Virginia Police Legal Bulletin

Volume 3, Number 1

A Publication of the Virginia Police Legal Advisors Committee

February 2008


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Legal Summaries:  Employment Law Update

by Elizabeth Dillon
Guynn, Memmer & Dillon, P.C.
Roanoke, Virginia


The General Assembly, as of July 1, 2007, has provided for unpaid leave for employees who are victims of a crime and wish to appear at a criminal proceeding involving that crime.  Va. Code § 40.1-28.7:2.  Criminal proceedings include all aspects of the process from initial appearance through probation.  Employers may not terminate the employment of or discriminate against any person who exercises his or her rights under the statute.  The employee must provide the employer with a copy of the form from the law enforcement agency that outlines a victim’s rights and, if applicable, a notice of each proceeding.  A victim is defined as:

…(i) a person who has suffered physical, psychological or economic harm as a direct result of the commission of a felony or of assault and battery in violation of § 18.2-57 or § 18.2-57.2, stalking in violation of § 18.2-60.3, sexual battery in violation of § 18.2-67.4, attempted sexual battery in violation of § 18.2-67.5, maiming or driving while intoxicated in violation of § 18.2-51.4 or § 18.2-266, (ii) a spouse or child of such a person, (iii) a parent or legal guardian of such a person who is a minor, (iv) for the purposes of subdivision A 4 of this section only, a current or former foster parent or other person who has or has had physical custody of such a person who is a minor, for six months or more or for the majority of the minor's life, or (v) a spouse, parent, sibling or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide; however, "victim" does not mean a parent, child, spouse, sibling or legal guardian who commits a felony or other enumerated criminal offense against a victim as defined in clause (i).

Va. Code § 19.2-11.01(B).

Only employers who can show undue hardship to the employer’s business can limit the leave.  Undue hardship consists of a “significant difficulty and expense to a business and includes the consideration of the size of the employer’s business and the employer’s critical need of the employee.”  Va. Code § 40.1-28.7:2(A).

Remember, however, that Title 40.1 does not generally apply to the Commonwealth of Virginia, its political subdivisions, or any public body unless extended by regulation of the Commissioner of Labor and Industry or the Safety and Health Codes Board.  Va. Code § 40.1-2.1.


Federal Express Corp. v. Holowecki, No. 06-1322, argued Nov. 6, 2007.  The Court will decide whether an intake questionnaire submitted to the EEOC by an employee is sufficient to constitute a charge of discrimination under the Age Discrimination in Employment Act (ADEA).  The Second Circuit Court of Appeals ruled that the questionnaire is a charge.  This conclusion by the Court of Appeals was critical because if the intake questionnaire was not considered a charge under ADEA, the employee would not have complied with some of the time requirements imposed on persons complaining of age discrimination under the Act.

Sprint/United Management v. Mendelsohn, No. 06-1221, argued Dec. 3, 2007.  In this age discrimination case involving the lay off of the plaintiff, the Court will decide whether or not the testimony of other employees who claim similar discrimination (“me too” evidence) can testify when the employees had a different supervisor than the plaintiff.  The trial court did not allow the testimony, but the Tenth Circuit Court of Appeals reversed and ordered a new trial.

Kentucky Retirement Systems v. EEOC, No. 06-1037, argued Jan. 9, 2008.  In yet another age discrimination case, the Court will decide whether a retirement plan that uses age as a factor is discriminatory.  Kentucky’s public retirement plan provides benefits for normal retirement based upon age and service years.  It also includes disability retirement benefits.  If a member is eligible for normal retirement, disability retirement is not available.  Under certain circumstances, age may be a factor in calculating the disability retirement benefits.

CBOCS West, Inc. v. Humphries, No 06-1431, to be argued Feb. 20, 2008.  The Court will decide whether an employee who alleges race discrimination can sue for retaliation pursuant to 42 U.S.C. § 1981 or whether the employee is limited to a Title VII action.  Section 1981 provides for equal rights in the making and enforcement of contracts regardless of race.  A plaintiff suing under § 1981 does not have to file with the EEOC and is not subject to the damage caps of Title VII.

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Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.