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.
Americans with Disabilities Act, Disability discrimination, WV Human Rights Act

Workplace Disability Discrimination: Understanding Rights and Employer Obligations

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Dis­abil­i­ty dis­crim­i­na­tion in the work­place is an issue that affects both employ­ees and employ­ers. With the Amer­i­cans with Dis­abil­i­ties Act (ADA) set­ting the legal frame­work, busi­ness­es must nav­i­gate rea­son­able accom­mo­da­tions while ensur­ing com­pli­ance. Employ­ees, on the oth­er hand, need to under­stand their rights and what steps to take if they expe­ri­ence dis­crim­i­na­tion. Let’s break it down.

What Is Disability Discrimination?

Dis­abil­i­ty dis­crim­i­na­tion occurs when an employ­er treats an employ­ee or job appli­cant unfa­vor­ably because of a dis­abil­i­ty. This can include:

  • Refus­ing to hire a qual­i­fied appli­cant due to a disability.
  • Fail­ing to pro­vide rea­son­able accom­mo­da­tions that would enable an employ­ee to per­form essen­tial job functions.
  • Wrong­ful­ly ter­mi­nat­ing or demot­ing an employ­ee based on their disability.
  • Harass­ing an employ­ee due to their dis­abil­i­ty or med­ical condition.

The ADA (42 U.S.C. § 12112) pro­hibits dis­crim­i­na­tion against qual­i­fied indi­vid­u­als with dis­abil­i­ties in all aspects of employ­ment, includ­ing hir­ing, fir­ing, pro­mo­tions, and job assignments.

Con­tin­ue read­ing Work­place Dis­abil­i­ty Dis­crim­i­na­tion: Under­stand­ing Rights and Employ­er Oblig­a­tions →
Americans with Disabilities Act, Disability discrimination, Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA): What Employers and Employees Need to Know

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Life happens—whether it’s the birth of a child, a seri­ous health con­di­tion, or the need to care for a sick fam­i­ly mem­ber. The Fam­i­ly and Med­ical Leave Act (FMLA) pro­vides eli­gi­ble employ­ees with the right to take unpaid, job-pro­tect­ed leave in these sit­u­a­tions. But FMLA can be tricky, and both employ­ers and employ­ees need to under­stand their rights and responsibilities.

What Is FMLA?

The FMLA is a fed­er­al law that requires cov­ered employ­ers to pro­vide eli­gi­ble employ­ees with up to 12 weeks of unpaid leave per year for spe­cif­ic med­ical and fam­i­ly-relat­ed rea­sons (29 U.S.C. §2612). Dur­ing this time, employ­ees’ jobs and health ben­e­fits are protected.

Cov­ered rea­sons for FMLA leave include:

  • The birth, adop­tion, or fos­ter place­ment of a child.
  • A seri­ous health con­di­tion that pre­vents an employ­ee from per­form­ing essen­tial job duties.
  • The need to care for a spouse, child, or par­ent with a seri­ous health condition.
  • Qual­i­fy­ing exi­gen­cies relat­ed to a fam­i­ly member’s mil­i­tary service.

Addi­tion­al­ly, the FMLA pro­vides up to 26 weeks of leave for employ­ees car­ing for a cov­ered ser­vice­mem­ber with a seri­ous injury or ill­ness (29 U.S.C. §2619).

Con­tin­ue read­ing The Fam­i­ly and Med­ical Leave Act (FMLA): What Employ­ers and Employ­ees Need to Know →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, WV Human Rights Act, WV Human Rights Commission

The Roles of the EEOC and the West Virginia Human Rights Commission in Workplace Discrimination Claims

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Work­place dis­crim­i­na­tion is a seri­ous issue, and employ­ees who believe they’ve been treat­ed unfair­ly often turn to the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) or the West Vir­ginia Human Rights Com­mis­sion (“HRC”) for help. But what exact­ly do the EEOC and HRC do, and how does the com­plaint process work? Whether you’re an employ­er try­ing to stay com­pli­ant or an employ­ee con­sid­er­ing fil­ing a claim, it is impor­tant to under­stand the EEOC’s and HRC’s roles.

What Is the EEOC?

The EEOC is the fed­er­al agency respon­si­ble for enforc­ing anti-dis­crim­i­na­tion laws in the work­place. It inves­ti­gates com­plaints of dis­crim­i­na­tion based on race, sex, age, dis­abil­i­ty, nation­al ori­gin, reli­gion, and oth­er pro­tect­ed char­ac­ter­is­tics under laws like:

  • Title VII of the Civ­il Rights Act of 1964 (42 U.S.C. § 2000e‑2)
  • The Age Dis­crim­i­na­tion in Employ­ment Act (ADEA) (29 U.S.C. § 623)
  • The Amer­i­cans with Dis­abil­i­ties Act (ADA) (42 U.S.C. § 12112)

The agency also enforces laws pro­hibit­ing retal­i­a­tion, mean­ing an employ­er can’t pun­ish an employ­ee for fil­ing a com­plaint or par­tic­i­pat­ing in an investigation.

Con­tin­ue read­ing The Roles of the EEOC and the West Vir­ginia Human Rights Com­mis­sion in Work­place Dis­crim­i­na­tion Claims →
WARN (Worker Adjustment and Retraining Notification Act)

The WARN Act: What Employers and Employees Need to Know About Mass Layoffs

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Mass lay­offs and plant clo­sures are tough for every­one involved. Employ­ees lose their jobs, and busi­ness­es face finan­cial and legal con­se­quences. The Work­er Adjust­ment and Retrain­ing Noti­fi­ca­tion (WARN) Act is a fed­er­al law that pro­tects work­ers by requir­ing advance notice of large-scale lay­offs. If you’re an employ­er plan­ning work­force reduc­tions or an employ­ee won­der­ing about your rights, here’s what you need to know.

What Is the WARN Act?

The WARN Act, passed in 1988, requires cer­tain employ­ers to pro­vide 60 days’ notice before a mass lay­off or plant clos­ing. The goal is to give employ­ees time to pre­pare for job loss, seek new employ­ment, and access retrain­ing oppor­tu­ni­ties (29 U.S.C. § 2101 et seq.).

This law applies to pri­vate employ­ers with 100 or more full-time employ­ees. It cov­ers two main scenarios:

  1. Plant Clo­sures – A full shut­down of a work­site that affects at least 50 full-time employees.
  2. Mass Lay­offs – A work­force reduc­tion affect­ing at least 50 employ­ees and one-third of the work­force at a sin­gle loca­tion, or any lay­off of 500 or more employ­ees regard­less of per­cent­age (29 U.S.C. § 2101(a)(2)-(3)).
Con­tin­ue read­ing The WARN Act: What Employ­ers and Employ­ees Need to Know About Mass Lay­offs →
Concerted activity, National Labor Relations Act, Privacy

The Legality of Workplace Surveillance: Balancing Business Interests and Employee Privacy

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In an era of remote work, dig­i­tal mon­i­tor­ing, and AI-pow­ered ana­lyt­ics, work­place sur­veil­lance is becom­ing more com­mon. Employ­ers want to ensure pro­duc­tiv­i­ty, pre­vent mis­con­duct, and pro­tect com­pa­ny assets. But where’s the line between rea­son­able mon­i­tor­ing and an inva­sion of pri­va­cy? Under­stand­ing the legal frame­work around work­place sur­veil­lance helps both employ­ers and employ­ees nav­i­gate this tricky issue.

Can Employers Legally Monitor Employees?

Yes, but with lim­i­ta­tions. Employ­ers gen­er­al­ly have the right to mon­i­tor employ­ees dur­ing work hours, par­tic­u­lar­ly if they’re using com­pa­ny-owned equip­ment or work­ing on com­pa­ny premis­es. How­ev­er, fed­er­al and state laws impose restric­tions, espe­cial­ly when it comes to elec­tron­ic com­mu­ni­ca­tions, video sur­veil­lance, and off-duty monitoring.

Federal Laws on Workplace Surveillance

  1. Elec­tron­ic Com­mu­ni­ca­tions Pri­va­cy Act (ECPA) (18 U.S.C. § 2510 et seq.)
  • Pro­hibits employ­ers from inter­cept­ing employ­ees’ pri­vate communications.
  • Allows mon­i­tor­ing of work­place com­mu­ni­ca­tions if there’s a legit­i­mate busi­ness pur­pose or employ­ee consent.
  • Does not cov­er stored emails and files, mean­ing employ­ers can access work-relat­ed dig­i­tal con­tent with­out vio­lat­ing the ECPA.
Con­tin­ue read­ing The Legal­i­ty of Work­place Sur­veil­lance: Bal­anc­ing Busi­ness Inter­ests and Employ­ee Pri­va­cy →
Contract Issues, Independent Contractors, Wage and Hour Issues

The Legal Risks of Misclassifying Employees as Independent Contractors

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Mis­clas­si­fy­ing employ­ees as inde­pen­dent con­trac­tors is one of the biggest pit­falls in employ­ment law, and it’s an issue that both employ­ers and work­ers need to under­stand. Get­ting it wrong can mean seri­ous legal and finan­cial con­se­quences. So, what’s the dif­fer­ence, why does it mat­ter, and how can busi­ness­es avoid cost­ly mistakes?

Employee vs. Independent Contractor: What’s the Difference?

At its core, the dis­tinc­tion between an employ­ee and an inde­pen­dent con­trac­tor comes down to con­trol. Employ­ees are sub­ject to their employer’s con­trol over how, when, and where they work. Inde­pen­dent con­trac­tors, on the oth­er hand, typ­i­cal­ly oper­ate their own busi­ness­es and con­trol how they com­plete their work.

The Inter­nal Rev­enue Ser­vice (IRS) and the U.S. Depart­ment of Labor (DOL) use dif­fer­ent tests to deter­mine work­er classification:

  • IRS Test: Focus­es on three pri­ma­ry factors—behavioral con­trol, finan­cial con­trol, and the rela­tion­ship between the par­ties (IRS Pub­li­ca­tion 15‑A).
  • DOL’s Eco­nom­ic Real­i­ties Test: Eval­u­ates fac­tors such as the degree of con­trol, the worker’s oppor­tu­ni­ty for prof­it or loss, and the per­ma­nen­cy of the work rela­tion­ship (29 C.F.R. § 800.110).
  • West Vir­ginia Law: The state fol­lows the com­mon law test sim­i­lar to the IRS approach, but courts may also con­sid­er eco­nom­ic depen­dence when decid­ing cases.
Con­tin­ue read­ing The Legal Risks of Mis­clas­si­fy­ing Employ­ees as Inde­pen­dent Con­trac­tors →
Project 2025

Project 2025, President Trump, and Employment Law

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The Her­itage Foun­da­tion devel­oped Project 2025 as some­thing of a blue­print for a con­ser­v­a­tive rev­o­lu­tion of gov­er­nance in the Unit­ed States under what was hoped to be an upcom­ing elec­tion of Don­ald Trump in the 2024 pres­i­den­tial elec­tion. Hence, “Project 2025” refers to the blue­print and imple­men­ta­tion plans for new Trump admin­is­tra­tion after the Novem­ber 2024 election.

Project 2025 is far more than an an abstract state­ment of pro­posed poli­cies. It is express­ly a “Pres­i­den­tial Tran­si­tion Project” for the new Tump admin­is­tra­tion, includ­ing advice on get­ting a job in the new Trump admin­is­tra­tion, train­ing for new employ­ees (includ­ing detailed train­ing videos for new employ­ees in the admin­is­tra­tion), and a “180-day play­book” for aggres­sive­ly and quick­ly imple­ment­ing Project 2025’s changes in gov­er­nance in the new Trump administration.

You can go to Project 2025 and see that it has pol­i­cy state­ments on an extreme­ly broad range of issues, and those pol­i­cy state­ments are hun­dreds of pages in length.

ProP­ub­li­ca obtained numer­ous train­ing videos pre­pared by the Her­itage Foun­da­tion for the per­sons to be hired into the Trump admin­is­tra­tion for the “tran­si­tion project”. The train­ing video on “Left-Wing Code Words and Biased Lan­guage” illus­trates many of the planned changes relat­ing to gen­der issues.

Project 2025 plans extensive changes in employment law

Some of the most impor­tant and sweep­ing changes envi­sioned under Project 2025 are for employ­ment law and employ­ment rela­tion­ships in the Unit­ed States, both in the pri­vate and pub­lic sectors. 

Con­tin­ue read­ing Project 2025, Pres­i­dent Trump, and Employ­ment Law →
Employee handbook, Employment at will rule

The Role of Employee Handbooks in Employment Law

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Employ­ee hand­books often get over­looked, but they play a cru­cial role in shap­ing work­place poli­cies and pro­tect­ing both employ­ers and employ­ees. A well-draft­ed hand­book sets expec­ta­tions, out­lines rights and respon­si­bil­i­ties, and can even serve as evi­dence in legal dis­putes. Let’s explore why every employ­er should have one and what employ­ees need to know about them.

What Is an Employee Handbook?

An employ­ee hand­book is a doc­u­ment that pro­vides guide­lines on work­place poli­cies, pro­ce­dures, and expec­ta­tions. While not legal­ly required, a good hand­book helps ensure com­pli­ance with labor laws and cre­ates con­sis­ten­cy in com­pa­ny practices.

Com­mon sec­tions in an employ­ee hand­book include:

  • Work­place con­duct and expectations
  • Anti-dis­crim­i­na­tion and harass­ment policies
  • Wage and hour policies
  • Leave poli­cies (FMLA, sick leave, vaca­tion, etc.)
  • Dis­ci­pli­nary pro­ce­dures and ter­mi­na­tion policies
  • Work­place safe­ty rules
  • Con­fi­den­tial­i­ty and data secu­ri­ty policies

Are Employee Handbooks Legally Binding?

Con­tin­ue read­ing The Role of Employ­ee Hand­books in Employ­ment Law →
Affirmative action, Diversity, Equity, and Inclusion programs

Are DEI programs good or bad for business? Do they only help women and minorities?

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I’ve pre­vi­ous­ly tried to explain what Diver­si­ty, Equi­ty, and Inclu­sion (“DEI”) pro­grams are. Click here for my pri­or arti­cle.

Aside from what they are, an impor­tant que­ston is whether diver­si­ty in the work­place (one of the goals of DEI pro­grams) is good or bad for com­pa­nies apply­ing DEI pro­gram. Peo­ple have actu­al­ly stud­ied that issue and have tried to quan­ti­fy eco­nom­ic results from DEI pro­grams. This arti­cle lays out rel­e­vant data.

Data suggests DEI programs are good for business

There is sub­stan­tial data indi­cat­ing that diverse work envi­ron­ments can lead to bet­ter out­comes for employ­ers. Let’s delve into some key stud­ies that explore this relationship:

1. Gender Diversity and Financial Performance

A com­pre­hen­sive study con­duct­ed in 2016 ana­lyzed over 21,000 com­pa­nies across 91 coun­tries. The find­ings revealed that firms with at least 30% women in lead­er­ship posi­tions were more prof­itable com­pared to those with few­er or no women in such roles. This sug­gests a pos­i­tive cor­re­la­tion between gen­der diver­si­ty in lead­er­ship and enhanced finan­cial performance.

2. Diversity and Innovation

Research pub­lished in the Jour­nal of Arti­fi­cial Soci­eties and Social Sim­u­la­tion in 2021 exam­ined the impact of diver­si­ty on col­lec­tive prob­lem-solv­ing. The study con­clud­ed that diverse teams, encom­pass­ing var­ied per­spec­tives and back­grounds, tend to out­per­form homo­ge­neous teams in gen­er­at­ing inno­v­a­tive solu­tions. This under­scores the val­ue of diver­si­ty in fos­ter­ing cre­ativ­i­ty and inno­va­tion with­in organizations.

3. Diversity and Ethical Governance

A 2009 study in the Jour­nal of Finan­cial Eco­nom­ics explored the influ­ence of female rep­re­sen­ta­tion on cor­po­rate boards. The research found that boards with high­er female par­tic­i­pa­tion exhib­it­ed bet­ter gov­er­nance prac­tices, includ­ing improved atten­dance and a greater propen­si­ty to hold CEOs account­able for poor finan­cial per­for­mance. This indi­cates that gen­der-diverse boards may enhance eth­i­cal over­sight and decision-making.

4. Diversity and Employee Performance

Con­tin­ue read­ing Are DEI pro­grams good or bad for busi­ness? Do they only help women and minori­ties? →
Drug testing, Privacy

Employee Drug Testing: Balancing Workplace Safety and Privacy

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Drug test­ing in the work­place is a con­tro­ver­sial issue. Employ­ers want to main­tain a safe and pro­duc­tive work envi­ron­ment, but employ­ees have con­cerns about pri­va­cy and fair­ness. The law tries to strike a bal­ance between these inter­ests, but it’s not always clear-cut. So, what are the rules sur­round­ing drug test­ing in employ­ment, and how do they apply in West Virginia?

When Can Employers Require Drug Testing?

Employ­ers have a legit­i­mate inter­est in ensur­ing a drug-free work­place, par­tic­u­lar­ly in safe­ty-sen­si­tive indus­tries. While fed­er­al law doesn’t require drug test­ing for most employ­ees, some sectors—like trans­porta­tion and aviation—are sub­ject to manda­to­ry test­ing under reg­u­la­tions from the Depart­ment of Trans­porta­tion (49 C.F.R. Part 40).

In gen­er­al, pri­vate employ­ers can require drug test­ing under the fol­low­ing circumstances:

  • Pre-employ­ment test­ing: Many employ­ers require appli­cants to pass a drug test before hiring.
  • Ran­dom test­ing: Some indus­tries con­duct ran­dom drug test­ing, espe­cial­ly for safe­ty-sen­si­tive positions.
  • Rea­son­able sus­pi­cion test­ing: If an employ­er has rea­son to believe an employ­ee is under the influ­ence, test­ing may be justified.
  • Post-acci­dent test­ing: Many employ­ers require test­ing after work­place accidents.
  • Return-to-duty test­ing: Employ­ees return­ing from reha­bil­i­ta­tion may be sub­ject to fol­low-up testing.

How­ev­er, drug test­ing poli­cies must be clear­ly com­mu­ni­cat­ed and applied con­sis­tent­ly to avoid claims of discrimination.

Con­tin­ue read­ing Employ­ee Drug Test­ing: Bal­anc­ing Work­place Safe­ty and Pri­va­cy →