The West Virginia Division of Labor (DOL) has proposed emergency regulations that, if enforced in their present form, could force nearly all West Virginia employers to change, by December 31, 2014, a number of common wage and hour practices that comply with longstanding federal regulations.
Although the DOL’s emergency rules purport to adopt vast portions of federal Fair Labor Standards Act (FLSA) regulations, they simultaneously impose several new rules that contradict or otherwise differ from those same federal regulations, particularly as they relate to the determination of what constitutes compensable working time. If applied broadly, the new rules will require West Virginia employers to depart from FLSA standards in at least the following areas: Read More
While employers of all types have been under increasing scrutiny by the United States Department of Labor for their overtime and other pay practices, the DOL has paid extra attention to employers in the energy industry. The piece below from Employment Law 360, announcing that the DOL’s focus on that sector has resulted in a great deal of wage and hour liability for oil and gas employers in Appalachia, is a great reminder that those employers need to be vigilant when it comes to both their classification determinations and wage payment compliance in general. To try and avoid the DOL’s crosshairs and other similar wage and hour headaches, consultation with competent counsel is advised. Read More
Those who have followed this blog regularly know that a true treat is in store every year at this time – the Employment Essentials annual holiday poem, authored by our own Vanessa Goddard. Once again, our readers will not be disappointed with Vanessa’s fabulous work, so don’t hesitate to show the author some love in the comments below the prose. Happy Holidays from the entire Employment Essentials team. Click here to read this year’s poem.
Your policies look good on paper, but are you prepared to conduct an effective investigation of workplace sexual harassment? When you receive a complaint of harassment, you need to quickly commence and complete an investigation. Of course, your approach and the questions you ask will vary depending upon the circumstances, but there are some basic guidelines that you should keep in mind: Read More
I was recently asked what happens if an employee is injured at work, and the employer is not at fault. For example, an employee trips over a chair that is properly tucked into a table, and the employee is injured. The employer was not at fault for the employee’s fall – after all, the chair was properly placed – and yet the employee could still be entitled to workers’ compensation. Why is that? Read More
“Every employee benefit plan shall be established and maintained pursuant to a written instrument.” That is the first sentence in ERISA’s fiduciary responsibility provision. The ERISA-mandated “written instrument” – the official plan document – is a powerful document; it defines the employer’s contractual undertaking with respect to the plan’s participants. In recent decisions, courts have distinguished between a writing that is enforceable as “the plan” and other plan-related instruments such as the summary plan description (“SPD”), an insurance policy, or an administrative services agreement (“ASA”).
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.
In West Virginia, Workers’ Compensation statutes provide that an employee who has a definitely ascertainable impairment resulting from an occupational or non-occupational injury, disease, or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his employment, the prior injury and the effect of the prior injury and aggravation shall not be taken into consideration in fixing the amount of compensation or impairment allowed by reason of the subsequent injury. The statute provides that compensation, i.e., a permanent partial disability impairment rating, shall be awarded only in the amount that would have been allowable had the employee not had the pre-existing impairment. Read More
Wellness programs are surging in popularity as employers seek to reduce steadily rising healthcare costs. But could a well-intentioned wellness program end up costing you? With open enrollment for medical plans right around the corner for most employers, now is the time to ensure your wellness program complies with the Americans with Disabilities Act (ADA) and EEOC guidelines. A pair of EEOC complaints filed in Wisconsin should put employers on alert that the agency is placing employee wellness programs under its microscope to determine if the programs potentially violate the Americans with Disabilities Act (“ADA”). These two cases are the first the agency has ever filed over wellness programs.
Recently, the Fourth Circuit Court of Appeals, in Hentosh v. Old Dominion University, affirmed an award of summary judgment dismissing a retaliation claim against Old Dominion University. In so doing, the Court also declared that, in a case where a district court does not have jurisdiction over a Title VII claim due to Plaintiff’s failure to timely file a charge with the EEOC, Plaintiff’s error does not deprive the court of the ability to hear a related retaliation claim. Read More