It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?
In a win for employers in the State of West Virginia, the Supreme Court of Appeals of West Virginia overturned a lower court’s decision that an employment arbitration agreement was unenforceable in Hamden Coal, LLC v. Varney. The lower court agreed with the employee on every relevant issue, finding that arbitration claims are viewed differently in an employment context, that the agreement was a contract of adhesion, that the agreement lacked consideration, that the agreement was unconscionable, and that the employee’s claims fell outside the agreement. The Supreme Court, however, overturned each finding and took the additional step of directing the court to enter an order dismissing the civil action and compelling arbitration.
This question today comes up in many contexts. The Commonwealth Court of Pennsylvania, an intermediate appellate court, in D&R Construction v. Workers’ Compensation Appeal Board, had to determine whether the Construction Workplace Misclassification Act (CWMA) 43 p.s. § 933.1-17 was instructive in evaluating the employee or independent contractor question.
Non-compete and non-solicitation agreements have become common today for numerous positions at various levels throughout all industries. This is true even though courts look with disfavor on such agreements and seek reasons not to enforce them; viewing such agreements as one-sided, prepared by and favoring employers, and restricting the individual’s ability to work and earn a living. In fact, for such reasons, these agreements are generally unenforceable in California. Thus, when asked to enforce non-compete/non-solicitation agreements, courts examine them to see if the employer has a protectable interest in the matters being restricted and whether the restrictions are narrowly-tailored in terms of both their length and geographic scope.
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.
If you set goals late last year or early this year for workplace compliance to be completed in 2016 and have not yet met your goals, now is the time to revisit them. It is critical to allocate time and energy now to review your policies and achieve compliance with various statutes including the National Labor Relations Act, the Fair Labor Standards Act and the Fair Credit Reporting Act (“FCRA”) as the repercussions to employers for failing to do so are proving to be very costly. As was predicted for 2016, the trend of filing class actions for failure to comply with the requirements of the FCRA has and continues to grow.
On July 13, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued a revised proposal to expand data collection through its Employer Information Report (“EEO-1”). Through EEO-1 reports, the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) have been able to identify possible discriminatory practices and conduct pay discrimination investigations through the race, gender, ethnicity, sex, and job category pay data collected from employers across the country.
As employment attorneys, we are often asked by employers, “How can I protect my company from employees leaving with critical information or being poached by a competitor?” One way that employers can protect themselves is to prepare reasonable non-compete agreements that have the effect of deterring competitors and, likewise, encouraging retention amongst the workforce. There are, however, pitfalls which must be considered by employers before the execution of these non-compete agreements. Generally speaking, West Virginia courts will accept and enforce non-compete agreements that (1) are no more restrictive than required for the protection of the employer; (2) do not impose an undue hardship on the employee; and, (3) are not injurious to the public.
The use of independent contractors is a growing trend in the American economy, and many believe the trend is here to stay. Independent contractors come in a variety of shapes and sizes. Companies like Uber rely almost exclusively on independent contractors, and there has been significant increase in the use of independent contractors for a variety of duties (in nearly all industries).