December 2, 2016

Butler Royals recently filed a collective action lawsuit in Federal Court against The Wireless Center, Inc.  We seek to represent all Managers and Mangers in Training employed by The Wireless Center who we allege were improperly denied overtime compensation.   The Complaint alleges that The Wireless Center, a national authorized mobile phone retailer, failed to properly compensate Managers and/or Managers in Training by not paying them overtime. The Complaint further describes Managers and/or Managers in Training at The Wireless Center as regularly working well over 40 hours a week with no compensation beyond their salary and any earned commissions. According to the Complaint, the Wireless Center classified its Managers and Managers in Training as Exempt despite these employees clearly not meeting the requirements of any recognized exemption to the Fair Labor Standards Act. A copy of the Complaint may be found here

If you have worked for The Wireless Center as a Manager or Manager in Training at any time since November 30, 2013, please contact Butler Royals at (804) 648-4848 or through this website.



Supreme Court Confirms FICA Taxes Are Owed On Severance Payments

March 26, 2014

In an opinion published on March 25th, the Supreme Court determined that severance payments to departing employees are appropriately susceptible to FICA taxes.    The ruling confirmed the IRS’ position that severance payments were taxable wage income.  The Supreme Court ruling in U.S. v Quality Stores (available at reversed a Sixth Circuit Court of Appeals ruling which had called that IRS position into question. 

 Inasmuch as Quality Stores merely confirms what had previously been thought to be the law, the ruling should not have a huge deleterious effect on the severance benefits of laid off employees going forward.  However, those individuals unfortunate enough to face a lay off in the near future would be well advised to make sure their former employer properly accounts for their FICA withholdings.

Workplace Bullying

February 27, 2014

Bullying in general, and bullying in the workplace, has recently made national news. The situation involving NFL players on the Miami Dolphins has sparked renewed interest in addressing the issue of bullying the workplace. This post will discuss the current laws, both at a state level here in Virginia and nationally, that directly or indirectly address and make illegal bullying in the workplace.

In response to the recent attention on bullying in the workplace over the last couple years, many companies, especially larger companies, have adopted an anti-bullying policy in their employee handbooks or personnel policies. This is a great start, but unfortunately, at least here in Virginia likely does not give an employee a claim they could bring to Court if bullying occurs in the workplace. Virginia cases such as Progress Printing Co. v. Nichols, 244 Va. 337, 421 S.E.2d 428 (1992) have found that, absent specific language to the contrary, employee manuals, handbooks, etc. do not create a binding contract or promise between the employer or employee. Thus if the employer fails to live up to their own policies and procedures – for example by failing to stop or correct bullying in the workplace – the employee likely does not have a legal claim against their employer.

Many states have recognized the need for a law to prevent bullying in the workplace and legislation has been proposed in twenty-five (25) states including red states such as Oklahoma, Kansas, Montana, and Utah. See None of these proposed bills have been signed into law yet, but the increase in interest in the issue certainly suggests that an anti-workplace bullying law could become law within the next five (5) years.

Outside of laws directly aimed at workplace bullying there also remains state laws and federal laws that could cover and make unlawful the bullying conduct. In Virginia, there is the tort cause of action known as intentional infliction of emotional distress. While this claim is “not favored” in the law and by courts because of the inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury it remains a possibility if the bullying behavior is extreme and the results in provable mental or physical problems for the victim. See Almy v. Grisham, 273 Va. 68, 639 S.E.2d 182 (2007). The elements of intentional infliction of emotional distress are: 1) the wrongdoer's conduct was intentional or reckless; 2) the conduct was outrageous or intolerable; 3) there was a causal connection between the wrongdoer's conduct and the resulting emotional distress; and 4) the resulting emotional distress was severe. See Almy, 273 Va. at 77. It is important to note that this claim gives a potential cause of action against the bully, but not necessarily against the employer. In order to assert an actionable claim against the employer, the bullied employee would need to show that the employer knew or should have known about the bullying and failed to correct it or that the bully was at such a high level of the company (owner, manager, etc.) that the bully’s actions are in fact those of the company. In a claim such as this, an employer failing to follow their own policies or guidelines, while not actionable in and of itself, could be important evidence in finding the employer liable. Another closely linked potential claim against the employer could be negligent retention. See Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268 (1988).

In addition to potential state law claims, a situation involving bullying in the workplace could also rise to the level of implicating federal employment discrimination law. Federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in the Employment Act make it unlawful for employers to discriminate against employees because of protected characteristics such as race, color, religion, sex, national origin, disability and age. These laws also prohibit harassment because of these protected characteristics and/or hostile work environments due to these protected characteristics. Therefore, if an employee is being bullied because of their race, gender, disability, age etc. they potentially have a claim under federal law. The key of course is that the bullying must involve or be based on one of these protected characteristics and not any number of other workplace issues such as performance, cliques, favoritism, or even what you wore to work that day. If you feel you are being bullied at work because of a protected characteristic a key step is reporting the issue to your supervisor and/or the HR department. Here again, whether or not your employer follows their policies and procedures and corrects the problem, while not actionable standing alone, could be an important piece of evidence in a harassment or hostile work environment claim.

We expect bullying in the workplace to continue to be a part of our national conversation and anticipate seeing more efforts both internally at companies and at the state and federal law level to eliminate this behavior. If you feel you are being bullied at your workplace please don’t hesitate to contact us to further discuss your situation. 

Why did they say that about me and what can I do about it?

January 31, 2014

Nobody likes someone talking bad about them. But when ‘trash talk’ costs you your job or, even more importantly, your reputation, what can the law do to protect you?

The Spanish philosopher Baltasar Gracian is quoted as saying “a single lie destroys a whole reputation of integrity.”

In Virginia, the common law has expansive protections against false statements of fact that damage a person in their reputation and, particularly, where it affects someone in their trade, profession or occupation. False statements which impute unfitness to perform the duties of employment or an office, or a lack of integrity in discharging such duties, commission of a crime involving moral turpitude or that impute infection of some contagious disease have all been held to constitute defamation.  It doesn’t matter if the statement is verbal or written, in Virginia, the old libel and slander common law has been consolidated as defamation.

Defamation is the statement of a ‘fact’ which is capable of being shown to be true or false. Where it is proven false, and defamatory, the jury is permitted to determine the amount of damages, in many cases without the necessity to show any dollar loss – the reputational loss itself supports a damage award. These awards may be significant. In Government Micro Resources, Inc. v Jackson, 271 Va. 29 (2006), the Virginia Supreme Court affirmed a $5 million verdict for a defamed company executive’s injury to his personal and business reputation, humiliation and embarrassment, without proof of any actual or monetary loss. The Virginia Supreme Court reaffirmed this principle in a case our firm handled, Askew v. Collins, 283 Va. 482 (2012), which held that a defamed victim may recover damages for per se defamation with no proof of damages suffered by the victim because the fact of damage in this situation is presumed – the jury is to determine the amount.    

In defamation cases it is typical for the speaker of the statements to defend on the legal basis that the statement was not defamation, but rather, was opinion, was true, or was made in protected context. Many of our cases involve employment discrimination, and so we often assist clients with false statements made in the employment context which have also damaged their reputation. Of course, if the statements are defamatory, an employer may be liable for defamation – it doesn’t matter whether the statements occur in the workplace or on a public street.

There are limits to what may be considered defamation and what is a permissible expression of opinion. Pure expressions of opinion are constitutionally protected under the First Amendment, and cannot serve as the basis for a defamation claim. And statements that are relative in nature, depending on the speaker’s viewpoint, are expressions of opinion. However, where false facts are combined with opinion to convey a defamatory message, the statement may fall into unprotected defamation. Where the statement has a “provably false connotation” and is “capable of being proven true or false” the statement may be defamation. Hyland v. Raytheon Tech. Servs. Co., 277 Va. 40 (2009).

The Virginia Supreme Court expanded the breadth of defamation protection in two recently decided cases, Tharpe v. Saunders, 285 Va. 476 (2013) (February 28, 2013), and Cashion v. Smith, No. 121797 (October 13, 2013).

Tharpe involved a statement by a construction company owner to a county administrator that a Fort Pickett contractor had said that, “[he] was going to screw the Authority like he did Fort Pickett.” The defendant construction company owner was sued by the contractor and defended, taking the position that “screw” was relative and was an expression of his opinion – in other words, that “screw” was not provably false or defamatory. The trial court agreed and dismissed the case, finding that what the speaker meant by “screw” was dependent on the speaker’s viewpoint, and thus, opinion. The Virginia Supreme Court disagreed that this barred a defamation claim.

In Tharpe, the Supreme Court held that whether the defendant construction company owner made the quoted statement was provably false or not – and that stated a claim for defamation regardless of the speaker’s view of the word “screw.” The statement was that the defendant made the quoted statement, and that could be demonstrated to be true or false. If false, this stated a claim for defamation.

The Cashion case involved statements made by one physician, a trauma surgeon, to another physician, an anesthesiologist, in the presence of other operating room staff following the operating room death of a patient:

“He could have made it with better resuscitation.”

“This was a very poor effort.”

“You didn’t really try.”

“You gave up on him.”

“You determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him.”

The anesthesiologist, Dr. Cashion, felt that the surgeon, Dr. Smith, had defamed him and sued.  Smith defended on the basis that the statements were expressions of opinion, and not defamation, or, alternatively rhetorical hyperbole. In Virginia, hyperbole, a statement of great exaggeration as a figure of speech, is not actionable defamation. In the lead case on this issue, the Virginia Supreme Court held that calling someone the “Director of Butt-Licking” was not a statement of fact, but of rhetorical hyperbole, and therefore, not actionable as a defamatory statement. Yeagle v. Collegiate Times, 255 Va. 293 (1998). 

The Supreme Court held in Cashion that, while the statements “[t]his was a very poor effort,” “[y]ou didn’t really try,” and “[y]ou gave up on him” were subjective opinion, dependent on the viewpoint of the speaker (and not actionable defamation), the statements “[h]e could have made it with better resuscitation,” and “[y]ou determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him,” attributed the patient’s death to Dr. Cashion, insinuating that he failed to perform some necessary action to save the patient’s life, or acted affirmatively to prevent a life-saving action. The insinuation created by the statements was an assertion of fact capable of being proven true or false. The Court suggested that this proof of truth or falsity, in the context of professional actions, could come in the form of expert testimony. The Supreme Court held that the trial court should not have dismissed the claim as non-actionable defamation and also rejected the defendant’s position that the statements were protected by a qualified privilege. The Supreme Court held that this is a defense that the jury should consider and that the trial court should not have used this as a basis to dismiss the case prior to trial. 

Defamation often comes up in the context of the employment relationship. While there are no Virginia employment laws, per se, addressing defamation in employment, the fact that defamatory statements are made within the employment context does not insulate the statements from the law’s reach. Defamatory workplace statements may still be actionable. As in the doctor case, Cashion v. Smith, there may be a qualified privilege which applies to statements made in the workplace, but the abuse of that privilege, such as with a statement made without good faith, with malice or ill will, made with strong or violate language disproportionate to the occasion or stated too publicly, such as to persons without a duty or interest in the matter, is for the jury to determine.     

As is seen from Virginia Supreme Court’s recent line of cases, Virginia law vigorously protects reputations through the law of defamation. If someone has done damage to your reputation, and your situation meets the elements of Virginia law’s broad protections, the law does not leave you defenseless.

Introductory Blog Post

January 17, 2014

Welcome to our blog! At Butler Royals, PLC, we represent plaintiffs in employment, civil rights, defamation, and related matters. From employment contracts to collective overtime claims, from sexual harassment complaints to challenges to noncompetition/nonsolicitation agreements, we handle all aspects of a case, from preliminary claim investigation through negotiated settlement or trial in state, federal, or administrative courts.

We are proud to be known for our innovative, frequently cutting-edge, approach to litigation. Despite its long history and traditional trappings, the law is not stagnant but, rather, is a living, breathing, rapidly-evolving thing. It is crucial to our practice that we stay abreast of the latest developments in the law. We hope that this blog will serve not only to update readers on recent events at our firm, but to offer information and our opinions on the state of, and changes in, the law that may affect individuals in the workplace and in their everyday lives, as well as legal and societal trends that may inform future developments.  (Of course, our opinions are just that – opinions – and should not be construed as legal advice. All situations have an individualized set of facts that will impact the assessment and potential outcome of a given claim. If you believe, based upon something you read on our site, that you may have a claim, please contact legal counsel for assistance.)

We look forward to sharing our thoughts and observations with you as our practice continues to grow and evolve along with the dynamic field of employment law!

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