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

Employment Law Employment Law Current Current Events/TrendsEvents/Trends

Elizabeth D. Harter, Esq.Elizabeth D. Harter, Esq.

October 1, 2004October 1, 2004

OutlineOutline

Supreme Court of Appeals of Supreme Court of Appeals of West Virginia Employment West Virginia Employment Law UpdateLaw Update

Some Top Trends in Some Top Trends in Employment Law (and Tips for Employment Law (and Tips for Dealing with Them)Dealing with Them)

Supreme Court of Supreme Court of AppealsAppeals Court generally skeptical of Court generally skeptical of

summary judgment – recent summary judgment – recent cases frequently are reversalscases frequently are reversals

West Virginia Human Rights Act West Virginia Human Rights Act cases are frequently subject of cases are frequently subject of appealsappeals

Health care industry employers Health care industry employers the most courageous appellantsthe most courageous appellants

Supreme Court of Supreme Court of AppealsAppeals Baughman v. Wal-Mart Stores, Inc.Baughman v. Wal-Mart Stores, Inc.

(2003) and (2003) and Rohrbaugh v. Wal-Mart Rohrbaugh v. Wal-Mart Stores, Inc.Stores, Inc. (2002) (2002)– Drug testing at issueDrug testing at issue– Clarification of Clarification of Twigg v. Hercules Twigg v. Hercules

Corp.Corp.– Now more certainty regarding pre-Now more certainty regarding pre-

employment and post-accident drug employment and post-accident drug testingtesting

Supreme Court of Supreme Court of AppealsAppeals Dailey v. Board of ReviewDailey v. Board of Review (2003) (2003)

– Unemployment compensation Unemployment compensation disqualificationdisqualification

– Court retreating from prior decision Court retreating from prior decision on gross misconducton gross misconduct

– Simple misconduct to drive a Simple misconduct to drive a gasoline truck without a driver’s gasoline truck without a driver’s licenselicense

Supreme Court of Supreme Court of AppealsAppeals Walsh v. Jefferson Memorial Walsh v. Jefferson Memorial

HospitalHospital (2003) and (2003) and Gress v. Gress v. Petersburg Foods, LLCPetersburg Foods, LLC (2003) (2003)– Wage Payment and Collection ActWage Payment and Collection Act– Employers can control liability for Employers can control liability for

unpaid benefits if clear policies unpaid benefits if clear policies and/or consistent proceduresand/or consistent procedures

Supreme Court of Supreme Court of AppealsAppeals Slivka v. Camden-Clark Memorial Slivka v. Camden-Clark Memorial

HospitalHospital (2004) (2004)– Claim of gender discrimination by Claim of gender discrimination by

male nurse denied position in male nurse denied position in obstetricsobstetrics

– Very high standard set for whether Very high standard set for whether privacy interests justify gender privacy interests justify gender being a BFOQbeing a BFOQ

Supreme Court of Supreme Court of AppealsAppeals Future Attractions: Future Attractions: Messer v. Messer v.

Huntington AnethesiologyHuntington Anethesiology (to be (to be argued in the January 2005 term)argued in the January 2005 term)– Injury claimed to be result of failure Injury claimed to be result of failure

to accommodate an alleged disabilityto accommodate an alleged disability– Circuit judge dismissed case on Circuit judge dismissed case on

grounds of workers’ compensation grounds of workers’ compensation immunityimmunity

Top TrendsTop Trends

Trend No. 1Trend No. 1

Creative employees are becoming Creative employees are becoming more adept at taking advantage more adept at taking advantage of the laws protecting employees of the laws protecting employees with injuries and disabilitieswith injuries and disabilities

Tips for Trend No. 1Tips for Trend No. 1

Coordinate functions that deal Coordinate functions that deal with absences, workers’ with absences, workers’ compensation and FMLA/Parental compensation and FMLA/Parental LeaveLeave

Observe the FMLA time framesObserve the FMLA time frames Use ability to engage in Use ability to engage in

“interactive process” to gather “interactive process” to gather informationinformation



Office romances set the stage for Office romances set the stage for the brave new world of sexual the brave new world of sexual harassment casesharassment cases


Adopt an anti-fraternization policy Adopt an anti-fraternization policy that bans supervisor/subordinate that bans supervisor/subordinate relationshipsrelationships

Set behavior guidelines (for email Set behavior guidelines (for email and public displays of affection)and public displays of affection)

If an employee complains, don’t If an employee complains, don’t ignore themignore them

No “informal” complaintsNo “informal” complaints



Unlawful harassment is not just Unlawful harassment is not just about sex anymoreabout sex anymore


Update your sexual harassment Update your sexual harassment policy or create an “unlawful policy or create an “unlawful harassment” policyharassment” policy

Include all forms of unlawful Include all forms of unlawful harassment in your training – not harassment in your training – not just sexual but also race, religion, just sexual but also race, religion, national origin, age and disabilitynational origin, age and disability

Use same investigation procedureUse same investigation procedure



Cameras in the work place are an Cameras in the work place are an accident waiting to happenaccident waiting to happen


If permitted in the workplace, If permitted in the workplace, prohibit taking of photos and video in prohibit taking of photos and video in private areasprivate areas

Require employees to get permission Require employees to get permission before distributing photosbefore distributing photos

Guard confidentialityGuard confidentiality Establish consequences for violationsEstablish consequences for violations



Electronic mail (email) messages Electronic mail (email) messages are the new best source for are the new best source for “smoking guns”“smoking guns”


Support a culture of Support a culture of responsibleresponsible email use, including zero tolerance email use, including zero tolerance for adult humor and languagefor adult humor and language

Manage the data storageManage the data storage Train managers/supervisors in the Train managers/supervisors in the

dangers of email outburstsdangers of email outbursts Consider helpful softwareConsider helpful software



Employers handle discrimination Employers handle discrimination claims well but forget about claims well but forget about retaliationretaliation


Make discussion of retaliation a Make discussion of retaliation a part of any harassment or part of any harassment or discrimination investigationdiscrimination investigation

Take retaliation complaints as Take retaliation complaints as seriously as othersseriously as others

Even a meritless complainer is Even a meritless complainer is protected from retaliationprotected from retaliation

Thanks for Your Thanks for Your Attention!Attention!

Elizabeth D. Harter, Esq.Elizabeth D. Harter, Esq.

[email protected]@bowlesrice.com

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

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