Congress against sexual harassment, part 1: Taxes

This arti­cle is the first of 3 parts to cov­er 3 Acts of Con­gress direct­ed at expand­ing the rights of sex­u­al harass­ment and abuse victims. 

The series of 3 federal laws on sexual harassment claims

  • Con­gress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), lim­it­ed employ­er tax deduc­tions for set­tle­ments of sex­u­al harass­ment and abuse cas­es where the set­tle­ment agree­ment includ­ed a nondis­clo­sure agree­ment. That’s what this arti­cle is about.
  • Con­gress next in March 2022 passed the  End­ing Forced Arbi­tra­tion of Sex­u­al Assault and Harass­ment Act of 2021 which inval­i­dates arbi­tra­tion agree­ments over sex­u­al harass­ment and abuse claims, where the agree­ment is signed before a dis­pute arose. That’s my sec­ond arti­cle in this series.
  • Con­gress then in Decem­ber 2022 passed the Speak Out Act which inval­i­dat­ed nondis­clo­sure and non-dis­par­age­ment agree­ments in sex­u­al harass­ment and abuse claims where the agree­ments were pro­cured before a dis­pute arose. That’s my third arti­cle in this series.
Con­tin­ue read­ing Con­gress against sex­u­al harass­ment, part 1: Tax­es

EEOC has updated its poster that employers must display

The Unit­ed States Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) has updat­ed its poster that employ­ers are required to dis­play in their work­places. Here is the EEOC’s web site on its poster. Here is an inter­net (HTML) copy of the poster. Here is the PDF of the print­able poster for wall dis­play. The name of the poster is “Know Your Rights: Work­place Dis­crim­i­na­tion is Illegal”.

The poster does a good job of edu­cat­ing employ­ees and employ­ers on essen­tial aspects of the fed­er­al anti-dis­crim­i­na­tion laws. It cov­ers what employ­ees are pro­tect­ed, what employ­ers are cov­ered, the pro­tect­ed char­ac­ter­is­tics about which the laws pro­hib­it dis­crim­i­na­tion, the deci­sions and con­duct of the employ­ers that are pro­hib­it­ed, and how an employ­ee can file a charge with the EEOC. In light of new­er tech­nol­o­gy, the poster has a QR code so an employ­ee can user a phone to jump straight to the EEOC’s web site for fil­ing a charge.

Con­tin­ue read­ing EEOC has updat­ed its poster that employ­ers must dis­play

Handbooks and other ways to bypass the employment at will rule

Part 2 of a series on West Virginia employment law

This arti­cle fol­lows up my pri­or blog arti­cle, The Employ­ment at Will Rule in West Vir­ginia. In that arti­cle, I explained the basic con­tours of the employ­ment at will rule.

With the employ­ment at will rule radi­at­ing in the back­ground, there are many ways it can be mod­i­fied or bypassed. All claims relat­ing to dis­crim­i­na­tion and retal­i­a­tion, for exam­ple, mod­i­fy the rule to the extent an excep­tion is cre­at­ed by which the employ­er may not ter­mi­nate the rule for a spe­cif­ic rea­son, such as age.

Scenarios: handbooks and other promises

But this arti­cle focus­es on con­trac­tu­al or con­tract-like lim­i­ta­tions on the employ­ment at will rule. The par­ties (employ­er and employ­ee) can enter into a for­mal employ­ment con­tract that mod­i­fies the employ­ment at will rule. But I am not address­ing that for­mal con­tract in this arti­cle. I am real­ly try­ing to focus on two scenarios:

Con­tin­ue read­ing Hand­books and oth­er ways to bypass the employ­ment at will rule

The employment at will rule in West Virginia

Part 1 of a series on West Virginia employment law

This blog arti­cle is the first part of a series I will write on employ­ment law in West Vir­ginia, with a focus on lit­i­ga­tion issues relat­ing to alleged wrong­ful discharge. 

I will start with the employ­ment at will rule, and will car­ry through with arti­cles on the numer­ous excep­tions to the employ­ment at will rule.

What is the employment at will rule?

The courts have long had a love-hate rela­tion­ship with the employ­ment at will rule. West Vir­ginia, like vir­tu­al­ly all oth­er states, adheres to the rule.

So, what is the employ­ment at will rule? For con­ve­nience, I will define it in terms of the right to end or ter­mi­nate the employ­ment rela­tion­ship, but more about that def­i­n­i­tion in a moment. And more below about the big qual­i­fi­ca­tion on the rule.

One way to state the rule is that both par­ties to the employ­ment rela­tion­ship, the employ­er and the employ­er, have the right to ter­mi­nate the employ­ment rela­tion­ship at any time and for any rea­son (but not for an ille­gal rea­son, and that is dis­cussed below). It is impor­tant to under­stand that those are the two essen­tial attrib­ut­es of the rule: to ter­mi­nate the employ­ment rela­tion­ship (1) at any time, and (2) for any rea­son. Both sides (employ­er and employ­ee) have that right, although the right is almost always exam­ined in terms of the employ­er’s right in wrong­ful dis­charge litigation.

West Virginia’s description of the rule

In the con­text of ter­mi­na­tion (more about that lat­er) the employ­ment at will rule has been described in West Vir­ginia this way: the rule allows an employ­er to ter­mi­nate an employ­ee for:

Con­tin­ue read­ing The employ­ment at will rule in West Vir­ginia

Farewell, Ruth Bader Ginsburg

Courage.

While still a prac­tic­ing lawyer, Ruth Bad­er Gins­burg in 1973 argued to 9 men on the Unit­ed States Supreme Court in a his­tor­i­cal­ly sig­nif­i­cant case, Fron­tiero v. Richard­son, 411 U.S. 677 (1973).

Gins­burg asked the Supreme Court to rec­og­nize for the first time that the guar­an­tee of “equal pro­tec­tion of the laws” con­tained in the Fifth Amend­ment (rat­i­fied in 1791) pro­tect­ed women and men from dis­crim­i­na­tion based on sex. 

In talk­ing to the 9 men on the Supreme Court, Gins­burg stat­ed: I “urge[] a posi­tion forcibly stat­ed in 1837 by Sara Grimke, not­ed abo­li­tion­ist and advo­cate of equal rights for men and women. She spoke not ele­gant­ly, but with unmis­tak­able clar­i­ty. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’ ” 

The Supreme Court ruled near­ly unan­i­mous­ly in her favor (8–1).

Farewell, Ruth Bad­er Ginsburg.

And flights of angels sing thee to thy rest.”

(Shake­speare, Hamlet.)

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.

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

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

Employment Law News and Analysis