Monthly Archives: June 2012

EVEN A SINGLE INCIDENT OF HARASSMENT CAN CREATE A HOSTILE WORK ENVIRONMENT

West Virginia’s Supreme Court recently released an opinion that upheld the award of over two million dollars to a former employee of CSX Transportation, Inc. in an explosive hostile work environment claim that all employers can take lessons from.

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“PANIC IF THERE’S CAVIAR”: THE BOSSLESS WORKPLACE

Last week, The Wall Street Journal ran an article about the bossless company (“Who’s the Boss? There Isn’t One”).  It discussed employers who have made a flat management hierarchy work for them.  That’s right:  FLAT!  As in no boxes with arrows pointing down to an ever-increasing array of boxes.  And, the flat structure is not a model designed solely for small companies.  According to the article, GE’s aviation facilities use it, as does the maker of Gore-Tex.

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AFFORDABLE CARE ACT – SUMMARY OF BENEFITS AND COVERAGE

The 2010 health care reform legislation, Patient Protection and Affordable Care Act (“Affordable Care Act”), created a new disclosure tool for group health plans and issuers of health insurance policies – the Summary of Benefits and Coverage.  This new document, which will be called the SBC, is in addition to the existing SPD (summary plan description) and SMM (summary of material modifications).  The SBC can, however, be included in the SPD so long as it is intact and prominently displayed at the front of the SPD.

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SHOULD YOU RETURN AN INJURED EMPLOYEE TO WORK? IF AT ALL POSSIBLE, YES!

In West Virginia, the legally-stated purpose of the workers’ compensation program is to assist workers to return to gainful employment after a compensable injury.  Even though a worker might not be able to return to identical employment, the attainment of suitable, gainful employment in a different occupation is desired.  Under West Virginia workers’ compensation statutes and regulations, it is the shared responsibility of the insurer, the injured worker, and the employer, to return the injured worker to suitable employment.  It is the responsibility of the injured worker to participate in an approved rehabilitation program, if appropriate, after a worker has suffered a compensable injury.  The participation in such a program entitles the worker to temporary total disability benefits while the employee is participating in the program or temporary partial rehabilitation benefits if the employee is working part-time.  Failure of the employee to participate in an approved program may result in the denial of the requested services and the termination of temporary total disability benefits. 

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FOURTH CIRCUIT PROTECTS FORMER EMPLOYEES FROM DISCRIMINATION UNDER TITLE VII

Recently, the Fourth Circuit Court of Appeals – which covers West Virginia – issued an important discrimination opinion that all employers in the region need to be aware of.

In Gerner v. County of Chesterfield, Civ. Action No. 11-1218 (4th Cir. Mar. 16, 2012), the Fourth Circuit Court reinstated the lawsuit of a woman who alleged that her former employer unlawfully discriminated against her by offering her a less favorable severance package than it offered to male employees holding similar positions.  In doing so, the Court held that Title VII protects both current and former employees from discriminatory adverse employment actions – including the offering of severance benefits, regardless of whether such benefits are furnished under a contractual obligation or offered only voluntarily.

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WHO CAN IT BE NOW: EMPLOYERS TOLD TO KNOW WHO THEIR SUPERVISORS ARE

In a union election, it’s not just the CEO who needs to knock on doors – like in the picture below representing the famous 80’s record titled in this piece – and communicate with employees about whether or not to vote for union representation.  The employer’s supervisors fulfill a pivotal role in educating employees about that, as well.  The D.C. Circuit’s recent decision in Veritas Health Services, Inc. v. NLRB underscores the importance of employers properly identifying and classifying their supervisors before union activity occurs.

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WHY YOU SHOULD CARE ABOUT CAREGIVER DISCRIMINATION

I once spent six years pregnant.  Not full years, mind you, but enough time that the more recent attention being given to caregiver discrimination catches my eye.  One thing that’s interesting to note is that, while the designation of “caregiver” has not (yet) been given protected status under Title VII (or most state anti-discrimination laws for that matter); employers have been increasingly targeted for such claims under the umbrella of sex discrimination, the ADAAA, the Equal Pay Act, and other anti-discrimination statutes.  Lawmakers have already formally extended FMLA protections to military caregivers, so who’s to say other specific laws won’t come next?  With the baby boomer generation heading into retirement and the increase in the numbers of single parents, caregiver issues will grow increasingly important, behooving employers to stay ahead of the curve.

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