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 →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Pregnancy discrimination, Title VII of the Civil Rights Act of 1964

EEOC has updated its poster that employers must display

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The United States Equal Employment Opportunity Commission (“EEOC”) has updated its poster that employers are required to display in their workplaces. Here is the EEOC’s web site on its poster. Here is an internet (HTML) copy of the poster. Here is the PDF of the printable poster for wall display. The name of the poster is “Know Your Rights: Workplace Discrimination is Illegal”.

The poster does a good job of educating employees and employers on essential aspects of the federal anti-discrimination laws. It covers what employees are protected, what employers are covered, the protected characteristics about which the laws prohibit discrimination, the decisions and conduct of the employers that are prohibited, and how an employee can file a charge with the EEOC. In light of newer technology, the poster has a QR code so an employee can user a phone to jump straight to the EEOC’s web site for filing a charge.

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Contract Issues, Employee handbook, Employment at will rule

Handbooks and other ways to bypass the employment at will rule

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Part 2 of a series on West Virginia employment law

This article follows up my prior blog article, The Employment at Will Rule in West Virginia. In that article, I explained the basic contours of the employment at will rule.

With the employment at will rule radiating in the background, there are many ways it can be modified or bypassed. All claims relating to discrimination and retaliation, for example, modify the rule to the extent an exception is created by which the employer may not terminate the rule for a specific reason, such as age.

Scenarios: handbooks and other promises

But this article focuses on contractual or contract-like limitations on the employment at will rule. The parties (employer and employee) can enter into a formal employment contract that modifies the employment at will rule. But I am not addressing that formal contract in this article. I am really trying to focus on two scenarios:

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Employee handbook, Employment at will rule

The employment at will rule in West Virginia

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Part 1 of a series on West Virginia employment law

This blog article is the first part of a series I will write on employment law in West Virginia, with a focus on litigation issues relating to alleged wrongful discharge.

I will start with the employment at will rule, and will carry through with articles on the numerous exceptions to the employment at will rule.

What is the employment at will rule?

The courts have long had a love-hate relationship with the employment at will rule. West Virginia, like virtually all other states, adheres to the rule.

So, what is the employment at will rule? For convenience, I will define it in terms of the right to end or terminate the employment relationship, but more about that definition in a moment. And more below about the big qualification on the rule.

One way to state the rule is that both parties to the employment relationship, the employer and the employer, have the right to terminate the employment relationship at any time and for any reason (but not for an illegal reason, and that is discussed below). It is important to understand that those are the two essential attributes of the rule: to terminate the employment relationship (1) at any time, and (2) for any reason. Both sides (employer and employee) have that right, although the right is almost always examined in terms of the employer’s right in wrongful discharge litigation.

West Virginia’s description of the rule

In the context of termination (more about that later) the employment at will rule has been described in West Virginia this way: the rule allows an employer to terminate an employee for:

Continue reading The employment at will rule in West Virginia →
Ruth Bader Ginsburg, Sex Discrimination, US Supreme Court

Farewell, Ruth Bader Ginsburg

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Courage.

While still a practicing lawyer, Ruth Bader Ginsburg in 1973 argued to 9 men on the United States Supreme Court in a historically significant case, Frontiero v. Richardson, 411 U.S. 677 (1973).

Ginsburg asked the Supreme Court to recognize for the first time that the guarantee of “equal protection of the laws” contained in the Fifth Amendment (ratified in 1791) protected women and men from discrimination based on sex.

In talking to the 9 men on the Supreme Court, Ginsburg stated: I “urge[] a position forcibly stated in 1837 by Sara Grimke, noted abolitionist and advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.'”

The Supreme Court ruled nearly unanimously in her favor (8-1).

Farewell, Ruth Bader Ginsburg.

“And flights of angels sing thee to thy rest.”

(Shakespeare, Hamlet.)
Harless wrongful discharge, Seminars

Drew Capuder Will Be Speaking At Upcoming West Virginia Employment Lawyers Association Conference

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I look forward to speaking at the West Virginia Employment Lawyers Association‘s annual conference on October 12 and 13, 2018, at Hawk’s Nest State Park in Ansted, West Virginia.

I will be speaking and presenting an article on the Harless wrongful discharge doctrine, which deals with termination of employees where the employer’s motivation allegedly violates a substantial public policy.

I will also be presenting an article and participating in a panel discussion on social networking & electronic discovery issues.

Here is information on the conference, joining the WVELA, and attending the conference.

Employment policies

Rex Tillerson’s First Speech at the State Department: Lessons for Employers

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Lessons for Employers

The U.S. State Department has about 70,000 employees. Rex Tillerson was confirmed as President Trump’s pick for Secretary of State, and yesterday was his first day on the job.

So Tillerson spoke yesterday to hundreds of State Department employees to introduce himself and talk about their shared mission.

I was impressed by the speech, and I thought the speech could give a lot of guidance to management about the message that companies and government agencies should communicate to their employees.

Here are my thoughts on what Secretary Tillerson said that should be viewed as exemplary:

  1. Tillerson expressed humility. He was Chief Executive Officer of ExxonMobil, one of the largest corporations in the world (which probably has even more employees than the State Department), but he described himself as “the new guy” that needed the help of the employees.
  2. Instead of bragging about his decades of executive experience in the oil & gas business, he charmingly recounted his wife’s message that his career at ExxonMobil was a “41 year training program” for his new job at the State Department.
  3. He showed respect to his new employees. He stressed their extraordinary collective experience and expertise. He noted that the employees had an average 11 years at the State Department, and he said he had been there for 45 minutes.
  4. He stressed cores principles such as that all employees would be treated with respect.
  5. He focused on the shared missions, including keeping employees safe and advancing the interests of the United States.
  6. He stressed accountability and a need to question old ways of doing things to look for ways to better accomplish the missions.
  7. One of the overarching messages was respect, both in recognizing the expertise of the employees and stressing the need to treat employees with respect.
  8. It would be hard to find a better message, coming out of a fantastically hostile election, to try to rally employees around a shared mission.

So employers should watch the speech for the principles it reflects.

Rex Tillerson's Speech at State Department

Here is a link Tillerson’s speech from the State Department’s YouTube channel, and you can watch the speech in the embedded video window below:

Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Seminars

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

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On March 29, 2017, I will be speaking and presenting an article on “The Perilous Intersection of FMLA and ADA,” at a seminar hosted by Sterling Education Services. The Seminar, “Employment Law: Rights, Benefits, and Emerging Issues,” will take place in Morgantown, West Virginia. If you would like to attend the seminar click here for more information and a registration form.

Here is the agenda for my speech and article:

  1. FMLA updates
  2. ADA updates and EEOC guidelines
    1. Expansion of what can be considered a “disability”
    2. What constitutes “reasonable accommodation” according to the EEOC
    3. Discrimination and violations
    4. Review and update written policies and job descriptions
  3. Overlap of FMLA and ADA: finding the right balance

Employment Law News and Analysis