Holidays

Happy Independence Day!!! (and a tribute to John and Abigail Adams)

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Let me start with one of my favorite letters from American history, a letter from John Adams to his wife, Abigail, about the decision on July 2, 1776, for the colonies to declare their independence:

“The second day of July, 1776, will be the most memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forevermore.

You will think me transported with enthusiasm, but I am not. I am well aware of the toil and blood and treasure that it will cost us to maintain this Declaration and support and defend these States. Yet, through all the gloom, I can see the rays of ravishing light and glory. I can see that the end is more than worth all the means. And that posterity will triumph in that day’s transaction, even although we should rue it, which I trust in God we shall not.”

Abigail was the conscience of John Adams, much as Eleanor Roosevelt was to Franklin. Abigail’s response letter to John of July 14 was glorious:

“May the foundation of our new Constitution be Justice, Truth, Righteousness! Like the wise man’s house, may it be founded upon these rocks, and then neither storms nor tempests will overthrow it!”

Wonderful!

WV Human Rights Act, WV Human Rights Commission, WV Legislation

The West Virginia Human Rights Act has moved!

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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, Disparate Impact, Privacy, Project 2025, Uncategorized

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

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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 →
Constructive discharge, Retaliation claims, WV Human Rights Act

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

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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 →
Concerted activity, Social networking

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

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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:

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Family and Medical Leave Act (FMLA), Liquidated damages

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

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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.

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Family and Medical Leave Act (FMLA), Pregnancy discrimination

The FMLA and Intermittent Leave: Balancing Flexibility with Compliance

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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 →
Defamation, Retaliation claims, Tortious interference with contract

The Legal Ins and Outs of Employment References in West Virginia

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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 →
Fair Labor Standards Act (FLSA), Wage and Hour Issues

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

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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? →
Hostile work environment, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

The Evolving Standard for Hostile Work Environment Claims

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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 →

Employment Law News and Analysis