A WIN FOR EMPLOYMENT ARBITRATION AGREEMENTS FROM THE WEST VIRGINIA SUPREME COURT

In a win for employers in the State of West Virginia, the Supreme Court of Appeals of West Virginia overturned a lower court’s decision that an employment arbitration agreement was unenforceable in Hamden Coal, LLC v. Varney. The lower court agreed with the employee on every relevant issue, finding that arbitration claims are viewed differently in an employment context, that the agreement was a contract of adhesion, that the agreement lacked consideration, that the agreement was unconscionable, and that the employee’s claims fell outside the agreement. The Supreme Court, however, overturned each finding and took the additional step of directing the court to enter an order dismissing the civil action and compelling arbitration.  Read More »

WEST VIRGINIA SUPREME COURT FINDS CLAIMANT’S DEATH TO BE WORK-RELATED EVEN THOUGH HIS HEAD INJURY OCCURRED OVER A YEAR PRIOR WITH NO INTERVENING TREATMENT

West Virginia Code § 23-4-10 provides that when a personal injury suffered by an employee in the course of and resulting from his or her employment causes death, and the disability is continuous from the date of injury until the date of death, the decedent’s dependents may receive benefits. The West Virginia Supreme Court of Appeals recently affirmed an award of these death benefits, even though the claimant’s disability was not obviously continuous from the time of his work-related injury as he was not in active treatment for any disability at the time of his death. Read More »

ANTI-DISCRIMINATION LAWS STILL NOT CONSIDERED CODES OF “GENERAL CIVILITY”

California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment.  As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action.  Read More »

SEXUAL ORIENTATION DISCRIMINATION UNDER TITLE VII RECOGNIZED IN WESTERN DISTRICT OF PENNSYLVANIA SUIT

The area of LGBT rights in the workplace has garnered a great deal of attention in recent years as a split has grown among the courts and among federal agencies as to whether Title VII prohibits sexual orientation discrimination. Under the Obama Administration, the Department of Justice argued that Title VII’s prohibition on sex discrimination also included sexual orientation and gender identity.  Recently, however, the Trump Administration’s Department of Justice filed an appellate brief in the Court of Appeals for the Second Circuit in which it argued that Title VII does not apply to sexual orientation. Read More »

THE DOL’S NEW PAYROLL AUDIT INDEPENDENT DETERMINATION PROGRAM

Recently, the Wage and Hour Division (“WHD”) of the federal Department of Labor announced a new pilot program called the Payroll Audit Independent Determination (“PAID”) program. The program is intended to facilitate quick resolution of potential overtime and minimum wage violations of the Fair Labor Standards Act.  The WHD hopes that the program will be used by employers to resolve claims without litigation and that the program will improve employer compliance with the FLSA.  The WHD intends to implement this pilot program for a period of six months.  After six months, the WHD will evaluate the effectiveness of the program and determine whether any modifications may be necessary. Read More »

OSHA HAS ARRIVED – WITH A CAMERA AND CLIPBOARD – OH MY?!?!!?! WE ARE NOT IN KANSAS ANYMORE!

It is a normal Friday morning. The workplace is slowing down for the weekend, and most of management is off work for a long weekend. About 9:00 a.m. you are notified that a visitor has arrived in HR – you aren’t expecting a visitor – is it a vendor trying to sell you something?  NO – it is an OSHA inspector?!?!?!?!  What do you do if an OSHA inspector shows up to your workplace?  This article will provide you with some tips to be prepared when this occurs. Read More »

NLRB VACATES HY-BRAND DECISION

On February 26, 2018, the National Labor Relations Board (“NLRB”) issued an Order vacating its decision in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017) (“Hy-Brand”).  The decision to vacate the Hy-Brand ruling came on the heels of the determination by the NLRB’s Designated Agency Ethics Official with the Office of the Inspector General that NLRB Member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding.  Read More »

WILL THE FRAMEWORK OF LAWS THAT GOVERN WELLNESS PROGRAMS CHANGE ONCE AGAIN? TAKE TWO ASPIRIN AND CALL ME AFTER MARCH

Wellness programs in the workplace are generally based on the belief that as employees lose weight, stop smoking, eat more healthfully, and lower their cholesterol, their employer will reap a drop in absenteeism and health care costs. With that hope in mind, employers are often willing to offer a financial reward to encourage employees’ participation.  The Equal Employment Opportunity Commission (“EEOC”) has long been concerned about whether the financial reward offered makes such wellness programs “involuntary” such that the wellness programs fail to comply with the Americans with Disabilities Act (“ADA”) and/or the Genetic Information Nondiscrimination Act (“GINA”).  Previous S&J blog posts have reported the EEOC’s actions with respect to wellness programs over the years, including the EEOC’s issuance of final ADA and GINA regulations addressing wellness programs.  Those regulations have been challenged in court by the AARP, and you can expect changes in the regulations as a result.  This post will bring you up to speed on the litigation and what you should watch for going forward.  Read More »

EMPLOYED OR SELF-EMPLOYED

Pennsylvania’s Commonwealth Court recently issued an opinion, which, while arising in the unemployment compensation arena, may have broader implications for today’s contingent workforce. In Lowman v. Unemployment Compensation Board of Review (January 24, 2018), the Court was called upon to decide whether a claimant, who had been laid off from his job as a behavioral health specialist, engaged in self-employment by becoming a driver for Uber. To perform his duties for Uber, the Claimant used his own phone and car, paid for all related expenses (fuel and maintenance), had to have insurance, a driver’s license, and vehicle registration, set his own hours, could refuse assignments, and could drive for others. Additionally, he earned approximately $350 per week, showing a frequent and prolonged relationship with Uber—not occasional and limited to earning some extra money on the side. Read More »