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.

Affirmative action, Diversity, Equity, and Inclusion programs

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

March 6, 2025 Drew M. Capuder Leave a comment

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

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Drug testing, Privacy, WV Safer Workplace Act

Employee Drug Testing: Balancing Workplace Safety and Privacy

March 6, 2025 Drew M. Capuder 3 Comments

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.

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Wage and Hour Issues

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

March 4, 2025 Drew M. Capuder 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).

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Contract Issues, Non-disclosure agreements

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

March 1, 2025 Drew M. Capuder 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:

Unilateral NDAs – One party (usually the employee) agrees not to disclose information.
Mutual NDAs – Both parties agree to keep shared information confidential, often used in business partnerships.

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Disability discrimination, Reasonable Accommodations

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

February 28, 2025 Drew M. Capuder 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)).

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Pregnancy discrimination, 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

February 21, 2025 Drew M. Capuder 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.

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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

February 21, 2025 Drew M. Capuder 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)).

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Affirmative action, Diversity, Equity, and Inclusion programs

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

February 9, 2025 Drew M. Capuder 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.

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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

February 5, 2025 Drew M. Capuder 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

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