The Library

This article originally by Gentry Locke attorneys David Paxton and Michael Finney appeared in Vol. 24, No. 4 of the Journal of Civil Litigation,a publication of the Virginia Association of Defense Attorneys. It appears here with permission. Read the full article as a PDF attached to this article. I. INTRODUCTION Most civil cases resolve by settlement, rather than trial. Accordingly, significant time and effort are often devoted to strategy underlying the familiar back-and-forth negotiation process. When is the best time to engage in settlement discussions? Does it show weakness to be the first to raise the subject? How should offers […]

The National Labor Relations Board (“NLRB”) is accelerating its assault upon common employment policies typically found in company employee handbooks. Moreover, as of this writing, there are only three current NLRB members (out of five), all of whom are strong Union or worker advocates. Thus, employers should expect increased scrutiny, regulations, rules, and adverse decisions from the NLRB in 2013. Quick Overview of Legal Framework (Protected Concerted Activity under Section 7). To understand the rationale for the Board’s actions, the starting point is Section 7 of the National Labor Relations Act (“Act”), a law that has been in effect since […]

On December 11, 2012, HSBC, the “world’s local bank” announced that it had entered into a Deferred Prosecution Agreement (“the Agreement”) with the Department of Justice (found here– link opens in a new window) that required HSBC to pay $1.9 billion in criminal fines for decades of improper banking practices, notably in the world of money laundering, drug cartels, and arms dealings. At first blush, many might think that a $1.9 billion fine is a harsh penalty, even for a global bank such as HSBC. Though the $1.9 billion fine is the largest in the history of the banking industry, […]

This article appeared in the Winter/Spring 2013 issue of “Virginia Human Resources Today” magazine. Your CEO tells you that she wants a strong “confidentiality” policy in the Employee Handbook. You update your Company’s policy intending to safeguard the Company’s “confidential” information. But, here’s the catch — if your policy as written would lead an employee to believe that he is not free to discuss his wages or working conditions with coworkers or outsiders, the NLRB will likely conclude it is unlawful! In Flex Frac Logistics, LLC, 358 NLRB No.127 (Sept. 11, 2012), a non-union company had all employees sign an […]

Before January 1, 2013, employers must provide the new Fair Credit Reporting Act (FCRA) Summary of Rights to individuals before taking any adverse employment action based on the contents of a background report obtained from a third party. The good news is that the procedural requirements under the FCRA are the same – the only change is the updated Summary of Rights, which can be found here. The most significant revision is that the Summary of Rights now directs contacts to the new Consumer Financial Protection Bureau (CFPB), which is the federal agency now responsible for interpreting the FCRA. Employers […]

Businesses routinely conduct investigations into workplace misconduct and other incidents. In most investigations, the individuals interviewed and the person who brought the complaint are directed not to discuss the investigation with others. Plenty of good reasons exist for this practice, which many HR professionals believe is a “best practice.” In two very recent actions, this practice has been attacked by the government and found to be unlawful. While no court has upheld this challenge to the standard confidentiality approach to workplace investigations, these recent actions suggest that employers should evaluate their current practices going forward. On July 30, 2012, the […]

This article first appeared in Staffing Industry Analysts’ online publication, “The Staffing Stream.” This and other articles are available at the link below. It seems like every week there is some decision, guidance or policy change that alters companies’ ability to transact business. Whether it’s the courts, the Equal Employment Opportunity Commission or the National Labor Relations Board, the employment law landscape is constantly changing. In July, Randstad suffered a blow as did all of staffing companies that have multiple offices and place a significant number of temporary employees. These staffing firms are the unfortunate recipients of an EEOC Charge. […]

There was recently an employment discrimination case in Roanoke that provides a valuable lesson to HR professionals. Here are the key facts: Manager supervises an employee whose job performance is deemed to be deficient. He drafts proposed written warning, and emails it to HR for review. Employee belongs to protected class (e.g., race, age, gender, disability) and/or there is a reason for the company to exercise caution before implementing any disciplinary action against employee (e.g., lengthy service; employee has exercised rights–complained, taken FMLA leave; good performance reviews). HR edits the proposed warning, and sends e-mail to manager with comments. Company […]

This article was published on “The Staffing Stream,” an online blog sponsored by Staffing Industry Analysts. To read this article and more on their site, click the link offered below the article. Who’s the boss? And who is liable in the event there is an issue? Employers and courts have been mulling through this problem. However it all comes down to the control that the employer has over its workers. Last month, the need for some type of written agreement between customers and their staffing vendors defining their relationship may have just become clearer when the U.S. Court of Appeals […]