The West Virginia Legislature’s 2014 regular session concluded last month. Like in many states, the West Virginia Legislature passed a bill to increase the state minimum wage this year. In addition, following the lead of several other state legislatures, the West Virginia Legislature also passed a bill relating to pregnant employees. Both laws have significant implications for West Virginia employers.
As we have reported on this blog before, there has been a trend among employers to adopt mandatory arbitration agreements. For many employers, arbitration is preferred to civil litigation because the process is usually faster and, as a result, tends to be less expensive. In part, this increased use of mandatory arbitration agreements can be attributed to a series of recent decisions by the United States Supreme Court that have reaffirmed the validity of arbitration agreements. West Virginia courts have not always been receptive to arbitration agreements and have found them to be invalid in a variety of contexts, including the employment context. However, this month the Supreme Court of Appeals of West Virginia has issued two important decisions that found arbitration agreements to be valid. The Court’s decision in New v. GameStop, Inc. d/b/a GameStop, No. 12-1371, which upheld an arbitration agreement in the employment context, has important ramifications for all West Virginia employers that use or plan to use arbitration agreements.
Regular readers of the Employment Essentials blog know that we frequently post articles about the interplay between the workplace and social media. Most of our social media posts relate to the National Labor Relations Board’s (“NLRB”) frequent examination of the topic. In fact, two years ago this month, I posted an article about a decision from an Administrative Law Judge with the NLRB Division of Judges who found that Facebook postings constituted protected activity under the National Labor Relations Act (“NLRA”).
This shouldn’t be a newsflash, but employers have been performing background checks as part of the hiring process for quite a long time. Lately, the practice has become even more common, since information is more readily available in the internet age. Most employers use these checks to help ensure they hire the best qualified employees; some employers are required to use them under federal or state regulations governing their industries.
For a long time now, employers have engaged in the practice of entering into arbitration agreements with their employees to arbitrate disputes that may arise during the employment relationship, including wrongful discharge claims stemming from the end of an employment relationship. Although several state courts continue to be hostile towards arbitration agreements, the Supreme Court of the United States has issued a handful of significant decisions in the last few years reminding the states that the Federal Arbitration Act (“FAA”) “declares a national policy favoring arbitration” which will preempt state laws inconsistent with this policy.
On November 7, 2012, the Supreme Court of Appeals of West Virginia issued an important decision upholding a jury verdict in excess of $2,000,000 in favor of a plaintiff in an employment discrimination case. In rendering its decision, the Supreme Court of Appeals also reaffirmed a number of controversial legal issues that have troubled West Virginia employers for years.
In recent years, employers have seen a significant rise in the number of lawsuits filed under the Fair Labor Standards Act (“FLSA”), which is the federal wage-and-hour law applicable to most employers. One issue that continues to vex courts, lawyers, and businesses is whether an employment relationship exists that gives rise to possible liability under the FLSA. The FLSA recognizes that an employee can have more than one employer at the same time and that each of those employers could be held liable for violations of the FLSA. This is commonly referred to as the joint employer doctrine.