Month: April 2019

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Richmond Attorney’s Selected for Inclusion on the 2019 Virginia Super Lawyers List

Vandeventer Black attorney was selected to be included on the 2019 Virginia Super Lawyers list by Thompson Reuters. This renowned rating service considers attorneys from over 70 different practice areas that are nominated based on professional accomplishments and peer recognition.

  • Douglas M. Palais, Securities Litigation

Other awarding bodies have recognized Vandeventer Black’s legal team, such as Virginia’s Business Magazine Legal Elite and Rising Stars; Best Lawyers™ The Best Lawyers in America and Lawyers of the Year, Coastal Virginia Magazine Top Lawyers of Coastal Virginia, and Chambers USA Guide Best Lawyers in the Virginia Construction Industry, among others.

Statue of justice Statue of justice Statue of justice Statue of justice Statue of justice

Vandeventer Black Attorney’s Selected for Inclusion to the 2019 Virginia Super Lawyers List

Vandeventer Black attorneys were selected to be included on the 2019 Virginia Super Lawyers list by Thompson Reuters. This renowned rating service considers attorneys from over 70 different practice areas that are nominated based on professional accomplishments and peer recognition.

 Also, attorneys from the Norfolk and Richmond offices received the Super Lawyers acknowledgment:

Other awarding bodies have recognized Vandeventer Black’s legal team, such as Virginia’s Business Magazine Legal Elite and Rising Stars; Best Lawyers™ The Best Lawyers in America and Lawyers of the Year, Coastal Virginia Magazine Top Lawyers of Coastal Virginia, and Chambers USA Guide Best Lawyers in the Virginia Construction Industry, among others.

A Virginia Employer’s Guide to Marijuana

The law on marijuana is changing so rapidly that I anticipate this article will be outdated before I finish it. Check back here regularly for updates!

Virginia Law

Marijuana remains illegal both federally and in Virginia. Some Virginia jurisdictions are dialing down enforcement of criminal penalties, but they remain on the books.

Since marijuana remains illegal, it cannot be prescribed. Virginia has created an affirmative defense to criminal prosecution for possession of cannabidiol (“CBD”) oil or tetrahydrocannabinol acid (“THC-A oil”) in limited circumstances. In order to invoke the affirmative defense, the person must (1) have a valid, written certification from a Board of Pharmacy-registered physician (and, beginning July 1, 2019, this expands to licensed physician assistants and licensed nurse practitioners), and (2) a current active patient or caregiver (parent or legal guardian of a patient who is a minor or incapacitated adult) registration issued by the Board of Pharmacy. Va. Code § 18.2-250.1(C).

Because it is generally illegal to transport marijuana products over state lines, it appears that Virginians will have to obtain the CBD or THC-A oil, if derived from marijuana, from one of Virginia’s five Board of Pharmacy-licensed pharmaceutical processors, which will not be operational until late 2019. There will be one licensed pharmaceutical processor in each of Virginia’s five Health Service Areas, located in Portsmouth, Richmond, Bristol, Manassas, and Staunton. Those pharmaceutical processors will be permitted to grow, extract, dispense, and deliver medical cannabis oils, all on site.  The pharmaceutical processors may only dispense CBD or THC-A oils to patients or caregivers who are Virginia residents and who appear in person.

Virginia’s law does not provide any employment protection for individuals using CBD or THC-A oil. Under Virginia law, then, employers may be permitted to terminate employees for using such products, even if the use complies with Virginia’s medical cannabis program.

Federal Law

CBD and THC-A oil can be produced from either marijuana or hemp. Both are varieties of the Cannabis sativa L. plant; the critical difference between the two is their legal status and their THC (tetrahydrocannabinol – the principle psychoactive component of cannabis) content.

Marijuana remains a Schedule I substance under the federal Controlled Substances Act and is therefore illegal. The federal government, however, has made enforcement a low priority in states that permit marijuana.

Effective January 1, 2019, the federal government has removed hemp from Schedule I of the Controlled Substances Act. As such, hemp is now legal nationwide. Although closely related to marijuana, hemp has significantly lower levels of THC, meaning that it is practically impossible for someone to get “high” from hemp.

It is illegal to market any product—whether derived from hemp, marijuana, or anything else—as having therapeutic benefits or as a dietary supplement unless the FDA has approved it. To date, the FDA has approved only one CBD drug: Epidiolex, for the treatment of certain seizure disorders. In addition, the FDA has approved three drugs (Marinol, Syndros, and Cesamet) containing synthetic forms of THC. The various other “CBD” and “cannabis” products that can be found online and in pharmacies are not approved by the FDA. Currently, those products appear to be unregulated—there is no telling whether they contain any CBD, THC, or anything else derived from marijuana or hemp.

What this Means for Employers

Remember that at-will employment means that you can terminate an employee for any reason or no reason, so long as the reason is not illegal. Because Virginia law provides no employment protection for an employee using cannabis products, an employer is generally permitted to terminate an employee for using them.

Employers need to be mindful, however, of the obligation under the Americans with Disabilities Act (ADA) to provide reasonable accommodations to qualified individuals with disabilities. If an employee is using CBD or THC-A oil because of a disability, the employer may have a duty to provide a reasonable accommodation for the employee’s disability. Whether the employer has any duty to accommodate the employee’s cannabis use is more problematic, however, and will require careful analysis of the medication involved, its legality, and the employee’s job duties.

Employers should have a workplace policy addressing drugs in the workplace, including whether marijuana use is permitted and whether and when employees may be subjected to drug testing. Employers also should have detailed position descriptions, listing each job’s essential functions and physical requirements.

Typical drug tests reveal whether the individual has had THC within the last few weeks. The tests are not good indicators of whether the individual is currently under the influence of THC. Generally, usage of CBD oils may result in a positive drug test for THC. Because hemp has such low THC levels, it is possible that an individual who uses hemp-derived CBD oil might not test positive for THC in a drug test.

Under the current state of Virginia law, in many circumstances it will be legal for an employer to terminate an employee for a positive THC test result, even if the employee claims that the THC resulted from use of medical CBD oil or THC-A oil. Nonetheless, employers should proceed cautiously and request documentation from the employee regarding his or her claimed medical condition and medications before deciding to terminate.

The labor and employment law team at Vandeventer Black LLP can assist employers in evaluating these situations.

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Department of Labor Proposes New Rule on Joint Employment Status

On April 1, 2019, the Department of Labor (DOL) announced a proposed rule revising the standard for joint employer status under the Fair Labor Standards Act (FLSA). Once the proposed rule is published in the Federal Register, the public will have 60 days to submit comments to DOL for review. Interested parties may submit comments at www.regulations.gov, in the rulemaking docket RIN 1235-AA26.

The proposed rule marks the first time in 60 years that DOL has revised its interpretation of the joint employment standard. Generally, the FLSA imposes joint employer liability wherever two employers are jointly responsible for an employee’s wages. If two businesses are found to be joint employers under the FLSA, they can be held jointly and severally liable for any FLSA violations, including the failure to pay minimum wages and overtime pay. The proposed rule will significantly alter the accepted understanding of joint employment.

In 2016, the Obama administration issued guidance that substantially increased the likelihood that business relationships involving staffing agencies, subcontractors, and franchisees could lead to joint employer liability. The Obama-era guidance allowed joint employment liability if a business could potentially exercise control over an employee’s terms and conditions of employment, regardless of whether such control was actually exercised. Under the Trump administration, the DOL rescinded the Obama-era joint employment guidance in 2017, but did not announce any new rule addressing joint employment until now.

Under the proposed rule, the joint employment determination would be decided based on a four-factor test. The four factors ask whether a potential joint employer actually exercises the power to:

  • Hire or fire the employees;
  • Supervise and control the employees’ work schedules or conditions of employment;
  • Determine the employees’ rates and methods of payment; and
  • Maintain the employees’ employment records.

The proposed rule also included eight examples of how the four-factors would be applied.

The four-factor test can be traced back to the Ninth Circuit decision, Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983). In Bonnette, the Ninth Circuit employed essentially these same four factors in holding that certain in-home care workers were jointly employed by their respective states and counties for FLSA purposes.

Much of the additional information the DOL provided with the proposed rule amounts to a repudiation of the Obama-era guidance. The proposed rule expressly rejects ideas such as analyzing a worker’s “economic dependence” on a purported joint employer entity or speculation regarding that entity’s “theoretical ability” to take action affecting a worker’s terms and conditions of employment.

Workers’ rights advocates are generally opposed to the proposed rule, objecting that it is unduly restrictive and will limit the situations where joint employer liability may be imposed.  Pro-business groups are hailing the proposed rule as a fair approach to the joint employment inquiry, which has become increasingly controversial in the last five years.

If you have questions about the proposed rule or joint employment more generally, the labor and employment law attorneys at Vandeventer Black LLP are available to assist you.

Malware – A Persistent Threat to the Maritime Industry

During the last several years, many industries have fallen victim to cyber-attacks, and the maritime industry is not immune.  Consider the following recent news reports:  In 2017, the largest container shipping company in the world, A.P. MØller-Maersk, fell victim to NotPetya, a type of destructive malware, that required the installation of 4,000 new servers, 45,000 new PCs and 2,500 applications, costing the organization between $250 million and $300 million.  In the summer of 2018, the shipping giant COSCO announced it was hit with a ransomware attack affecting its U.S. shoreside operations. In the fall of 2018, Austal, the Australian ferry and defense shipbuilder, fell victim to a cyberattack and extortion attempt.  In March of this year, one of the world’s largest aluminum producers, Norsk Hydro ASA, fell victim to the LockerGoga ransomware, causing the company to switch to increased manual operations for a time.    

The maritime industry is vulnerable

Malware is a type of malicious software that is designed to disrupt, damage, or gain unauthorized access to a computer system.  Types of malware include viruses, worms, trojans, spyware, and ransomware. Whether launched by cyber criminals, cyber terrorists, insiders, or foreign states, the maritime industry is vulnerable to attack.  As the move towards automation, interconnectivity, and reliance on cyber systems increases, so do the vulnerabilities of the industry. 

Malware attacks can impact not only individual shipping companies, as described above, but ports as well, such as the ransomware attack that occurred last year on the Port of San Diego.  These attacks can be delivered as a result of social engineering through phishing emails that are designed to get the email recipient to click on a link, or through network security vulnerabilities, as alleged in the case of the ransomware attack on the Port of San Diego.

Individual ships can also be vulnerable to malware attack.  With the expansion of operational technology (OT), integrated with information technology (IT), and linked to the internet, ship systems present increasing vulnerabilities. Whether through vulnerable outdated and unpatched software systems or the widespread use of unsecure flash drives and other personal devices connected to ship computers, malware can be introduced into a ship’s systems, and from there, quickly carried to shore-based networks where it can do further damage.

Take protective measures

Publications such as The International Maritime Organization’s (IMO) “Guidelines on Maritime Cyber Risk Management” (MSC-FAL.1/Circ.3 (2017)), the United States National Institute of Standards and Technology’s (NIST) “Framework for Improving Critical Infrastructure Cybersecurity” and the recent “Guidelines on Cyber Security Onboard Ships” published in 2018 by industry associations, provide overall guidance on addressing a host of cyber security issues.  The following are some specific measures maritime businesses can take to reduce their risk of becoming infected by malware:

  • Keep all software and systems up to date with the latest versions to ensure all known vulnerabilities are patched.
  • Install and update reliable anti-malware software on systems
  • Prepare and implement a comprehensive information security program consistent with a recognized standard, such as the NIST standards.
  • Prepare and practice a robust and effective disaster recovery and business continuity plan, in the event the organization falls victim to malware.
  • Backup all data regularly.
  • Limit access to network systems based on user roles.
  • Secure all networks and firewalls, including closing unused ports and securing routers, to prevent unauthorized access.
  • Monitor and limit the use of external media, such as USB drives and other devices consistent with a comprehensive information security policy that includes a “bring your own device” (BYOD) policy. Ideally, removable media should only be utilized if it has been properly scanned for malware.
  • Train employees on threat awareness such as learning how to recognize phishing attacks and social engineering techniques as well as internet safety to reduce the likelihood of phishing attacks or accessing compromised websites. There are numerous training software packages available to test effectiveness of these training efforts.
  • Establish and enforce a remote access policy addressing use of both organizational and personal devices.
  • Validate all software prior to installation.
  • Consider purchasing appropriate cyber liability insurance to mitigate any damages.

While no counter-measures can completely eliminate the risk of being infected by malware, implementing these best-practices can help reduce an organization’s overall risk of a significant threat to the maritime industry.

*This article was featured on Virginia Business Magazine on the April/May 2019 issue. 

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