Virginia Becomes First Southern State to Ban Hair Discrimination

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By:  Jayna Genti

During the 2020 legislative session, Virginia became the first southern state not only to ban LGBTQ discrimination, but also bar hair discrimination across the Commonwealth. This makes Virginia the fourth state behind California, New York, and New Jersey to do so.  As reported in the March issue of the Mid-Atlantic Employment Law Letter, Montgomery County, Maryland (but not the state itself) also has prohibited discrimination based on a person’s hairstyle.

The New Law

The new Virginia law specifically expands the Virginia Human Rights Act (VHRA) to prohibit discrimination based on characteristics historically associated with someone’s race and/or culture.  Under the new law, discrimination “because of race” or “on the basis of race” will now encompass bias that stems from “traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”

The reason for the law is simple according to Delegate Delores McQuinn, who sponsored the legislation, “A person’s hair is a core part of their identity. “Nobody deserves to be discriminated against simply due to the hair type they were born with, or the way in which they choose to wear it. The acceptance of one’s self is the key to accepting others.”

In signing the legislation into law, Virginia Governor Ralph Northam echoed Ms. Quinn’s remarks: “It’s pretty simple—if we send children home from school because their hair looks a certain way, or otherwise ban certain hairstyles associated with a particular race—that is discrimination.”  The Governor added: “This is not only unacceptable and wrong, it is not what we stand for in Virginia. This bill will make our Commonwealth more equitable and welcoming for all.”

Who’s Covered and When

Like other laws passed in the 2020 General Assembly session, the ban on hair discrimination will take effect on July 1.  Although the VHRA currently applies only to employers with six to14 employees, that limitation also will change as of July 1, 2020.  Under the Virginia Values Act, also passed by the Virginia General Assembly this term, the reach of the VHRA now will cover all employers with six or more employees.

Ensuring Compliance

To make sure you are in compliance with the new law banning hair discrimination, you should act now to assess your workplace grooming and dress standards.  You still continue to enforce non-discriminatory appearance and grooming policies, but make sure those policies don’t prohibit certain types of hairstyles, such as braids, locks and twists.  If you do, you could be charged with using those policies as a proxy for, or to facilitate, discriminatory practices, such as gender or racial discrimination.

An exception may arise if restrictions on hairstyle choices are necessary for certain specific safety reasons.  But, even if you need to maintain certain grooming standards for safety reasons, be careful in the wording of the standard. For example, if long hair poses a safety hazard in the workplace, avoid listing specific types of hairstyles that pose a risk.  Instead, simply state that hair must be shorter than a certain length or secured at all times.

Determining whether you have crossed the line in imposing certain grooming and appearance standards can be tricky to determine.  When in doubt, it always is a good idea to consult with experienced employment counsel to assist you in charting this new and uncertain area of the law.

Jayna Genti is an associate in the office of DiMuroGinsberg, P.C.  She can be reached at jgenti@dimuro.com.

New Virginia Law Significantly Broadens Whistleblower Protection

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By Stacey Rose Harris

On July 1, 2020, never-before-seen protections for whistleblowers will take (took) effect in Virginia.  Prior to the enactment of Virginia’s new “Whistleblower Law,” workers had little recourse if their employer terminated them for reporting illegal or improper activity in their workplace.  Previously, their protection had been limited to a few narrow statutory protections and limited common law exceptions to doctrine employment-at-will doctrine.

What Is Protected

Now, the new Whistleblower Law provides broad protections where an employee:

  • makes a good faith report of a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
  • is an employee who is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
  • refuses to engage in a criminal act that would subject the employee to criminal liability;
  • refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; and
  • provides information to, or testifies before, any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

What Is Excluded

The Whistleblower Law, however, does not give employees a blank check.  Importantly, the law does not protect an employee:

  • who discloses information that is otherwise protected by law or privilege;
  • who makes false statements that the employee knows, or should know, are not true; and
  • who makes disclosures that violate state or federal law or impair any person’s legally-protected right to confidentiality.

Legal Actions

If an employee is discriminated or retaliated against for engaging in protected activities, the employee must bring a claim within a year of the wrongful action.  The Whistleblower Law applies only to private-sector employers.  Employees of the Commonwealth or its localities who “blow the whistle” already are protected by state law.  Remedies available under the new statute include reinstatement, back pay, lost benefits, and, significantly, attorneys’ fees and costs of bringing the action.

Take Away

All private employers in Virginia should take note of these new worker rights.  Make sure that your managers and supervisors are aware of these developments and even better, document your education efforts as to these changes.  Moreover, if your supervisors or managers recommend that an employee should be disciplined, ask the necessary questions to make sure that the employee cannot claim that he or she was disciplined for engaging in protected activity.  The last thing you want is to run afoul of the rights created by the new Virginia Whistleblower Law.

Virginia Poised to be First in the South to Enact LGBTQ Protections

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By:  Jayna Genti

While the Supreme Court is still considering whether Title VII of the 1964 Civil Rights Act applies to lesbian, gay, bisexual, and transgender employees across the nation, the Virginia legislature has moved forward to provide legal protections under state law for this group of Virginians.

By doing so, Virginia will become the first state in the South to enact comprehensive anti-discrimination legislation protecting LGBTQ individuals.  The Virginia Values Act would prohibit discrimination on the basis of sexual orientation and gender identity in housing, employment, credit transactions, and public accommodations.  The legislation also prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran – some of which already find protection under existing state law.

Who is Affected by the New Law?

The Act affects private employers with six or more employees.  All state and local government employees and school board employees also will be covered under the law.  In addition to prohibiting LGBTQ discrimination, the Act will allow individuals to pursue lawsuits over alleged discrimination.  Those entities “engaged in a pattern or practice of resistance” to the rights guaranteed by the new law also will be subject to suit by the Virginia attorney general’s office.

Importantly, the Virginia Values Act amends the state’s Human Rights Act to allow suits for unlawful discrimination in public accommodations, such as movie theaters, hotels and motels, and other commercial establishments open to the public.  Under current law, there is no cause of action for discrimination in public accommodations.

When the Law Will Take Effect

The Act has strong bipartisan support, and is expected to make it through both the House of Delegates and the Senate before the current regular legislative session adjourns on March 7, 2020.  Governor Ralph Northam has publicly supported the legislation: “It’s past time we protected LGBTQ Virginians from discrimination under the law. This bill will make us stronger and more inclusive of all — I’m proud to support it.”  Thus, Governor Northam is expected to sign the Virginia Values Act within a week after being presented to him.  The new law will take effect July 1, 2020.

Significance of the New Law

Advocates have praised the passage of what they called urgently needed landmark human rights legislation.  “It’s important to know that discrimination is still happening in Virginia. It is time to drive it out,” bill sponsor Senator Adam Ebbin said at a press conference.

Some of Virginia’s largest employers, including Capital One, Dominion Energy and Verizon, also have backed the legislation.  “Passing a comprehensive nondiscrimination law isn’t just the right thing to do – it’s crucial to the state economy,” those companies and more than two dozen others wrote in a letter to legislative leaders. “Because many LGBTQ and non-LGBTQ workers prefer to live and work in communities with nondiscrimination protections,” the companies said, “such a law will give Virginia’s employers tangible advantages in recruitment and retention.”

Opponents have raised concerns about the legislation’s potential impacts on religious freedom.  GOP Senator Jill Vogel, however, said she thought provisions of the Act sufficiently addressed concerns about religious liberty and that she was proud to vote for it.  “I can assure you that if we embrace equality and protect everybody equally under the law, we will be a better community,” Ms. Vogel said as she voiced her support on the floor of the Virginia Senate.

Steps for Compliance

At this point, there are two steps that you can take to be prepared for the new legal protections for LGBTQ employees.  First, review your non-discrimination policies to see whether they state that discrimination on the basis of a person’s LGBTQ status is strictly prohibited.  If you are a federal contractor, you already may have such a policy in place as part of your contract obligations.  If not, it probably is wise to consult with experienced employment counsel to assist you in drafting a policy that complies with the new Virginia law.

Second, conduct training sessions for your supervisors and managers to alert them to their legal obligations to ensure that no adverse action is taken against an employee on the basis of that individual’s LGBTQ status and that the work environment is free of jokes, comments, or other actions that could constitute harassment against LGBTQ workers.  Remember, come July 1st, harassment on the basis of LGBTQ status will be just as illegal under state law as sex or racial harassment.  To underscore the seriousness of the issue, you may want to have your employment attorney conduct the training with you.

It always is best to be prepared well ahead of time for any change in the law, and this especially is true when dealing with this fast evolving area of legal rights for LGBTQ individuals.

Payroll Protection Plan Fraud Follow-Up

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By M. Jarrad Wright

The U.S. Department of Justice (“DOJ”) has begun to shift its response to the COVID-19 crisis away from price gauging cases to financial crimes – namely attempts to defraud the federal government’s various relief programs, including the Payroll Protection Plan (“PPP”) which was established as part of the larger Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).  While the CARES Act and PPP provided billions of dollars of economic stimulus and relief to millions of people throughout the country, the relative speed of the programs and the large amounts of dollars involved made such programs targets for fraudulent claims.

In an attempt to identify such claims, the DOJ recently announced that it is using data analytics technology to help identify and investigate individuals and businesses who have made false statements to defraud the government and/or banks. The DOJ has charged fraud cases in several cases around the country involving PPP fraud. These cases include a Texas man who allegedly sought millions of dollars in PPP loans by certifying that he had a business of 250 employees when allegedly no employees worked for his business. In another case, an Arkansas man was alleged to have sought approximately $8 million in PPP loans from multiple banks by providing fraudulent payroll documentation.

While cases involving millions of dollars are headline grabbing, it should be noted that the DOJ has begun looking into cases involving smaller dollar figures. For example, on June 16, 2020, the DOJ charged an Illinois man for allegedly submitting false and fabricated IRS forms and other documents that allegedly overstated payroll amounts in order to obtain a loan of approximately $441,000. According to the DOJ, a comparison between the IRS forms submitted to the bank for the PPP loan and the actual forms at the IRS showed significant differences.

The PPP loan applications require companies and individual to make a variety of certifications such as certifying need for the loan monies but also require presenting significant documentation. While the Small Business Association stated that loans in amounts of less than $2 million “will be deemed to have made the required certification concerning the necessity of the loan request in good faith,” the government investigators are going to continue to pursue other potential sources of fraud including false documentation.

In the weeks and months ahead, the DOJ is likely to continue to investigate such fraudulent cases and then begin to shift its focus into more complex financial fraud cases and more complex violations of certifications made in the PPP loan process. These cases are likely to arise in a variety of contexts and may arise in a variety of ways including referrals from banks, the SBA, even qui tam relaters under the False Claims Act or through the DOJ’s data analytics. Business involved in such cases will likely be faces charges ranging from bank fraud to wire fraud, as well as significant civil liability exposure.

‘sDiMuroGinsberg has years of experience involving complex criminal and civil litigation.  This includes defending people accused of healthcare fraud and pursuing False Claims Act cases.  DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

 

Virginia Pregnancy Protections in the Workplace: What You Need to Know

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By: Zachary Deubler

During its 2020 legislative session, the Virginia General Assembly passed a slew of measures providing your employees new and expended workplace protections, while also enhancing the mechanisms by which employees may seek to bring claims against their employers for violating the newly enacted laws. As we discussed at our June 2, 2020 Webinar, these new measures included new protections for LGQBT workers, prohibiting non-competes for “low-wage” workers, and significant increases in Virginia’s minimum wage.

 

Easily lost in these new sweeping measures are the recently strengthened prohibitions on discrimination in the workplace based on pregnancy and pregnancy-related conditions. The Virginia Human Rights Act, similar to Federal law, has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” However, the new legislation known as the Virginia Values Act (VVA) goes much further and creates a private cause of action for discrimination related to these conditions and requires accommodations akin to the process under the federal Americans with Disabilities Act (ADA).

 

Who Is Covered by the VVA and Employee’s Right to Sue?

 

The VVA applies to all employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

 

The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy related conditions. For example, an employer that refuses to allow an employee who has been on maternity leave to return to her previous/equivalent position with equal seniority, pay, and other benefits may be found to have engaged in an “adverse action” against the employee.

 

The statute of limitations for filing a lawsuit alleging a violation of the VVA is two years from the date of the unlawful act.  Alternatively, if the employee files a charge of pregnancy discrimination with the Virginia Human Rights Commission or a local human rights agency within two years, the employee can file a lawsuit within 90 days from the final disposition of the charge.  Relief may include: up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.

 

What Are The New Reasonable Accommodations?

 

The VVA defines “reasonable accommodations” as including:

 

  • frequent or longer bathroom breaks,
  • breaks to express breast milk and access to a private location other than a bathroom for the expression of breast milk,
  • acquisition or modification of equipment or access to or modification of employee seating,
  • a temporary transfer to a less strenuous or hazardous position, and
  • assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and unpaid leave to recover from childbirth.

 

As to unpaid leave, the new law states that an employer cannot “require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee.”

 

New Proactive Notification Requirement

 

All covered employers must inform employees about the reasonable accommodations and non-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees as well as in any employee handbook. The same information must be provided to any employee, within 10-days, who gives notice of her pregnancy and any new employees during their on-boarding process.

 

Undue Hardship

 

An area particularly ripe for future litigation is an employer’s claim that an accommodation to a pregnant employee need not be provided because it would be an undue hardship. This exception is similar to that found in the ADA.  Primarily, there are three general factors that can determine whether an accommodation would create an “undue hardship” for the employer: (1) the size of the employer; (2) the nature and cost of the accommodations requested; and (3) nature of the employer’s operation.

 

DiMuroGinsberg Is Here To Help

 

What should you do to make sure that you are in compliance with the VVA and all the other important law mandates that the General Assembly enacted this year:

 

First, if you were not able to join us on June 2, we encourage you to watch our free webinar for employers on the recent changes made by the General Assembly available here.

 

Second, inform your employees of their rights under the VVA, as discussed above;

 

Third, review your existing employee policies and procedures to ensure that they are in accord with your new obligations under the VVA; and

 

Fourth, when in doubt, consult with experienced employment counsel to ensure that your operations and actions do not give rise to a discrimination charge or lawsuit.

 

The attorneys at DiMuroGinsberg are here to assist you in navigating the complexities of the new legal landscape.  We represent employers in Virginia federal and state courts, as well as before federal and state administrative agencies. We also help employers prevent problems from arising by providing employment law compliance counseling, advice and training.

 

Our employment law practice group is led by Jonathan R. Mook, who has over 30 years of experience in employment law and is a nationally recognized authority on the Americans with Disabilities Act. He is the author of two treatises on the ADA published by Matthew Bender Company. Mr. Mook is a frequent lecturer on employment law issues and is a co-editor of the Mid-Atlantic Employment Law Letter published by BLR.

 

If you are in need of advice or representation, please do not hesitate to contact our firm for more information about our employment law services.

 

Virginia Criminal Law Update: What Changes Came as of July 1?

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By Zachary Deubler
DiMuroGinsberg, P.C.

In Virginia, the 2020 legislative session brought about some of the largest criminal justice reform measures we have seen passed into law in the Commonwealth for decades. Indeed, these reforms were largely spurred on by criminal justice advocates who took issue with Virginia’s trial-by-ambush approach and the perceived over-criminalization of certain types of behaviors.

The Criminal Practice Group at DiMuroGinsberg has compiled a noncomprehensive list of some of the major legislative changes that may have the biggest impact on both Criminal Defendants and Criminal Practitioners throughout Virginia.

Discovery Reform:

One of the most anticipated changes can be found in the reform of the criminal discovery process. Changes in Rules 3A:11 and 3A:12 were approved by the Supreme Court of Virginia in September 2018 with a 2019 effective date, but implementation was delayed for a year to allow for assessment of the impact of police body camera evidence.

Under the recent rule changes, defense attorneys are given access to witness statements and police reports; before the rule change, the procedure to obtain a copy—if one was given at all—varied by jurisdiction. The amendments also provide for reciprocal exchange of witness lists and include a recommendation that defense lawyers provide expert witness information, now required only of prosecutors.

Moreover, H.B. 813 further indicates that discovery shall be provided within a reasonable amount of time before trial, but that in no case shall it be provided later than (i) 14 days before trial for a misdemeanor in circuit court, (ii) 30 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of 30 years or less, or (iii) 90 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of more than 30 years. The bill also provides a mechanism for redaction of certain personal identifying information and creates a procedure for either party to move the court to enter a protection order with regard to discovery. Finally, the bill grants the court the ability to impose various remedies it deems just if a party fails to comply with any of the requirements.

Crimes

In addition to changing discovery disclosure procedures, the Virginia legislature also took substantial steps in changing/modifying substantive criminal offenses—including changes in the direct and collateral consequences of some crimes. These changes range from the relatively small increase in the Reckless Driving speed limit, to the larger decriminalization of simple possession of marijuana. Of particular importance and a potential game changer, is the ability of defense counsel to inform prospective jurors, during the voir dire, of the range of punishment for a given offense if they should return a guilty verdict. This change in the law is an important first step towards eliminating the “trial penalty” in criminal cases within Virginia.1

  • H.B. 618\ S.B. 179—Hate crimes; gender, disability, gender identity, or sexual orientation; penalty.
    • Adds gender, disability, gender identity and sexual orientation to the categories of victims whose intentional selection for a hate crime involving assault, assault and battery, or trespass for the purpose of damaging another’s property results in a higher criminal penalty for the offense. The bill also eliminates the mandatory minimum terms of confinement for such hate crimes.
  • H.B. 660\ S.B. 286—Deferred dispositions; property crimes; larceny and receiving stolen goods.
    • Provides that a court upon such plea, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him/her on probation subject to terms and conditions for a first offense misdemeanor larceny, provided such person has not previously been convicted of any felony or had a prior deferred disposition for the same offense.
  • H.B. 885—Reckless driving; exceeding speed limit.
    • Raises the threshold for per se reckless driving for speeding from driving in excess of 80 miles per hour to driving in excess of 85 miles per hour. The threshold for per se reckless driving for speeding for driving at or more than 20 miles per hour in excess of the speed limit remains unchanged.
  • H.B. 972\ S.B.2—Possession and consumption of marijuana; penalty.
    • Decriminalizes simple marijuana possession and provides a civil penalty of no more than $25. The bill provides that any violation of simple possession of marijuana shall be charged by a summons in form the same as the uniform summons for motor vehicle law violations and that no court costs shall be assessed for such violations. The bill also provides that a person’s criminal history record information shall not include records of any charges or judgments for such violations and records of such charges or judgements shall not be reported to the Central Criminal Records Exchange. The bill defines “marijuana” to include hashish oil and creates a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use. The bill also (i) makes records relating to the arrest, criminal charge or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances; (ii) prohibits employers and educational institutions from requiring an applicant for employment or admission to disclose information related to such arrest, criminal charge, or conviction; and (iii) prohibits agencies, officials, and employees of the state and local governments from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning such arrest, criminal charge, or conviction. When there is an acquittal, a nolle prosequi is taken, or the charge is otherwise dismissed, the bill allows the person charged with the civil offense to file a petition requesting expungement of the police records and court records related to the charge.
  • H.B. 995\ S.B. 788—Grand larceny; threshold.
    • Increases from $500 to $1,000 the threshold amount of money or value of goods or chattel taken at which the crime rises from petit larceny to grand larceny. The bill increases the threshold by the same amount for the classification of certain property crimes.
  • S.B. 64—Paramilitary activities; penalty.
    • Provides that a person is guilty of unlawful paramilitary activity if such person brandishes a firearm or any air or gas operated weapon or any object similar in appearance while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons. Such unlawful paramilitary activity is punishable as a Class 5 felony.
  • S.B. 144—Protective orders; issuance upon convictions for certain felonies; penalty.
    • Authorizes a court to issue a protective order upon convicting a defendant for an act of violence and upon the request of the victim or the attorney for the Commonwealth on behalf of the victim. The bill provides that the duration of such protective order can be for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The bill provides that a violation of a protective order issued upon a conviction for an act of violence is punishable as a Class 1 misdemeanor.
  • H.B. 34—Refusal of tests; restricted license.
    • Allows a person convicted of a first offense of unreasonable refusal to have samples of his breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license.

Criminal Procedure

  • H.B. 100\ S.B. 325—Voir dire examination of persons called as jurors; criminal case.
    • Allows the court and counsel for either party in a criminal case to (i) ask potential jurors any relevant questions to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case and (ii) inform any potential juror as to the potential range of punishments to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
  • H.B. 909\ S.B.513—Driver’s license suspensions for certain non-driving related offenses.
    • Removes the existing provisions that allow a person’s driver’s license to be suspended (i) when he is convicted of or placed on deferred disposition for a drug offense, (ii) for non-payment of certain fees owed to a local correctional facility or regional jail, and (iii) for shoplifting motor fuel.
  • H.B. 1196\ S.B. 1—Suspension of driver’s license for nonpayment of fines or costs.
    • Removes the requirement that a court suspend the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs.
  • H.B. 1462—Admission to bail; rebuttable presumptions against bail.
    • Eliminates the provision prohibiting a judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of an attorney for the Commonwealth.
  • H.B. 1522—Forfeiture of property used in connection with the commission of crimes; finding of guilt required.
    • Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced.
  • S.B. 439—Driving under the influence; remote alcohol monitoring; penalty.
    • Provides that in the case of an adult offender’s first conviction of driving under the influence when the offender’s blood alcohol content was less than 0.15, upon motion of the offender, the sole restriction of the offender’s restricted driver’s license shall be the prohibition of the offender from operating any motor vehicle not equipped with a functioning, certified ignition interlock system for one year without any violation of the ignition interlock system requirements.
  • S.B. 667—Arrest and prosecution when experiencing or reporting overdoses.
    • Provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance; possession of marijuana; intoxication in public; or possession of controlled paraphernalia if (i) such individual (a) seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, or (b) is experiencing an overdose and another individual seeks or obtains emergency medical attention for him; (ii) such individual remains at the scene of the overdose or at any location to which he or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
  • H.B. 744— Sentencing of juvenile tried as adult.
    • Provides that a court, in the case of a juvenile tried as an adult and convicted of a felony, may depart from any mandatory minimum sentence required by law and suspend any portion of an otherwise applicable sentence.

Firearms

  • H.B. 2\ S.B. 70—Firearm sales; criminal history record information checks; penalty.
    • Requires a background check for any firearm sale. A person who sells a firearm to another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill also provides that a purchaser who receives a firearm from another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill removes the provision that makes background checks of prospective purchasers or transferees at firearms shows voluntary.
  • H.B. 9—Reporting lost or stolen firearms; civil penalty.
    • Requires that, if a firearm is lost or stolen from a person who lawfully possessed it, such person shall report the loss or theft of the firearm to any local law-enforcement agency or the Department of State Police within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft.
  • H.B. 674\ S.B. 240—Firearms; removal from persons posing substantial risk; penalties.
    • Creates a procedure by which any attorney for the Commonwealth or law-enforcement officer may apply to a general district court, circuit court, or juvenile and domestic relations district court judge or magistrate for an emergency substantial risk order to prohibit a person who poses a substantial risk of injury to himself or others from purchasing, possessing, or transporting a firearm.
  • H.B. 812\ S.B. 69—Purchase of handguns; limitation on handgun purchases; penalty.
    • Prohibits any person who is not a licensed firearms dealer from purchasing more than one handgun in a 30-day period and establishes such an offense as a Class 1 misdemeanor.

1 See Generally The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018) available at: https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct

“Ancient Gesture of Insult” Does Not Justify Traffic Stop

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By Stacey Rose Harris
DiMuroGinsberg, P.C.

Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.

Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.

Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).

DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.

Americans with Disabilities Act Recent Case Law Developments

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By Jonathan R. Mook, Esq.
DiMuroGinsberg, P.C.

Title I – Employment Provisions

Is Plaintiff Actually Disabled Under ADA?

In order to have an actual disability cognizable under the Americans with Disabilities Act, an individual must be able to demonstrate that he or she has a physical or mental impairment that substantially limits a major life activity. Merely having an impairment, even a permanent one, is not sufficient, as the Eleventh Circuit Court of Appeals explained in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019). In that case, the court considered whether a police officer who had suffered a heart attack that left her with a permanent injury to her heart was disabled under the ADA. The court concluded that she was not because the only limitation resulting from the officer’s heart impairment was a periodic shortness of breath.

Broad Construction of Disability

In passing the ADA Amendments Act in 2008, Congress sought to broaden the interpretation of the definition of disability and to increase the number of individuals protected by the statute. Thus, in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), the Sixth Circuit Court of Appeals held that an employee had presented sufficient evidence to raise a fact question for the jury as to whether she was disabled under the amended ADA. The employee suffered from a number of back impairments, and after working an eight to twelve-hour shift, she had difficulty walking, standing, lifting and bending and experienced pain constantly. The employee testimony was supported by that of the employee’s daughter, who reaffirmed her mother’s limitations. The Sixth Circuit said that because the ADA Amendments Act requires that coverage under the statute is to be construed broadly, the employee had presented sufficient evidence for her case to be heard by the jury.

Regarded as Disabled

Even if an individual does not come within the definition of having an actual disability under the ADA, the person still may be protected by the statute if the employer regards the person as disabled. That was the case in Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019) in which the Eleventh Circuit Court of Appeals held that a police officer who had suffered a heart attack had raised a jury issue as to whether her employer had regarded her as disabled by placing her on leave without pay due to concerns about her heart condition.

Qualified Individual with a Disability

Not every person who has an ADA disability is entitled to the statute’s protections. The individual must be a qualified individual with a disability, that is a person who, with or without reasonable accommodation, can perform the essential functions of the job. What constitutes a job’s essential functions was the subject of the Fifth Circuit Court of Appeals’ decision in Clark v. Champion Nat’l Sec., 947 F.3d 275 (5th Cir. 2020). The case involved a diabetic employee, who would fall asleep at his desk during the work day. Since the employee’s job was to perform uniformed security services, the court held that the employee was not qualified because maintaining consciousness is a basic element of any job.

Retaliation

It is unlawful to retaliate against a disabled employee for seeking a reasonable accommodation. That principle was reaffirmed by the Sixth Circuit in Morrissey v. Laurel Health Care Co., 943 F.3d 1032 (6th Cir. 2019), where a former employee claimed that her employer had targeted her to work a twelve-hour shift even though she had been medically restricted from doing so because the employee had requested a reasonable accommodation consistent with her medical restrictions. The circuit court said that the employee’s requests for an accommodation constituted protected activity, and the employer’s refusal to adhere to the employee’s medical restrictions was retaliatory and unlawful.

Reasonable Accommodation

An employee need not use any magic words such as “ADA” or “reasonable accommodation” to trigger the ADA reasonable accommodation interactive process with the employer. That principle was highlighted by the Eighth Circuit in Garrison v. Dolgencorp., 939 F.3d 937 (8th Cir. 2019), where the court held that an employee had made a sufficient request for a reasonable accommodation when the employee informed her employer that she suffered from depression and anxiety and made it clear that she was seeking a leave of absence due to her medical condition.

Title III – Public Accommodations and Commercial Facilities

What is a Disability Under Title III?

Learning disabilities are covered under Title III of the ADA. That is the case even though an individual diagnosed with a learning disability is able to achieve academic success. That was the situation in Ramsay v. Nat’l Bd. of Med. Examiners, 2019 U.S. Dist. LEXIS 222782 (E.D. Pa. Dec. 31, 2019)where the federal district court for the Eastern District of Pennsylvania held that a medical student who had been diagnosed with ADHD was disabled despite her prior academic successes and her performance on standardized tests.

Are Websites Covered by Title III?

In Thurston v. Midvale Corp., 2019 Cal. App. LEXIS 830 (Cal. App. Sept. 3, 2019), the California Court of Appeals ruled that Title III of the ADA applies to a restaurant’s website and that the restaurant was obligated to make its website compliant with the Web Content Accessibility Guidelines under both Title III of the ADA and California state law.

Service Animals

As an accommodation under Title III of the ADA, a public accommodation may need to alter a no dogs allowed policy to allow an individual with a disability to be accompanied by a service animal. In Matheis v. CSL Plasma, Inc., 936 F.3d 171 (3rd Cir. 2019), the Third Circuit Court of Appeals held that it would be for a jury to determine whether a plasma donation center was obligated to alter its no animals policy to allow a patient who suffered from anxiety to be accompanied by her service animal.

Franchisor/Franchisee Liability

If a franchisee is sued for its failure to remove architectural barriers, can the franchisor be sued too? In most cases the answer is no because the franchisor had no specific control over the franchisee’s accessibility to the disabled. This was the outcome in Sullivan v. Doctor’s Assocs. LLC, 2020 U.S. Dist. LEXIS 11562 (S.D.N.Y. Jan. 17, 2020), where the federal district court for the Southern District of New York dismissed a franchisor as a defendant in a Title III lawsuit alleging that the franchisee had failed to remove architectural barriers. In doing so, the district court reasoned that the plaintiff merely alleged that the franchisor exerted “general control” over the franchisee’s restaurant, but had failed to allege any facts to show that the franchisor specifically controlled the restaurant’s accessibility.

Jonathan R. Mook, Esq.; DiMuroGinsberg, P.C. Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a co-editor of the Mid-Atlantic Employment Law Letter and is a regular contributor to several legal publications, including Bender’s Labor & Employment Bulletin. He is included in Best Lawyers in America (2019 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.

The ADA Thirty Years Later: An Interview with Jonathan R. Mook

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By Corey Pray
DiMuroGinsberg, PC
This year marks the 30th anniversary of the Americans with Disabilities Act (ADA). The enactment of the ADA in 1990 was a major step forward for persons with disabilities in the United States, many of whom faced significant forms of discrimination in the workplace. Corey Pray spoke with Jonathan R. Mook, a partner at DimuroGinsberg and nationally recognized authority on the ADA, about the development of the ADA and its continuing positive impact for both persons with disabilities and employers. Mr. Mook is also the author of two treatises published by Matthew Bender Company, “Americans with Disabilities Act: Employer Rights and Employee Obligations” and “Americans with Disabilities Act: Public Accommodations and Commercial Facilities.”

Q: How did you become interested in the ADA?

A: About 30 years ago, when I was practicing employment law, Congress was considering passage of a statute that would provide legal protections for persons with disabilities in the private sector along the lines of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, age, national origin, etc. I knew at that point it was clear that legislation which had been talked about in the past was probably going to get passed and would have incredible ramifications for the country by imposing new obligations on employers and other entities. I started reading up on the ADA and discrimination law. At that time, a federal statute still in existence today, the 1973 Rehabilitation Act, accorded protections for persons with disabilities who worked for the federal government, government contractors, or entities who receive federal funding. The statute, however, applied to a more limited scope of employers, so the ADA was going to pick up on the protections in the Rehabilitation Act and apply them to all private employers of 15 or more employees. At the time, I was considering that the ADA would probably become law. I was fortunate to get a contract with Matthew Bender, which now operates as a division of LexisNexis, to write a law book about the ADA, the manuscript of which would be due within a year or so of the ADA’s enactment. I started researching the ADA, the status of people with disabilities, and the reasoning for the legislation, which was all incorporated into the book I wrote.

Q: Before the ADA, what was the status of people with disabilities in the United States? What sparked efforts in the late 1980s to create and pass the ADA?

A: The period during which the ADA was passed was a remarkable time because both Republicans and Democrats were in agreement that there was widespread discrimination against people with disabilities in our society. We were really ignoring a great resource for our country both in terms of people with disabilities becoming more employable and participating more fully in society. Legislation was needed to combat the myths and stereotypes against people with disabilities, and overall would make our country a much more productive place if enacted. In 1990, during the presidency of George H.W. Bush, a coalition of Republicans and Democrats, including Ted Kennedy and Bob Dole, the latter of whom had a war injury to his arm, all came together to pass the ADA. The ADA was passed in spring 1990 with overwhelming bipartisan support in both the House and Senate, and a signing ceremony took place on the White House lawn on July 26, 1990. July 26, 2020 will be the 30th anniversary of that signing ceremony. The ADA was a remarkable piece of legislation, one that had been fought for by disabilities advocates for many years and represented a great triumph for the legislative process. It had great buy-in by the business community, who understood that persons with disabilities have many talents that we have overlooked and with reasonable accommodations they could participate in society and help society grow.

Q: The ADA is a sizable piece of legislation. Can you describe, in your opinion, its most important provisions?

A: At its core, the ADA requires all private employers of 15 employees or more to (1) not discriminate against persons with disabilities and (2) make reasonable accommodations for persons with disabilities to enable them to work. These were strong add-ons to traditional non-discrimination statutes, particularly Title VII. The ADA introduced these general concepts of non-discrimination and reasonable accommodation. It was the responsibility of the enforcement agencies, most frequently the Equal Employment Opportunity Commission (EEOC), to write regulations to enforce the ADA. The regulations were promulgated in 1991, exactly one year after the ADA was enacted. The Act took effect in 1992 for larger employers and in 1994 for smaller employers which included employers of 15 or more.

Q: Turning to how the ADA is applied, how has this played out in the courts?

A: While the EEOC is responsible for issuing regulations, in a granular fashion it is left up to the courts to apply the ADA in specific situations. Who is disabled? The statute and regulations say a person is actually disabled if he or she has a “physical or mental impairment that substantially limits one or more major life activities.” This is a broad definition. Additionally, the definition encompasses having a record of disability or regarded as having a disability, so even if you do not have a disability but an employer thinks you do and won’t hire you, you are deemed to be disabled to enforce the nondiscrimination portions of the statute. How does this apply to someone who has a leg impairment who is able to walk just fine but has difficulty running? Or what about someone with an eye impairment who can see fairly well with glasses but without glasses cannot? What about someone with very high blood pressure who needs to take medication but can perform the job with medication? These represent just some the various issues that courts face on a daily basis. Further, what is a reasonable accommodation? The statute and regulations say an employer must accommodate a person with a disability unless it would create an “undue hardship.” An undue hardship is defined as a “significant difficulty or expense.” It was left to the courts to figure out what this means. For one employer, making an accommodation that costs $1,000 may be an undue hardship, but for a larger employer it may not be. The courts are still addressing these issues on an individual basis.

Q: Have courts treated the ADA consistently since 1990? If not, what has changed?

A: My interest as a lawyer has been in the case law development of the statute. There have been some significant developments since the ADA was passed. In 1999, the Supreme Court significantly narrowed the interpretation of who is disabled under the ADA. In many cases, even if a person was able to meet the Supreme Court’s definition, he or she might not be able to perform a job even with a reasonable accommodation. In 2008, during the final year of the George W. Bush administration, Congress reversed several prior Supreme Court decisions by enacting the ADA Amendments Act of 2008. This piece of legislation significantly broadened the definition of disability. Now, if an individual has a diagnosed impairment that limits to any significant extent that individual’s ability to perform any major life activity (e.g. seeing, hearing, walking, lifting, bending, sleeping, thinking), that person will be disabled under the ADA. So what counts as a reasonable accommodation now? There is no single answer and court decisions are issued almost every day on this.

Q: What should lawyers keep in mind when advising clients on issues that fall under the ADA?

A: The job of a lawyer is to understand the trends of where courts have been going on specific issues and to predict for your client how a court might rule in the fact-specific situation that a client is asking advice for. It continues to be an interesting area of the law because there are no easy answers and there is no one answer. The answer you give to a client is the best answer that you as an attorney can construct, as well as the reasons for the answer that you believe a court would accept. But you can’t tell your client yes or no in terms of compliance with the ADA. You can only say, “this is my best analysis and here are the reasons for it.” So attorneys need to be creative because this was a statute that was not intended to provide a specific yes-or-no answer. It set forth principles that needed to be applied in specific, fact-dependent circumstances.

Q: Are there any current ADA cases or issues to watch out for?

A: One area that has been percolating for a number of years is to what extent obesity is covered by the ADA. In 2013, the American Medical Association designated obesity as a disease. The extent to which it constitutes a physical or mental impairment for purposes of the ADA is somewhat up in the air. Courts are faced with questions such as, “what substantial limits on life activity are caused by obesity?” This issue is an interesting trend because the case law is still developing.

“You’re in Trouble,” Says Judge to Bladder Injury Plaintiff Who Failed to Disclose Doctor’s Visit in Discovery, and Awards $21,000 in Sanctions

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By Stacey Rose Harris
DiMuroGinsberg, PC
Plaintiff Richard Robbins sued Sentara Hospital in Norfolk Circuit Court, alleging that he suffered permanent injury to his bladder following knee surgery, due to negligent bladder management by the nursing staff (likely arising out of catheter care). During discovery, Robbins’ counsel did not disclose that Robbins had visited a bladder specialist in Baltimore, and Sentara’s counsel caught wind of it when they saw reference to a John’s Hopkins appointment in other medical records. The records revealed the Hopkins’ specialist opinion that the bladder issues likely arose “over the span of many years” and were not the result of treatment during his surgery stay.

This revelation was explosive, and Sentara’s counsel sought dismissal of the case or to have the issue of causation taken from the jury, arguing that “Plaintiff and/or his counsel deliberately gave evasive and incomplete responses to avoid production of dispositive evidence.” Sentara’s counsel also pointed to the fact that they had asked for Plaintiff’s counsel to authorize a medical subpoena, and he has put a tight expiration date on it—three weeks. This delayed their obtaining the records. Further, even after being made aware of the existence of new records, he did not supplement Robbins’ discovery responses. Robbins, in an affidavit to the Court, swore that he never disclosed the Hopkins visit to his lawyer. The lawyer, for his part, and represented by his own counsel, stated that he had not seen the Hopkins records until Sentara moved for sanctions, and that his clients had not mentioned the doctor’s statements.

Sentara’s lawyers were galled at Robbin’s position. Nevertheless, on their motion for sanctions, they asked the Court, “What’s your analysis?” The Court found that they “should have disclosed a visit to a world-renowned hospital for a second opinion about the very condition that caused Plaintiff to bring this malpractice suit; and once that omission came to Plaintiff’s attention, he and his counsel should have addressed the oversight immediately. They did not.” Although that omission was suspicious, the Court decided that there was no evidence that this information was intentionally concealed, and declined to dismiss the case or find that Robbins should be precluded from presenting evidence on causation. It did enter an award of sanctions against the Plaintiff of over $21,000, with a stern warning that this type of relevant discovery must be leaked much earlier in the case.

The lawyers at DiMuroGinsberg regularly represents attorneys who find themselves similarly situated to Robbins’ lawyer. Ben DiMuro, managing partner of the firm, has over 30 years of experience in counseling other attorneys on professional responsibility matters and defending them against sanctions motions and before the Virginia State Bar in ethics proceedings.