The Library

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 […]

Birchwood-Manassas Assocs., LLC v. Birchwood at Oak Knoll Farm, LLC “Equity aids the vigilant, not those who sleep on their rights.” The Supreme Court of Virginia affirmed this oft-stated maxim in Birchwood-Manassas Assocs., LLC v. Birchwood at Oak Knoll Farm, LLC, No. 141195, 2015 Va. LEXIS 76 (Va. June 4, 2015). There, the Court held that equitable tolling was not available, because neither manager conflicts of interest nor alleged breaches of fiduciary duty constitute an “extraordinary circumstance.” Birchwood-Manassas Associates LLC (“Birchwood-Manassas”) was formed to own, develop, and sell real estate. Ronald J. Horowitz and Burton Haims were Birchwood-Manassas’s managers, with […]

Cate Huff contributes to the “Virginia Hospitality Law” blog. You can read this article and others at VaHospitalityLaw.com. On June 4, 2015, the Virginia Supreme Court held a circuit court erred in excluding evidence of an employee’s work history and quality of past job performance in determining future lost income. The Supreme Court also reversed the circuit court’s denial of a corporate employer’s motion to strike the employee’s punitive damages claim. A former diesel mechanic filed suit against his supervisor and company for malicious prosecution and defamation. Following a jury trial, the jury awarded the employee significant compensatory and punitive […]

Coverage For “Residents” Of Your “Household” Under Personal Liability Insurance Policies As this is written (June, 2015) it is high school graduation time. One phase of life is completed, and another begins. For many, the next stage involves “leaving the nest” – off to college, the military, an internship, maybe even a job, or perhaps the 2015 equivalent of hitchhiking Europe or following the Grateful Dead to discover the true meaning of life. In many instances, this involves “living” somewhere else, even if only for a temporary or indefinite period of time, but ultimately coming back “home” before deciding what […]