As noted in our June 2017 Employment Law Letter, the West Virginia Legislature passed the West Virginia Safer Workplaces Act. The new law, which went into effect on July 7, 2017, generally expands the circumstances under which employers may conduct drug and alcohol testing, with some important limitations. If your business conducts drug or alcohol testing, now is a good time to revisit your policy and consult with your attorney to ensure that it is compliant with the new law. Here, we will summarize the new law, including what it permits and what it prohibits.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
Pennsylvania recently enacted a medical marijuana statute. This Act clouds the rights of employers and is another hit to Pennsylvania’s employment-at-will doctrine. Nevertheless, even in Pennsylvania, marijuana remains an illegal substance under the Federal Controlled Substances Act, and employers may continue to enforce their drug-free workplace policies for safety and production reasons, as well as compliance with other contractual or statutory obligations. The new Pennsylvania statute does, however, have implications for employers.
The Supreme Court of the United States has historically taken a very narrow view of the free speech protections afforded to public-sector employees under the First Amendment to the Constitution. It has generally held that public-sector employee speech or political activity is protected only if (1) they spoke as a citizen, rather than within the auspices of their official duties; (2) they spoke on a matter of public concern; and, (3) their right to speak on that matter outweighed the government’s interest in curbing their speech to provide effective government service to citizens. Public-sector employees have, more often than not, lost under this framework, most pointedly where there is any kind of concern that the wrong precedent will allow public-sector employees to gum up the public workplace with disruptive speech. (Note that private-sector employees, who do not enjoy the protections of the Constitution absent governmental action, have even less free speech protection than public-sector employees.)
The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”). Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old. This was the “over 40/under 40” rule. Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old.
Up until recently, the federal Equal Employment Opportunity Commission (“EEOC”) protected from disclosure information collected during the course of an investigation while that investigation was still pending. As of January 1, 2016, that is no longer the case – at least for information submitted by an employer. For all employer position statements submitted to the EEOC on or after that date, the EEOC has implemented new procedures which will provide, upon request, the employer’s position statement to the employee (or former employee) bringing a claim of discrimination. Previously, the position statement was not available to the charging party until after the EEOC’s investigation was completed.
Historically, Pennsylvania has been a strict employment-at-will state. Very few employee attempts to create a cause of action have been found to implicate a public policy of the Commonwealth and, thus, give rise to a private right of suit. Recently, a former employee was permitted to use the Pennsylvania Prohibition of Excessive Overtime in Health Care Act as a vehicle for such a claim.
Here’s to the bright New Year,
and a fond farewell to the old;
here’s to the things that are yet to come,
and to the memories that we hold.”
The New Year is often a time to reflect on the past year and to set resolutions for the coming one. Not only is this a perfect time to work on personal growth, but it is also the perfect time to work on how you manage your relationship with your employees. Here are five considerations as you enter the New Year:
“For, although common Snarks do no manner of harm, Yet, I feel it my duty to say, Some are Boojums –.” So goes the warning in Lewis Carroll’s 1876 poem The Hunting of the Snark. In the poem, a hunting party pursues the harmless Snark but is warned along the way that some Snarks are actually highly dangerous Boojums. If one meets a Boojum, he will “never be met with again!” At the conclusion of the story, one member of the crew believes he has found a Snark and calls out to his friends – but when they arrive, they find that he has vanished without a trace, “For the Snark was a Boojum, you see.”