Richmond Virginia Personal Injury Lawyer - Virginia Legal News

Age Discrimination Protection-the ADEA

Michael Phelan — Mon, 18 Feb 2008 20:37:56 GMT

Age discrimination is a hot topic these days, with several cases pending for decision by the U.S. Supreme Court. The Age Discrimination in Employment Act (ADEA) protects employees age 40 and older from discrimination in employment based on age. Age discrimination can include discrimination in hiring, promotion, pay, benefits, and discharge. The Act also protects against retaliation for asserting rights under the Act. In the current recessionary climate, there is an uptick of companies being accused of using illegal age factors in trying to reduce costs.

Our experience is that older workers given the pink slip after years of dedicated service are not fired for being poor performers. To the contrary, our age discrimination cases involve top performers and leaders in their companies. Unfortunately, the common thread in many corporate downsizings often is age.

The ADEA provides remedies not just for individuals affected by ageist employment practices, but also for groups or classes of similarly situated persons. It contains specific procedures which allow employees to sue in a collective action to challenge age discriminatory practices. When implementing reductions in force, employers seeking valid releases of age claims must comply with the Older Worker Benefit Protection Act (OWBPA), which requires employers to provide older workers with specific protection during lay-offs. Failure to comply can mean that invalidly obtained releases are not enforceable and will not bar age claims, even where severance benefits have been paid as consideration for the release. In 2002, our firm joined forces with AARP Foundation Litigation to co-counsel in a age discrimination case. The case involved a large group of older employees challenging a reduction-in-force which they allege was effected by means of age based discrimination. In many age cases stemming from reductions in force, one of the issues is "forced rankings," whereby the employer required supervisors to rank employees in anticipation of lay-offs. A pre-determined number of employees were designed to be found not to meet expectations. In many instances, the same workers labeled as "poor performers" to justify the reduction-in-force, had previously been evaluated as meeting or exceeding expectations. One way to ensure that such "forced ranking" situations result in age discrimination is for the employer to assign younger employers to perform the rankings. If you would like additional information about age discrimination laws, please contact us.

Originally posted at InjuryBoard by Michael Phelan

Contingency Fee Commercial Litigation

Michael Phelan — Mon, 04 Feb 2008 10:10:22 GMT

For generations, the hourly billing business model for law firms has forced plaintiffs involved in commercial litigation to pay attorneys by the hour regardless of the outcome of the litigation. A better business model for plaintiffs seeking to hire counsel to initiate business litigation may involve contingency fees, fixed legal fee pricing or a combination of a diminished hourly rate and a partial contingent fee. According to a recent article in LawyersUSA, law firms that are willing to share with the client the risks of commercial litigation are few and far between.

Our contingency commercial litigation division is composed of lawyers who have been designated among the "Legal Elite" by Virginia Business Magazine and honored in the "Best Lawyers in America" and "Virginia Super Lawyers."

We are willing to consider contingent fee arrangements or hybrid arrangements involving diminished hourly rates and a partial contingent fee after a review of the evidence, the law, and a thorough understanding of the client's goals. In many cases, this entrepreneurial sharing of the risks of litigation with the client may be entirely consonant with the client's own goals and resources.

Originally posted at InjuryBoard by Michael Phelan

Collective Wage and Hour Claims for Pharma Sales Reps

Michael Phelan — Sun, 03 Feb 2008 10:07:29 GMT

A number of pharmaceutical companies, including Roache Laboratories, Inc., Abbot Laboratories, Inc., Eli Lilly & Co., Pfizer, Inc., Merck & Co. Inc. and GlaxoSmithKline Plc, are facing wage-and-hour suits filed on behalf of their sales representatives. Our firm recently filed such a case against Solvay Pharmaceuticals Inc. claiming the company failed to pay hundreds of sales representatives overtime pay in violation of the Fair Labor Standards Act. The complaint alleges that all of Solvay's sales representatives were forced to perform extra duties after business hours and on weekends, that Solvay misclassified these sales reps as exempt from overtime pay, and that Solvay willfully refused to pay its reps the overtime pay to which they were entitled. The case is Leslie v. Solvay Pharmaceuticals, Inc. , Case No.: 3:08-cv-19 in the U.S. District Court for the Eastern District of Virginia.

Originally posted at InjuryBoard by Michael Phelan

Butler Williams Wins Important Unpaid Overtime Decision

Michael Phelan — Thu, 31 Jan 2008 21:15:35 GMT

We are pleased to report that, today, our law firm received a favorable Fourth Circuit Court ruling for a client establishing a claim for a company's retaliation against former employees who claim unpaid overtime compensation. The controlling law which requires the payment of overtime for all hours worked over 40 per week, the Fair Labor Standards Act (FLSA), contains separate retaliation protection to "employees" who claim unpaid overtime or minimum wages. This case for our client, Darveau v. Detecon, Incorporated, No. 06-2092 (January 31, 2008), is the first time that the United States Court of Appeals for the Fourth Circuit (covering federal trial courts in Virginia, North Carolina, South Carolina, Maryland and West Virginia) has considered the issue of whether former employees are likewise protected under the overtime law.

Just fifteen days after Mr. Darveau filed suit in federal court for unpaid overtime wages under the FLSA, the company filed another lawsuit in Virginia state court for purported fraud and fraudulent concealment against Mr. Darveau. The company later changed the claims to assert constructive fraud and breach of contract. The court dismissed all of the company's claims against Mr. Darveau. Mr. Darveau alleged that his former employer's state court lawsuit had no merit and was filed in retaliation for his own claim for unpaid overtime wages. The trial court initially decided that Mr. Darveau could not make a retaliation claim for the company's lawsuit against him following his claim for unpaid wages because he was not a present employee. This appellate court decision reverses the trial court decision and returns the retaliation case to the federal court in Alexandria, Virginia, where it will be tried.

Most federal discrimination laws, including Title VII (protection against sex, race, color, national origin, religious discrimination), Age Discrimination in Employment Act (ADEA/ age discrimination), Family and Medical Leave Act (FMLA/ medical and family leave) and Americans with Disabilities Act (ADA/disability) contain separate retaliation protection for those who oppose illegal employment practices or participate in administrative or legal proceedings by making claims or serving as witnesses. The law protects the employee or witness whether the underlying claim is successful or not. In fact, Mr. Darveau did not prevail on his overtime case due to the Court's ruling that he was an exempt administrative employee. However, he could not be retaliated against by a retaliatory lawsuit filed by his former employer. With this decision, the Fourth Circuit sends a strong message that retaliation by employers against employees, including those former employees claiming their entitlement to unpaid overtime, will not be permitted. Former employees continue to have the courts' and the laws' protection against retaliation - even after the employment has ended.

Harris D. Butler, III
Butler Williams & Skilling

Originally posted at InjuryBoard by Michael Phelan

Lockhead to Pay for Racial Discrimination

Michael Phelan — Mon, 07 Jan 2008 10:47:04 GMT

Lockheed Martin Corporation has agreed to pay a former African American employee $2.5 million to settle a racial discrimination case filed by the U.S. Equal Employment and Opportunity Commission. The former employee, a 45 year old aviation electrician, said he was called racial slurs and threatened by four co-workers and a supervisor between 1999 and 2001. When he complained about how the members of his six person team were treating him, managers allegedly told him, "That's just boys being boys, and that's the way it is here at Lockheed."

Originally posted at InjuryBoard by Michael Phelan

Frivolous Tales About Lawsuits

Michael Phelan — Mon, 26 Nov 2007 16:35:47 GMT

The Seventh amendment to the Constitution of the United States says, "In suits at common law...the right to trial by jury shall be preserved." This right has been under attack by so-called tort reformers who want to preserve the right to trial for corporations while restricting it for citizens. One tactic of the tort reform movement has been to devise talking points to scare the public about "frivolous lawsuits." Often, these lawsuits are nothing more than urban myth, created by the propagandists who are trying to scare the public into giving up their Seventh amendment rights.

Examples of such urban myths created to advance the cause of tort reform were reported recently in the Houston Chronicle and include the following false stories: (1) a woman who tripped over her own toddler in a furniture store receiving an $80,000 verdict against the store, and (2) a Winnebago owner named Merv Grazinski set his cruise control on 70 mph, walked to the back of the Winnebago to make a sandwich, crashed, and sued Winnebago for not warning him in the owners' manual not to leave the driver's seat while the cruise control was set. The jury allegedly awarded Grazinski $1.75 million. Neither story ever happened, but a gullible public eats these stories up. Indeed, the New York Daily News, CNN, and U.S. News & World Report simply accepted as true the Winnebago story and reported it as fact. Whatever happened to journalistic integrity? To its credit, the Austin American-Statesman debunked the story of the mom who sued the furniture store after allegedly tripping over her toddler. A Los Angeles Times reporter finally called Winnebago and learned that there was no Grazinsky lawsuit.

The fact is that true frivolous lawsuits, such as the recent administrative judge who sued his dry cleaner, are usually dismissed by judges or rejected by juries. The system works and should be preserved. Imagine the outcry if the Second amendment was under the same propaganda attack. The two amendments are equally important to our freedom.

Originally posted at InjuryBoard by Michael Phelan

Sen. Clinton addresses Lead Poisoning Crisis

Michael Phelan — Wed, 31 Oct 2007 13:04:20 GMT

As part of National Childhood Lead Poisoning Prevention Week, Senator Hillary Clinton today introduced legislation to improve coordination among federal, state and local government agencies, update standards for pre-lease or sale inspections required by the Department of Housing and Urban Development (HUD), and establish pilot projects to target areas of high incidence of lead poisoning in children. The Lead Elimination, Abatement, and Poisoning Prevention Act (LEAPP) will put America closer to reaching the goal of eliminating toxic blood levels in young children by 2010.

"We have made enormous strides in reducing exposure to lead since its use was phased out in gasoline and residential paint more than twenty years ago. However, the Centers for Disease Control and Prevention estimates that there are still hundreds of thousands of children under the age of five at risk of lead poisoning. Recent recalls have underscored the dangers of lead hazards in toys and other products marketed to children. I believe we can and must do more to protect children from lead poisoning," Senator Clinton said.

The LEAPP Act will improve coordination of federal agencies not only around reduction of lead exposures, but overall children's health protection. It will also provide funding to help carry out innovative inter agency interventions at the local level, so that housing, environmental, and public health experts can work together effectively to protect children from lead poisoning. Furthermore, this bill will take steps to improve lead inspections in older housing units, extend federal regulations to cover more homes, and ensure the abatement of lead-based paint hazards when homes are rehabilitated. The LEAPP Act is supported by the National Center for Healthy Housing and the Children's Health Forum.

Despite a ban on lead paint in 1978, there are still over 24 million housing units in the United States that have lead paint hazards. With more homes built before 1950 than any other state, the age of New York's housing stock puts our children at higher risk for contracting lead poisoning in their homes. And, about five percent of children screened for lead poisoning at age two in New York State were found to have elevated blood lead levels, more than twice the national average. Minority and low income children are disproportionately at risk. According to the Centers for Disease Control and Prevention, the rates of African-American infants with elevated blood lead levels were three times that of white infants.

Earlier this year, Senator Clinton sponsored the Home Lead Safety Tax Credit Act. She also joined with her colleagues to introduce legislation to remove lead from child care facilities and to tighten lead safety standards in children's toys and electronics. Senator Clinton also called for more stringent efforts from the Consumer Product Safety Agency to protect children from lead hazards recently found in toys and other children 's products, and asked President Bush to increase the resources devoted to the agency. Let's hope that more politicians recognize this lead poisoning epidemic and decide to serve this population of citizens who are not powerful enough to have a lobby or any influence in Washington.

For more information on this subject, please refer to the section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Michael Phelan

Insurers Cheat Victims-Record Highest Profits Ever

Michael Phelan — Wed, 17 Oct 2007 18:00:20 GMT

Anyone who believes the propaganda from the insurance industry and US Chamber of Commerce about trial lawyers driving insurers out of business should read the excellent article posted October 15 on SunHerald.com about home insurers cheating victims while recording record profits. This article shows that the tort reform movement is a fraud. Even in the wake of Hurricane Katrina, property-casualty insurers, which cover damage to homes and cars, reported their highest-ever profit of $73 BILLION last year.

They accomplished this by routinely refusing to pay market prices for damaged or destroyed homes and replacement contents. They use computer programs to cut payouts; they change policy coverage with out explanation; they alter engineering reports (according to one of their own engineers); and they ask their adjusters to lie to customers (according to a former Allstate adjuster). This sleazy practice apparently kicked into high gear in 1992 when Allstate hired a New York consulting firm, McKinsey & Co., to improve profits. State Farm hired McKinsey shortly thereafter. From 1996 to 2006, Allstate's profits rose 140%. State Farm's profits doubled. Allstate was advised to stop being the "Good Hands People" and to put on the "Boxing Gloves." State Farm became the opposite of "Like a Good Neighbor."

How on earth did our Chamber of Commerce get to the point where its primary purpose is to attack the public's constitutional right to trial by jury? The answer is the Chamber is the pawn of an industry that has adopted lying, cheating and stealing as its business plan. Just read the SunHerald article.

Originally posted at InjuryBoard by Michael Phelan

How to Save Hundreds of Dollars on Auto Insurance

Michael Phelan — Mon, 17 Sep 2007 09:16:18 GMT

Thanks to a tip from fellow injuryboard blogger, Ben Glass, I recently contacted my automobile insurer to report that my eldest child matriculated from his high school and is now attending college. When our auto insurer learned that my son would not have a car on campus, it lowered our annual premiums by almost $700.00. My son is still an insured driver on our policy, but the carrier now deems him a much lower risk because he does not have a family vehicle available for his regular use. If you have a child who is away from home without a vehicle, report this to your auto insurer. You may save $500.00 to $1,000.00 on your annual premium.

For more information on this subject matter please refer to the section on Car and Motorcycle Accidents.

Originally posted at InjuryBoard by Michael Phelan

Don't Buy Chinese-Made Products

Michael Phelan — Tue, 26 Jun 2007 11:15:31 GMT

I favor free-trade and don't consider myself to be an isolationist, but enough is enough. First we learn that Chinese-made ingredients in pet food are killing our pets. Next we learn that Chinese-made toothpaste is toxic. Recently, we learned that Thomas the Tank Engine toy trains contain enough lead paint to cause permanent brain damage to toddlers who might chew on the toys. Now, the National Highway Traffic Safety Administration reports that Chinese tire manufacturer, Hangzhou Zhongce, is intentionally making dangerous tires. The Chinese company admits that in November 2006 it decided to omit gum strips in the tires which are designed to prevent the tires from separating.

The National Highway Traffic Safety Administration is outraged that an American company that imports these tires waited more than two years to report its suspicion that Hangzhou Zhongce Rubber eliminated the gum strips from the manufacturing process. A lawsuit filed in May alleges that an accident caused by tread separation in a Hangzhou tire killed two construction workers and severely injured a third when a van rolled over. The New York Times also reports on an earlier incident in which an ambulance rolled over after its Chinese-made tire tread separated. Our federal authorities characterize the Chinese manufacturer as being "generally unresponsive" when asked how many tires were made without the gum strips. The federal government either does not have the authority or the will to protect us from unreasonably dangerous Chinese products. I've even heard reports that Chinese green tea is made with tea leaves that have been dried by spreading them on the floor of a wharehouse and driving trucks over them, using the truck exhaust as the drying mechanism. The Chinese still use leaded gasoline! The solution is for consumers to be vigilant and buy American!

For more information on this subject, please refer to our section on Defective and Dangerous Products.

Originally posted at InjuryBoard by Michael Phelan