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Employment Law Current Events/Trends

Employment Law Current Events/Trends. Elizabeth D. Harter, Esq. October 1, 2004. Outline. 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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Employment Law Current Events/Trends

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  1. Employment Law Current Events/Trends Elizabeth D. Harter, Esq. October 1, 2004

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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

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

  10. 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

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

  12. 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, don’t ignore them • No “informal” complaints

  13. Top Trends Trend No. 3 Unlawful harassment is not just about sex anymore

  14. 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

  15. Top Trends Trend No. 4 Cameras in the work place are an accident waiting to happen

  16. 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

  17. Top Trends Trend No. 5 Electronic mail (email) messages are the new best source for “smoking guns”

  18. 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

  19. Top Trends Trend No. 6 Employers handle discrimination claims well but forget about retaliation

  20. 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

  21. Thanks for Your Attention! Elizabeth D. Harter, Esq. bharter@bowlesrice.com

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