Monday, March 16th, 2020
On 3/26/20, The Virginia Association of Counties has put the public meeting guidance on one page: https://www.vaco.org/local-government-operations-guidance-from-the-local-government-attorneys-of-virginia/
On 3/21/20, Attorney General Mark Herring issued an opinion here about public meetings during the emergency. In summary, localities are not authorized to hold public meetings to conduct regular public business solely by electronic means (meaning without a physically-assembled quorum of the local governing body, and a physical location open to the public). Therefore, localities are advised to “defer any and all decisions that can be deferred until it is once again possible to meet in person.” (3/20/20 AG Op. pg. 4)
There is however, authority for localities to adopt an ordinance setting a continuity plan to ensure that essential government functions are continued during a disaster. Virginia Code 15.2-1413 allows the governing body to put a process in place (no longer than six months) to deal with decisions that cannot be deferred. If there is a decision that cannot be delayed (and some may argue that adoption of the annual budget and appropriations is one such decision), and if the locality is still in a state of disaster, the governing body may meet emergently by electronic means under 2.2-3708.2(A)(3) (i.e., without physically convening in a single location) to pass the continuity ordinance. The 2.2-3708.2(A)(3) meeting requires:
- a quorum of the governing body;
- some means for the pubic to access the meeting (e.g., streaming, teleconference, or other method);
- public access to any agenda materials made available to the governing body members (in this case, the proposed continuity ordinance); and
- at least 3 days’ notice of the date and time to the public by the best available means, including instructions for public access.
The continuity ordinance should be narrowly written to address public meetings for government business that cannot be deferred. It may state that public meetings will only be held by electronic methods, and any input from the public will have to be made by mail (e-or snail) or other means. The publication requirement for county ordinances (in 15.2-1427(F)) may be bypassed temporarily – the continuity ordinance cannot be enforced beyond a 60-day period without the publication and other legal requirements.
Monday, March 9th, 2020
With emerging concerns surrounding the COVID-19 (or “coronavirus”), companies face a growing number of issues, despite the fact that there are still no reported cases of the coronavirus in Virginia.
This is a fluid situation, and Gentry Locke is keeping abreast of the ever-changing developments with the coronavirus. We have put together a team to follow the latest updates so we may advise our clients regarding the best practices to handle employee-related issues involving leaves of absence, the ADA, company travel, OSHA requirements, and other business-related matters that may relate to the coronavirus.
We also encourage you to visit the CDC’s website, which provides frequent updates on the coronavirus situation: https://www.cdc.gov/coronavirus/2019-ncov/summary.html.
If you have any questions or concerns regarding management of these issues, compliance with the ADA, OSHA, or other related laws, please contact a member of our Employment Law team.
Friday, January 24th, 2020
Friday, January 17th, 2020
Wednesday, January 15th, 2020
Monday, January 13th, 2020
Tuesday, December 31st, 2019
As 2019 comes to a close and the promise of a brand new year is before us, so are the U.S. Department of Labor’s (“DOL”) newest rules on overtime. As we recently addressed here, the DOL released its final rule addressing the new salary thresholds employers are required to pay in order to satisfy the “salaried basis” requirement for the “white collar” overtime exemptions. These thresholds become effective January 1, 2020. This article focuses on another overtime rule the DOL recently finalized clarifying which benefits should be included in workers’ “regular rate of pay” used to calculate overtime premiums.
Under the Fair Labor Standards Act, nonexempt employees generally must be paid one and one-half times their regular rate of pay for all hours worked beyond 40 in a workweek. But it has been unclear what must be included in the regular rate other than an employee’s base hourly wage. The regular rate currently includes hourly wages and salaries for nonexempt employees plus most bonuses, shift differentials, on-call pay and commissions. Health insurance premiums, paid leave, holiday and other discretionary bonuses, and certain gifts are not included. The status of other benefits were not addressed causing some employers to shy away from offering additional perks to employees for fear of litigation.
For the first time in fifty years, the DOL has revised the list of benefits that can be excluded from the regular rate, many of which have gained popularity over the past twenty years. For example, for those of us that could benefit from working off a few (or way too many) holiday treats, the DOL has clarified that gym membership fees do not have to be included in the regular rate.
The rule also clarifies that employers may exclude the following employer-provided benefits from the regular-rate calculation:
- Parking benefits, wellness programs, onsite specialist treatments, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;
- Unused paid leave, including paid sick leave or paid time off;
- Certain penalties employers are required to pay under state and local scheduling laws;
- Reimbursed business expenses for items such as cellphone plans, credentialing exam fees, organization membership dues and travel expenses that don’t exceed the maximum travel reimbursement under the Federal Travel Regulation system or the optional IRS substantiation amounts for certain travel expenses;
- Certain sign-on and longevity bonuses;
- Complimentary office coffee and snacks;
- Discretionary bonuses (*the DOL noted that the label given to a bonus doesn’t determine whether it is discretionary); and
- Contributions to benefit plans for accidents, unemployment, legal services or other events that could cause future financial hardship or expense.
This new rule will take effect on January 15, 2020. Employers should start reviewing their benefit packages and determine if any benefits should be removed from their overtime calculations or if there are any perks that could be offered in the new year.
For more information or assistance with implementing this change, contact your Gentry Locke Employment Law Team.
Source: https://www.govinfo.gov/content/pkg/FR-2019-12-16/pdf/2019-26447.pdf
Monday, December 16th, 2019
Originally published on valawyersweekly.com on December 16, 2019.
Sunday, March 31st, 2019
What seemed like a small garnishment matter in Roanoke City General District Court could have had drastic implications to Virginia’s restaurant industry, but Gentry Locke was able to successfully defend a national restaurant chain from having to garnish its employee’s tips. The facts started out in a typical fashion: the Restaurant received a garnishment summons for one of its tipped employees and responded to the summons, indicating that the employee did not earn enough wages to be garnished. As is the required minimum, and standard in Virginia, the tipped employee made $2.13/hour, well below the statutory limits on garnishment.
The Creditor challenged the Restaurant’s response with the argument that the employee earned enough wages if the Restaurant included her tips in her wages. Whether employers are required to garnish tip income was the sole issue in the ensuing litigation. The Department of Labor’s Field Operations Handbook instructs that “gratuities transferred free and clear to an employ at the direction of credit customers who add tips to the bill” and cash tips are not earnings subject to garnishment. In other words, the federal rules do not allow garnishment of cash tips or tips left on credit cards.
Virginia Code § 34-29, however, includes additional language when defining earnings, including money “whether paid directly to the individual or deposited with another entity or person on behalf of and traceable to the individual.” Further, the Virginia Department of Labor Field Operations Manual says that tips are not usually subject to garnishment “because tips do not pass through the hands of the employer.” (emphasis added). There is little to no Virginia case law on the matter.
The question at trial became whether tips left on credit cards (or cash tips for that matter) passed through the hands of the Restaurant and could arguably be subject to garnishment. At the trial on the matter, one of the Restaurant’s manager’s testified as to the Restaurant’s tip process, which, much like the majority of restaurants in Virginia, cashes out each tipped employee at the end of a shift. In other words, the employee leaves each shift with cash representing the tips he or she has earned (whether left in cash or on a card) during that shift and is required to report his or her tips for tax purposes. The tips are not paid through a pay check, they are not collected by the Restaurant and distributed to the employee at a later time, and the Restaurant has no control over the employee’s tips. The manager also testified that requiring the Restaurant to collect and garnish tips would be onerous if not impossible to do. Based on the manager’s testimony, the case was dismissed, and the rule remains that employers are not required to garnish cash or credit card tips that do not pass through the employer’s hands.
For this or any similar issues, please contact our Business Litigation or Employment Law attorneys, who would be happy to help.
Friday, March 22nd, 2019
Virginia law regarding prompt payment under the Fee Schedule seems simple enough. In essence, the workers’ compensation carrier/employer has 45 days after receipt of a medical bill itemization to:
- Contest the bill;
- Deny the bill;
- Notify the healthcare provider that the bill is considered incomplete.
If the employer/carrier does not contest, deny, or consider the bill incomplete, it must pay the healthcare provider in full within 60 days after receipt of the medical bill itemization. (§65.2-601(A) and (B)).
In those instances where the employer/carrier issues a notification to the healthcare provider, then notification must include the following information:
- “The reasons for contesting or denying the itemization, or the reasons the itemization is considered incomplete;
- If the itemization is considered incomplete, all additional information required to make a decision; and
- The remedies available to the healthcare provider if the healthcare provider disagrees.”
The statute was given gnarly teeth by the legislature, which gave the healthcare provider the right to get interest on the billed amount whenever the employer/carrier fails to meet the 45/60 day rule. See §65.2-605.1(C).
Interestingly, no interest is provided in those situations where the carrier/employer mistakenly pays a healthcare provider in any such claim to recover and an incorrectly made payment must be filed within one year when payment was made to the healthcare provider, unless there is fraud. §65.2-605.1(E).
The Effect of “Voluntary” Payment of Medical Bills
In a January 2019 Virginia Court of Appeals Decision, the court reversed a prior ruling of the Virginia Workers’ Compensation Commission, which found a healthcare provider’s claim for payment of its bill was time barred. Roanoke Ambulatory Surgery Center v. Bimbo Bakeries U.S.A., Inc., Record No. 1055-18-2, January 29, 2019; VLW No. 019-7-019, 9 PP.
A common, and often advisable, decision by workers’ compensation carriers and employers is to make “voluntary” payment of medical bills and sometimes indemnity payments pending an ongoing investigation of some aspect of the claim.
The Bimbo case emphasizes the impact the voluntary payments on the interpretation of prompt payment rule. Facts of Bimbo are as follows:
- The claimant was injured on February 23, 2015.
- Shortly after his injury, the claimant had two surgeries performed by Roanoke Ambulatory Surgery Center – one in the amount of $23,122 and another in the amount of $12,101, both which were billed to Bimbo.
- The first bill was submitted on June 12, 2015 and Bimbo only paid $4,863.10. At that time, it provided a “review analysis” stating that the bill exceeded the fair and reasonable amount for the geographical error and also objecting to the bill as being in excess of the amount allowed under Virginia State law.
- Shortly thereafter, Roanoke Ambulatory Surgery Center submitted its second bill for $12,101 to Bimbo, which responded on October 30, 2015, paying only $3,078.81 and providing another review analysis and objection.
- On June 27, 2016, the claimant timely submitted his Claim for Benefits.
- On July 28, 2017, the Virginia Workers’ Compensation Commission approved an agreement between the claimant and his employer (Bimbo) that included a lifetime medical benefits award for the claimant’s shoulder.
- On September 1, 2017, Roanoke Ambulatory Surgery Center filed its own claim with the Virginia Workers’ Compensation Commission requesting full payment for the medical services it provided to the claimant.
- Bimbo defended the claim arguing that §65.2-605.1 (F)(i) time barred the claim because the healthcare provider failed to file a claim within one year of the date Bimbo made partial payment.
- Interestingly, no proof was offered at that time on the issue of whether the medical fees were excessive. Apparently, Bimbo chose to only defend on its belief that the claim was time barred.
- The Virginia Workers’ Compensation Commission agreed with Bimbo and found that the healthcare provider’s claim was time barred by §65.2-605.1 (F)(i).
- The Roanoke Ambulatory Surgery Center then appealed to the Virginia Court of Appeals, which reversed the Full Commission, stating that §65.2-605.1(F)(i) does not apply because Bimbo contested/denied payment of the bill. In addition, §65.2-605.1(F)(ii) is the appropriate authority which applies to the fact and it allows the healthcare provider to file its claim within one year from the date on which the final medical award to the injured claimant was issued.
- Voluntary payments were made on the claimant’s behalf, but they were not an “award.” The award in this case was not entered until July 28, 2017. The healthcare provider filed its claim for full payment on September 1, 2017.
- Consequently, under §65.2-605.1(F)(ii) the claim was timely made.
- The ultimate result of the opinion was that Bimbo was required to pay the full amount of both of its bills, with interest, at the judgment rate of interest from the date payment was due.
Conclusion
The prompt payment rules, under Virginia Workers’ Compensation laws are fairly complex and require carefully considered analysis to the peculiar facts of each situation. Involuntary payments are allowed under Virginia law and, in fact, favored at times, they can affect the rights of various parties, including healthcare providers. Navigation of the technical requirements of the prompt payment law requires careful attention to detail and a deep understanding of Virginia law.
