All posts by Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.
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:

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

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