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, Privacy

Employee Drug Testing: Balancing Workplace Safety and Privacy

1 Comment

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 →
Wage and Hour Issues

The Fair Labor Standards Act (FLSA): Understanding Wage and Hour Protections

Leave a comment

The Fair Labor Stan­dards Act (FLSA) is one of the most impor­tant fed­er­al employ­ment laws, but it’s also one of the most mis­un­der­stood. Cov­er­ing every­thing from min­i­mum wage to over­time pay, the FLSA estab­lish­es the base­line rules for how employ­ees must be com­pen­sat­ed. Whether you’re an employ­er try­ing to stay com­pli­ant or an employ­ee won­der­ing if you’re being paid fair­ly, under­stand­ing the FLSA is essential.

What Does the FLSA Cover?

The FLSA, enact­ed in 1938, estab­lish­es min­i­mum wage, over­time pay, record­keep­ing, and child labor stan­dards (29 U.S.C. § 201 et seq.). While states can impose more gen­er­ous pro­tec­tions, the FLSA sets the floor for wage and hour laws across the country.

Key pro­vi­sions include:

  • Min­i­mum Wage: The fed­er­al min­i­mum wage is cur­rent­ly $7.25 per hour (29 U.S.C. § 206(a)). How­ev­er, states can impose high­er min­i­mum wages, and employ­ers must pay the high­er rate if applic­a­ble. West Virginia’s min­i­mum wage is $8.75 per hour (W. Va. Code § 21–5C‑2).
  • Over­time Pay: Non-exempt employ­ees must receive over­time pay at 1.5 times their reg­u­lar hourly rate for any hours worked over 40 in a work­week (29 U.S.C. § 207(a)).
  • Child Labor Pro­tec­tions: The FLSA restricts the hours and types of work minors can per­form, with stricter rules for haz­ardous occu­pa­tions (29 U.S.C. § 212).
Con­tin­ue read­ing The Fair Labor Stan­dards Act (FLSA): Under­stand­ing Wage and Hour Pro­tec­tions →
Contract Issues, Non-disclosure agreements

The Role of Non-Disclosure Agreements (NDAs) in Employment

Leave a comment

Non-Dis­clo­sure Agree­ments (NDAs) are every­where in the busi­ness world. Whether you’re start­ing a new job, work­ing on a sen­si­tive project, or leav­ing a com­pa­ny, you might be asked to sign one. But what do these agree­ments real­ly mean, and how enforce­able are they? Let’s break it down.

What Is an NDA?

An NDA is a con­tract that pre­vents employ­ees from dis­clos­ing con­fi­den­tial infor­ma­tion. Employ­ers use them to pro­tect trade secrets, busi­ness strate­gies, client lists, and oth­er pro­pri­etary data. NDAs can be stand­alone agree­ments or part of a broad­er employ­ment contract.

There are two main types:

  1. Uni­lat­er­al NDAs – One par­ty (usu­al­ly the employ­ee) agrees not to dis­close information.
  2. Mutu­al NDAs – Both par­ties agree to keep shared infor­ma­tion con­fi­den­tial, often used in busi­ness partnerships.
Con­tin­ue read­ing The Role of Non-Dis­clo­sure Agree­ments (NDAs) in Employ­ment →
Disability discrimination, Reasonable Accommodations

Workplace Accommodations Under the ADA: What Employers and Employees Need to Know

Leave a comment

The Amer­i­cans with Dis­abil­i­ties Act (ADA) is a key fed­er­al law that pro­tects employ­ees with dis­abil­i­ties from work­place dis­crim­i­na­tion. But one of the most mis­un­der­stood aspects of the ADA is the require­ment for rea­son­able accom­mo­da­tions. Employ­ers some­times strug­gle with what’s required, and employ­ees often aren’t sure what they can request. So, let’s break it down.

What Is a Reasonable Accommodation?

A rea­son­able accom­mo­da­tion is any mod­i­fi­ca­tion or adjust­ment that allows an employ­ee with a dis­abil­i­ty to per­form their job duties effec­tive­ly. These can include:

  • Adjust­ed work sched­ules or remote work options
  • Mod­i­fied work­spaces (e.g., ergonom­ic chairs, stand­ing desks)
  • Assis­tive tech­nol­o­gy, such as screen readers
  • Reas­sign­ment to a vacant position
  • Adjust­ed poli­cies (e.g., allow­ing a ser­vice ani­mal in the workplace)

The key phrase here is rea­son­able. Employ­ers aren’t required to grant every request—only those that don’t impose an undue hard­ship (42 U.S.C. §12112(b)(5)).

Con­tin­ue read­ing Work­place Accom­mo­da­tions Under the ADA: What Employ­ers and Employ­ees Need to Know →
Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

Workplace Harassment: What Employers and Employees Need to Know

Leave a comment

Work­place harass­ment is a seri­ous issue that can lead to legal trou­ble for employ­ers and cre­ate a tox­ic work envi­ron­ment for employ­ees. While most peo­ple think of harass­ment in terms of sex­u­al mis­con­duct, the law cov­ers a much broad­er range of behav­iors. Under­stand­ing what con­sti­tutes work­place harass­ment and how to han­dle it is cru­cial for both employ­ers and employees.

What Is Workplace Harassment?

Harass­ment is defined as unwel­come con­duct based on race, col­or, reli­gion, sex (includ­ing preg­nan­cy, gen­der iden­ti­ty, and sex­u­al ori­en­ta­tion), nation­al ori­gin, age (40 or old­er), dis­abil­i­ty, or genet­ic infor­ma­tion (42 U.S.C. §2000e‑2(a)). It becomes ille­gal when:

  • Endur­ing the offen­sive con­duct becomes a con­di­tion of con­tin­ued employ­ment, or
  • The con­duct is severe or per­va­sive enough to cre­ate a hos­tile work envi­ron­ment (Mer­i­tor Sav. Bank v. Vin­son, 477 U.S. 57 (1986)).

Harass­ment isn’t just about inap­pro­pri­ate jokes or unwant­ed advances—it can include threats, intim­i­da­tion, offen­sive images, or even work­place poli­cies that dis­pro­por­tion­ate­ly affect cer­tain groups.

Con­tin­ue read­ing Work­place Harass­ment: What Employ­ers and Employ­ees Need to Know →
Harless wrongful discharge, Retaliation claims, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), WV Human Rights Act

Wrongful Termination: What It Is and What It Isn’t

Leave a comment

Los­ing a job is tough, but not every ter­mi­na­tion is ille­gal. The term “wrong­ful ter­mi­na­tion” gets thrown around a lot, but in legal terms, it has a spe­cif­ic mean­ing. Both employ­ers and employ­ees need to under­stand what actu­al­ly qual­i­fies as wrong­ful ter­mi­na­tion under fed­er­al and West Vir­ginia law.

What Is Wrongful Termination?

Wrong­ful ter­mi­na­tion hap­pens when an employ­er fires an employ­ee in vio­la­tion of a law, con­tract, or pub­lic pol­i­cy. This can include:

  • Dis­crim­i­na­tion: Fir­ing some­one based on race, gen­der, age, dis­abil­i­ty, or oth­er pro­tect­ed char­ac­ter­is­tics vio­lates fed­er­al and state anti-dis­crim­i­na­tion laws (42 U.S.C. §2000e‑2; W. Va. Code §16B-17–9).
  • Retal­i­a­tion: Employ­ers can’t fire an employ­ee for report­ing dis­crim­i­na­tion, work­place safe­ty vio­la­tions, or engag­ing in oth­er pro­tect­ed activ­i­ties (42 U.S.C. 2000e‑3(a); W. Va. Code §16B-17–9(7)).
  • Breach of con­tract: If an employ­ee has a writ­ten con­tract or even an implied con­tract promis­ing job secu­ri­ty, a ter­mi­na­tion out­side the agreed terms may be wrong­ful (Cook v. Heck’s Inc., 342 S.E.2d 453 (W. Va. 1986)).
  • Pub­lic pol­i­cy vio­la­tions: Employ­ers can’t fire employ­ees for rea­sons that vio­late pub­lic pol­i­cy, such as refus­ing to engage in ille­gal activ­i­ties (Har­less v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978)).
Con­tin­ue read­ing Wrong­ful Ter­mi­na­tion: What It Is and What It Isn’t →
Affirmative action, Diversity, Equity, and Inclusion programs

What are Diversity, Equity, and Inclusion (“DEI”) programs?

Leave a comment

The Trump admin­is­tra­tion has been aggres­sive­ly attack­ing Diver­si­ty, Equi­ty, and Inclu­sion (“DEI”) pro­grams, and is intend­ing to elim­i­nate them from the fed­er­al sys­tem. The Trump admin­is­tra­tion is also aim­ing to elim­i­nate them in pri­vate employment.

The attacks on DEI pro­grams treat them as racial­ly dis­crim­i­na­to­ry, and assume they con­sti­tute overt or thin­ly dis­guised affir­ma­tive action programs.

Advo­cates of DEI say the pro­grams don’t con­sti­tute favoritism but instead “cast a wider net” to bring his­tor­i­cal­ly dis­fa­vored or dis­ad­van­taged groups into con­sid­er­a­tion for employ­ment posi­tions his­tor­i­cal­ly unavail­able to them.

So what are DEI pro­grams? Do they con­sti­tute favoritism, affir­ma­tive action, or discrimination?

DEI pro­grams are orga­ni­za­tion­al ini­tia­tives aimed at cre­at­ing a work­place or insti­tu­tion­al cul­ture that val­ues diverse per­spec­tives, ensures fair treat­ment and oppor­tu­ni­ties, and fos­ters an inclu­sive envi­ron­ment where all indi­vid­u­als feel respect­ed, sup­port­ed, and able to thrive. While these pro­grams are most com­mon­ly asso­ci­at­ed with work­places, they also exist in edu­ca­tion­al insti­tu­tions, gov­ern­ment agen­cies, and non­prof­it organizations.

1. What Do DEI Programs Aim to Achieve?

Diversity:

• Refers to rep­re­sen­ta­tion across a vari­ety of demo­graph­ic, expe­ri­en­tial, and cog­ni­tive dimen­sions, such as race, gen­der, eth­nic­i­ty, sex­u­al ori­en­ta­tion, socioe­co­nom­ic back­ground, phys­i­cal abil­i­ties, and even diver­si­ty of thought or perspectives.

Equity:

• Focus­es on fair­ness and elim­i­nat­ing bar­ri­ers that pre­vent indi­vid­u­als from access­ing opportunities.

• Rec­og­nizes that dif­fer­ent peo­ple may need dif­fer­ent resources or accom­mo­da­tions to achieve com­pa­ra­ble outcomes.

Inclusion:

• Ensures that indi­vid­u­als, regard­less of their back­ground, feel val­ued, respect­ed, and includ­ed in deci­sion-mak­ing processes.

• Goes beyond rep­re­sen­ta­tion and focus­es on fos­ter­ing an envi­ron­ment where diverse indi­vid­u­als can con­tribute meaningfully.

2. Examples of DEI Initiatives

• Train­ing Pro­grams: Work­shops on uncon­scious bias, cul­tur­al com­pe­ten­cy, and inclu­sive leadership.

Con­tin­ue read­ing What are Diver­si­ty, Equi­ty, and Inclu­sion (“DEI”) pro­grams? →
Artificial Intelligence, Employment policies, Equal Employment Opportunity Commission, Family and Medical Leave Act (FMLA), Independent Contractors, Non-compete agreements, Wage and Hour Issues

Evolving Landscape of Employment Law: Key Updates for 2025

Leave a comment

If you’re an employ­er or an employ­ee, keep­ing up with employ­ment law changes can feel like chas­ing a mov­ing tar­get. With new court deci­sions, leg­isla­tive updates, and evolv­ing work­place norms, it’s more impor­tant than ever to stay informed. As we set­tle into 2025, here are some of the most sig­nif­i­cant devel­op­ments shap­ing employ­ment law across the country—and par­tic­u­lar­ly in West Virginia.

1. Remote Work and Wage & Hour Compliance

The pan­dem­ic may be in the rearview mir­ror, but remote and hybrid work are here to stay. That shift has raised fresh legal ques­tions, par­tic­u­lar­ly when it comes to wage and hour compliance.

A major trend we’re see­ing is increased scruti­ny from the U.S. Depart­ment of Labor (DOL) regard­ing remote work­ers’ over­time eli­gi­bil­i­ty. The Fair Labor Stan­dards Act (FLSA) requires employ­ers to track hours worked accu­rate­ly, but when employ­ees are log­ging in from home, com­pli­ance gets tricky. Employ­ers must ensure that non-exempt employ­ees are prop­er­ly record­ing breaks, over­time, and any “off-the-clock” work.

West Vir­ginia busi­ness­es with remote employ­ees should take a close look at their time-track­ing poli­cies to avoid poten­tial wage claims. Even an hon­est mistake—like fail­ing to count time spent respond­ing to emails after hours—can lead to cost­ly litigation.

2. Noncompete Agreements Under Fire

Non­com­pete agree­ments have been a hot-but­ton issue in recent years, and 2025 is shap­ing up to be a turn­ing point. The Fed­er­al Trade Com­mis­sion (FTC) issued a rule (April 2024) with a near­ly com­pre­hen­sive nation­wide ban on most non­com­pete claus­es, argu­ing that they sti­fle job mobil­i­ty and wage growth. 

I will dis­cuss below the legal chal­lenges to the FTC rule, but employ­ers should review their exist­ing agree­ments and con­sid­er whether non­com­petes are still enforce­able (in light of applic­a­ble state law and the prospect of the FTC rule sur­viv­ing legal attacks) or if alter­na­tive protections—such as con­fi­den­tial­i­ty and non­so­lic­i­ta­tion clauses—are a bet­ter approach.

Sta­tus of the FTC rule

Con­tin­ue read­ing Evolv­ing Land­scape of Employ­ment Law: Key Updates for 2025 →
Hostile work environment, Settlements, Sexual harassment, Taxes, Title VII of the Civil Rights Act of 1964

Congress against sexual harassment, part 1: Taxes

Leave a comment

This arti­cle is the first of 3 parts to cov­er 3 Acts of Con­gress direct­ed at expand­ing the rights of sex­u­al harass­ment and abuse victims. 

The series of 3 federal laws on sexual harassment claims

  • Con­gress first in 2017, with the Tax Cuts and Jobs Act (“TCJA”), lim­it­ed employ­er tax deduc­tions for set­tle­ments of sex­u­al harass­ment and abuse cas­es where the set­tle­ment agree­ment includ­ed a nondis­clo­sure agree­ment. That’s what this arti­cle is about.
  • Con­gress next in March 2022 passed the  End­ing Forced Arbi­tra­tion of Sex­u­al Assault and Harass­ment Act of 2021 which inval­i­dates arbi­tra­tion agree­ments over sex­u­al harass­ment and abuse claims, where the agree­ment is signed before a dis­pute arose. That’s my sec­ond arti­cle in this series.
  • Con­gress then in Decem­ber 2022 passed the Speak Out Act which inval­i­dat­ed nondis­clo­sure and non-dis­par­age­ment agree­ments in sex­u­al harass­ment and abuse claims where the agree­ments were pro­cured before a dis­pute arose. That’s my third arti­cle in this series.
Con­tin­ue read­ing Con­gress against sex­u­al harass­ment, part 1: Tax­es →