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.
Contract Issues, Employee handbook, Family and Medical Leave Act (FMLA), Harless wrongful discharge, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), Worker's compensation retaliation, WV Human Rights Act, WV Human Rights Commission

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

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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) →
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.

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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 →