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January 2018 Archives

WHAT'S AN EMPLOYER TO DO? Addressing Workplace Harassment in the #MeToo Era

I have lost track of the number of times in my 27-year career--usually when giving a seminar presentation--that I have been asked the question, "How can I keep from being sued?" My response never varies, "You can't." A person or a company can do the very best that they can--follow all the rules to the best of their abilities--and, yet, still be brought into litigation. Sometimes, despite best efforts, they have made a mistake (and the larger the company, the more individuals there are to make those mistakes). Sometimes, they simply are wrongly accused. Sometimes, unfortunately, they (or someone in their organization) did not believe the rules applied to them. All that can be done is to lessen the risk of suit by employing best practices. The overriding reason for employing best practices, however, should never be simply to avoid lawsuits, but instead to instill a culture where people work well together to achieve a good result. Reducing the risk of litigation is just one positive byproduct.

WV Small Business Capital Act

Starting a new business is hard, and finding the funding to get that business off the ground can be one of the hardest parts. Recognizing the challenges faced by financing a business in West Virginia (WV), in 2016, the West Virginia Legislature passed the WV Small Business Capital Act (the "Act"), codified at Chapter 32, Article 5 of the West Virginia Code.

The NLRB Adopts the "Goldilocks" Test for Employer Rules

Did you read the excruciatingly boring 30-page "Report of the General Counsel Concerning Employer Rules" that was issued on March 18, 2015, by NLRB General Counsel Robert F. Griffin, Jr.? Don't embarrass yourself by admitting this fact - and don't cry when you learn that the effort was totally wasted.

Sexual Harassment and Arbitration: More News Equals More New Legislation

What do Senator Al Franken and President Donald Trump have in common? As it turns out, quite a bit: Both men were born in New York City, simultaneously belonged to the Democratic party for many years, attended prestigious East Coast universities, and both men have been accused by numerous women of sexual harassment. Of course, Senator Franken and President Trump are not the only famous men who recently have been accused of sexual harassment (or worse). Here is a small sampling: U.S. Circuit Court Judge Alex Kozinski, Hollywood mogul Harvey Weinstein, U.S. Representative Trent Franks, radio personality and author Garrison Keillor, NBC host Matt Lauer, Def Jam Records founder Russell Simmons, comedian Louis C.K., actor Kevin Spacey, and former Alabama Chief Justice Roy Moore.

How to Draft a Mandatory Arbitration Agreement that Both Sides Can Live With

Does it matter if employees like or loathe their employers' mandatory arbitration agreements? After all, employers have gained the upper hand when it comes to the mandatory arbitration of employment disputes. Both federal and state courts routinely rebuff employee challenges to the enforceability of such agreements.

Home Damage from Mine Blasting in West Virginia

A 2017 attempt to increase the required distance between production blasting activities and currently or recently occupied structures failed to pass in the West Virginia legislature. House Bill 2087, introduced in February of 2017, proposed to amend and reenact §22-3-22a of the Code of West Virginia relating to blasting activities in order to prevent home damage from mine blasting in West Virginia.

The Whistle-blower Law in WV: New Consequences for Violations

In 2017, West Virginia enacted legislation amending the law designed to protect employees of the state and its political subdivisions from retaliation against whistle-blowers in WV and allows such an employee to bring a civil action for redress if the State or a political subdivision discharges, threatens or otherwise discriminates or retaliates against an employee because the employee makes a good faith report to the employer or an appropriate authority of instances of wrongdoing or waste by a governmental entity.

The WV Direct Primary Care Practice Act: Concierge Medicine in West Virginia

In the 2006 Regular Legislative Session, the West Virginia (WV) Legislature enacted the WV Preventive Care Pilot Program, Chapter 16, Article 2J of the West Virginia Code. The purpose of the pilot program was to test the feasibility of patients obtaining direct primary and preventative care from healthcare providers for a pre-paid retainer outside of the traditional health insurance model. (Direct primary care or "DPC" is one model of a now popular term, "concierge medicine.") The Preventive Care Pilot Program by enactment expired June 30, 2016, although practitioners who were participating in the Pilot Program were permitted to continue beyond the expiration date. Its legacy is the WV Direct Primary Care Practice Act.
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