Employment Law Current EventsTrends

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Employment Law Current Events/Trends

• Elizabeth D. Harter, Esq.
• October 1, 2004

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Outline

• Supreme Court of Appeals of West Virginia
  Employment Law Update
• Some Top Trends in Employment Law (and Tips for
  Dealing with Them)

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Supreme Court of Appeals

• Court generally skeptical of summary judgment
  recent cases frequently are reversals
• West Virginia Human Rights Act cases are
  frequently subject of appeals
• Health care industry employers the most
  courageous appellants

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Supreme Court of Appeals

• Baughman v. Wal-Mart Stores, Inc. (2003) and
  Rohrbaugh v. Wal-Mart Stores, Inc. (2002)
• Drug testing at issue
• Clarification of Twigg v. Hercules Corp.
• Now more certainty regarding pre-employment and
  post-accident drug testing

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Supreme Court of Appeals

• Dailey v. Board of Review (2003)
• Unemployment compensation disqualification
• Court retreating from prior decision on gross
  misconduct
• Simple misconduct to drive a gasoline truck
  without a drivers license

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Supreme Court of Appeals

• Walsh v. Jefferson Memorial Hospital (2003) and
  Gress v. Petersburg Foods, LLC (2003)
• Wage Payment and Collection Act
• Employers can control liability for unpaid
  benefits if clear policies and/or consistent
  procedures

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Supreme Court of Appeals

• Slivka v. Camden-Clark Memorial Hospital (2004)
• Claim of gender discrimination by male nurse
  denied position in obstetrics
• Very high standard set for whether privacy
  interests justify gender being a BFOQ

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Supreme Court of Appeals

• Future Attractions Messer v. Huntington
  Anethesiology (to be argued in the January 2005
  term)
• Injury claimed to be result of failure to
  accommodate an alleged disability
• Circuit judge dismissed case on grounds of
  workers compensation immunity

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Top Trends

• Trend No. 1
• Creative employees are becoming more adept at
  taking advantage of the laws protecting employees
  with injuries and disabilities

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Tips for Trend No. 1

• Coordinate functions that deal with absences,
  workers compensation and FMLA/Parental Leave
• Observe the FMLA time frames
• Use ability to engage in interactive process to
  gather information

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Top Trends

• Trend No. 2
• Office romances set the stage for the brave new
  world of sexual harassment cases

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Tips for Trend No. 2

• Adopt an anti-fraternization policy that bans
  supervisor/subordinate relationships
• Set behavior guidelines (for email and public
  displays of affection)
• If an employee complains, dont ignore them
• No informal complaints

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Top Trends

• Trend No. 3
• Unlawful harassment is not just about sex anymore

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Tips for Trend No. 3

• Update your sexual harassment policy or create an
  unlawful harassment policy
• Include all forms of unlawful harassment in your
  training not just sexual but also race,
  religion, national origin, age and disability
• Use same investigation procedure

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Top Trends

• Trend No. 4
• Cameras in the work place are an accident waiting
  to happen

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Tips for Trend No. 4

• If permitted in the workplace, prohibit taking of
  photos and video in private areas
• Require employees to get permission before
  distributing photos
• Guard confidentiality
• Establish consequences for violations

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Top Trends

• Trend No. 5
• Electronic mail (email) messages are the new best
  source for smoking guns

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Tips for Trend No. 5

• Support a culture of responsible email use,
  including zero tolerance for adult humor and
  language
• Manage the data storage
• Train managers/supervisors in the dangers of
  email outbursts
• Consider helpful software

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Top Trends

• Trend No. 6
• Employers handle discrimination claims well but
  forget about retaliation

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Tips for Trend No. 6

• Make discussion of retaliation a part of any
  harassment or discrimination investigation
• Take retaliation complaints as seriously as
  others
• Even a meritless complainer is protected from
  retaliation

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Thanks for Your Attention!

• Elizabeth D. Harter, Esq.
• bharter_at_bowlesrice.com