The Library

This article by Gentry Locke attorney Brad Tobias was published in Gentry Locke’s “Virginia Construction Law Update” blog. What is the “ban the box?” Many employers are starting to see the term “ban the box” creep into the lexicology of phrases and buzzwords which permeate the regulatory framework imposed on government agencies and government contractors. Across the country, 19 states and more than 100 cities and counties have enacted various versions of “ban the box” legislation and rules. So what does this term mean? Put simply, the term refers to a requirement to remove any questions regarding a person’s criminal […]

This outline was presented at the Local Government Attorneys Association 2015 Fall Conference at the Hotel Roanoke Conference Center on Saturday, October 17, 2015. For the full article, click here. Speakers: Cynthia D. Kinser, Retired, Supreme Court of Virginia Honorable Elizabeth K. Dillon, United States District Court, Western District of Virginia Honorable David B. Carson, 23rd Judicial Circuit of Virginia Moderators: Timothy R. Spencer, Chief Deputy, City of Roanoke, City Attorney’s Office Gregory J. Haley, Gentry Locke Outline Authors: Timothy R. Spencer, Gregory J. Haley, and Jonathan D. Puvak We have prepared this outline based on discussions with and comments […]

In August, the U.S. Court of Appeals for the District of Columbia approved the new Department of Labor (DOL) rule that will extend minimum wage and overtime coverage to about 2 million workers employed by home healthcare agencies. In doing so, the Court of Appeals overturned a lower court’s decision that held DOL had overstepped its authority when it adopted the rule. The Home Care Association of America which brought this lawsuit asked the Court of Appeals to delay implementation of its decision while the Association filed an appeal to the U.S. Supreme Court. On September 18, 2015, the Court […]

Recently, several Gentry Locke lawyers attended the second Annual ABA Southeastern White Collar Crime Conference outside of Atlanta, Georgia. The timing of this year’s conference proved to be fortuitous as Deputy Attorney General Sally Yates issued a new Department of Justice (DOJ) memo on September 9, 2015 regarding individual accountability for corporate wrongdoing. Members of the Bench and Bar alike offered different views of how the Yates memo will impact corporate government investigations. For any company that engages in any sort of regulated activity, from ensuring fair wages to government contracts, the Yates memo cannot be ignored. Below is the […]

The pro-union NLRB has struck again! In a high-profile case that had been pending before the Board for over two years, the Board, in a 3-2 decision, overruled 30 years of settled precedent and announced a new test to determine whether two entities could be considered “joint employers” under the National Labor Relations Act. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). As will be explained below, the Board concluded that a user employer did not have to exercise “direct and significant” control over the contractor’s employees to be considered a “joint employer.” Instead, it ruled […]

Until recently, the Department of Labor (DOL) interpreted the Fair Labor Standards Act (FLSA) to exempt from minimum wage and overtime pay those persons who provided “companionship services” (to the aged or infirm) [1] or were “live-in” domestic workers, [2] regardless who paid the domestic services worker. In 1975, the DOL issued regulations that applied these statutory exemptions to workers who were hired directly by families to work in their home and to employees placed in the home by third-party agencies. In 2014, the DOL sought to reverse course and issued new regulations that withdrew the exemption from those workers […]

We recently reported on new Guidance from the Department of Labor regarding its effort to combat what it views as the misclassification of workers as independent contractors, instead of employees. A new court decision makes it clear that even if a worker is correctly designated as an “independent contractor,” the business where s/he is assigned to work may nevertheless have liability under federal anti-discrimination laws under the “joint employer” doctrine. In a recent opinion,[1] the Fourth Circuit ruled that an employee assigned by a temporary employment agency to work at an automotive manufacturing plant could sue both the agency and […]

When you challenge the enforceability of a restrictive covenants in Virginia, the court is going to apply one of two standards. Either the court will closely scrutinize the restrictive covenant, if it is between an employer and employee, or the court is going to apply a more relaxed standard, if it was signed during the sale of a business. How does a Virginia court know which standard to apply? What happens if you sell a business but keep working as an executive? Will the court apply the sale of business standard because you sold the company, or will the court […]

On July 15, 2015, David Weil, the Department of Labor’s (“DOL”) Administrator of the Wage and Hour Division, issued an Administrator’s Interpretation Memorandum (“Guidance”) interpreting the Fair Labor Standards Act broadly to include most workers as “employees” as opposed to independent contractors. The Guidance is significant because as many as one third of the American workforce is estimated to be employed in the rapidly growing “sharing” or “gig” economy,[1] and these individuals are frequently classified as independent contractors. The Guidance is the latest  DOL initiative designed to attack misclassification of workers. Application of Economic Realities Test Recognizing that courts have […]