The Library

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 […]

Workplace accidents will affect your employees and your business, whether through lost time, payments for medical care, or the simple human stress reaction that affects everyone—management as well as labor—involved with an accident. Moreover, there are a number of statutory and contractual requirements arising out of workplace accidents with which businesses must immediately comply. In short, handling a workplace accident means both protecting your employees and protecting your business. Thus, it pays to be prepared to swiftly handle such accidents by taking immediate action to make sure both your employees and your business fully recover. First Steps: protecting your employees […]

Nicole Poltash joined Gentry Locke’s Construction group in December of 2014. She contributes to two blogs, Virginia Construction Law Update at www.VAConstructionLawUpdate.com, and Virginia OSHA Law News at www.VaOSHALawNews.com. Attorneys often pride themselves on being objective—on being able to see both sides of the story and then adamantly argue for that side which is their client’s. Of course, there are also two sides to practicing in each area of the law. Below are some of the dual lessons I have learned since joining the legal profession as a construction lawyer at Gentry Locke. Know Thy Client. Clients in the construction […]