“Adoption Attorney Colleen Quinn explains how the state’s decision to re-open public commentary on gay adoption could impact it.” – from the WTVR website.

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Video re-posted from WTVR.com

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Law and Government: Colleen Marea Quinn

•Director and equity owner of Locke Partin DeBoer & Quinn

•Founder and director of the Women’s Injury Law Center and the Adoption and Surrogacy Law Center.

•Worked to change adoption law in Virginia by overhauling all adoption statues to bring Virginia in line with other states.

YWCA of Richmond 2011 Outstanding Woman of the Year

Colleen Marea Quinn, Esq.

Locke Partin DeBoer & Quinn

4928 West Broad Street

Richmond, VA 23230

804-545-9406

804-545-9411 (fax)

quinn@lockepartin.com

http://www.reproductionattorney.com

Here’s a sample of what’s in the presentation:

Tip No. 1: Have a Comprehensive Employee Handbook

Tip No. 2: Have a Drug Testing Policy

Tip No. 3: Do a Reputable and Thorough Background Check

Tip No. 4: Have a No Weapons Policy

and much much more…

Click Here to Download this Presentation as a PDF ->

Ten Thrifty Employment Tips

Recognizing and Eliminating Sexual Harassment

Comments and guidelines for a congenial workplace

by Colleen M. Quinn

Click Here To Download/View  -> Recognizing and Eliminating Sexual Harassment

Traps and Pitfalls in Handling Immunity Cases

by Colleen M. Quinn

Click Here To Download/View  -> Traps and Pitfalls in Handling Immunity Cases

Injury Case Intake – a primer on preserving and gathering the evidence

by Colleen M. Quinn

Click Here To Download/View  -> Injury Case Intake

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Colleen Marea Quinn, Esq.

Locke Partin DeBoer & Quinn

4928 West Broad Street

Richmond, VA 23230

804-545-9406

804-545-9411 (fax)

quinn@lockepartin.com

http://www.reproductionattorney.com

Click Here to Download this as a PDF ->

THE NEW WORLD OF FAMILY CREATION OPTIONS FOR SAME-SEX COUPLES UNDER VIRGINIA LAW

I.    ADOPTION IN VIRGINIA GENERALLY CAN ONLY BE DONE BY ONE PARTNER

• Only a single person or a married couple (defined as a man and a woman) can adopt
• One partner of a same-sex couple can adopt as a single parent provided that the home study agency signs off on the home study
• Usually, but not always, the home study agency writes the report indicating that the non-adopting partner is a “room-mate” (separate bedrooms are usually a “must”)
• Any adult in the home must have a background check

• If adoption is done as a single parent adoption – the best protection for the other partner in Virginia is for a Joint Custody and Guardianship Order to be procured and to have reciprocal Wills-Trusts and Advanced Medical Directives drafted
• The couple may consider establishing residence in another state (like Maryland) for at least six months in order to accomplish a second parent adoption

• May be possible for a Virginia couple to do an entire adoption in another same-sex friendly state whereby both become parents – but it has to go through the interstate (ICPC) approval process as a single parent adoption in order to come home
• Virginia ICPC generally will let babies go out of Virginia for same-sex placements but will not let them into Virginia for same-sex placements; Va ICPC will only let them in as single parent placements
• If the same-sex couple is lawfully married (via marriage in another state) -  it could preclude one adopting as a single parent

II.        INTRODUCTION TO ARTs

• Assisted Reproductive Technologies (“ARTS”) Law is an emerging area of the law
• ARTS law is most closely tied to adoption law but largely rooted in contract law
• Involves the use of donor sperm, donor egg and/or donor embryos
• Often involves the use of a host womb
• There are thousands of frozen embryos in storage that may not be used by their “owners”

THE NEW WORLD OF FAMILY CREATION OPTIONS:

• Donor Egg:  known or anonymous
• Donor Sperm:  known or anonymous
• Donated Embryo: known or anonymous
• Gestational Carrier:  the possibility of using a carrier (who does not contribute her own egg)
• Traditional Surrogate: the possibility of using client’s sperm or donor sperm with the surrogate’s egg

Families from Assisted Reproductive Technologies

• Whose parts? What are the Options?
• IM egg + IF sperm into gestational carrier
• Donor egg + IF sperm into IM or carrier
• Donor sperm + IM egg into IM or carrier
• Donor egg + Donor sperm = Donor embryos into IM or carrier
• IF or Donor sperm into true surrogate
• White carrier + Asian donor parts = Asian twins
• Black carrier + Caucasian donor parts = Caucasian child

The Most Common Agreements:

• Egg Donor Agreement (Female Egg Donor donates directly to the Intended Parent(s) or the Clinic – can be known or anonymous)
• Sperm Donor Agreement (Male Egg Donor donates directly to the Intended Parent(s) or the Clinic – can be known or anonymous)
• Embryo Donor Agreement (Note that “embryo adoptions” are the exception not the norm; Male and Female donors donate their embryo directly to the Intended Parent(s) or the Clinic)
• Surrogacy and Gestational Carrier Agreements
• Agreements with the Fertility Clinics (which can encompass any of the above but typically are informed consents, financial agreements, and embryo preservation agreements signed with the clinic and/or medical provider and not agreements between the involved parties)

Typically Roles for the Attorney:

• To map out how the arrangement is going to occur – from beginning to end
• To review the agreement on behalf of a party
• To negotiate the agreement on behalf of a party
• To draft (and negotiate) the agreement on behalf of a party
• To handle the adoption, birth certificate amendment, parentage order, pre- or post-birth order, or other court or governmental proceeding to resolve parentage issues

III.                    ARTs TERMINOLOGY:

Certain words have achieved “term of art” status in the realm of reproductive technology law.  Conversations among the various professionals are punctuated with these words and an alphabet soup of abbreviations.  Knowledge of these basic terms and proper use of them is crucial.

(a)  “Assisted Reproductive Technology” or “ARTs”

• All fertility treatment in which eggs and sperm are handled outside the body
• Purpose is to facilitate the conception of a child

(b) “IVF” = In Vitro Fertilization

• • Ovaries medically hyperstimulated
  • Eggs surgically removed
  • Fertilized in laboratory
  • Resultant embryos implanted in uterus

(c)  “Artificial insemination”

• Female artificially inseminated – meaning sperm injected via some artificial means
• Does that include home insemination kits? It can and – depending on state law – usually does.

(d) “Surrogacy”

• As used in ART, the process of a woman carrying a pregnancy with the intention of placing the child with another or others for rearing and parenting
• Often is used as a general term although a “true” surrogate carries her own eggs

(e)  “Surrogate” =  Two Types

• Traditional or True Surrogate (TS)
  • A woman who becomes pregnant with her own egg and the sperm of the intended father (or donor sperm), with the intention of placing the child with the IF, or IF & his wife or partner.  Due to the genetic connection, TS is a birth mother and, in many jurisdictions (especially without ARTs schemes), an adoption by IM or father’s partner must occur after birth for IM or partner to be parent.
• Gestational Carrier/Surrogate (GC or GS)
  • A woman who becomes pregnant with an embryo genetically unrelated to her, through the intra-uterine placement  (‘transfer’) of an IVF-created embryo, and carries the child for IM, IF or IPs, with intention of placing child w/ them at birth.  Also referred to as a host womb.  Gestational ‘Carrier’ is preferred term to distinguish from a True Surrogate.

(f)  Cryopreservation

• Freezing for storage.  In ART, sperm and embryos, and, with growing frequency but less success, eggs and ovarian tissue, may be frozen in liquid nitrogen and saved for future use.  Tissue in storage is often referred to as “frozen” or “cryopreserved.”

(g)  “Eggs” = which are unfertilized female gametes, may be variously referred to as

• • oocytes-eggs prior to ovulation or surgical retrieval
  • ovum or ova

(h) “ICSI” = Intracytoplasmic Sperm Injection:  in  the lab, inserting one sperm into the nucleus of an egg in hopes of achieving fertilization.   This procedure has revolutionized the treatment of male infertility, allowing men with extremely low sperm counts to conceive a child, which was nearly impossible before this technique.

IV.                    FINANCIAL ISSUES.

Cost Estimates for ART:

• IVF:  $8000-$12,000 (average medical cost, regional variations, does not include storage)
• Donor Egg:   $5,000 – $10,000 to donor (if donor is agency/clinic recruited & paid, higher for clinic fees and the extraction procedure)
• GC:   minimum $15,000 if GC paid, can range from $15,000 to $75,000 but usually $18,000 to $30,000 on average just for the carrier – does not include clinic and legal fees
• ICSI:  additional $1500-$2000 for each attempt, in addition to  IVF cost

Medical Insurance for ART

• For fertility procedures:  insurance may or may not cover ART, if in a non-mandated state.  Insurance rarely covers if insured is using donated gametes.

Health Insurance for Gestational Carriers

• Prenatal and delivery charges have historically been covered by GC’s insurance, but this is changing and exceptions are being written into contracts.
• Coverage specifically for IPs to insure GCs is approximately $10,000 +

Helpful Information for Clients

• Patient/Client Support Groups

o   AFA:  American Fertility Association

o   RESOLVE

• ASRM:  American Society for Reproductive Medicine
• SART:  Society for Assisted Reproductive Technology

V.                      VIRGINIA’S STATUTES.

VIRGINIA’S ARTs STATUTE – Section 20-156, et seq.

• Virginia’s ARTs statute, located at Virginia Code section 20-156, et. seq., has a donor component in its definitions stating that a donor has no parental rights
• Thus it is important to have a well-drafted sperm or egg donor agreement for donor egg or sperm (or both for donor embryo)
• Virginia’s ARTs Statute only permits the use of a gestational carrier or surrogate (who can be unmarried) by a married couple (defined as  a man and a woman) in order to take advantage of the statutory scheme
• However, no Virginia law forbids or precludes a contract from being entered into with a single person
• The enforceability of a contract outside the statutory scheme is unknown
• Under Virginia’s ARTs statute, if a gestational carrier or surrogate is married – then she is the presumed mother and her husband is the presumed father
• The presumption that her husband is the father must be rebutted by DNA test result evidence under Virginia’s parentage statute

VIRGINIA’S PARENTAGE STATUTE – Section 20-149.1 et seq.

• Virginia’s Parentage Statute allows parentage to be determined by clear and convincing evidence established by DNA testing
• If a gestational carrier or surrogate is unmarried – she can list the Intended Father whose sperm has been used on the birth certificate

SAME-SEX ARTS OPTIONS FOR WOMEN:

• For Women – IVF with either known or anonymous sperm – use Virginia’s ARTs statute with Sperm Donor Agreement
• Father is listed as “unknown” on the birth certificate
• The woman who gives birth is the presumed mother
• Same-sex partner can only obtain rights in Virginia via Joint Custody and Guardianship Order and reciprocal Wills-Trusts-Advanced Directives
• Second parent adoption would have to be done in another state in order to give non-birthing parent full parental rights
• Legal Outcome is unknown but one partner could carry other partner’s egg and donor sperm
• Sperm donor has no parental rights with Sperm Donor Agreement
• Woman giving birth is the presumed mother but can be rebutted with clear and convincing evidence of DNA testing
• Outcome in Virginia at this time probably is that Court would only allow for one mother on the birth certificate – but given open minded judge – who knows?

SAME-SEX ARTS OPTIONS FOR MEN:

• Gestational Carrier may be used with donor egg (the use of a Traditional Surrogate is not advised) and sperm is that of the Intended Father
• If GC is unmarried, then IF may be placed on the birth certificate
• If GC is married, then Order of Parentage must be obtained via DNA testing to place IF on the birth certificate
• The issue then is getting the GC off of the birth certificate:

o   Can be accomplished by IF’s partner doing a second parent adoption in a state that permits second parent adoptions (like DC or MD)

o   May possibly be accomplished by obtaining an Order of Parentage in Virginia (or state of IF’s residence with a viable parentage statute) through the use of DNA testing that shows by clear and convincing evidence that the GC is not the biological mother and that the biological mother is unknown (this is not a known outcome at this time though and it would depend heavily on the judge)

o   Virginia law not clear if single parent adoption could be done to get GC off the birth certificate

REMOVAL OF GESTATIONAL CARRIER FROM BIRTH CERTIFICATE ALLOWED IN MARYLAND UNDER EPA

In re: Roberto d. B., 399 Md. 267, 923 A.2d 115,

2007 Md. LEXIS 269 (2007).

Facts: Roberto d. B., an unmarried male, initiated IVF on 12/18/2000, using his sperm, donor eggs and a gestational carrier.  The procedure resulted in two fertilized eggs & a twin pregnancy.  The carrier delivered twin children on Aug. 23, 2001.

Unless a court order otherwise provides, …hospital reports the gestational carrier as  “mother” of the child to Maryland Division of Vital Records; however, neither intended father nor carrier wanted gestational carrier’s name to be listed on birth certificate.  A joint petition was filed with the Circuit Court for Montgomery County, asking it to issue an “accurate” birth certificate, i.e., one that did not list the gestational carrier as the children’s mother.  The Circuit Court refused to remove the name and rejected the petition.

Holding on Appeal: The Court agrees that the statute controlling new birth certificates only addresses “parentage,” without limitation. It does not preclude the courts from issuing an order authorizing a birth certificate that does not list the mother’s name.  This Court has found that any action by the State, without a substantial basis, that imposes a burden on, or grants a benefit to one sex, and not to the other, violates the Maryland Equal Rights Amendment. Griffin v. Crane, 351 Md. 133, 149, 716 A.2d 1029, 1037 (1998). The paternity statutes in Maryland must be construed to apply equally to both males and females.  Because there is sufficient evidence that the State would not object to the removal of the gestational carrier’s name from the birth certificate, and because such a result would not be inconsistent with the current statutes controlling the issuance of birth certificates, we hold that it is within a trial court’s power to order the MDVR to issue a birth certificate that contains only the father’s name.

NOTE: VERY PROBLEMATIC IS THE LANGUAGE BY THE COURT, IN DICTA (IN PASSING), PRONOUNCING THAT “SURROGACY CONTRACTS ARE ILLEGAL IN MARYLAND.”

SAME-SEX ARTS OPTIONS FOR MEN (cont.):

• If Gestational Carrier carries donated embryo (need to have underlying sperm and egg donor or embryo donor agreement(s) enforceable under the law of the applicable state) – then an adoption must take place
• If adoption done in Virginia – adoption could only be as to one single parent
• If GC places to couple outside of Virginia – could be a same-sex placement if permitted in the couple’s home state
• Enforceability of the underlying Gestational Carrier Agreement is unknown

VI.                    OTHER ARTS ISSUES

COORDINATION WITH MEDICAL PROVIDERS

• Obtain and review copies of all Medical Provider documents – ideally review before clients sign
• Donors, Carriers and Surrogates should be adequately:

o   Counseled

o   Screened (physically and psychologically)

o   Adequate background information obtained

RED FLAGS

• Carrier not wanting estranged husband to be part of the agreement
• Carrier is single, older, no children (especially for true surrogate)
• Intended Parent(s) want(s) to micro-manage the pregnancy
  • Parties not getting adequate medical, psychological and background clearance particularly on the Carrier
  • Carrier not wanting representation
  • Parties trying to utilize joint representation

THE PROS and CONS of Using a Carrier via ARTS vs Adoption

Perceived advantages of using a carrier vs adopting from a birth mother:

• Control over prenatal care & greater involvement in pregnancy
• Child usually genetically related to at least one parent (unless donated embryo)
• Certainty over having a child to raise and no change of mind issues (especially if not donated embryo, carrier is unrelated to the child and at least one Intended Parent is genetically related)
• Issues of ongoing contact for child’s benefit may not be as significant when the child has no biological connection to the carrier
• The primary disadvantage: unless the carrier is a relative or friend who does not request compensation, cost can be prohibitive
• Still unsettled law depending on type of arrangement
• If in a state where there is no law, enforceability of contract may be questionable
• Not for the very risk-averse:  regardless of behavior of carrier, even if it constitutes a material breach and/or bad pregnancy outcome is the result, only recourse may be litigation with uncertain outcome.
• Use of true surrogate or donated embryo even greater risk. Limited success in litigation likely.

THINK DOWN THE ROAD: SIMILAR IDENTITY ISSUES FOR CHILDREN OF ADOPTION AND ART

• Should they be told and if so, when & how?
• Will ongoing contact agreements be possible & beneficial?
• What search options will these children have?
• What registries will exist?
• Are these factors addressed in the contracts?
• Should cord blood be saved?
• Will these children feel different from their peers?
• Potential for inadvertant consanguinity
• Donor children of same donors dating?

And…More Ethical Considerations for Thought

• Child’s right to genetic heritage/medicals
• Also, unique to ART and at issue for child-centered concerns

o   Designer babies

o   Dilution of gene pool with frequent donor parts used (especially sperm)

o   Limiting transferred embryos (Octomom)

• What limits on designer babies?
• What if they are not exactly as ordered or fall out of fashion?

VIRGINIA ATTORNEYS

Prepared By

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The Employment Law Claim Checklist

I.          PRIMARY FEDERAL STATUTES

A.        Title VII of the Civil Rights Act of 1964

[42 U.S.C. § 2000e et seq.]

1.         Application:  Prohibits discrimination in employment, including hiring, firing, compensation, terms, conditions or privileges of employment on the basis of race, color, religion, sex or national origin.  Section 701(k) amendment also prohibits discrimination on the basis of pregnancy.

2.         Coverage:  Title VII applies to all public and private employers with 15 or more employees.

3.         Remedies:

1.         After the Civil Rights Act of 1991, the following remedies are

available under Title VII:

(i)         Back pay (diminished by interim earnings, but including lost benefits).

(ii)        Front pay, including benefits.

(iii)           Equitable relief, including injunction, promotion and/or reinstatement.

(iv)          Compensatory damages, including emotional distress, and medical or psychiatric expenses.

(v)           Punitive damages.

(vi)          Attorney’s fees and costs.

b.         The compensatory and punitive damages now available are subject to a cap based upon the size of the employer.  The caps apply as a restriction on the combined compensatory and punitive damages award, but do not encompass the past and future lost income and benefits, or the attorney’s fees and costs, set separately by the Court.

(i)         15 to 100 employees – $50,000.

(ii)        101 to 200 employees – $100,000.

(iii)       201 to 500 employees – $200,000.

(iv)       500 plus employees – $300,000.

4.         Prevailing defendant/employer recovering attorney’s fees:

A defendant employer is only entitled to attorney’s fees if it

demonstrates that the claim is frivolous, unreasonable or groundless.

The prevailing defendant, however, is entitled to recover taxable

costs.

5.         Jury trials:  Now available as a matter of right to plaintiffs.  However, the Court awards benefits, back pay, front pay, all injunctive relief (including promotion and/or reinstatement) and attorney’s fees and costs.

6.         A Virginia State agency, the Virginia Council on Human Rights, was designated a deferral agency for the purpose of investigating Title VII charges, on March 25, 1994.

7.         Administrative requirements:

a.         Title VII charges must be filed with the EEOC and/or the Virginia Council on Human Rights.  There remains an issue of dispute in the Virginia federal courts as to whether the charge must be filed within 180 or 300 days after “a reasonable plaintiff should have known facts that would support a charge of discrimination,” whether it is mandatory to file with the Council first, and whether the state law employment discrimination claims must be included in the charge to avail the employee of the 300 days.  Compare Tinsley v. First Union Nat. Bank, 155 F.3d 435 (4^th Cir. 1998) with Dodge v. Philip Morris, Inc., WL 162955 (4^th Cir., March 25, 1999)(rehearing and rehearing en banc denied June 10, 1999).

b.         The EEOC and/or Council will request evidence, typically in the form of exhibits, affidavits, employee interviews, and position statements in conducting investigation.

(i)         Following the investigation, the EEOC or Council will render a determination, either finding “no cause” or “cause” to believe the discrimination occurred.

(ii)        Normally, the EEOC and the Council will issue a “right to sue” letter following the conclusion of the investigation.

(a)       An employee must file suit within 90 days after receipt of the right to sue letter from the EEOC to preserve his/her right to litigate the discrimination charge.  Courts have been inconsistent in interpreting the meaning of “receipt of.”  It is safest to file within 90 days of the file stamp.  If the employee claims receipt more than the 3 day mailing time, the employee should have evidence of the receipt at a later date.

B.         Age Discrimination in Employment Act of 1967

[29 U.S.C. § 621- 634]

1.         Application:  Prohibits discrimination in employment due to plaintiff’s age.  Applies to all employees 40 or older with no maximum age.  Recently, the U.S. Supreme Court held that preferential treatment of older workers (over age 50) over “relatively young” workers (ages 40 to 49) does not violate the ADEA.  General Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004).

2.         Coverage:  Employers with 20 or more employees, including state and political subdivisions.

3.         Attorney’s fees:  Prevailing plaintiffs are entitled to attorney’s fees and taxable and non-taxable costs.

4.         Jury trial:  Available as a matter of right to plaintiffs.  Since the Court determines whether reinstatement is feasible, front pay, attorney’s fees and costs are determined by the Court.

5.         Charges under this law are also investigated by the EEOC and/or the Virginia Council on Human Rights.

a.         Similar time requirements to Title VII for filing charges with the EEOC or the Council and for filing lawsuits after the EEOC or the Council issues the “right to sue” letter.

(i)         However, the ADEA plaintiffs have an absolute right to file a lawsuit after waiting only 60 days following the filing of an EEOC charge.

6.         A 1990 amendment to the ADEA, the Older Workers Benefit Protection Act, requires that any waiver of rights signed by individuals over 40 years old must now adhere to strict statutory requirements.

a.         The employee must be given written notice of his/her right to have an attorney review any such waiver.

b.         The employee must be given at least a 21-day review period.

c.         The employee must be given 7 days to void any waiver he/she signs.

d.         The employee must be given benefits he/she would not otherwise have been entitled to receive in exchange for the waiver.

e.         Failure to comply with the strict requirements of OWBPA regarding waivers will invalidate the waiver and even permit the employee to retain severance paid and still file suit.  Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).

7.         Remedies:  The ADEA does not provide for compensatory or punitive damages.  Plaintiffs are entitled to the following, however:

a.         Back pay, including benefits.

b.         Front pay, including benefits, for a reasonable period of time, if reinstatement is not feasible.

c.         Discretionary liquidated damages (double recovery for back pay, including benefits), for willful violations of the ADEA.

d.         Equitable relief, including injunction, promotion, and/or reinstatement.

C.        Americans with Disabilities Act of 1990

[42 U.S.C. § 12101 et seq.]

1.         Application:  Prohibits discrimination against a job applicant or employee who is “a qualified individual with a disability.”

2.         Coverage:

a.         Employers with 15 or more employees.

b.         Employees who are qualified individuals with a disability.

(i)         The Act provides protection for any individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position held or desired.

(ii)        “Essential function” means any job task that is fundamental, and not marginal, to the job.

c.         Disability.

(i)         A physical or mental impairment that substantially limits one or more major life activities, or

(ii)        A record of such an impairment, or

(iii)       Being regarded as having an impairment.

d.         Reasonable accommodation:

(i)         The Act requires that a person’s disability be reasonably accommodated so as to enable him/her to perform the job.

(a)       This could involve job restructuring, modified schedules, reassignment to vacant positions, eliminating non-essential elements of the job, redelegating assignments, exchanging assignments with another employee, and redesigning procedures for task accomplishment.

(ii)        Accommodation must be provided unless it constitutes an “undue hardship” on the employer.  “Undue hardship” is defined as an action requiring significant difficulty or expense, such as an action that is unduly costly, extensive, substantial, disruptive or that will

fundamentally alter the nature of a program. The

following factors will be considered.

(a)       The nature and cost of the needed accommodation.

(b)       Site factors, looking at the overall financial resources of the facility in providing the accommodation.

(c)       Parent company factors, looking at the overall financial resources of the entity.

e.         Illegal drug use exception – individuals who currently use illegal drugs are specifically excluded from the definition of an individual with a disability.

f.          Enforcement:

(i)         The powers, remedies and procedures set forth in Title VII are available to the plaintiff.  The EEOC and the Virginia Council on Human Rights enforce the ADA.

(ii)        Punitive damages recoverable only if employer engaged in discrimination with malice or reckless indifference.

(iii)       Employers should note that the new, expanded remedies of the Civil Rights Act of 1991 also apply to ADA plaintiffs including the right to a jury trial.

D.         Family and Medical Leave Act of 1993

[29 U.S.C. § 2601 et seq.]

1.         Application:  Entitles eligible employees to 12 weeks of unpaid leave from employment.

2.         Coverage:  Applies to all employers with 50 or more employees.

3.         Eligible employee.

a.         An eligible employee is one who has been employed by the employer for at least 12 months and has at least 1,250 hours of service (25 hours per week) during the previous 12 months.

4.         Protected leave:

a.         An eligible employee shall be entitled to 12 weeks of leave during a one-year period:

(i)         Because of the birth or adoption of a child.

(ii)        If the employee is needed to care for a son, daughter,

spouse or parent of the employee who has a serious health condition.

(iii)       Because of a “serious health condition” that makes the employee incapable of performing the functions of his or her position.

5.         Paid and unpaid leave:

a.         The 12-week requirement can consist of paid leave, including accrued paid vacation leave, personal leave, medical or sick leave already available to the employee.

b.         FMLA leave is unpaid leave.  There is no requirement that an employer pay an employee for leave under this Act.

6.         Serious health condition.

a.         Serious health conditions are illnesses that require (i) inpatient care in a hospital, (ii) hospice or residential medical care facility, or (iii) continuing treatment by a health care provider.

b.         The employer can require medical certification and a second medical opinion justifying the need for leave for an illness of the employee or a family member.

7.         Enforcement.

a.         Can file action with Secretary of Labor or private suit in court.

b.         Suit must be filed within two years, or within three years if

violation was willful.

c.         May recover lost compensation, lost benefits, attorney’s fees

and costs.

E.         Equal Pay Act of 1963

[29 U.S.C. § 206(d)]

1.         Application:  Prohibits gender based wage discrimination. Requires

same pay to male and female employees when jobs involve equal skills, effort and responsibility and are performed under similar working conditions in the same establishment.  Also prohibits retaliation against complaining employee.

2.         Coverage:  All employers in the “stream of commerce.”

3.         Administrative prerequisites:  None.  However, if the employee files a

charge with the EEOC, and the EEOC chooses to sue on behalf of the employee, the employee may lose his or her independent right to file a private action in Court.

4.         Statute of limitations:

a.         Fair Labor Standards Act time limitations apply.

b.         Two years; or three years for a willful violation.  Measurement of damages runs from time of filing suit in Court.

c.         The Court usually determines whether the conduct constitutes a willful violation and whether the employer acted in good faith.

5.         Remedies:

a.         Back pay, plus discretionary prejudgment interest.

b.         Liquidated damages (double back pay unless the employer proves it acted in good faith and with a sincere and reasonable belief that its conduct was lawful).

c.         Attorney’s fees and costs.

d.         Injunctive relief.

e.         Jury trial.

F.         Section 1981, Civil Rights Act of 1866

[42 U.S.C. § 1981]

1.         Application:  Prohibits purposeful race discrimination in employment, including discharge.

2.              Coverage:  “All persons … shall have the same right … to make and enforce contracts … as is enjoyed by white citizens.”   “’Make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.”

a.         Applies to acts of private individuals unsupported by state

action, as well as city, county and state entities (but certain immunity defenses may apply for state and local officials).

b.         Embraces “disparate treatment” theory of discrimination but not “disparate impact” theory.

3.         Statute of limitations:  2 years.

4.         Administrative prerequisites:  None.

5.         Remedies:

a.         Compensatory and punitive damages – no limit or cap applies.  However, punitive damages must meet the federal standards (where employer’s conduct motivated by evil motive or intent or when it involves reckless or callous indifference to federally protected rights), and will not likely be available against a municipality.

b.         Back pay, including benefits and discretionary prejudgment interest.

c.              Attorney’s fees and costs.

d.              Equitable relief, including injunction, promotion and/or reinstatement.

e.              Jury trial.

G. Section 1983, Civil Rights Act of 1866

[42 U.S.C. § 1983]

1.              Coverage:  Employees may plead a cause of action under Section 1983 to recover for the deprivation of “rights, privileges or immunities secured by the Constitution and laws.”   “Every person” acting under “color of state law” may be sued.  Subject to the varying immunities, this includes private persons, cities, counties and other local government entities.  This may include acts of discrimination, or other deprivations of federal rights, including retaliation against whistleblowers for exercising their First Amendment rights, or other Constitutional rights.

2.              Determining liability of private persons “acting under color of state law” is a proverbial minefield.  Multiple tests have been applied, including the two part “fair attribution” test of the Fourteenth Amendment from the U.S. Supreme Court decision of Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982):

a.         The deprivation must be caused by the exercise of some right

of privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.  In other words, whether the discriminatory act or policy can be ascribed to a governmental decision.

b.         The party charged with the deprivation must be a person who

may fairly be said to be a state actor.

The “state actor” analysis may include the following factors or

tests:

(i)         The “public function” test – the extent to which the (private entity exercised powers which are traditionally reserved to the state.

(ii)        The “state compulsion” test – whether the state exercised such coercive power or provided such significant encouragement, overt or covert, that the choice of the private actor is deemed to be that of the state.

(iii)       The “symbiotic relationship” or “nexus” test – whether there is a sufficiently close nexus between the state and the action of a regulated entity, such that the action of the actor may fairly be treated as that of the state.

(iv)       The “joint action” test – where a private party invokes

the aid of state officials to take advantage of state-created procedures to deprive a private individual of property rights, such as attachment procedures.

3.              Supervisory liability:  Supervisors are not vicariously liable for Section 1983 violations of their subordinates.  Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).   However, the supervisor may be liable if it can be established that he or she occupied a position of responsibility, knew or should have known of the misconduct, and failed to act to prevent future harm.

4.              State liability:  Unless the state has waived its Eleventh Amendment immunity, or Congress has made some exception, a state cannot be sued directly in its own name.

5.         Local Governmental Entities liability:  Under the Monell decision, local entities cannot be sued under a respondeat superior theory for the unconstitutional acts of their employees.  However, Monell also held that a municipality may be sued “like every other § 1983 ‘person’ “ for constitutional deprivations visited pursuant to governmental custom as well as deprivations visited pursuant to a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body’s officers.”  The U.S. Supreme Court further clarified the meaning of official policy, practice or custom in Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985): “[T]he word policy generally implies a course of action consciously chosen from among various alternatives.”   The

Fourth Circuit has made clear in its rulings that it requires the

municipality to have actual or constructive notice of the custom or

usage.  See e.g., Spell v. McDaniel, 824 F.2d 1380, 1387 (4^th Cir.

1987).

6.         Administrative prerequisites:  None.

7.         Statute of limitations:  2 years.

8.         Remedies:

a.              Compensatory and punitive damages – no limit or cap applies.  However, punitive damages must meet the federal standards (where employer’s conduct motivated by evil motive or intent or when it involves reckless or callous indifference to federally protected rights), and will not likely be available against a municipality.

b.              Back pay, including benefits and discretionary prejudgment interest.

c.         Nominal damages may be available.

d.         Attorney’s fees and costs.

e.         Equitable relief, including injunction, promotion and/or

reinstatement.

f.               Jury trial.

H.         Fair Labor Standards Act

[29 U.S.C. § 201 et seq.]

1.         Coverage:  All employers in the “stream of commerce.”

2.         Primary requirements:

a.         Minimum wage of $5.15 per hour.

b.         Overtime of 150% of an employee’s regular rate for all hours

worked over 40 in any work week.

3.         Retaliation against employees for exercising rights guaranteed by FLSA is prohibited.  29 U.S.C. § 215(a)(3).

4.         Exemptions:

a.         Primary exemptions.

(i)         Executive.

(ii)        Administrative.

(iii)       Professional.

(iv)       Outside salesman.

b.         Must comply with all technical requirements of any exemption

to be entitled to that exemption.

5.         Statute of limitations:

a.         Two years.

b.         Three years for a willful violation.

6.         Remedies:

a.         In addition to back wages due, employers may be liable for “liquidated” or double his or her unpaid compensation when violations are willful.

b.         Willful or repeated violations may be subject to a civil penalty , not to exceed $1,000 per violation.

I.          Whistleblower Protection Act

[5 U.S.C. § 1213 et seq.]

1.              Coverage:  Prohibits job-related reprisals against federal employees, applicants, or former employees, for disclosing government illegality, waste, corruption, or endangerment of public health and safety.

2.              Administrative prerequisites:  Unless specific exemptions, the employee must present its claim to the Office of Special Counsel.  The complaint should include the precise ground for the whistleblowing retaliation charge.  There is no time limitation specified for the filing of a complaint.

a.         The Special Counsel must acknowledge receipt within 15 days.

b.         The Special Counsel must provide a status report within 90

days.

c.         If the Special Counsel finds reasonable grounds to believe a

“prohibited personnel practice” has taken place, it may seek to have the Merit Systems Protection Board (MSPB) stay the challenged personnel action, and may take action, including petitioning the MSPB, to have the agency correct the violation.

d.         The employee is entitled to provide written comments at stages

of the process.

3.              Right of appeal/review:  If the employee is unsatisfied with the results of the Special Counsel, or if no action is taken within 120 days of the filing of the original complaint, the employee may file an appeal or request for review with the MSPB.  The employee may request a stay of the employment action pending the review or appeal.  The appeals process is governed by 5 U.S.C.§ 1221.   The appeal must be filed within 60 days of receipt of the termination notice.

4.              Referral to Administrative Law Judge:  The hearings of petitions for appeal are governed by 5 C.F.R. § 1209.6(b).  The following must be established for the ALJ to hear the case:

a.         The challenged action is a “personnel action”.

[§ 2302(a)(2)(A)]

b.         the employee is in a “covered position”.

[§§ 2302(a)(2)(A), 2302(a)(2)(B)]

c.         The employee is in a “covered agency”.

[§§ 2302(a)(2)(A), (B), and (C)]

d.         The challenged action is a result of a prohibited personnel

practice.

[§ 2302(b)(8)]

5.         Standards/elements of proof:  The employee must establish the

protected whistleblowing activity was a “contributing factor” in the adverse personnel action.  5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.4(c).  The agency has a complete, affirmative defense if it can establish through “clear and convincing” evidence, that is would have taken the same action absent the employee’s whistleblowing.  5 U.S.C. § 1221(e)(2); 5 C.F.R. § 1209.4(d).

6.         Judicial review:  The employee may file a petition for review in the

Court of Appeals for the Federal Circuit within 30 days of the decision.  5. U.S.C. §7703(b).

J. False Claims Act

[31 U.S.C. § 3729 et seq.]

1.              Primary purpose:  This statute was designed to encourage exposure of fraud against the government by government contractors, welfare benefit recipients, and other entities interacting with the federal government, through the filing of false claims, records or statements.

2.              Causes of action:  The employee may pursue as a qui tam action on behalf of the government, against the entity engaging in the fraud.  The government may intervene in the action.  The employee may have an additional action for retaliation.

3.              Remedies:  The employee may receive as much as 25-30% of the damages recovered in the case, plus attorney’s fees.

II.         PRIMARY VIRGINIA STATUTES

A.        Statutory Conspiracy to Injure Another in Trade, Business or Profession

[Va. Code §§ 18.2-499 and 18.2-500]

1.         Elements of action:  The plaintiff must prove by clear and convincing evidence:

a.         A combination of two or more persons;

b.         For the purpose of (i) willfully and maliciously injuring plaintiff in

his reputation, trade, business or profession; or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act; and

c.         Resulting in damage to the plaintiff.

2.         Malice:

a.         The element of malice may be established with “evidence that the defendant’s primary and overriding purpose is to injure his victim in his reputation, trade, business or profession motivated by hatred, spite, or ill will … Notwithstanding any additional motives defendant may have had to benefit himself or persons other than the victim.”  Greenspan v. Osheroff, 232 Va. 388 (1986).

b.         However, the Virginia Supreme Court has recently held that the code section does not require proof that a conspirator’s primary and overriding purpose is to injure another as long there is proof of legal malice:  that a defendant acted intentionally, purposefully and without legal justification.  Advance Marine Enterprises, Inc. v. PRC Enterprises, Inc., 256 Va. 106 (1998); Commercial Business Systems v. Bell South Services, Inc., 249 Va. 39 (1995).

3.         Combination:

a.         A single entity cannot conspire with itself.  Employees acting within the scope of their employment cannot “combine” with their employer.  Fox v. Deese 234 Va. 412 (1987).

b.         The intracorporate conspiracy doctrine also applies:  A corporation cannot conspire with itself.  Charles E. Brauer, Inc. v. NationsBank of Virginia, 251 Va. 28 (1996).

4.         Statute of limitations:  5 years.

5.         Remedies:

a.         Treble damages. “[W]ithout limiting the generality of the term, ‘damages’ shall include loss of profits.”  Va. Code § 18.2-500(a).

b.         Reasonable attorney’s fees.

B.         The Virginia Equal Pay Act

[Va. Code § 40.1-28.6]

1.         Coverage:  Any employee with a claim for unequal pay based upon gender, where the employer is not covered by Fair Labor Standards Act.

2.              Statute of limitations:  2 years.

3.         Remedies:  The employee shall be entitled to double the amount of

wages in dispute.

C.        The Virginia Human Rights Act

[Va. Code § 2.1-714 et seq.]

1.         Established a new state agency, the Virginia Council on Human Rights, but as a result of 1995 amendments, the Act is currently useless as a source of employee rights.

2.         The Act prohibits unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth,  or related medical conditions, age, marital status or disability, in places of public accommodation, educational institutions, real estate and employment.

a.         The Council is empowered to attempt conciliation between employers and employees when unlawful discrimination is found.

b.         The Council has no enforcement power of its own but may refer findings of unlawful discrimination to other agencies.

3.              Coverage:  For termination cases, only applies to employers employing 5-15 employees and does not include disability or marital status.

4.         Statute of Limitations.  Any claim brought under this section must be           filed within 180 days from the date of the discharge.

5.         Remedies are nominal:

a.         Up to one year back pay with interest.

b.         Attorney’s fees not to exceed 25% of the back pay awarded –

to be paid from the back pay awarded.

c.         Prohibits compensatory or punitive damages.

D.         The Virginians with Disabilities Act

[Va. Code § 51.5-40 et seq.]

1.         Prohibits job discrimination against any otherwise qualified applicant or employee solely because of a disability unless the nature of the disability prevents him/her from “adequately” performing the job.  It also imposes a duty upon the employer to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability “if necessary to assist such person in performing a particular job, unless the employer can

demonstrate that the accommodation would impose an undue burden

on the employer.”  Va. Code § 51.5-41(c).

2.              Coverage:  Every employer in Virginia.  However, it does not cover any employer covered by the federal Rehabilitation Act of 1973.

3.              Jurisdiction:  Any action brought under this section must be brought in chancery in the Circuit Court.

4.              Statutes of limitations.  Any action must be brought within one year “of the occurrence of any violation of rights” but such action is “forever barred” unless the employee or his agent has filed an action, or filed by registered mail, a written statement of the nature of the claim with the potential defendant or defendants within 180 days of the occurrence.

5.              Remedies:

a.         Equitable relief.

b.         Compensatory damages (defined as not including pain and

suffering, and limiting back pay to 180 days from the date of filing the claim, less income received).  Potentially the compensatory damages could include medical or psychiatric bills.  It is not clear if front pay is available.

c.         Attorney’s fees to prevailing party, except that defendant may

not receive attorney’s fees unless the court deems the claim “frivolous, unreasonable or groundless, or brought in bad faith.”

d.         No punitive damages.

e.         The statute specifically states the employee has a duty to

mitigate damages.

E.         Virginia Unemployment Compensation Act

[Va. Code § 60.2-100 et seq.]

1.         Former employee will be entitled to unemployment compensation unless employer proves by a preponderance of the evidence either:

a.         Employee resigned voluntarily (“forced” resignation does not

disqualify an employee from benefits); or

b.         Employee was guilty of misconduct.

(i)         Deliberate violation of company rules or willful disregard of duties and obligations owed to the employer.

(ii)        Employee misconduct such as theft and drug use may constitute misconduct depending upon the circumstances.

(iii)       Mere inefficiency, incapability, mistake or misjudgment are not considered misconduct.

2.         VEC claims are relatively common when former employee does not find new employment.

a.         Liability attaches to last 30-day employer.

b.         Benefits for a maximum of 26 weeks.

F.         Worker’s Compensation Retaliation Statute

[Va. Code § 65.2-308]

1.              “No employer or person shall discharge an employee solely because the employee intends to file or has filed a [worker’s compensation] claim.”  (The work comp claim cannot be a fraudulent claim).

2.              The claim must be brought in “a circuit court having jurisdiction over the employer.”  At least one federal court has held this action is not removable.  Green v. Hajoca Corp., 573 F. Supp. 1120 (E.D. Va. 1983).

3.              Right to jury trial:  Although several federal courts held the matter could not be determined by a jury, the Virginia Supreme Court held in 1998 that a plaintiff was entitled to have the evidence weighed by a jury.  Mullins v. Virginia Lutheran Homes, Inc., 479 S.E.2d 530 (1997).

4.         Remedies:

a.         Equitable relief, including restraining violations, rehiring or

reinstatement.

b.         Actual damages, including back pay plus interest at the judgment rate.

c.         Attorney’s fees.

d.         No punitive damages.

G.        Garnishment Statute

[Va. Code § 34-29]

1.         Prohibits employer from discharging any employee “by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.”   Va. Code § 34-29(f).

H.         Blacklisting – Preventing Employment by Others of Former Employees

[Va. Code § 40.1-27]

1.         “No person doing business in this Commonwealth, or any agent or attorney of such person” after terminating any employee or after the employee voluntarily departed “shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such employee…from obtaining employment with any other person.”

2.         Violation constitutes a misdemeanor, with penalty between $100 and $500.

3.         Employer may provide truthful reference.

a.         But a reference is not required.

b.         Employee also has no right to view his/her personnel file

under Virginia law.

I.          Virginia Wage Act

[Va. Code § 40.1-29]

1.         Employer may virtually never withhold pay of terminated or resigning employee absent voluntary and written authorization.

2.         Willful violation of this section may be a misdemeanor.

III.        VIRGINIA COMMON LAW CLAIMS

A.        Wrongful Discharge in Violation of Virginia Public Policy

1.         Virginia’s non-discrimination public policies:

a.         The decision in Bowman v. State Bank of Keysville, 229 Va.

534 (1985), recognized a tort of wrongful discharge based on Virginia’s public policy.

b.         Standard of proof:  If the discharged employee was exercising

a right protected by public policy, and the plaintiff can establish by a preponderance of the evidence that he or she was discharged because of such exercise, the resulting discharge would be wrongful or tortious.

c.         Public policy:

(i)         Cause of action is limited to discharges which violate public policy (not private rights or interests):  “the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety or welfare of the people in general.”  Miller v. SEVAMP, Inc., 234 Va. 462 (1987).

(ii)        Defendants have generally been successful in persuading courts that the public policy must be enunciated in or underlie a Virginia statute.  Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94 (1996).

d.         While some state and federal courts have been confused by the rulings in Doss v. JAMCO,  254 Va. 362 (1997), and Connor v. National Pest Control Assoc., 257 Va. 286 (1999), the Bowman public policy claim clearly remains a viable cause of action in Virginia as long as it is not based upon the Virginia Human Rights Act.

2.         Virginia’s public policy against employment discrimination.

a.         There is no question that such a public policy exists in the Commonwealth of Virginia.

(i)         Race.

Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98 (1994).

(ii)        Gender.

Wright v. Donelly & Co., 247 Va. 98 (1994); Bailey v. Scott-Gallaher, Inc., 253 Va. 121 (1997).

(iii)       Disability.

Bradick v. Grumman Data Systems Corp., 254 Va. 156 (1997).

(iv)       Age.

Clark v. Manheim, VLW 096-6-061 (Va. Sup. Ct. 1996)(unpublished).

b.         However, there is no longer any such viable cause of action in view of the 1995 amendments to the Virginia Human Rights Act (eradicating any reasonable remedies and damages).  The Virginia Supreme Court has now conclusively held that “the General Assembly, in enacting the 1995 Amendments to the VHRA, eliminated a common law cause of action for wrongful termination based on any public policy which is reflected in the VHRA, regardless of whether the policy is articulated elsewhere.”  Connor v. National Pest Control Association, 257 Va. 286 (1999).  See also Doss v. JAMCO, 254 Va. 362 (1997).

c.         To pursue a Bowman wrongful discharge claim, “an employee must be a member of the class of persons that the specific public policy [enunciated in the Va. statute] was designed to protect.”  The Supreme Court explicitly stated that the public policy wrongful discharge claim is not a generalized “whistleblower” cause of action.  Dray v. New Market Poultry Products, Inc., 258 Va. 187 (1999); see also City of Virginia Beach v. Harris, 259 Va. 220 (2000).

d.         In its most recent pronouncement, the Virginia Supreme Court (in a 4-3 ruling) held that an employee fired for refusing to engage in a sexual relationship with her boss in violation of the policies underlying Virginia criminal statutes could state a viable wrongful discharge claim.  The Court held that the same conduct can support more than one theory of recovery, so the employee’s claim could proceed even though her claim for sexual harassment and sexual discrimination was precluded by the VHRA amendments and the Conner case.  Mitchem v. Counts, 259 Va. 179 (2000).

3.         Statute of limitations:  2 years

[Va. Code § 8.01-245]

4.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

B.         Actual and Constructive Fraud

1.         Elements of cause of action for actual fraud:

a.         A false representation;

b.         Of a material fact;

c.         Made intentionally and knowingly;

d.         With intent to mislead.

e.         Reliance by the party misled.

f.          Resulting damage to the misled party.

Ashmore v. Herby Morewitz, Inc., 252 Va. 141 (1997).

2.         Requirement of misrepresentation:  Must relate to a present or pre-existing fact and may not ordinarily be predicated upon unfulfilled promises or statements as to future events.  For example, promises made by an individual without any intention of performing them would be actionable.

3.         Reliance must be reasonable:  This includes an obligation of the plaintiff to engage in reasonable inquiry.

4.         Burden of proof:  Clear, cogent and convincing evidence.

Elliott v. Shore Stop, Inc., 238 Va. 237 (1989).

5.         Statute of limitations:  2 years.

[Va. Code § 8.01-243(A)]

6.         Distinction between constructive fraud and actual fraud:   In Virginia, plaintiffs also have a cause of action for Constructive Fraud.  Instead of proving that the defendant intentionally and knowing misrepresented a material fact with the intent to mislead, the plaintiff only need prove the defendant innocently or negligently misrepresented a material fact with the intent that the plaintiff rely upon it.  See VMJI 39.090 (Actual Fraud) and 39.100 (Constructive Fraud).  If the employer has a duty to disclose a material fact but conceals that fact from the employee, a cause of action for constructive fraud may lie.  Cohn v. Knowledge Connections, Inc., 266 Va. 362 (2003).  The standard of proof remains clear and convincing.

7.         Remedies:

a.         Rescission.

b.         Compensatory damages:  Damages and expenses incurred

in reasonable reliance upon the misrepresentation.

c.         Punitive damages:  Must establish proof of actual malice.

C.        Defamation

1.         Plaintiff is entitled to recover if he or she can establish that the defendant made a false statement of fact which was published to a third party resulting in damage to the plaintiff.

2.         Statement of fact:  The offending words must be understood to convey a false representation of fact as opposed to an opinion.  Yeagle v. Collegiate Times, 255 Va. 293 (1998).

3.         Burden of proof:  The plaintiff must prove by a preponderance of the evidence the falsity of the statement.  The defendant does not have the burden to establish truth as a defense.  Food Lion v. Melton, 250 Va. 144 (1995).

4.         Qualified privilege:  Most statements in the employment context are covered by a qualified privilege, which privilege can only be overcome by proving by clear and convincing evidence that the qualified privilege has been abused.  Va. Code § 8.01-46.1 (conferring qualified immunity on employers providing information about employees’ performance, with presumption that employers acted in good faith, rebuttable only by clear and convincing evidence of employers’ knowledge or reckless ignorance of the falsity of such information).  The plaintiff can establish that the defendant abused his/her qualified privilege when:

a.         The defendant knew the statement was false or made it with reckless disregard of whether it was false or not;

b.         That the statement was deliberately made in such a way that it was heard or seen by persons having no interest or duty in the subject of the statement; or

c.         That the statement was unnecessarily insulting;

d.         That the language used was stronger or more violent than was necessary under the circumstances; or

e.         That the statement was made because of hatred, ill will or a

desire to hurt the plaintiff rather than a fair comment on the subject.

Smalls v. Wright, 241 Va. 52 (1991).

5.         Workers’ compensation is not a bar to a defamation action in the employment setting.  Williams v. Garraghty, 249 Va. 224 (1995).

6.         Statute of limitations:  1 year.  Most courts find that a plaintiff’s defamation cause of action accrues at the time of the defendant’s communication– even if the plaintiff does not learn about it until later.

[Va. Code § 8.01-247.1]

7.         Remedies:  In the case of per se defamation, the plaintiff is entitled to presumed damages, as well as:

a.         General compensatory damages.

b.         Punitive damages – but only if the plaintiff establishes

constitutional malice (knowing falsity or reckless disregard).

Ingles v. Dibley, 246 Va. 244 (1993).

D.         Intentional Infliction of Emotional Distress

1.         Elements of cause of action:

a.         Defendant’s conduct must be intentional or reckless.

b.         Conduct must be outrageous and intolerable, offending

generally accepted standards of decency and morality.

c.         There must a causal connection between the conduct and the emotional distress.

d.         The emotional distress must be severe.

Womack v. Eldridge, 210 S.E.2d 145 (Va. 1974).

2.         Outrageous conduct:  Defendants have mistakenly relied upon Russo v. White, 241 Va. 23 (1991) in support of the proposition that most conduct does not rise to the level of “outrageous conduct.”  In Russo, the defendant had made multiple, successive hang-up calls to Ms. Russo for a period of months.  However, the Virginia Supreme Court held in Russo “We will agree with the plaintiff and assume, without deciding, that defendant’s conduct rose to the level of outrageousness required to support the cause of action.”  241 Va., at 27.  Instead, the Court rejected the claim because Ms. Russo had not alleged sufficiently severe emotional distress.

3.         Severity of emotional distress:  The Virginia Supreme Court has held that absent objective physical injury, medical attention, lost income or confinement to home or hospital, the plaintiff must establish “emotional distress that is so severe that no reasonable person could expect to endure it.”  Russo v. White, 241 Va. 23, 28 (1991).

4.         Burden of proof:  Clear and convincing evidence.

5.         Statute of limitations:  2 years

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

E.         Assault and Battery

1.         Assault – Elements of cause of action:  Any threatening act that puts plaintiff in reasonable fear of physical injury.  (VMJI 36.010)

a.         “Threatening act” is defined as:  “an overt act or an attempt, or the unequivocal appearance of an attempt with force and violence, to do physical injury to the person of another”.  Merritt v. Commonwealth, 164 Va. 653 (1935).  Words or gestures alone, however abusive, cannot amount to assault.  Harper v. Commonwealth, 196 Va. 723 (1955).

2.         Battery – Elements of cause of action:

a.         A touching;

b.         No matter how slight;

c.         Of another person;

d.         In a rude, insulting or angry way.  (VMJI 36.000)

3.         Claims are not barred by Workers’ Compensation Act because injury does not constitute “injury by accident.”  An assault that is “personal to the employee,” not directed against the employee as such, is outside the scope of the Workers’ Compensation Act.  Butler v. Southern States Cooperative, Inc., 270 Va. 459 (2005).

4.         Burden of proof:  Preponderance of the evidence.

5.         Statute of limitations:  2 years

[Va. Code § 8.01-248]

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

F.         Negligent Hiring

1.         Elements for a cause of action:

a.         Proof that an employment relationship exists.

b.         Proof that the employee who caused the injury was unfit for

hiring or retention.

c.         Proof that the employer had actual or constructive knowledge that the employee is unfit.

d.         Proof that the employee’s tortious act was the cause in fact of plaintiff’s alleged injury and that the negligent hiring was the proximate cause of the alleged injury.

e.         The injury must have been foreseeable – not a mere probability – to the employer.

f.          Actual damages or harm must have resulted.

J. v. Victory Tabernacle Baptist Church, 236 Va. 206 (1988).

2.         Definition:  “Negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others.”  Victory Tabernacle at 211.

3.         In 1988, the Virginia Supreme Court found that an employer could be liable for negligent hiring when it hired an employee who had recently been convicted of aggravated sexual assault and was on probation for that offense where the employee subsequently raped and sexually assaulted a 10-year-old girl he met at the workplace.  Victory Tabernacle, supra.

4.         Statute of limitations:  2 years.

[Va. Code § 8.01-248]

5.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.

G.        Negligent Retention

1.         Negligent retention differs from negligent hiring only with regard to the time at which an employer is charged with knowledge of an employee’s unfitness.  Negligent retention occurs when knowledge of unfitness arises during the tenure of employment.

2.              State and federal courts widely disagreed on whether Negligent Retention was a cause of action in Virginia.  In February of 1999, the Virginia Supreme Court unequivocally held that such a cause of action was indeed actionable in Virginia.  Southeast Apartments Management v. Jackman, 257 Va. 256 (1999); Call v. Shaw Jewelers, No. 3:98CV449 (E.D. Va. 1999).

3.         Elements of the claim.  The plaintiff must establish that the employer negligently retained an employee the employer knew or should have known could cause harm to a person because of his employment position.

4.         Critical to the analysis of this tort is the nexus between the conduct

previously engaged in by the employee and the conduct giving rise to a claim of liability against the employer.   The previous conduct must be sufficiently close to put the employer on notice that this employee could engage in similar or related conduct.   In Southeast Apartments Management v. Jackman, the Court held that the nexus was insufficient to put the employer on notice of an assault on an apartment tenant.

5.         Statute of limitations:  2 years.

[Va. Code § 8.01-248]

6.         Remedies:

a.         Compensatory damages.

b.         Punitive damages.