Drug testing, WV Safer Workplace Act

Drug testing in West Virginia, The Safer Workplace Act

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I recent­ly wrote an arti­cle about work­place drug-test­ing, and this arti­cle takes a deep­er dive into a rel­a­tive­ly new law in West Vir­ginia on the issue.

The West Vir­ginia Safer Work­place Act (the “Act”), W. Va. Code § 21–3E‑1 et seq, passed in 2017, rep­re­sents a sig­nif­i­cant devel­op­ment in the state’s approach to work­place drug and alco­hol test­ing. Enact­ed to pro­vide employ­ers with greater lat­i­tude in ensur­ing safe and pro­duc­tive work envi­ron­ments, the Act address­es sev­er­al legal prece­dents and attempts to estab­lish clear guide­lines for both employ­ers and employ­ees. This arti­cle looks into the key aspects of the Act, includ­ing its impact on pri­or legal deci­sions, the pro­ce­dures it man­dates, pro­tec­tions it offers to employ­ers, and the rights it affords to employees.

1. Impact on Prior Legal Decisions, Specifically Harless

Before the Act’s enact­ment, West Vir­gini­a’s stance on employ­ee drug test­ing was large­ly shaped by court deci­sions empha­siz­ing employ­ee pri­va­cy rights. The West Vir­ginia Supreme Court rec­og­nized the right of pri­va­cy in Roach v. Harp­er, 143 W. Va. 869, 105 S.E.2d 564 (1958). A piv­otal case in this con­text is Har­less v. First Nation­al Bank in Fair­mont, 246 S.E.2d 270 (W. Va. 1978), where the West Vir­ginia Supreme Court rec­og­nized a cause of action for wrong­ful dis­charge when an employ­ee is ter­mi­nat­ed for rea­sons that con­tra­vene sub­stan­tial pub­lic pol­i­cy. This deci­sion laid the ground­work for scru­ti­niz­ing employ­er prac­tices, includ­ing drug test­ing, that might infringe upon employ­ee rights, such as in Twigg v. Her­cules Corp., 185 W. Va. 155, 406 S.E.2d 52 (1990) (reit­er­at­ing pri­va­cy right based on Roach in Har­less claim pre­clud­ing ter­mi­na­tion of employ­ee who refused post-employ­ment drug test).

Con­tin­ue read­ing Drug test­ing in West Vir­ginia, The Safer Work­place Act →
Joint Employment, National Labor Relations Act, National Labor Relations Board, WV Human Rights Act

Understanding Joint Employment Under Federal and West Virginia Law

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If you work in health­care, hos­pi­tal­i­ty, or any indus­try that relies on staffing agen­cies, fran­chise mod­els, or shared employ­ment struc­tures, you’ve like­ly encoun­tered the con­cept of joint employ­ment. But what does it actu­al­ly mean? And more impor­tant­ly, how could it affect you or your clients?

Joint employ­ment occurs when mul­ti­ple entities—like a com­pa­ny and a staffing agency, or a fran­chisor and a franchisee—share con­trol over an employee’s work. That shared con­trol can lead to shared lia­bil­i­ty, espe­cial­ly in wage-and-hour dis­putes, dis­crim­i­na­tion claims, and union mat­ters. With recent changes to fed­er­al rules and ongo­ing court deci­sions, under­stand­ing joint employ­ment has nev­er been more important.

What Is Joint Employment?

Sim­ply put, joint employ­ment hap­pens when two or more enti­ties have sig­nif­i­cant con­trol over the terms and con­di­tions of a worker’s job. That could include con­trol over sched­ules, pay rates, hir­ing, fir­ing, or dai­ly super­vi­sion. For legal pur­pos­es, both enti­ties may be con­sid­ered “employ­ers,” mean­ing they’re both respon­si­ble for com­ply­ing with employ­ment laws.

Con­tin­ue read­ing Under­stand­ing Joint Employ­ment Under Fed­er­al and West Vir­ginia Law →
Americans with Disabilities Act, Reasonable Accommodations, WV Human Rights Act

Understanding the Interactive Process Under the ADA: A Two-Way Street

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Let’s talk about a con­cept in employ­ment law that often gets over­looked or misunderstood—the “inter­ac­tive process” under the Amer­i­cans with Dis­abil­i­ties Act (ADA). If you rep­re­sent employ­ers or employ­ees, or you’re an HR pro­fes­sion­al nav­i­gat­ing accom­mo­da­tion requests, this process is absolute­ly cen­tral to ADA compliance.

It’s also one of the more com­mon areas where employ­ers get tripped up—not nec­es­sar­i­ly by refus­ing to accom­mo­date a dis­abil­i­ty, but by fail­ing to com­mu­ni­cate prop­er­ly and in good faith.

What is the Interactive Process?

Under the ADA, once an employ­er becomes aware that an employ­ee needs an accom­mo­da­tion for a dis­abil­i­ty, the law requires the employ­er to engage in an “inter­ac­tive process” with the employ­ee to iden­ti­fy a rea­son­able accom­mo­da­tion. The statu­to­ry basis is 42 U.S.C. § 12112(b)(5)(A), which defines dis­crim­i­na­tion to include not mak­ing “rea­son­able accom­mo­da­tions to the known phys­i­cal or men­tal lim­i­ta­tions of an oth­er­wise qual­i­fied indi­vid­ual with a dis­abil­i­ty,” unless the employ­er can show undue hardship.

The Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) explains that this is not a one-time conversation—it’s a col­lab­o­ra­tive dia­logue aimed at iden­ti­fy­ing and imple­ment­ing accom­mo­da­tions that allow the employ­ee to per­form the essen­tial func­tions of their job.\

The gov­ern­ing reg­u­la­tion, 29 C.F.R. § 1630.2(o)(3), puts it this way:

“To deter­mine the appro­pri­ate rea­son­able accom­mo­da­tion it may be nec­es­sary for the cov­ered enti­ty to ini­ti­ate an infor­mal, inter­ac­tive process with the indi­vid­ual with a dis­abil­i­ty in need of the accommodation.”.

Con­tin­ue read­ing Under­stand­ing the Inter­ac­tive Process Under the ADA: A Two-Way Street →
Dodd-Frank Act, False Claims Act, Harless wrongful discharge, Retaliation claims, Sarbanes-Oxley Act, Whitle blower claims (including Harless)

Workplace Whistleblower Protections: What Employees and Employers Need to Know

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Whistle­blow­ing is one of the most pow­er­ful tools for expos­ing ille­gal activ­i­ties in the work­place. Employ­ees who report mis­con­duct, fraud, or safe­ty vio­la­tions help keep busi­ness­es account­able, but they also risk retal­i­a­tion. Fed­er­al and state laws offer pro­tec­tions for whistle­blow­ers, ensur­ing they can report wrong­do­ing with­out fear of los­ing their jobs. Let’s break down what both employ­ees and employ­ers should know about whistle­blow­er protections.

What Is a Whistleblower?

A whistle­blow­er is an employ­ee who reports unlaw­ful or uneth­i­cal behav­ior with­in a com­pa­ny. Com­mon types of whistle­blow­ing include:

  • Report­ing fraud or finan­cial mis­con­duct (e.g., secu­ri­ties fraud, tax evasion).
  • Report­ing unsafe work­ing con­di­tions or OSHA violations.
  • Dis­clos­ing dis­crim­i­na­tion or harass­ment in vio­la­tion of employ­ment laws.
  • Expos­ing gov­ern­ment con­tract fraud or mis­use of pub­lic funds.
Con­tin­ue read­ing Work­place Whistle­blow­er Pro­tec­tions: What Employ­ees and Employ­ers Need to Know →
At-will employment rule, Concerted activity, Harless wrongful discharge, National Labor Relations Act

When Personal Conduct Off the Clock Leads to Termination: Off-Duty Behavior and Employment Law

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Let’s talk about some­thing that’s become more and more rel­e­vant in today’s world—off-duty con­duct. What hap­pens when an employ­ee gets into trou­ble out­side of work? Can an employ­er fire some­one for some­thing they did on their own time? And how do courts draw the line between pri­vate behav­ior and job-relat­ed consequences?

The short answer: yes, employ­ers often can ter­mi­nate some­one for off-duty con­duct, but it depends heav­i­ly on the circumstances—and there are key legal pro­tec­tions that lim­it this right.

This area of law lives in a gray zone where employ­ment at-will, pub­lic pol­i­cy, dis­crim­i­na­tion statutes, and even social media all over­lap. Let’s dive in.

At-Will Employment and the Right to Terminate

As you know, West Vir­ginia is an at-will employ­ment state, like most of the coun­try. That means employ­ers can gen­er­al­ly ter­mi­nate an employ­ee for any reason—or no rea­son at all—so long as it’s not ille­gal or in vio­la­tion of a pub­lic pol­i­cy. See W. Va. Code § 21–5‑4 and Felix v. Grafton City Hos­pi­tal, 447 S.E.2d 418 (W. Va. 1994).

So, in the­o­ry, an employ­er could fire an employ­ee because of some­thing they did off the clock—say, a bar fight, a con­tro­ver­sial Face­book post, or a DUI arrest.

But the­o­ry and prac­tice aren’t always the same.

Con­tin­ue read­ing When Per­son­al Con­duct Off the Clock Leads to Ter­mi­na­tion: Off-Duty Behav­ior and Employ­ment Law →
Dress codes and grooming policies, Race discrimination

The Legality of Employee Dress Codes and Grooming Policies

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Work­place dress codes and groom­ing poli­cies are a com­mon part of employ­ment, but they can also cre­ate legal chal­lenges. Employ­ers want pro­fes­sion­al-look­ing employ­ees, while work­ers want to express them­selves and avoid unnec­es­sary restric­tions. So, where’s the legal line? Let’s break down the do’s and don’ts of work­place appear­ance policies.

Can Employers Legally Enforce Dress Codes?

Yes, employ­ers gen­er­al­ly have the right to enforce dress codes and groom­ing poli­cies, as long as they are job-relat­ed and applied fair­ly. The key legal con­sid­er­a­tions include:

  • Anti-Dis­crim­i­na­tion Laws: Poli­cies can­not dis­crim­i­nate based on race, sex, reli­gion, dis­abil­i­ty, or oth­er pro­tect­ed cat­e­gories under Title VII of the Civ­il Rights Act of 1964 (42 U.S.C. § 2000e‑2).
  • Dis­abil­i­ty Accom­mo­da­tions: Employ­ers must pro­vide rea­son­able accom­mo­da­tions for employ­ees with dis­abil­i­ties under the Amer­i­cans with Dis­abil­i­ties Act (ADA) (42 U.S.C. § 12112(b)(5)).
  • Reli­gious Accom­mo­da­tions: Employ­ees must be allowed to wear reli­gious attire (such as hijabs or yarmulkes) unless the employ­er can show an undue hard­ship (EEOC v. Aber­crom­bie & Fitch Stores, Inc., 575 U.S. 768 (2015)).
  • Gen­der and Hair Dis­crim­i­na­tion: Some courts and states have ruled that poli­cies restrict­ing nat­ur­al hair­styles (such as afros, braids, and dread­locks) can be racial­ly dis­crim­i­na­to­ry (CROWN Act laws are gain­ing momen­tum nation­wide, though not yet in West Virginia).
Con­tin­ue read­ing The Legal­i­ty of Employ­ee Dress Codes and Groom­ing Poli­cies →
National Labor Relations Act, Social networking

The Legal Implications of Employee Social Media Use

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Social media has trans­formed how peo­ple com­mu­ni­cate, but it has also cre­at­ed legal chal­lenges in the work­place. Employ­ers want to pro­tect their rep­u­ta­tion and con­fi­den­tial infor­ma­tion, while employ­ees want to express them­selves freely. The big ques­tion is: how much con­trol can an employ­er legal­ly exert over an employee’s social media activ­i­ty? Let’s break it down.

Can Employers Restrict Employee Social Media Use?

Yes, but with lim­i­ta­tions. Employ­ers can imple­ment social media poli­cies to safe­guard their busi­ness inter­ests, pre­vent work­place harass­ment, and main­tain pro­duc­tiv­i­ty. How­ev­er, they must ensure these poli­cies do not vio­late employ­ee rights under fed­er­al and state law.

For exam­ple, the Nation­al Labor Rela­tions Act (NLRA) (29 U.S.C. § 157) pro­tects employ­ees who engage in “con­cert­ed activity”—discussions about wages, work­ing con­di­tions, or union­iz­ing efforts. The Nation­al Labor Rela­tions Board (NLRB) has ruled that employ­ers can­not dis­ci­pline work­ers for social media posts that fall under this pro­tec­tion (NLRB v. Pier Six­ty, LLC, 855 F.3d 115 (2d Cir. 2017)).

Employ­ers can take action against employ­ees for social media posts that:

  • Vio­late com­pa­ny poli­cies (e.g., harass­ment, dis­crim­i­na­tion, or con­fi­den­tial­i­ty rules).
  • Con­tain threats, hate speech, or defam­a­to­ry statements.
  • Cause sig­nif­i­cant rep­u­ta­tion­al harm to the employer.

How­ev­er, a blan­ket ban on work-relat­ed social media dis­cus­sions could vio­late fed­er­al labor laws.

Con­tin­ue read­ing The Legal Impli­ca­tions of Employ­ee Social Media Use →
Religious discrimination

The Ministerial Exception for Religion Discrimination Claims

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I gen­er­al­ly addressed reli­gion dis­crim­i­na­tion claims in a sep­a­rate arti­cle today. This par­ti­cle address­es a very impor­tant aspect of those types of cas­es, the “min­is­te­r­i­al excep­tion” which effec­tive­ly pre­cludes claims of dis­crim­i­na­tion against reli­gious orga­ni­za­tions where the role of the plain­tiff involves “min­is­te­r­i­al duties”. More about what that means below.

What is the ministerial exception?

The min­is­te­r­i­al excep­tion is a judi­cial­ly cre­at­ed doc­trine under U.S. law that exempts cer­tain employ­ment deci­sions made by reli­gious orga­ni­za­tions from scruti­ny under employ­ment dis­crim­i­na­tion statutes. Root­ed in the First Amendment’s guar­an­tees of the free exer­cise of reli­gion and the pro­hi­bi­tion against gov­ern­men­tal estab­lish­ment of reli­gion, the min­is­te­r­i­al excep­tion rec­og­nizes that reli­gious insti­tu­tions have a con­sti­tu­tion­al right to choose their min­is­ters with­out gov­ern­ment interference.

In essence, the doc­trine pre­vents courts from adju­di­cat­ing claims that would require them to eval­u­ate the qual­i­fi­ca­tions of reli­gious lead­ers, the duties they per­form, or the valid­i­ty of reli­gious doc­trines. As a result, when an employee’s role with­in a reli­gious orga­ni­za­tion is deemed to be min­is­te­r­i­al, courts gen­er­al­ly decline to apply employ­ment dis­crim­i­na­tion laws—such as Title VII of the Civ­il Rights Act of 1964, the Amer­i­cans with Dis­abil­i­ties Act (ADA), or the Age Dis­crim­i­na­tion in Employ­ment Act (ADEA)—to dis­putes over that individual’s employment.

Con­tin­ue read­ing The Min­is­te­r­i­al Excep­tion for Reli­gion Dis­crim­i­na­tion Claims →
Religious discrimination

Religious Discrimination in the Workplace: Rights and Responsibilities

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Reli­gious dis­crim­i­na­tion in the work­place is a grow­ing issue in employ­ment law, affect­ing both employ­ers and employ­ees. With an increas­ing­ly diverse work­force, under­stand­ing legal pro­tec­tions and oblig­a­tions regard­ing reli­gious beliefs and prac­tices is essen­tial. Let’s dive into how fed­er­al and state laws han­dle reli­gious dis­crim­i­na­tion and what both employ­ers and employ­ees should know.

What Is Religious Discrimination?

Reli­gious dis­crim­i­na­tion occurs when an employ­er treats an employ­ee unfa­vor­ably because of their reli­gious beliefs or prac­tices. This includes:

  • Hir­ing and fir­ing deci­sions based on religion.
  • Deny­ing pro­mo­tions, rais­es, or job assign­ments due to reli­gious beliefs.
  • Harass­ment relat­ed to an employee’s faith.
  • Fail­ure to pro­vide rea­son­able accom­mo­da­tions for reli­gious practices.

Fed­er­al law pro­hibits reli­gious dis­crim­i­na­tion under Title VII of the Civ­il Rights Act of 1964, which applies to employ­ers with 15 or more employ­ees (42 U.S.C. § 2000e‑2). West Virginia’s Human Rights Act pro­vides sim­i­lar pro­tec­tions at the state lev­el and applies to employ­ers with 12 or more employ­ees with­in West Vir­ginia (W. Va. Code § 16B-17–9).

Con­tin­ue read­ing Reli­gious Dis­crim­i­na­tion in the Work­place: Rights and Respon­si­bil­i­ties →
Pregnancy discrimination, Sex Discrimination

Legal protections for pregnant employees

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A preg­nant employ­ee in West Vir­ginia is pro­tect­ed under fed­er­al and state laws that pro­vide work­place rights, pro­hib­it dis­crim­i­na­tion, and require rea­son­able accom­mo­da­tions, par­tic­u­lar­ly for med­ical com­pli­ca­tions relat­ed to preg­nan­cy. Below is an overview of the key legal pro­tec­tions and employ­er obligations.

Federal Legal Protections for Pregnant Employees

1. Pregnancy Discrimination Act (PDA) – 42 U.S.C. § 2000e(k)

The Preg­nan­cy Dis­crim­i­na­tion Act (PDA) is an amend­ment to Title VII of the Civ­il Rights Act of 1964 and pro­hibits dis­crim­i­na­tion based on preg­nan­cy, child­birth, or relat­ed med­ical con­di­tions. Under the PDA:

  • Employ­ers can­not fire, refuse to hire, demote, or oth­er­wise dis­crim­i­nate against a woman because of pregnancy.
  • Preg­nant employ­ees must be treat­ed the same as oth­er employ­ees who are sim­i­lar in their abil­i­ty or inabil­i­ty to work.
  • If an employ­er pro­vides accom­mo­da­tions for tem­porar­i­ly dis­abled employ­ees, it must pro­vide sim­i­lar accom­mo­da­tions for preg­nant employ­ees with work restrictions.
Con­tin­ue read­ing Legal pro­tec­tions for preg­nant employ­ees →

Employment Law News and Analysis