Affirmative action, Diversity, Equity, and Inclusion programs

What are Diversity, Equity, and Inclusion (“DEI”) programs?

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The Trump admin­is­tra­tion has been aggres­sive­ly attack­ing Diver­si­ty, Equi­ty, and Inclu­sion (“DEI”) pro­grams, and is intend­ing to elim­i­nate them from the fed­er­al sys­tem. The Trump admin­is­tra­tion is also aim­ing to elim­i­nate them in pri­vate employment.

The attacks on DEI pro­grams treat them as racial­ly dis­crim­i­na­to­ry, and assume they con­sti­tute overt or thin­ly dis­guised affir­ma­tive action programs.

Advo­cates of DEI say the pro­grams don’t con­sti­tute favoritism but instead “cast a wider net” to bring his­tor­i­cal­ly dis­fa­vored or dis­ad­van­taged groups into con­sid­er­a­tion for employ­ment posi­tions his­tor­i­cal­ly unavail­able to them.

So what are DEI pro­grams? Do they con­sti­tute favoritism, affir­ma­tive action, or discrimination?

DEI pro­grams are orga­ni­za­tion­al ini­tia­tives aimed at cre­at­ing a work­place or insti­tu­tion­al cul­ture that val­ues diverse per­spec­tives, ensures fair treat­ment and oppor­tu­ni­ties, and fos­ters an inclu­sive envi­ron­ment where all indi­vid­u­als feel respect­ed, sup­port­ed, and able to thrive. While these pro­grams are most com­mon­ly asso­ci­at­ed with work­places, they also exist in edu­ca­tion­al insti­tu­tions, gov­ern­ment agen­cies, and non­prof­it organizations.

1. What Do DEI Programs Aim to Achieve?

Diversity:

• Refers to rep­re­sen­ta­tion across a vari­ety of demo­graph­ic, expe­ri­en­tial, and cog­ni­tive dimen­sions, such as race, gen­der, eth­nic­i­ty, sex­u­al ori­en­ta­tion, socioe­co­nom­ic back­ground, phys­i­cal abil­i­ties, and even diver­si­ty of thought or perspectives.

Equity:

• Focus­es on fair­ness and elim­i­nat­ing bar­ri­ers that pre­vent indi­vid­u­als from access­ing opportunities.

• Rec­og­nizes that dif­fer­ent peo­ple may need dif­fer­ent resources or accom­mo­da­tions to achieve com­pa­ra­ble outcomes.

Inclusion:

• Ensures that indi­vid­u­als, regard­less of their back­ground, feel val­ued, respect­ed, and includ­ed in deci­sion-mak­ing processes.

• Goes beyond rep­re­sen­ta­tion and focus­es on fos­ter­ing an envi­ron­ment where diverse indi­vid­u­als can con­tribute meaningfully.

2. Examples of DEI Initiatives

• Train­ing Pro­grams: Work­shops on uncon­scious bias, cul­tur­al com­pe­ten­cy, and inclu­sive leadership.

Con­tin­ue read­ing What are Diver­si­ty, Equi­ty, and Inclu­sion (“DEI”) pro­grams? →
Artificial Intelligence, Employment policies, Equal Employment Opportunity Commission, Family and Medical Leave Act (FMLA), Independent Contractors, Non-compete agreements, Wage and Hour Issues

Evolving Landscape of Employment Law: Key Updates for 2025

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If you’re an employ­er or an employ­ee, keep­ing up with employ­ment law changes can feel like chas­ing a mov­ing tar­get. With new court deci­sions, leg­isla­tive updates, and evolv­ing work­place norms, it’s more impor­tant than ever to stay informed. As we set­tle into 2025, here are some of the most sig­nif­i­cant devel­op­ments shap­ing employ­ment law across the country—and par­tic­u­lar­ly in West Virginia.

1. Remote Work and Wage & Hour Compliance

The pan­dem­ic may be in the rearview mir­ror, but remote and hybrid work are here to stay. That shift has raised fresh legal ques­tions, par­tic­u­lar­ly when it comes to wage and hour compliance.

A major trend we’re see­ing is increased scruti­ny from the U.S. Depart­ment of Labor (DOL) regard­ing remote work­ers’ over­time eli­gi­bil­i­ty. The Fair Labor Stan­dards Act (FLSA) requires employ­ers to track hours worked accu­rate­ly, but when employ­ees are log­ging in from home, com­pli­ance gets tricky. Employ­ers must ensure that non-exempt employ­ees are prop­er­ly record­ing breaks, over­time, and any “off-the-clock” work.

West Vir­ginia busi­ness­es with remote employ­ees should take a close look at their time-track­ing poli­cies to avoid poten­tial wage claims. Even an hon­est mistake—like fail­ing to count time spent respond­ing to emails after hours—can lead to cost­ly litigation.

2. Noncompete Agreements Under Fire

Non­com­pete agree­ments have been a hot-but­ton issue in recent years, and 2025 is shap­ing up to be a turn­ing point. The Fed­er­al Trade Com­mis­sion (FTC) issued a rule (April 2024) with a near­ly com­pre­hen­sive nation­wide ban on most non­com­pete claus­es, argu­ing that they sti­fle job mobil­i­ty and wage growth. 

I will dis­cuss below the legal chal­lenges to the FTC rule, but employ­ers should review their exist­ing agree­ments and con­sid­er whether non­com­petes are still enforce­able (in light of applic­a­ble state law and the prospect of the FTC rule sur­viv­ing legal attacks) or if alter­na­tive protections—such as con­fi­den­tial­i­ty and non­so­lic­i­ta­tion clauses—are a bet­ter approach.

Sta­tus of the FTC rule

Con­tin­ue read­ing Evolv­ing Land­scape of Employ­ment Law: Key Updates for 2025 →
Hostile work environment, Settlements, Sexual harassment, Taxes, Title VII of the Civil Rights Act of 1964

Congress against sexual harassment, part 1: Taxes

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This arti­cle is the first of 3 parts to cov­er 3 Acts of Con­gress direct­ed at expand­ing the rights of sex­u­al harass­ment and abuse victims. 

The series of 3 federal laws on sexual harassment claims

  • Con­gress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), lim­it­ed employ­er tax deduc­tions for set­tle­ments of sex­u­al harass­ment and abuse cas­es where the set­tle­ment agree­ment includ­ed a nondis­clo­sure agree­ment. That’s what this arti­cle is about.
  • Con­gress next in March 2022 passed the  End­ing Forced Arbi­tra­tion of Sex­u­al Assault and Harass­ment Act of 2021 which inval­i­dates arbi­tra­tion agree­ments over sex­u­al harass­ment and abuse claims, where the agree­ment is signed before a dis­pute arose. That’s my sec­ond arti­cle in this series.
  • Con­gress then in Decem­ber 2022 passed the Speak Out Act which inval­i­dat­ed nondis­clo­sure and non-dis­par­age­ment agree­ments in sex­u­al harass­ment and abuse claims where the agree­ments were pro­cured before a dis­pute arose. That’s my third arti­cle in this series.
Con­tin­ue read­ing Con­gress against sex­u­al harass­ment, part 1: Tax­es →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964

EEOC has updated its poster that employers must display

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The Unit­ed States Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) has updat­ed its poster that employ­ers are required to dis­play in their work­places. Here is the EEOC’s web site on its poster. Here is an inter­net (HTML) copy of the poster. Here is the PDF of the print­able poster for wall dis­play. The name of the poster is “Know Your Rights: Work­place Dis­crim­i­na­tion is Illegal”.

The poster does a good job of edu­cat­ing employ­ees and employ­ers on essen­tial aspects of the fed­er­al anti-dis­crim­i­na­tion laws. It cov­ers what employ­ees are pro­tect­ed, what employ­ers are cov­ered, the pro­tect­ed char­ac­ter­is­tics about which the laws pro­hib­it dis­crim­i­na­tion, the deci­sions and con­duct of the employ­ers that are pro­hib­it­ed, and how an employ­ee can file a charge with the EEOC. In light of new­er tech­nol­o­gy, the poster has a QR code so an employ­ee can user a phone to jump straight to the EEOC’s web site for fil­ing a charge.

Con­tin­ue read­ing EEOC has updat­ed its poster that employ­ers must dis­play →
Contract Issues, Employee handbook, Employment at will rule

Handbooks and other ways to bypass the employment at will rule

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Part 2 of a series on West Virginia employment law

This arti­cle fol­lows up my pri­or blog arti­cle, The Employ­ment at Will Rule in West Vir­ginia. In that arti­cle, I explained the basic con­tours of the employ­ment at will rule.

With the employ­ment at will rule radi­at­ing in the back­ground, there are many ways it can be mod­i­fied or bypassed. All claims relat­ing to dis­crim­i­na­tion and retal­i­a­tion, for exam­ple, mod­i­fy the rule to the extent an excep­tion is cre­at­ed by which the employ­er may not ter­mi­nate the rule for a spe­cif­ic rea­son, such as age.

Scenarios: handbooks and other promises

But this arti­cle focus­es on con­trac­tu­al or con­tract-like lim­i­ta­tions on the employ­ment at will rule. The par­ties (employ­er and employ­ee) can enter into a for­mal employ­ment con­tract that mod­i­fies the employ­ment at will rule. But I am not address­ing that for­mal con­tract in this arti­cle. I am real­ly try­ing to focus on two scenarios:

Con­tin­ue read­ing Hand­books and oth­er ways to bypass the employ­ment at will rule →
Employee handbook, Employment at will rule

The employment at will rule in West Virginia

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Part 1 of a series on West Virginia employment law

This blog arti­cle is the first part of a series I will write on employ­ment law in West Vir­ginia, with a focus on lit­i­ga­tion issues relat­ing to alleged wrong­ful discharge. 

I will start with the employ­ment at will rule, and will car­ry through with arti­cles on the numer­ous excep­tions to the employ­ment at will rule.

What is the employment at will rule?

The courts have long had a love-hate rela­tion­ship with the employ­ment at will rule. West Vir­ginia, like vir­tu­al­ly all oth­er states, adheres to the rule.

So, what is the employ­ment at will rule? For con­ve­nience, I will define it in terms of the right to end or ter­mi­nate the employ­ment rela­tion­ship, but more about that def­i­n­i­tion in a moment. And more below about the big qual­i­fi­ca­tion on the rule.

One way to state the rule is that both par­ties to the employ­ment rela­tion­ship, the employ­er and the employ­er, have the right to ter­mi­nate the employ­ment rela­tion­ship at any time and for any rea­son (but not for an ille­gal rea­son, and that is dis­cussed below). It is impor­tant to under­stand that those are the two essen­tial attrib­ut­es of the rule: to ter­mi­nate the employ­ment rela­tion­ship (1) at any time, and (2) for any rea­son. Both sides (employ­er and employ­ee) have that right, although the right is almost always exam­ined in terms of the employ­er’s right in wrong­ful dis­charge litigation.

West Virginia’s description of the rule

In the con­text of ter­mi­na­tion (more about that lat­er) the employ­ment at will rule has been described in West Vir­ginia this way: the rule allows an employ­er to ter­mi­nate an employ­ee for:

Con­tin­ue read­ing The employ­ment at will rule in West Vir­ginia →
Ruth Bader Ginsburg, Sex Discrimination, US Supreme Court

Farewell, Ruth Bader Ginsburg

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Courage.

While still a prac­tic­ing lawyer, Ruth Bad­er Gins­burg in 1973 argued to 9 men on the Unit­ed States Supreme Court in a his­tor­i­cal­ly sig­nif­i­cant case, Fron­tiero v. Richard­son, 411 U.S. 677 (1973).

Gins­burg asked the Supreme Court to rec­og­nize for the first time that the guar­an­tee of “equal pro­tec­tion of the laws” con­tained in the Fifth Amend­ment (rat­i­fied in 1791) pro­tect­ed women and men from dis­crim­i­na­tion based on sex. 

In talk­ing to the 9 men on the Supreme Court, Gins­burg stat­ed: I “urge[] a posi­tion forcibly stat­ed in 1837 by Sara Grimke, not­ed abo­li­tion­ist and advo­cate of equal rights for men and women. She spoke not ele­gant­ly, but with unmis­tak­able clar­i­ty. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’ ” 

The Supreme Court ruled near­ly unan­i­mous­ly in her favor (8–1).

Farewell, Ruth Bad­er Ginsburg.

“And flights of angels sing thee to thy rest.”

(Shake­speare, Hamlet.)
Harless wrongful discharge, Seminars

Drew Capuder Will Be Speaking At Upcoming West Virginia Employment Lawyers Association Conference

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I look for­ward to speak­ing at the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion’s annu­al con­fer­ence on Octo­ber 12 and 13, 2018, at Hawk’s Nest State Park in Anst­ed, West Virginia.

I will be speak­ing and pre­sent­ing an arti­cle on the Har­less wrong­ful dis­charge doc­trine, which deals with ter­mi­na­tion of employ­ees where the employ­er’s moti­va­tion alleged­ly vio­lates a sub­stan­tial pub­lic policy.

I will also be pre­sent­ing an arti­cle and par­tic­i­pat­ing in a pan­el dis­cus­sion on social net­work­ing & elec­tron­ic dis­cov­ery issues.

Here is infor­ma­tion on the con­fer­ence, join­ing the WVELA, and attend­ing the conference.

Employment Law News and Analysis