The West Virginia Human Rights Act has moved!

This is real­ly just a heads up to oth­er attor­neys. I am still see­ing a lot of lawyers incor­rect­ly cite the West Vir­ginia Human Rights Act to its pri­or location.

The West Vir­ginia had been orig­i­nal­ly cod­i­fied at § 5–11‑1.

Because of the West Vir­ginia leg­is­la­ture reor­ga­niz­ing last year var­i­ous part of the West Vir­ginia Code, the Human Rights Ac t has been relo­cat­ed to W. Va. Code § 16B-17–1.

A bit of detail (prob­a­bly more than you want):

Con­tin­ue read­ing The West Vir­ginia Human Rights Act has moved!

Background Checks in Hiring—What Employers Can (and Can’t) Do

Introduction

Run­ning back­ground checks on job appli­cants is a pret­ty stan­dard part of the hir­ing process these days. But just because some­thing is com­mon doesn’t mean it’s sim­ple. Between fed­er­al laws, state reg­u­la­tions, and pri­va­cy con­cerns, employ­ers have to walk a fine line. And for appli­cants, it’s impor­tant to under­stand your rights—especially if some­thing from your past might show up.

Let’s break down how back­ground checks work, what’s allowed under fed­er­al and West Vir­ginia law, and how both sides of the hir­ing table can han­dle the process with­out cross­ing legal lines.

What Is a Background Check?

In the employ­ment con­text, a back­ground check is any review of an applicant’s his­to­ry to help an employ­er decide whether to hire them. That can include:

  • Crim­i­nal history
  • Cred­it reports
  • Employ­ment and edu­ca­tion verification
  • Dri­ving records
  • Ref­er­ence checks
Con­tin­ue read­ing Back­ground Checks in Hiring—What Employ­ers Can (and Can’t) Do

Understanding “Constructive Discharge” in Employment Law—When Quitting Is Really Getting Fired

Intro­duc­tion
Most peo­ple think of get­ting fired as a clear-cut event—your boss calls you into the office, maybe there’s a stern con­ver­sa­tion, and you’re sent pack­ing. But not every ter­mi­na­tion is that explic­it. Some­times, the work­ing con­di­tions get so bad that an employ­ee feels they have no real choice but to quit. That’s where the legal con­cept of con­struc­tive dis­charge comes into play.

In West Vir­ginia (and under fed­er­al law), con­struc­tive dis­charge is tech­ni­cal­ly not a self-suf­fi­cient legal claim. Con­struc­tive dis­charge is a legal doc­trine for deter­min­ing whether a res­ig­na­tion will be treat­ed as a dis­charge, so that the con­struc­tive­ly dis­charged employ­ee is treat­ed as hav­ing been invol­un­tar­i­ly sep­a­rat­ed (ter­mi­nat­ed, fired). If an employ­ee’s res­ig­na­tion is tru­ly vol­un­tary, then there is no “wrong­ful dis­charge,” and the employ­er is not legal­ly respon­si­ble for the employ­ee’s finan­cial harm after the res­ig­na­tion. But if the res­ig­na­tion is treat­ed as a con­struc­tive dis­charge, the employ­ee may have a viable wrong­ful dis­charge claim, and may have recov­er­able dam­ages for the finan­cial harm expe­ri­enced after the dis­charge. But the con­struc­tive dis­charge itself is not inde­pen­dent­ly “actionable”–it must be cou­pled with a legal the­o­ry such as sex dis­crim­i­na­tion or retal­i­a­tion for whistleblowing.

Con­tin­ue read­ing Under­stand­ing “Con­struc­tive Dis­charge” in Employ­ment Law—When Quit­ting Is Real­ly Get­ting Fired

Navigating the Intersection of Employment Law and Social Media in West Virginia

I’m fol­low­ing up on my ear­li­er arti­cle about social media issues in the workplace.

Introduction

In today’s dig­i­tal age, social media plat­forms like Face­book, Twit­ter, LinkedIn, and Insta­gram have become inte­gral to our dai­ly lives. For employ­ers and employ­ees alike, these plat­forms offer oppor­tu­ni­ties for net­work­ing, brand­ing, and per­son­al expres­sion. How­ev­er, they also present chal­lenges when per­son­al posts inter­sect with pro­fes­sion­al respon­si­bil­i­ties. In West Vir­ginia, under­stand­ing how employ­ment law inter­acts with social media use is cru­cial for both employ­ers aim­ing to pro­tect their busi­ness inter­ests and employ­ees safe­guard­ing their rights.

Social Media Policies: A Double-Edged Sword

Employ­ers often imple­ment social media poli­cies to main­tain work­place deco­rum and pro­tect pro­pri­etary infor­ma­tion. These poli­cies may address issues such as:

Con­tin­ue read­ing Nav­i­gat­ing the Inter­sec­tion of Employ­ment Law and Social Media in West Vir­ginia

Interference Claims Under the Family and Medical Leave Act: What Employees and Employers Need to Know

The Fam­i­ly and Med­ical Leave Act of 1993 (FMLA) pro­vides eli­gi­ble employ­ees with the right to take unpaid, job-pro­tect­ed leave for cer­tain fam­i­ly and med­ical rea­sons. But what hap­pens when an employ­er alleged­ly blocks, dis­cour­ages, or denies that leave? That’s where the inter­fer­ence claim comes in. This arti­cle dives into the legal foun­da­tion for FMLA inter­fer­ence claims, what employ­ees must prove, the defens­es employ­ers can raise, and the dam­ages avail­able to suc­cess­ful claimants.

Whether you’re an employ­er try­ing to com­ply with your FMLA oblig­a­tions or an employ­ee won­der­ing if your rights have been vio­lat­ed, under­stand­ing inter­fer­ence claims is essential.


What Is an Interference Claim?

The FMLA pro­hibits employ­ers from inter­fer­ing with, restrain­ing, or deny­ing the exer­cise of—or the attempt to exercise—any rights pro­vid­ed under the Act. This broad lan­guage gives rise to the inter­fer­ence claim, some­times called a “§ 2615(a)(1) claim” after the statute that cre­ates it.

Con­tin­ue read­ing Inter­fer­ence Claims Under the Fam­i­ly and Med­ical Leave Act: What Employ­ees and Employ­ers Need to Know

The FMLA and Intermittent Leave: Balancing Flexibility with Compliance

Intro­duc­tion
The Fam­i­ly and Med­ical Leave Act (FMLA) is one of those work­place laws that almost everyone’s heard of—but few real­ly under­stand until they’re knee-deep in paper­work, doctor’s notes, and ques­tions about what counts as “seri­ous.” And among the most mis­un­der­stood areas? Inter­mit­tent leave.

Whether you’re rep­re­sent­ing a clin­ic jug­gling nurse sched­ules or advis­ing a work­er man­ag­ing migraines or care­giv­ing duties, inter­mit­tent FMLA leave is where things get tricky. It’s flex­i­ble by design, but that flex­i­bil­i­ty can also cre­ate con­fu­sion and con­flict on both sides of the employ­ment relationship.

What Is Inter­mit­tent FMLA Leave?
First, the basics. The FMLA, 29 U.S.C. § 2601 et seq., allows eli­gi­ble employ­ees to take up to 12 weeks of unpaid, job-pro­tect­ed leave per year for qual­i­fy­ing reasons:

  • A seri­ous health condition;
  • To care for a spouse, child, or par­ent with a seri­ous health condition;
  • Birth or adop­tion of a child;
  • Cer­tain mil­i­tary-relat­ed events.
Con­tin­ue read­ing The FMLA and Inter­mit­tent Leave: Bal­anc­ing Flex­i­bil­i­ty with Com­pli­ance

The Legal Ins and Outs of Employment References in West Virginia

Let’s face it—providing ref­er­ences for for­mer employ­ees can feel like walk­ing a tightrope. Employ­ers want to be hon­est, but they also want to avoid get­ting sued. Employ­ees want a fair shot at future jobs, but wor­ry that a bad ref­er­ence will sab­o­tage their chances. And as with many areas of employ­ment law, it’s not always clear where the legal lines are drawn.

In this arti­cle, we’ll explore what West Vir­ginia and fed­er­al law say about job ref­er­ences, the risks of defama­tion and retal­i­a­tion claims, and how both sides can approach the ref­er­ence game with a bit more con­fi­dence (and few­er lawsuits).


What Employers Can Say About Former Employees

Con­trary to pop­u­lar belief, there’s no law that says employ­ers can’t give a neg­a­tive ref­er­ence. In fact, under both West Vir­ginia and fed­er­al law, employ­ers are gen­er­al­ly free to pro­vide truth­ful, fac­tu­al infor­ma­tion about a for­mer employee’s per­for­mance, con­duct, and rea­son for separation.

Con­tin­ue read­ing The Legal Ins and Outs of Employ­ment Ref­er­ences in West Vir­ginia

Time Rounding and Wage Claims: When Do Small Time Adjustments Become Big Legal Problems?

Let’s talk about some­thing that sounds minor—but can turn into a major wage-and-hour issue for employ­ers: time rounding.

You’ve prob­a­bly seen it in action. An employ­ee clocks in at 8:56 a.m., but the sys­tem rounds it to 9:00 a.m. Or some­one clocks out at 5:04 p.m., but it’s record­ed as 5:00 p.m. Seems harm­less, right? Maybe even a help­ful admin­is­tra­tive shortcut.

But under fed­er­al and state wage laws, these small adjust­ments can add up fast—and lead to seri­ous legal expo­sure. Both the Fair Labor Stan­dards Act (FLSA) and West Virginia’s wage laws have rules (and some gray areas) when it comes to round­ing employ­ee time.

So let’s unpack the legal frame­work around time round­ing: what’s allowed, what’s risky, and how employ­ers and employ­ees can pro­tect themselves.

Con­tin­ue read­ing Time Round­ing and Wage Claims: When Do Small Time Adjust­ments Become Big Legal Prob­lems?

The Evolving Standard for Hostile Work Environment Claims

When employ­ees say their work­place is “tox­ic” or “hos­tile,” they’re often using the term loosely—maybe it’s office dra­ma, an annoy­ing boss, or just a gen­er­al­ly tense atmos­phere. But in employ­ment law, a hos­tile work envi­ron­ment has a very spe­cif­ic legal mean­ing. And as courts have refined the stan­dard over the years, the line between what’s action­able and what’s just unpleas­ant has got­ten sharp­er (but not nec­es­sar­i­ly clearer).

For both employ­ers and employ­ees in West Vir­ginia, it’s impor­tant to under­stand what actu­al­ly qual­i­fies as a hos­tile work envi­ron­ment under the law, how these claims are proven, and what the poten­tial pit­falls are in lit­i­ga­tion. Spoil­er alert: just being a jerk isn’t nec­es­sar­i­ly illegal.


What Is a Hostile Work Environment?

Under both fed­er­al law and West Vir­ginia law, a hos­tile work envi­ron­ment occurs when an employ­ee is sub­ject­ed to dis­crim­i­na­to­ry harass­ment that is severe or per­va­sive enough to alter the con­di­tions of employ­ment and cre­ate an abu­sive work­ing environment.

Con­tin­ue read­ing The Evolv­ing Stan­dard for Hos­tile Work Envi­ron­ment Claims

At-Will” Employment in West Virginia: What It Really Means (and What It Doesn’t)

Most folks in West Virginia—employers and employ­ees alike—have heard the phrase “at-will employ­ment.” It gets tossed around a lot, espe­cial­ly when someone’s been fired and is try­ing to fig­ure out if it was legal. But like a lot of legal phras­es, “at-will” means more (and some­times less) than peo­ple assume.

In this arti­cle, we’re going to take a clear-eyed look at what at-will employ­ment actu­al­ly means under West Vir­ginia law, the key excep­tions to it, and how courts treat wrong­ful dis­charge claims. Whether you’re run­ning a busi­ness or advis­ing a work­er, under­stand­ing these rules is cru­cial to avoid­ing (or pur­su­ing) a lawsuit.


The Basic Rule: At-Will Employment Means Either Side Can Walk

The gen­er­al rule in West Virginia—and most oth­er states—is that employ­ment is pre­sumed to be at-will. That means an employ­er can ter­mi­nate an employ­ee for any rea­son, no rea­son, or even a bad rea­son, just not an ille­gal one. Sim­i­lar­ly, employ­ees can quit at any time with­out notice or explanation.

This doc­trine has been around for­ev­er. It’s ground­ed in com­mon law prin­ci­ples and rein­forced by state court deci­sions. But, as always, the dev­il is in the details.

Con­tin­ue read­ing At-Will” Employ­ment in West Vir­ginia: What It Real­ly Means (and What It Doesn’t)

Employment Law News and Analysis