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