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.
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, Disability discrimination, 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 →
Concerted activity, Employment at will rule, 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 →