START OFF THE NEW YEAR WITH A BANG (NOT A BUST)!

It goes without saying that the New Year is a time for fresh starts in life, and the same is true for management of your workplace. The New Year is a great time for getting on, or staying on, the right track and making your workplace one that is productive and safe.  Read More »

ARE PTSD CLAIMS COMPENSABLE IN WEST VIRGINIA?

As a general principal in West Virginia, a claimant is precluded from receiving workers’ compensation benefits for a mental injury with no physical cause. West Virginia, like most other states, provides that for workers’ compensation purposes, no alleged injury or disease shall be recognized as a compensable injury or disease, which was solely caused by non-physical means and which did not result in any physical injury or disease to the person claiming benefits.  The purpose of W. Va. Code § 23-4-1f is to clarify that “mental-mental claims” are not compensable for workers’ compensation purposes in West Virginia.  Read More »

CONGRESS MAY BAN ARBITRATION OF GENDER HARASSMENT AND DISCRIMINATION CLAIMS

Over the past several months, allegations of sexual misconduct have dominated headlines in all walks of celebrity life – including Hollywood, national newsrooms, business boardrooms, and even the halls of Congress. These revelations of widespread harassment have fueled the rise of the “#metoo” movement, which strives to raise the curtain on the pervasiveness of sexual harassment and assault in both the workplace and everyday life.  Indeed, Time Magazine has collectively named “The Silence Breakers” as its 2017 Person of the Year.  In many cases, and as is common in the American workplace, accusers of the alleged perpetrators now in the news had been required to sign agreements requiring arbitration of any employment-related disputes. Read More »

SUPREME COURT APPEARS INCLINED TO NARROW DODD-FRANK ANTI-RETALIATION PROTECTIONS

On November 28, 2017, the Supreme Court heard oral argument in Digital Realty Trust Inc. v. Paul Somers, a case that will determine whether employees who report fraud-related conduct internally will be protected by the Dodd-Frank Act’s anti-retaliation provisions or whether the employee must report directly to the government to earn that protection.  Read More »

THE NLRB RESTORES PRE-BROWNING- FERRIS JOINT EMPLOYER STANDARD

The joint employer standard, which is used to determine the extent to which one employer may become liable for obligations of another, has long been a very politically-charged issue.  It therefore comes as no surprise that less than one year into the Trump administration, the National Labor Relations Board (“NLRB”) has issued a ruling that in effect reverses a controversial decision of the Obama Board that made it easier to prove the existence of a “joint employer” relationship.  In a 3-2 ruling, the NLRB overruled the Board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), and returned to the pre–Browning Ferris standard that governed joint employer liability. Read More »

U.S. SUPREME COURT HEARS GAY WEDDING CAKE CASE

On December 4, 2017, the Supreme Court of the United States heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, more popularly known as the “gay wedding cake case.”  At issue in this case are competing interests in First Amendment freedoms of expression and religion and the same-sex couples’ rights to equal, nondiscriminatory treatment.  Read More »

EMPLOYEE OR INDEPENDENT CONTRACTOR?

This question today comes up in many contexts. The Commonwealth Court of Pennsylvania, an intermediate appellate court, in D&R Construction v. Workers’ Compensation Appeal Board, had to determine whether the Construction Workplace Misclassification Act (CWMA) 43 p.s. § 933.1-17 was instructive in evaluating the employee or independent contractor question. Read More »

EEOC INQUIRY – JUST A CLICK AWAY

The U.S. Equal Employment Opportunity Commission (“EEOC”) is the government agency tasked with the responsibility to enforce the federal laws prohibiting discrimination in all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Typically, the first steps for individuals seeking to file a charge of discrimination with the EEOC are an initial inquiry and intake interview. These first steps are now made easier through the recently launched EEOC Public Portal.  The EEOC Public Portal was piloted in five U.S. cities – Charlotte, Chicago, New Orleans, Phoenix, and Seattle – for six months before it was made available nationwide on November 1, 2017. Read More »

MCKINNEY V. G4S GOVERNMENT SOLUTIONS, INC.: HOSTILE WORK ENVIRONMENT CLAIM REJECTED FOR FAILURE TO REPORT

The United States Court of Appeals for the Fourth Circuit recently affirmed summary judgment in favor of the employer in a case involving an allegation of a racially hostile work environment, which was supported by shocking evidence, including racial slurs, a noose, and even a KKK-style hood. Read on to learn how this employer has – so far* – escaped liability in the face of such egregious evidence.    Read More »

2016 OVERTIME RULE ON PERMANENT HOLD AS DOL DEVELOPS NEW RULE

On October 30, 2017, the Department of Labor filed a new notice of appeal in the suit that challenged the Obama administration’s overtime regulations. These regulations, which were intended to become effective on December 1, 2016, more than doubled the minimum salary level required to qualify for a white-collar exemption to $913 per week ($47,476 annually). Read More »