Author Archives: Thomas S. Kleeh

WEST VIRGINIA WORKPLACE FREEDOM ACT: FREE FROM INJUNCTION

During the 2016 Regular Session of the West Virginia Legislature, Senate Bill 1 – otherwise known as the “West Virginia Workplace Freedom Act” – became law after that Legislature overrode a gubernatorial veto on February 12, 2016.  Or so everyone thought.  A number of labor organizations sought an injunction prohibiting the law’s enforcement just four days before the Workplace Freedom Act took effect on July 1, 2016, with a filing in the Circuit Court of Kanawha County, West Virginia. Read More »

WHY “DO YOU HAVE A HIGH SCHOOL DIPLOMA?” MAY BE ON THE EMPLOYER ENDANGERED SPECIES LIST

While the National Labor Relations Board has no real competition as the most employer-antagonistic governmental agency over the last year, the Equal Employment Opportunity Commission (“EEOC”) certainly hasn’t been a wallflower during that period, either.

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RETALIATION CLAIMS UNDER THE FAIR LABOR STANDARDS ACT: APPLICANTS NEED NOT APPLY

Recently, the Fourth Circuit Court of Appeals was asked to address a specific yet important issue under the Fair Labor Standards Act (FLSA).  Specifically, the Court was asked to address whether an applicant – who had been given a conditional offer of employment – could bring a suit against his or her prospective employer under the FLSA’s retaliation provisions.  In a dose of good news for employers, the Court concluded that applicants or prospective employees could not bring a claim against employers under that statute.

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WANT TO BE A WAGE AND HOUR PLAINTIFF? THERE’S AN APP FOR THAT

This little corner of cyberspace has devoted ample screen acreage to the impact smartphones and other mobile communication and media devices have on the workplace.  The proliferation of those handy pieces of technology requires it and demands employers’ attention as well.  Just last week, Apple announced its App Store surpassed 15 billion downloads to its 200 million iOS devices around the world.  Earlier this spring, Google announced it had activated the 100 millionth Android device with those users downloading in excess of 4.5 billion apps.

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TO TWEET OR NOT TO TWEET: AN OPINIONATED AND ONLINE EMPLOYEE’S DILEMMA (AND AN HR HEADACHE)

The far reaching impacts of social media on the workplace have garnered significant attention from this blog – and rightly so.  The constant appearance of employee use of Facebook and Twitter on the newswire demands that attention.  And we’re not just talking about employees in low profile, private-sector positions here either, folks.

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KNOCK, KNOCK: WE ARE THE GOVERNMENT AND WE ARE HERE TO HELP (ESPECIALLY IF YOU WANT TO SUE YOUR EMPLOYER)

As we have discussed in this small part of cyberspace in the past, technology has brought greater efficiencies to the workplace, but also is fraught with potential HR-related pitfalls, and the amazingly instant availability of information for disgruntled employees has dramatically increased the danger level of those pitfalls.

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THE ARBITRATION AGREEMENT PRECLUDING CLASS ACTION LITIGATION: THE REPORT OF ITS DEMISE MAY HAVE BEEN PREMATURE (MAYBE)

For the majority of our collective legal memory, arbitration agreements – including those presented to prospective or current employees – have been under attack by both the plaintiff’s bar and, through its rulings, our court system.  Legal terms like “contract of adhesion” and “unconscionability” are often thrown about to scare employers (and their lawyers) away from the thought of using arbitration agreements in the workplace.  However, in a decision recently handed down by the Supreme Court of Appeals of West Virginia, the forbidden words of “adhesion” and “unconscionability” may not be enough to prevent the use of arbitration agreements.  This particular ruling will be of interest to employers seeking to steer clear of the national trend of increased (and expensive) class action wage and hour litigation.

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YOU’VE GOT MAIL (AND A LAWSUIT): MOBILE COMMUNICATION DEVICES AND THE WAGE AND HOUR PITFALLS THEY PRESENT

These days, it’s hard to imagine life without some form of mobile communication device attached to our ear, hip, or thumbs.  Blackberries, iPhones, Droids and the like are as much a required fashion accessory as a productivity tool nowadays.  As such, employees have long since abandoned the traditional complaints about being issued employer-required “cell phones.”  The texts, social networking, games and other apps — not to mention the distraction a properly loaded smartphone can provide for a fussy child in the backseat — make the “constant contact” with the office bearable.

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FMLA’S “SON OR DAUGHTER” DEFINITION – THE GATE TO FMLA LEAVE JUST GOT A LITTLE WIDER

Apparently unsatisfied with the traditional meaning or understanding, the DOL has determined that “additional clarification” was required concerning the meaning of the term “son or daughter” under the Family Medical Leave Act (“FMLA”). The new interpretive guidance has the potential to greatly expand the list of reasons an employee may request leave under FMLA and employers need to be prepared accordingly.

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