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Employment Litigation

Litigation and trials

Many employment decisions result in a government investigation or a lawsuit by a disgruntled employee.  Our lawyers regularly represent businesses in response to complaints filed with the Department of Labor, OFCCP, OSHA, the National Labor Relations Board, the Employment Equal Opportunity Commission and Virginia’s Department of Labor & Industry. Whatever the forum, our attorneys are equally adept at mediation, arbitration, and federal and state court proceedings.

We know that a trial is sometimes the right answer to a disputed matter. When it makes sense to litigate, wise employers turn to Gentry Locke for candid counsel, deep experience, and our reputation with federal and state judges across Virginia—crucial attributes in a legal team.

When litigating a matter, a new level of trust and confidence is earned from management as we partner with our clients to a successful resolution. Our clients have firsthand knowledge of our ability to litigate cases brought by or against current or former employees. Employment law issues cover the gamut: discrimination, harassment, retaliation, wrongful discharge, breach of contract, non-compete and nondisclosure violations, trade secret claims, wage-hour/overtime issues, whistleblower claims, unfair labor practice charges, and employee benefits disputes, just to name a few.

Our work is valued by our clients, respected by opponents, and well regarded by those before whom we bring the case. When the dust of conflict settles, our clients know that we have represented their interests zealously.

We encourage you to review our Employment and Labor Practice Group attorneys’ personal pages for additional information and then contact us to discuss your company’s legal needs.

Discrimination & Harassment

Each year more than 75,000 charges of discrimination are filed with the United States Equal Employment Opportunity Commission despite the best efforts of companies to eliminate employment practices and discipline employees who violate rules prohibiting discrimination and harassment. The fastest growing category of claims, and potentially the most dangerous for employers, are claims of retaliation brought by employees who believe they have been punished or penalized for reporting unlawful behavior. With the 2006 decision by the United States Supreme Court in Burlington Northern v. White, exposure to retaliation claims has only increased. The lawyers of the Labor and Employment Practice Group at Gentry Locke have significant experience in defending employers of all types, from large multi-national companies to small business owners, on claims which can cover the following topics:

  • Race discrimination or harassment
  • Gender discrimination, which can include Equal Pay Act claims
  • Retaliation Claims
  • Sexual harassment
  • Religious discrimination or harassment
  • Disability (ADA) discrimination or harassment
  • Pregnancy discrimination or harassment
  • Age discrimination or harassment
  • National origin discrimination or harassment
  • Discrimination against veterans
  • Reverse discrimination claims

Harassment Investigations & Advice

Harassment in the workplace continues to be a real challenge for corporate America. We have substantial experience litigating harassment cases. This experience allows us to provide practical and candid proactive advice to companies on the front end. Specifically, we regularly assist our corporate clients in drafting harassment policies that contain effective complaint procedures.

When an employee registers a complaint, we have the experience and instincts to direct the required investigation. We recognize that harassment cases are rarely “black and white.” Companies faced with harassment complaints often are faced with credibility determinations and conflicting evidence. We have the experience to assist management in evaluating such cases, and developing and implementing an effective response.

Wage–Hour & FLSA Claims

Perhaps no area of employment law wreaks greater havoc for employers than the issues raised under the federal and state wage and hour laws. Unfortunately, the complexities of the wage and hour laws often defy common sense. The simple misclassification of employees or inadequate recordkeeping can result in significant exposure to a company.

The attorneys in Gentry Locke’s Labor and Employment Section regularly assist employers:

  • Defending administrative and judicial wage and hour proceedings, including the Department of Labor audits
  • Advising employers on issues including overtime, independent contractors, recordkeeping and other wage and compensation policies
  • Assisting with proper classification of employees as exempt and non-exempt
  • Creating practical policies and procedures that comply with federal and state law requirements
  • Analyzing and reviewing job descriptions and payroll practices
  • Properly identifying opportunities for federal tax credits offered to private sector employers who hire individuals from certain targeted groups

State Claims

Given the fact that Virginia courts have strongly adhered to the at-will doctrine which results in most wrongful discharge claims being dismissed prior to trial, disgruntled employees are increasingly turning to claims of defamation and other tort claims in an effort to hold employers responsible. Since at least 2000, the law has been clear in Virginia that communications within a company about another employee (whether in an interoffice memo, performance evaluation or report of investigation) can give rise to a defamation action. Larimore v. Blaylock, 259 Va. 568, 528 S.E.2d 119 (2000). While there are defenses (i.e., the truth) and privileges that apply, recent multi-million dollar verdicts have been upheld by the Virginia Supreme Court on statements some thought were pure “opinion.” See Raytheon Tech. Servs. Co. v. Hyland, 641 S.E.2d 84 (2007); Gov’t Micro Res., Inc. v. Jackson, 624 S.E.2d 63 (2006). Simply couching statements in terms of an “opinion” will no longer preclude pursuit of a defamation cause of action.

Other claims frequently brought, but with much less success, are claims of intentional infliction of emotional distress, negligent infliction of emotional distress and violation of an individual’s right of privacy. The types of claims we have defended are:

  • Defamation arising out of references
  • Defamation arising out of evaluations
  • Defamation in comments made to employees, vendors and other third parties
  • Claims arising out of statements made in internal investigations
  • Claims of invasion of privacy
  • Claims of intentional infliction of emotional distress
  • Claims of negligent infliction of emotional distress
  • Claims of intentional interference with contract

Employment Contract Claims

Although the “at-will” doctrine applies in Virginia, it is not uncommon for companies to enter into employment contracts with their key executives, salespeople or others who bring unique talents and skills to the organization. In addition to having significant experience in litigating noncompete and nonsolicitation disputes, our attorneys have significant experience in both federal and state courts in the litigation and trial of employment contracts. Among the types of issues we have handled are:

  • Incentive compensation disputes
  • Termination for cause provisions
  • Stock option vesting evaluation issues
  • Commission payment issues
  • Anti-piracy provisions
  • Nonsolicitation provisions
  • Noncompete provisions
  • Oral agreements/statute of frauds issues
  • Severance pay disputes

In this area, our attorneys can find themselves on either side of a dispute representing the company or an existing or former executive who has a dispute.

Defamation Claims

Given the fact that Virginia courts have strongly adhered to the at-will doctrine which results in most wrongful discharge claims being dismissed prior to trial, disgruntled employees are increasingly turning to claims of defamation and other tort claims in an effort to hold employers responsible. Since at least 2000, the law has been clear in Virginia that communications within a company about another employee (whether in an interoffice memo, performance evaluation or report of investigation) can give rise to a defamation action. Larimore v. Blaylock, 259 Va. 568, 528 S.E.2d 119 (2000). While there are defenses (i.e., the truth) and privileges that apply, recent multi-million dollar verdicts have been upheld by the Virginia Supreme Court on statements some thought were pure “opinion.” See Raytheon Tech. Servs. Co. v. Hyland, 641 S.E.2d 84 (2007); Gov’t Micro Res., Inc. v. Jackson, 624 S.E.2d 63 (2006). Simply couching statements in terms of an “opinion” will no longer preclude pursuit of a defamation cause of action.

Other claims frequently brought, but with much less success, are claims of intentional infliction of emotional distress, negligent infliction of emotional distress and violation of an individual’s right of privacy. The types of claims we have defended are:

  • Defamation arising out of references
  • Defamation arising out of evaluations
  • Defamation in comments made to employees, vendors and other third parties
  • Claims arising out of statements made in internal investigations
  • Claims of invasion of privacy
  • Claims of intentional infliction of emotional distress
  • Claims of negligent infliction of emotional distress
  • Claims of intentional interference with contract

EPLI Defense

Given the continued explosion of employment litigation, insurers have created a product generally known as employment practices liability insurance (EPLI). These policies assist employers in managing the financial risk resulting from various types of employment-related claims. Gentry Locke has been selected to be panel counsel for many of the top insurance carriers that offer EPLI coverage. Our attorneys can assist companies in determining whether EPLI coverage might be worthwhile and whether or not a particular claim is covered. Once a claim is filed, we assist clients by working with the insurance company to ensure the client is aggressively represented.

Have questions? Contact us.
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