Wednesday, December 31, 2003

Still at will in Virginia -- West Virginia? Not so much.

Still at-will in Virginia In this story ("Employers Have the Right to Fire Away", 12/28/03) the Washington Post says that in Virginia, employment at-will remains the rule, rather than the exception.

[via SW Virginia law blog]

When I read articles like this one, it makes me think West Virginia and Virginia are more like different countries than different states. Although technically an at-will state, the doctrine has been practically dead in West Virginia for about two decades. West Virginia employers can't fire poorly performing employees at will. Sometimes, they can't even fire employees for misconduct. My employer clients are amazed at the employment decisions that come out of our state supreme court. See, e.g., Feliciano v. 7-Eleven, Inc., No. 29564 (2003) (clerk fired for trying to wrestle down an armed robber permitted to sue for public policy wrongful discharge). The erosion of the at-will doctrine has a definite impact on our state's ability to compete with Maryland and Virginia for jobs.

Tuesday, December 30, 2003

No child left behind site set up

The Daily Mail notes in this article that "[i]nformation about how West Virginia students are faring under federal No Child Left Behind standards, and even an explanation of the law, is available on a new Web site established by the West Virginia Education Alliance.

The site is located at, complete with plenty of dancing baloney, exclamation points, and unfamiliar abbreviations. And they say lawyer jargon is difficult to understand.

Saturday, December 13, 2003

State Supreme Court upholds post-offer, pre-employment drug testing

In a per curiam opinion, the State Supreme Court held in Baughman v. Wal-Mart Stores, No. 31312 that employers may require employees to submit to post-offer, pre-employment drug tests in the workplace.

In Baughman, Wal-Mart offered the plaintiff a position contingent upon her successful completion of drug screening--a common practice throughout West Virginia and many other states. She gave the urine sample and thereafter began working at Wal-Mart, but upon leaving employment with the company, she sued, stating that Wal-Mart's pre-employment drug testing requirement was per se an actionable invasion of her privacy.

The circuit court granted Wal-Mart summary judgment throwing out the case, and the plaintiff appealed. The State Supreme Court agreed to hear the appeal, but affirmed the ruling.

Was this case even a close call? In the 1990 case of Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990), the Court held that all workplace drug testing of employees is illegal, except "where it is conducted by an employer based upon reasonable good faith objective suspicion of an employee's drug usage or while an employee's job responsibility involves public safety or the safety of others." Syllabus Point 2, Twigg. The plaintiff argued that pre-employment drug testing fits into neither category of exceptions, and is thus illegal.

The Supreme Court disagreed, finding that Twigg only applies to current employees, not applicants. "Notably, and for the purposes of our holding in the instant case, importantly, Twigg was a case involving the issues arising from an employer's requirement of drug testing by current, existing employees - not by prospective employees who had not begun employment," the Court wrote. "[I]n the pre-employment context, it is apparent - although not necessarily dispositive in every case - that a person clearly has a lower expectation of privacy. Employers regularly perform pre-employment background checks, seek references, and require pre-employment medical examinations, etc., that are far more intrusive than what would be considered tolerable for existing employees without special circumstances. Giving a urine sample is a standard component of a medical examination."

Thus, West Virginia employers may still use post-offer, pre-employment drug testing in their workplaces in West Virginia. The Court even provided some guidance in footnote 2 on how such drug testing policies should be drafted: "[I]n most if not all states that permit and regulate some form of pre-employment drug testing by statute, the right to the results of the tests, to request confirmatory tests, and the opportunity to challenge the results is afforded. We believe these practices are desirable, and adherence to such practices should be a factor in evaluating the fairness of any testing policies and practices."

The opinion goes on to state concerns about a "slippery slope" -- an erosion of privacy rights at the hands of employers and the state. It ignores any mention of the social utility of pre-employment drug testing in our society. Clearly, the Court made the right decision in this case. Such testing makes workplaces safer for everyone by weeding out drug users. Even the mention of a drug test will most drug-using applicants look for other potential employers.

Thursday, December 11, 2003

Wise eyes statewide Canada drug plan

This article in today's Charleston Gazette notes that representatives from West Virginia and 10 other states are scheduled to meet in Atlanta today with five Canadian drug exporters to explore the possibility of importing prescription drugs from Canada to save the Public Employees Insurance Agency money.

West Virginia could also become the first state to provide local pharmacies with Canadian drugs, which they could sell to anyone in the state. "The governor’s desire is to try to find solutions for everybody, not just state workers," said Tom Susman, director of the state Public Employees Insurance Agency.

Saturday, December 06, 2003

Official Gator Bowl merchandise gets name wrong

We turned around our season to land a bowl game appearance on January 1, and still no respect.

The Baltimore Sun reports here that WVU "fans may not be so thrilled with images of official Gator Bowl merchandise.... Game officials are scrambling to correct photographs of $20-$25 souvenir T-shirts commemorating an appearance by 'University of West Virginia' in the Jan. 1 game."

I recall this same mistake in the movie Rocket Boys (adapted from McDowell County native Homer Hickam's book October Sky). In the movie, Homer's older brother is approached by a football recruiter purportedly representing the "University of West Virginia." I heard Hickam say in a speech that he wanted to correct the mistake, but by the time he discovered it, it was too late. It sounds like the t-shirt mistake has been caught early.

High Court Supports Raytheon's Hiring Policy

In Raytheon Co. v. Hernandez, No. 02-749 (Decided Dec. 2, 2003), the U.S. Supreme Court held that neutral employer policies that bar the rehiring of a worker fired for misconduct, such as drug use, are legitimate and cannot be overruled by federal disability laws if applied properly.

In Raytheon, Hernandez, a former employee who was fired once before by Raytheon for drug use, was rehabilitated and sought reemployment. The company rejected his application, citing a company policy of not rehiring employees fired for misconduct. The employee sued Raytheon under the Americans with Disablities Act (ADA), which can protect recovered drug users as disabled persons. The Ninth Circuit Court of Appeals ruled the ADA might give Hernandez a right to his old job because Raytheon's no-rehire policy violated the ADA merely because it screens out people who have been addicted.

"We hold that such an analysis is inapplicable," Justice Thomas said. "The Court of Appeals ignored the fact that petitioner's no-rehire policy is quintessential a legitimate nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules," the unanimous majority opinion stated.

Still, the Court remanded the case for further proceedings, ordering the lower courts to determine whether Raytheon had applied its no-rehire policy in a neutral fashion. The case was dismissed by the district court before trial, and the Ninth Circuit revived it.

Court sides with DuPont in C8 case

The Charleston Gazette reports that "[t]he state Supreme Court on Friday overturned a ruling that required DuPont Co. to test the blood of Parkersburg plant neighbors for the toxic chemical C8." The Court ruled 4-1 that Wood County Circuit Judge George W. Hill Jr. incorrectly ordered DuPont to provide the blood tests.

The Court also found that Hill must temporarily recuse himself from any proceedings in a class action against DuPont by as many as 50,000 residents who claim the company has poisoned their water supplies with C8. Chief Justice Larry Starcher will review DuPont's request to have Hill recused permanently.

Judge Hill had entered an injunction ordering DuPont to provide blood tests to determine how much C8 Wood County residents had been exposed to. The Court reversed the injunction on procedural grounds, finding that DuPont lawyers did not have specific notice that the matter would be considered at the hearing.
In Syllabus Point 3, the Court ruled that "Pursuant to West Virginia Rule of Civil Procedure 65(a)(1), no preliminary injunction shall issue without notice to the adverse party. A preliminary injunction which is ordered without notice to the adverse party is void. Notice necessarily implies that the opposing party be provided a fair opportunity to oppose the application and to prepare for such opposition."

The Court further noted, however, that under Carter v. Monsanto Co., 212 W.Va. 732, 575 S.E.2d 342 (2002), the cost of testing for the presence of C8 in the plaintiffs' blood should be borne by the plaintiffs, not the defendant. "[The plaintiffs] are asking that the burden of the expense of gathering evidence, testing for the presence of C-8, be shifted to duPont. In a creative manner, the plaintiffs are simply asking the circuit court to shift the costs of the discovery process and to compel duPont to pay for their discovery. This we cannot do for the same logic and principles set forth in Monsanto," the Court reasoned.

Ironically, DuPont may have the only lab in the country suitable for performing the C8 tests. If that is the case, the Court noted, DuPont must give the plaintiffs a reasonable price for the testing.

Friday, December 05, 2003

Business Wins Key Workers' Comp Decision

From the West Virginia Chamber of Commerce Chamber Links newsletter:

The West Virginia Supreme Court of Appeals has issued a favorable decision in STATE OF WEST VIRGINIA EX REL. WILLIAM R. BEIRNE, v. ROBERT J. SMITH, COMMISSIONER, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS. The high court has upheld a key provision in the 1995 reform bill. The ruling came in two cases the court consolidated that both challenged a 1995 law cutting off permanent total disability awards at retirement age. The cut off was a key provision sought to keep Workers' Compensation as program to help rehabilitate injured workers instead of providing them with a pension.

"It is our unfortunate conclusion that the Legislature has this authority,'' the court said in an unsigned opinion. "We note that those who are unhappy with such a state of affairs must understand that it is their publicly elected representatives who have decided to terminate all cash compensation to these elderly individuals who were injured so severely at work that they are totally and permanently disabled,'' the court said. "The law is the work of the Legislature and is not a product of our courts. Though we may believe the Legislature's actions are harsh or even cruel, or sound economic policy, its policy decisions, under our constitutional framework, are its own, subjecting it to the scrutiny of the electorate in whose hands the Constitution vests the ultimate reviewing authority.''

Click to read case:

Thursday, December 04, 2003

No private cause of action for failure to report sex abuse

In a unanimous ruling, the State Supreme Court held yesterday in Arbaugh v. Bd. of Ed., County of Pendleton, et al., No. 31346 (Dec. 3, 2003) that "West Virginia Code § 49-6A-2 (2001) (Repl. Vol. 2001) does not give rise to an implied private civil cause of action, in addition to criminal penalties imposed by the statute, for failure to report suspected child abuse where an individual with a duty to report under the statute is alleged to have had reasonable cause to suspect that a child is being abused and has failed to report suspected abuse." Syl. Pt. 3, Arbaugh.

According to West Virginia Code § 55-7-9 (1923) (Repl. Vol. 2000) "Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages." West Virginia Code § 49-6A-2 creates a mandatory duty to report suspected abuse for people working in certain professions.

To determine whether any given statute provides a civil remedy, the Court analyzes the circumstances under a 4-part test. See Syl. Pt. 1, Hurley v. Allied Chemical Corporation, 164 W.Va. 268, 262 S.E.2d 757 (1980). ("(1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government."

In this case, Mr. Arbaugh, a Pendleton County man, alleged that a teacher at Circleville School, sexually assaulted him for four years while he attended the school, and that teachers and other school officials who knew of the teacher's past abuse failed to report it. None of the defendants were criminally charged with failing to report the abuse.

The Court found that no private cause of action exists because two of the four Hurley factors were not met, namely the requirement that the legislature intend to provide a civil remedy, and that a private cause of action is not consistent with the underlying purposes of the legislative scheme. "When the provisions of the article are considered as a whole, we do not see that a private cause of action would meaningfully further the purposes of the article so as to find that such was intended by the Legislature," the Court ruled. "Under such nebulous circumstances, we are unwilling to recognize a new and broad field of tort liability without express legislative designation of a private cause of action."

Wednesday, December 03, 2003

Fourth Circuit finds dress code is likely to be found unconstitutional

In a follow-up to this previous post, the Fourth Circuit has ruled that a school policy prohibting a student from wearing an NRA T-Shirt at school is likely to be found unconstitutional, and a preliminary injunction prohibiting its enforcement should have been granted.

In Newsome v. Albemarle County School Board, No. 03-1125 (Decided Dec. 1, 2003) (PDF), a student was told by a vice-principal that he could not wear an NRA shooting camp T-shirt to school because it depicted silhouettes of shooters. The shirt reminded the vice-principal of the Columbine shootings, and she claimed that the depiction of shooters had the potential to disrupt classroom instruction. According to the school's policy, students were prohibited from wearing, inter alia, "messages on clothing, jewelry, and personal belongings that relate to drugs, alcohol, tobacco, weapons, violence, sex, vulgarity, or that reflect adversely upon persons because of their race or ethnic group."

The district court refused a preliminary injunction, and the plaintiff appealed. The Fourth Circuit reversed, finding that the policy was likely to be found unconstitutionally overbroad. The Court noted that under the policy, "the State Seal of the Commonwealth of Virginia depict[ing] a woman standing with one foot on the chest of a vanquished tyrant, holding a spear" could not be worn on a T-shirt in the school. Nor could a shirt displaying "the symbol of the University of Virginia’s athletic mascot—the Cavalier," which is two crossed sabers. "Because there was no evidence presented at the preliminary injunction stage of the case demonstrating that clothing worn by students at [the school] containing messages related to weapons, nonviolent, nonthreatening, or otherwise, ever substantially disrupted school operations or interfered with the rights of others, the number of examples of the unnecessarily broad nature of the 2002-2003 Jouett Dress Code is practically limitless," the Court noted.

Because the Court found that the policy "excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory," it is likely to be found unconstitutional, and the injunction should have issued.

Tuesday, December 02, 2003

Somking ban supporters breathe sigh of relief

The W.Va. Supreme Court of Appeals ruled unanimously today that indoor smoking bans by local boards of health are legal. In Foundation for Independent Living, Inc. v. Cabell Huntington Bd. of Health and State ex rel. Kanawha-Charleston Board of Helath v. King, Nos. 31120 and 31616 (December 2, 2003) (two consolidated cases), the Court held that indoor smoking regulations are consistent with legislative findings and policy, and fall within the bounds of authority granted to such boards under W.Va. Code 16-2-11.

The effect of this ruling, as noted by this article in today's Daily Mail, will be to clear the way for local health boards to ban indoor smoking in bars, restaurants and almost every other public place.

I, for one, am pleased with the smoking bans. Since the ban took effect here in Berkeley County, restaurants have eliminated their smoking sections, which makes getting a seat much faster for everyone. It also lets you enjoy the taste of the food. Let the smokers shiver outside in the cold. Maybe it will make them quit.