Transcript Presentation

Employment Law
Current Events/Trends
Elizabeth D. Harter, Esq.
October 1, 2004
Outline
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Supreme Court of Appeals of West
Virginia Employment Law Update
Some Top Trends in Employment
Law (and Tips for Dealing with
Them)
Supreme Court of Appeals
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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
Supreme Court of Appeals
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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 preemployment and post-accident drug
testing
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 driver’s license
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
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
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
Top Trends
Trend No. 1
Creative employees are becoming more
adept at taking advantage of the laws
protecting employees with injuries and
disabilities
Tips for Trend No. 1
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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
Top Trends
Trend No. 2
Office romances set the stage for the
brave new world of sexual harassment
cases
Tips for Trend No. 2
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Adopt an anti-fraternization policy that
bans supervisor/subordinate
relationships
Set behavior guidelines (for email and
public displays of affection)
If an employee complains, don’t ignore
them
No “informal” complaints
Top Trends
Trend No. 3
Unlawful harassment is not just about
sex anymore
Tips for Trend No. 3
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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
Top Trends
Trend No. 4
Cameras in the work place are an
accident waiting to happen
Tips for Trend No. 4
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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
Top Trends
Trend No. 5
Electronic mail (email) messages are the
new best source for “smoking guns”
Tips for Trend No. 5
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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
Top Trends
Trend No. 6
Employers handle discrimination claims
well but forget about retaliation
Tips for Trend No. 6
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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
Thanks for Your
Attention!
Elizabeth D. Harter, Esq.
[email protected]