tag:blogger.com,1999:blog-34576932024-03-17T15:28:40.176-05:00Brian Peterson's West Virginia Legal WeblogA collection of legal news and commentary with a focus on West Virginia law.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comBlogger905125tag:blogger.com,1999:blog-3457693.post-42786000303083157772015-12-03T16:42:00.003-05:002015-12-03T16:42:44.787-05:00Fired employee must repay signing bonus, W.Va. Supreme Court rules<div class="MsoPlainText">
In <i><a href="https://scholar.google.com/scholar_case?case=10885713095770962590" target="_blank">Wasanyi v. Rite Aid Corp.</a></i>, (W.Va. Supreme Ct. Oct. 20, 2015) (memorandum decision), the West Virginia Supreme Court of Appeals upheld a judgment in favor of Rite Aid against its former employee, David Wasanyi, to recover a signing bonus that paid to him. </div>
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The terms of Wasanyi's employment were set forth in an offer letter, and included a $10,000 signing bonus. The offer letter stated that it did not constitute a contract; however, attached to the letter was a promissory note that characterized the $10,000.00 signing bonus as a loan, and provided that the loan would be forgiven upon the completion of two years' service. Unlike the offer letter, the promissory <i>was</i> a contract, and was signed by Wasanyi. The loan became repayable if Wasanyi separated from employment "for any reason."</div>
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Less than two years after his hire date, Rite Aid fired Wasanyi, and he failed to repay the note within 30 days, as required. Rite Aid sued to recover the $10,000 (plus 6 percent interest required by the note) and the circuit court entered summary judgment for Rite Aid.</div>
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On appeal, the state supreme court affirmed, agreeing with Rite Aid that, although the offer letter was not a contract, the promissory note was.</div>
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Moral to the story: Any time you are expecting an employee to repay anything that looks like wages, it's a good idea to obtain a note signed separately by the employee. Don't rely on a document such as an offer letter or handbook policy that states it is "not a contract."</div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-1894279763775235602015-11-25T10:48:00.001-05:002015-11-25T10:51:23.627-05:00Arbitration clause in employee handbook not an agreement to arbitrate employment disputesEmployee handbooks are extremely useful, but they should never be contracts. In fact, all handbooks should contain one or more conspicuous disclaimers stating they are not contracts to avoid creating unintended contractual rights for employees.<br />
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In employment cases, it's not uncommon for employees to sue an employer for breach of contract for violating a handbook provision. In its defense, the employer inevitably points to the conspicuous disclaimer in the handbook stating that the document is "not a contract" and "is not intended to create any contractual rights." It's unusual to see employers argue that a handbook <i>creates </i>a contract. But that's exactly what the employer argued in <i><a href="http://www.ca4.uscourts.gov/Opinions/Published/141622.P.pdf" target="_blank">Lorenzo v. Prime Communications, L.P.</a></i>, Nos. 14-1622 and 14-1727 (4th Cir. Nov. 24, 2015).<br />
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In <i>Lorenzo</i>, the plaintiff employee sued her employer for violating state and federal wage and hour laws. Relying on an arbitration provision contained in the company's employee handbook, which had been provided to Lorenzo when she
began her employment, Prime Communications filed a motion to
compel arbitration.<br />
<br />
The district court denied the motion,
concluding that Prime Communications did not provide sufficient
evidence that Lorenzo had agreed to arbitration. The court held
that mere receipt of the employee handbook and continued work
for Prime Communications after receiving it were insufficient
evidence of Lorenzo’s agreement to the handbook’s arbitration
provision.<br />
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In response to Prime Communications’ argument that
“its routine requirement for employees to execute an
acknowledgment form [was] sufficient evidence of [Lorenzo’s]
agreement,” the court noted that Prime Communications “ha[d]
been unable to produce any signed acknowledgment form signed by
[Lorenzo],” and thus found the argument “untenable.”<br />
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The acknowledgment signed by the employee expressly disclaimed (as it should) that it formed a contractual relationship between the employer and employee:<br />
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<blockquote class="tr_bq">
I understand that I am responsible for reviewing the
Prime Communications Employee Handbook.</blockquote>
<blockquote class="tr_bq" style="text-align: center;">
* * * </blockquote>
<blockquote class="tr_bq">
I understand that the Prime Communications’ Employee
Handbook <b>is not a contract of employment</b> and does not
change the employment-at-will status of employees.
Moreover, <b>no provision should be construed to create
any bindery [sic] promises or contractual obligations</b>
between the Company and the employees (management or
non-management).
</blockquote>
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* * * </div>
<blockquote class="tr_bq">
By my signature below, I acknowledge, understand,
accept, and agree to comply with the information
contained in the Employment Handbook. I acknowledge
that I will review and read the Company Handbook and
that I have the opportunity to ask my Manager
questions about the Handbook. I further acknowledge
that I fully understand or will make sure that I do
understand the contents there of, as they relate to my
employment with Prime Communications. I understand
that the information contained in the Handbook are
guidelines only and <b>are in no way to be interpreted as
a contract</b>. </blockquote>
(emphasis added).<br />
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Agreeing with the district court that the handbook's arbitration clause was not a contract, the Fourth Circuit refused to compel arbitration. It emphasized that although the handbook committed “all employment issues” first to an internal dispute resolution process, then to mediation, and finally to arbitration, the signed acknowledgement form stated that “no provision should be construed to create any bindery [sic] promises or contractual obligations between the Company and the employees."<br />
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Moral to the story: It's best to use stand-alone arbitration agreements. Don't bury the provision in a handbook, especially one with a prominent disclaimer stating that none of its provisions constitute a contract.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-12178720896308230952015-07-15T17:14:00.003-05:002015-07-15T17:15:47.972-05:00DOL issues new administrator's interpretation on employment vs. independent contractor relationships<div class="MsoNormal">
<span style="font-family: Arial, sans-serif; font-size: 12pt;">The U.S. Department of Labor issued a new “Administrator’s
Interpretation” on employee / independent contractor status under the
FLSA. <a href="http://www.dol.gov/whd/workers/Misclassification/AI-2015_1.pdf" target="_blank">Administrator's Interpretation No. 2015-1</a> (July 15, 2015).</span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">Although there is nothing too “earth-shattering” here, it does emphasize that the common law “control” test is not
outcome-determinative under the FLSA. </span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">Instead, the FLSA uses the <b>economic
realities</b> test that has the following factors:<o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(A) the extent to which the work
performed is an integral part of the employer’s business; <o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(B) the worker’s opportunity for
profit or loss depending on his or her managerial skill; <o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(C) the extent of the relative
investments of the employer and the worker; <o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(D) whether the work performed
requires special skills and initiative;<o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(E) the permanency of the
relationship; and <o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif; font-size: 12pt;">(F) the degree of control
exercised or retained by the employer.<o:p></o:p></span></div>
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<span style="font-family: Arial, sans-serif;">Whether the worker's activities are tightly controlled by the hiring entity is only one of many factors the DOL will look at to determine whether the worker is an employee.</span></div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-86894026502721505722015-07-15T17:05:00.001-05:002015-07-15T17:05:50.386-05:00Temp agency employees may be your employees, too<div style="color: #4d4f51; font-family: Helvetica, Arial, sans-serif; font-size: 16px; line-height: 24px; margin-bottom: 30px;">
Employers sometimes use temporary staffing agencies to supply labor in hopes that, if a temporary employee doesn't work out, they can part ways without the messy employment-related claims. These "try before you buy" relationships just got a little more risky today.</div>
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In a <a data-mce-href="http://www.ca4.uscourts.gov/Opinions/Published/141348.P.pdf" href="http://www.ca4.uscourts.gov/Opinions/Published/141348.P.pdf" rel="nofollow">published opinion</a>, the U.S. Court of Appeals for the Fourth Circuit held that a manufacturer who requested the termination of a staffing agency employee was a joint employer with the staffing agency for Title VII purposes. In other words, it held that multiple entities may simultaneously be considered employers under Title VII. Brenda Butler v. Drive Automotive Industries, No. 14-1348 (4th Cir. July 15, 2015) (published).</div>
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The employer, Drive Automotive Industries, operated a factory and used a staffing agency called ResourceMFG to supply some of the labor. Under the arrangement, both exercised control over the staffing agency employees' employment. ResourceMFG issued the uniforms, paid the employees, provided a special parking lot the employees, and had ultimate responsibility for issues related to discipline and termination. Drive, on the other hand, set the employees' work schedules, arranged portions of their training, and supervised the employees while they worked on the factory floor.</div>
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The plaintiff was a ResourceMFG employee who was told that she worked for "both" ResourceMFG and Drive. She also claimed she was repeatedly sexually harassed by a Drive supervisor while working at the factory. The plaintiff claims she reported the harassment to both her ResourceMFG supervisor and to a Drive supervisor named Lisa Thomas, who supervised the alleged harasser, but nothing was done.</div>
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Later, after she refused to work on a piece of machinery because she felt fatigued from working overtime the night before, the alleged harasser told her she was "a temp and could easily be fired." When she reported the encounter to Thomas, Thomas requested another supervisor at Drive to have the plaintiff terminated. The request was sent to ResourceMFG. The alleged harasser then allegedly contacted the plaintiff and told her that she could save her job by performing sexual favors for him. When she refused, ResourceMFG terminated her from Drive.</div>
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The lower court found that Drive could not be held liable under Title VII because it was not the plaintiff's employer. Instead, it found that ResourceMFG was the plaintiff's sole employer.</div>
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On appeal, the Fourth Circuit disagreed, reversed and remanded the case. The court held that both Drive and ResourceMFG were the plaintiff's employer. Before today, the Fourth Circuit had never expressly adopted the joint employment doctrine in the Title VII context, and it had never articulated a set of factors for determining when two entities would be considered joint employers.</div>
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In today's opinion, the Court articulated a "hybrid test," consisting of the following factors, to use in assessing whether an individual is jointly employed by two or more entities:</div>
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<strong>(1) authority to hire and fire the individual;</strong><br /><strong>(2) day-to-day supervision of the individual, including employee discipline;</strong><br /><strong>(3) whether the putative employer furnishes the equipment used and the place of work;</strong><br />(4) possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes;<br />(5) the length of time during which the individual has worked for the putative employer;<br />(6) whether the putative employer provides the individual with formal or informal training;<br />(7) whether the individual’s duties are akin to a regular employee's duties;<br />(8) whether the individual is assigned solely to the putative employer; and<br />(9) whether the individual and putative employer intended to enter into an employment relationship.</div>
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Although no factor is dispositive, the court acknowledged that the first three factors (in bold above) are the most important.</div>
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Applying these factors, the court found that both Drive and ResourceMFG were the plaintiff's employer. While ResourceMFG had the actual power to fire, Drive had the power to request that ResourceMFG's employees be reassigned, and those requests were always followed. That gave Drive effective control over the plaintiff's employment. Drive also supervised the day-to-day activities of ResourceMFG's employees, and furnished all of the equipment and place of work. Many of the remaining 6 factors were also present.</div>
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So, if your company uses a staffing agency, but retains the right to have employees reassigned and supervises them alongside your own employees, then you very well could be deemed a joint employer with the staffing agency for Title VII purposes. Requesting the staffing agency to reassign a problem employee can result in liability in the same way as firing one of your own true W-2 employees.</div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-15834741760142897252015-07-02T08:52:00.002-05:002015-07-02T08:52:34.149-05:00Can an employer be held liable for anonymous racial harassment?An employer's "lukewarm" response to anonymous racist death threats can lead to hostile work environment liability, held the U.S. Court of Appeals for the Fourth Circuit yesterday in <a href="http://www.ca4.uscourts.gov/Opinions/Published/141442.P.pdf" target="_blank">Pryor v. United Air Lines, Inc.</a>, No. 14-1442 (4th Cir., July 1, 2015).<div>
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The plaintiff, Renee Pryor, an African-American
flight attendant, alleged that her employer, United Air Lines,
failed to adequately respond to a racist death threat left in
her company mailbox. The district court concluded that Pryor
was subjected to a racially hostile work environment, but
granted summary judgment to the airline after deciding that it
was not liable for the offensive conduct. On appeal, the Fourth Circuit reversed, holding that the employer had not made an adequate response.</div>
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The plaintiff joined United Airlines in 1984 and began working out
of Dulles International Airport in the early 1990s. In January
2011, she discovered in her company mailbox a paper note
claiming to be a “N[-word] Tag – Federal N[-word] Hunting License,”
declaring that the holder was “licensed to hunt & kill N-----S
during the open search hereof in the U.S.” The tag
also purported to give “the holder permission to hunt day or
night, with or without dogs.” A hand-drawn image of a
person hanging from a pole or a tree appeared on one corner of
the document, along with the words “this is for you.” The mailbox was in a secure space at the airport,
accessible to United employees and others with company
authorization.</div>
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Acknowledging that "instances of anonymous harassment pose unique challenges to companies that must work both to identify the perpetrator and to protect victims from a faceless, though ominous, threat," the court found that</div>
<blockquote class="tr_bq">
on the other hand, an employer maintains a
responsibility to reasonably carry out those dual duties of
investigation and protection. The anonymous nature of severe
threats or acts of harassment may, in fact, heighten what is
required of an employer, particularly in circumstances where the
harassment occurs inside a secure space accessible to only
company-authorized individuals.</blockquote>
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Employers may be held liable for hostile work environments created by co-workers and third parties "if it knew or should have known about the harassment and failed to take effective action to stop it ... <i>[by] respond[ing] with remedial action reasonably calculated to end the harassment.</i>" (Slip Op. at 19) (emphasis in original).</div>
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In the present case, the court found that a reasonable jury could conclude that United Air Lines' investigation was "neither prompt nor reasonably calculated to end the harassment." It found the following faults in United's response:</div>
<div>
<ul>
<li>United supervisors did not
call police, even though police later suggested that they should
have.</li>
<li>They violated their own policy by failing to escalate the matter to the Employee Service Center, which was responsible for "initial in-take of the [harassment] complaint and ... forward[ing] to an investigative team for investigation and follow-up" under United's Harassment & Discrimination ("H&D") Policy.</li>
<li>They did not inform
corporate security of the racist message on the fliers discovered in the break room. </li>
<li>They did not promptly
install cameras or other monitoring devices. </li>
<li>They did not
provide Pryor with additional security or protective measures. </li>
<li>They did not obtain fingerprints, do other forensics analysis,
or interview co-workers. </li>
<li>And they remarkably did not inform
Pryor when their investigation closed, an event that occurred
without management having sent any correspondence to employees
to solicit information and/or put them on notice that the
company was being vigilant in monitoring the workplace. </li>
</ul>
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To make matters worse for United, after this first round of threats and its "lukewarm" response, the racist notes reappeared in even more employee's mailboxes. The court found that "on this record, a reasonable jury could find a causal relationship" between the initial response and the later reappearance of the notes.</div>
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So, the moral to this story is that employers must take anonymous threats seriously and not just throw up their hands and say they can't do anything about it. Even though the anonymous harasser may never be found, the employer can protect itself from liability by reacting swiftly and taking all reasonable measures to investigate and catch the perpetrator. That could include calling police, installing surveillance cameras, conducting forensic examinations, and offering additional protection to the harassed individuals. Context is important. This harassment occurred in a secure area of an airport, and involved death threats. Not every case involves such serious factors. But, to avoid liability for a hostile work environment, employers should err on the side of caution by being as thorough as reasonably possible to find the culprit and stop the harassment.</div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-60796296628981882652015-06-11T10:04:00.002-05:002015-06-11T10:04:22.193-05:002015 Changes to West Virginia Wage Payment and Collection Act Take EffectThe West Virginia Legislature removed several stumbling blocks for employers last legislative session that become effective June 11 and 12.<br />
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<b><a href="http://www.legis.state.wv.us/Bill_Text_HTML/2015_SESSIONS/RS/bills/SB12%20SUB1%20enr.pdf" target="_blank">Senate Bill 12</a> (effective June 11, 2015) (amends W.Va. Code §§ 21-5-1 and 21-5-4)</b><br />
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Effective today, employees who are discharged or who resign must be paid their final wages "on or before the next regular payday on which the wages would otherwise be due and payable."<br />
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This common-sense amendment removes a major trap for unwary employers in this state.<br />
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Prior to this bill, employers were required to pay discharged employees all wages and fringe benefits by the next regular payday <b>or within four business days, whichever occurred first. </b>Employers who missed the deadline faced a massive penalty of three times the untimely paid amount in liquidated damages. The new deadline means employers do not have to pay employees outside of the normal payroll cycle when they quit or are fired, removing a major burden for employers.<br />
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Senate Bill 12 also reduced the liquidated damages to double instead of triple the untimely paid amount, and revises the deadline for paying certain fringe benefits. The law states that<br />
<blockquote class="tr_bq">
fringe benefits [as defined in the statute] ... that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement.</blockquote>
In other words, if an employer has an agreement with an employee to pay out unused vacation within 30 days of discharge or resignation, that deadline will be controlling, and the unused vacation will not be due on the next regular pay date following discharge.<br />
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The amendment is also significant because it creates a common deadline for final wage payment, regardless of whether an employee resigns with notice, without notice, or is discharged. And finally, it clarifies that liquidated damages are not available to employees who claim they were misclassified as exempt from overtime under state and federal wage and hour laws. (Numerous <a href="https://scholar.google.com/scholar_case?case=8412709515959112985" target="_blank">case authorities</a> provide that the WPCA cannot be used to recover overtime due under the FLSA.)<br />
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<b><a href="http://www.legis.state.wv.us/Bill_Text_HTML/2015_SESSIONS/RS/pdf_bills/SB318%20ENG%20PRINTED.pdf" target="_blank">Senate Bill 318</a> </b>(effective June 12, 2015) (amends W.Va. Code § 21-5-3)<br />
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Beginning tomorrow, employers in West Virginia may begin paying their employees twice per month instead of every two weeks (so long as the employer does not allow more than 19 days between payments). This means employers may pay employees on the 15th and 30th of each month, which saves 2 payroll cycles per year. Under prior law, employers could pay twice a month only if they obtained a special agreement from the Commissioner of the Division of Labor.<br />
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Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-24181098306971547192015-01-10T12:08:00.001-05:002015-01-10T12:08:06.558-05:00Employee claiming he was terminated for refusing to operate an illegal pharmacy stated a claim for wrongful discharge under Virginia law, Fourth Circuit holds.A former ExxonMobil employee claiming he was fired in retaliation for reporting illegal pharmacy practices in the workplace stated a viable claim of public policy wrongful discharge under Virginia law, the Fourth Circuit held in <a href="http://law.justia.com/cases/federal/appellate-courts/ca4/13-2007/13-2007-2015-01-08.html" target="_blank">Weidman v. Exxon Mobil Corp.</a>, No. 13-2007 (4th Cir., Jan. 8, 2015).<br />
<br />
The employee's complaint alleged that in 2009, he discovered ExxonMobil had been operating illegal pharmacies in multiple states, and had illegally stockpiled large quantities of medication in its Fairfax, Virginia office, as well as in other clinics. He claims senior managers were aware of the illegal activities, and terminated him after he refused to participate in the illegal distribution scheme. He also claimed that the stress his managers put him under caused him to suffer a heart attack and emotional stress. He sued ExxonMobil and a number of managers for fraud, intentional infliction of emotional distress, personal injury, and wrongful discharge.<br />
<br />
The district court dismissed all of the claims. On appeal, the Fourth Circuit affirmed the dismissal of all but the wrongful discharge claim, finding that it was viable under Virginia law. Virginia has a statutory prohibition against operating illegal pharmacies. Va Code Ann. 54.1-111. The case was remanded for further proceedings.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-50133427435496368492014-12-12T22:45:00.000-05:002014-12-12T22:45:03.025-05:00Security screening time is not compensable, US Supreme Court rules<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);">The time warehouse workers spend going through security screenings is not compensable under the Fair Labor Standards Act (FLSA), a unanimous U.S. Supreme Court ruled Dec. 9. <i><a href="http://scholar.google.com/scholar_case?q=Amazon+security+2014&hl=en&as_sdt=3,49&case=3463407013865128237&scilh=0" target="_blank">Integrity Staffing Solutions, Inc. v. Busk, et al.</a></i>, No. 13-433, (U.S. Sup. Ct., Dec. 9, 2014).</span><br />
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<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);"><br /></span></div>
<div>
<span style="-webkit-text-size-adjust: auto; background-color: rgba(255, 255, 255, 0);">The court, in a unanimous opinion authored by Justice Thomas, said the Amazon.com workers couldn’t proceed with a lawsuit seeking wages for the security checks because the time they spent waiting to be screened wasn’t an integral and indispensable part of their jobs.</span></div>
<div>
<span style="-webkit-text-size-adjust: auto;"><br /></span></div>
<div>
<span style="-webkit-text-size-adjust: auto;">The case could have been a disaster for many retail and warehouse employers, had it gone the other way. Thankfully, it didn't. The Court stood by its longstanding interpretation of the Portal-to-Portal Act, which treats preliminary and postliminary activities such as this as noncompensable.</span></div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-89942301189199534042014-11-09T17:14:00.000-05:002014-11-09T17:14:39.433-05:00Wage Payment and Collection Act cannot be used to tack treble damages onto Prevailing Wage Act recoveries, W.Va. Supreme Court rulesEmployees suing to recover prevailing wages under the West Virginia Prevailing Wage Act (PWA) may not also recover liquidated damages under the West Virginia Wage Payment and Collection Act (WPCA), the West Virginia Supreme Court ruled in <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-1133.html" target="_blank">Grim v. Eastern Electric, LLC</a>, (No. 13-1133, W.Va. Supreme Court, Nov. 3, 2014).<div>
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The plaintiffs in <i>Grim </i>were seven electricians employed by Eastern Electric, LLC, to work on several public works projects. They claim they were not paid the prevailing wage, and sued Eastern Electric to recover statutory wages and penalties under the PWA, as well as treble liquidated damages under WPCA. </div>
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The circuit court granted summary judgment for Eastern Electric on all claims. It found that the applicable statute of limitations had expired, that Eastern Electric had proven its "honest mistake or error" affirmative defense, and that the WPCA was not applicable because (1) the PWA damages were an exclusive remedy, and (2) PWA damages were not "wages."</div>
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On appeal, the the West Virginia Supreme Court reversed the dismissal of the PWA claims, but affirmed the dismissal of the WPCA claims. Regarding the PWA claims, it found the 5-year statute of limitations for unwritten contracts applicable rather than the catchall 2-year statute. It found genuine issues of material fact existed regarding the "honest mistake or error" affirmative defense.</div>
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The more controversial ruling, however, involved the WPCA claim. To analyze this issue, the court had to grapple with how the WPCA works (or doesn't) in conjunction with other wage-related claims. The WPCA provision at issue, W.Va. Code § 21-5-4, is the dreaded "final wages" rule. It sets deadlines for payment of final wages, and famously provides for treble liquidated damages when employers miss those deadlines. </div>
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Most of the time, WPCA claims revolve around simple late payment of the final paycheck. But in some cases, there is a genuine dispute over what wages are owed. Employees have argued, mostly unsuccessfully, that WPCA damages can be tacked on to late payments of overtime premiums recovered under the FLSA, and back wages under the WARN Act.</div>
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But, the question of whether the WPCA could be used in conjunction with the PWA was one of first impression. The circuit court held that the PWA's damages provision was the "exclusive remedy." The PWA provides for recovery of the difference between the amount paid and the prevailing wage, plus a like amount as a statutory "penalty." The circuit court also found that the amount recovered under the PWA was not "wages" but was some other form of damages.</div>
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The supreme court rejected the reasoning of the circuit court, but affirmed the decision anyway. The Court explained its reasoning as follows:</div>
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Unlike the PWA, the WPCA does not create a right to compensation; rather it merely provides a statutory vehicle for employees to recover agreed-upon, earned wages from an employer. "'The West Virginia Wage Payment and Collection Act is remedial legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.'" </blockquote>
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The WPCA explicitly provides a private cause of action and statutory remedy when the employer breaches its obligation to pay earned wages. Notably, the WPCA "does not establish a particular rate of pay, instead, it controls the manner in which employees in West Virginia are paid wages and it imposes on employers an obligation to pay employees' wages in a timely manner." The amount of wages payable to an employee pursuant to the provisions of the WPCA is determined exclusively by the terms of the employment agreement. We emphasize that petitioners' independent rights to both contractual wages and statutory prevailing wages emanate from different sources, as do the mechanisms for recovery of such wages. Straight-time wages (above the minimum wage) are a matter of private contract or agreement between the employer and employee. Entitlement to prevailing wages, on the other hand, is mandated by the PWA and is based on an important public policy. The duty to pay prevailing wages is a statutory duty imposed by the State; it is not a matter left to the private discretion of the employer.</blockquote>
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In this case, petitioners attempt to bootstrap a WPCA claim to the statutory remedies provided by the PWA by obtusely contending they were not paid "wages due." However, as made clear above, the WPCA merely provides a statutory mechanism to recover "compensation wrongly withheld." Petitioners herein do not contend that their contractual wages were wrongly "withheld" or that their agreed-upon wages were not paid timely. Rather, the gravamen of petitioners' complaint is that the agreed-upon wages were in violation of the PWA; therefore, their remedy for this violation lies within the PWA. The WPCA creates no right to prevailing wages. </blockquote>
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<i>Grim</i>, <i>supra </i>(citations omitted). What this case seems to say is that where the obligation to pay wages is statutory rather than contractual, then a WPCA claim is not viable. This should prevent WPCA recoveries for violations of the FLSA, the West Virginia Minimum Wage and Maximum Hours Standards, and any other statute that imposes wage payment obligations.</div>
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Justice Davis, in her <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-1133-0.html" target="_blank">dissenting opinion</a>, found that the majority's reasoning was flawed. She reasoned that the two laws serve different purposes, and would have allowed the WPCA claim to be asserted in addition to the PWA claim.</div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-8257769093664175472014-11-08T10:58:00.002-05:002014-11-08T11:05:47.490-05:00State overtime standards apply to almost no one, W.Va. Supreme Court confirms<div class="MsoNormal" style="background: white; margin-bottom: 0.0001pt; text-align: left;">
<span style="font-family: Arial, Helvetica, sans-serif;">Yesterday, the West Virginia Supreme Court confirmed what most of us have always believed--that the state's overtime law does not apply to employers who have 80 percent or more of their employees "subject to" the federal Fair Labor Standards Act. There was, perhaps, some room for argument about what "subject to" meant, but the court cleared that up yesterday in <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-1255.html" target="_blank">King v. West Virginia's Choice, Inc.</a>, No. 13-1255 (W.Va. Supreme Court, Nov. 7, 2014). </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">In <i>King</i>, the plaintiff was an in-home direct care worker employed by W.Va. Choice, a companionship services provider to the elderly and infirm. Ms. King filed a class action complaint alleging that W.Va. Choice violated the state’s Minimum Wage and Maximum Hours Standards law by failing to pay her overtime. The circuit court granted summary judgment to W.Va. Choice, finding that W.Va. Choice was not an "employer" under state law. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">When this action was instituted in 2012, the statutory definition of “employer” included the proviso that “the term ‘employer’ shall not include any . . .corporation . . . if eighty percent of the persons employed by him are <b>subject to</b> any federal act relating to minimum wage, maximum hours and overtime compensation.” W.Va. Code § 21-5C-1(e) (emphasis added). </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">This provision was <a href="http://www.bowlesrice.com/email/labor/HB4283_minimumwage/update/05-21-2014/index.html" target="_blank">amended effective January 1, 2015</a>, so that this exception will only apply to the overtime provision of the state law, not the minimum wage and other provisions. Because more than 80 percent of W.Va. Choice's employees are subject to the FLSA, the state law is inapplicable, the circuit court ruled.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">On appeal the W.Va. Supreme Court agreed and affirmed the decision. The plaintiff argued that "subject to" the FLSA meant "entitled to" overtime wages under the federal law. The employer argued that "subject to" meant "governed by or affected by" the federal law, not necessarily entitled to overtime or minimum wage. This distinction is important because employees can be "subject to" the FLSA and yet not receive overtime or minimum wage because they are expressly "exempted from" its effects. Ms. King, for example, was overtime exempt under the FLSA's home health care worker exemption. Other examples of overtime exempt employees include white-collar professionals, executives, and administrators. They are "subject to" the law, but exempt from its overtime provisions.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Justice Loughry, writing the opinion for the court, found that the phrase "subject to" must be given its ordinary, accepted meaning. "The phrase 'subject to' is defined as 'under authority of' and 'governed or affected by,'" he explained. "Conversely, the phrase 'entitled to' is defined as to 'give (someone) a legal right or a just claim to receive . . . something' and 'to give a right . . . to.'” He found that the legislature meant what it said: Employers who have 80 percent or more of their work force "subject to" (governed or affected by) the FLSA are not "employers" under state law, even if some or all of its employees are "exempt" from overtime or minimum wage. "Importantly," the court explained, "the applicability of a particular FLSA exemption does not mean that an employer or an employee is no longer subject to the FLSA."</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The court further held that because W.Va. Choice was a covered "enterprise" under the FLSA all of its employees were "subject to" the federal law. <i>See</i>, <i>Shultz v. Poirier</i>, 300 F.Supp. 1156, 1158 (D.C. La. 1969) (</span><span style="font-family: Arial, Helvetica, sans-serif;">"Under the </span><span style="font-family: Arial, Helvetica, sans-serif;">concept of enterprise coverage, a business that qualifies as a </span><span style="font-family: Arial, Helvetica, sans-serif;">covered enterprise within the meaning of the statute is subject to </span><span style="font-family: Arial, Helvetica, sans-serif;">the [FLSA’s] requirements with respect to all its employees[.]") This clearly satisfies the 80-percent threshold.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Although this opinion was decided under the pre-2014 amendments to the Minimum Wage and Maximum Hours Standards law, it is significant because the new amendments use the same phrase "subject to." The new revisions change the definition of "employer" to this:</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">(e) “Employer” includes the State of West Virginia, its agencies, departments and all its political subdivisions, any individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee; and who employs during any calendar week six or more employees as herein defined in any one separate, distinct and permanent location or business establishment: Provided, That prior to January 1, 2015, the term “employer” shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him or her are subject to any federal act relating to minimum wage, maximum hours and overtime compensation: <b>Provided, however, That after December 31, 2014, <u>for the purposes of section three of this article</u>, the term “employer” shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him or her are subject to any federal act relating to maximum hours and overtime compensation.</b></span></blockquote>
<span style="font-family: Arial, Helvetica, sans-serif;">W.Va. Code § 21-5C-1(e) (2014). So, after December 31, 2014, the term "employer" in the state's <b>overtime provision only (</b>W.Va. Code § 21-5C-3) will continue to mean those very few employers who have more than 6 employees, but <u>do not </u>have 80 percent of their employees "subject to" the FLSA. Any employer who is a covered "enterprise" under the FLSA will not be covered by the state overtime provision, and will continue to pay its employees in accordance with the federal overtime laws.</span><br />
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Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-34184508632731926292014-11-04T09:32:00.001-05:002014-11-04T09:32:22.036-05:00Attempting to flatten your supervisor's tires is "gross misconduct," W.Va. Supreme Court rulesEmployees discharged for "gross misconduct" in West Virginia are disqualified from receiving unemployment benefits. But, proving gross misconduct is tough. The unemployment system is designed to provide benefits to people without jobs. There is a strong presumption that unemployed workers should receive benefits. However, employers will be pleased to learn that the act of casting <a href="http://i.ebayimg.com/00/s/MTIwMFgxNjAw/z/0EEAAMXQAMlRYfUx/$T2eC16F,!zoE9s5nc3GoBRYfUw6EF!~~60_35.JPG" target="_blank">jack rocks</a> into the path of oncoming vehicles carrying management personnel to the workplace constitutes "gross misconduct" in our state, and will disqualify an employee from receiving benefits.<br />
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In <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-1080.html" target="_blank">Alcan Rolled Products Ravenswood, LLC v. McCarthy</a>, No. 13-1080 (W.Va. Supreme Court, Oct. 23, 2014), the employee was picketing along a public road leading to his employer's plant. He was observed casting a jack rock into the lane of travel of a four-vehicle convoy carrying supervisory employees to work. He was discharged for the misconduct and filed a claim for unemployment compensation benefits. His claim was denied by an administrative law judge (ALJ), finding that the misconduct was "gross misconduct," and the Workforce West Virginia Board of Review agreed and affirmed that ruling.<br />
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The employee appealed the case to the Circuit Court of Kanawha County, and the case was reversed. The circuit court noted that the conduct was off duty and off-premises, and that the eyewitness evidence was conflicting. It also found that the act of throwing a jack rock into the path of moving vehicles was not a serious act of misconduct. It noted that if Mr. McCarthy were "guilty of any act, it would be littering of a public road."<br />
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The state supreme court "strenuously disagree[d]." In a signed opinion authored by Justice Loughry, the court explained:<br />
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We conclude that Mr. McCarthy's act of throwing a jack rock into the path of moving vehicles, as determined by the ALJ, rises to the level of seriousness equal to or exceeding those specifically enumerated acts constituting gross misconduct. ... Even if Mr. McCarthy's intent was to simply discourage supervisory employees from traveling to work during the labor strike, his actions were potentially deadly. Had the targeted vehicle hit the jack rock and resulted in a tire blowout, such event could have caused the vehicles in the convoy to wreck as they traveled seriatim. Further, a tire blowout could have caused the driver to lose control of his vehicle and, in turn, potentially caused serious injury either to himself, to the other employees on the picket line that day, or both. The fact that Mr. McCarthy’s coworkers were spared from serious injury does not diminish the gravity of his actions. The misconduct at issue in this case is no less serious than acts that result in damage to an employer’s property, constitute assault to a coworker, or involve the use of drugs or alcohol. ... For the circuit court to find otherwise was in error. </blockquote>
In a new syllabus point, the court confirmed:<br />
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Not every terminated employee is qualified to receive unemployment compensation benefits. An employee discharged for simple misconduct is partially disqualified from receiving such benefits, whereas an employee terminated for gross misconduct is wholly disqualified.</blockquote>
This case is illustrative of how difficult it can be for employers to prove "gross misconduct." This employer was willing to fight the case all the way to the state's highest court, which is a rarity. Many employers would have simply given up. But Alcan hung in there and got the win.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-70091716997376319872014-11-03T15:17:00.002-05:002014-11-03T15:20:11.213-05:00Animal shelter director claiming she was fired for complaining about shelter conditions will have her day in court<div style="background-color: white; font-family: 'arial unicode ms', helvetica, sans-serif; margin-top: 0px; padding-top: 0px;">
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<span style="font-family: 'arial unicode ms', arial, helvetica, sans-serif;">A county animal shelter director who claims she was fired for her Facebook posts about conditions at the shelter will have her day in court on some of her claims, held Judge Keeley of the United States District Court for the Northern District of West Virginia. </span><br />
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<span style="background-color: transparent; font-family: 'arial unicode ms', arial, helvetica, sans-serif;">In <a href="http://scholar.google.com/scholar_case?case=1515246342855605395" target="_blank">Austin v. Preston County Commission</a>, </span><span style="background-color: transparent; font-family: arial unicode ms, arial, helvetica, sans-serif;">No. 1:13-CV-135 (N.D.W.Va. Oct.14, 2014), the director of the Preston County Animal Shelter added a page to her personal Facebook account called "Preston County Animal Shelter." She used the page to post information about the shelter without her employer's approval. After she posted that the shelter lacked adequate heat want water for the animals, the county commissioners' phones lit up with calls from angry voters (did I say voters? I meant "citizens"). The president of the county commission requested an inquiry. The director ignored an instruction by the county administrator to change her Facebook password and turn over her log-in credentials. She claimed the page was her personal page. The director was suspended and ultimately fired for insubordination.</span></div>
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<span style="font-family: arial unicode ms, arial, helvetica, sans-serif;">The director sued, contending she was fired over the content of her Facebook posts, in violation of her First Amendment rights. She also claimed the county wrongfully discharged her for raising concerns about the quality of care at the shelter. The county claimed the director was fired for insubordination, not for her Facebook posts, and moved for summary judgment. </span></div>
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<span style="font-family: arial unicode ms, arial, helvetica, sans-serif;">Judge Keeley granted the county's motion on the director's First Amendment claims, finding that because the director's posts appeared to be written on behalf of the shelter (using words like "we" and "us" rather than "I,") the posts were made not as a private citizen, but in her official capacity as director. "Even after taking the acts in the light most favorable to Austin, it is clear that she was posting on the Shelter Facebook page pursuant to her duties as Shelter Director," Judge Keeley wrote. "Her posts therefore are not protected by the First Amendment. Austin may have set up the Shelter Facebook page as part of her personal account, but it was not used for personal communication."</span></div>
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<span style="font-family: arial unicode ms, arial, helvetica, sans-serif;">But the judge refused to dismiss the the suit completely. Aside from the Facebook posts, the director had sent an email to the commission president regarding a furnace at the shelter that needed repaired. She claimed the email was a report of waste or wrongdoing, and that her termination violated the West Virginia Whistle-Blower Act. </span></div>
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<span style="font-family: arial unicode ms, arial, helvetica, sans-serif;">Judge Keeley found that there were genuine trialworthy issues regarding whether the email was a complaint of misuse of funds substantial enough to constitute “waste,” and whether her termination was motivated by the email. So, the judge denied summary judgment on the non-Facebook portions of the Whistle-blower Act claim. </span></div>
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<span style="font-family: arial unicode ms, arial, helvetica, sans-serif;">The director also claimed that her termination was motivated by an intent to contravene a state public policy to protect animals. Under state law, it is a misdemeanor for a person to withhold food, water, and shelter from an animal intentionally or recklessly. The court found that laws such as these demonstrate a clear, substantial public policy of the state. Because Judge Keeley found disputed material facts regarding the county's motivation for the discharge, and whether the alleged lack of heat and water constituted cruel conditions for the animals in the shelter in contravention of the statute, she refused summary judgment on those claims.</span></div>
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Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-57971915684112472382014-10-31T16:32:00.005-05:002014-10-31T16:32:53.269-05:00City of Charleston properly reduced firefighters' overtime pay, W.Va. Supreme Court rules<span style="color: #333333; font-family: Helvetica Neue, Helvetica, Arial, sans-serif;"><span style="background-color: #fafafa; line-height: 24px;">Public employers have the same right as private employers to modify their employees' pay rates, the West Virginia Supreme Court ruled in <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-1261.html" target="_blank">Boggess v. City of Charleston</a>, No. 13-1261 (W.Va. Supreme Court, Oct. 30, 2014).</span></span><br />
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<span style="color: #333333; font-family: Helvetica Neue, Helvetica, Arial, sans-serif;"><span style="background-color: #fafafa; line-height: 24px;">The plaintiffs were 162 firefighters employed by the City of Charleston who filed a complaint and petition for writ of mandamus in the circuit court, alleging that the City should not be permitted to unilaterally alter its method of calculating overtime pay. The City had previously been paying its firefighters more than necessary under the FLSA's 7(k) exemption for firefighters. It changed its overtime calculation rates in 2011, resulting in a big cost savings for the City. The circuit court granted summary judgment to the City, finding that the change in pay rates was legal. </span></span><br />
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<span style="color: #333333; font-family: Helvetica Neue, Helvetica, Arial, sans-serif;"><span style="background-color: #fafafa; line-height: 24px;">On appeal, the the Supreme Court affirmed, holding, in a new syllabus point:</span></span><br />
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<span style="color: #333333; font-family: Helvetica Neue, Helvetica, Arial, sans-serif;"><span style="background-color: #fafafa; line-height: 24px;">4. In the absence of a contractual obligation providing otherwise, a public employer is permitted to unilaterally modify a longstanding policy affecting the rights of employees where notice is provided to such employees and where the modification of policy does not retroactively impair previously earned and vested rights, such as pension benefits.</span></span></blockquote>
<span style="background-color: #fafafa; color: #333333; font-family: 'Helvetica Neue', Helvetica, Arial, sans-serif; line-height: 24px;">In other words, public employers, like private employers, can change their employees' pay rates, so long as they don't make the changes retroactive and they provide the employees with proper notice of the change. The City of Charleston did both.</span>Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-29998547316159506712014-10-31T09:50:00.001-05:002014-10-31T09:50:18.375-05:00Employment agreements, not statutes, determine when commissions are earned "wages"Some employers may be surprised to learn that they retain complete control over when fringe benefits and commissions are earned "wages" under the West Virginia Wage Payment and Collection Act (WPCA). A case decided yesterday by the West Virginia Supreme Court of Appeals highlights the importance of having clear, unambiguous written commission plans in place.<br />
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In <a href="http://law.justia.com/cases/west-virginia/supreme-court/2014/13-0932.html" target="_blank">Adkins v. American Mine Research, Inc.</a>, No. 13-0932 (W.Va. Supreme Court Oct. 30, 2014), the plaintiff was an an at-will sales representative of AMR who voluntarily resigned after a change in his commission structure. Although the plaintiff had no written commission agreement, he was customarily paid his commissions in the month following shipment of the products he sold.<br />
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In 2008, the plaintiff began selling a new line of safety equipment that couldn't ship immediately because MSHA approval was required. Between 2008 and September 2009, he had sold $15 million of the new equipment. <br />
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In November, 2009, just before the new equipment began shipping, AMR changed the commission structure essentially cutting the plaintiff's commission to a third of what he expected to receive on sales of the tracking systems already made but not yet shipped. He resigned and did not receive the commissions he believed were due by the next regular pay date.<br />
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Plaintiff sued under the WPCA, alleging that upon his resignation, AMR was required to pay him the amounts owing under the pre-November 2009 commission rate structure for items that he sold while that structure was in place.<br />
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The critical question in the case was When were the commissions "earned"? The plaintiff argued that the commission was “earned” when the sale was made; therefore, the rate structure in place at the time of sale was applicable. The employer argued its “custom and practice” of paying petitioner a month after products shipped established that their employment agreement as to the accrual and payment of commissions contemplated that commissions were not “earned” until the product was shipped.<br />
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The circuit court granted summary judgment to the employer, finding that AMR did not violate the WPCA because the unwritten agreement with the plaintiff contemplated that the plaintiff was paid commissions upon shipment of products.<br />
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But "payable" and "earned" are two different concepts.<br />
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So, the Supreme Court reversed, holding that the circuit court improperly focused on when the commissions were paid and therefore incorrectly determined that there were no genuine issues of fact.<br />
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In a new syllabus point, the Court emphasized that the parties' agreement, not the statute, controls when commissions are earned:<br />
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5. The determination as to whether “wages,” as defined in West Virginia Code § 21-5-1(c) (2013 Repl. Vol.), are payable pursuant to the requirements of West Virginia Code § 21-5-1 et seq. (2013 Repl. Vol.) is governed by the terms of the employment agreement, whether written or in the form of a consistently applied unwritten policy.</blockquote>
For those of you who pay commissions, you might be surprised to learn that many courts hold that, absent other agreement, commissions are "earned" when sales orders are accepted by the employer, not when the products ship or when the employer gets paid. So, if an employee terminates after an order is accepted, but before the order ships or the employer gets paid, the commission is "wages" that must be paid by the next regular pay date, even if the order was later canceled after the employee separated.<br />
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But, employers can easily alter this default rule with a clear, unambiguous written commission policy stating that commissions are earned upon shipment of the product, or even upon payment by the customer. According to syllabus point 5, even absent a written agreement, the employer can prove an agreement "in the form of a consistently applied unwritten policy." But, as you might imagine, proving all the terms of an unwritten agreement may be difficult.<br />
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So, here are some takeaways for employers from this case:<br />
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<li>To avoid disputes like this, furnish written commission policies to your commissioned employees;</li>
<li>Define in the policy when the commissions are "earned," not just when they are paid;</li>
<li>Pay out with the final paycheck all commissions "earned" through the date of separation (even if they are not yet payable under the policy);</li>
<li>When a change is made to a commission policy, make it prospective, not retroactive; and</li>
<li>Provide the employee with at least one pay period's written notice of any changes.</li>
</ul>
<br />
The penalty for violating the WPCA is 3 times the untimely paid commission. So, it's best not to take chances with unwritten or ambiguous commission plans.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-66314029227078525452014-10-30T08:49:00.002-05:002014-10-30T08:49:47.557-05:00Teacher's quit was voluntary, says W.Va. Supreme Court<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">A teacher accused of embezzlement who accepted an offer to resign and repay the missing money voluntarily quit her job and was ineligible for unemployment, ruled the West Virginia Supreme Court of Appeals in <a href="http://www.courtswv.gov/supreme-court/docs/fall2014/13-1086.pdf" target="_blank">Webster County Board of Education v. Hanna</a>, No. 13-1086 (Oct. 2, 2014).</span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;"><br /></span>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">This appeal dealt with the "voluntary quit" provision of the West Virginia unemployment compensation statute. The teacher worked for the Webster County Board of Education for over 23 years before resigning in
December 2012. Prior to her resignation, she supervised a student
cookbook fundraiser where $1,005 of the proceeds went missing. </span><span style="font-family: 'Times New Roman', serif; font-size: 12pt;">The Board of Education conducted an investigation into the
matter and alerted the prosecuting attorney's office, who then conducted a separate
investigation. </span><br />
<span style="font-family: 'Times New Roman', serif; font-size: 12pt;"><br /></span>
<span style="font-family: 'Times New Roman', serif; font-size: 12pt;">Upon the claimant's return to work from a two-month sick leave,
she met with the principal and state trooper to discuss the matter. Four days
later, the claimant met with the prosecutor's office and was given the choice
of resigning and paying back the missing funds or being charged with felony
embezzlement. The prosecutor's office indicated that they provided the claimant
with this option because the Board of Education preferred that the claimant
resign rather than be prosecuted.</span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">
<br />
After submitting her resignation, the claimant filed for unemployment
compensation benefits with WorkForce West Virginia. She was found to be
disqualified from receiving benefits by the Administrative Law Judge because
she could have remained employed with the school system had she not voluntarily
resigned. </span><br />
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;"><br /></span>
<span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin;">After the Board of Education prevailed before the Board of Review,
the claimant appealed to the Circuit Court of Kanawha County who reversed the
Board's ruling and held that the claimant quit her employment for good cause
involving fault on the part of the Board of Education. Specifically, the
circuit court found that the claimant acted under duress and her decision was
not voluntary.<br />
<br />
In a unanimous opinion, the Supreme Court reversed the circuit court's order
and reinstated the Board's decision in favor of the Board of Education. The
Supreme Court found that, under the applicable standard of review, WorkForce
West Virginia was not clearly wrong in finding that the claimant voluntarily
resigned her employment without duress. Furthermore, the court noted that such
a determination was an issue of fact, not law. Likewise, the court reasoned
that the Board of Education was under no duty to provide the claimant with an
opportunity to resign in lieu of facing prosecution, and she could have
remained employed had she refused that offer.</span>Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-50294632564528445232013-06-30T13:28:00.002-05:002013-06-30T13:28:50.217-05:00540-pound blackjack dealer not disabled under WV law<span style="font-family: Arial, sans-serif; font-size: 12pt;">A blackjack dealer with morbid obesity, who was fired after being disciplined twice for violating Mardi Gras Casino and Resort's break policy and dress code, could not show that he was disabled
under the West Virginia Human Rights Act (WVHRA). The court affirmed summary judgment in favor of the employer. </span><span style="font-family: Arial, sans-serif;"><i><a href="http://scholar.google.com/scholar_case?case=16748143620814522495">Andrew O. v. Racing Corporation of West Virginia</a></i>, No. 12-1255 (Memorandum Decision) (June 24, 2013).</span><br />
<span style="font-family: Arial, sans-serif;"><br /></span>
<br />
<div class="MsoNormal">
<span style="font-family: Arial, sans-serif; font-size: 12pt;">This memorandum decision is the first case to address whether morbid obesity is a disability under the West Virginia Human Rights Act. In late 2011, the U.S. District Court for the Eastern District of Louisiana bucked a long line of state and federal courts that held obesity (absent some underlying physiological cause) was not a disability. The E.D.La. denied summary judgment to an employer, holding that the 2008 amendments to the ADA (called the "ADAAA") broadened the ADA's definition of "disability" such that severe obesity, even absent an underlying physiological cause, could be considered a disability.</span><i style="background-color: white; color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;"> </i><a href="http://scholar.google.com/scholar_case?case=9565445298045515539&hl=en&as_sdt=2,49" style="background-color: white; color: #6644cc; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;"><i>EEOC v. Resources for Human Dev., Inc.,</i> 827 F.Supp.2d 688, 694 (E.D.La. 2011)</a></div>
<div class="MsoNormal">
<span style="font-family: Arial, sans-serif; font-size: 12pt;"><br /></span></div>
<div class="MsoNormal">
<span style="font-family: Arial, sans-serif;">In 2012, the Montana Supreme Court looked to the ADAAA for guidance in interpreting</span><span style="font-family: Arial, sans-serif;"> its own state law (the Montana Human Rights Act), and held that "[o]</span><span style="background-color: white; color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;">besity that is not the symptom of a physiological disorder or condition may constitute a 'physical or mental impairment' within the meaning of Montana Code Annotated § 49-2-101(19)(a) if the individual's weight is outside 'normal range' and affects 'one or more body systems' as defined in 29 C.F.R. § 1630.2(h)(1) (2011). <a href="http://scholar.google.com/scholar_case?case=7796602769552010172">BNSF Ry. Co. v. Feit</a>, 281 P.3d 255 (Montana 2012)</span><br />
<br /></div>
<div class="MsoNormal">
<span style="font-family: Arial, sans-serif; font-size: 12pt;">The WV Supreme Court, however, refused to apply the ADAAA in interpreting the West Virginia Human Rights Act, holding that "</span><span style="background-color: white; color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;">the circuit court did not err in choosing not to apply federal cases interpreting the ADA or ADAAA to petitioner's WVHRA-based lawsuit." As the court held in </span><a href="http://scholar.google.com/scholar_case?case=5308908163778207093&hl=en&as_sdt=2,49" style="background-color: white; color: #6644cc; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;"><i>Stone v. St. Joseph's Hospital of Parkersburg,</i> 208 W.Va. 91, 106, 538 S.E.2d 389, 404 (2000)</a><span style="background-color: white; color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;"> (footnote omitted) the WVHRA "as created by our Legislature and as applied by our courts and administrative agencies, represents an independent approach to the law of disability discrimination that is not mechanically tied to federal disability discrimination jurisprudence."</span><br />
<span style="background-color: white; color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;"><br /></span>
<span style="color: #222222; font-family: Arial, sans-serif;"><span style="font-size: 15.199999809265137px; line-height: 17.600000381469727px;">This is also the first time I've seen the court refer to a disability discrimination plaintiff by first name and last initial. The court, in footnote 1, wrote that "[t]he Court will address petitioner by his first name and last initial because his medical history is discussed herein." </span></span><span style="color: #222222; font-family: Arial, sans-serif; font-size: 15.199999809265137px; line-height: 17.600000381469727px;">I'm not sure if this signals a new trend or not in disability discrimination cases.</span></div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-91853404224494843782013-06-24T13:17:00.001-05:002013-06-24T13:17:44.817-05:00Supreme Court applies heightened causation standard to Title VII retaliation claimsIn <i>University of Tex. Southwestern Med. Ctr. v. Nassar</i>, No. 12-484 (decided June 24, 2013) (<a href="http://www.supremecourt.gov/opinions/12pdf/12-484_o759.pdf">PDF</a>), the Supreme Court held that "Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action."<br />
<br />
This is a significant victory for employers in this country, who are defending more and more Title VII retaliation claims.<br />
<br />
The Court rejected the "mixed motives" standard, applicable to status-based Title VII claims, that imposes liability where an employer uses race, color, religion, national origin or sex as "a motivating factor for any employment practice, even though other factors also motivated the practice." The mixed motive test is much easier for employees to prove.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-29946450369479032232013-06-24T12:16:00.001-05:002013-06-24T12:16:23.996-05:00Supreme Court chooses narrow definition of supervisor in Title VII cases, resolving circuit split<div class="BodyText">
In <i>Vance v. Ball State University</i>, No. 11-556 (decided June 24, 2013) (<a href="http://www.supremecourt.gov/opinions/12pdf/11-556_11o2.pdf">PDF</a>), the United
States Supreme Court decided a question left open in <i>Burlington Industries, Inc. v. Ellerth</i>, 524 U.S. 742 (1998), and <i>Faragher v.
Boca Raton</i>, 524 U. S. 775 (1998), namely, who qualifies as a “supervisor”
in a case in which an employee asserts any Title IV claim for workplace
harassment?<o:p></o:p></div>
<div class="BodyText">
<br /></div>
<div class="BodyText">
The answer to this question is important because employers
may be strictly liable for harassment by supervisors. Harassment by coworkers who are not
supervisors will only lead to liability for employers who are negligent in
failing to take action calculated to end the harassing behavior, once they
learn of it.<o:p></o:p></div>
<div class="BodyText">
<br /></div>
<div class="BodyText">
Some courts have taken the view that a supervisor must be
empowered to take “tangible employment actions.” A tangible employment action is an action
that effects “a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” <i>Ellerth</i>, supra, at
761.<o:p></o:p></div>
<div class="BodyText">
<br /></div>
<div class="BodyText">
Other courts, including the Fourth Circuit in <i>Whitten v. Fred’s, Inc.</i>, 601 F. 3d 231,
245–247 (4th Cir. 2010), have followed the more expansive definition of
supervisor advocated by the EEOC’s <a href="http://www.eeoc.gov/policy/docs/harassment.html">Enforcement Guidance</a>, which ties supervisor
status to the ability to exercise significant direction over another’s daily
work.<o:p></o:p></div>
<div class="BodyText">
<br /></div>
<div class="BodyText">
In its 5-4 decision, the Court “reject[ed] the nebulous
definition of a ‘supervisor’ advocated in the EEOC Guidance[.]” The Court ruled as follows:</div>
<br />
<blockquote class="tr_bq">
We hold that an employer may be vicariously liable for an
employee’s unlawful harassment only when the employer has empowered that
employee to take tangible employment actions against the victim, <i>i.e.</i>, to
effect a “significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” </blockquote>
Justice Alito wrote the opinion for the majority, which consisted of justices Alito, Roberts, Scalia, Thomas and Kennedy.<br />
<div class="BodyText">
<o:p></o:p></div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-28702417752825341272013-05-20T09:00:00.001-05:002013-05-20T09:12:17.593-05:00Fourth Circuit rules Chapter 13 bankruptcy debtor has standing to sueIn <a href="http://www.ca4.uscourts.gov/Opinions/Published/121573.P.pdf">Wilson v. Dollar General Corp.</a>, No. 12-1573 (4th Cir. May 17, 2013) (PDF), an employee filed a charge of discrimination with the EEOC against his employer, Dollar General Corporation, alleging Dollar General failed to provide a reasonable accommodation for his disability. While the claim was pending, he filed for Chapter 13 bankruptcy and properly listed his ADA claim as an asset. He then filed suit in district court, and Dollar General moved for summary judgment. The district court ruled that the Chapter 13 bankruptcy did not deprive the employee of standing, but ruled against him on the merits.<br />
<br />
In a case of first impression on the bankruptcy standing issue, the Fourth Circuit affirmed, joining five other circuits in ruling that, "unlike a Chapter 7 debtor, a Chapter 13 debtor possesses standing — concurrent with that of the trustee — to maintain a non-bankruptcy cause of action on behalf of the estate."<br />
<br />
Regarding the merits, the court ruled that because the employee could not identify a possible reasonable accommodation that could have been discovered during the interactive process that would have allowed him to perform the essential functions of the job, his ADA claim was properly dismissed on summary judgment.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-72996625097006928972012-09-12T08:17:00.001-05:002012-09-12T08:21:16.414-05:00West Virginia's New Business CourtWest Virginia's court system repeatedly <a href="http://www.wowktv.com/story/19501976/wvs-legal-climate-ranks-last-in-recent-study-us-chamber-institute-for-legal-reform">ranks dead last</a> in surveys about the fairness of states' litigation environments. Yesterday, the West Virginia Supreme Court took a significant step toward changing that perception by <a href="http://www.wvmetronews.com/index.cfm?func=displayfullstory&storyid=54924&type=">creating a new business court division</a>.<br />
<div>
<br /></div>
<div>
The Business Court Division is governed by <a href="http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-2.html#TCR-29">Rule 29 of the West Virginia Trial Court Rules</a>. It is not really a new "court," <i>per se</i>. It is comprised of a panel of current and senior status circuit judges across the state. It will only handle cases between business entities (business vs. business litigation), so its benefits for businesses in the state will be limited. Expressly excluded from the court are cases involving personal injury claims, product liability claims, just about all types of consumer claims, insurance coverage disputes, employment claims, and landlord-tenant disputes. Without such carve-outs, the plaintiff's lawyer lobby would have killed this idea right away.<br />
<br />
According to the State Supreme Court, the goal was to design a Court that focuses on the complex issues that arise in commercial litigation. Parties can file a motion to have their case transferred to the business division, and the Chief Justice of the West Virginia Supreme Court will rule on the transfer motion. Cases handled by the business division will receive expedited treatment, and the presiding judge is charged with making sure "all reasonable efforts" are undertaken to conclude the case within ten months.<br />
<br />
I'm not sure how much this will help our business climate, but it certainly can't hurt.</div>
Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-30112203414727997112012-03-15T14:22:00.001-05:002012-03-15T14:22:21.667-05:00U.S. Senate confirms Groh to U.S. District CourtCongratulations to Berkeley County Circuit Judge Gina Groh who was just <a href="http://www.wvrecord.com/news/242604-u.s.-senate-confirms-groh-to-federal-district-court">confirmed </a>to the federal bench by a 95-2 vote of the United States Senate. Judge Groh will replace the late Judge W. Craig Broadwater who passed away in 2006. Judge Groh will sit in the Martinsburg Division of the U.S. District Court for the Northern District of West Virginia.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-5667664537093612782012-02-28T10:11:00.000-05:002012-02-28T10:11:02.670-05:00W.Va. Supreme Court adopts apex deposition ruleHigh-ranking corporate officials with little or no personal knowledge of the facts of a civil case can be protected from deposition until after less-intrusive discovery options are exhausted, ruled the West Virginia Supreme Court of Appeals in <a href="http://www.courtswv.gov/supreme-court/docs/spring2012/11-1514.pdf">State ex rel. Massachusetts Mutual Life Ins. Co. v. Sanders, No. 11-1514 (Feb. 24, 2012)</a>.<br />
<br />
In a case of first impression, the Court was asked to consider whether a high-ranking corporate official of Massachusetts Mutual Life Insurance Company, who was without any personal or unique knowledge of the facts and circumstances of the case, could be compelled to be deposed, despite the availability of other corporate witnesses and other means of discovery. The Court held that the trial court should have applied the so-called "apex deposition rule" to determine whether a protective order should have been entered.<br />
<br />
In Syllabus Point 3, the court adopted the "apex deposition rule" as follows:<br />
<br />
<blockquote class="tr_bq">3. When a party seeks to depose a high-ranking corporate official and that official (or the corporation) files a motion for protective order to prohibit the deposition accompanied by the official’s affidavit denying any knowledge of relevant facts, the circuit court should first determine whether the party seeking the deposition has demonstrated that the official has any unique or personal knowledge of discoverable information. If the party seeking the deposition cannot show that the official has any unique or personal knowledge of discoverable information, the circuit court should grant the motion for protective order and first require the party seeking the deposition to attempt to obtain the discovery through less intrusive methods. Depending upon the circumstances of the particular case, these methods could include the depositions of lower level corporate employees, as well as interrogatories and requests for production of documents directed to the corporation. After making a good faith effort to obtain the discovery through less intrusive methods, the party seeking the deposition may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, and (2) that the less intrusive methods of discovery are unsatisfactory, insufficient or inadequate. If the party seeking the deposition makes this showing, the circuit court should modify or vacate the protective order as appropriate. As with any deponent, the circuit court retains discretion to restrict the duration, scope and location of the deposition. If the party seeking the deposition fails to make this showing, the trial court should leave the protective order in place.</blockquote><br />
The Court was quick to add that this rule is not blanket prohibition of depositions of high-ranking corporate officials. However, it is a means of ordering discovery to avoid undue burden and harassment of such officials.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-76218219498870533472012-01-24T08:43:00.000-05:002012-01-24T08:43:47.089-05:00Lincoln's Day saves the day for defendant<span style="font-family: inherit;">In <a href="http://scholar.google.com/scholar_case?case=1610905572893287804">Postlewait v. City of Wheeling</a>, the West Virginia Supreme Court confirmed that legal holidays designated in <a href="http://law.justia.com/codes/west-virginia/2010/chapter02/article2/2-2-1.html">W.Va. Code § 2-2-1</a> are "legal holidays" under <a href="http://www.state.wv.us/wvsca/rules/civilproc/II.htm">Rule 6(a)</a> of the West Virginia Rules of Civil Procedure, including "Lincoln's Day." Therefore, they are excluded in calculating deadlines of fewer than 11 days:</span><br />
<blockquote class="tr_bq"><span style="font-family: inherit;"><span style="background-color: white; text-align: left;">The question we must therefore resolve is, does the term "legal holiday" in Rule 6(a) of the </span><i style="background-color: white; text-align: left;">Rules of Civil Procedure</i><span style="background-color: white; text-align: left;"> include "Lincoln's Day" (the Friday after Thanksgiving Day) or any other legal holiday designated by the Legislature in </span><i style="background-color: white; text-align: left;">W.Va. Code,</i><span style="background-color: white; text-align: left;"> 2-2-1? We hold that it does.</span></span></blockquote><span style="font-family: inherit;">In this case, the 18 calendar days between the <span style="background-color: white; text-align: left;">November 19, 2010, judgment order and the December 7, 2010 motion for a new trial were only ten "Rule 6" days due to all of the weekends and holidays. Therefore, the motion for a new trial was timely filed.</span></span>Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-69186847077850084272012-01-12T13:44:00.001-05:002012-01-12T13:50:59.736-05:00Changes to Jurisdiction, Removal and Venue Statutes Now EffectiveOn Wednesday, December 07, 2011, President Obama signed into law <a href="http://www.opencongress.org/bill/112-h394/show">H.R. 394</a>, the "<span style="background-color: #fefefe;">Federal Courts Jurisdiction and Venue Clarification Act of 2011," </span>which amends the statutes dealing with jurisdiction and venue of civil actions in U.S. district courts, including procedures for removal of cases from state courts.<br />
<br />
For Fourth Circuit practitioners, one of the more important changes relates to the 30-day time limit for defendants to remove a case. You may recall there was a split of circuits on the so-called "last served defendant rule." The Fourth Circuit itself was even split on this issue. There were two different opinions in <a href="http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/081740A.P.pdf">Barbour v. Int'l Union United Auto. Aerospace</a>, a 2010 opinion <a href="http://legalweblog.blogspot.com/2010/02/fourth-circuit-adopts-last-served.html#links">adopting the last-served defendant rule</a>, and a later 2011 <i>en banc </i>opinion <a href="http://legalweblog.blogspot.com/2011/01/fourth-circuit-abandons-last-served.html">adopting the "McKinney Intermediate Rule"</a>. No use going into details because this new law settles the question once and for all.<br />
<br />
Under the newly amended 28 U.S.C. 1446(b), <b>each defendant now has 30 days to remove </b>from receipt or service of the initial pleadings. The new 1446(b)(2) reads:<br />
<div style="margin-bottom: 20px; padding-bottom: 0px; padding-left: 0px; padding-right: 0px; padding-top: 0px; text-align: -webkit-auto;"><span style="line-height: 24px; text-align: left;"></span></div><blockquote class="tr_bq">(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.</blockquote><blockquote class="tr_bq">(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.</blockquote><blockquote class="tr_bq">(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.</blockquote>This avoids unfair prejudice to the later-served defendant where an earlier-served defendant blew his deadline.<br />
<br />
The new law also has some other provisions you will want to review. It<br />
<ul><li><span style="font-family: inherit; line-height: 24px; text-align: left;">allows removals in diversity cases beyond one year where </span><span style="line-height: 24px; text-align: left;">the court </span><span style="line-height: 24px; text-align: left;">“finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”</span></li>
<li><span style="line-height: 24px; text-align: left;">adopts a “preponderance of the evidence” standard for proving the amount in controversy and makes some other changes to the amount in controversy proof requirements; and</span></li>
<li style="text-align: left;"><span style="line-height: 24px;">allows removal of cases involving both removable and non-removable claims with required severance and remand of certain non-removable claims; and</span></li>
<li><span style="line-height: 24px; text-align: left;">allows venue changes by consent of all parties</span></li>
</ul>This law does a lot to improve defendants' access to the federal courts.Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.comtag:blogger.com,1999:blog-3457693.post-41188478243154762172012-01-12T09:31:00.000-05:002012-01-12T09:31:15.883-05:00Supreme Court recognizes "ministerial exception" to employment discrimination lawsYesterday, the Supreme Court recognized, for the first time, a “ministerial exception” to employment discrimination laws, holding that churches and other religious organizations are free to choose their ministers without government interference. <a href="http://www.nytimes.com/interactive/2012/01/12/us/12scotus-text.html">Hosanna-Tabor Church v. Equal Employment Opportunity Commission</a>, No. 10-553 (Jan. 11, 2012).<br />
<br />
Writing for the unanimous court, Chief Justice Roberts stated that allowing anti-discrimination lawsuits against religious organizations could force churches to take religious leaders they no longer want.<br />
<br />
"Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs ... By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."<br />
<br />
The Court avoided creating a set of "hard and fast" rules regarding who is a religious employee of a religious organization. "We are reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister ... It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment."Unknownhttps://www.blogger.com/profile/18058860831020190866noreply@blogger.com