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Labor and Employment 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.

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.

Age Discrimination Based on WV Substantially Younger Rule

No matter where you do business, it is important to know the legal standards that apply to potential employee lawsuits, including age discrimination claims. Since 1996, federal age discrimination cases have been governed by the "substantially younger" rule outlined by the United States Supreme Court. Does this rule apply to claims of age discrimination under West Virginia (WV) law? In other words, does a WV substantially younger rule exist?

You Should Now Be Using the New I-9 Form in WV

Starting in January 2017, employers were required to start using a new I-9 form in West Virginia (WV) and nationwide. In a nutshell, the I-9 is the form that employers must complete in order to verify the identity and work eligibility of employees. The new I-9 form has frequently been updated, with the latest iteration being announced on July 17th, 2017. Both employers and employees are required to complete the form, with both citizens and non-citizens being affected by this legal requirement for employment. Employers who fail to use the new form "may be subject to all applicable penalties," according to the U.S. Immigration and Customs Enforcement agency ("ICE").

Surveillance of Workers' Compensation Claimants: Is It Legal and How May It Be Used in West Virginia?

The attorneys at Jenkins Fenstermaker, PLLC are often asked whether it's permissible to use surveillance of workers' compensation claimants in West Virginia and, if so, how that evidence may be used. Consider this common scenario:The treating physician diagnoses the claimant with very serious conditions and prescribes many treatments, including the long-term use of opioid pain medications. Surveillance evidence would tend to make this treatment seem highly unnecessary. The employer wants to approach the treating physician with the surveillance to see if he will stop providing treatment that is clearly unnecessary in light of the tasks the claimant is seen doing in the surveillance video.Let's take a look at the development of the law on workers' compensation surveillance in West Virginia.

Mandatory Post-Accident Drug Testing in WV

Do you routinely test employees for illegal drugs and alcohol when they are involved in a workplace accident? If so, you may incur the wrath of both the U.S. Occupational Safety and Health Administration (OSHA) and the West Virginia (WV) Supreme Court. OSHA believes that employees may be afraid to report workplace injuries and illness for fear of retribution from their employers. That is why it has promulgated the "Final Rule to Improve Tracking of Workplace Injuries and Illnesses," which may impact mandatory post-accident drug testing in WV and elsewhere.

Sexual Orientation Discrimination in the Workplace in WV

In recent years, many states and municipalities across the United States have sought to enact statutes and ordinances to include "sexual orientation" amongst the classes traditionally protected from discrimination. West Virginia (WV) has followed suit. WV Senate Bill 77, introduced on February 15, 2017, similarly sought to amend the West Virginia Human Rights Act and the West Virginia Fair Housing Act to include "sexual orientation" as a protected class and prohibit sexual orientation discrimination in the workplace in WV, in places of public accommodation, and in housing.

A Weakened WV Senate Bill 224 Lightened Wage Bond Requirements for Some Employers

In 2017, the West Virginia (WV) Legislature proposed legislation eliminating the requirement for wage payment bonds for some employers. Instead, the Legislature passed a weakened WV Senate Bill 224, amending the Wage Payment and Collection Act to keep the wage bond requirement but shortening the period such bonds are required.
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