All posts by Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261

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