1. Employment Law Current Events/Trends Elizabeth D. Harter, Esq. October 1, 2004

2. Outline Supreme Court of Appeals of West Virginia Employment Law Update Supreme Court of Appeals of West Virginia Employment Law Update Some Top Trends in Employment Law (and Tips for Dealing with Them) Some Top Trends in Employment Law (and Tips for Dealing with Them)

3. Supreme Court of Appeals Court generally skeptical of summary judgment – recent cases frequently are reversals Court generally skeptical of summary judgment – recent cases frequently are reversals West Virginia Human Rights Act cases are frequently subject of appeals West Virginia Human Rights Act cases are frequently subject of appeals Health care industry employers the most courageous appellants Health care industry employers the most courageous appellants

4. Supreme Court of Appeals Baughman v. Wal-Mart Stores, Inc. (2003) and Rohrbaugh v. Wal-Mart Stores, Inc. (2002) Baughman v. Wal-Mart Stores, Inc. (2003) and Rohrbaugh v. Wal-Mart Stores, Inc. (2002) –Drug testing at issue –Clarification of Twigg v. Hercules Corp. –Now more certainty regarding pre- employment and post-accident drug testing

5. Supreme Court of Appeals Dailey v. Board of Review (2003) Dailey v. Board of Review (2003) –Unemployment compensation disqualification –Court retreating from prior decision on gross misconduct –Simple misconduct to drive a gasoline truck without a driver’s license

6. Supreme Court of Appeals Walsh v. Jefferson Memorial Hospital (2003) and Gress v. Petersburg Foods, LLC (2003) Walsh v. Jefferson Memorial Hospital (2003) and Gress v. Petersburg Foods, LLC (2003) –Wage Payment and Collection Act –Employers can control liability for unpaid benefits if clear policies and/or consistent procedures

7. Supreme Court of Appeals Slivka v. Camden-Clark Memorial Hospital (2004) Slivka v. Camden-Clark Memorial Hospital (2004) –Claim of gender discrimination by male nurse denied position in obstetrics –Very high standard set for whether privacy interests justify gender being a BFOQ

8. Supreme Court of Appeals Future Attractions: Messer v. Huntington Anethesiology (to be argued in the January 2005 term) Future Attractions: Messer v. Huntington Anethesiology (to be argued in the January 2005 term) –Injury claimed to be result of failure to accommodate an alleged disability –Circuit judge dismissed case on grounds of workers’ compensation immunity

9. Top Trends Trend No. 1 Creative employees are becoming more adept at taking advantage of the laws protecting employees with injuries and disabilities

10. Tips for Trend No. 1 Coordinate functions that deal with absences, workers’ compensation and FMLA/Parental Leave Coordinate functions that deal with absences, workers’ compensation and FMLA/Parental Leave Observe the FMLA time frames Observe the FMLA time frames Use ability to engage in “interactive process” to gather information Use ability to engage in “interactive process” to gather information

11. Top Trends Trend No. 2 Office romances set the stage for the brave new world of sexual harassment cases

12. Tips for Trend No. 2 Adopt an anti-fraternization policy that bans supervisor/subordinate relationships Adopt an anti-fraternization policy that bans supervisor/subordinate relationships Set behavior guidelines (for email and public displays of affection) Set behavior guidelines (for email and public displays of affection) If an employee complains, don’t ignore them If an employee complains, don’t ignore them No “informal” complaints No “informal” complaints

13. Top Trends Trend No. 3 Unlawful harassment is not just about sex anymore

14. Tips for Trend No. 3 Update your sexual harassment policy or create an “unlawful harassment” policy Update your sexual harassment policy or create an “unlawful harassment” policy Include all forms of unlawful harassment in your training – not just sexual but also race, religion, national origin, age and disability Include all forms of unlawful harassment in your training – not just sexual but also race, religion, national origin, age and disability Use same investigation procedure Use same investigation procedure

15. Top Trends Trend No. 4 Cameras in the work place are an accident waiting to happen

16. Tips for Trend No. 4 If permitted in the workplace, prohibit taking of photos and video in private areas If permitted in the workplace, prohibit taking of photos and video in private areas Require employees to get permission before distributing photos Require employees to get permission before distributing photos Guard confidentiality Guard confidentiality Establish consequences for violations Establish consequences for violations

17. Top Trends Trend No. 5 Electronic mail (email) messages are the new best source for “smoking guns”

18. Tips for Trend No. 5 Support a culture of responsible email use, including zero tolerance for adult humor and language Support a culture of responsible email use, including zero tolerance for adult humor and language Manage the data storage Manage the data storage Train managers/supervisors in the dangers of email outbursts Train managers/supervisors in the dangers of email outbursts Consider helpful software Consider helpful software

19. Top Trends Trend No. 6 Employers handle discrimination claims well but forget about retaliation

20. Tips for Trend No. 6 Make discussion of retaliation a part of any harassment or discrimination investigation Make discussion of retaliation a part of any harassment or discrimination investigation Take retaliation complaints as seriously as others Take retaliation complaints as seriously as others Even a meritless complainer is protected from retaliation Even a meritless complainer is protected from retaliation

21. Thanks for Your Attention! Elizabeth D. Harter, Esq. bharter@bowlesrice.com