As of January 1, 2015, one of the Final Rule’s central changes, the revision of the outdated definition of ‘companionship services,’ will go into effect,” Surbey told Bloomberg BNA. “All employers of home care workers, including third party employers, will be obligated to consider the duties such workers perform in evaluating whether they must pay wages in compliance with the minimum wage and overtime requirements.”

This is a good time to review a few of the basics regarding the FLSA, overtime, and minimum wages.

  • What isn’t covered by the FLSA? Among other things, the FLSA largely does not govern pay raises, vacation pay, sick pay, holiday pay, and severance pay. The FLSA also does not guarantee double time at any point, and working nights or weekends does not automatically entitle a worker to overtime unless that time causes them to have worked over 40 hours in that work week.
  • What is the federal minimum wage? Under the FLSA, the minimum wage is $7.25. States can decide to set their minimum wages above the federal minimum wage. $7.95 is also the minimum wage in Virginia. The minimum wage in the District is $9.50.
  • Who is entitled to minimum wage? There are two ways an employee can be protected or “covered” by the FLSA: enterprise coverage and individual coverage. Enterprise coverage applies to businesses and organizations (“enterprises”) that have at least two employees and (1) have an annual dollar volume of sales or business done of at least $500,000; (2) hospitals, businesses providing medical or nursing care for residents, schools and preschools, and government agencies. Individual coverage applies even when there is no enterprise coverage if the employee’s work regularly involves them in commerce between the states. The FLSA covers individual workers who are “engaged in commerce or in the production of goods for commerce.” As stated by the DOL:

Examples of employees who are involved in interstate commerce include those who: produce goods (such as a worker assembling components in a factory or a secretary typing letters in an office) that will be sent out of state, regularly make telephone calls to persons located in other States, handle records of interstate transactions, travel to other States on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the State.
Also, domestic service workers (such as housekeepers, full-time babysitters, and cooks) are normally covered by the law.

  • Who is exempt from minimum wage? Some employees are exempt from minimum wage and overtime by law. Common exemptions include commissioned sales employees, computer professionals, drivers, driver’s helpers, loaders, mechanics, farmworkers, salesmen, partsmen, mechanics, seasonal and recreational establishments, executive, administrative, professional and outside sales employees, and a long list of other exemptions that can be found here.
  • What is the minimum wage if you’re a tipped employee? As explained by the DOL:

An employer may pay a tipped employee not less than $2.13 an hour in direct wages if that amount plus the tips received equal at least the federal minimum wage, the employee retains all tips and the employee customarily and regularly receives more than $30 a month in tips. If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.

  • When are you entitled to overtime? Overtime is due at a rate of one and one-half times an employee’s regular rate of pay after working 40 hours in a workweek.

Are you concerned that you’re not being paid fair wages for the time you’ve worked? Contact one of our attorneys today for a free consultation.


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408307_237083763083686_1240030741_nThis month’s most popular and interesting articles covered some very important topics ranging from employment law and worker’s rights to the state of the ‘American Worker.’ More expansively, we also explored the stagnancy of international wages, and urge you to take a look at a short video that illustrates the most up to date statistics on the matter courtesy of the International Labour Organization. Check back to our blog soon for more of the top articles and information in employment law.


The Devalued American Worker

From the Washington Post:

Midway through the last game of the 2013 Carolina League season, after he’d swept peanut shells and mopped soda off the concourse, Ed Green lumbered upstairs to the box seats to dump the garbage.

Green was already 12 hours into his workday. He rose at dawn to lay tar on the highway. As the sun sank, he switched uniforms and drove to BB&T Ballpark, where he runs the custodial crew for a minor-league baseball team. Now it was dark and his radio was crackling. It was his boss, asking him to head back downstairs. Green walked onto the first-base line and into a surprise. In front of 6,000 fans, the Winston-Salem Dash honored him as the team’s employee of the year.


Global Wage Report in Short: Patrick Belser

The ILO Global Wage Report 2014 warns of stalled wages in many countries and points to the labor market as a driver of inequality. Senior ILO Economist, Patrick Belser explains. (Source: International Labour Organization)


The United States Supreme Court’s Decision on Non-exempt Employee’s Work Day

This past Tuesday, the United States Supreme Court issued a decision in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, that clarifies when a non-exempt employee begins and ends the work day – and, therefore, when an employer’s obligation to pay the employee begins and ends.

Jessie Busk and Laurie Castro worked as warehouse employees for Integrity Staffing Solutions (“Integrity Staffing”), a company which provides warehouse staffing to Warehouse employees like Busk and Castro retrieve products from shelves and package those products for delivery to customers. Integrity Staffing, in an effort to prevent employee theft, required its warehouse employees to undergo a security screening before leaving the warehouse each day. At issue was whether employees’ time spent waiting and going through security screenings at the end of a work shift was compensable work time under the FLSA. (Source: JD Supra)



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file211246764163Lauren Greene, former New Media Director and later Communications Director for Blake Farenthold, a congressman from Texas and the owner of the domain name “” filed suit against her former boss in D.C. federal district court on Friday, December 12.

The complaint alleges that Congressman Farenthold created an “uncomfortable work environment,” according to the Washington Post, when he told another office worker that he had “sexual fantasies” and “wet dreams” about Ms. Greene. The complaint further alleges that the Congressman, on more than one occasion, made comments to Ms. Greene about her appearance and then said “he hoped his comment wouldn’t be taken for sexual harassment.” He told another office worker that Ms. Greene “could show her nipples whenever she wanted to” during a discussion of Ms. Greene’s attire.

The complaint goes on to allege that Acting Chief-of-Staff Bob Haueter treated Ms. Greene in a way that “was intended to, and did, belittle and humiliate Plaintiff” based on her gender. When Ms. Greene told Congressman Farenthold about her concerns, the Congressman said that Mr. Haueter “was known to be condescending toward women on the staff, then paid empty, lip service encouragement for [Ms. Greene] to stand up for herself.”

The situation that Ms. Greene describes in the allegations of her complaint may be reminiscent of something you’ve seen or experienced in your workplace. This seems like a good time to talk about hostile work environments, which we’ve covered in the past here. The first thing to keep in mind is that workplace bullying or harassment not based on protected class is, as a general matter, not illegal. The federally protected classes are race, gender, disability, national origin, age, genetic information, or religion.  Each state can expanded on those protected classes.  In Virginia, for example, marital status is also a protected class.  In some other states, although not in Virginia, sexual orientation is a protected class.

For lack of a better way to phrase it, your boss can be a terrible bully to you all he or she wants as long as the reason for their treatment isn’t your membership in a protected class.  The reasons can be as petty and trivial as them not liking the color of your shirt or just finding you personally annoying.

Beyond that, though, as we’ve said before, if you experience discriminatory treatment at work, you have rights, but not every case of racism or sexism will be seen as a violation of your civil rights under the law. How will you know if the conduct you experience was severe enough to give rise to a hostile work environment?

First, remember that your case is more likely to succeed if you have been subjected to multiple instances of discriminatory treatment. As the U.S. Equal Employment Opportunity Commission (“EEOC”) says, “harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” Furthermore, “[p]etty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.” Depending on the severity of the conduct, one incident or even incidents occurring over the course of two or three days might be enough to create a hostile work environment, but this is generally quite rare.  Broadly, though, this conduct has to be ongoing for long enough that your acceptance of such conduct is seen to be a term or condition of continued employment.

Second, as the EEOC says, offensive conduct may include, but is not limited to:

  • offensive jokes,
  • slurs,
  • epithets or name calling,
  • physical assaults or threats,
  • intimidation,
  • ridicule or mockery,
  • insults or put-downs,
  • offensive objects or pictures, and
  • interference with work performance.

Third, the harasser can include:

  • the victim’s supervisor,
  • a supervisor in another area,
  • an agent of the employer,
  • a co-worker,
  • or even a non-employee,

and the victim does not have to be the person harassed; the victim can be anyone affected by the offensive conduct.

Each situation requires individual analysis.  Contact us if you have been subject to discrimination or harassment based on race, gender, or other protected class status.

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The recent weeks have been busy ones in the world of employment law. In this post, we highlight some of the most interesting cases that have surfaced over the past weeks. We check in on how the Affordable Care Act has impacted small business and firms as well as a case being brought against Jimmy John’s (yes, the sandwich company) for attempting to bind it’s low-wage workers to a non-compete contract.


Small Firms Start to Drop Health Plans: Many View the Health Law’s Marketplace as Inviting and Affordable

Small companies are starting to turn away from offering health plans as they seek to reduce costs and increasingly view the health law’s marketplaces as an inviting and affordable option for workers.

In the latest sign of a possible shift, WellPoint Inc. said recently its small-business-plan membership is shrinking faster than expected and it has lost about 300,000 people since the start of the year, leaving a total of 1.56 million in small-group coverage.


Jimmy John’s under fire for worker contracts

It’s one thing for a high paid exec to be prohibited from working at a competitor. But Jimmy Johns actually imposes non compete clauses on its low-wage workers.

Now, lawmakers are calling for an investigation into the sandwich chain’s policy of making workers sign contracts that bar them from working for its competition.

Calling the practice a form of intimidation, House members Rep. Joseph Crowley and Rep. Linda Sánchez have drafted a letter calling on the Labor Department and the Federal Trade Commission to investigate “disturbing reports” of the chain’s contracts which are “inconsistent with trade and labor laws.”


Wal-Mart Stores East Will Pay $72,500 to Settle EEOC Disability Discrimination Lawsuit

Wal-Mart Stores East, L.P., will pay $72,500 and provide significant equitable relief to settle a federal disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced recently.

According to the EEOC’s suit, an assistant store manager at the Walmart store in Cockeysville, Md., offered Laura Jones a job as an evening sales associate, contingent on Jones passing a urinalysis test for illegal drugs. After Jones advised that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests, the EEOC said. According to the complaint, Jones went to the drug testing facility the same day and learned that the facility could do other drug tests if the employer requested it. Jones relayed this information to the Walmart assistant store manager, but management refused to order an alternative drug test. Jones’s application was closed for failing to take a urinalysis within 24 hours.

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logoFrom Josh:

I haven’t issued a formal announcement yet, but I have joined the board of a great organization, Open Arms Housing.  A more formal announcement will be forthcoming, but there’s a bit of news I wanted to share.

We have been included in the Catalogue for Philanthropy: Greater Washington.  It’s a great endorsement of our organization as a worthy cause and it provides details on how you can donate and what your donation will provide.

The Bates Area Civic Association also shared a short post about the news of our inclusion in the Catalogue for Philanthropy.  You can find that post here.

Check out these links and look forward to more information about this great organization.  Please consider supporting us!

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We get a lot of phone calls and emails. On most days, we hear form eight to twelve potential clients asking about discrimination, harassment, non-compete clauses, severance agreements, failure to pay overtime, and other employment issues.  Those calls range from local issues in Arlington, Fairfax, Alexandria, and other areas in northern Virginia and the District, to calls from individuals whose employers are defense contractors often based in Reston or Herndon, but the individuals themselves are personally located in Iraq, Afghanistan, or another foreign nation.

Every call is unique, but there are some things that will help you hire an attorney regardless of your reason for calling. Here’s a list of the first five steps:

1. Talk About Money – Seriously, folks.  Don’t be afraid to talk about money.  You are calling to hire a firm such as ours to do a service.  We, in turn, have a business to run.  Our decisions are not exclusively about money, but we cannot enter into any agreement without discussing it.  There’s no point in trying to avoid it.

Let’s cover the basic economic structures under which our firm usually takes cases:

  • Hourly – You pay the firm a retainer against which the firm bills by the hour to do a project, big or small.
  • Contingency – You pay the firm with a percentage of the final outcome of your case.
  • Flat fee – You pay the firm a flat fee for a service, regardless of how man hours it takes.
  • Hybrid arrangements – Some combination of the above.

These structures can also be updated or changed  depending on how circumstances play out and your needs.  The most important thing to do when it comes to figuring out finances is communication.  The single biggest mistake that potential clients make when they contact our firm is that they try to avoid talking about money.  We understand that the conversation is awkward, but the conversation is also necessary.

2. Understand What You Want and Establish Goals – This can be the most complicated issue for clients. Sometimes, it’s simple: a client wants money and nothing else will do.  But other times, and most times, it’s not at all that simple.  A client will need a workplace accommodation, a transfer, or some unique solution that we work towards over time.  If a client has received a cease and desist letter because of a non-compete clause or has been sued, the client’s goals are structured around a proactive defense and avoiding future liability and costs.

Establishing goals is a critical part of the early process of hiring counsel because your goals will often dictate the fee agreement that works for your case.  Your lawyer can’t work for a contingency percentage of your transfer or accommodation.  Those are great goals, and often the best goals, but if that’s what you’re looking for, you are almost certainly going to have to pay your attorney on an hourly basis.

3. Just Say What Happened – We need to know what happened in your particular situation at your workplace. What is or was the problem?  What was said?  Were you touched?  What happened to you as a result?  Our cases range from contract litigation to workplace sexual assault.  We cannot assist you until we understand the facts.

4. Tell Us About Your Evidence – Do you have documents?  Recordings?  Emails?  Pictures?  Texts?  It’s very easy to get caught up in what happened to you and forget to tell us that you can actually prove it.  And as much as we might believe you, it can be very hard for us to take a case without evidence.

5. Don’t Say the Words ‘Hostile Work Environment’ – Although you may feel the environment in your workplace is hostile, ‘hostile work environment’ is a very specific, complicated, and technical legal term defined by statute.  A hostile work environment, as defined by the law, is pretty rare.  I’ll defer to this article to do a better job of explaining the problems with this term, but let’s just say this: when you call an employment lawyer, tell the lawyer about the sexual, racial, or other protected class discrimination you’ve experienced.  The lawyer will determine if you’ve experienced a hostile work environment, as defined by the law.

We’ll follow this entry up with more steps to hiring an employment lawyer, but please use this list as a guide.  Use the Contact Us form on this page or call us at (703) 791-9087 and one of our attorneys will discuss your situation with you.

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file5961270333740According to the Chicago Tribune, shoe retailer DSW, Inc. has agreed to settle an age discrimination suit brought by the Chicago District Office of the United States Equal Employment Opportunity Commission (EEOC) on behalf of seven managers and approximately 100 other employees, all of whom claimed to have been terminated in 2008-2009 in violation of the Age Discrimination in Employment Act (ADEA). DSW, based in Columbus, Ohio, has approximately 10,000 employees nationwide and over a dozen locations in the greater Washington, D.C. metropolitan area alone.

According to the EEOC, DSW conducted a “reduction in force” that resulted in the termination of employees and managers over 40. Furthermore, according to the EEOC, not only did DSW terminate employees based on their age, but it also retaliated against employees who refused to follow the force-reduction directive. The lawsuit, filed on September 15, settled for $900,000, to be given to the former employees, and the requirements that DSW report any employee complaints of age discrimination in the next three years to the EEOC and revise its anti-discrimination policy.

As is to be expected in this sort of situation, DSW denies it discriminated against these workers based on age and claims it decided to settle in order to mitigate the costs associated with litigating a class-action lawsuit such as this.

Charges of age discrimination filed with the EEOC have increased about 36 percent since 1997, which may be due to recession-induced downsizing (or use of the recession as a cover to terminate older workers). Here are some important things to keep in mind when considering whether you may have been the subject of age discrimination in your workplace.

  • The ADEA only prohibits age discrimination that disfavors older workers. If you were terminated, not hired, or not promoted simply because you are too young, you are not protected by the ADEA even if your employer directly tells you it is discriminating against you for being too young. Likewise, your employer may choose to favor older workers over younger workers without violating the ADEA.
  • The ADEA only prohibits age discrimination against workers who are over 40 years old. If you are not yet over 40, you are not protected by the ADEA even if your employer directly tells you it is discriminating against you for being too old.
  • The ADEA does not only apply to young people discriminating against older people. Supervisors and management who are over 40 can still discriminate against their over-40 subordinates.
  • Age discrimination is illegal with regard to any aspect of employment.  As the EEOC states, this include hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.
  • Age discrimination can extend beyond the aspects of employment noted previously.  Employers are also forbidden from engaging in age-based harassment, such as making offensive comments about a person’s age. It is important to remember that simple offhand remarks or non-serious isolated incidents do not rise to harassment under the law; rather, harassment becomes illegal when it is so severe or pervasive that it creates a hostile work environment or results in the victim being subject to an adverse employment action, such as those described previously.
  • An employment policy or practice that applies to everyone equally can still violate the ADEA if it is not based on a reasonable factor other than age and has a negative impact on ADEA-qualifying employees and applicants.

Do you feel like you’ve been the subject of age discrimination in your workplace? If so, contact one of the attorneys at The Erlich Law Office for a free consultation today.

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IMG_0432Jeff Wilpon, the Chief Operating Officer of the New York Mets and son of Mets owner Fred Wilpon, runs his front office department about like his father runs the baseball team: Leigh Castergine, former Vice President of Ticket Sales, recently filed a lawsuit in the Eastern District of New York alleging that Fred Wilpon and the ball club discriminated against her for being pregnant and unmarried.

Castergine is a graduate of the University of Pennsylvania. She has worked for the Philadelphia 76ers, Orlando Magic, and Boston Bruins and was hired by the Mets in 2010. Last December, the Mets promoted Castergine to Vice President of Ticket Sales, making her the first female to hold such a position in the ball club’s 52 years of existence. The team regularly awarded her five- and six-figure bonuses for her work.

Sounds pretty good. So how did things go wrong?

According to Castergine’s charge, problems at work started when announced that she was pregnant. She alleges that Wilpon reacted to the news by showing his disdain for her situation in several humiliating ways, including:

  • Pretending to see if she had an engagement ring on her finger;
  • Announcing to the Met’s all-male senior executives that he was “as morally opposed to putting an e-cigarette sign in [his] ballpark as [he was] to Leigh having this baby without being married.”
  • Telling Castergine to tell her boyfriend that when she gets a ring she will make more money and get a bigger bonus;
  • Warning other co-workers to not take any interest in the unborn child;
  • Telling Castergine she was different and “less aggressive” after she gave birth to her child; and
  • Telling one of Castergine’s colleagues that people would respect her more if she were married.

Finally, Castergine alleges that she was fired in retaliation for reporting Wilpon’s behavior to the Met’s Human Resources department, which she says did nothing to investigate her complaints. The lawsuit notes that Castergine’s termination came shortly after she spoke to human resources and that Wilpon had told her she could only stay through the season as long as she kept her mouth shut about her discrimination claims.

The Mets maintain that Castergine was fired because she failed to meet sales expectations.

So what happens now?

Typically, a plaintiff alleging discrimination must show four things: (1) that she is a member of a protected class; (2) that she was qualified for her position; (3) that the employer took an adverse action against her; and (4) that something about the employer’s actions raises an inference of discrimination. This test is flexible and recognizes that there are many different things employers can do to suggest discriminatory intent, including:

  • Regularly making rude or derogatory comments to members of a plaintiff’s protected class;
  • Having a history of showing a bias toward persons in a protected class;
  • Having noticeably few employees of a protected class in a workplace; and
  • Retaining less qualified, non-protected employees in the same job.

The District Court where Castergine sued is therefore likely to look at things like her qualifications and job performance, as well as Wilpon’s conduct and the adequacy of Mets’ investigation.  Next, the burden will shift to the Mets to show that it had a legitimate, non-discriminatory reason for firing Castergine.  She will then have the opportunity to show evidence that the Met’s purported reason for firing her was only pretext for unlawful discrimination.

The Erlich Law Office will continue to monitor this case as it develops.  Stay tuned for more information.



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file0001329734681Have you ever had to deal with an unpleasant person at work? When does the inappropriate conduct of someone at work rise to a civil rights violation by your employer? A recent decision by the Fourth Circuit may help answer these questions. The Fourth Circuit upheld racial and sexual hostile work environment claims in Freeman v. Dal-Tile Corporation on April 29, 2014.

Lori Freeman, former employee of Dal-Tile, sued her former employer after enduring months of mistreatment from a sales representative from one of the company’s main clients.

In June 2008, Dal-Tile bought a stone yard called Marble Point in Raleigh, North Carolina, formerly owned by Marco Izzi. The yard was incorporated into Dal-Tile as a sale-service organization, and Izzi purchased ownership in VoStone, Inc., a Raleigh kitchen/bath remodeling center that became a significant client of Dal-Tile and major source of revenue.

Freeman had worked for Marble Point as a receptionist and became a Dal-Tile employee after the acquisition. During her employment, right up until she quit after taking medical leave for anxiety and depression, an independent sales representative for VoStone named Timothy Koester made unwelcome sexist and racist comments toward Freeman.

Specifically, according to the record in this case, Koester referred to women as “black bitches,” used the word “nigger” on more than one occasion, shared unwelcome details of his sexual exploits, and made jokes that disparaged African Americans.

From the first incident onward, Freeman made several attempts to notify Dal-Tile of the harassment and requested that it deal with the misconduct. She frequently informed her supervisor about the behavior, and although it sometimes was acknowledged and frowned upon, the conduct was allowed to persist.

With such egregious conduct before the Court, it is may not come as surprising that the Fourth Circuit upheld Freeman’s claims of a racial and sexist hostile work environment against a motion for summary judgment.

Dal-Tile’s strongest defense was that it could not be held liable for the conduct of Koester because it did not know about nor should it have known about the discrimination. Even though both parties agreed that Freeman notified a supervisor about Koester’s behavior, Dal-Tile argued that she had never complained about the behavior – through either formal or informal channels.

The Fourth Circuit did not accept this argument. In doing so, it formally adopted a negligence standard for holding employers liable in race- and/or sex-based discrimination cases, meaning that employers will be found liable for their employees’ harassment if those employers knew or should have known about the harassment and failed to take prompt remedial measures.

Turning to the facts of the case, the Fourth Circuit found this requirement satisfied because Freeman notified her supervisor about Koester’s behavior several times; because that same manager was even present at some of the instances of his improper behavior; because Freeman complained to human resources; and because Freemen protested the behavior to Koester himself. In the Court’s own words:

 Not only did Dal–Tile fail to take any serious action for three years in spite of the long list of ongoing harassment by Koester, but particularly shocking to us is the fact Dal–Tile took absolutely no action when Koester passed gas on Freeman’s phone and made Freeman cry in Wrenn’s presence, nor when Freeman promptly complained to Wrenn that Koester had used the word “n****r” on the phone with her. Although the harassment eventually stopped after the communication ban was put into place, the harassment had continued unabated for three years prior to that. While a communication ban may have been an adequate response had it been put into place sooner, Dal–Tile’s failure was in not responding promptly to the harassment. Based on this evidence, we believe a reasonable jury could conclude that Dal–Tile failed to take “prompt remedial action reasonably calculated to end the harassment.”

How does this apply to you? You are protected from discrimination in the workplace that is based on race, color, gender, national origin, religion, age, disability, and genetic information. As the Fourth Circuit recognized in this case, unlawful workplace discrimination can come from a coworker or even a third party not employed within your company if your employer is negligent in allowing this behavior to continue.

We can advise you on how to deal with this type of situation. Contact the Erlich Law Office for a free consultation.