Author Archives: James C. Wright

LEHMAN V. UNITED BANK, INC.: WHAT CONSTITUTES A “LAY-OFF” UNDER THE WAGE PAYMENT AND COLLECTION ACT

The West Virginia Supreme Court of Appeals has just handed-down an opinion reviewing provisions of the Wage Payment and Collection Act (“WPCA”) that all employers will find interesting.  In Lehman v. United Bank, Inc., Number 101486, (November 10, 2011), the Court was faced with reviewing a Circuit Court’s dismissal of a case filed by two former United Bank employees who alleged that they were owed liquidated damages for failure to pay severance pay within the WPCA’s 72-hour window when the employees’ positions were eliminated as a result of a merger.

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WOLFE V. ADKINS: WAGE PAYMENT AND COLLECTION ACT CLARIFIED IN FAVOR OF EMPLOYERS

Every employer and human resource professional with an interest in West Virginia needs to be aware of a recent decision from the West Virginia Supreme Court of Appeals concerning the Wage Payment and Collection Act, W. Va. § 21-5-1, et. seq.   In Wolfe, et al. v. Adkins, et. al., Number 101476 (Sept. 29, 2011), the Court reversed and remanded the case to the Circuit Court of Cabell County, issuing a new syllabus point which provides clarity to a confusing area of law.  Specifically, the issue was whether an employee is entitled to payment of unused, accumulated sick leave upon termination from employment.  Under the WPCA, it has long been held by the Court that the WPCA itself does not define what fringe benefits are “wages” (and thus payable) but, rather, what constitutes wages are determined by the terms of the applicable employment policy.

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OSHA REVAMPS WHISTLEBLOWER PROGRAM

On the heels of a Government Accountability Office (GAO) audit that found “significant problems” with the Occupational Safety and Health Administration’s Whistleblower Protection Program, OSHA recently announced several comprehensive changes to the program all employers should know about.

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“POOR” PENNSYLVANIA: U.S. CHAMBER CASTS A CRITICAL EYE AT THE COMMONWEALTH’S EMPLOYMENT POLICIES

Most interested observers know that the United States Chamber of Commerce consistently ranks the West Virginia legal system, generally speaking, quite poorly for employers.  In fact, West Virginia is usually ranked well below its neighboring states in these studies.  Well, West Virginia may finally have some company in the Chamber’s eyes.

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SPEAK UP IF YOU WANT TO BE A PART OF THE RETALIATION MOVEMENT

Under the Fair Labor Standards Act of 1938 (FLSA), it is illegal for an employer to discharge or discriminate against an employee who “filed any complaint” concerning an alleged violation of the FLSA.  Last week, in Kasten vs. Saint-Gobain Performance Plastics Corp., No. 09-834, the United States Supreme Court once again retaliated against employers by ruling that the “filing” of a complaint does not require the making of a written or documented complaint to trigger the anti-retaliation provisions of the FLSA, but instead includes an “oral” gripe when a reasonable person would have understood the employee to put the employer on notice of a claimed FLSA violation.

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THE MARCELLUS SHALE AND EMPLOYMENT OPPORTUNITIES IN WEST VIRGINIA

All one needs to do to realize that a mini industrial revolution is occurring throughout our tri-state region is to drive on the rural roads that populate the area.  From Williamsport to Waynesburg, Pennsylvania continuing through the Northern Panhandle of West Virginia towards Charleston, small town hotels and restaurants are overflowing with the commerce that has come with the Marcellus Shale activity.  But what industries have been affected by this activity and to what extent?

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PULLING OUT ALL THE STOPS WITH THE EFCA TRAIN STALLED

With the Employee Free Choice Act (ECFA) clearly stalled and not going anywhere in Congress anytime soon, the democratic-controlled National Labor Relations Board (NLRB) is unsurprisingly turning to other avenues in an effort to boost union membership. In doing so, it recently handed a lot of employers a lump of coal in their stockings just in time for Christmas.

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A COMPARATIVE LESSON

Recently, the Supreme Court of Appeals of West Virginia took occasion to hand down an important decision reminding employees in the state that if they are going to sue their employer for “disparate treatment” discrimination, they must demonstrate that a similarly situated person in a non-protected group was actually treated differently.

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MEOW: ‘CAT’S PAW’ LIABILITY TO FINALLY BE SETTLED?

While the United States Supreme Court already has issued a host of employment-related decisions this year – some of which we discussed here, here, here and here – the Nation’s Highest Court will soon issue another, and this time, hopefully settle a deep conflict among the Federal Circuits with respect to an issue that has long divided the employment law community: the so-called “Cat’s Paw” theory of liability.

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