Wage and Hour Issues

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

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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

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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

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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

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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

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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?

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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

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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

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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 →

Employment Law News and Analysis