Wednesday, April 1st, 2015
Thomas J. Bondurant, Jr. is the Chair of Gentry Locke’s Criminal & Government Investigations group and served on the Special Committee on Criminal Discovery Rules.
Under current Virginia state criminal procedures and laws, a defendant often has no idea what evidence will be presented by the Commonwealth Attorney or who may or may not testify against him/her at trial. Under Virginia law, a defendant is only entitled to know his own statements, his own criminal record, an incomplete accounting of certain documentary evidence that may be used at trial, and any evidence the state prosecutor considers exculpatory.
Many responsible Commonwealth Attorneys across Virginia have long understood the unfairness of the Virginia criminal discovery rules and have allowed defense counsel far greater access to the evidence in a pre-trial setting than legally mandated.
Unfortunately, there are several jurisdictions in the state that strictly adhere to the restrictive discovery rules that reduces a criminal trial to a game of chance and not a fair-handed pursuit of the truth.
In October 2013 then Chief Justice Cynthia Kinser of the Virginia Supreme Court appointed an independent committee to advise the Court on the need for reform of the criminal discovery process. The committee was comprised of 29 members and drawn from the ranks of prosecutors, defense counsel, law enforcement officials, academics, victims’ advocates, judges and legislators. The Committee’s report was completed on December 2, 2014 and released to the public on March 3, 2015.
Under the proposed rule changes a criminal defendant is entitled to, among other items, police reports, witness statements, broader expert witness information, a witness list prior to trial, and greater subpoena power. The proposed rules also define what is considered discoverable exculpatory material to include information that tends to negate the guilt of the accused, mitigate the offense charged, reduce punishment, or tends to impeach the prosecution witnesses. Under the current system many Commonwealth Attorneys have their own definition of what constitutes constitutionally discoverable exculpatory material that is not as complete as the proposed change. For “good cause” (e.g. a witness’ life is in danger) the Court is empowered to restrict or redact the release of specific information. On the other hand, the Commonwealth Attorney has a reciprocal discovery right to defense witness statements and a witness list prior to trial.
These proposed changes are long overdue and should be adopted without delay.
Friday, March 13th, 2015
As a potential buyer or tenant of real estate, there a number of items that are readily apparent and discernible when you visit a new piece of property or an existing building, such as the location, curb appeal, or price, but the need for a special exception is often overlooked until much later in the process. A “special exception” means a special use that is not permitted in the current zoning district and requires approval by the governing body of the jurisdiction where the property is located.
While sometimes overlooked, a prudent buyer or tenant should be sure to verify the need for approval of a special exception before signing on the “dotted line” of a purchase contract or lease.
To determine the need for a special exception, the answer depends on the intended use of the land or building and the zoning ordinance for county, city, or town in which the property is located. Although the name of the approval (e.g., special exception or special use permit) may vary from county to county or city to city, the general concept of a special exception is the same. All Virginia localities are permitted to adopt zoning ordinances to regulate the use of land, buildings, structures, and other premises, and the governing body of any locality (e.g., Board of Supervisors or City Council) has the right to make some uses of land or buildings subject to a special exception. If a zoning ordinance stipulates that a proposed use of land or building, say for example, a car wash, is a special use, then the owner, contract purchaser, or potential tenant would be required to obtain the approval of a special use permit from the governing body before the car wash could legally operate. In order to obtain the special use permit, the applicant often needs to file an application, submit a filing fee, prepare supporting materials and drawings, and present the application at one or more public hearings before the governing body. Also, the special use permit application process often requires that an application be reviewed at a public hearing by a planning commission appointed by the governing body, with the planning commission issuing a recommendation of approval or denial to the governing body. All public hearings require notice to adjacent landowners and potentially affected landowners or tenants are given the opportunity at the public hearing to provide comments on the application to the planning commission and the governing body. Further, the governing body has the authority to place specific limits or conditions on the special use permit which could further restrict the intended operation.
If not anticipated, the additional time, expense, and uncertainty of approval of a special exception could result in a significant post-closing problem for a potential buyer or tenant. If identified early in the acquisition or lease processes, a potential buyer or tenant can agree upon terms that address the need for a special exception and avoid the unwanted surprises.
For questions on these issues and other real estate related matters, please feel free to contact Jon Puvak at 540.983.9399, or any of the lawyers in Gentry Locke’s Zoning or Real Estate groups.
Friday, March 6th, 2015
In this era of increasing sensitivity about the release of hazardous substances and other varieties of environmental contamination, industries are, or at least should be, concerned as to whether their liability insurance policies will afford them a defense against environmental claims that are not lawsuits filed in a court of law. Such claims generally come to the attention of management through the receipt of “potentially responsible party (PRP)” and “general notice” letters issued by the Environmental Protection Agency (EPA). The claims typically seek management’s “cooperation” in the EPA’s investigation of the release of hazardous substances at or from a site or sites owned by the business. Among other things, the first EPA letter generally requires the business to submit a detailed response to a questionnaire about its activities at its properties, and informs the business that “while EPA seeks your voluntary cooperation…,” compliance with the request is required by law, and the failure to cooperate could result in an enforcement action and civil penalty. A second letter, a “general notice letter” may formally identify the business as a PRP and state that the business could be required to clean up the site or sites as ordered by the EPA, and to reimburse the EPA for its own expenditures cleaning the site or sites. The general notice letter “encourages” the business to participate in settlement negotiations with other PRPs in allocating the cleanup costs.
For businesses, the most common form of liability insurance against third-party claims for bodily injury and property damage is the commercial general liability (CGL) insurance policy. The insuring clause of a CGL policy, in addition to providing for indemnity, provides that the insurance carrier has the right and duty to defend the policy holder against “any suit against the insured seeking those damages….” The majority of courts in the United States have held that the word “suit” is ambiguous and could be interpreted to mean any “attempt to gain an end by any legal process,” and that absent any other consideration the carrier would have a duty to defend the type of environmental claims under discussion.
However, since at least January of 2004 there has been another consideration, i.e. since that time CGL policies have not only typically contained a specific definition of the word “suit,” but have also contained what is called the “absolute pollution exclusion.” Policies issued since 2004 typically contain an exclusion for bodily injury or property damage “arising out of the actual, alleged or threatened discharge, disbursal, seepage, migration, release or escape” of pollutants. “Pollutants” is defined in the Definitions section of the policy to mean “…any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”
These more recent CGL policies define “suit” to include not only the traditional civil proceeding, but also an arbitration proceeding or “any other alternative dispute resolution proceeding in which such damages are claimed.” While the foregoing definition of “suit” is broader than the traditional concept of the word (as a proceeding in civil court), when management tenders the defense of the claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the insurance carrier will undoubtedly reject the tender of defense. The carrier will do so, in all probability, not on the basis that the letters sent to the business were not “suits” because they were not filed in a court of law, in view of the broader definition of the word “suit” in the newer policies. Instead, the carrier will almost certainly rely, probably successfully, upon the absolute pollution exclusion in these policies. Accordingly, businesses with only CGL policies are likely on their own in defending the demands of the environmental authorities.
Businesses that have been prescient enough, however, to purchase a “modern” Pollution Legal Liability Policy in addition to its CGL policy, should be entitled to a defense of such environmental claims from the EPA, as well as indemnity.
With “modern” pollution liability insurance policies, the applicable question is whether the allegations or demands of EPA suggest a “reasonable possibility of coverage under the policy” for “remediation costs.” Such policies came into existence to fill the gap in coverage created by the “absolute pollution exclusion” in CGL policies. The pollution legal liability policies typically define “claim” to include “…a written assertion of a legal right received by the insured from a third party, including, but not limited to, a government action, suits or other actions alleging responsibility or liability on the part of the insured” for “…remediation costs arising out of pollution conditions….”
Consequently, a business faced with potential liability for the release of hazardous substances, whether an actual lawsuit or something less, such as information requests and/or general notice letters under CERCLA, should immediately review all potentially applicable insurance policies and provide notice to all potentially implicated insurers. Also, insureds whose business activities expose them to such environmental liability, but have only a CGL policy, should consider obtaining a “modern” Pollution Legal Liability Policy.
Tuesday, March 3rd, 2015
During the last week in February, 2015, the Virginia legislature approved a bill (HB 2081) that, if signed by the Governor, will limit an employer’s right to access “social media accounts” of employees and job applicants.
The new law will prohibit an employer from requiring an applicant or an employee: (1) to disclose his/her user name and password to that individual’s social media account; or (2) to add an employer (supervisor or IT administrator) to the list of contacts associated with a social media account. Further, employers are prohibited (a) from taking action against or threatening an employee for “exercising his rights under this section” or (b) from refusing to hire someone for “exercising his rights under this section.”
The statute contains a very broad definition of “social media accounts” but also contains important exclusions. “Social media accounts” are defined to mean a “personal account” where users can create, share and view content including photographs, blogs, messages and emails, as well as website profiles or locations. This definition includes not just LinkedIn, Facebook and Twitter, but personal email accounts maintained with web-based email service providers like Gmail, Hotmail and Yahoo, as well as blogs. Excluded is any account: (1) opened by an employee at the request of the employer; (2) provided to an employee by an employer, e.g. a work email account or other program owned and operated exclusively by the employer; (3) set up by an employer on behalf of the employee; or (4) set up by an employee to impersonate an employer through the use of the employer’s name, logo or trademark.
The statute makes clear that employers are not prohibited from viewing information that is publicly available, nor does it affect the employer’s ability to request an employee to disclose his/her user name and password for the purpose of accessing a social media account if the employee’s activity is reasonably believed to be relevant to a formal investigation (or a related proceeding) by the employer into allegations of an employee’s violation of law or the employer’s written policies. If the employer obtains the employee’s user name and password for investigative purposes, it must only be used for that purpose and nothing else.
The statute also provides that an employer who “inadvertently receives” an employee’s user name and password (or other login information) associated with an employee’s social media account through the use of an electronic device provided to the employee, or through a program that monitors the employer’s network, shall not constitute a violation of this new prohibition so long as the information is not used to gain access to the social media account.
There are five initial takeaways from this new law:
(1) Employers can continue to “surf and search” the Internet, including social media sites, where information is publicly available, even if it is found on the social media account of an applicant or employee.
(2) Companies will still have the ability when conducting an investigation to require an employee to provide login information to their personal Gmail account and/or other personal social media accounts when the information is “reasonably believed” to be relevant to a formal investigation (or a related proceeding) by the employer into allegations that federal, state or local law or the employer’s written policies have been violated. Fishing expeditions should be avoided.
(3) Social media accounts now include personal email accounts of your employees. When employees access their personal gmail, hotmail or yahoo accounts on your company-provided laptop, those emails will still reside on the hard drive. How this statute will apply when an undisclosed forensic examination of hard drives is occurring will be interesting to watch.
(4) The new statute does not address what an employer can do in response to a co-worker who provides to the employer information posted on a private “social media account,” nor does it expressly limit an employer’s right to discipline an employee for content posted on a private social media account once the information is brought to the employer’s attention. What seems clear is that an employer who attempts to do indirectly what it cannot do directly, i.e., getting a co-worker to access a personal social media account in order to give the information to a supervisor, will be inviting a legal action.
(5) Last, the statute does not provide a specific remedy for violations unlike other provisions of Title 40.1, so one must assume that an intentional tort claim for compensatory and punitive damages will be available.
As all of us come to live more of our lives in the digital world, there is sure to be increasing interest in defining a zone of privacy, and will invite litigation and ever increasing legislation. Virginia will be one of 19 states with legislation in this area and there is no uniformity in these laws. Employers must keep abreast of the rules in the jurisdictions where they operate. For further advice on these issues, please feel free to contact David Paxton at 540.983.9334, or any of the lawyers in Gentry Locke’s Employment Law group.
Friday, February 27th, 2015
Employers and employees alike often assume that overtime must be paid at “time and a half” for all hours worked over 40 in a work week. Not so fast!
According to the Fourth Circuit Court of Appeals and other federal circuits, the overtime calculation is significantly more employer friendly when paying salaried non-exempt employees. Keep in mind that just because an employee is salaried does not automatically mean that he or she is not entitled to overtime under the Fair Labor Standards Act (FLSA). The determination as to exempt or non-exempt is based on the actual duties performed – not whether the employee is paid a salary.
The Fourth Circuit, joining several other courts as well as the Department of Labor, has held that salaried employees may only be entitled to be paid half-time for overtime. See generally, Desmond v. PNGI, Charles Town Gaming, L.L.C., 630 F.3d 351 (4th Cir. 2011), (the Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina and South Carolina). This is known as the “fluctuating workweek” method of compensation. It allows an employer to pay an employee, whose hours fluctuate from week to week, ½ time for overtime assuming the employee is paid a fixed salary regardless of the number of hours worked. To use this method of compensation, the employee must meet the following requirements:
- First, the employee’s hours must fluctuate from week to week.
- Second, the employee must receive a fixed salary that does not vary with the number of hours worked during the week.
- Third, the fixed salary must be sufficiently high so that an employee does not receive less than the federal minimum wage (currently $7.25) in any given workweek.
- Finally, the employee and employer must share a “clear and mutual understanding” that the employer will pay the fixed salary regardless of the number of hours worked. Finally, one last wrinkle about the fluctuating workweek – the method of calculating the rate of overtime actually goes further in favor of the employer because the more hours the employee works, the lower the rate of pay. This is because the employer divides the weekly salary by the number of hours worked in a given week and calculates the overtime based on that hourly rate. Thus, the more hours worked, the lower the hourly rate.
- It is unclear what exactly is meant by “mutual understanding.” Some courts have been far more liberal and have almost ignored the need for a “mutual understanding.” Other courts, as well as the Department of Labor, have indicated that the fluctuating workweek method cannot be used when bonuses violate the requirement that the employees receive a “fixed salary.” An employer should also be mindful of the different state laws that may restrict the use of the fluctuating workweek.
For questions regarding FLSA and compensation of your employees, contact Paul Klockenbrink or any member of Gentry Locke’s Employment & Labor group.
Friday, February 13th, 2015
Gentry Locke Partner Todd Leeson is an associate member of the National Association of College and University Attorneys.
2014 was the year that sexual assaults of college students became an important part of our nation’s discourse. In the last year or two, there have been a flurry of new Federal laws, regulations, guidance documents, proposed laws, and initiatives on the topic. In my communications with College Title IX coordinators in Virginia and other interested parties, I have found that it has been challenging for them to keep up with these developments. This is a short article that provides a description of recent pronouncements from the Federal Government.
Title IX of the Education Amendments of 1972 (“Title IX”)
As you know, Title IX prohibits discrimination based on sex in education programs or activities by entities that receive federal financial assistance. 20 U.S.C. Sec. 1681 et seq.
The U.S. Department of Education (“DOE”), a federal agency, has promulgated regulations interpreting Title IX. These regulations are set forth at 34 C.F.R. Part 106.
Title IX is enforced by the Office of Civil Rights (“OCR”) within the DOE. (https://www.ed.gov/about/offices/list/ocr/aboutocr.html)
OCR has issued guidance on Title IX, most notably in the form of what they call “Dear Colleague Letters” or “DCL.” Several of the key documents are listed below.
- “Revised Sexual Harassment Guidance; Harassment of Students by Employees, Other Students or Third Parties” (Jan. 19, 2001)(superseding 1997 Guidance).
- “Dear Colleague Letter regarding Bullying and Discriminatory Harassment” (Oct. 26, 2010). Guidance as to an entity’s obligation to protect students from students–on–student harassment on the basis of sex, race, color, national origin and disability. The letter clarified the relationship between bullying and discriminatory harassment.
- “Dear Colleague Letter on Sexual Violence” (Apr. 4, 2011). This was ground-breaking guidance. In this 19 page letter, OCR identified sexual assault on campus as an important civil rights initiative. The DCL explained that the sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. OCR also reminded schools of their responsibilities to take immediate and effective steps to end sexual violence. The DCR explained that a number of acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. https://www.ed.gov/news/press-releases/vice-president-biden-announces-new-administration-effort-help-nations-schools-address-sexual-violence
- “Questions and Answers on Title IX and Sexual Violence” (Apr. 29, 2014). This is another important “significant guidance document” from OCR. It is a 46 page document in question and answer format to further clarify an entity’s obligations under Title IX to address sexual violence as a form of sexual harassment. The table of contents is detailed and well organized as to the questions answered. https://www.ed.gov/news/press-releases/guidance-issued-responsibilities-schools-address-sexual-violence-other-forms-sex
Clery Act/Violence Against Women Act/Campus SaVE Act
The Jeanne Clery Act Disclosure of Campus Policy and Campus Crime Statistics Act (the “Clery Act”) requires colleges and universities to provide the public with crime statistics and information about campus crime prevention programs and policies. For example, colleges must disclose accurate and complete crime statistics for incidents that are reported to campus security authorities and local law enforcement that occur on or near the campus.
- On March 7, 2013, the Violence Against Women Reauthorization Act (“VAWA”) became law. Within VAWA is the Campus Sexual Violence Elimination Act (“Campus SaVE Act”). The Campus SaVE Act amends the Clery Act in several important ways.
- It adds offenses involving domestic violence, dating violence and stalking to crimes that must be included in the annual security report.
- It expands the category of “hate crimes” to include those based on “national origin” or “gender identity.”
- The annual security reports must now include detailed descriptions of the institution’s procedures in cases of domestic violence, dating violence, or stalking and descriptions of its education and prevention programs.
- The Act also codified some of the provisions in the April 2011 Dear Colleague Letter. For example, the Act mandates prompt and impartial internal investigation and resolution procedures and requires that alleged sexual assault victims be advised of their right to file internal complaints, criminal complaints, or both.
- The Campus SaVE Act became effective March 7, 2014.
- Throughout 2013 and through early 2014, stakeholders representing various constituencies engaged in negotiated rule-making as to proposed regulations to implement the VAWA/Campus SaVE Act. On or about April 1, 2014, the rule-making panel reached consensus on several important and/or controversial issues.
- On June 20, 2014, DOE published proposed regulations. These proposed regulations can be found at 79 Fed. Reg. 35,417–35,460 (June 20, 2014). DOE solicited public comments on or before July 21, 2014.
- On October 2, 2014, DOE published its final rule implementing changes made to the Clery Act with the VAWA. 79 Fed. Reg. 62,752-62,790 (Oct. 20, 2014). https://www.ed.gov/news/press-releases/us-department-education-announces-final-rule-help-colleges-keep-campuses-safe
- Although the final rule will not go into effect until July 1, 2015, the VAWA statutory provisions are currently in effect and institutions are expected to make a good faith effort to comply with the law and final rules.
White House Initiatives & Task Force
On April 29, 2014, the White House Task Force to Protect Students from Sexual Assault issued its first report, and the White House announced a new website to provide additional resources on the topic: www.notalone.gov.
For example, the website includes a proposed checklist for sexual misconduct policies. The website also includes a document that explains the differences as to the reporting requirements of Title IX and the Clery Act. https://www.notalone.gov/schools.
Conclusion
As you can see, there are several moving parts. I hope this “road map” will help you as you seek to understand your institution’s obligations to address sexual violence on campus.
Wednesday, January 28th, 2015
On December 11, 2014, the National Labor Relations Board (“NLRB”) issued its long-awaited decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). Purple Communications is a non-union company that had a computer and email policy that limited use of its email for “business purposes only.” The policy also banned employees from “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and stated that employees could not send “uninvited email of a personal nature.” In a highly controversial 3-2 decision, the Board majority concluded: “we decide today that employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”
What does this mean for employers? With limited exceptions, the most important reality is this: employees who currently have access to company email will be able to send messages to their co-workers about their terms and conditions of employment and also about union-related matters (i.e., engage in communications protected under Section 7 of the National Labor Relations Act).
Much has been already been written about this case. As I write this in late January, it is unclear whether this decision will be appealed or will ultimately stand. In addition, there are other important questions that were not addressed in the decision. We will continue to monitor developments and will post updates periodically. There is no question, however, that this decision reflects the current pro-union sentiment of the NLRB majority.
This article is not exhaustive. For now, I will provide you with some additional information to help Virginia employers understand the decision and potential implications. Here are the primary practice points:
- The decision applies only to non-management employees who have “already been granted access to the employer’s e-mail system in the course of their work.” Thus, if an employer does not already provide email access to certain employees or groups of employees, it does not have any obligation to provide them access now.
- As noted above, employees who have been permitted to use email for non-work communications are permitted to use email to communicate with co-workers about terms and conditions of employment and union-related matters.
- Do you have a non-solicitation policy in your handbook? If so and consistent with that policy, an employer may prohibit an employee from email solicitation of another employee during the working time of either employee.
- An employer may continue to apply uniform and consistently-enforced controls over its email system that may be necessary to maintain production and discipline. In other words, employers may continue to monitor emails for “legitimate business reasons.”
- Conversely, however, employers cannot target or discriminate against employees who use the company’s email system to exercise their Section 7 rights. In other words, if an employer has never reviewed its employees’ email accounts, it runs a risk of a disparate treatment unfair labor charge if it then reviews an employee’s email account and disciplines him after it learns that he has posted union-related emails or sent an email to employees relating to the terms and conditions of employment (e.g., criticized a company policy, manager or action).
- An employer can still restrict third parties from gaining access to the company’s email system. It would be best if such a restriction is memorialized and enforced.
- An employer will likely not be able to ban “all non-business use” of company email. The Board expressed its skepticism that an employer would be able to demonstrate “special circumstances” that would allow for a total ban of non-work email.
- If a company email policy bans “solicitation” on behalf of other business, religious groups, or outside organizations, such a ban would likely be found unlawful.
- Employers should review their email use policies with their employment counsel. The Board found that employees have the right to use corporate email for section 7 activity during “nonworking time.” Will an employer be able to distinguish working and non-working time? What other safeguards, if any, can an employer implement? When should an employer monitor employee email communications and what should an employer say in its policies? These are all questions employers will need to understand in light of this decision.
- This decision cannot be considered in a vacuum. The NLRB has enacted other pro-union initiatives and decisions including the “quickie election” rules scheduled to take effect April 14. Any employer who wishes to remain union-free or avoid unfair labor practices must become familiar with the new NLRB landscape.
Employers are urged to contact their employment counsel if there are questions or concerns as to the NLRB’s decision and the potential impact for the company’s operations. Please contact Todd Leeson at Gentry Locke, www.gentrylocke.com/leeson, if we can help your company with its policies or if we can help you remain union-free.
Thursday, January 22nd, 2015
The Department of Labor (DOL) promulgated a Final Rule which made a number of changes to the regulations concerning the companionship services exemption from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). These changes were scheduled to take effect on January 1, 2015. The Final Rule would have drastically reduced the number of domestic employees who would be entitled to an exemption from minimum wage and overtime. There are two major components in the Final Rule: (i) the companionship exemption would only be available to individuals and families who employ workers in the home directly (rather than companies or agencies); and (ii) the definition of companionship services would be significantly narrowed. For example, under the new definition, if an employee provides “care” (i.e., dressing, feeding, bathing, meal preparation, driving, etc.) for more than 20% of the workweek, he or she loses the exemption for that workweek.
On December 22, 2014, the home health care industry celebrated its first victory when a federal court struck down the first component of the Final Rule. The court ruled that prohibiting third party employers from taking advantage of the companionship exemption was inconsistent with the FLSA. On December 31, 2014, the court issued an order staying enforcement of the second component of the revised regulations until January 15, 2015. On January 14, 2015, the home health care industry celebrated its second victory when a federal court struck down the second component of the revised regulations because it ruled that Congress did not delegate to the DOL the authority to re-define the companionship exemption. In fact, the court noted that the DOL’s definition of companionship was so restrictive that, for all practical purposes, it would have written the companionship exemption out of existence.
These court decisions are significant victories for third party employers of workers who provide services in private homes because they can continue to take advantage of the minimum wage and overtime exemptions for companionship services (at least for now).
However, it is likely that the DOL will appeal the court rulings and even seek an emergency order from the court to allow the revised regulations to go into and remain in effect until its appeal is decided, so stay tuned.
For further information regarding the companionship exemption or other wage and hour issues, please contact Lindsey Coley (540.983.9376 or coley@gentrylocke.com) or any other member of the Employment & Labor group at Gentry Locke.
Sunday, January 18th, 2015
Each year employers and employees in a variety of industries across the country face issues related to violence in the workplace. Given that the hospitality industry faces issues involving everything from alcohol consumption to guest frustration on a near-daily basis, it is particularly susceptible to workplace violence. Generally, workplace violence can be categorized in two ways: (1) violence by one employee upon another or (2) violence by a third party upon an employee.
The National Institute for Occupational Safety and Health (NIOSH) reports that on average, 1,700,000 workers are injured each year as a result of workplace violence. It is so prevalent, in fact, that the Center for Disease Control and Prevention considers workplace violence a national epidemic. It is imperative that employers and their insurers recognize the legal issues associated with workplace violence to protect themselves and their employees.
In Virginia, assault and battery are criminal offenses but can also be the basis of civil lawsuits. To establish the tort of assault, there is no requirement that the victim prove that he or she was physically touched.
An assault occurs when the offender engages in an act intended to inflict bodily harm on the victim and has the present ability to inflict such harm or engages in an overt act intended to place the victim a reasonable fear or apprehension of bodily harm. Bowie v. Murphy, 271 Va. 126, 624 S.E.2d 74 (2006) (citing Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005)). A plaintiff need not allege that he or she suffered an actual physical injury to state a cause of action for assault. Id. To establish a case for civil battery in Virginia, the plaintiff must allege that he or she was touched “in a rude, insolent or angry manner.” Johnson v. Paramount Mfg., LLC, et al., 2006 U.S. Dist. Lexis 66735, at 11 (W.D. Va. Sept. 21, 2006). Johnson involved an incident of sexual battery by a supervisor upon a subordinate. Employers should take note, as the court held that the employer could be liable for the supervisor’s acts as they allegedly occurred while he was performing his job as the plaintiff’s supervisor.
Moreover, an employer risks liability for its employee’s torts if it knew or should have known that the employee presented a danger to others. In Virginia, an employer may be liable for both negligent hiring and negligent retention of an employee who causes harm to another. To properly allege a claim of negligent hiring, the injured employee must allege only that the employer knew, or by exercising ordinary care could have known, that the employee at fault was an incompetent and dangerous person to be entrusted with his/her job duties. Davis v. Merrill, 133 Va. 69, 78 (1922). The plaintiff must further show that the employee’s dangerousness was discoverable through a reasonable investigation. Majorana v. Crown Central Petroleum Corp., 260 Va. 521, 531-32 (2000). Negligent retention is a distinct cause of action from negligent hiring. When an employer knows or should know of an employee’s incompetence, negligence or unfitness for a position, the employer has a duty to respond properly to avoid danger to employees or others. Southeast Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 261-262 (1999).
An employer can also be held liable for its employee’s acts under the theory of vicarious liability if the plaintiff can show the employee was acting within the scope of his or her employment when he or she injured another employee. Specifically, the “test of liability is not the motive of the employee in committing the act complained of, but whether the act was within the scope of the duties of employment and in execution of the service for which [the employee] was engaged.” Plummer v. Center Psychiatrists, Ltd., 252 Va. 233, 236-37 (1996) (quoting Commercial Bus. Sys., Inc. v. BellSouth Servs., Inc., 249 Va. 39, 45 (1995)). Accordingly, a plaintiff must prove (1) the fact of employment, (2) an injury caused by the employee’s act, and (3) that the act occurred in the scope of employment. The employer then has the burden to prove that the employee’s act was outside the scope of his or her employment. Employers and employees should be mindful, however, that the Virginia Workers’ Compensation Act can also come into play and ultimately bar an employee’s lawsuit against an employer in certain instances.
This is only the tip of the iceberg employers may face when dealing with workplace violence. It is imperative that employers arm themselves with proper background checks, a thorough interview process, and the implementation of effective safety measures to guard against injuries to employees and the potential for litigation resulting therefrom.
Sunday, January 18th, 2015
Mineral rights cases are property disputes that often turn on obscure questions of historic ownership or interpretation. For example if a river name changes over time, land previously described as “on the banks of the Smith River” is now on the banks of the Jones River, and the deed may become vulnerable to legal challenge. Likewise, when Becky’s Creek flowed into Smith River, it was a Smith River tributary; but, now, it is within the Jones River watershed.
Today’s GPS technology allows us to find our way around anywhere and describe locations not only by postal address but also by latitudinal and longitudinal coordinates. Google Maps and other sources can provide information on almost any location, worldwide.
We have come a long way from the days when plots of land were painstakingly described using trees, creeks, “poles” and mountain ridges. Still, the old descriptions remain in most chains of title.
More than a century ago, the federal government recognized the problems caused by differing local and regional names, as well as confusion caused by translating names into English from foreign languages. It established the United States Board on Geographic Names, which was originally tasked with resolving disputed names. In 1947, Congress asked the Board to standardize (including spelling) names of both domestic and foreign geographic features for official use. The Board included representatives from the Departments of State, War, Navy, Post Office, Interior, Agriculture, and Commerce, and from the Government Printing Office and Library of Congress. Its decisions were binding on federal departments and agencies.
Today, the Board, in cooperation with the United States Geological Survey, provides its standardized names, along with recognized variant names, in a searchable database available at the Geographic Names Information System. The Board maintains a web page at https://geonames.usgs.gov with a wealth of information about both current and historic names. It provides links to historic documents relevant to the names (e.g., letters about the name of Mount McKinley), as well as policies and procedures to guide name decisions. However, its name decisions are not binding on state, local, tribal or international governments.
Many states have their own geographic names boards or geographic names advisors. Virginia has an Advisory Committee, connected with the State Archivist, that considers and makes recommendations to the United States Board of Geographic Names. The Library of Virginia’s collections include thousands of maps and other geographic information; it even has a guide called Researching Virginia Place Names (available at: https://www.lva.virginia.gov/public/guides/researching_place_names.pdf ). Local historical societies can also provide helpful maps and other documents.
Historic name information can be a crucial piece of the evidence needed to prove property ownership. Knowing where to find it is the first step.
