Wednesday, August 29th, 2012
The Virginia law firm of Gentry Locke Rakes & Moore, LLP and six of its attorneys were noted in the 2013 Edition of Benchmark Litigation, which states it is “the definitive guide to America’s leading litigation firms and attorneys.”
Benchmark Appellate Litigation Stars 2013:
- William Rakes
- Monica Taylor Monday
- James O’Keeffe
Benchmark Local Litigation Stars 2013 – Plaintiffs:
Gentry Locke was Highly Recommended on the firm level for this category
- S.D. Roberts Moore – Product Liability
- W. David Paxton – Employment/Labor
Benchmark Litigation 2013 Local Litigation Stars:
Gentry Locke was Recommended on the firm level for this category
- J. Rudy Austin – General Commercial and Insurance
- S.D. Roberts Moore – Personal Injury, Product Liability, and Employment
- W. David Paxton – Employment and General Commercial
Monday, July 9th, 2012
The Department of Labor (“DOL”) has issued a new guidebook designed to make it easier to understand the complicated set of rules that comprise the Family and Medical Leave Act (“FMLA”). The guidebook attempts to set out the regulations in simpler and more direct language. The pamphlet includes a flowchart that will allow employees to determine if they are eligible for FMLA leave. The guidebook is designed mainly for use by employees. The DOL hopes employees will take the guidebook to medical providers because it includes a detailed explanation of the medical certification process. The end of the guidebook outlines how an employee can make a complaint with the DOL if the employee believes that his or her rights under the FMLA have been violated. The guidebook is currently available on the DOL’s website in English, but a Spanish version is promised in the near future.
For employers, the issuance of this guidebook is yet another effort by the Administration (similar to the NLRB’s recent concerted activity website) to educate employees about their rights. An increase in claims is likely. If you have questions regarding the FMLA, whether your policies comply with the law and its regulations, or have specific issues involving an employee, please feel free to contact David Paxton (540.983.9334; paxton@gentrylocke.com) or Lindsey Coley.
Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.
Monday, July 2nd, 2012
Gentry Locke partner Tom Bondurant was the subject of an article written by Susan Ayers for the July 2012 issue of Valley Business Front magazine.
The article focused on the changes experienced by Bondurant following his move from a highly successful career as a government prosecutor to his current position in private practice within Gentry Locke’s Criminal & Government Investigations team.
Bondurant works proactively, getting involved as early as possible to investigate potential issues for clients in order to save them the cost and risk involved with going to trial. In the article, Bondurant states, “The best work you do, no one knows about.”
Read the full issue and the article page 42 online via the link below.
Friday, June 15th, 2012
Fifteen Gentry Locke Rakes & Moore attorneys have been named Virginia Super Lawyers for 2012, and nine have been named Virginia Super Lawyers Rising Stars.
Virginia Super Lawyers:
- J. Rudy Austin: Construction Litigation
- Matthew W. Broughton: Personal Injury Plaintiff: General
- G. Franklin Flippin: Business/Corporate
- W. William Gust: Tax
- Gregory J. Haley: Business Litigation
- Guy M. Harbert, III: Personal Injury Defense: General
- Paul G. Klockenbrink: Employment & Labor
- K. Brett Marston: Construction Litigation
- Monica T. Monday: Appellate
- S. D. Roberts Moore: Professional Liability: Plaintiff
- G. Michael Pace, Jr.: Real Estate
- W. David Paxton: Employment & Labor
- William R. Rakes: Business Litigation
- J. Scott Sexton: Business Litigation
- Bruce C. Stockburger: Business/Corporate
Virginia Super Lawyer Rising Stars:
- Benjamin D. Byrd: Personal Injury Plaintiff: General
- Lindsey A. Coley: Employment & Labor
- Lewis Conner: Business/Corporate
- Lauren E. Davis: Personal Injury Plaintiff: Medical
- Michael J. Finney: Business/Corporate
- Gregory D. Habeeb: Business Litigation
- Anthony M. Russell: Personal Injury Plaintiff: Medical
- Spencer M. Wiegard: Construction Litigation
- Kathleen L. Wright: Business Litigation
Super Lawyers names Virginia’s top lawyers as nominated by their peers across the state. A research department then evaluates each candidate based upon 12 indicators of peer recognition and professional achievement. The final published list represents no more than 5 percent of the lawyers in the Commonwealth across more than 70 practice areas.
Super Lawyers Rising Stars names Virginia’s top attorneys under 40, or those who have been practicing less than 10 years, as nominated by their peers across the Commonwealth. A research department then evaluates each candidate based upon 12 indicators of peer recognition and professional achievement. The final published list represents no more than 2.5 percent of qualifying Virginia attorneys.
The 2012 Virginia Super Lawyers will be recognized in a special advertising section in Richmond Magazine and Hampton Roads Magazine in June, as well as a separate magazine publication, Virginia Super Lawyers 2012.
Tuesday, April 17th, 2012
As you probably know, the NLRB promulgated a controversial rule that would have required virtually all employers to post an “Employee Rights” Notice by April 30 (see www.nlrb.gov/poster). This rule was subject to two court challenges.
On Friday April 13, 2012, a Federal District Court in South Carolina held that the NLRB lacked authority to issue the rule. Chamber of Commerce v. NLRB, 2:11-cv-02516-DCN (D. S.C. Apr. 13, 2012).
The other case, Nat’l Assn. of Manufacturers v. NLRB, was on appeal to the D.C. Circuit Court of Appeals. In an Order entered this morning, the D.C. Circuit granted NAM’s emergency motion for injunction to preserve the status quo pending a decision from the Circuit Court. Nat’l Assn. of Manufacturers, et al. v. NLRB, et al., USCA Case #12-5068 (D.C. Cir. Apr. 17, 2012). The Order further states that the appeal is to be argued in September 2012.
The bottom line is that the D.C. Circuit has entered an Order that the NLRB may not move forward with the rule. Thus, employers are not legally obligated to post the Notice by April 30 (and may not have to post in the future depending on the decisions of the Courts).
As always, please stay tuned for further developments or contact Todd Leeson or any member of Gentry Locke’s employment law team if you have questions.
Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.
Monday, April 16th, 2012
Gentry Locke attorneys were listed in 37 categories for “Legal Eagles” Awards in Virginia Living Magazine:
Antitrust Law: William R. Rakes
Appellate Practice: Monica T. Monday
Banking & Finance Law: G. Franklin Flippin, G. Michael Pace, Jr., William R. Rakes
Bet-the-Company Litigation: William R. Rakes
Commercial Litigation: Gregory J. Haley, Kevin W. Holt, William R. Rakes, J. Scott Sexton
Construction Law: K. Brett Marston
Copyright Law: David N. Cohan
Corporate Compliance Law: Lewis A. Conner
Corporate Law: G. Franklin Flippin, G. Michael Pace, Jr., William R. Rakes
Criminal Defense – White Collar: Thomas J. Bondurant, Jr.
Eminent Domain & Condemnation Law: Gregory J. Haley
Employee Benefits (ERISA) Law: W. William Gust
Employment Law – Individuals: W. David Paxton
Employment Law
Wednesday, April 4th, 2012
The pro-union members of President Obama’s National Labor Relations Board have made no secret of their desire to make it easier, and more likely, for employees to bring unions to their workplaces. This article highlights two recent NLRB actions, and provides employers with some practical advice.
The NLRB’s “Employee Rights” Notice Must Be Posted by April 30, 2012
Barring a last minute court decision, by April 30, 2012 virtually all employers will be required to post the NLRB’s “Employee Rights” Notice. The Notice, available at nlrb.gov, must be 11 x 17 inches and posted wherever employee notices are posted and/or electronically on an intranet if that is how a company communicates with its employees. Even though the National Labor Relations Act has existed for over 75 years without such a notice, the NLRB insists that this is a “neutral” communication that will “provide American workers with meaningful awareness of their rights and protections under federal labor law.” Be forewarned: this Notice is not “neutral.” All executives and HR professionals need to make the time to read it. For example, the Notice begins with the following language:
The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers. . . .
After the introduction, there is an eye-catching series of seven bullet points. The first six bullet points inform employees of their “rights” to organize, act collectively or to “seek help from a union.” Indeed, the first two “rights” listed are as follows:
Under the NLRA, you have the right to:
· Organize a union to negotiate with your employer concerning your wages, hours and other terms and conditions of employment.
· Form, join or assist a union.
It is only in the final bullet point that the Notice states that employees may “choose not to do any of these activities, including joining or remaining a member of a union.”
The Notice also contains a section informing employees of examples of illegal conduct by an employer. It further advises employees that if they believe their rights have been violated, they “should contact the NLRB promptly to protect your rights.” The NLRB includes its website and toll free numbers in bold print.
At a minimum, it is anticipated that the posting of this Notice may result in questions or discussions among your employees. It could also lead to union organizing at your business. If you are an employer who prefers to remain union-free, will you and your management team be ready to respond to questions or actions that may result from the April 30 Notice?
Employers should consider taking the following steps prior to April 30 or as soon as feasible:
(1) Review and update with counsel any workplace policies such as union-free management, solicitation and distribution rules, and e-mail or social media use.
(2) Educate your executives and managers as to the reason your company prefers to be union-free, and train them as to appropriate and lawful responses to any questions or activities related to unions or the Notice.
(3) Assess whether there are any issues, changes or concerns within the workforce that could lead some employees to believe they may be better off with a union.
(4) Ensure that management has an effective communications protocol in place in the event there is any suspected union activity or unusual conduct among employees.
(5) Analyze the nature of your workforce which should include an understanding of which employees are supervisors under the NLRA.
The NLRB’s “Quick Election” Rules Are Also Set to Take Effect April 30, 2012
On April 30, 2012, the Labor Board will also implement new changes to rules governing union elections. These changes have been referred to as the “Quick Election Rules.” While the NLRB’s final changes do not contain the more controversial proposals sought by the Labor Board last summer, the new rules are nevertheless problematic for employers.
While there are always aberrations, the current union election process has worked well for decades. You may be surprised to learn that unions currently prevail in almost 65% of all elections. Nevertheless, by claiming that it seeks to “modernize and streamline” the election process, the Labor Board has made it clear that it seeks to shorten the time from a union’s filing of a petition for an election to the election itself. As employers will have less time to educate employees as to the facts, this will inevitably lead to more union organizing.
In addition, it would not be surprising if the Labor Board proposes new election rules later this year (or if President Obama is reelected). Employers should stay informed.
Conclusion
As you recall, labor unions and their advocates were unable to obtain passage of the so-called “Employee Free Choice Act” (the card check bill) that took center stage in 2008 and 2009. What they could not achieve legislatively, they are now doing through an activist NLRB.
Employers who wish to remain union-free must be aware of the current landscape. Be prepared to take steps that are proactive and lawful.
Todd Leeson is the Chair of the Labor Law Section of Gentry Locke in Roanoke, Virginia. He can be reached at leeson@gentrylocke.com.
Please note: This page is provided for general informational purposes only and is a marketing publication of Gentry Locke Rakes & Moore, LLP. It is intended to alert visitors to developments in the law and is does not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.
Sunday, December 4th, 2011
The Virginia law firm of Gentry Locke Rakes & Moore is pleased to announce that six of its attorneys have been designated Virginia Legal Elite lawyers by Virginia Business magazine.
- J. Rudy Austin – Construction
- K. Brett Marston
Sunday, December 4th, 2011
The Virginia law firm of Gentry Locke Rakes & Moore is pleased to announce that twelve of its attorneys have been designated Virginia Legal Elite lawyers by Virginia Business magazine.
- Thomas J. Bondurant, Jr. – Criminal Law
- David N. Cohan – Intellectual Property
- G. Franklin Flippin – Business Law
- W. William Gust – Taxes/Estates/Trusts
- Gregory J. Haley – Legislative/Regulatory/Administrative
- K. Brett Marston – Construction
- Monica T. Monday – Appellate
- James J. O’Keeffe, IV – Appellate
- G. Michael Pace, Jr. – Real Estate/Land Use
- W. David Paxton – Labor/Employment
- J. Scott Sexton – Civil Litigation
- Bruce C. Stockburger – Health Law
The Virginia Legal Elite are chosen through a survey conducted by Virginia Business and The Virginia Bar Association. The magazine e-mailed electronic ballots and lawyers voted for their peers who have demonstrated exceptional levels of expertise in sixteen areas of practice.
Tuesday, November 15th, 2011
On August 18, 2011 the Office of the General Counsel of the National Labor Relations Board (“NLRB”) published a report of the “Acting General Counsel concerning social media cases within the last year.” The report issued by Lafe E. Solomon chronicles the Board’s decisions in 14 cases recently decided. According to a study released by the U. S. Chamber of Commerce dated August 5, 2011, the National Labor Relations Board, has reviewed 129 cases since 2009 involving social media and the workplace, most filed this year.
The decisions in the 14 recent cases reported by the Office of the General Counsel of the NLRB illustrate the expansive view that the Board is taking on the definition of “Protected Concerted Activity” and mark some important considerations for employers when adopting social media policies. The decisions indicate that for many companies a review of existing policies is in order and dictate the need for a case by case analysis of enforcement of social media policies to employment situations. Protected Concerted Activity in the context of the National Labor Relations Act means that the employee must be engaged in activity “with or on the authority of” their fellow employees and not solely on their own behalf. Meyers Industries, 281 NLRB 882 (1986).
The cases reported by the Acting General Counsel for the most part involve termination of employment for employee postings on Facebook or similar social media. The theme throughout the decisions is that there are “emerging issues concerning protected and/or concerted nature” of the postings and the legality of the employer’s policies in restricting employee contacts with the media or in the public domain.
Protected concerted activity exits when an employee undertakes efforts to improve working conditions and terms of employment. If an employee is engaged in protected concerted activity, an employer may violate the NLRA by taking an adverse employment action in response. The recently released report from the NLRB’s General Counsel clearly states that the NLRB will apply the Meyers Industries standard to determine if social media postings by employees constitute a protected concerted activity as opposed to the employee acting on his or her own behalf. One of the challenges that a review of this nature presents is that oftentimes co-workers who participate in the same social media outlet (i.e. Facebook friends) will post their approval of the posting which may morph individual activity into Protected Concerted Activity.
Discussions that in the past would constitute either airing the laundry of the company or which may have taken place around either the water cooler or other less public forums are now being placed on Facebook to be shared with the world. The NLRB in applying the Atlantic Steel test, found that a policy that precluded an employee from making negative and disparaging comments when discussing the company, the employee’s supervisors, coworkers, or competitors was unlawful in violation of Section 8(a) (1) of the Act. The Atlantic Steel test (Atlantic Steel Co., 245 NLRB 814 (1979)), holds as protected, postings which are not “opprobrious” (publically degrading the employer). The NLRB has historically interpreted that measurement quite narrowly.
The result is that if the employer knew of the concerted nature of the employee’s activity; the concerted activity was protected by the Act; and the adverse employment action at issue (e.g., discharge) was motivated by the employee’s protected concerted activity the employment action violates the employee’s rights under the Act.
Some examples reported by the Board’s General Counsel include the following:
A case where the Board found a violation of a car dealer’s employee rights under Section 7 when the employee posted comments and photographs of a sales event on his Facebook page where he was critical of the food choices.
The Board found that several employees had discussed their frustration about the car dealer’s planned event in an employee meeting with their supervisor. The employees had felt that since the car dealer was selling expensive cars that it should be providing more substantial refreshments to the patrons than planned. The employees discussed among themselves that they were concerned that the inexpensive refreshments would “send the wrong message to their clients and negatively affect their sales and commission.” After the meeting the employee in question had told his coworkers he would put photos of the event on his Facebook page. Along with the photos he posted comments that were critical of the inexpensive food and beverages provided.
The Company found out about the posting from a part-time co-worker who was a “friend” on Facebook with the employee who posted the photos and comments. The management of the dealership asked him to remove the photos and told him that they were “embarrassing to the dealership, its founder and CEO” and subsequently fired the employee.
The Board found that his postings were protected since “
