The Library

A slim majority of the Supreme Court of Virginia recently affirmed a judgment in favor of a supplier against a general contractor for materials that a subcontractor had ordered from the supplier but not paid for. The case, Davis v. FTJ, is a cautionary tale for those who expect their legal obligations to end with the contracts they make. Under this case, “implied” contracts – i.e., fictional contracts implied by law – may carry those obligations much further. The general contractor in Davis engaged a subcontractor to provide drywall and metal framing for a project in Arlington County, Virginia. The […]

The current pandemic brings unparalleled challenges to business operations in Virginia, with nearly every sector struggling to strike the right balance between protecting the employee and public health, and surviving impact of mass shutdowns. That struggle poses the greatest risks to businesses, whose choices during this crisis receive increased attention, all while navigating often unfamiliar laws, regulations, and standards. This particular crisis impacts industries unaccustomed with operating under the glare of heightened scrutiny that accompanies declarations of emergency, disbursements of federal stimulus funds and new designations of what comprises the nation’s “critical infrastructure” under the Defense Production Act.  Typical commercial […]

Virginia Values Act poses significant legal risks to Virginia Employers.  See article published by Gentry Locke partner Todd Leeson in Law360 on May 15, 2020.

The Virginia General Assembly concluded its 2020 session five days later than planned as a mountain of legislation and a late-breaking budget deal delayed adjournment. One of the largest agenda items for the new Democratic majority was a clean energy bill called the Virginia Clean Economy Act. The VCEA, along with several other energy reform bills, made the 2020 session a consequential year for energy transformation in the Commonwealth. Session Background The 2020 General Assembly started on a historic note, as Democrats took control of both branches of the General Assembly for the first time in 30 years and immediately […]

The following summary of the Department of Treasury’s initial guidance related to the  Paycheck Protection Program should be read in connection with the following: 4/13/2020 Update: The Treasury Department Clarifies Confusion Concerning PPP Eligibility for Small Businesses 4/3/2020 Update: Interim Final Rule Paycheck Protection Program 4/1/2020 Update: Paycheck Protection Program Update 3/27/2020: Paycheck Protection Program   Initial Guidance and Form Application published by Department of Treasury and the Small Business Administration Late on Tuesday, March 31, 2020, the Department of Treasury and the Small Business Administration issued initial guidance related to the Paycheck Protection Program. Included in this guidance is […]

By Kirk Sosebee, Brett Marston, and Spencer Wiegard In this difficult time for employers, OSHA has placed another new requirement on their plate. Not only are employers encouraged to take extra steps and precautions to help protect their employees’ health and safety, new guidance from OSHA requires employers to record, and in some cases report, instances of coronavirus that are contracted by their employees on the jobsite. Employers have a general duty to record and report certain work-related injuries and illnesses to OSHA. Unlike the common cold or flu, which are excluded from OSHA’s recording and reporting requirements, OSHA is […]

What seemed like a small garnishment matter in Roanoke City General District Court could have had drastic implications to Virginia’s restaurant industry, but Gentry Locke was able to successfully defend a national restaurant chain from having to garnish its employee’s tips. The facts started out in a typical fashion: the Restaurant received a garnishment summons for one of its tipped employees and responded to the summons, indicating that the employee did not earn enough wages to be garnished. As is the required minimum, and standard in Virginia, the tipped employee made $2.13/hour, well below the statutory limits on garnishment. The […]

Virginia law regarding prompt payment under the Fee Schedule seems simple enough. In essence, the workers’ compensation carrier/employer has 45 days after receipt of a medical bill itemization to: Contest the bill; Deny the bill; Notify the healthcare provider that the bill is considered incomplete. If the employer/carrier does not contest, deny, or consider the bill incomplete, it must pay the healthcare provider in full within 60 days after receipt of the medical bill itemization. (§65.2-601(A) and (B)). In those instances where the employer/carrier issues a notification to the healthcare provider, then notification must include the following information: “The reasons […]

This article, co-authored by Kirk M. Sosebee and Alicha M. Grubb, appeared in the Spring 2019 issue of the VBA Journal. Click here to read the formatted publication version in PDF. Attorneys’ Fees in Virginia Attorneys’ fees are a topic near and dear to lawyers’ hearts. After all, what could be more important than getting paid for the work we do? And what could be better than forcing the other party to pay our fees? In construction cases, as in all litigation, attorneys should keep the prospect of attorneys’ fees in mind, and should pay close attention to recent developments […]

On February 15, 2019, the Fourth Circuit Court of Appeals held that the City of Roanoke’s Stormwater Management Utility charge was a regulatory fee and not a tax. The Court, therefore, affirmed the dismissal of Norfolk Southern’s Complaint asserting that the City’s Stormwater Management Utility charge was a tax that discriminated against railroads in violation of federal law. The decision forecloses federal court challenges to local government charges for stormwater management services as unlawful discrimination against railroads. The Court’s decision included three separate opinions; each of the three judges on the panel wrote an opinion. The opinion joined by all […]

Things just got a little easier for employers with tipped employees. Under previous U.S. Department of Labor rules dating back to the late 1980s, employers who used a tip credit to pay less than the federal minimum wage of $7.25 had to carefully track time employees spent performing side duties. If that time exceeded 20 percent of the employee’s hours, those duties might be considered a dual job requiring full minimum wage rather than the $2.13 an hour for tipped employees. (Employers always have to ensure that tipped employees earn enough tips to make at least minimum wage, or make […]

For more than 130 years, the American Institute of Architects (AIA) has offered a set of standardized contracts for architects, contractors, building construction owners and developers that have become the most widely used agreements for commercial construction projects. Every ten years, AIA updates the contracts and, after about 18 months, phases out the previous versions. The latest updates to the most highly used sets of contracts were released in 2017, with the 2007 contracts no longer available online after Oct. 31, 2018. Properly drawn construction contracts are vital to ensure that major projects can overcome issues or conflicts that arise […]

Travis Graham represents both plaintiffs and defendants in the state and federal courts of Virginia and Tennessee, and focuses on trust and estate litigation, product liability, medical malpractice, and complex commercial litigation. He is a frequent writer, lecturer, and consultant on issues of federal and state civil procedure. In Virginia State Courts, there are three basic deadline rules. First, when you calculate a deadline from the occurrence of some event, you never count the day that the event occurred. So, ten days from January 1 is January 11. Ten days before January 20 is January 10. Second, per Rule 1:7, […]

The Fourth Circuit recently explored the contours of what constitutes “protected activity” under Title VII (and by implication other similar civil rights laws). The employee argued that her unauthorized review, copying and disclosure of confidential personnel files in order to gain support for her race and religious discrimination claims constituted a protected activity under Title VII.  The Fourth Circuit disagreed.[1] The employee, a black Muslim woman, worked for the local Sheriff for a number of years with an unblemished disciplinary record until she received a disciplinary sanction which barred her from testing for a promotion. She filed an EEOC Charge […]

On November 16, 2018, the Department of Education published its proposed new Title IX regulations, as well as a one-page fact sheet and six-page background and summary document. You can find the DOE’s Press Release here.  The proposed regulations (also referred to as a “Notice of Proposed Rulemaking” or “NPRM”) were formally published in the Federal Register on November 29, 2018.  The DOE requests comments through January 28, 2019. As you may recall, in September 2017 the DOE advised the public that these proposed new regulations were coming. On September 22, 2017, the DOE rescinded previous guidance issued by the […]

The Supreme Court of the United States has ruled that state and local government entities must comply with the Age Discrimination and Employment Act (“ADEA”) even if the entity employs fewer than twenty (20) employees. For the past forty (40) years, lower courts have disagreed on whether the ADEA’s requirement for an employer to have at least twenty (20) employees applied to small local government agencies. Many courts have held that government agencies with less than twenty (20) employees were not covered by the ADEA. This decision issued on November 6, 2018 involves a case brought after a local fire […]

Pursuant to new regulations, employers must disclose additional information to applicants and employees before conducting background checks. In May 2018, Congress enacted the Economic Growth, Regulatory Relief, and Consumer Protection Act (the “Act”). The Act requires consumer reporting agencies to provide “national security freezes” to consumers free of charge. The Act also extended the 90-day period to one year for which national consumer reporting agencies must include an initial fraud alert in a consumer’s file. The Act also provides that whenever the Fair Credit Report Act (“FCRA”) requires an entity to provide a consumer with a “Summary of Consumer Rights,” […]

Commercial landlords and tenants should be aware of a Virginia law that could invalidate long-term leases in Virginia. The Supreme Court of Virginia recently ruled that a 15-year commercial lease was unenforceable because it did not include a seal or seal substitute. See, Game Place, L.L.C. v. Fredericksburg 35, LLC, 295 Va. 396 (2018). The Court reviewed the applicability of a Virginia law that requires leases with a term longer than five years to be in the form of a deed and include either a seal or a seal substitute. Seal substitutes include, among other things, an imprint or stamp […]

While its name may suggest it is a vestige of Virginia’s legal history, a motion craving oyer remains a powerful, but limited tool in Virginia practice. When a plaintiff sues based on a written contract or other document but fails to attach it to his complaint, a defendant should consider “craving oyer” of the document. “[A] motion to crave oyer is a request of the Court to require that a document sued upon, or a collateral document which is necessary to the Plaintiff’s claim, be treated as though it were part of the Plaintiff’s pleadings.” Ragone v. Waldvogel, Poe and […]

Using Sworn Testimony in Support of a Motion for Summary Judgement in Virginia Circuit Courts One of the biggest distinctions between federal practice and Virginia practice is that, in Virginia practice, summary judgment cannot be based upon deposition testimony. However, that doesn’t necessarily mean that all previously given sworn testimony is off-limits. Rule 3:20 of the Rules of the Supreme Court of Virginia states, in part: No motion for summary judgment or to strike the evidence shall be sustained when based in whole or in part upon any discovery depositions under Rule 4:5, unless all parties to the action shall […]

Gentry Locke employment law partner Todd Leeson recently published an important article for business executives. The article was inspired by contrasting images of women in an upscale steakhouse. Todd implores executives to take action to ensure a culture of respect in the workplace. Read the formatted PDF of the article Reprinted with permission from the April 27, 2018 edition of CorporateCounsel© 2018 ALM Media Properties, LLC. All rights reserved. Picture an upscale steakhouse in a bustling downtown of a mid-size southern city—a swanky joint where every night hundreds of patrons happily pay $50+ for a delicious steak, and $15 for […]

Bill Gust is a Senior Tax Partner with Gentry Locke. For more than 30 years, Bill has worked with closely held business owners relative to tax, employee benefits, corporate, and sophisticated estate planning matters. With his expertise in implementing business succession strategies, Bill has assisted in the successful transition of many privately held businesses, through sales, mergers and implementation of numerous ESOPs. The Tax Cuts and Jobs Act (the “Act”) will bring significant changes to many areas of the tax law affecting individuals and businesses beginning January 2018 through 2025. In 2026, the pre-Act rules are scheduled to come back into effect. This […]

Glenn Pulley, a Partner in our Lynchburg office, was raised in Southampton County in eastern Virginia, where his family gardened, raised chickens, fished, and hunted quail. As a resident of Danville with clients around the region, he appreciates and supports the efforts of area farmers who make his commute such a pleasure. Agritourism not just a hobby. A reputable survey has revealed that in 2015 visitors to Virginia’s agritourism farm businesses spent an estimated $1.5B throughout the state. Approximately 17% of the $1.5B total was spent at the agritourism venues; the remaining 83% was spent outside the venues (e.g. hotels, restaurants), but […]

The Occupational Safety & Health Administration (“OSHA”) recently released its annual workplace safety violations report for the fiscal year ending September 30, 2017. Overall, the number of safety violations is down across the board as employers continue to focus on improving safety. Understanding where problems are likely to arise based on the violations found during fiscal year 2017 can help employers better focus their efforts to improve safety going forward. The top ten (10) sited violations as recently announced by OSHA are as follows: Fall protection. There were 6,072 fall protection violations in the construction industry. While the number of […]

In September of 2017 the Equal Employment Opportunity Commission (“EEOC”) filed 86 new lawsuits against employers. This is the largest number of lawsuits filed by the EEOC in a single month in the past six years, and represents 45% of the lawsuits the EEOC filed during all of fiscal year 2017.[1]  Thirty-six (36) of these lawsuits include claims of disability discrimination, with at least 10 targeting leave and other policies that are alleged to have been inflexibly applied, and others challenging pre or post-offer medical inquiry examinations that the EEOC believes improperly screened out disabled workers. There were 17 lawsuits […]

Charlie Williams joined Gentry Locke in 1970 and heads the firm’s Environmental Law practice. His work includes advising corporate and municipal clients in the areas of environmental compliance, including enforcement and environmental tort litigation. He has extensive experience in contaminated land renewal and the management of environmental aspects of mergers and acquisitions. Everyone in the country that operates a business or owns property should be mindful of impending regulatory action regarding newly identified contaminants. These “emerging contaminants” are generally described as per- and polyfluoroalkyl substances (“PFASs”) which are perfluoroalkyl acids that have been commonly and widely used in the United […]

Cynthia Kinser was the first woman Chief Justice of the Supreme Court of Virginia. Her seventeen years of distinguished service to the Court ended with her retirement in 2014. In 2015, she joined Gentry Locke as Senior Counsel, where she focuses on appeals, criminal matters, and government investigations. The Supreme Court of Virginia amended Rule 5:17 and added a new rule, Rule 1:5A.  The amendment to Rule 5:17(a)(1) simplifies calculation of the time period for filing a petition for appeal.  The addition of Rule 1:5A eliminates a harsh outcome when a pleading or other paper is not signed or is signed by a person […]

Christen Church is a partner who focuses her practice on intellectual property, data privacy and security, corporate advisory services, and health care regulation and compliance.   Over $1,300,000,000.00 and 298,728. Respectively, these numbers represent reported losses and number of complaints the FBI’s Internet Crime Complaint Center received in 2016. Many of these losses resulted from ransomware, tech support fraud, and Business Email Compromise (BEC), with most originating from phishing emails. BEC scams represent the increasingly sophisticated efforts of internet criminals. A criminal sends a phishing email to allow the scammers into your email accounts and computer system.  Once you click […]

Amanda Morgan is Of Counsel to Gentry Locke’s Lynchburg office, where she focuses on municipal, civil, and business litigation.  Companies formed in states other than Virginia (known as non-Virginia or “foreign companies”) must register with the Virginia State Corporation Commission (“SCC”) before transacting business in Virginia. Registration involves completing an annual form and paying a nominal fee (which varies depending on the type of company) to the SCC along with appointing a registered agent in Virginia to accept service of any lawsuit papers or other legal notices. Companies that merely own real estate or other assets in Virginia generally are […]

Travis Graham is a partner at Gentry Locke, where he practices estate, commercial, and personal injury litigation. It is usually possible to avoid most legal difficulties following a loved one’s death through open discussions with family members, sound advice, and prior planning. But not always. And when legal problems do arise, the emotional and financial toll can be devastating. Legal battles following the death of a family member can destroy families and futures, and prevent closure for months or years. Unfortunately, certain aspects of estate planning and administration almost seem to invite controversy. But, these situations are not hopeless. The […]

Bankruptcies are at times an unfortunate necessity. Our clients often find themselves financially overwhelmed, especially when they are the victims of medical malpractice, a defective product or car, and trucking crashes. At times, the financial burdens become so great that clients are left with no choice but to seek the protection of bankruptcy. When clients do so, they must notify their attorneys of this. Failure to do so can lead to drastic consequences. The strange case of Ricketts v. Strange The recent case of Ricketts v. Strange, (February 16, 2017), highlights what can happen when lawyers and clients don’t communicate […]

In case you haven’t heard, Virginia is for lovers — of craft beer, spirits and wine! In recent years, many craft breweries, wineries, and distilleries have chosen to call Virginia home. To facilitate the growth and expansion of this industry in Virginia, during its 2017 session, the Virginia General Assembly brewed up a number of bills governing the sale and marketing of alcoholic beverages in the Commonwealth. Let’s take a moment to distill some of the new Virginia laws that will go into effect on July 1, 2017. Showcasing Virginia Craft Spirits To support the burgeoning craft spirits industry, the […]

On January 4, 2017, the Office of Federal Contract Compliance Programs (OFCCP) filed a lawsuit against the tech mega-giant Google for its refusal to submit compensation data for its employees as part of a compliance review. The complaint alleges that Google repeatedly refused to provide specific compensation data about its employees. The request, which was issued by the OFCCP under Executive Order 11246, asks Google to provide job and salary history for employees which includes a variety of employee-specific data, including “starting salary, starting position, starting ‘compara-ratio,’ starting job code, starting job family, starting job level, starting organization” and any […]

This article by Gentry Locke attorneys Lindsey Coley and Brad Tobias was published by Law360 on February 8, 2017. You may read the formatted article here. In the waning days of President Obama’s administration, before President Trump was inaugurated on January 20, 2017, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) forged several new lawsuits against technology and financial companies in a continuing effort to crack down on compensation discrimination. The OFCCP, which is expected to take a more employer-friendly approach under the Trump Administration, still has yet to have a new director appointed. But for now, […]

The Department of Justice has indicated an increased focus on healthcare fraud by devoting additional resources to these investigations and highlighting recent prosecutions in this area. Of note was the June 2016 sweep led by the Medicare Fraud Strike Force, which resulted in criminal and civil charges of 301 individuals and alleged approximately $900 million in false billing.[1] Among those charged were doctors, pharmacists, physical therapists, home health care providers, and other medical providers. This nationwide sweep involved 23 state Medicaid Fraud Control Units and took place in 36 federal districts. This coordinated takedown has been described as the largest […]

Because the legal matter in this article was handled by attorneys at Gentry Locke, we are required to inform readers that THE RESULTS OF CLIENT MATTERS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.   Virginia Tech’s athletes are not the only ones engaged in high-level Hokie contests. In 1997, Virginia Tech contracted with a construction company to build McComas Hall, a facility to house student health, fitness, and recreational services. Consistent with the campus aesthetic, McComas Hall’s exterior featured Hokie Stone, a unique variety of limestone that is quarried on […]

This is the fourth installment of a series of year-end alerts to employers. Part 1: OSHA Reporting Rules Effective December 1, 2016 Part 2: Paycheck Transparency Rules Effective January 1, 2017 Part 3: Paid Sick Leave for Federal Contractors Effective January 1, 2017 One area of intense interest to the Obama Administration has been to challenge the use of confidentiality provisions in employee handbooks as well as in employment agreements of all kinds. For a number of years, the NLRB has found confidentiality policies that prohibit employees from discussing wage information or other terms and conditions of employment to be […]

This is the third installment of a series of year-end alerts to employers. This alert is of particular interest to federal government contractors. Part 1: OSHA Reporting Rules Effective December 1, 2016 Part 2: Paycheck Transparency Rules Effective January 1, 2017 Part 4: Confidentiality Rules Under Fire – Be Warned! The Department of Labor (DOL) on September 30, 2016 issued new final rules spelling out the requirement for covered federal contractors to provide employees with up to seven days (56 hours) of paid sick leave per year.[1] Employees who are covered under this new Rule are “any person[s]” engaged in […]

This is the second installment of a series of year-end alerts to employers. This alert is of particular interest to federal government contractors. Part 1: OSHA Reporting Rules Effective December 1, 2016 Part 3: Paid Sick Leave for Federal Contractors Effective January 1, 2017 Part 4: Confidentiality Rules Under Fire – Be Warned! On October 24, 2016, a Texas federal judge issued a nationwide injunction prohibiting the enforcement of certain portions of Fair Pay and Safe Workplace Rules.[1] These Rules would have required employers to disclose alleged but not fully adjudicated labor violations when bidding for contracting work. The judge […]

This is the first installment of a series of year-end alerts for employers. This alert focuses on OSHA reporting rule changes. Part 2: Paycheck Transparency Rules Effective January 1, 2017 Part 3: Paid Sick Leave for Federal Contractors Effective January 1, 2017 Part 4: Confidentiality Rules Under Fire – Be Warned! A rash of lawsuits filed this fall challenged a number of new federal requirements imposed by the outgoing Obama Administration. Some of these court challenges have been successful, e.g., recent injunctions prohibiting enforcement of the new overtime regulations, and the new “persuader” rules. This Alert is the first of […]

So, what do your brewery, Facebook, and Google have in common? With Google and Facebook’s progressive offices there is probably some connection involving beer pong, but beyond that, intellectual property (“IP”) is a significant asset of each. Brewery owners will spend countless hours and dollars investing in producing the best beer and marketing to build brand recognition, but will overlook protecting that intellectual property they spent so much effort building. Admittedly, Facebook and Google [and Anheuser-Busch and MillerCoors] are huge companies with in-house attorneys and legal budgets devoted to obtaining, licensing, and policing their intellectual property, which just doesn’t make […]

Did you know that almost 1/3 of the approximately 90,000 charges filed with the EEOC in fiscal year 2015 included an allegation of unlawful “harassment” in the workplace? Moreover, according to the EEOC’s latest research, 3 out of 4 persons who experience “harassment” at work never report it to anyone either internally (e.g., HR or a supervisor) or externally (e.g., EEOC charge). Simply stated, workplace harassment continues to be a significant problem. Mindful of this problem, the EEOC convened a diverse and experienced Task Force to investigate, and to offer analysis and solutions. In June 2016, the EEOC Task Force […]

This article by Gentry Locke partner Christen Church was published to the website of ALM’s Inside Counsel Magazine on November 16, 2016. You may view a PDF of the article here. The Affordable Care Act itself is 900+ pages, with the pages of regulation implementing the Affordable Care Act numbering in the thousands, so what would a “repeal” of Obamacare look like? We now know the outcome of the 2016 election. On Jan. 20, 2017, Donald Trump will take office and a Republican majority will remain in both houses of Congress. What will this mean for the future of the Affordable […]

On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a revised Form I-9, Employment Eligibility Verification. Satisfactory completion of a Form I-9 is required for every employee hired in the United States. These forms must be retained by employers forms for their active US workforce, as well as for terminated employees, pursuant to specific retention rules. A link to the new form is here. The revised Form I-9 includes several changes. For example, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals. Other changes include: Instructions […]

This article, co-authored by Gentry Locke attorneys Cynthia D. Kinser and John Reed Thomas, Jr., appeared in U.S. Law Week, published by Bloomberg BNA on November 3, 2016. You can view a PDF of the article here. The False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, is the United States’ primary statutory tool to combat fraud against the government. Congress enacted the FCA in 1863 in order to contend with widespread fraud in Civil War defense contracts. Since then, Congress has amended the FCA on several occasions to enhance the government’s ability to recover losses sustained as a result of […]

This article by Gentry Locke partner Todd Leeson was published in the Opinion section of The Roanoke Times on November 2, 2016. To see the published version, click here. Virginia has been a “right to work” state since 1947. In the upcoming election, Virginia voters will decide whether to include “right to work” protection in our state constitution. For reasons I will explain, I encourage a “Yes” vote. To understand this issue better, it is important to know the meaning of the term “right to work.” Assume that Sara lives in New York. She accepts a job with the ABC […]

This article by Gentry Locke Partner Kevin Holt regarding Interpleader actions and ERISA was published in DRI — The Voice of the Defense Bar, August 2016, Volume 11, Issue 2. Most lawyers, including ERISA practitioners, likely think interpleader actions are unappealing because they are easy and boring. They involve situations in which there are two or more competing claimants or beneficiaries to the same insurance policy proceeds. Rather than pay one claimant and risk being sued by the other, carriers typically prefer to bring an interpleader action, naming all claimants or beneficiaries as defendants and then paying the policy proceeds […]

Most people have been called for jury service at one time or another. Some will see the requirement of jury service as a time-consuming imposition, while others not only readily accept this obligation as a basic requirement of citizenship, but find the experience to be interesting and even ennobling. The right to a jury trial in criminal cases is guaranteed by the Sixth Amendment to the United States Constitution, while the Seventh Amendment provides for jury trials in most civil cases. Obviously, we cannot have jury trials without jurors.  So, who is subject to the requirement of jury service and […]