Tuesday, November 1st, 2011
The Virginia law firm of Gentry Locke Rakes & Moore, LLP welcomes back attorney Juliana F. Perry,
who will practice in the area of plaintiff’s personal injury. Julie has been representing plaintiffs primarily in medical malpractice actions for over twenty years. Julie is also experienced in the field of alternative dispute resolution, and has served as a mediator or arbitrator in a wide variety of litigated matters. Julie received her law degree from the University of Mississippi School of Law and her undergraduate degree from East Carolina University. She began working at Gentry Locke in 1991, and rejoined the Firm in November of 2011.
Tuesday, September 6th, 2011
Abigail Murchison has joined Gentry Locke and will practice in the firm’s Commercial Litigation
group. Prior to joining the Firm, Abigail clerked for the Honorable Mary Grace O’Brien in Virginia’s 31st Judicial District. Other professional experience includes editing William & Mary’s Bill of Rights Journal and interning at a business consulting firm in Phnom Penh, Cambodia. A native of Lexington, Va., Abigail received her J.D. from the William & Mary School of Law in Williamsburg, Va., in 2010 and her undergraduate degree in English literature from Princeton University in Princeton, N.J., in 2005.
Wednesday, June 1st, 2011
The Virginia law firm of Gentry Locke Rakes & Moore, LLP is pleased to welcome Catherine J. Huff 
to the Firm.
Cate will practice in the Insurance and Workers’ Compensation practice groups. She has litigated in General District and Circuit Courts throughout the state. Cate graduated magna cum laude from Virginia Tech and received her J.D. from Liberty University.
Friday, April 22nd, 2011
The Virginia law firm of Gentry Locke Rakes & Moore, LLP is pleased to welcome
attorney Daniel R. Sullivan to the Firm. Dan is an associate in Gentry Locke’s Commercial Litigation practice group, and also works with attorneys on Employment Litigation and Personal Injury matters. Dan represents individual and corporate clients in both state and federal court matters. He is fluent in Spanish and has lived and worked in three different continents.
Friday, April 1st, 2011
The E-Verify Self Check (“Self Check”) service is a free, Internet-based application that can be used by any worker in the United States who is over 16 to confirm his or her work authorization status. The service is currently available on a pilot basis in five states, including Virginia, and the District of Columbia. Self Check is the first online data verification service offered directly to individuals in the U.S. workforce by the E-Verify Program.
Self Check is part of E-Verify, the Department of Homeland Security program administered by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration. E-Verify is an Internet-based system that enables an employer, using information reported on an employee’s Form I-9 Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States.
The Self Check service enables individual workers to access the same database of information that employers interact with when using E-Verify. The purpose is allow individuals
Wednesday, December 22nd, 2010
As you probably know, the EEOC issued Final Regulations on November 9, 2010 as to Title II of the Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-233, 122 Stat. 881, codified at 42 U.S.C. § 2000ff et seq. (“GINA”). GINA generally bars employers from requesting, requiring or purchasing an individual’s genetic information, and making employment decisions based on such data. GINA has been in effect since November 21, 2009.
The GINA regulations will take effect January 10, 2011, and will be codified at 29 C.F.R. Part 1635. They should also be available online at the EEOC’s website (eeoc.gov). There are several new provisions that employers need to know. As one example further described herein, there is new notice language that employers will need to use whenever they lawfully request health information from an employee or health care provider. This article provides some general information about the GINA regulations.
Definition of Genetic Information. The regulations define “genetic information” as information about: (i) An individual’s genetic tests; (ii) The genetic tests of that individual’s family members; (iii) The manifestation of disease or disorder in family members of the individual (family medical history); (iv) An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or (v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. The definition specifically excludes “information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.”
Prohibition on use of genetic information in employment decision-making: The final rule provides that it is unlawful for an employer to discriminate against an individual on the basis of the genetic information of the individual in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.
Similarly, an employer may not limit, segregate, or classify an individual, or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive the individual of employment opportunities or otherwise affect the status of the individual as an employee, because of genetic information with respect to the individual. The final rule specifically cautions, however, that a cause of action for disparate impact within the meaning of section 703(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(k), is not available under this part.
GINA also prohibits harassment against an employee based on genetic information or retaliation.
Exceptions to restrictions requesting, requiring, or purchasing genetic information: The final rule includes 6 limited exceptions to its general prohibition on employers requesting, requiring, or purchasing the genetic information of employees or job applicants. For example, an employer’s inadvertent acquisition of such information falls within the exception. The exception for inadvertent acquisition applies to situations where an employer, acting through a supervisor or other official, receives family medical history by overhearing a conversation, receiving an unsolicited communication, or following a general inquiry about the individual’s health (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer).
Other exceptions include an employer’s requests for medical data for the purposes of evaluating individual claims for Family and Medical Leave Act (“FMLA”) leave or reasonable accommodation under the Americans with Disabilities Act (“ADA”) and certain situations involving an employer’s wellness program.
As to voluntary wellness programs, the regulations make clear that GINA permits no financial inducements for individuals to supply genetic information (typically family medical history). Financial inducements may be provided, however, for situations not covered by GINA such as disease management programs.
Employers Must Include Specific “Safe Harbor” Language When Lawfully Requesting Health-Related Information from an Employee or Third Party (e.g., Health Care Provider). Although an employer is still permitted to request health-related information from an employee in certain situations such as in response to a request for sick leave or request for an accommodation under the ADA, the final regulations implore employers to warn the employee or health care provider not to provide genetic information. Specifically, the regulations recommend that employers use the following language:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.
Monday, November 22nd, 2010
According to a recent Department of Labor Office of Administrative Law Judge (“ALJ”) ruling, if a hospital facility accepts patients under TRICARE, the health care program serving Uniformed Service members, retirees and their families, that facility may be subject to federal affirmative action requirements. See (OFCCP v. Fla. Hosp. of Orlando, DOL OALJ, No. 2009-OFC-00002, 10/18/10).
Granting summary judgment to the Office of Federal Contract Compliance Programs (“OFCCP”), the ALJ held that a Florida hospital is a federal subcontractor because it participates in a health care provider network established by Humana Military Healthcare Services Inc. (“Humana”), which has a federal contract with the Department of Defense’s TRICARE Management Activity, and performs a “portion” of Humana’s obligations under its government contract by providing medical services to TRICARE beneficiaries.
The ruling makes clear that the Florida hospital, as well as other hospital facilities that provide similar services through a TRICARE administrator, must comply with the affirmative action and equal employment opportunity obligations enforced by the OFCCP under Executive Order 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act.
These obligations are significant and may include:
- Maintaining a written affirmative action plan
- Filing EEO-1 and Vets 100/100A reports
- Ensuring nondiscrimination in employment
- Posting certain notices
- Establishing and maintaining certain recordkeeping practices and other equal employment opportunity practices
- Granting the OFCCP access to its facilities to conduct and complete compliance evaluations
Hospitals and other health care providers should immediately review their contractual obligations to determine whether they are federal contractors or subcontractors under the OFCCP’s jurisdiction. The fact that contracts with TRICARE administrators do not specifically mention affirmative action or other EEO obligations is not determinative. Often these clauses are automatically incorporated by law into certain subcontracts.
Compliance with affirmative action obligations is a significant undertaking. For questions or more information on affirmative action obligations, contact any member of Gentry Locke’s Employment Law or Government Contracting Practice Groups.
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, November 15th, 2010
On November 2, 2010, the National Labor Relations Board (NLRB) issued a press release advising that its Hartford CT Regional Director issued a complaint against American Medical Response (“American”) of Connecticut for firing a union-represented medical technician, Dawnmarie Souza, after she posted remarks criticizing her supervisor on her personal Facebook account. The complaint also alleges that American illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.
The NLRB indicates that the issue started when Ms. Souza was asked by her supervisor to prepare a report concerning a customer complaint about her work. Ms. Souza asked to have representation from the Union with regard to the issue and her request was denied. Later that day Ms. Souza posted remarks to her personal Facebook page from home that allegedly included, “looks like I’m getting some time off. love how the company allows a 17 to become a supervisor.” 17 is American’s terminology for a psychiatric patient. Her negative postings received encouraging responses from some of Ms. Souza’s co-workers and led to her making additional negative remarks about the supervisor.
Souza was suspended and later terminated allegedly for her Facebook postings and because such postings violated American’s internet policies. American’s counsel has stated that America terminated Ms. Souza because of two separate complaints about her “rude and discourteous service” within a 10-day period; and that Souza would have been fired whether the Facebook comments were made or not.
The position of the Acting General Counsel is that American’s firing of Ms. Souza violated her rights under Section 7 of the National Labor Relations Act (NLRA) which prohibits employers from punishing workers (union and non-union) from discussing working conditions or unionization. The NLRB found that “the employee’s Facebook postings constituted protected concerted activity”, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.
Acting General Counsel Solomon in an interview likened the statements made as the same as employees talking around a “water cooler.”
While the case is not purely about the Facebook posting that issue has received national attention because, the complaint by the NLRB Acting General Counsel in condemning American’s employee internet policy as overly broad is seen by some as an about face for the NLRB. The policy in American appears on its face to have little difference from the policy reviewed in the 2009 opinion issued by the NLRB’s Division of Advice which was found not to violate Section 7 of the NLRA. The American policy, like the company policy in the 2009 case included language prohibiting an employee from “making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” Both policies also prohibited broader conduct such as “rude or discourteous behavior to a client or co-worker” and “[u]se of language or action that is inappropriate in the workplace whether racial, sexual, or of a general offensive nature.” The issuance of this complaint is thought by many to reflect a change in position of the NLRB and to reflect the mind-set of Chairman Wilma Leibman and the 3-1 pro-labor majority of the President Obama appointed members of the NLRB.
It is clear from the Acting General Counsel’s comments and those of the NLRB Chairman, that the NLRB has an increased interest in social media and other policies that restrict communications and do not clearly state that the prohibitions contained in them are not intended to cover complaints or statements regarding working conditions or unionization.
This complaint is scheduled to be heard on January 25, 2011 and the decision in that hearing may still be subject to review by a federal appellate court. However it not only bears watching but employers should consider making clear in their policies and handbooks that those polices are not intended to restrict or cover complaints or statements regarding terms and conditions of employment or communications about unionization.
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, October 10th, 2010
J. Scott Sexton, a partner with the Virginia law firm of Gentry Locke Rakes & Moore, has been recognized as a “Leader in the Law” for 2010 by Virginia Lawyer’s Weekly for his accomplishments in developing the law on Virginia mineral rights. Sexton is one of 31 Virginia attorneys who were honored at an October 21st reception in Richmond.
According to Virginia Lawyers Weekly, the “Leaders in the Law” honors lawyers who set the standard for other attorneys
Tuesday, June 1st, 2010
Gentry Locke Rakes & Moore, LLP, representing three Virginia coal owners, has secured a $75 million settlement from Consol Energy, Inc. of Canonsburg, Penn., and its subsidiaries resulting from the energy consortium’s decision to secretly dump billions of gallons of contaminated water into several mines in western Virginia for over a decade. The award is among the highest environmental property damage settlements ever awarded in the U.S.
On June 1, 2010, the parties to the Buchanan County Circuit Court case of Yukon Pocahontas Coal Company, et al. v. Consolidation Coal Company, et al., Island Creek Coal Company, Consol Energy, Inc., and CNX Gas Company announced to Judge Michael Moore that the case had been settled for cash payment of $75 million, bringing to an end a complicated legal proceeding led by the Plaintiffs’ attorney, J. Scott Sexton of Gentry Locke and Benjamin Street, of the Street Law Firm in Grundy.
The case was filed when the Plaintiffs discovered that Consolidation Coal Company had been secretly dumping billions of gallons of waste water from its Buchanan Mine into neighboring mines where the Plaintiffs’ coal had previously been mined by Island Creek Coal Company. Plaintiffs alleged that, rather than building expensive wastewater treatment facilities, Consolidation chose a cheaper short-term solution that hid contaminated water problems from local regulators and coal owners. In 2004, the Plaintiffs learned of Consolidation’s actions and filed suit.
The lawsuit sought damages for the injuries to Plaintiffs’ coal and gas, as well as for the value of the benefit that Consolidation received from its trespass that allowed it to stay in business and substantially reduce its costs.
Sexton says he is pleased with the settlement and the clear message it sends to coal companies that ignore clean water regulations in the interest of profit.
“This case should serve as a warning to coal operators who choose to trespass in private rather than respect the property rights of the coal owners they depend upon for their operations and profits,” says Sexton. “It reinforces to coal operators that the coal leases under which they operate do not allow actions that injure or diminish the value of the lessor’s property; it confirms that a parent corporation cannot assume it has rights through the contracts of its subsidiaries; and it indicates that hiding pollution-related property damages in Virginia will not protect a defendant under the statute of limitations,” Sexton adds.
The Consol Defendants had aggressively maintained that they were entitled to dump the waste water due to rights they alleged from an old coal lease between the Plaintiffs and Island Creek Coal Company, and asserted that the Plaintiffs’ claims were barred by the statute of limitations.
In a similar case brought to the Virginia Supreme Court in 2008 and also argued by Sexton, (Levisa Coal Company v. Consolidation Coal Company), it was determined that the type of coal lease at issue did not provide rights as extensive as those claimed by Consolidation. Relying in part on the precedent of the Levisa opinion, the Buchanan County Circuit Court entered a ruling the Defendants had no legal right to dump the Buchanan Mine waste water into the neighboring mines. Significantly, the Circuit Court also ruled that the little-used statute of limitations tolling provision found in the federal CERCLA law applied to this state law case, so long as there was property damage resulting from the release of a contaminant.
Reflecting on broader implications of the case, Sexton states ” This case highlights the fact that some coal operators and regulators have been far too slow to properly respond to decades-old provisions of the Clean Water Act that prohibit discharges of polluted waters that cause streams to exceed established limits for
