Drew Capuder Will Be Speaking At Upcoming West Virginia Employment Lawyers Association Conference

I look for­ward to speak­ing at the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion’s annu­al con­fer­ence on Octo­ber 12 and 13, 2018, at Hawk’s Nest State Park in Anst­ed, West Vir­ginia.

I will be speak­ing and pre­sent­ing an arti­cle on the Har­less wrong­ful dis­charge doc­trine, which deals with ter­mi­na­tion of employ­ees where the employer’s moti­va­tion alleged­ly vio­lates a sub­stan­tial pub­lic pol­i­cy.

I will also be pre­sent­ing an arti­cle and par­tic­i­pat­ing in a pan­el dis­cus­sion on social net­work­ing & elec­tron­ic dis­cov­ery issues.

Here is infor­ma­tion on the con­fer­ence, join­ing the WVELA, and attend­ing the con­fer­ence.

Rex Tillerson’s First Speech at the State Department: Lessons for Employers

Lessons for Employers

The U.S. State Depart­ment has about 70,000 employ­ees. Rex Tiller­son was con­firmed as Pres­i­dent Trump’s pick for Sec­re­tary of State, and yes­ter­day was his first day on the job.

So Tiller­son spoke yes­ter­day to hun­dreds of State Depart­ment employ­ees to intro­duce him­self and talk about their shared mis­sion.

I was impressed by the speech, and I thought the speech could give a lot of guid­ance to man­age­ment about the mes­sage that com­pa­nies and gov­ern­ment agen­cies should com­mu­ni­cate to their employ­ees.

Here are my thoughts on what Sec­re­tary Tiller­son said that should be viewed as exem­plary:

  1. Tiller­son expressed humil­i­ty. He was Chief Exec­u­tive Offi­cer of Exxon­Mo­bil, one of the largest cor­po­ra­tions in the world (which prob­a­bly has even more employ­ees than the State Depart­ment), but he described him­self as “the new guy” that need­ed the help of the employ­ees.
  2. Instead of brag­ging about his decades of exec­u­tive expe­ri­ence in the oil & gas busi­ness, he charm­ing­ly recount­ed his wife’s mes­sage that his career at Exxon­Mo­bil was a “41 year train­ing pro­gram” for his new job at the State Depart­ment.
  3. He showed respect to his new employ­ees. He stressed their extra­or­di­nary col­lec­tive expe­ri­ence and exper­tise. He not­ed that the employ­ees had an aver­age 11 years at the State Depart­ment, and he said he had been there for 45 min­utes.
  4. He stressed cores prin­ci­ples such as that all employ­ees would be treat­ed with respect.
  5. He focused on the shared mis­sions, includ­ing keep­ing employ­ees safe and advanc­ing the inter­ests of the Unit­ed States.
  6. He stressed account­abil­i­ty and a need to ques­tion old ways of doing things to look for ways to bet­ter accom­plish the mis­sions.
  7. One of the over­ar­ch­ing mes­sages was respect, both in rec­og­niz­ing the exper­tise of the employ­ees and stress­ing the need to treat employ­ees with respect.
  8. It would be hard to find a bet­ter mes­sage, com­ing out of a fan­tas­ti­cal­ly hos­tile elec­tion, to try to ral­ly employ­ees around a shared mis­sion.

So employ­ers should watch the speech for the prin­ci­ples it reflects.

Rex Tillerson’s Speech at State Department

Here is a link Tillerson’s speech from the State Department’s YouTube chan­nel, and you can watch the speech in the embed­ded video win­dow below:

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

On March 29, 2017, I will be speak­ing and pre­sent­ing an arti­cle on “The Per­ilous Inter­sec­tion of FMLA and ADA,” at a sem­i­nar host­ed by Ster­ling Edu­ca­tion Ser­vices. The Sem­i­nar, “Employ­ment Law: Rights, Ben­e­fits, and Emerg­ing Issues,” will take place in Mor­gan­town, West Vir­ginia. If you would like to attend the sem­i­nar click here for more infor­ma­tion and a reg­is­tra­tion form.

Here is the agen­da for my speech and arti­cle:

  1. FMLA updates
  2. ADA updates and EEOC guide­lines
    1. Expan­sion of what can be con­sid­ered a “dis­abil­i­ty”
    2. What con­sti­tutes “rea­son­able accom­mo­da­tion” accord­ing to the EEOC
    3. Dis­crim­i­na­tion and vio­la­tions
    4. Review and update writ­ten poli­cies and job descrip­tions
  3. Over­lap of FMLA and ADA: find­ing the right bal­ance

Favorite quotes about the law, part 1

Maybe it’s the frus­trat­ed nov­el­ist in me, but I’ve been think­ing about lit­er­a­ture and law.

This arti­cle is the start of a series where, once in a while and for no par­tic­u­lar rea­son, I will focus on thought pro­vok­ing and even pro­found state­ments (by oth­ers) about the law. Some­times the quo­ta­tions will be from lit­er­a­ture, and some­times they will be from legal writ­ings, philo­soph­i­cal works, and from darn near any­thing else that makes us think about the nature of law and its rela­tion­ship to soci­ety.

So let’s begin … Con­tin­ue read­ing Favorite quotes about the law, part 1

Fifth Circuit applies hostile work environment to age claims

Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quent­ly arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civ­il Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­er­al law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit direct­ly held recent­ly that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dedi­ol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Con­tin­ue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

The Unit­ed States Supreme Court recent­ly unan­i­mous­ly issued a major vic­to­ry for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­o­ry in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Schol­ar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Ali­to wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the deci­sion.

What is the “Cat’s Paw” Sce­nario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­o­ry? Does it explain why my cat, pic­tured at the left, is star­ing so intent­ly at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by anoth­er to gain an end.” The term aris­es out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tin­ue read­ing US Supreme Court Rules for Employ­ee on “Cat’s Paw” The­o­ry

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

House Bill 2770, which was recent­ly intro­duced into the West Vir­ginia House of Del­e­gates, would cre­ate the “Flex­i­ble Leave Act” to allow employ­ees to take already earned paid leave, and to use that leave for paid time off for an ill­ness of the employ­ee or the employee’s “imme­di­ate fam­i­ly”. The bill does not give employ­ees any addi­tion­al paid leave—it only allows them to take their paid leave that they have already earned under their employ­ers’ poli­cies, and allows the flex­i­bil­i­ty (hence the name, “Flex­i­ble Leave Act”) to take leave that may have been intend­ed for anoth­er pur­pose, such as earned vaca­tion time, and apply it for the dif­fer­ent pur­pose of their own or an imme­di­ate fam­i­ly member’s ill­ness.

On Jan­u­ary 24, 2011, Del­e­gates Caputo, Fra­gale, Hat­field, Mar­tin, and Moye intro­duced House Bill 2770, which is being referred to the Com­mit­tee on Ener­gy, Indus­try and Labor, Eco­nom­ic Devel­op­ment and Small Busi­ness then Finance. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 2770 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any oth­er mem­bers of the Sen­ate, you can go to the House Mem­bers page and pick the mem­ber from a drop-down list. For those of you who are inter­est­ed in find­ing out more about the leg­isla­tive process, the Leg­is­la­ture has a “How a Bill Becomes Law” page.  The Leg­is­la­ture also has a very nice pho­to gallery of the Capi­tol Build­ing.

Con­tin­ue read­ing Leg­isla­tive Update: Pend­ing bill would expand sick leave rights for West Vir­ginia employ­ees

Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

Pend­ing West Vir­ginia leg­is­la­tion would, if passed, extend the time employ­ers have to issue a ter­mi­nat­ed employee’s final pay­check, from the cur­rent 72 hours after dis­charge to the next reg­u­lar pay day.

On Jan­u­ary 28, 2011, Sen­a­tors Palum­bo and Klem­pa intro­duced Sen­ate Bill 339, which is being referred to the Labor and Finance Com­mit­tees. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 339 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any oth­er mem­bers of the Sen­ate, you can go to the Sen­ate Mem­bers page and pick the mem­ber from a drop-down list.

Sen­ate Bill 339 would amend the WV Wage Pay­ment and Col­lec­tion Act, which deals in part with the oblig­a­tion of an employ­er to issue a final pay­check to an employ­ee with­in a cer­tain peri­od of time.  The Wage Pay­ment and Col­lec­tion Act cur­rent­ly sets two dif­fer­ent dead­lines, depend­ing on whether the employ­ee resigned or was dis­charged.

  • Sec­tion 21–5-4(b): If an employ­ee is dis­charged, the employ­er must pay the employ­ee all earned wages with­in 72 hours after the dis­charge.
  • Sec­tion 21–5-4©: if the employ­ee resigns, the employ­er must pat the employ­ee all earned wages by the next reg­u­lar pay­day, either through “reg­u­lar chan­nels” or, if the employ­ee requests, by mail. There is this addi­tion­al vari­a­tion where the employ­ee resigns: if the employ­ee pro­vides “at least one pay period’s notice of inten­tion to quit”, then the employ­er must pay the employ­ee all earned wages “at the time of quit­ting” (which is the final day worked after giv­ing notice).

Con­tin­ue read­ing Leg­isla­tive Update: West Vir­ginia leg­is­la­ture may give employ­ers more time to cut final pay­check