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27
Jun
2022

Prince William Chamber 2022-2023 Annual Meeting

The Prince William Chamber of Commerce (PWCC) had a great day at its Annual Meeting on June 16th, hosted at the Farm Brewery at Broad Run! Rick Nishanian is the new Chairman of the Board for the PWCC and the fourth VFN partner to serve in this role. Please congratulate Rick on this great accomplishment.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

31
May
2022

Beware of Office Birthday Parties!

Written by: Monica Munin, Esq.

One Kentucky employer got a nasty surprise after inadvertently hosting a birthday party on behalf of an employee who requested that his birthday not be observed due to social anxiety. Kevin Berling, a former employee of Gravity Diagnostics, sued the Company after he was fired for behavior, he exhibited in response to an unwanted birthday party.

Berling had approached his office manager to request that the Company not throw him an office birthday party. He explained that he had an anxiety disorder as well as a propensity for panic attacks that becomes exacerbated when he is the center of attention. Berling also indicated he had accumulated “bad memories” associated with his birthday that made parties upsetting to him. The Office Manager inadvertently forgot to pass on the information to the rest of the company and was out of the office on Berling’s birthday.  As a result, a birthday party, including balloons and a banner, was set up for Berling in the office break room. When Berling heard about the party, he suffered a severe panic attack and went to his car to hide from the celebration.  The next day Berling was called into a meeting to discuss the incident where his managers allegedly scolded and belittled him for his reaction to the unwanted birthday party.  Berling indicated one manager accused him of “stealing his co-worker’s joy.”  The meeting led to another panic attack with Berling clenching and unclenching his fists as instructed by his therapist to try and mitigate his panic symptoms. His behavior further alarmed his managers who asked him to immediately leave the property and assumed he was on the verge of a violent outburst.  Later that week Berling was terminated “because of the events of the previous week.” Berling then brought suit alleging discrimination under a Kentucky disability law similar to the Americans with Disabilities Act (ADA) and retaliation for exercising his rights. The Company asserted that Berling had been fired due to a legitimate fear of violence rather than because of his anxiety. A jury sided with Berling and found that the Company violated Berling’s disability rights, awarding him $450,000. The jury essentially held that Berling’s reaction was a reasonable mitigating measure to control his panic attacks and that the manager’s assumption Berling was on the verge of violence was discriminatory. Berling’s attorney, Anthony Bucher, summarized the incident to the British Broadcasting Company by stating:

“He had a panic attack. That is all. And, because representatives from Gravity Diagnostics did not understand his panic response and were unnerved by his response, they assumed he was a threat. Assuming that people with mental health issues are dangerous without any evidence of violent behavior is discriminatory.”

The incident serves as a reminder to employers that mental disabilities can qualify for protection under disability discrimination statutes and that employees are not required to file a formal request for accommodations in order to be entitled to those protections. Here, the jury found that Berling’s request was an exercise of his right to a reasonable accommodation under Kentucky disability law even though he did not explicitly refer to the law or use the phrase “reasonable accommodation.” Federal and Virginia state disability statutes have also been interpreted by courts as providing expansive rights to eligible employees. Employees do not need to use specific “buzz words” in order to be entitled to protections under the statutes. It is vitally important that employers ensure their supervisors and staff are familiar with employee rights under disability law and that they receive training regarding what a request for an accommodation can look like. Further, training should be sure to include general information regarding mental disabilities. While the facts in Berling’s case are unique, we can be sure that disability cases involving mental health disorders are likely to continue to evolve as courts attain a better understanding of the nature of such disabilities.

Need supervisor training? Unsure about a disability matter or other employment law issue? Contact Monica Munin, Esq. at mmunin@vfnlaw.com for answers.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

20
May
2022

Rising Star Super Lawyer

Brett Callahan
Civil Litigation

We are pleased to announce for the second year in a row, our very own Brett Callahan has been selected as a Rising Star Top Rated Business Litigation Attorney in Virginia by Super Lawyers.  Super Lawyers is a research-driven, peer-influenced rating service of outstanding lawyers who have attained a high degree of professional achievement and peer recognition.  Each year no more than 5 percent of the attorneys in the state are selected for the Super Lawyers list, and no more than 2.5 percent for the Rising Stars list.

Brett_Rising-Star
18
May
2022

A Day of Service Supporting Our Community!

Written by: Tyler Blaser, Esq.

This past Saturday, VFN business counsel, Tyler Blaser, engaged in a day of service to benefit Carried to Full Term, a 501©(3) providing long-term housing to pregnant and homeless women, alongside his Leadership Prince William 2022 classmates. Carried to Full Term is a place of hope for women who find themselves in a crisis pregnancy situation. Their home is located in the heart of the Town of Haymarket, providing housing, counseling, social service contacts, and postpartum support in an independent living environment.

Over 75 volunteers participated in this year’s class project, beginning at 6 a.m. and lasting well into the afternoon. Inside the home, volunteers cleaned, painted, and decorated a community room, office, bathroom, and various bedrooms, while installing new curtains, rugs, lamps, and appliances. On the outside of the facility, community members built a gazebo, picnic table, and playhouse. We also weeded, mulched, and planted gardens. Multiple members of the Prince William County Board of Supervisors spoke at the event to recognize the hard work and spirit of our Prince William community.

If you need me or just want more information, please give me a call at 703.479.3181, send an email to tblaser@vfnlaw.com, or visit my Attorney Page.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

3
May
2022

New District Court Case Limits Application of Attorney-Client Privilege in Workplace Investigations Conducted by Counsel

Written by: Monica Munin, Esq.

The United States District Court for the Western District of Virginia released a published opinion granting (in part) a plaintiff’s motion to compel seeking the release of an employer’s communications and investigation report with counsel regarding a complaint of sexual harassment.  The motion also sought information from counsel regarding what advice the employer received from counsel regarding “how to structure” the plaintiff’s termination. The motion was denied with respect to the attorney’s communications with counsel regarding the plaintiff’s termination and granted with respect to the communications relating to the investigation of the plaintiff’s sexual harassment claims.

The case involves a woman employed by the Town of Front Royal, Virginia (“the Town”) who complained of repeated instances of sexual harassment perpetrated by a colleague, William Sealock.  According to the plaintiff, she met with the Human Resources Department in August of 2019 to discuss her complaint following conversations she had had with other Town employees regarding repeated instances of unwanted touching and inappropriate remarks despite telling Sealock that the comments and touching were unwanted. Human Resources told the plaintiff she would hear back within two weeks following the completion of an investigation. The plaintiff did not hear from Human Resources or anyone from the Town, however, until November 2019. According to the plaintiff she had to repeatedly request updates on the status of the investigation and sought help from the Town to alleviate the harassment and retaliatory conduct she was suffering since reporting the sexual harassment. The plaintiff alleges that the investigation report in the matter was “wholly dismissive of her complaints (to the extent they were investigated at all) and [was] indicative of a sham investigation.” The plaintiff went on medical leave in December 2019 and was terminated upon returning to work on January 30, 2020. The plaintiff alleges that the Town’s stated reason for her termination, that her job was subject to “right-sizing” was a pretext for sex-based discrimination and retaliation. The plaintiff initially filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) before bringing suit against the town for violations of the Family Medical Leave Act (“FMLA”), as well as violations of Title VII of the Civil Rights Act of 1964.

Specifically, the plaintiff alleged sex-based discrimination, unlawful retaliation, and retaliatory hostile work environment in addition to her allegations that FMLA was violated. Shortly thereafter, the plaintiff filed a motion to compel, claiming that the Town had put the advice provided by the attorney hired to conduct the investigation in issue, thereby waiving attorney-client privilege over the communications. During depositions, the Town’s representative testified that Julie Judkins was hired “to make sure that everything in the investigation, and later in the firing of [the plaintiff] was done to ensure it was legal.” The plaintiff’s motion sought the release of “information and documents underlying Ms. Judkin’s involvement in both the investigation of [the plaintiff’s] harassment and retaliation complaints and in the termination of [the plaintiff’s] employment.” During depositions, the Town’s attorney had refused to allow Ms. Judkin (the Town’s counsel) to respond to a question asking if “Ms. Judkin’s advised the town how to end the plaintiff’s employment with the Town.” When asked why the Town had hired Ms. Judkins, the Town’s reply was “to advise Town council as it relates to a complaint that was made by [the plaintiff].” The Town representative’s deposition indicated that the investigation into the plaintiff’s allegations was “conducted by [Human Resources] and counsel” and that “if legal counsel and the [Human Resources] Department had concluded that there was sexual harassment or retaliation or a hostile work environment, he without a doubt…would have encouraged Council to take all the appropriate action afforded to us by law.” The Town’s representative further testified (after being asked to opine if the plaintiff’s allegations, assuming they were true, violated the company’s sexual harassment policy) “that would be up to the investigative body, in this case, it was the [Human Resources] Director in conjunction with legal counsel, to draw that legal conclusion of what that was harassment or not…” The Town had asserted privilege over its communications with the attorney that conducted the investigation as to the communications regarding the investigation, any advice sought regarding how to structure the plaintiff’s termination, and any advice regarding the conclusions of the investigation and remedial action recommended thereafter. The Town’s argument against waiving privilege is that it had not raised “reliance on the advice of counsel” as a defense in the case.

The Court held that the Town “put Ms. Judkin’s involvement in the investigation of [the plaintiff’s] internal complaints at issue but had not put ‘at issue’ her advice regarding Brown’s termination.”  In granting the plaintiff’s motion with respect to the attorney’s involvement in the investigation, the Court noted “[the Town] essentially turned the investigation of the plaintiff’s charges over to the attorney, and it was counsel who assembled the facts, drew the conclusions, and constructed the remedial response…under those circumstances, to prevent plaintiffs from discovering what was done by counsel and why, would be tantamount to giving the defendants both the ‘sword’ (i.e. the argument ‘that we were reasonable because we had our attorneys investigate the charge and craft a response’) and the ‘shield’ (i.e. what our attorneys did and why they did it, is privileged’).”  The Court found that the information sought by the plaintiff was “likely to speak directly to whether the defendants had actual knowledge of all the circumstances surrounding the allegations and whether their response to such allegations was clearly unreasonable.” It was the town’s reliance on the attorney to assist with the investigation and advice about what remedial measures were necessary, if any, that put the Town’s communications with counsel at issue in the case. The Court thereafter permitted the plaintiff to depose the Town’s counsel to an inquiry “[limited to] knowledge concerning the investigation and actions taken by the defendant in response to plaintiffs’ allegations.”  With respect to the plaintiff’s assertion that the Town had put communications with counsel at issue regarding the plaintiff’s termination and had waived privilege by stating in its EEOC position statement that counsel was hired to “ensure compliance with the law,” the Court found that attorney-client privilege had not been waived and the plaintiff could not depose the town’s counsel regarding that issue.”

The case underscores the delicate balance clients and attorneys must strike when seeking to investigate and address allegations of discrimination in the workplace.  It is vitally important to work with an attorney knowledgeable not only about the employment law statutes at issue but also skilled in ensuring that protected communications are not put into an issue where an employer would prefer to maintain confidentiality. 

Questions or concerns about this case? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

21
Apr
2022

“Go-To Lawyer” in Business Law 2022

V. Rick Nishanian
V. Rick Nishanian
Managing Partner

Congratulations to Rick Nishanian for being named a “Go-to Lawyer” in Business by Virginia Lawyers Weekly (VLW). This program recognizes the top lawyers across the commonwealth in a given practice area, and the first field of practice is business law.

Rick handles complex business matters, mergers and acquisitions, and structuring business and real estate transactions with an emphasis on business and real estate finance.

A “Go-To Lawyer” is defined as:

  • A lawyer who is an expert in his or her field, well-versed in the nuances of the case law, statutes, and regulations clients will encounter.
  • A lawyer who is experienced and enjoys a record of success, with many cases and/or transactions that give testimony to the quality advice he or she can provide.
  • A lawyer to whom other lawyers make referrals because of his or her expertise and accomplishments.
  • A lawyer who can think creatively and identify all options for a client.

A full profile, highlighting Mr. Nishanian’s achievements in business law, is featured on the Virginia Lawyers Weekly Site HERE.

24
Jan
2022

Labor Reforms Targeted as Virginia Prepares for a Change in Administration

Written by: Monica Munin, Esq.

Republican governor Glenn Youngkin assumed office on January 15, 2022, enacting 11 executive orders including orders that; end mandatory masking for children in grade K-12; ban critical race theory from state classrooms; promise to “investigate wrongdoing” in Loudoun County Public Schools; and, promise to cut workplace regulations.  Consequently, the fate of recent labor reforms in Virginia, including a scheduled increase to the State’s minimum wage, domestic workers bill of rights, and the COVID-19 emergency standard, remains uncertain.  Republicans swept the State’s elections this year, claiming the governor’s office, lieutenant governor’s office, attorney general’s office, and a majority in the House of Delegates. Youngkin cast himself as an employer-friendly candidate who would eliminate “job-killing regulations” and oppose government lead vaccination mandates.

While it is not yet clear how far Republican can or will go to stem or otherwise reverse the policies implemented during the Governor Northam’s administration, Youngkin has wasted no time preparing for a change in priorities.  In addition to the 11 executive orders signed on his first day in office, Youngkin delivered an address outlining his plan for education and tax reform.  Prior to his swearing in, Youngkin had also announced that he intends to appoint George “Bryan” Slater, as state labor secretary.  Slater was a former U/S/ Labor Department official under the Trump administration and served as White House liaison to the Labor Department under President George W. Bush as well. Democrats currently retain control of the State Chamber, which is not up for reelection until 2023.

Nonetheless, incoming Republicans in the State legislature are hoping to capitalize on Youngkin’s win and pass a number of bills, including a freeze on the scheduled increase to the state’s minimum wage which would keep the minimum wage at $11, bills limiting domestic worker protections, and bills intended to prevent cities and counties from using government contracts to ensure wage rates and employee benefits beyond what is currently required by state or federal law.

Worried about what the change in administration means for your business? Confused about how to proceed? Please feel free to reach out by way of phone or email Monica Munin for guidance.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

21
Jan
2022

The Cost-Benefit of Engaging Business Counsel – Part 1

Written by: Tyler Blaser,Esq.

Part I: Protecting You & Your Business from Legal Liability

The Problem. As a young lawyer growing a business transactions legal practice, one of my toughest challenges is helping entrepreneurs in our community understand the cost-benefit value of consulting with a lawyer to plan and prevent legal problems, rather than contacting a lawyer for the first time in reaction to those problems when they happen. And, make no mistake, Murphy’s Law requires that these problems will happen – a fact every business owner will confirm.

While our law firm, Vanderpool, Frostick & Nishanian, P.C. (“VFN”), represents both national and international businesses, most of my personal clients are friends, family, and other close professional connections throughout the Northern Virginia area who have stricter budget constraints. One advantage stemming from these personal relationships is the opportunity to engage in intimate, frank discussions about how they operate their business, calculate and manage risk, and explore client perception of when they believe it is worth their capital to engage counsel. In having these conversations, entrepreneurs will tell me that they would consult with a lawyer more often, but the front-end cost ultimately leads them to incur risk without counsel.

Contrasting Approaches. While this approach may be common, and even understandable, any business lawyer can attest to the fact that this outlook is flawed from a cost-benefit analysis perspective, both in terms of avoiding future liability and securing payment of amounts receivable. This article explores the cost-benefit of obtaining legal advice as it relates to avoiding future liability while considering two hypothetical young entrepreneurs beginning small businesses:

Owner A wants to start a business and keep it afloat, but like many, faces financial constraints and is therefore cost-conscious. Owner A assumes that lawyers are a waste of money but runs into some issues with setting up its business entity. After some thought, Owner A sets up a free initial consultation with business counsel but declines representation to avoid paying the required hourly rate. Owner A decides to go it alone, begins business operation, obtains an SBA loan, executes a commercial lease, and agreements with customers and vendors, all without counsel.

Owner A’s business is thriving until it is served with a lawsuit filed by a disgruntled customer, seeking $100,000 in damages for work that the customer believes needs to be redone, plus another $200,000 in statutory damages and attorney fees, due to non-compliance with Virginia Consumer Protection Act (“VCPA”). Additionally, the customer filed a complaint with the Department of Professional and Occupational Regulation (“DPOR”), putting Owner A’s professional license at risk of revocation. Because Owner A did not follow corporate formalities in forming and operating its business, Owner A’s personal assets, including its home, vehicle, investments, and personal bank accounts are all at significant risk.

Owner A knows it cannot navigate the legal process to deal with complex legal issues of this magnitude and decides to engage counsel to defend this lawsuit. Luckily, Owner A is able to successfully defend the lawsuit, but in getting there, must pay its attorney ~$50,000 to prepare for trial, plus another ~$20,000 for related consultants and experts (both conservative estimates). Despite Owner A successfully defending the customer’s civil claims, DPOR suspends Owner A’s professional license due to violated regulations. Owner A is now ~$70,000 in the hole, without a professional license, or the income from its business, cannot pay its loan or rent payments when due, and eventually must file for Chapter 7 bankruptcy.

Owner B starts in the same position as Owner A, also facing financial constraints, and is also cost-conscious. Owner B knows it does not have the expertise or time to devote to consumer protection or professional licensure compliance (or other legal complexities), so Owner B sets up a free consultation with VFN business counsel. After consultation, Owner B engages counsel to prepare its business entity’s articles and organizing documents. The lawyer provides these services to Owner B, and in related discussions, recommends Owner B forward its customer agreement for review. The lawyer recommends Owner B amend its customer agreement to comply with VCPA and DPOR requirements. The lawyer makes appropriate changes and counsels Owner B on the importance of following corporate formality.

Owner B pays a total of $2,500.00 for these services, but in doing so, avoids significant legal (and financial) exposure. If a lawsuit were filed against Owner B, its attorney is positioned to negotiate or dismiss any claims quickly, avoiding cost for trial prep, and fees for consultants and expert witnesses. Incidentally, Owner B also sleeps well at night, knowing its attorney is losing sleep on its behalf.

The Lesson. While I have intentionally simplified these hypothetical scenarios for contrast, any successful business owner can confirm the lesson they offer invest a little amount now to engage legal counsel and manage risk, to avoid major liability and expense down the road. You will thank yourself. The issues discussed in this article focus on business formation, corporate liability, and regulatory compliance of customer agreements, however, consultation with a business attorney is similarly valuable in the context of

  • purchasing a business;
  • raising capital and extending or obtaining financing;
  • buying, selling or leasing commercial property;
  • negotiating and navigating agreements with vendors and customers;
  • drafting corporate governance agreements related to decision making, distributions, and other ownership rights; and/or
  • selling your business’ equity or assets, when that time may come.

Consult with an Experienced Small Business Lawyer. VFN is one of the most highly regarded law firms in Northern Virginia, with seasoned and well-connected attorneys who can help you in any of these areas. While we also have experienced litigators who can help you in the event of a dispute, we would always prefer to help you avoid legal problems before they happen.

Remaining in contact with an experienced business attorney is the most simple, sure-fire way to avoid legal liability, and the resulting financial stress that comes with it. By doing so, you can make sure your business is in a position to thrive and will continue to do so moving forward.

If you need an attorney or just want more information, please give me a call at 703.479.3181, send an email to tblaser@vfnlaw.com, or visit my firm page at Vfnlaw.com.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

18
Apr
2016

Vanderpool, Frostick & Nishanian Named One of VA’s Largest Law Firms

For Immediate Release:

Manassas, VA. — In their most recent issue, “Virginia Lawyers Weekly” named Vanderpool, Frostick & Nishanian one of Virginia’s largest law firms. The “Largest Law Firms” survey, which has been conducted since 1989, gives an overview of the 75 largest law firms within the commonwealth of Virginia, and is judged based upon the number of partners, associates, of-counsel members and office locations within the firm. Vanderpool, Frostick & Nishanian was proudly named among the firms in this survey, tying for the 65th spot on the list. The compilation was published as a supplemental piece in the Virginia Lawyers Weekly magazine and online.

The firm of Vanderpool, Frostick & Nishanian became one of Virginia’s largest law firms due to their wide range of practice areas, excellence in each field, and their knowledgeable and experienced attorneys who continuously achieve the best results for their clients. Their reputation within the community has garnered respect and trust, and with nine partners, six associates and team of legal staff, Vanderpool, Frostick & Nishanian will continue to grow, providing top notch legal representation and service.

About Vanderpool, Frostick & Nishanian, P.C.

Vanderpool, Frostick & Nishanian is a full-service law firm based in Manassas, VA, with locations in Fredericksburg and Lakeridge, VA. Established by Michael R. Vanderpool in 1986, the firm serves clients through a wide range of practice areas including Business and Corporate Law, Civil Litigation, Employment Law, Real Estate Law and much more. To learn more about Vanderpool, Frostick & Nishanian, visit them at www.vfnlaw.com.