*As seen in the July 10th issue of The State Journal.
Unless you do it for living, you likely go through the day without much thought to employment law. Sure, you’ve seen stories about scandalous discrimination lawsuits, and maybe even know someone who has been on one side or the other of a wrongful discharge case. But you work hard and treat those around you fairly -- certainly you will not be involved in a lawsuit, right?
Complying with seemingly countless employment laws and regulations is difficult even in the best of times. But with the “economic crises,” it is more important than ever that you understand your legal obligations. Whether you are the head of Human Resources for a major corporation, operate a small local business, or work for someone else, a host of federal and state laws control your relationship with your employees or your boss.
Unfortunately, there is an inverse relationship between economic conditions and litigation. As the former go down, the latter goes up, often dramatically. Indeed, the Equal Employment Opportunity Commission reported a 15 percent increase in employment claims last year alone, and that number is expected to increase this year. Now seems like a good time to review a few basics of employment law.
West Virginia still follows the doctrine of employment at-will. This means that by default, every private sector employee is at-will, unless of course the relationship is modified (generally by an employment agreement, but occasionally an employer unwittingly alters the relationship with a sloppy employee handbook). Although the at-will doctrine is sometimes viewed as employer friendly, the relationship actually benefits both the employer and the employee because the at-will relationship can be severed at any time by either party for any lawful reason. That means employees can be fired even if they feel they have done nothing wrong, and employers cannot prevent employees from leaving, even without a notice period.
Nonetheless, even in an at-will relationship, the employer's reason for terminating an employee must be lawful. As a practical matter, this means that an employer cannot fire an employee for any reason that either West Virginia or the Federal Government has determined is illegal. The most well-known of these “protected classes” are race, gender, religion, national origin, disability, and age. But the protection extends to all sorts of categories, including workers’ compensation, pregnancy, and military veterans, just to name a few. Employers are also prohibited from taking an “adverse action” against employees for engaging in “protected activities,” or for anything that violates “public policy.” West Virginia does not yet have a whistleblower statute (at least for private employees), but whistleblowers may nonetheless be protected if they are complaining of violations of federal or state law.
Cutting Hours and Overtime
Similarly, without an agreement to the contrary, the law does not prevent an employer from unilaterally cutting an employee's hours (although, under certain circumstances, the WARN Act may require that employees and local governments receive notice). Overtime, however, is slightly more complicated. Most of you are likely aware that the state and federal laws, specifically the Fair Labor Standard Act and the West Virginia Minimum Wage and Maximum Hours Act, require time and one-half for all hours worked over forty in a given week. Also, that certain employees, such as professional, administrative, and executive personnel, are exempt from receiving overtime. What you may not know, however, is that simply placing an employee on salary, or giving the employee an impressive title, does not necessarily make the employee exempt. Instead, the exemptions are based upon the employee's actual duties. Remember, with limited exceptions, that while all exempt employees must be paid a salary, not all salaried employees are exempt; it takes a salary AND exempt duties.
You should also know that private employers cannot give non-exempt employees “comp time” in lieu of overtime (obviously, exempt employees are fine). This is a common, popular, but ultimately illegal, practice. And because FLSA rights cannot be waived, this practice is illegal even if the employees ask for it. Employers who are not careful may find themselves on the wrong end of an extremely expensive lawsuit.
Every employment relationship eventually ends; preferably through retirement, but often through termination. Whenever an employee is involuntarily separated from the workplace the final paycheck must be delivered within 72 hours. Employees who voluntarily resign simply receive their paycheck through the normal pay-channels. If, however, the employee gives more than one pay periods notice -- i.e., payroll is every two weeks, and the employee gives three weeks notice -- the final paycheck must be delivered on the last day of employment. And although it is a common practice, an employer absolutely cannot withhold the final paycheck until the employee returns company property. There is no real defense for missing these deadlines, and by doing so, the employee is entitled to three times what was owed, plus the underlying paycheck, and attorneys fees.