Attorney Blog

Overtime Cases Certified for Notice in Timeshare Sales and Cable Installer Cases

hbutler@butlerwilliams.com (Blog Author)33480 — Tue, 15 Jun 2010 08:00:00 EST

On Monday, June 14, 2010, a federal magistrate judge ordered that notice of pending overtime lawsuits be issued to former employees of two Virginia employers who have been sued for failure to pay overtime and minimum wages required by federal labor law.

In Kisamore, et al v. Great Eastern Resort Corporation, Case No. 3:10cv00009, pending in the United States District Court in Charlottesville, Virginia, the Court ordered that notice be issued to all current and former timeshare "front-line" and "in-house" sales employees, as well as to "take-over managers" who also participate in the sales process, employed by GERC at its Massanutten Resort for the past three years. Massanutten, located in McGaheysville, Virginia, is nestled in the Blue Ridge mountains, overlooking the Shenandoah Valley. The Plaintiffs, and the group of sales personnel they seek to represent, sold timeshare packages at the resort.

The timeshare industry has typically not paid timeshare sales personnel overtime or minimum wage compensation, taking the position that their salespersons are exempt from overtime and minimum wage protections of federal law. A number of lawsuits filed against timeshare resorts have challenged this treatment, seeking protection for minimum wage payments in weeks in which no sales commissions are received (and minimum wage payments were often not paid) and for overtime compensation for hours worked in excess of 40 hours per week. Four former sales personnel filed this case, seeking collective action treatment, a form of opt-in "class" action unique to claims brought under the Fair Labor Standards Act (FLSA).  Other employees have filed "opt-in" consents to join the case.

The Court also ordered that the employer provide the names and addresses of former and current employees who have worked at the resort for the past three years to Plaintiffs counsel, Butler Willaims & Skilling, P.C. and Cupp & Cupp, P.C., so that the Court approved notice may be sent to these employees who may be entitled to damages in the suit. Notice is expected to be sent to such former and current employees by July 1, 2010.

In Addison, et al v. McLaughlin Communications, Inc., Case No. 5:09-cv-00087, pending in the United States District Court in Harrisonburg, Virginia, the Court ordered that notice of this suit be issued to all current and former McLaughlin cable installation technicians who were employed in Virginia, West Virginia and Pennsylvania from August 10, 2005 to date. McLaughlin is a contractor of Comcast and performs cable installation and service for Comcast customers. The suit alleges that McLaughin failed to pay its technicians overtime pay due under the FLSA.

Federal overtime laws allow for the recovery of unpaid overtime and minimum wage for a two year period of time, in addition to a like amount of "liquidated" or double damages, where the employer has not paid overtime or minimum wage when due. Employees may recover unpaid overtime/minimum wage compensation and liquidated/double damages for three years in the cases of willful violations. In the Addison case, the Court allowed notice for a five year period of time because the plaintiffs sought equitable tolling (or suspension) of the normal 2 or 3 year limitations periods which otherwise apply in such cases. The plaintiffs allege that the longer 5 year liability period should apply because McLaughlin created and issued pay stubs to employees that reflected overtime rates of pay and additional overtime payments for hours worked over 40 in a workweek when such additional overtime payments were not actually paid as required by law. The Court allowed a longer notification period for possible claimants, dating back to August 10, 2005. Notice is expected to be sent to former and current employees by July 1, 2010.

Senate Votes to Ban Forced Arbitration of Sexual Assault and Discrimination Claims Against Military Contractors.

zantell@butlerwilliams.com (Blog Author)19679 — Wed, 07 Oct 2009 08:00:00 EST

On October 6^th, the United States Senate overwhelmingly passed the “Franken Amendment” to a bill dealing with funding of American military contractors. According to a recent article from a minnpost.com. the amendment, named after Minnesota's junior Senator, serves to prohibit military contractors from requiring forced arbitration of sexual assault and discrimination claims. The need for the amendment was made evident by the case of former Halliburton contractor, Jamie Leigh Jones. While working for Halliburton in Iraq, Ms. Jones claims to have suffered an unspeakable assault by several male coworkers. Over the course of a single day, she contends she was drugged, raped, and then locked in a shipping container. Ms. Jones sought to hold her alleged attackers and Halliburton civilly liable, but due an arbitration provision in her contract, Halliburton was intially able to prevent her case from reaching court. After several years of litigation, only very recently did the Federal Courts side with Ms. Jones and allow her case to proceed within the court system. The amendment will serve to prevent defense contractors from even attempting to compel arbitration of sexual assault and discrimination cases because it cuts off funding to any contractor who continues to employ the provisions.

Arbitration provisions have become more and more popular in recent years. The rational behind arbitration is that it makes the litigation process more streamlined and efficient. To a certain extent, arbitration has some appeal provided that the parties knowingly enter into the agreement and the process for adjudication is a fair one. Unfortunately, in the employment context, the provisions are often signed under unfair circumstances and tend to make it a more difficult road for a complaining employee.

$22.75 Million Overtime Settlement

zantell@butlerwilliams.com (Blog Author)17567 — Thu, 27 Aug 2009 08:00:00 EST

According to an August 20th press release, a massive national Uniform provider, Cintas, came to terms recently on an almost $23 million settlement with a class of hundreds delivery drivers to whom it failed to pay overtime compensation.

The Fair Labor Standards Act (“FLSA”) is the Federal law mandating overtime compensation to persons who work more than forty hours a week. The law has a number of carve outs, more properly called exemptions, for broad groups of employees who are not entitled to overtime. The lawsuit alleged that Cintas misclassified the drivers as exempt employees under the FLSA. After an arbitrator ruled in favor of the drivers, the parties agreed to settle the matter for the above amount.

Many misconceptions exist about who is and is not entitled to overtime. For example, just because a person receives a salary does not mean they are exempt from overtime. Another mistaken belief is that “managers” cannot be entitled to overtime. The truth is that salary and title have little to do with the analysis. The law is far more concerned with an employee’s actual duties and responsibilities than anything else.

Light Pole Failures At Athletic Fields Create Potential Legal Problems

cwilliams@butlerwilliams.com (Blog Author)17474 — Wed, 26 Aug 2009 08:00:00 EST

Large light poles line the athletic fields of many American parks and schools. Without light poles the term "night game" would not exist. However, within the last few years many light poles manufactured by one company in particular seem to have shown signs of compromise and in some cases have failed altogether. The danger posed is evident. A light pole is huge and heavy structure. They can be as high as 100 feet or more and are constructed from heavy steel weighing tons. When one of these behemoths crashes to the earth below, it is easy to envision the potential for extensive damage to property and person.

The risk of a light pole failing should be minimal. Reasonable steps should be taken throughout the design, fabrication, and installation process to ensure that light poles remain safe and usable for the duration of their expected service life. However, according to an April 26^th article in the Austin American Statesmen, at least with respect one former light pole manufacturer, it appears there may have been a breakdown in the design process. Per the article, light poles manufactured early this decade by a single, now bankrupt, company have been falling or at least cracking at an alarming rate. The root cause of the problem appears to have been a flawed calculation used to design the poles.

The article does not speak to any current lawsuits and instead points out that because the company is bankrupt, property owners have been forced to shoulder replacement and remediation costs. Nevertheless, the liability which could result from a catastrophic failure of a light pole is not difficult to see. Depending on how and when a light pole fails designers, manufacturers, suppliers, installer, owners, and insurers could all potentially find themselves defending a lawsuit.

Unsafe Products Continue to Stream Into America From China

mphelan@butlerwilliams.com (Blog Author)17468 — Wed, 26 Aug 2009 08:00:00 EST

Despite the flood of imported products streaming into America, the Consumer Product Safety Commission (CPSC) has no acess to certain customs information that could help prevent the sale of dangerous products. According to a report by the Government Accountability Office, back in 2002, CPSC asked the Customs and Border Protection agency (Customs) for access to "manifest data" that describes cargo coming into the country. The CPSC sought to have information about products in such shipments before they arrive in the United States. Seven years later, the two agencies have not yet worked out terms of shared access to the information, leaving the agency responsible for ensuring that consumer products do not pose health or safety risks to our citizens in the dark about advance shipment information.

In comparison, the Food and Drug Administration receives advance shipment information from Customs. How many more U.S. children must be poisoned by toys lathered with lead paint by Chinese manufacturers before Customs gives the CPSC access to the manifest data? Click here to view the GAO report.

Race Discrimination Class Action Lawsuit Wins Key Ruling on Certification at Fourth Circuit Court of Appeals.

zantell@butlerwilliams.com (Blog Author)16835 — Thu, 13 Aug 2009 08:00:00 EST

The generally conservative Fourth Circuit Court of Appeals recently issued a ruling effectively granting class action status to a racial discrimination lawsuit originating out of South Carolina. The case involves alleged racial discrimination at a Nucor Steel plant. The Plaintiffs in the case claim, among other things, that African Americans were improperly denied promotions. They further allege that far more blatant incidents of racism took place at the plant as well. For example, the Plaintiffs contend that paraphernalia exhibiting the Confederate flag was available at the plant gift shop and that certain Caucasian employees openly used racial epithets while on the job.

Class status means that not only the named plaintiffs can be a party to a suit and that the interests of many, many affected people can be represented all at once. In this case, class status had been denied at the lower court level and was appealed to the Fourth Circuit. There, it was ultimately determined that the District Court Judge abused his discretion in refusing to certify the class.

The decision in Brown v. Nucor was just published on August 7, 2009 and can be found at Brown v. Nucor Corp., 2009 U.S. App. LEXIS 17643. For a number of reasons, the opinion may be significant. For starters, it gives a clear roadmap on when and how a race class can win certification in the Fourth Circuit. Secondly, the opinion may signal a shift in how the Fourth Circuit Court of Appeals will treat similar cases going forward.

It is important to recognize that while this opinion marks a clear and decisive victory for the Plaintiffs, it says little about the merits of the case itself. The Court did not pass judgment on any facts or liability; it merely allowed the case to proceed as a class action. In laymen’s terms, the Plaintiffs won a big battle, but they have not yet won the war. It remains to be seen what happens next. Nevertheless, the precedential value of the Court’s opinion is undeniable as it will almost certainly play a prominent role in future discrimination actions where class status is sought.

CDC Provides Free Concussion "Tool Kit" to Those Involved in Youth Sports

zantell@butlerwilliams.com (Blog Author)16299 — Mon, 03 Aug 2009 08:00:00 EST

Concussions are caused when the brain is jostled inside the head and normal function is disrupted. Among other symptoms, affected individuals may feel sick or disoriented or may lose consciousness. Depending on the severity of the impact and the constitution of the affected individual, concussions can be fatal absent proper treatment. By now the majority of the general public is probably aware that with participation in competitive sports comes the risk of concussion. That risk is only magnified when we are talking about younger athletes. Moreover, recognizing a concussion in a youth athlete is not a simple task. A concussion need not be accompanied by an open wound, nor does it require a particularly violent collision. Fortunately, more and more high school coaches and athletic trainers are being educated to the warning signs of a concussion. To that end, the CDC has recently released a free concussion “tool kit” for use by athletic coaches, trainers, parents, and even participants. The “tool kit” explains the symptoms one might expect to see from a concussed person. Above all, the “tool kit” advocates common sense caution. A concussed athlete cannot be allowed back on to a field of competition without being cleared by a medical professional. The old adage of “walk it off” simply does not apply where a concussion is suspected. We need look no further than our local high schools and youth leagues for tragic examples of what happens when the dangers presented by even minor concussions are not fully appreciated.

Wal-Mart Settles Wage and Hour Lawsuit

mphelan@butlerwilliams.com (Blog Author)15777 — Fri, 24 Jul 2009 08:00:00 EST

According to a recent Seattle Times article, Wal-Mart is set to pay current and former employees in Washington State $35,000,000.00 to settle claims that they were forced to work "off the clock” and/or skip required rest periods. Per the article, Wal-Mart faced as many as 63 U.S. lawsuits all alleging violations of wage and hour laws and the Washington settlement is part of their $640,000,000.00 plan to resolve that litigation.

Recovery for the Washington litigants looks to be limited to around $950.00 at the high end so it is not a great deal of money for each individual claimant, however at larger companies like Wal-Mart it would be unlikely that a pay practice would only apply to just a few employees. For example, the article puts the total number of owed employees in Washington State alone at 88,000. In suits like this, often called collective actions, the general maxim of strength in numbers absolutely holds true.

Wage and hour laws can be violated in any number of ways. Employees who are forced to skip rest periods, employees who are not paid overtime, and employees who are forced to work “off the clock” all may have recourse against their employers under federal and state law. With regard overtime, many are under the misconception that just because they are paid a salary or because they are paid by commission that they cannot be entitled to overtime when in fact the opposite is true. Eligibility for overtime has nothing to do with job title or pay practice and relies far more heavily on job duties.

New Emergency Room Diagnosis Guidelines for Mild Traumatic Brain Injury

mphelan@butlerwilliams.com (Blog Author)15129 — Fri, 10 Jul 2009 08:00:00 EST

The American College of Emergency Room Physicians (ACEP) in collaboration with the Centers for Disease Control and Prevention (CDC) revised the clinical diagnosis guidelines for mild traumatic brain injury (MTBI). These guidelines are designed to improve patient outcomes for the more than one million people who visit emergency departments every year for mild traumatic brain injury.

"People with traumatic brain injuries may appear to be normal and their symptoms may be mild, but there can be hidden dangers," said Richard C. Hunt, MD, Director of the Division of Injury Response at the Centers for Disease Control and Prevention. "TBI's can also lead to significant, life-long impairments that prevent a person's ability to function both physically and mentally. These revised guidelines can help ensure that patients with even mild TBI's are identified early and receive the care they need."

The real incidence of traumatic brain injury (TBI) is unknown since many patients who sustain an injury never seek medical care. The majority of these injuries are classified as mild, meaning the patient is alert, oriented and functional when they are assessed in the emergency department. It is estimated that 10 percent of patients with a mild TBI have evidence of an intracranial injury on head computed tomography (CT), and that approximately one percent of patients with mild TBI harbor a life-threatening neurosurgical lesion. The challenge for the emergency physician is to identify which patients with a head injury have an acute traumatic intracranial injury, and which patients can be safely sent home.

ACEP and CDC recogize in the revised guidelines that MTBI results from direct trauma to the head or from an acceleration/deceleration stress to the brain, and that MTBI poses a risk for short-term difficulties with symptoms such as headache, difficulty with balance, thinking, concentrating and sleeping. Up to 80 percent of patients report some symptoms related to the injury at three months. If MTBI results in long-term problems, it is often referred to as post-concussive syndrome.

For more information on traumatic brain injury (TBI), visit CDC on the Web at: www.cdc.gov/Injury.

Are Timeshare Sales Employees Entitled to Overtime Pay?

hbutler@butlerwilliams.com (Blog Author)11289 — Fri, 24 Apr 2009 08:00:00 EST

Under a Department of Labor Wage and Hour Division Opinion Letter dated January 25, 2007, on-property timeshare salespeople are entitled to overtime wages for all hours worked over 40 hours per week. The DOL Opinion Letter states that timeshare employees enaged in sales efforts on the employer's property and performing associated duties should be considered performing "inside sales" work and that such employees are entitled to overtime pay.

The timeshare industry has historically treated this work as "outside sales" (which would be exempt from overtime) and timeshare employers have not paid sales employees overtime. The issue applies to all on-property employees performing timeshare sales functions, including "front-line" sales, "in-house" sales, "take-over" sales/TO managers, "closers" and "exit department" sales, all of which may qualify for overtime payments depending on the circumstances of each case. Timeshare salespeople have often worked over 40 hours per week without overtime pay. Because the work is performed on the employer's property, the Opinion Letter states that the type of activity described in the Letter should be considered "inside sales" and that employees performing such work are entitled to overtime - they are not "exempt" employees under the Fair Labor Standards Act (FLSA), the law which governs overtime pay.

The FLSA requires that employers who have not paid on-property timeshare sales employees overtime for all hours worked over 40 per week must pay their employees and former employees (1) their unpaid overtime; (2) liquidated damages equal to an additional like amount of unpaid overtime for two years from the date of filing a suit or an "opt-in" consent to join an existing suit (i.e. doubling the amount due) and (3) attorneys fees and costs of court. In the cases of willful violations, employers are required to pay unpaid overtime and liquidated damages for three years unpaid overtime.

Butler, Williams & Skilling, P.C. and Cupp & Cupp, P.C. presently represent a collective of approximately 145 timeshare sales employees for unpaid overtime pay and minimum wages against Massanutten Resort (owned by Great Eastern Resort Corporation and affiliated with and managed by The Berkley Group, Inc. family of resorts) in a claim pending in the Virginia state court in Rockingham County (Harrisonburg, Virginia).

Another Richmond Company Files for Bankruptcy

mphelan@butlerwilliams.com (Blog Author)9034 — Wed, 11 Feb 2009 08:00:00 EST

Like so many other towns and cities across the nation, the Richmond area has been hard hit by the weakened economy. Several Richmond corporate institutions have fallen prey to the softened business environment. Companies like Land America and Circuit City who once employed thousands of Richmonders have sought bankruptcy protection or have been forced to liquidate and disappear entirely. Unfortunately, this week we learned of yet another national company headquartered in Richmond which has been now forced to file for bankruptcy. National discount men’s clothier S&K has filed for Chapter 11 protection.

As the economy tightens and credit becomes more and more difficult to come by, a natural by-product will be difficulties for certain brands. According to February 9^th Richmond Times Dispatch article, whether or not S&K owes its current predicament to its own failings or simple bad luck, remains uncertain. What appears more certain is that the company looks to need substantial operational changes in order to be profitable. Still more obvious is that the majority of the company’s creditors will now have to proceed before the federal bankruptcy court in Richmond if they hope to recoup monies owed them.

Supreme Court Reaffirms Retaliation Protection

hbutler@butlerwilliams.com (Blog Author)8522 — Wed, 28 Jan 2009 08:00:00 EST

On January 26, 2009 the Supreme Court issued a unanimous opinion reaffirming broad retaliation protections for employees who participate in internal investigations of workplace discrimination, rejecting the employer's narrow view that the retaliation law only protected those who actually asserted claims of discrimination or participated in legal proceedings. In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court sent a strong message to employers that anyone who responds to interview questions qualifies for protection.

In this case, three employees interviewed during an investigation of a supervisor's reported harassment and had confirmed the harassing behavior were later fired, purportedly for unrelated reasons. The supervisor who had been investigated was not fired. Title VII to the 1964 Civil Rights Act protects employees from retaliation for both "opposing" illegal practices and for "participating" by filing a charge of discrimination, testified, assisted or participated in an investigation, proceeding or hearing under the Act. The two clauses are commonly referred to as the "opposition" clause and "participation" clause. The employer argued that these employees had not initiated a complaint and therefore had not "opposed" discrimination and, likewise, had not filed a lawsuit or served as a witness to a legal or administrative proceeding - so, the employer concluded, these employees had engaged in no "protected activity" and were not entitled to the law's retaliation protection. The Court labeled this argument as suggesting a "freakish" rule whereby an employee who reports discrimination is protected but an employee who confirms the discrimination when asked by the employer is not.

The Court made clear that the "opposition" clause of Title VII protects not only "active, consistent" behavior, but may be used to describe someone who had taken no action at all to advance a position beyond disclosing it. Employers who state that they have complaint or grievance procedures, but try to undermine them by terminating or otherwise retaliating against employees who use the process or respond to questions, will not be protected by the law. The retaliation provisions of the discrimination laws are in place to assure that, whether the employer agrees with what is said by an employee regarding discrimination or harassment, or not, the employee has absolute protection of the courts to state such views, without fear of retalation. This decision follows a series of strong statements by the Supreme Court that it will not buy into pro-employer arguments suggesting that the nation's anti-discrimination laws' retaliation protections be diluted, with resulting "freakish" outcomes.

President Obama to Sign Lilly Ledbetter Fair Pay Act of 2009 on January 29, 2009

hbutler@butlerwilliams.com (Blog Author)8521 — Wed, 28 Jan 2009 08:00:00 EST

Following the Senate's approval last week, on January 27th the House passed the Lilly Ledbetter Fair Pay Act of 2009. President Obama is scheduled to sign the Act into law on January 29. This law will overturn the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Company, which barred claims for discriminatory pay practices if they were not initiated within 180 days of the first application of the discriminatory practice, rather than recognizing continuing employer liability arising from each discriminatory paycheck. The Supreme Court's ruling in Ledbetter effectively encouraged bad employers to conceal their discriminatory practices - and to avoid liability for such discrimination if they had successfully hidden them or intimidated employees from challenging the practices when they first began to receive discriminatory pay checks. The truth is that many employees never learn of such discriminatory pay practices, may only suspect it or are too frightened of retaliation to challenge the pay practice early in employment. This places responsiblity with the employer, who is under the obligation to pay irrespective of gender, race, age or other protected characteristic. The Act will amend Title VII to the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act, providing renewed pay protection to a wide array of persons who have historically suffered pay discrimination.

The Act is intended to return the law to the 'paycheck accrual rule' which had allowed the statute of limitations to be revived each time a discriminatory paycheck was issued, the rule that was widely recognized by the courts prior to the Ledbetter v. Goodyear Tire & Rubber decision. The Lilly Ledbetter Fair Pay Act of 2009 is retroactive to May 28, 2007, the date before the Ledbetter v. Goodyear Tire & Rubber decision, to assure that the wage protections afforded employees are not compromised by application of the rule outlined in the Ledbetter Supreme Court decision.

The new law states: "For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application or a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

This is cause for celebration for all advocates of fair pay, irrespective of one's gender, race, color, religion, national origin, disability or age. It's about time! According to the last available census figures, women are paid substantially less than male workers. For every dollar a male made in 2003, a woman made 75.5 cents. While Ms. Ledbetter led the charge against such unfair treatment, the Supreme Court's decision means that she will not be able to revive her case or recover for her own wage disparty. However, many, many people after her can thank her for her efforts to change the law. Thank you, Lilly Ledbetter, for standing up. And thank you to all of the hard working Americans who supported the change in the law and called their representatives to return reason to the law controlling workplace wages.

Lilly Ledbetter Fair Pay Act Passes Senate!

mphelan@butlerwilliams.com (Blog Author)8432 — Mon, 26 Jan 2009 08:00:00 EST

On Thursday, January 22nd, the U.S. Senate passed S. 181, the Lilly Ledbetter Fair Pay Act. Swift action is expected in the House to pass the bill and present it to President Obama, who is expected to sign it into law. In fact, this may be the first law signed by President Obama, who campaigned in favor of this legislation. The law, when enacted, will restore the 'paycheck accrual rule' making every instance of pay discrimination, every paycheck, actionable discrimination.

When it decided Lilly Ledbetter v. Goodyear Tire and Rubber Company in 2007, the U.S. Supreme Court had reversed years of decisions which had followed the 'paycheck accrual rule'. In Ledbetter v. Goodyear, the Supreme Court held that Ms. Ledbetter's time to challenge the discriminatory pay practices at Goodyear had expired because she did not file an administrative charge with the EEOC within the short time window, measured from the time the discriminatory pay practice was instituted, even though the discriminatory pay practice continued with each pay check she received. The decision in the Ledbetter case dismissed Ms. Ledbetter's claim, and did not allow Ms. Ledbetter to challenge the discriminatory practice by filing a claim within the time allowed if measured from the date of the last discriminatory pay check. This was recognized as a timely claim under the 'paycheck accrual rule.' Opposition to the Supreme Court decision was immediate, and a legislative fix was narrowly defeated last year.

The law passed by the Senate reverses the Ledbetter v. Goodyear case and returns the law to the pre-Ledbetter v. Goodyear 'paycheck accrual rule.' The new law is retroactively effective to the date of the Supreme Court's Ledbetter v. Goodyear decision so that there is no gap in the law's application of the 'paycheck accrual rule.' Victims of pay discrimination will again be able to challenge illegal pay practices measured from the time of the last discriminatory pay check received, and will not be foreclosed because they did not recognize or challenge the practice on the first pay check received (or the first time an employer treated them unfairly in pay, unbeknownst to the employee). The unfairness in this rule lies in the recognition that employers do not often issue memos to their employees advertising their discriminatory pay practices. The passage of this law by the Senate is a strong statement that the Ledbetter decision was contrary to public policy and the intent of our anti-discrimination laws, notably Title VII to the 1964 Civil Rights Act and the Equal Pay Act, to allow a limitations-based dodge of this form of discrimination. This law will assist to remedy discrimination in pay that has long plagued our economy and undermined the laws intended to end pay disparities based on gender, race, national origin or religion.

With the passage of this Act, workers can eradicate lingering discrimination in pay.  Many, many companies have historically paid women and minorities less than they have paid other employees and have placed obstacles in the way of their promotion in their respective organizations - and continue to do so. It is time to stop this form of discrimination, once and for all. With the assistance of this law, employees can again expect the courts to enforce the law's requirement that they be paid the same wage for the same work, irrespective of gender, race or other protected class.

Observers are predicting that litigation regarding this form of discrimination will return to its pre-Goodyear levels or, employers argue, will increase. Employer groups who mounted efforts opposing efforts to pass this legislation have complained that employers should be able to rely upon the limitations periods that would bar such claims if not brought early in the discriminatory pay practice and that the law would encourage frivolous suits. However, the truth is that these groups did not suggest that employers abandon discriminatory pay practices, but simply encouraged Congress to enforce a rule rewarding employers for hiding discriminatory practices for the applicable 180 or 300 day period (depending on the rules that apply in your state) after they were instituted. If the practices were not detected and continued over time, the effect would be to insulate employers with discriminatory pay practices from the application of the law through the application of the very short administrative limitations period an employee had to preserve a claim by filing an EEOC discrimination charge.

Application of the Ledbetter rule would have effectively gutted the laws prohibiting pay discrimination. How many employees would be in a position, or even know of, the first date that a discriminatory pay practice was instituted against them? Many employers try to strictly prohibit discussions of compensation. In our experience, employers who engage in this form of discrimination have not posted the discriminatory pay schedules for all to see. Rather, they conceal the pay schedules and, even after their pay systems have been challenged, go to great lengths to attempt to avoid disclosure of this information - as it is clearly illegal. Reportedly, Ms. Ledbetter only learned about the discriminatory pay system at Goodyear through an anonymous tip as she was retiring.

This correction to the law is overdue. It is only fair to return the law to the paycheck accrual rule to avoid an employer's 'gotcha' defense that, even though it had discriminated against an employee in pay, the employee didn't act soon enough to challenge the practice.  Many employers and employer advocacy groups are voicing complaints that this law increases the threats of lawsuits hovering over the heads of businesses.  Employers can avoid the threat of suits very simply - by paying their employees the same wages and benefits, and recognizing merit and their achievements, as they do with other employees and by not giving preferences based on gender or race. The outcry from the business community comes from the recognition of how widespread this form of discrimination has penetrated business practices through the years.  Pay fairly and based on merit. Now. Employers who continue to violate the law should not be rewarded by continued efforts to conceal their discriminatory actions.

Congratulations to the National Employment Lawyers Association, American Association of University Women (AAUW), Leadership Conference on Civil Rights (LCCR), National Organization of Women (NOW), American Association of Retired Persons (AARP) and other coalition partners for their strong efforts to have this bill passed and to resist diluting amendments offered before the Senate's passage of the Act.

WellPoint Age Discrimination Collective Action (Class) Moves Forward

mphelan@butlerwilliams.com (Blog Author)8330 — Thu, 22 Jan 2009 08:00:00 EST

On January 15, 2009, Judge James R. Spencer, United States Federal Judge for the Eastern District of Virginia, overuled WellPoint's Motion to Dismiss claims alleging that WellPoint layoffs from January, 2005 though the present violate the Age Discrimination in Employment Act (ADEA). Judge Spencer's 14 page opinion considers, and rejects, WellPoint's arguments that the plaintiffs had not stated both actionable disparate treatment claims and disparate impact claims of age discrimination. The case is Merritt v. WellPoint, Inc. d/b/a Anthem Health Plans of Virginia, Inc., and/or Anthem Blue Cross and Blue Shield, Civil Action No. 3:08-cv-272.

The lawsuit seeks 'collective action' status for the three filing plaintiffs to represent a group of "persons age 40 and older who were employed in WellPoint's Virginia operations and whose discharge, forced separation, or other involuntary separation from WellPoint during the period from January 2005 through the present resulted from WellPoint's policy or practice treating age (and its related characteristics) as negative factors in determining which employees to retain and which to terminate (variously described by WellPoint as "reductions in force," "position eliminations," "resignations," "retirements," and "cause" terminations) and/or from the adverse age impact of WellPoint's use of subjective termination selection processes and/or the use of analytics/metrics in the termination selection process."

The lawsuit also asserts that the WellPoint terminations were a result of a wide-spread termination of older employees while retaining younger employees. The suit alleges that WellPoint, in an effort to avoid being sued by older workers, inasmuch forced terminated employees to sign Releases which included release of age discrimination claims. The three plaintiffs who filed the lawsuit did not sign such releases, but argued that the releases were unenforceable [under the Older Worker Benefit Protection Act (OWBPA)] as to other persons who did sign releases of age claims.

The Court's opinion recognized that age discrimination under the ADEA may be proven by either disparate treatment theory (whether age actually motivated WellPoint or played a role in the decision-making process) or by disparate impact theory (whether facially neutral employment practices fall more heavily on older employees than is justified by business necessity). Citing a recent federal court case from Maryland finding a case of properly alleged disparate age impact discrimination, the Court noted the Complaint's reliance on several WellPoint "arrangements" which had a disparate impact on older workers, including "analytical models," a "selection process which considered age, and age related characteristics, as negative factors," including medical care or leave, the use of "metrics," which disproportionately evaluated and/or impacted older workers and a consideration of "age and/or age related characteristics in the 'cost' of maintaining an older workforce."

The Court's ruling directs the Plaintiffs to amend the definition of the group of former WellPoint employees they seek to represent. Because none of the plaintiffs before the Court at that time actually signed the challenged age discrimination releases, the OWBPA claim was dismissed, but the Court indicated that the claim may be again raised should a former employee join the suit who did sign such a release. Another plaintiff has now joined the suit by filing an "opt in" form and that claim challenging the validity of age releases is again before the Court.

Our firm and attorneys from AARP Foundation Litigation have joined together to represent the plaintiffs as co-counsel in this case. The federal courts in the Eastern District of Virginia are referred to as the "Rocket Docket" due to its reputation for quickly moving matters through to trial or resolution. In late March, 2009 the Court is expected to hear arguments on the plaintiffs' motion for court facilitated notice to the collective or group of similarly situated persons terminated as part of the reductions in force.

Cognitive Rehabilitation Helps People With Acquired Brain Injury

mphelan@butlerwilliams.com (Blog Author)8113 — Thu, 15 Jan 2009 08:00:00 EST

A meta-analysis published in the January issue of Neuropyschology provides evidence that cognitive rehabilitation after a serious brain injury or stroke can help the mind in much the same way that physical therapy helps the body. new meta-analysis. Because the data suggest that treatment may work best when tailored to age, injury, symptoms, and time since injury, the findings may help establish evidence-based treatment guidelines.

Researchers at the University of South Alabama and the University of North Carolina at Charlotte analyzed and updated the data found in systematic reviews of several hundred studies of cognitive rehabilitation. The researchers took those studies whose samples and methods were most amenable to rigorous statistical techniques and documented the extent to which various treatments improve the language, attention, memory and other cognitive problems that appear after acquired brain injury.

The meta-analysis examined 97 articles, comprising 115 studied treatment samples and 45 control samples. These samples collectively included 2,014 individuals who underwent cognitive rehabilitation after brain injury and 870 individuals in a variety of control conditions. The authors of the initial reviews had concluded there was enough evidence to generally support the use of a variety of rehabilitative treatments. To develop specific treatment guidelines, this new analysis documented the extent to which treatment type and timing, origin of the injury, recovery level, and participant age affected the odds of success.

Given the patterns they found, the authors offered initial treatment guidelines:

Generally, it is better to start treating patients as early as possible, rather than waiting for a more complete neurological recovery.
Even older patients (age 55 and up) may benefit from cognitive rehabilitation, particularly if the brain injury is due to stroke.
Clinicians should focus their efforts on direct cognitive skills training in specific cognitive domains (such as attention or visuospatial processing). More holistic, non-targeted interventions appear to be less effective.

Especially if they were treated soon after the event, language training helped older people after stroke with aphasia, problems producing and/or comprehending language. However, language training was still effective, just not as much, when it started more than a year after the stroke.

Attention training helped people with acquired brain injury and seemed to work best with younger patients less than a year after injury. It was the most specific treatment, improving nothing but attention.

Visuospatial training helped stroke patients with visuospatial neglect, the inability to respond or orient to something shown on the side opposite to the site of the injury. Visuospatial training also tended to improve performance in other cognitive domains.

Memory treatment did not produce clear results. Nor did comprehensive treatments that attempted to treat cognitive problems holistically.

The authors also found that patients treated less than a year after injury did better than those treated more than a year later.

There are some very talented experts in acquired brain damage and cognitive rehabilitation in Virginia. The challenge is to get the physicians who first treat victims of acquired brain damage (e.g., ER doctors, family doctors, and neurologists) to recogize the symptoms of TBI and timely refer the patient for cognitive rehabilitation.

Fixing a Systemic Problem - Discriminatory Race and Gender Pay Claims May Become Easier to Prove

mphelan@butlerwilliams.com (Blog Author)8110 — Thu, 15 Jan 2009 08:00:00 EST

On Friday, January 9, 2009, the U.S. House of Representatives passed legislation which could make proving race or gender based pay practices a little easier. The Ledbetter Fair Pay Act and the Paycheck Fairness Act were passed by the House of Representatives as combined H.R. 11.

This legislation, if enacted and signed into law, will overrule a hurdle to proving race or gender pay practices erected by the U.S. Supreme Court in Lilly Ledbetter v. Goodyear Tire & Rubber Co., Inc. That 2007 U.S. Supreme Court decision erected a wall to proving such cases that meant many people receiving lesser pay than their white or male peers, would effectively, be out of court. The Ledbetter rule states that if an employee fails to challenge the discriminatory pay practice or plan within a short time after the first notice or indication of the discriminatory pay practices, the case is untimely – and a discriminating employer is not legally responsible.

But when was the last time an employer who was shorting women or minorities sent a memo around to bring attention to the fact that it is paying women or African American employees less, or providing lesser promotional or advancement opportunities to such workers? Let’s face it - many, many employers do pay women and minority employees less than they pay comparably situated male or white employees. Often, this fact does not come to light until the pay structure is examined more carefully, such as when a termination is questioned, or some other, more apparent differential treatment is observed – say the failure to promote or advance minorities or women. But, under the Ledbetter rule, if that challenge is too late, then too bad – you cannot enforce the laws that prohibit pay discrimination based on gender or race.

Prior to the Ledbetter decision, most courts accepted a ‘paycheck accrual’ rule that held that every paycheck under a discriminatory pay plan was a separate actionable event, allowing an employee to go back in time to capture the underpayment once the discrimination becomes apparent. Under such a rule, all discriminatory payments would be due under a theory which recognizes that an employer must be responsible for past, as well as present, violations under a ‘continuing violation’ theory.

The Ledbetter decision rejects such a ‘paycheck accrual’ rule and makes it much more difficult for a women, African American, Hispanic, Asian American or other racial or religious minority to challenge the discriminatory pay practice. H.B. 11, the legislation currently identified as the Ledbetter Fair Pay Act and the Paycheck Fairness Act, will reaffirm the prior ‘paycheck accrual’ rule and will allow underpaid women and minorities the ability to enforce the laws which prohibit such discriminatory pay practices. It will eliminate artificial time barriers to challenge these illegal pay practices and will remove the employer defense that a person did not challenge the discrimination soon enough! Please contact your U.S. Senator to encourage them to vote in favor of this legislation. There is no legal excuse for paying women or minorities lesser wages for performing the same work – and there should be no legal incentive to avoid the law (or for keeping illegal pay systems in place) because some woman or racial minority failed to ‘beat the clock’ to challenge the practice. Our laws should encourage following the law – not avoiding it!

Harris D. Butler, III

President-Elect Obama and Congress Working to Overturn Supreme Court Ruling on Equal Pay

wtucker@butlerwilliams.com (Blog Author)7983 — Fri, 09 Jan 2009 08:00:00 EST

Congressional Democrats are working to legislatively overrule the Supreme Court's controversial decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., which severely limits a woman's right to bring a claim for unequal pay under federal law. In its ruling the Court held that the statute of limitations on a claim made by a female employee for unequal pay begins when the employer decides that it will pay her less than male employees, and requires that a female employee bring a claim for unequal pay within 180 days of the employer's decision regardless of whether the female employee had any knowledge of the pay disparity during that time. In other words, a female employee who does not discover that her employer is paying her less than male employees performing the same work is forever barred from being able to protect her rights to equal pay under Title VII. This is precisely what happened to Lily Ledbetter, who filed her discrimination claim within 180 days of learning of the pay disparity. The Court's ruling is out of touch with the American working world, where most people are not aware of the salary or wages that their employer is paying other workers.

Under the Lily Ledbetter Fair Pay Act, a female employee who is a victim of wage discrimination would have 180 days from the date of each paycheck to file a claim. The Act has already passed the House of Representatives, and the Senate is preparing for a vote.

Renovation Cannot Come Quickly Enough for Richmond Landmark

zantell@butlerwilliams.com (Blog Author)7923 — Wed, 07 Jan 2009 08:00:00 EST

Like so many other urban areas across the country, Richmond, Virginia’s downtown has seen something of renaissance in recent years. The economic slowdown notwithstanding, numerous old buildings in and around the city center have been renovated and repurposed into retail space, offices, and high end apartments and condominiums. One property that seems a perfect fit for revitalization is the old Hotel John Marshall . Built in 1929, the John Marshall was once a grand luxury hotel, but those days have since passed. In 1988, the hotel closed for over ten years and was reopened in a limited capacity in 1999. The building has been largely vacant since the hotel finally shut its doors in 2004.

In the last few years several different developers have unveiled plans for redevelopment, but construction has yet to begin. For a myriad of reasons these projects have failed to get off the ground and the building remains essentially unused. It seems there may now be an additional impetus to get the property back in use; decay. As reported on by the Richmond Times-Dispatch, on December 30-31 several massive limestone panels fell off the façade of the building crashing over 100 feet to the ground and structures below. Fortunately, no one was hurt and the authorities acted promptly to make sure the public stayed out of danger. The incident highlights the need for development of the property and others like it. We all recognize that when buildings go unattended and are allowed to fall into disrepair, surrounding property values decline. However, an often overlooked risk is the danger of a major accident due to decay. Crumbling buildings present both a danger to the public and a potential source of liability to an owner.

Employee Misclassification Lawsuit Settles for $26.8 Million

wtucker@butlerwilliams.com (Blog Author)7122 — Mon, 08 Dec 2008 08:00:00 EST

FedEx recently agreed in principle to settle a California lawsuit filed by its workers alleging that FedEx had misclassified them as independent contractors for $26.8 Million. The lawsuit alleged that FedEx should have classified the workers as employees under federal labor laws, and sought damages for unpaid overtime work and expense reimbursements. According to FedEx officials, the IRS had also been pursuing tax penalties against FedEx in the amount of $319 Million based on the misclassification of its workers, but that the IRS had withdrawn the proposed penalty. FedEx also faces legal challenges to its classifications of workers in the states of Washington and Indiana.

Many workers who should be classified as employees under federal labor and tax laws are misclassified by their employers as independent contractors to the detriment of the employee and the benefit of the employer. Under the law, an employer must show that a worker meets the qualifications of an independent contractor, which typically involves an evaluation of the amount of control it exercises over the worker. Employers have an incentive to classify a worker as an independent contractor because the cost of an independent contractor is typically significantly smaller than that of an employee. Employers can require independent contractors to work longer hours because they are not eligible to receive overtime pay under federal labor laws. Independent contractors are also not entitled to participate in the employer's benefits plans offered to employees, such as health insurance, dental insurance, retirement plan contributions, stock options, and family and medical leave, which saves the employer on paying these costs. Thus, workers who are classified as independent contractors must pay the costs of these benefits rather than the employer.

Unfortunately, most workers don't question the classification either until they are fired or other traumatic events in their life cause them to need benefits to which they would be entitled as an employee, such as a serious health condition for which they need family and medical leave. Workers who are classified as independent contractors should take proper steps, such as seeking a ruling from the IRS, to be sure that this classification is proper. Most applicable federal laws allow a worker to challenge the classification, and provide protection against retaliation by the employer.

Think Twice About Holding Your Cell Phone to Your Ear

mphelan@butlerwilliams.com (Blog Author)7099 — Mon, 08 Dec 2008 08:00:00 EST

Are we going to have to go back to the days of mounted car phones? A new study concludes that radiation from cell phones can affect the memory. At the Division of Neurosurgery, Lund University, in Sweden. Henrietta Nittby, researchers studied rats that were exposed to mobile phone radiation for two hours a week for more than a year. These rats had poorer results on a memory test than rats that had not been exposed to radiation.

The lead researchers believe that the findings indicate that microwave radiation from cell phones can affect the so-called blood-brain barrier. This is a barrier that protects the brain by preventing substances circulating in the blood from penetrating into the brain tissue and damaging nerve cells. The bottom line is the rats in the experiments suffered brain damage from the microwave radiation, and the brain damage caused memory problems.

The research team also found certain nerve damage in the form of damaged nerve cells in the cerebral cortex and in the hippocampus, the memory center of the brain. Moreover, they have discovered alterations in the activity of a large number of genes, not in individual genes but in groups that are functionally related.

Henrietta Nittby, one of the researchers, has cell phone herself, but never holds it to her ear, using hands-free equipment instead.

Employers (Ab)Use Arbitration To Gain Unfair "Home Court" Advantage

wtucker@butlerwilliams.com (Blog Author)6978 — Wed, 03 Dec 2008 08:00:00 EST

Suppose you were involved in a dispute with your employer over whether you were entitled to pay and benefits for two years, and your employer suggested that, instead of filing a lawsuit and letting an impartial jury decide your case, you resolve the dispute according to a set of rules that your employer, with the help of its lawyers, drafted without your input; would you agree? How about if your employer suggested that the dispute be decided by a person that they pay to make the decision? Or that you go through a multi-stage process where you meet with various teams of management personnel, by yourself, over a period of months to discuss the case before you can even talk to the person who will decide who wins? Or that even after you go through that lengthy process, you then have to wait several months in order to investigate the case prior to meeting with the decision maker, and that during that time your lawyer would be performing the same type of activity that would be involved in the court process, only under the employer’s rules you cannot ask for certain evidence regarding the employer's actions that would otherwise be available to you through the court system, allowing the employer effectively to cover its behavior? Or if once you get through all of that, you only have a limited number of witnesses that you can call to produce evidence on issues that you are required to prove? Or, if after all of that, you can only appeal a decision that was made without any basis at all? Or that, even if you prevail, you would not be entitled to recover your attorney's fees that you would be able to recover in the court system? Of course you would not agree to such a process; what reasonable person would?

Unfortunately, this type of “dispute resolution” process, known as arbitration, is becoming more commonplace among employers. Many employees who have claims for workplace discrimination, harrassment, or other violations are being required to resolve their disputes seeking the loss of their pay, benefits, and other damages, through this lopsided process. Moreover, many employers are even attempting to require employees to engage in this process without the employee’s agreement. For instance, unwitting employees have had their employer’s put “small type” on timecards or complaint forms reading that any employee who punches the card in the time clock or completes and signs the form agrees to arbitrate all disputes with the employer.

Fortunately, help may be on the way. Congress is currently considering the Arbitration Fairness Act, which is aimed at curbing these abuses not only in the workplace, but also in consumer and franchise disputes, which also involve parties with great disparity in resources. The Act is aimed at returning arbitration to a fair process that can save time and resources to the parties and the court system when implemented fairly. You can find out more about the Act, and also send a letter to your representatives in congress supporting passage of the Act, by visiting the National Employment Lawyer’s Association website.

Help Is Coming for Improperly Classified Independent Contractors

wtucker@butlerwilliams.com (Blog Author)6890 — Mon, 01 Dec 2008 08:00:00 EST

President-elect Barack Obama and the Democrat majority appear likely to amend federal tax law to prevent companies from benefiting by misclassifying their employees as independent contractors. The change to the law will eliminate the tax exempt status of many companies who classify workers as independent contractors based on a long standing practice in the industry, which proponents of the change say is a lenient standard that is prone to abuse. Because companies do not pay payroll taxes or incur the costs of employee benefits for independent contractors, as they do for employees, the cost of an employee is significantly higher. A business can save up to 30% on payroll taxes alone simply by designating a worker as an independent contractor.

Under the current tax law, whether a worker is an employee or an independent contractor is determined by examining the level of control that the company exercises over the worker. The IRS looks to three broad categories to make the determination: (1) Behavioral Control (e.g., Does the company determine what work the worker performs and how the worker performs it?); (2) Financial Control (e.g., How is the worker paid and are expenses reimbursed?); and (3) Type of Relationship (e.g., Is the relationship continuing or limited in time?). The IRS examines each of these categories to evaluate the nature of the relationship as a whole. Other federal labor and employment laws use similar tests to determine whether a worker is an employee, and thus entitled to the rights these laws provide, such as minimum wages and overtime pay, family and medical leave, and protection against workplace discrimination. Accordingly, workers with the status of employee have significant rights and protections that are not shared by those who are deemed to be independent contractors. Workers who believe they have been misclassified as independent contractors can seek a determination by the IRS as to the proper classification of their work status by filing a Form SS-8. Misclassified workers can often also seek to recover for unpaid employment benefits, overtime compensation, as well as their overpayment of taxes. Combined with the protections afforded to employees by federal employment and labor laws, the reward to a misclassified worker who becomes properly classified as an employee is substantial.

Brain Injury Association of America Teams Up With Journal of Head Trauma Rehabilitation

mphelan@butlerwilliams.com (Blog Author)6594 — Wed, 26 Nov 2008 08:00:00 EST

The Brain Injury Association of America (BIAA) entered an agreement that designates the Journal of Head Trauma Rehabilitation (JHTR) as BIAA's official scholarly journal beginning January 1, 2009.

"As the nationwide voice of brain injury, our goal is to put timely, relevant research findings into the hands of brain injury clinicians and business leaders as well as policy makers and the media," said Susan Connors, BIAA President and CEO.

The partnership with LWW ensures that each new member of BIAA's Academy of Certified Brain Injury Specialists will receive a one-year subscription to the leading, peer-reviewed publication in brain injury. Renewing certificants will have an opportunity to subscribe to JHTR at discounted rates.

"JHTR has led the way in brain injury treatment research and practice for nearly 25 years," noted Sandra Kasko, JHTR Publisher. "JHTR is ranked #1 in rehabilitation by the Institute for Scientific Information's 2007 Journal Citation Report. LWW is pleased to partner with BIAA to provide this essential resource."

In concert with BIAA's adoption of JHTR, the Association will introduce the Mitch Rosenthal Memorial Lecture Series in 2009. The Rosenthal Lectures, delivered via teleconference and webinars, will be drawn from each issue's content.

John D. Corrigan, PhD, an editor of JHTR noted, "BIAA and JHTR are two of the nation's oldest, most respected names in the brain injury field. This partnership will extend the good work both organizations do to improve care for individuals with brain injury.

Founded in 1980, the Brain Injury Association of America is the premier source of information for victims of brain injury. BIAA and its nationwide network of state affiliates provide help, hope and healing to the millions of Americans who live with a lifelong disability as a result of brain injury, as well as their families and the researchers, clinicians and professionals who provide treatment and long-term care. For more information about brain injury or the BIAA, visit www.biausa.org.

Our local chapter, The Brain Injury Association of Virginia, Inc. (BIAV) can be contacted at www.biav.net or (804) 355-5748. For additional information concerning the medico-legal aspects of brain injury, visit www.injuryboard.com and click on the brain injury section.

Legal Fees: Billable Hours is Not the Only Option

mphelan@butlerwilliams.com (Blog Author)5512 — Mon, 20 Oct 2008 08:00:00 EST

At Butler Williams & Skilling, we recognize that our entrepreneurial clients are looking for a law firm that is willing to share some of the risks of commercial litigation. Indeed, our willingness to handle a commercial litigation matter on a contigent fee, fixed fee, or blended contingent/hourly fee basis often affords the best opportunity to our clients to have their dispute litigated by a top-notch law firm. According to the Washington Post, the current economic crisis is causing businesses, in-house counsel, and individuals to demand the same alternatives to the old billable hour structure for legal fees, including for commercial litigation matters.

Corporate legal department officials say fees to outside law firms have risen faster than energy costs, salaries and other expenditures. Hourly billing has been the subject of criticism by clients and debates by legal experts, who say they give lawyers incentive to work inefficiently. Most law firms have been slow to embrace alternative billing.

The current crisis may force those firms to change.

New efforts to jettison hourly billing are being driven by in-house corporate lawyers, who say they have grown frustrated seeing fees to outside firms soar even as they slash their own costs. They said they want more certainty in their legal budgets and worry that outside firms are spending unnecessary amounts of time on their matters.

In a recent survey conducted by the Arlington-based Corporate Executive Board, a for-profit organization that does research on best practices, 800 in-house lawyers said they spent 50 percent more last year on large outside law firms than in 2002. They said the hourly rates they paid jumped 70 percent between 1996 and 2005. Those increases obviously cannot continue in the current market.

The Association of Corporate Counsel, which represents 23,000 in-house corporate lawyers, last month launched the "Value Challenge," an initiative aimed at spurring corporate lawyers and outside law firms to develop alternative pricing plans, including fixed rates, volume discounts and lower hourly rates blended with performance bonuses or a contingency fee component.

Most people who purchase a service want to know, "how much is this going to cost?" In the past, the answer from those selling a legal service has been "x dollars an hour for how ever many hours we work on your case, regardless of whether the result is favorable to you." This paradigm is no longer acceptable to many clients. They would prefer their lawyer to either quote a fixed rate or take some of the risk, when appropriate, by taking as their fee a percentage of the recovery.

With Rough Economy Comes Increase In Construction Litigation

zantell@butlerwilliams.com (Blog Author)5483 — Mon, 20 Oct 2008 08:00:00 EST

As the credit markets tighten and the economy seemingly grinds to a halt, a corresponding uptick in construction litigation has resulted. For the first half of this decade ambitious builders and developers experienced something of a golden age. While large scale construction inevitably leads to disagreement and disputes, during this “boom” period those involved understood that delaying a project due to litigation worked to no one’s benefit. Now, however, as those involved with a project face an uncertain future, we find that construction disputes more and more often make it all the way court.

In the past, parties to a construction lawsuit could typically assume a settlement would be reached prior to trial, but the economic downturn has drastically altered the equation. When the prospect of settlement no longer represents a realistic or profitable option, litigation necessarily emerges. A recent article published in the Virginia Lawyers Weekly describes several construction lawsuit scenarios which in the past would likely have settled. Such situations include;

-Defective Construction

-Construction Delays

-Foreclosure

Certainly, there are other reasons for a construction lawsuit, especially breach of contract for nonpayment. However, that type of suit might find its way into court even under the best economic conditions.

Congress Amends ADA to Broaden Protections for More Disabled Workers

wtucker@butlerwilliams.com (Blog Author)5229 — Fri, 10 Oct 2008 08:00:00 EST

On September 25, 2008 President Bush signed the ADA Amendments Act of 2008 ("ADA-AA"), which will broaden the protections of the Americans with Disabilities Act for more workers with disabilities. The ADA-AA was the result of bipartisan efforts and was supported by advocacy groups for both employers and employees. The legislation overrules several rulings of the Supreme Court of the United States that had diminished both the protections of the ADA, and the scope of workers with disabilities whom the ADA protected. For instance, the ADA-AA overrules the Supreme Court's decision in Sutton v. United Airlines, Inc., which allowed a court to consider mitigating measures, such as medications or prosthetic devices, in determining whether a person has a disability. The ADA-AA also overrules the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, under which the Court set forth an exacting standard that further limited the scope of persons protected under the ADA. These cases left many capable and qualified workers who had been discriminated against because of their disability without jobs and without recourse. In addition, these cases resulted in significant litigation in the federal courts regarding whether a person had a disability so as to be protected under the ADA, and not whether the person had been the victim of unlawful discriminatory practices. In enacting the ADA-AA, Congress intended to move the focus of these cases back to the behavior at issue, and whether it was discriminatory, and away from whether a person was "disabled enough" to have federal protection.

12 Athletes Leaving Brains to Concussion Study

hbutler@butlerwilliams.com (Blog Author)4856 — Sat, 27 Sep 2008 08:00:00 EST

A dozen athletes, including six NFL players agreed to donate their brains to the Center for the Study of Traumatic Encephalopathy at Boston University's School of Medicine. The Center is devoted to studying the long-term effects of concussion. One player is former New England Patriot linebacker Ted Johnson, who said "...any doctor who doesn't connect concussions with long-term effects should be ashamed of themselves." Ted Johnson's story is the subject of a blog I did on another site. He suffered multiple concussions from 2002 through 2005 which resulted in permanent degenerative brain damage with memory, depression, and suicidal ideation.

Last Tuesday, the Center announced that a deceased NFL player, the former Houston Oilers linebacker, John Grimsley, was found to have brain damage commonly associated with boxers. John Grimsley died in February at age 45 after he shot himself in the chest. Analysis of his brain confirmed the presence of damage that had begun to affect Mr. Grimsley's behavior and memory. Mr. Grimsley's widow said Grimsley sustained about nine concussions in his nine NFL seasons. For the last four to five years of his life (i.e., beginning at 40 years of age), Grimsley suffered irritability and severe short-term memory problems. The Center has now examined the brains of six deceased NFL players. Grimsley's brain was the fifth found to have chronic traumatic encephalopathy, joining former Eagles defensive back Andre Waters (who was depressed and committed suicide), former Steeler iron man Mike Webser (who died alone and homeless at the bottom of a canyon), and formers Steelers Terry Long (who died in a bizarre car crash in which he drove head on into an oncoming 18 wheeler) and Justin Strzelczyk. Interestingly, chronic traumatic encephalopathy does not show up on a brain MRI, CT or other radiologic study, but can only be confirmed by post-mortem tissue analysis. Each of these athletes died at young ages. The brain damage seen in the tissue analysis of their brains is exceedingly rare in people of that age without a history of repetitive brain injury. The tissue analysis further proves that serious brain damage may not be detected by MRI or CT.

Among the living athletes with histories of concussions who agreed to donate their brains for tissue analysis after their deaths are Ted Johnson and former Tennessee Titan tight end Frank Wycheck. As John Grimsley's widow said, "Even though he's gone, he'll still be helping people." Kudos to all of these athletes for donating their brains in order to advance the understanding of this serious problem.

Non-Solicitation Agreement During Merger Talks May Be Useless

mphelan@butlerwilliams.com (Blog Author)4783 — Tue, 23 Sep 2008 08:00:00 EST

When firms enter into merger discussions, the smaller firm may wish to protect itself with a non-solicitation agreement to prevent the larger firm from using the merger negotiation as a pretext for poaching members of the smaller firm. In a case arising from a failed law firm merger, a New York judge ruled last week that non-solicitation agreements, though common, are unenforceable because they restrict the right of lawyers to work where they want. Judge Kenneth Fisher ruled that a non-solicitation agreement entered into in 2007 between legal behemouth, Nixon Peabody and a smaller law firm, Taylor Wessing, was unenforceable. The two firms agreed not to hire from each other for two years. After the merger negotiations collapsed, Nixon Peabody hired a dozen Taylor Wessing partners.

Tackling Head Injuries Head-on

mphelan@butlerwilliams.com (Blog Author)4782 — Tue, 23 Sep 2008 08:00:00 EST

As student athletes continue to get bigger, faster, and stronger, the incidence of sports-related traumatic brain damage is on the rise. Sports medicine has come a long way in the past 20 years in the treatment and tracking of sports concussions. In the early 1990's, a doctoral candidate at the University of Georgia, Martin Mrazik, worked on the first simple experiments to measure the impact of concussions. Mrazik theorized that if one could measure the athletes' baseline cognitive function before the start of the season, before they suffered a concussion, then one could measure what happens after an athlete suffered a head injury. Mrazik developed written tests of reaction time and processing speed.

A few years later, researchers at the University of Pittsburgh Medical Center computerized Mrazik's crude test, creating the Immediate Post Concussion Assessment and Cognitive Test (ImPACT) system. In the past couple of years, the National Hockey Association, the National Football League, and U.S. Lacrosse (which reports that concussion is the third most prevalent injury among its male and female athletes) adopted ImPACT as an assessment tool. This year, the Canadian Football League followed suit. The goal of ImPACT is to properly diagnose concussion and then to make sure the athlete does not return to action until he or she is fully recovered.

Today, Dr. Mrazik is a professor at the University of Alberta, which applies ImPACT to all of its football, hockey, rugby, and soccer players. Dr. Mrazik is not satisfied. He worries about the lower school and recreational athletes who do not have the benefit of health care professionals who are trained to diagnose and treat brain damage. Mrazik cites the example of Brett Lindros, the younger brother of former Philadelphia Flyers star, Eric Lindros, who was forced to retire from hockey at age 19 because of repeated concussions suffered in junior hockey.

This problem is not limited to junior hockey. Every day in this country, middle school and high school football players return to practice within a day or two of suffering serious, and often serial, concussions. There is no way the school coaching staffs are properly trained in spotting and managing concussions. ImPACT needs to become standard practice in U.S. colleges, high schools, and middle schools.

Four Firm Partners Listed in 2010 Virginia Super Lawyers

blog@www.butlerwilliams.com (News Author)15905 — Fri, 25 Jun 2010 08:00:00 EST

The firm is proud to announce that four Butler Williams & Skilling partners were selected for inclusion in the 2010 Virginia Super Lawyers listing. Harris D. Butler, III was listed in the Plaintiff Employment Litigation category and was also recognized among the Top 10 Virginia attorneys for all categories presented, measured by highest peer voted point totals. Charles L. Williams was selected in the Construction Litigation category, and James C. Skilling was listed in the Business Litigation category. Finally, the firm's newest partner, Rebecca H. Royals, was selected as a 2010 Rising Star in the area of Employment Litigation: Plaintiff. Congratulations to all four of our attorneys listed this year.

Court Certifies Overtime Collective Actions

blog@www.butlerwilliams.com (News Author)15557 — Mon, 14 Jun 2010 08:00:00 EST

On June 14, 2010, Butler Williams & Skilling attorneys Harris Butler and Zev Antell, and Tim Cupp of Cupp & Cupp, P.C. in Harrisonburg, Virginia, argued motions to conditionally certify two overtime collective actions pending in the U.S. District Court for the Western District of Virginia. The Court conditionally certified both cases and ordered that notice be given to all similarly situated employees so that they could join the suits. The Court also ordered that both employers provide the names and last known addresses of all employees who worked for these employers during the times for which unpaid overtime and minimum wage payments are claimed. Butler Williams expects to receive the names and addresses within the next several weeks and expects that notices on these cases will be issued to possible employee and former employee claimants for each employer on or before July 1, 2010.

In Kisamore, et al v. Great Eastern Resort Corporation, Case No. 3:10cv00009, the Court ordered that notice of the claim and the opportunity to "opt-into" the lawsuit be provided to all timeshare sales "front-line" and "in-house" sales personnel and "take-over managers" employed by Massanutten Resort from July 1, 2007 to date.

In Addison, et al v. McLaughlin Communications, Inc., Case No. 5:09-cv-00087, the Court ordered that notice of the claim and the opportunity to "opt-into" the lawsuit be provided to all cable installation technicians employed by McLaughlin in Virginia, West Virginia and Pennsylvania from August 10, 2005 to date. In the Addison case, the Court acknowledged that a longer notice period was appropriate due to claims that McLaughlin is alleged to have created pay stubs that reflected fabricated overtime pay rates and overtime pay which was not actually paid to employees who worked 40 or more hours in a work week. In this case, we are asserting a claim that time during which all employees' overtime and minimum wage claims must be filed should be equitably tolled (or suspended) because of McLaughlin's actions in creating such pay stubs but not paying additional overtime pay for the overtime hours worked.

Attorney Butler Quoted in Article on Avoiding Religious Discrimination

blog@www.butlerwilliams.com (News Author)15558 — Thu, 10 Jun 2010 08:00:00 EST

Attorney Harris D. Butler, III was recently quoted in a United States Law Week article entitled, "Hijabs, Burqas, Khimars and Beards: Avoiding Religious Discrimination Suits." The article was published on June 8, 2010 and is reproduced with permission in the Library section of the Butler Williams & Skilling website.

Butler Moderates 19th Annual Virginia Employment Law Update

blog@www.butlerwilliams.com (News Author)15015 — Mon, 17 May 2010 08:00:00 EST

This year, Harris Butler chairs the Virginia Continuing Legal Education's Employment Committee, and, on May 6 (Richmond) and May 13 (Fairfax), he moderated the 19th Annual Virginia Employment Law Update and presented the annual case law update with Eddie Isler of Isler, Dare, Ray, Radcliffe & Connolly, P.C. Harris and Eddie reviewed U.S. Supreme Court, Fourth Circuit, and Virginia federal and state law developments for other employment law practitioners.

Noted trends were more summary judgment reversals at the Fourth Circuit and continued support of the courts for retaliation claims. Also noted was the Fourth Circuit's class certification for a racially hostile environment as well as disparate treatment and impact classes in Brown v. Nucor, 576 F. 3d 149 (4th Cir. 2009).

The Lilly Ledbetter Fair Pay Act offered relief from the earlier adverse Supreme Court Ledbetter v. Goodyear ruling on the timing of filing pay discrimination claims, but the Supreme Court's decision in Gross v. FBL Servs, 129 S. Ct. 2343 (2009) increasing the burden of proof to age discrimination claimants and certiorari grant in Staub v. Proctor Hosp., 2010 U.S. LEXIS 3333 (April 19, 2010) to review the "cat's paw" proof model (where another person with discriminatory animus is claimed to influence the decision-maker) is troubling.

"Beware, there seems to be a recent trend of 5-4 U.S. Supreme Court decisions going the wrong way for employees these days,' says Butler.

Butler Participates In Federal Civil Rules Litigation Conference

blog@www.butlerwilliams.com (News Author)15014 — Fri, 14 May 2010 08:00:00 EST

On May 10-11, 2010, Harris Butler accompanied a National Employment Lawyers Association (NELA) delegation to Duke Law School to participate in the Federal Civil Rules Advisory Committee's Litigation Conference. The 180 participants, comprised of federal appellate and trial judges, law professors, major corporate general counsels and experienced litigators, met to discuss possible changes to the Federal Rules of Civil Procedure.

The business community has beaten a steady drum of opposition to the cost of litigation (and effects of electronically maintained data). As expected, corporate interests at the conference attacked the cost of electronically maintained data and want to restrict such discovery. The corporate 'lobby' also sought to modify federal pleading standards in light of the Supreme Court's Twombly and Iqbal decisions, seeking to amend the rules to make it easier to bar claims at the pleading stage—even before discovery.

Experienced plaintiffs' lawyers explained the burdens to the system created by recalcitrant employers who evade relevant and important discovery of critical emails and statistical proof and the delays imposed by employers' counsel who file dilatory motions to dismiss based on the Iqbal/Twombly analysis.

Obviously, a balance is key—discovery should be of relevant data but beware the business community's cries of "cost" and "burdensome" in its push to deny court access to important claims which advance public policy including the laws requiring that minimum wage and overtime are paid and that employment decisions are not infected with bias on the basis of gender, race, age or disability.

Harris Butler—On The Air at WRIR

blog@www.butlerwilliams.com (News Author)15012 — Thu, 22 Apr 2010 08:00:00 EST

On April 21, 2010, Harris Butler's interview on employment discrimination was aired on WRIR's Marty Wegbreit's "It's Time for Justice," the Central Virginia Legal Aid Radio Show (97.3 FM). You can listen to the interview at www.radio4all.net by clicking the "Contributor" link on the right-hand side of the webpage and then selecting Martin Wegbreit, Central Virginia Legal Aid Society. Harris is scheduled to appear again on the show in the near future to speak on wage theft and overtime issues. Stay tuned for more details . . . .

Jury Awards Defamation Verdict Against Former Circuit Court Judge

blog@www.butlerwilliams.com (News Author)15011 — Thu, 08 Apr 2010 08:00:00 EST

A jury awarded Brenda Collins, former Hampton Drug Court Administrator, $300,000 in defamation damages and $50,000 in punitive damages against Verbena Askew, former Newport News Circuit Court judge. The jury awarded an additional $106,000 for breach of a confidentiality and non-disparagement agreement resulting from a prior settlement. Butler Williams & Skilling attorneys Rebecca Royals and Harris Butler tried the case to a Williamsburg jury January 27-29, 2010.

Attorney Butler quoted in The Roanoke Times

blog@www.butlerwilliams.com (News Author)13431 — Mon, 15 Mar 2010 08:00:00 EST

Harris Butler was recently quoted in The Roanoke Times concerning Virginia Governor McDonnell's recent "Executive Directive" which stated that state employees should not be discriminated against for any reason, including sexual orientation or parental status, and directing Virginia executive branch employees to base job decisions on qualification, merit and performance and to not discriminate in hiring, promotion, compensation, treatment, discipline, and termination of state employees. The Executive Directive follows the revocation of the Executive Order under the Kaine administration which forbid such discrimination but also provided legal protections that Gov. McDonnell's "Directive" omits.

Mr. Butler additionally states, "While this 'directive' establishes policy, it does not carry the force of law or protections that the Warner/Kaine Executive Orders carried. Gov. McDonnell eliminated the state employee grievance right when he rescinded Gov. Kaine's Executive Order. It is replaced with, as I read it, only and 'opportunity to advise' the Virginia Department of Human Resource Management (DHRM) for their follow-up and action, if any. Critically, it does not reinstate the grievance right which would allow presentation of evidence, neutral decision maker, etc as would be anticipated with a grievance. It looks nice but has no teeth."

See Mr. Butler's quote to the Roanoke Times here.

Butler Williams & Skilling, P.C. Names New Partner

blog@www.butlerwilliams.com (News Author)13430 — Mon, 01 Mar 2010 08:00:00 EST

Butler Williams & Skilling, P.C. is pleased to announce that attorney Rebecca H. Royals has become a partner in the firm. Rebecca's practice focuses on the litigation of employment issues ranging from noncompetition agreements to civil rights. Rebecca joined the firm as an associate in 2005, after graduating with honors from the University of Richmond's T.C. Williams School of Law.

Attorney Butler to Speak at Carolina Labor Law Update

blog@www.butlerwilliams.com (News Author)10784 — Fri, 09 Oct 2009 08:00:00 EST

Harris D. Butler, III will be speaking on Friday, October 23, 2009 at the 25th Annual North Carolina/South Carolina Labor & Employment Law Update in Charleston, South Carolina. His topic will be: The Strategic Value of Collective Actions—A Plaintiff's Perspective.

Five Butler Williams & Skilling Attorneys Named in Virginia Super Lawyers® for 2009

blog@www.butlerwilliams.com (News Author)9269 — Wed, 01 Jul 2009 08:00:00 EST

Butler Williams & Skilling is proud to announce that five of our attorneys were selected by their peers to appear in the Virginia Super Lawyers® 2009 edition. One of our lawyers, Harris D. Butler, III, was listed as one of the Top 10 vote getters in this year's nominating process—an honor he has received in previous years.

Our attorneys listed include: Harris D. Butler, III, Employment & Labor; Charles L. Williams, Construction Litigation; James C. Skilling, Business Litigation; Michael G. Phelan, Personal Injury Plaintiff; and Rebecca H. Royals, Rising Stars, Employment & Labor.

Butler Williams & Skilling Partner Elected Director Emeritus by Local Association

blog@www.butlerwilliams.com (News Author)8178 — Fri, 17 Apr 2009 08:00:00 EST

After serving 14 years as a director and one year as president, Charles L. Williams was elected Director Emeritus by the Builders' Exchange Association of Virginia, an honor bestowed only to three other individuals in the Association's 90-year history.

Founded in 1919, The Builders' Exchange Association of Virginia promotes cooperation between project owners, the design community, and contractors by providing an interface of information concerning upcoming and current commercial construction projects in the Commonwealth.

Mr. Williams was presented with a resolution that reads, "That the Directors of this Board, Officers and members of The Builders' Exchange Association of Virginia, extend to Charles L. Williams by this resolution, our abiding freindship and respect. Further, in recognition of his valuable service, we elect him Director Emeritus."

Butler Williams & Skilling Partner Admitted to American College of Trial Lawyers

blog@www.butlerwilliams.com (News Author)8180 — Fri, 17 Apr 2009 08:00:00 EST

Harris D. Butler, III was admitted as a Fellow of the American College of Trial Lawyers, one of the premier legal associations in America, during it's 2009 Spring Meeting in Fajardo, Puerto Rico.

Founded in 1950, the College is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, and only after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years trial experience before they can be considered for Fellowship.

There are approximately 5,700 current members in the United States and Canada, including active Fellows, Emeritus Fellows, Judicial Fellows (those who ascended to the bench after their induction) and Honorary Fellows.