Monthly Archives: February 2011

Family and Medical Leave Act (FMLA), Labor Unions, Pending legislation, WV Legislation

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

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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 →
Liquidated damages, Pending legislation, WV Legislation, WV Wage Payment and Collection Act

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

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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 →
Pending legislation, Race discrimination, Retaliation claims, WV Human Rights Act, WV Legislation

Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

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Insur­ance com­pa­nies have been urg­ing the West Vir­ginia Leg­is­la­ture to pass leg­is­la­tion to over­turn the West Vir­ginia Supreme Court’s deci­sion in Michael v. Appalachi­an Heat­ing, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Vir­ginia Supreme Court held that the West Vir­ginia Human Rights Act pro­hib­it­ed dis­crim­i­na­tion by an insur­ance com­pa­ny in set­tling claims cov­ered by an insur­ance policy.

The Michael Decision

Gen­er­al­ly, the Human Rights Act pro­hibits dis­crim­i­na­tion (1) in the work­place, (2) in places of pub­lic accom­mo­da­tion (like hotels, shop­ping cen­ters), and (3) in con­nec­tion with trans­ac­tions involv­ing hous­ing and real estate (like rent­ing apart­ments and buy­ing houses).

But at issue in Michael was sec­tion 5–11‑9(7) of the Human Rights Act, which was not lim­it­ed to those three cat­e­gories of activ­i­ty. Here is the rel­e­vant lan­guage in sec­tion 5–11‑9(7)(A);

It shall be an unlaw­ful dis­crim­i­na­to­ry prac­tice [based on race, reli­gion, col­or, nation­al ori­gin, ances­try, sex, age, and disability] …

(7) For any per­son, employ­er, employ­ment agency, labor orga­ni­za­tion, own­er, real estate bro­ker, real estate sales­man or finan­cial insti­tu­tion to:

(A) Engage in [1] any form of threats or reprisal, or to [2] engage in, or hire, or con­spire with oth­ers to com­mit acts or activ­i­ties of any nature, the pur­pose of which is to harass, degrade, embar­rass or cause phys­i­cal harm or eco­nom­ic loss or [3] to aid, abet, incite, com­pel or coerce any per­son to engage in any of the unlaw­ful dis­crim­i­na­to­ry prac­tices defined in this section .…

In sub­part (7)(A) above I have brack­et­ed the three spe­cif­ic caus­es of action (legal the­o­ries) which the Supreme Court said are dis­cernible in sub­part (7)(A). I have also bold­ed the sec­ond cause of action, which was the key cause of action at issue in the Michael case.

Con­tin­ue read­ing Leg­isla­tive Update: Insur­ance indus­try seeks amend­ment to West Vir­ginia Human Rights Act →
Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Evidence issues, Liquidated damages, Medical Industry Litigation, Result for Employee

Cleveland jury awards $900,000 against hospital in age discrimination case

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Ellen Simon, an attor­ney in Cleve­land who authors the excel­lent blog, Ellen Simon’s Employ­ee Rights Post, recent­ly tried an age dis­crim­i­na­tion claim for plain­tiff Glo­ria Parks (a phle­botomist) against Cleve­land’s Uni­ver­si­ty Hos­pi­tals Case Med­ical Cen­ter.

Ms. Parks had worked for the hos­pi­tal for 30 years when she was fired over a med­ical mis­take involv­ing her­self and anoth­er much younger employ­ee. The hos­pi­tal fired Ms. Parks, but not the much younger employee.

The jury returned a ver­dict in favor of the plain­tiff (Ms. Parks) for $450,000 for her eco­nom­ic loss and $450,000 for “oth­er com­pen­sato­ry dam­ages”, accord­ing to Ms. Simon’s blog arti­cle. Based on the lim­it­ed infor­ma­tion I have so far, it looks like the “oth­er com­pen­sato­ry dam­ages” was an award for emo­tion­al dis­tress, The jury did not award puni­tive dam­ages.

So the ver­dict totals $900,000, and Ms. Simon will file a request for attor­neys’ fees’ fees and expens­es. While it is not clear from the arti­cle so far, I sus­pect the case was assert­ed for age dis­crim­i­na­tion under Ohio’s Fair Employ­ment Prac­tices Act (and not the fed­er­al ADEA).

Con­tin­ue read­ing Cleve­land jury awards $900,000 against hos­pi­tal in age dis­crim­i­na­tion case →