Why Victims of Airplane Crashes Should Seek Guidance from a Licensed Pilot/Lawyer

Friday, January 31st, 2025

If You Are a Victim of a Plane Crash

If you or a loved one are the victim of a plane crash, it is crucial that you know and understand the following information to improve your chances of obtaining a successful outcome and hold those responsible accountable for your losses. Potentially responsible parties are extremely challenging to identify. They may include the pilot, airplane owner, charter operator, fueler, mechanics, and manufacturers to name a few.

Plane crashes often involve the most catastrophic polytrauma-type injuries – meaning they frequently involve brain injuries, loss of limbs, orthopedic injuries, tendon and muscle injuries, burns, and sometimes death.

If you or a loved one are involved in a plane crash, it is imperative that you do the following:

• Assess your injuries and any injuries to those in the plane and take immediate action to render first aid as necessary on the scene.
• As soon as it is safe to do so, call 911 or have someone else contact them and give the exact location of the crash and a preliminary report of the injuries.  Don’t hesitate to ask for an ambulance, helicopter, etc.
• Contact your family/employer/loved one to report the crash and request any aid from them that may be necessary.
• Unless necessary for the victims, do not alter anything at the scene of the crash before authorities arrive.
• Take or have someone take photos and videos of the scene of the crash including the position of the plane, its relationship to physical objects – such as buildings, roads, power lines, fences, etc. Be sure to get some photos taken at a fair distance from the crash site to give viewers a better overview of the scene.
• Also take photographs of any obvious injuries at the scene, if possible.
• If you are injured in any way, absolutely accept the offer of first responders to be transported to a trauma center to evaluate your condition. Plane crashes involve a tremendous amount of energy being transferred from the machinery to the human body. Victims often are injured in ways they do not at first appreciate but which could ultimately be life threatening.  Being checked out by qualified healthcare professionals is crucial.
• Once any injuries are stabilized and the accident scene is captured on video and/or in photos, contact an experienced aviation attorney with the necessary resources to send a “Go Team”[1] to the scene of the crash immediately. That team will be dispatched and preserve crucial evidence which could determine the facts necessary to prove who was responsible for the crash and what damage was caused to property and people. That team will interview witnesses, inspect the scene, retain a qualified accident reconstruction specialist, and even do aerial photographs if appropriate and necessary.

• Once you have received appropriate emergency care and your situation is stabilized, begin writing a journal to give to your attorney. The journal should contain all the facts you can recall before, during, and after the crash. Make sure to include details including any pain you have suffered, emotional trauma, and how the trauma and injuries have affected your life and those around you.
• As soon as possible, personally meet with your plane crash attorney and his or her team, at the hospital or some other mutually convenient location, to allow them to assess the facts of the crash and your injuries. These meetings are crucial and should occur as soon as possible after the crash.
• Gather any documents, emails, receipts, etc., available to show any written communication regarding the flight, payments, or any other details regarding the trip.

Plane Crashes Are Rare

Plane crashes involving scheduled commercial airlines are extremely rare. In fact, since 2009, there have been no commercial airline crashes in the United States and relatively few around the world.

Airlines enjoy the best safety records in the world compared to all other forms of transportation because of the intense safety measures in place to prevent such crashes. The standard in the industry is geared towards safety from the beginning of each participant’s involvement in aviation – whether the participant is a pilot, mechanic, flight attendant, ground personnel, etc.

Noncommercial airline aviation also enjoys an incredible safety record. During the last ten years, there has been a significant reduction in the number of crashes. This reduction has been largely due to improved technology (particularly electronics) which is readily available to pilots in the cockpit.

Nevertheless, plane crashes do occur and frequently involve catastrophic injuries to both passengers and people/property on the ground. The vast majority of crashes are ultimately linked to pilot error.

Why You Need an Attorney

The investigation necessary to determine the cause of a crash will often take months and could even take years. The National Transportation Safety Board (NTSB) is a U.S. organization given the primary role of investigating airplane accidents. The Federal Aviation Administration (FAA) is frequently involved in investigating accidents as well. State and local law enforcement are typically the first to arrive at an accident site and will secure the area until aviation experts arrive. The investigating authorities are very professional and generally treat accident victims quite well, but they are not involved in protecting the rights of the injured – nor are they interested in helping victims receive compensation for their injuries, lost wages, pain and suffering, etc. An aviation accident attorney/airplane crash attorney steps into the investigation to represent the interest of the injured individual or the estate of loved ones.

An attorney, who is also a licensed pilot, can effectively guide the victims of a plane crash through the daunting maze of obstacles when seeking to get compensation for horrific injuries or death.

Plane crashes are far more complicated than any other type of crash and should only be handled by an experienced aviation accident attorney who is knowledgeable about the Federal Aviation Administration’s Regulations. Make sure the attorney you select has handled similar crashes in the past. When you or your family select your personal injury attorney, make sure to thoroughly vet their biography to ensure they have the qualifications necessary to litigate against huge insurance companies and sophisticated plane manufacturers.

[1] Gentry Locke’s “Go Team” has over 100 years of experience in investigating catastrophic accidents. The team includes an airline transport rated pilot with over 5,000 hours flight time and an in house private investigator who has investigated hundreds of accidents over the years.

Corporate Transparency Act Enforcement Still Paused Despite SCOTUS Grant of Stay

Friday, January 24th, 2025

On January 23, 2025, the Supreme Court of the United States (SCOTUS) granted the Application for Stay filed by the government, led by Justice Alito—Justice Gorsuch concurring and Justice Jackson dissenting.

This Grant of Stay marks an end to the December 5, 2024 injunction preventing the Financial Crimes Enforcement Network (FinCEN) from enforcing the Corporate Transparency Act (CTA) issued by the United States District Court for the Eastern District of Texas, in Texas Top Cop Shop, Inc. v. McHenry, case No. 4:24–cv–478 (formerly Texas Top Cop Shop v. Garland) pending the appeal in the United States Court of Appeals for the Fifth Circuit. If the Fifth Circuit denies certiorari, the stay issued by SCOTUS shall terminate automatically—if certiorari is granted, the stay shall terminate upon the sending down of the judgement of SCOTUS.

In his concurrence, Justice Gorsuch notes that this Application for Stay by the Government should have been taken as an opportunity to resolve the question of whether a district court may issue universal injunctive relief—a point that has been argued by both sides.

In her dissent, Justice Jackson argues that the emergency relief granted by SCOTUS is not appropriate because the Government “failed to demonstrate sufficient exigency.” She defends her position by highlighting the expedited appeal schedule implemented by the Fifth Circuit and the self-imposed enforcement delay of nearly four years.

Under the Fifth Circuit Court of Appeals expedited schedule, briefing by the parties is due by February 28th, 2025, and oral arguments are set for March 3rd, 2025.

Despite this Grant of Stay, reporting obligations are still paused as noted in a January 24, 2025, update by FinCEN due to a separate nationwide injunction issued on January 7, 2025, in Smith v. U.S. Dept. of the Treasury, Case No. 6:24-cv-336-JDK, also by the United States District Court for the Eastern District of Texas.

The fate of the CTA is still unclear as these cases continue to work through the courts, but the Fifth Circuit Court of Appeals decision will likely shed more light on the future of enforcement for millions of reporting companies.

The Grant of Stay by SCOTUS can be found on their website: www.supremecourt.gov/opinions.

For more information regarding CTA reporting obligations and to stay up to date with changes to reporting obligations visit FinCEN’s website at www.fincen.gov/boi.

Photo from Respiro/Shutterstock.com

Employment Authorization Verification for U.S. Employers: Form I-9 Basics

Wednesday, January 22nd, 2025

In last year’s Presidential election, the problem of illegal immigration was often center stage. President-elect Trump made it clear that he would be aggressive in rounding up and deporting those who are not lawfully in the United States. During the first Trump Administration, the effort to combat illegal immigration included an increased use of workplace inspections of employers’ hiring records and practices by federal authorities.  There is every reason for employers to anticipate this same type of aggressive enforcement will be pursued following the second Trump inauguration.

A focus on workplace hiring practices should come as no surprise.  According to the United States Citizenship and Immigration Services (“USCIS”), the opportunity for employment is often the magnet that attracts people from all around the world to the United States. At times those who immigrate here work unlawfully. Federal law has long imposed rules that prohibit employers from knowingly recruiting, hiring or retaining persons who are in the US illegally and/or who do not have the right to work.

For example, in 1986 Section 274A of the Immigration and Nationality Act was revised to make it unlawful for employer to knowingly hire an alien who is not authorized to work in the United States or to continue to employ that person knowing that they are or have become unauthorized with respect to such employment.[1] Federal law also mandates that employers use the proscribed Form I-9 to verify the identity of every employee hired and to ensure they are not an unauthorized alien.[2] In this regard, it is illegal for a business to hire an employee, even someone who is a citizen, without properly and timely completing and maintaining a Form 1-9 for each employee.

All employers, regardless of their size,[3] must use the most recent version of Form I-9 to verify the identity and employment authorization for all new employees, including US citizens, hired after November 6, 1986, and for rehires or reverifications.[4] Federal law requires the new employee to complete and sign the Form I-9 on the first day of employment and the employer must then complete the form within three (3) business days of that date after first verifying the person’s identity and work authorization which requires the inspection of certain specified documents.

There are limited exceptions to this I-9 requirement. A Form I-9s is not required for the following categories of workers:

• Employees working outside the United States;
• Individuals employed by a contractor providing contract services (like an employee leasing or temporary agency);
• Independent contractors [5]; or
• Causal domestic service employees working in a private home where work is sporadic, irregular, or intermittent.

Completed Form I-9s are not filed with a government agency but must be retained by the employer and made available upon request for inspection by the Immigration and Customs Enforcement (“ICE”) division of U.S. Department of Homeland Security.  ICE has the authority to conduct an inspection of any employer’s hiring records at any time, it does not require a complaint. Employers will learn that an inspection will occur when it receives a notice of inspection. Employers are given at least three business days to respond.

When ICE inspects an employer’s hiring records, it is common for ICE to conduct on-site audits of Form I-9 documentation kept in an employer’s HR records.  Failure to correctly fill out the Form I-9 or other compliance failures can lead to significant civil fines.[6] As result, it is imperative that every employer periodically review and assess their hiring records to ensure compliance and to verify that there is a Form I-9 for every employe currently working[7] and there are acceptable documents to verify who the employee is and that he/she is authorized to work in the United States, including United States citizens and non-citizen nationals.

Form I-9 Basics

Form I-9 is a four-page form which has four components. This article summarizes some important Form I-9 information that every employer must know.

A. Section 1 – Employee Information and Attestation

The first section of Form I-9 must be completed by the newly hired employee (or someone assisting him/her). This is where the new hire provides personal information, attests to their identity and their eligibility to work in United States, and provides documents to allow the employer to verify the attestations.

• The employee must complete Section 1 no later than the first day of hire, that is, the first day of work for pay (hire date).
• Employees are given a list of acceptable documents, which is set forth on Page 2 of the Form I-9 and given up to three business days to provide documents that will allow the employer to verify the information in Section 1.
• Acceptable documents for verification fall into three categories: A, B and C. New hires must provide one document from List A (which proves identity and authorization to work), or one document from List B (identity) and one from List C (work authorization).
• The employee is not required to provide their social security number on a Form I-9, unless that employer is enrolled in E-Verify.[8]
• The employee is not required to provide an email address on their Form I-9.
• Employers must ensure that an English version of Form I-9 is completed and maintained but may provide and use the Spanish version for translation purposes.
• If the employee uses a preparer and/or translator in completing the Form I-9, the person providing assistance must complete the Certification on Page 3.

B. Section 2 – Employer Review and Verification

Section 2 is area completed by the employer and signed under penalty of perjury by an authorized representative (usually someone in HR) after examining the documents provided by the new hire, determining the documents appear to be genuine, and using the document(s) to verify the accuracy and completeness of information provided in Section 1 regarding the employee’s identity and work authorization information. Employers are required to record in Section 2 which documents are provided by the employee and examined by the authorized representative.

• Employers or their authorized representative must fill out and complete Section 2 within 3 business days of when an employment begins (the hire date).
• The employee must provide original documents, not copies of documents from the Acceptable Document list that will prove identity and work authorization. Documents on List A (such as a U.S. Passport or Permanent Resident Card (“Green Card”) satisfy both requirements.
• Employers cannot ask for employees for specific documentation from the list, newly hired employees must be allowed to choose which document(s) they will present from the list of acceptable documents. Nevertheless, if a document from List B is presented, the individual must also submit a document from List C.
• Employers must accept a document from the Acceptable list that reasonably appears to be original, genuine, and relates to the employee presenting it.
• Employers must examine a presented document in an employee’s physical presence, but employers enrolled in E-Verify may examine documents remotely.
• Employers may, in a case where the employee is authorized to work, accept a receipt showing that an employee has applied to replace a document that was lost, stolen, or damaged. When this occurs, it needs to be documented and the employee must present the original document with ninety (90) days of the hire date. A receipt that merely shows the employee has applied for an initial grant of employment authorization does not meet this exception and is not acceptable.
• Employers are not required to make photocopies of the presented documents. However, many do.  If an employer chooses to make photocopies of a presented document, it must do so for all Otherwise, it will be found to have engaged in an illegal hiring practice.[9]

C. Preparer and/or Translator Certification – Supplement A

Supplement A is completed in any situation were a preparer and/or translator assists an employee in completing Section 1. Each preparer and/or translator must complete, sign under penalty of perjury and date a separate certification area. Employers are required to maintain Supplement A with the employee’s completed Form I-9.

D. Reverifications and Rehires – Supplement B

It is not unusual that documents provided to establish work authorization have an expiration date. Employers are required to keep track of the expiration dates on employment authorization documents (referred to as EAD), and to take the steps required to reverify the employee’s work authorization before the original documents provided expire, but in no event later than three (3) business days after the expiration date.

• Employers should not reverify the following documents – U.S. Passports or passport cards, unexpired permanent resident or alien registration receipt card (Form I-551) or expired permanent resident card presented with form I-797, or List B documents.
• For employees rehired within three years of the date their Form I-9 was completed, an employer may choose to complete the applicable block on Supplement B or complete a new Form I-9.

E. Form I-9 Retention

Employers are required to maintain a properly completed Form I-9 as well as any photocopies (electronic images) made of the documents provided by the new hire, on each employee on the company’s payroll (if hired after November 6, 1986).  Likewise, employers must also retain Form I-9s (and copies of supporting documents if made at hire) for each former employee for the longer of three years after the date of hire or one year after the date of employment ends.

• To calculate how long to keep a former employee’s Form I-9: (i) for individuals who worked for less than two years, retain their Form 1-9 for three years after the date of hire, and (ii) for individuals who worked for more than two years, retain their Form I-9 for one year after the day they stop working for you.
• Employers can retain Form I-9s on paper, microfilm or electronically. You only need to keep the pages that the employer, employee, preparer and/or translator signed.  You do not need to keep Page 2 – the List of Acceptable Documents, or any blank supplemental pages.
• Paper forms must contain original handwritten signatures and may be stored off-site as long as the employer is able to present the Form I-9s within three business days of an inspection request by ICE, Department of Justice, or Department of Labor.
• If a paper Form I-9 form is completed, the original signed form (as well as any correction or update) can be scanned, uploaded, and retained electronically. Once properly scanned and securely saved in electronic form, the original paper form can be destroyed.
• There are specific requirements for any electronic system an employer chooses to use to either generate or retain completed Forms I-9, including without limitation, the ability to generate an indexing system that allows records to be identified and retrieved, and to reproduce legible and readable paper copies.
• There are specific requirements that must be met if an employer elects to complete Forms I-9 using electronic signatures, and employers who use these systems must maintain document of the business processes that create the retained I-9, modify and maintain the retained I-9 and establish the authenticity and integrity of the forms, such as audit trails.
• If documents provided by the employee are copied or scanned, those records must be kept with the I-9. Making copies does not take the place of completing the I-9 form.
• Never mail Form I-9s to USCIS or ICE, unless specifically requested by the federal agency.

F. Inspections

Employers are required to make the Forms I-9 available at your facility or at another location, such as a federal office designated by the federal agency involved. Refusal to comply or delays can lead to citations.  During an inspection, the employer must:

• Retrieve and present only the Forms I-9 and supporting documents specifically requested. Supporting documents include any audit trails that show the actions performed within or on the system during a given time period.
• Provide the inspecting officers the appropriate hardware, software, personnel, and documents needed to locate, retrieve, read, and reproduce any electronically stored Form I-9, any supporting documents and their associated audit trails, reports and other data used to maintain the authenticity, integrity, and reliability of the records.
• If requested, give the inspecting officer any reasonably available or obtainable electronic summary files (such as spreadsheets) containing all information fields on any electronically stored Form I-9.
• If you participate in E-Verify, you should provide the Form I-9 that contain the E-Verify case verification numbers. If those case number are not on the Form I-9, the provide the E-Verify Case Detail Pages during the inspection.

G. Other Provisions

It is not possible to address all issues here.  What follows is a summary of some keep points for what to do if errors or missing information is discovered.  For other questions, USCIS provides a helpful site, “Handbook for Employers, M-274” which is kept up to date on-line, and can be found at 14.0 Some Questions You May Have About Form I-9 | USCIS.

• If an employer discovers an error or missing information in Section 1, the employer should first ask the employee to correct the error or add the missing information. Only the employee, or his/her preparer and/or translator may correct errors or omissions made in Section 1.
• Any errors on a Form I-9 in Section 2 or Schedule B should be corrected by the appropriate person responsible for that section or supplement.
• Errors should be corrected by lining out the incorrect information, entering the correct information, and initialing and dating the corrected information.
• In addition, the employer should create and attach a written explanation of why the information was missing or needed correcting. If the employee’s employment has ended, a signed and dated statement identifying the error or omission should be attached to the existing form, and explain why the corrections could not be made, i.e., the employee no longer works for you.
• If the employer failed to enter the date it completed Section 2 or Supplemental B, the employer should not back date the form, but instead enter the current date and initial the date field.
• If there are multiple errors or substantial errors (such as Section 2 being completed based on unacceptable documents), then the section can be redone on a new Form I-9 which is then attached to the original, and a memo providing an explanation for why the changes were made or why a new I-9 was used attached.
• If changes are made to the Form I-9 do not conceal them, by example, erasing text or using correction fluid. Doing so can lead to increased liability under federal immigration laws.
• All Forms I-9 should be stored in a secure way and be made available within three days of an official request for inspection.

[1]  See generally 8 U.S.C. § 1324a. The provisions of the Immigration Reform and Control Act of 1986 added these provisions, and these provisions were further changed by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
[2] See § 1324a (b)(1).
[3] The obligation to use Form I-9s to verify the identity and authorization to work of employees applies to religious non-profit agencies and churches.
[4] The most recent Form I-9 has the revision date 8/1/2023 and expires on 5/31/2027. It can be found here https://www.uscis.gov/sites/default/files/document/forms/i-9.pdf.
[5] The misclassification of workers as independent contractors instead of employees has been a significant legal issue in many industries, and it is beyond the scope of this article.
[6] Civil fines can range from $272 to $2,701 for each missing I-9 for each employee, or for bad or missing paperwork, or in the case of intentional violates, the fines can range from $676 to $27,018 per worker.
[7] As discussed below, the duty to maintain a proper Form I-9 is not limited just to current employees, but also applies to former employees for specific time periods following separation.
[8] E-Verify is a free web-based service that is used to verify the employment eligibility of newly hired employees.
[9] This rule exists to limit the opportunity for discriminating against some individuals based on their national origin, citizenship or immigrant status in the I-9 and E-Verify process.   The Immigration and Nationality Act, as amended, prohibits four (4) forms of unlawful conduct: (i) unfair documentary practices, (ii) citizenship or immigration status discrimination in hiring, firing, or recruiting, (iii) national origin discrimination in hiring, firing or recruiting, and (iv) retaliation.

Photo from Mehaniq/Shutterstock.com

The Complaint Giveth, but the Amended Complaint Taketh Away: Supreme Court Rules on Federal Jurisdiction

Tuesday, January 21st, 2025

In Royal Canin U. S. A., Inc., v. Wullschleger, No. 23-677, 2025 U.S. LEXIS 365 (2025), the Supreme Court of the United States resolved a circuit split as to whether a plaintiff’s amendment of her complaint after the defendant’s proper removal to federal court can eliminate all federal claims and force remand to state court. This opinion, the Court’s first of 2025, clarifies that federal courts must remand if the amended complaint removes the basis for federal jurisdiction, even if jurisdiction existed at the time of removal.

The plaintiff, Ms. Wullschleger, sued Royal Canin in Missouri state court, alleging deceptive marketing practices surrounding Royal Canin’s prescription-only sale of a certain dog food. Her complaint alleged both state and federal claims. Royal Canin removed the case to federal court pursuant to 28 U.S.C. § 1441. But Wullschleger decided that she’d rather keep her state court forum than her federal law claims, so she amended her complaint to leave only state law claims. She then moved to remand the case to state court.

The district court denied Wullschleger’s motion, but the Eighth Circuit Court of Appeals reversed, holding that the plaintiff’s amendment of her complaint deleted any basis for federal jurisdiction. Because there was no longer a basis for original jurisdiction under 28 U.S.C. § 1331, there remained no basis for supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367. As a result, remand was appropriate.

The Eighth Circuit’s conclusion created a circuit split with other Courts of Appeals decisions that amendment of the complaint post-removal does not destroy a federal court’s jurisdiction. Thus, the Supreme Court faced a simple question: Is jurisdiction based on the well-pleaded complaint, as amended? Or, when removal is involved, is it based on the complaint as it stood at the time of removal?

The Supreme Court unanimously determined that, removal or not, where the complaint gives a federal court jurisdiction, the amended complaint may yet take it away. The Court’s rationale was grounded in the plain meaning of § 1367, other statutes, and numerous judge-made rules that draw no distinction for jurisdictional purposes between cases brought in federal court and cases removed there. Once the complaint is amended, federal jurisdiction depends on the amended complaint, not the initial complaint. Further, the plaintiff, as the master of the complaint, may control the forum by the claims she includes in her complaint—or by those she chooses to preserve in her amended complaint. Finally, the Court dismissed as dicta language from two of its prior cases that Royal Canin raised as evidence that post-removal amendment does not defeat jurisdiction.

The Court’s decision reinforces the plaintiff’s control over the forum, even after the defendant has properly removed. It also reinforces the principle that an amended complaint wipes the slate clean, particularly when it comes to ascertaining federal jurisdiction. Whether litigating in state or federal court, parties should be aware of the significance of an amended complaint and the options available to plaintiffs and defendants to select an advantageous forum or reconfigure the claims at issue.

Tangled in Vines: Understanding the Relation-Back Doctrine in Virginia

Friday, January 17th, 2025

The relation-back doctrine plays a pivotal role in litigation, particularly when addressing amendments to pleadings after the statute of limitations has expired. In Virginia, this doctrine and its evolution through case law and legislation have created an intricate legal landscape, making it essential for practitioners to understand its nuances.

The relation-back doctrine allows amendments to pleadings to be treated as though they were part of the original filing, provided specific conditions are met. This concept is crucial when the original complaint is filed before the statute of limitations expires, but amendments are sought afterward. The primary question is whether the amendments introduce a new cause of action or merely expand upon the original allegations.

Key Case Law

The foundation of the doctrine in Virginia traces back over one hundred years. For example, in New River Mining Co. v. Painter, originally a negligence case concerning sediment runoff, the Supreme Court of Virginia permitted new allegations of trespass to “relate back” to the original pleading because the injuries complained of in the amendment and original pleadings were the same. The plaintiff merely “varied the mode of demanding the same thing.”[1]

Decades later, in Vines v. Branch, the Supreme Court of Virginia reaffirmed this principle and drew clear boundaries. In Vines, the Court held that “[w]here an amendment introduces a new cause of action, and makes a new or different demand not introduced in the original motion for judgment, the amended action will not relate back[.]”[2] The Court went on to articulate a three-part test for determining whether an amended pleading alleges a new cause of action:

1. Would recovery under the original complaint bar recovery under the amended complaint?
2. Does the same evidence support both the original and amended claims?
3. Does the same measure of damages apply to the original and amended claims?

Virginia Code § 8.01-6.1

Enacted in 1996, Virginia Code § 8.01-6.1 added a statutory framework to the relation-back doctrine, emphasizing the following criteria for amendments to relate back:

1. The amended claim or defense arises from the same conduct, transaction, or occurrence set forth in the original pleading.
2. The amending party acted with reasonable diligence in asserting the amended claim.
3. The amendment does not substantially prejudice the opposing party.[3]

The Ongoing Controversy: Does § 8.01-6.1 Supersede Vines?

Virginia courts remain divided on whether § 8.01-6.1 codifies or replaces the Vines test.[4] Some decisions, such as Rauchfuss v. Peninsula Radiological Assocs., suggest that the statute supersedes Vines.[5] Conversely, cases like Swanson v. Woods Service Center, Inc. and Rife v. Buchanan County. Hospice argue that the statute aligns with Vines and codifies its principles.[6]

Supreme Court Guidance

The Supreme Court of Virginia has not directly addressed this issue. The Court has, however,  provided guidance on the phrase “same transaction or occurrence” in other contexts. For example, in The Funny Guy v. Lecego, the Court emphasized that claims arise out of the same transaction or occurrence so long as they “orbit[] around one core dispute.”[7]

Conclusion

For attorneys navigating this doctrine, understanding the interplay between Vines and § 8.01-6.1 is crucial. Success often hinges on demonstrating that amendments do not introduce new substantive causes of action but rather elaborate on the original claims. This requires careful drafting and strategic argumentation to satisfy both statutory and judicial criteria.

The relation-back doctrine in Virginia remains a complex and evolving area of law. With courts divided and legislation continuing to shape its application, practitioners must stay informed and agile in their approach to pleadings. By understanding key case law and statutory requirements, attorneys can effectively advocate for their clients while navigating the tangled vines of this doctrine.

[1] New River Min. Co. v. Painter, 100 Va. 507, 42 S.E. 300 (1902).
[2] Vines v. Branch, 244 Va. 185, 189 (1992) (emphasis added).
[3] See Virginia Code § 8.01-6.1.
[4] Morrison v. George Mason Univ., 113 Va. Cir. 77, 90 (Fairfax 2024) (“Virginia courts are split regarding whether § 8.01-6.1 codifies or departs from the test asserted in Vines.”).
[5] Rauchfuss v. Peninsula Radiological Assocs., 94 Va. Cir. 8, 8 (Newport News 2016).
[6] Swanson v. Woods Serv. Ctr., Inc., 71 Va. Cir. 281 (Roanoke County 2006); Rife v. Buchanan County Hospice, 89 Va. Cir. 396 (Buchanan County. 2015).
[7] The Funny Guy v. Lecego, 293 Va. 135, 795 S.E.2d 887 (2017).

U.S. Supreme Court Rejects Fourth Circuit’s Approach to FLSA Exemptions

Thursday, January 16th, 2025

On January 15, 2025, a unanimous Supreme Court ruled that the preponderance of the evidence standard should be used by courts when determining whether an employer has proven that an employee is exempt and not eligible to be paid overtime.[1]

Justice Kavanaugh began his opinion by noting that under the Fair Labor Standard Act (“FLSA”) certain categories of employees are exempt from the minimum wage and overtime pay requirements. Exempt employees “can range from baseball players to seaman to maple syrup processors to software engineers to fire fighters.” The FLSA places the burden on the employer to show that an exemption applies. For more than thirty (30) years, the rule in the 4^th Circuit required employers to prove the existence of the exemption by “clear and convincing evidence,” a more exacting level of proof than a mere preponderance.[2]

The specific issue in this case was whether certain employees worked “in the capacity of an outside salesman.”[3] After a nine (9) trial, the district court concluded that the employer had failed to prove that these employees qualified for the outside salesman exemption. Instead, the court found the employees primarily executed the terms of sales already made rather than making new sales. On appeal, the employer challenged the use of the “clear and convincing” standard, but the Fourth Circuit affirmed the District Court’s decision noting that it was bound by the existing precedent. The Supreme Court noted that the Fourth Circuit currently stood alone in requiring employers to prove FLSA exemptions by the clear and convincing standard.

The Supreme Court found no basis in the FLSA or the Constitution to impose the stricter standard of proof, and it was not persuaded by the employee’s arguments for heightened standard. The court noted that other workplace protections (like eradicating unlawful discrimination) is subject to the lesser preponderance of the evidence standard and found that the use of a heightened standard could not be justified based on the claim that the employer controls most, if not all of the relevant evidence relevant even though most plaintiffs don’t have the resources to litigate these cases. Reversing the Fourth Circuit, the Supreme Court remanded the case for further proceedings that would apply the lesser preponderance of the evidence standard.[4]

In E.M.D Sales, the Supreme Court has leveled the playing field for employers in Virginia, and elsewhere in the 4^th Circuit. This ruling can and likely will be used by employers to challenge the outcomes in earlier decisions which found exemptions had not been established because the court used this more onerous standard in reaching the decision. Nonetheless, employers must remember that they will have the burden to prove that an exemption applies, and its evidence must be sufficiently compelling to persuade a court that it is more likely than not that the employee meets the various criteria required by the FLSA and its regulations to establish the exemption exists.

If you have questions regarding the FLSA, overtime rules, or other compensation issues, please contact any member of the Gentry Locke Employment team.

[1] E.M.D. Sales, Inc. v. Carrera, 604 U.S.__ (Jan. 15, 2025).
[2] Shockley v City of Newport News, 997 F.2d 18,21 (4^th Cir. 1993); Desmond v PNGI Charles Town Gaming, 564 F.3d 688, 691 (4^th Cir. 2009)
[3] In EMD Sales, the employer was an international food distributor, and the sales representatives managed inventory and took orders from grocery stores that used their products.  Several of these sales representatives sued claiming they were not exempt and should have been paid overtime.  The employer admitted the employees worked more than 40 hours without receiving overtime but argued they were within the “outside sales” exemption.
[4] On remand the district court may still find that the employer failed to meet its burden under the preponderance standard, but that will likely require a new trial.

Updated 2025 “Low Wage” Salary Levels for Virginia Non-Compete Agreements

Thursday, January 16th, 2025

As a reminder, Virginia is one of eleven states (along with Washington, D.C.) that imposes restrictions on the use of non-compete agreements for so-called “low wage employees.” Effective now in 2025, the salary threshold defining a “low wage employee” in Virginia has increased from $73,320 to $76,081 annually. This adjustment reflects changes to the state’s Average Weekly Wage, as determined by the Virginia Department of Labor and Industry (DOLI). Employers should take note of this updated threshold to ensure compliance with Virginia law regarding non-compete agreements.

For a deeper understanding of the “low wage” salary restrictions and how the annual threshold is calculated, be sure to check out our previous article written by attorneys David Paxton and Ryan Starks: New 2024 “Low Wage” Salary Level for Virginia Non-Compete Agreements. You can find the full article here.

If you have questions, please do not hesitate to contact Gentry Locke’s Employment Team.

Workers’ Compensation and Negligence Cases

Thursday, January 9th, 2025

Work-related injuries occur in an endless and variety of ways. In those instances where injuries happen when an employee is in the course of his/her employment and the accident arises out of a risk of that employment, workers’ compensation benefits should be available to the injured worker. If the actual injuries themselves were “caused” by a defective product or the negligence of a third party, then the injured employee can collect both workers’ compensation benefits and recover money damages against the third party at the same time.

At first blush, Virginia law on this subject might seem like a double recovery, but it is not. In fact, under Virginia law (Virginia Code §65.2-309), the employer has a chance of getting back all, or some, of its money from the third party through a process called subrogation or lien recovery. The benefit for the employee is that often workers’ compensation benefits can be secured fairly rapidly, thereby avoiding a potentially devastating gap in income while the third-party case is being sorted out.

The best way to understand how this all works is by looking at some actual case examples where the injured person was able to benefit by both obtaining workers’ compensation benefits and by ultimately securing a substantial recovery against the truly responsible third party in a separate action.

But first, let’s look at what the injured employee is often entitled to under the Workers’ Compensation Act for his or her injuries:

• Wage replacement of approximately 2/3 of the average weekly wage for each week/day missed from work due to the injuries;
• Payment of all reasonable and necessary medical expenses related to the injury;
• Mileage to and from healthcare providers;
• Statutory amounts for the permanent loss or use of a particular body part – such as a leg, arm, eye, finger, etc.; and
• Vocational rehabilitation services.

In addition to the above, in a negligence case against the wrongdoer, the injured person can get everything available under workers’ compensation benefits plus the following:

• Any bodily injuries sustained and their effect on health according to their degree and probable duration;
• Any physical pain and mental anguish suffered in the past and any that may be reasonably expected to suffer in the future;
• Any inconvenience caused in the past and any that probably will be caused in the future;
• Any medical expenses incurred in the past;
• Any earnings lost because she was unable to work at her calling; and
• Any loss of earning and lessening of earning capacity, or either, that may reasonably be expected to sustain in the future.

When the injured person makes a claim against the liable “third party” who is ultimately responsible for causing the injuries, these same damages become part of that litigation as well. When the injured employee recovers against the responsible third party, that is when there is a chance that some of the money will be repaid to the employer/insurance carrier. It is tantamount to an interest-free loan for however long it takes to recover against the negligent party.

As a first example, consider this recent case – Our client was directed by his employer to drive the company vehicle to a job site to do some work. On his way to the job site, he was catastrophically injured when another driver failed to stop at a stop light and t-boned him in the intersection. His injuries included broken bones and psychological problems – all of which prevented him from returning to work for an extended period of time. Fortunately, his employer simply continued his regular paycheck for a couple of months in hopes that he would make a rapid return. Unfortunately, the injuries were too devastating and required surgeries which compounded his inability to work. At that point, he was able to obtain workers’ compensation benefits for his lost wages and medical care.

Next, we made a claim against the negligent driver who ran the stop light who, as it turned out, was also “on the clock” at the time of the crash. We were ultimately able to recover against both the negligent driver and his company. At that point, we paid back a portion of the workers’ compensation benefits, and our injured client was paid for his devastating injuries, loss of income, etc.

Another example of how the system works is a case where our client was employed by a roofing company. He was working on a large building which had a metal roof. At the time, he and some co-workers were using a roofing machine that helped secure the seams of the metal sheets. Our client was working below the machine when it suddenly failed and began rolling down the roof, striking our client and knocking him off the roof onto the ground where he fractured his back and leg. Because he was in the course of his work at the time and his injuries arose out of his job duties, workers’ compensation immediately began paying his benefits. He was then able to successfully pursue a product liability case against the manufacturer of the roof seaming machine for breach of warranty and negligent design. His employer was very helpful in our pursuit of the case and provided substantial help in the litigation against the manufacturer for two reasons – First, they wanted to help their very badly injured worker; and second, they wanted to recover some of the benefits they had voluntarily paid while he was waiting to pursue the third party case.

In summary, the United States system of civil justice is not perfect. However, it is an excellent system that provides safety nets for injured workers in the form of workers’ compensation benefits and potential third-party liability cases. The workers’ compensation benefits can often mean the difference between paying one’s rent and continuing to afford groceries while the third-party case can come closer to truly fully compensating the injured person for the direct and circumstantial damages which can be caused by horrific “on-the-job” injury.

For further information, feel free to reach out to anyone at our firm who can help you navigate these incredibly beneficial rights.

The Corporate Transparency Act: Holiday Surprises, Injunction Reinstated

Monday, December 30th, 2024

As of December 27, 2024, reporting requirements under the Corporate Transparency Act (CTA) are once again paused after a panel of the U.S. Court of Appeals for the Fifth Circuit issued an order vacating the December 23, 2024, order granting a stay of the preliminary injunction.

The past week has been tumultuous for thousands of small businesses following the status of Texas Top Cop Shop, Inc., et al. v. Garland, et al., No. 4:24-cv-00478 (E.D. Tex.) to determine whether they will be required to file their beneficial ownership information as required by the CTA. For anyone not actively following the judicial developments, below is a timeline of the pertinent decisions this past month.

Tuesday, December 3, 2024

The U.S. District Court for the Eastern District of Texas, Sherman Division, issued an order instituting a nationwide injunction for the beneficial ownership reporting requirements under the CTA.

Thursday, December 5, 2024

The Department of Justice, acting on behalf of the Department of the Treasury, filed a Notice of Appeal and sought a stay of the injunction pending the appeal.

Monday, December 23, 2024

A panel of the U.S. Court of Appeals for the Fifth Circuit granted a stay of the district court’s preliminary injunction entered on December 3rd. This stay meant that businesses were once again required to file beneficial ownership reports with Financial Crimes Enforcement Network (FinCEN) under a modified deadline scheme issued after the stay was entered by the Court.

Thursday, December 26, 2024

A different panel of the U.S. Court of Appeals for the Fifth Circuit issued an order vacating the Courts December 23rd order leading to the December 3rd injunction going back into effect.

The official FinCEN website posted an announcement on Friday December 27, 2024, recognizing that the reporting requirements are once again paused while this case continues to work itself through the court system.

The fate of these reporting requirements is up in the air now, leaving businesses uncertain as to whether they should wait to file their reports or if they will have to file them at all. At the same time, the penalties for failing to comply with the CTA are harsh and businesses may not want to risk missing a last-minute deadline if the injunction is once again stayed.

Thus far, FinCEN has been quick to address developments in the case as they happen and recognized the uncertainty that the case has caused among reporting companies. If FinCEN’s actions this week are a guide for what we can expect going forward, it is likely that if the injunction is stayed again as it was on December 23rd, FinCEN will once again modify the reporting deadlines beyond January 1, 2025.

For more information or to monitor the status of the reporting requirements, visit FinCEN’s website at www.fincen.gov/boi.

No Cap, Your Damages Are Capped

Friday, December 20th, 2024

No cap[1]; in Virginia medical malpractice actions, your recovery is capped, regardless of the amount of damages you actually sustained. The items of damage that are recoverable depend on the nature of the injury sustained. If the patient suffered injury short of death, their damages can include items such as pain and suffering, humiliation and embarrassment, inconvenience, medical expenses, lost wages, etc.[2] If the injury resulted in death, the decedent’s statutory beneficiaries can recover damages including sorrow, mental anguish, loss of companionship, lost support from income, expenses for the care and treatment for the deceased patient, funeral expenses, etc.[3]

Regardless of the cause of action or the elements of damage sought, Virginia imposes a “cap” on the total amount of damages that are recoverable in a medical malpractice action. The Code states:

In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after August 1, 1999, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed the following, corresponding amount:

August 1, 1999, through June 30, 2000 $1.50 million
July 1, 2000, through June 30, 2001 $1.55 million
July 1, 2001, through June 30, 2002 $1.60 million
July 1, 2002, through June 30, 2003 $1.65 million
July 1, 2003, through June 30, 2004 $1.70 million
July 1, 2004, through June 30, 2005 $1.75 million
July 1, 2005, through June 30, 2006 $1.80 million
July 1, 2006, through June 30, 2007 $1.85 million
July 1, 2007, through June 30, 2008 $1.925 million
July 1, 2008, through June 30, 2012 $2.00 million
July 1, 2012, through June 30, 2013 $2.05 million
July 1, 2013, through June 30, 2014 $2.10 million
July 1, 2014, through June 30, 2015 $2.15 million
July 1, 2015, through June 30, 2016 $2.20 million
July 1, 2016, through June 30, 2017 $2.25 million
July 1, 2017, through June 30, 2018 $2.30 million
July 1, 2018, through June 30, 2019 $2.35 million
July 1, 2019, through June 30, 2020 $2.40 million
July 1, 2020, through June 30, 2021 $2.45 million
July 1, 2021, through June 30, 2022 $2.50 million
July 1, 2022, through June 30, 2023 $2.55 million
July 1, 2023, through June 30, 2024 $2.60 million
July 1, 2024, through June 30, 2025 $2.65 million
July 1, 2025, through June 30, 2026 $2.70 million
July 1, 2026, through June 30, 2027 $2.75 million
July 1, 2027, through June 30, 2028 $2.80 million
July 1, 2028, through June 30, 2029 $2.85 million
July 1, 2029, through June 30, 2030 $2.90 million
July 1, 2030, through June 30, 2031 $2.95 million

In any verdict returned against a health care provider in an action for malpractice where the act or acts of malpractice occurred on or after July 1, 2031, which is tried by a jury or in any judgment entered against a health care provider in such an action which is tried without a jury, the total amount recoverable for any injury to, or death of, a patient shall not exceed $3 million. Each annual increase shall apply to the act or acts of malpractice occurring on or after the effective date of the increase.[4]

As can be seen, this statutory scheme contains within it a periodic increase of the upper limit of medical malpractice awards. If the cap applies, however, these numbers are absolute. The severity of the patient’s injuries are irrelevant; the amount of their medical bills or the cost of their future care is irrelevant; the amount of the wages they have lost and will lose over the course of their lifetime is irrelevant. The cap is the cap.

Therefore, it is important to know when the cap applies. The cap only applies to verdicts returned against “health care providers” in an “action for malpractice.”[5] “Malpractice” is defined as “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.”[6]

“Health care” is defined separately as “any act, professional services in nursing homes, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical diagnosis, care, treatment or confinement.[7] In other words, the claim against the healthcare provider must have arisen out of the treatment they were providing.

The definition of “Health Care Provider” includes a long list of persons, entities, and professions that qualify.[8] Finally, “patient” is “any natural person who receives or should have received health care from a licensed health care provider except those persons who are given health care in an emergency situation which exempts the health care provider from liability for his emergency services in accordance with § 8.01-225 or 44-146.23.”[9]

If a potential plaintiff’s situation meets this definition, the cap applies, and it limits the total amount of recovery that a plaintiff can achieve in the action. There are nuances to this analysis. This is why it is of vital importance that a person injured by what they believe to be medical malpractice consult with experienced Virginia medical malpractice attorneys who can guide them through this process. Contact us today for a consultation.

[1] No Cap Definition: The expression no cap is slang meaning “no lie” or “for real,” often used to emphasize someone is not exaggerating about something hard to believe.
[2] See Virginia Model Jury Instruction – Civil No. 9.000; Categories of Damages in Virginia Personal Injury Cases
[3] See Va. Code § 8.01-52.
[4] Va. Code § 8.01-581.15 (emphasis added).
[5] Id.
[6] Va. Code § 8.01-581.1 (emphasis added).
[7] Va. Code § 8.01-581.1 (emphasis added).
[8] Id.
[9] Id.