Labor and Employment

The Labor and Employment Law Practice Group represents employers in all aspects of labor, employment, employee benefits, and occupational injury law.  Group labor & employment lawyers routinely help clients address management issues as well as adversarial matters in industries such as energy, manufacturing, education, health care, construction, and natural resources.  

The Steptoe & Johnson Labor and Employment group has been recognized as one of the largest labor and employment law practices in the nation within a multi-service firm and is made up of lawyers and paraprofessionals who each have developed experience in every critical facet of employment law. 

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Alert: Proposed Emergency Regulations Could Change Wage and Hour Landscape For West Virginia Employers
The West Virginia Division of Labor (DOL) has proposed emergency regulations that, if enforced in their present form, could force nearly all West Virginia employers to change, by December 31, 2014, a number of common wage and hour practices that comply with longstanding federal regulations. Although the DOL’s emergency rules purport to adopt vast portions of federal Fair Labor Standards Act (FLSA) regulations, they simultaneously impose several new rules that contradict or otherwise differ from those same federal regulations, particularly as they relate to the determination of what constitutes compensable working time.  If applied broadly, the new rules will require West Virginia employers to depart from FLSA standards in at least the following areas:
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog - September 18, 2014
QUESTIONING AN EMPLOYEE’S FMLA LEAVE? REQUIRE CERTIFICATION. Published By Kaitlin L. HillenbrandAllowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? Click here to read more.MICRO BARGAINING UNITS COMING TO A WORKPLACE NEAR YOU. Published by Lindsay M. Bouffard
Alert: Overtime Pay for Per Diem Employees
Overtime Pay for Per Diem Employees Per diem pay or “day rate” is a common practice in many industries, including the energy industry, and has been characterized as an area of “continued focus” for the U.S. Department of Labor (DOL). Given the DOL’s focus on per diem pay practices and the costly consequences of noncompliance, now is the time to ensure that employees being paid on a per diem basis are being paid correctly. Employers who compensate employees on a day rate or per diem basis should remember:
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog - August 14, 2014
WAGE AND HOUR IMPLICATIONS FOR TELECOMMUTING Published by Joseph U. Leonoro The practice of allowing employees to work from home – telecommuting – is a growing trend. After all, today’s technology allows employees to work from almost anywhere, and telecommuting can be beneficial for both employers and employees. Click here to read more.“WHO WATCHES THE WATCHMEN?” LESSONS FROM COMIC-CONPublished by Vanessa L. GoddardWithin the last week, allegations of harassment at the San Diego Comic-Con were in the forefront of every Vulcan Mind-Meld as Geeks for CONsent petitioned the 45-year old convention for better anti-harassment policies and procedures.
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
EEOC ISSUES UPDATED PREGNANCY DISCRIMINATION GUIDANCE Published by Jami K. SuverOn July 14, 2014, the EEOC issued Updated Enforcement Guidance on Pregnancy Discrimination, as well as a set of Questions and Answers and a Fact Sheet for small businesses related to that Guidance. This is the first comprehensive update to the Commission’s pregnancy discrimination guidance since 1983. Click here to read more.WEST VIRGINIA SUPREME COURT FINDS ADR AGREEMENT IT CAN LIVE WITHPublished by Mark G. Jeffries
Alert: Defending Harassment Claims
Defending Harassment ClaimsIn 2013, the EEOC reported receiving 21,371 charges alleging harassment. The number of harassment charges filed indicates that no employer is immune from such accusations. A well-written, consistently administered harassment policy can greatly improve an employer’s defensibility against harassment claims.An effective harassment policy should contain five essential components:
June 27, 2014 - Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
U.S. SUPREME COURT INVALIDATES OBAMA’S NLRB RECESS APPOINTMENTS Published by Lindsay M. BouffardOn Thursday, June 26, 2014, the U.S. Supreme Court issued its long-awaited ruling in NLRB v. Noel Canning, a case where a soda bottler and distributor challenged an NLRB Enforcement Order and claimed that the Board did not have a requisite quorum of members to issue the Order because three of its members, at the time, had been unconstitutionally appointed. Click here to read more.OUT OF THE WOODWORK AND INTO COURT: EVEN APPLICANTS CAN SUE FOR RETALIATION Published by Julie A. Arbore
Alert: May 28, 2014 - Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
WV’S HIGH COURT UPHOLDS STATE PUBLIC POLICY VIOLATION FOR FIRED EMPLOYEE WHO REFUSED TO RETALIATE AGAINST A CO-WORKER WHO FILED HIS OWN DISCRIMINATION CLAIMPublished by Julie A. ArboreAs West Virginia employers are undoubtedly aware, there is a cause of action in the state commonly known as a “Harless claim” for wrongful discharge when an employee can show that his or her discharge contravenes some substantial public policy of the State of West Virginia. Click here to read more.THE NLRB CONCLUDES THAT COLLEGE FOOTBALL PLAYERS ARE EMPLOYEES UNDER THE NLRAPublished by Todd L. Sarver
Alert: PA Court Determines if Union Trustees Have Standing to File Mechanic’s Lien
In a case before the Pennsylvania Supreme Court, trustees of a trade union attempted to file a mechanic’s lien against the property for a contractor's unpaid contributions to the workers’ health and welfare funds.  What made this case so unusual was that the proposed lien was against property on which the union members worked while employed by a subcontractor.The Court was faced with the question of whether the trustees of union health and welfare plans, to which a construction contractor owed fringe benefit payments, could assert a mechanic’s lien against the property even though its owner already may have fully paid the construction company.
Alert: Beware of Policies Requiring Employees to be 100% Fit for Duty
Beware of Policies Requiring Employees to be 100% Fit for Duty Employees with disabilities pose unique issues for employers, and no two cases are the same. In a recent case, an employee utilized a short-term leave of absence and long-term disability leave for his herniated discs and degenerative disc disease. As he prepared to return to work, the employee claimed that the employer’s no restriction policy demanded that he be 100% fit for duty before his return. The employee claimed that this requirement violated the Americans with Disabilities Act’s reasonable accommodations provision and filed suit against the energy company.
Alert: May 6, 2014 - Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
A Quick Refresher on Joint Employer LiabilityPublished by Lindsay M. BouffardJoint employment is not a concept that every employer is familiar with, probably because it most commonly arises in the contractor setting. Generally speaking, when joint employment is found, it serves to impute liability on a general contractor for the actions of an employee of a subcontractor, based on the idea that the general contractor has sufficient control over the work done by the subcontractor employees. Click here to read more.Appeals Court Rejects EEOC’s Background Checks Lawsuit Published by Mark G. Jeffries
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
There Is A Defense To FMLA Claims. Honest. Published by Julie A. Arbore Imagine this scenario: One of your employees is taking leave under the FMLA. You suspect the employee has misrepresented the state of his or her condition to fraudulently obtain protection under the FMLA and is really using the time off for personal reasons unrelated to any illness or injury. Click here to read more.Ambushed? The NLRB Is In the News – Again Published by Todd L. Sarver
Alert: Defending Discrimination Claims
Defending Discrimination ClaimsThe Equal Employment Opportunity Commission reported that it received over 27,000 charges of sex discrimination in 2013.  The number of discrimination charges filed is a clear indicator that all employers need to be prepared for handling such allegations.  An employer’s first line of defense is, of course, proper documentation.In a recent case, a saleswoman terminated by an energy service company brought a sex discrimination suit against her former employer alleging she was terminated for discriminatory reasons. Her supervisor claimed that he terminated the saleswoman for performance issues.The outcome of this suit will almost certainly be affected by whether the company can produce documents that support its explanation of the termination.
Whitepaper: The Law of Unintended Consequences: West Virginia Legislature’s Minimum Wage Hike May Redefine White Collar Exemptions for State Employers
The minimum wage bill passed by the Legislature during the session’s final hours will have much broader effect than lawmakers may have intended. If the Governor signs the bill into law, it will have far-reaching consequences for West Virginia employers regarding overtime pay, not just the minimum wage.
Alert: WV Minimum Wage Bill May Redefine White Collar Exemptions for State Employers
The minimum wage bill passed by the West Virginia Legislature during the session’s final hours will have much broader effect than lawmakers may have intended.  If the Governor signs the bill into law, it will have far-reaching consequences for West Virginia employers regarding overtime pay, not just the minimum wage. In particular, the bill would force virtually all West Virginia employers to pay overtime based on West Virginia law rather than based on federal law like they currently do. The result would be that employers would have to pay overtime to some employees who are exempt from overtime pay under federal law but not under West Virginia law.
Alert: Ohio Employment Essentials
NLRB Rears Its Head – Again  The National Labor Relations Board is now at full staff – three Democrats and two Republicans – and has begun to act in earnest.  In addition to a litany of pro-union decisions, on February 6, 2014, the NLRB “re-issued” its proposed ambush election rules for notice and comment.  The rules were previously issued on June 22, 2011.  The NLRB adopted a portion of the rules in December 2011, but those were struck down on procedural grounds. With the NLRB at full staff, the procedural issues have likely been cured.  For those who have forgotten (or blocked out) the impact of the ambush election rules, a brief summary:
Alert: Sixth Circuits Finds Joint Employer Liability for Title VII Claim
The Sixth Circuit recently overturned summary judgment for an employer finding that the employer could be liable for discrimination under Title VII based on joint employer liability. EEOC v. Skanska USA Building, Inc., involved a general contractor (Skanska), subcontractor (C-1), and three African-American men employed by the subcontractor.  The employees were subjected to frequent racial slurs and other discriminatory behavior.  The employees complained to the general contractor, but the general contractor did not take any action.  Soon after the job ended, the EEOC filed a race-based hostile work environment suit against the general contractor.
Alert: What Were They Thinking? Sixth Circuit Rules That A Voluntary Transfer is Retaliatory
The Sixth Circuit (Ohio, Kentucky, Tennessee, Michigan) recently ruled that an employee’s voluntary transfer to a different position constituted an adverse employment action for purposes of a discrimination claim. In Deleon v. Kalamazoo Cty. Road Comm’n, the plaintiff applied for the position of "Equipment and Facilities Superintendent."  Plaintiff believed that the position offered him a chance to advance his career, but claimed that he would have asked for a substantial raise to move to the position to compensate for the poor working conditions.  After the person hired for the position quit and another declined the position, the employer transferred the plaintiff to the position without a raise.
Alert: Family Medical History Costs Employer $370,000
As one skilled nursing facility recently discovered, the Genetic Information Nondiscrimination Act (“GINA”) is a growing cause of concern for employers.  The facility, Founders Pavilion, Inc. (“Founders”), required prospective employees to get post-offer, pre-employment physicals.  As part of these physicals, the third-party physician requested family medical history.  The EEOC alleged that Founders violated GINA because the physician gathered genetic information and provided this information to Founders.  Founders paid $370,000 to settle the EEOC discrimination suit.
Alert: NLRB Rears Its Head – Again
The National Labor Relations Board is now at full staff – three Democrats and two Republicans – and has begun to act in earnest.  In addition to a litany of pro-union decisions, on February 6, 2014, the NLRB “re-issued” its proposed ambush election rules for notice and comment.  The rules were previously issued on June 22, 2011.  The NLRB adopted a portion of the rules in December 2011, but those were struck down on procedural grounds. With the NLRB at full staff, the procedural issues have likely been cured.  For those who have forgotten (or blocked out) the impact of the ambush election rules, a brief summary:
Alert: OSHA: Coming to a Drilling Site Near You
OSHA: Coming to a Drilling Site Near You In an effort to reduce fatalities in the oil and gas industry, OSHA (Occupational Safety and Health Administration) created an Oil and Gas Regional Emphasis Program. This program, implemented in 2012, applies to all worksites in Texas, among other states. Similar programs have been implemented in other regions. One drilling company faces proposed penalties of $50,000 after OSHA cited it for numerous safety and health violations involving a variety of hazards. OSHA inspected its Texas work site as part of this program. During the inspection, OSHA inspectors found workers at risk of potential injuries from preventable workplace hazards such as unsecured stairs and missing guardrails, electrical deficiencies, and poor housekeeping.
Alert: FMLA Misstep Proves Costly to Energy Employer
FMLA Misstep Proves Costly to Energy Employer
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
New v. Gamestop, Inc. D/B/A Gamestop: New Hope for Arbitration AgreementsPublished by Joseph U. Leonoro There has been a trend among employers to adopt mandatory arbitration agreements. For many employers, arbitration is preferred to civil litigation because the process is usually faster and, as a result, tends to be less expensive. In part, this increased use of mandatory arbitration agreements can be attributed to a series of recent decisions by the United States Supreme Court that have reaffirmed the validity of arbitration agreements. Click here to read more.Image Issues? A Proper Dress Code Can Fix That Published by Vanessa L. Goddard
Alert: Here's What's Trending on Steptoe & Johnson's Employment Essentials Blog
Must Accommodations Under The ADA Go Beyond Essential Job Functions?Published by Martin J. SaundersAs regular readers of this blog know, the Equal Employment Opportunity Commission’s focus on disability discrimination – and the circumstances under which a reasonable accommodation of a disability needs to be made – has been in the news several times in 2013. While the question of whether leave is a reasonable accommodation may be the one we hear about the most, employers frequently get unusual or unique accommodation requests. Click here to read more.Model COBRA Election Notice Revised To Reflect ADA ProvisionsPublished by Sara E. Hauptfuehrer
Alert: Employers Can't Shorten the Statute of Limitations for FLSA and EPA Claims
Employers Can't Shorten the Statute of Limitations for FLSA and EPA Claims Observant employers who have taken note of the Department of Labor’s increasing enforcement activity in the oil and gas industry may be looking for creative ways to limit their liability. However, a recent Sixth Circuit case makes it clear that trying to shorten employees’ time to bring wage and hour claims may not be the way to go.
Overtime Issues Troubling the Energy Sector
Overtime Issues Troubling the Energy Sector As a result of the expansion of oil and gas activities in the region and the increasing jobs associated with the expansion, the Department of Labor has been stepping up its enforcement initiative for oil and gas companies and related businesses. Because of this, it has become more important than ever to ensure that employees are being paid overtime properly. Here are a few issues that often arise with calculating overtime pay.
Alert: Energy Employers Face Increased Enforcement Activities
Representatives of the West Virginia Department of Labor (WVDOL) have begun visiting drilling sites in the state to make sure that all people receiving 1099 income are registered to do business in West Virginia, as required by law.If not registered, businesses may be subject to fines if they are doing business without registration. The WVDOL will be checking to see if the project managers, who are responsible for construction of various phases of the drilling site, are both registered to do business and have their West Virginia contractor’s licenses. To get a license, individuals are required to sit for an exam.
Alert: Ohio Employment Essentials - September 2013
Employees Can’t Waive Statute of Limitations for FLSA and Equal Pay Act Claims
Alert: Sixth Circuit Affirms Micro-Bargaining Units
On August 15, 2013, the Sixth Circuit Court of Appeals affirmed the National Labor Relations Board’s (NLRB’s) Specialty Healthcare, 357 NLRB No. 83 (2011) decision.  This decision allows unions to organize employees by classification and makes it extremely difficult for employers to challenge the union’s petitioned-for “micro-units.”  This decision applies to employers across all sectors of the economy. 
Alert: All Five NLRB Nominations Confirmed by the Senate
It has been an eventful year for the NLRB.  The U.S. Senate recently confirmed all five nominees to the National Labor Relations Board, which brings the agency back to its full capacity for the first time in over a decade.  The Board now consists of Chairman Mark Gaston Pearce (D), and members Kent Hirozawa (D), Nancy Schiffer (D), Harry Johnson III (R), and Philip Miscimarra (R).  Employers should anticipate an active Board.  The Senate confirmations ensure that the Board is validly appointed and can issue decisions without concern that they’ll be challenged for lack of quorum.   In addition to its current backlog of cases, now that the Board is properly constituted, expect it to take back up its proposed “quickie election” rules.  
Alert: Sixth Circuit Upholds Employer’s FMLA Call-In Policy
The Sixth Circuit recently upheld an employee’s termination because the employee did not follow the employer’s policy for calling in FMLA absences.  In Srouder v. Dana Light Axle Manufacturing, No. 12-5835 (6th Cir., Aug. 7, 2013), an employer terminated an employee who did not show up to work for two days and did not call the employer’s call-in line.  This termination adhered to the employer’s policy which provided that an individual who did not report to work for two or more days and who had not called in would be considered to have voluntarily quit.  The employee claimed that the employer interfered with his use of FMLA leave asserting that he had explained to the employer that he would need to miss work for an upcoming surgery.  In affirming the termination, the Sixth Circuit noted that 29 C.F.R.
Alert: Employees Can’t Waive Statute of Limitations for FLSA and Equal Pay Act Claims
While employers can shorten the statute of limitations for Title VII claims through an employment agreement, such an employment term will not withstand an employee’s FLSA or Equal Pay Act (EPA) claim.  The Sixth Circuit recently decided Boaz v. FedEx Customer Information Services, Inc et al., No. 12-5319 (6th Cir., Aug.
Webinar: July 2013 Webcast Presentation - Wage and Hour Claims in the Energy Industry
Why should you worry about wage and hour compliance and Department of Labor Audits? Errors in compliance with state wage and hour laws and the Fair Labor Standards Act are frequent and the cost of fines and penalties are staggering.As a result of the expansion of shale gas activities in the region and the increasing number of oil and gas jobs, the Department of Labor (“DOL”) has increased its enforcement efforts under the federal Fair Labor Standards Act (“FLSA”) in Pennsylvania, Ohio and West Virginia. The DOL believes that up to 80% of employers are not in compliance with the FLSA and the Wage and Hour Division has announced a multiyear enforcement initiative focused on oil and gas companies and related businesses such as tree clearing, quarries, road construction, paving, masonry, and water and stone hauling.
Alert: Ohio Employment Essentials May 2013
STEPTOE & JOHNSON Ohio Employment EssentialsMay 2013No Good Deed Goes Unpunished -- Light Duty NOT A Right Under the FMLA: Todd L. SarverThe Seventh Circuit recently held that an employee does not have a right to “light duty” work under the Family & Medical Leave Act.  The employee had suffered a previous eye injury and had to have corrective surgery.  The employee took his 12 weeks of leave under the FMLA, as well as additional job-protected leave under the employer’s collective bargaining agreement.  At various times during his leave, he was released by his doctor to work “light duty” or otherwise released with restrictions. The nature of the restrictions, however, were never very clear. 
Alert: No Good Deed Goes Unpunished -- Light Duty NOT A Right Under the FMLA
The Seventh Circuit recently held that an employee does not have a right to “light duty” work under the Family & Medical Leave Act.  The employee had suffered a previous eye injury and had to have corrective surgery.  The employee took his 12 weeks of leave under the FMLA, as well as additional job-protected leave under the employer’s collective bargaining agreement.  At various times during his leave, he was released by his doctor to work “light duty” or otherwise released with restrictions. The nature of the restrictions, however, were never very clear. 
Alert: Paid Sick Leave?
Congress periodically considers legislation that would provide for paid sick leave rather than the current 12 weeks of unpaid leave available under the FMLA.  The U.S. Senate is currently considering another iteration of the Healthy Families Act which would provide employees with up to 56 hours of paid leave per year for an employee’s own physical or mental illness, injury, or medical condition, as well as for victims of domestic violence, sexual assault, or stalking.  It also includes leave for the care of child, parent, spouse, domestic partner, or any other blood relative or person whose affinity with the employee is that of a relative.  The legislation would apply to employers with 15 or more employees.  Stay tuned for any material developments. 
Alert: The Status of the NLRB and its March Toward Shut Down
On April 9, the President nominated three individuals to the National Labor Relations Board:  Mark Gaston Pearce (D), the current Chairman whose term expires August 27, 2013; Harry Johnson (R); and Phillip Miscimarra (R).  These three nominees join the pending nominations of Sharon Block (D) and Richard Griffin (D), the now infamous unconstitutional recess appointments.  Republicans have expressed reservations about confirming the currently unconstitutional appointments.  Indeed, rather than confirming, the Republicans are calling upon them to resign.
Alert: Summer Interns Aren’t Free Employees
With summer fast approaching, it’s time for employers to start thinking about their summer internship programs.  A little preparation on the front end can help employers ensure summer interns are properly classified and minimize exposure to wage claims. The Fair Labor Standards Act (FLSA) provides that employees must be compensated for their work, but interns are excluded from the FLSA’s provisions, including minimum wage and overtime requirements, if six criteria are met:
Alert: Calling Employees on FMLA Leave
When would an employer want to call an employee on leave?  Think about when an employee leaves behind some loose ends before taking an FMLA leave that is weeks or months long.  Is it ok to call that employee with a job-related question? As with most legal questions, there is not a simple answer.  The Northern District of Ohio recently provided some guidance stating that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”  However, such contact has to be “limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments.”  Vess v. Scott Medical Corporation (N.D.
Alert: Parents Can Take FMLA Leave to Care for Adult Children
The DOL has recently issued guidance allowing parents to take up to twelve weeks of unpaid leave within a 12-month period to care for an adult “son or daughter” with a serious health condition.  The child’s age at the time the disability develops is irrelevant.  A child above the age  of 18, regardless of the onset of disability, may be considered a “son or daughter” if four requirements are met: 
Alert: Veganism = Religion? Ohio Court Thinks So
An Ohio federal court recently refused to dismiss a case brought by a former hospital employee claiming religious discrimination for being vegan.  Sakile Chenzira, a customer service representative for Cincinnati Children’s Hospital, requested a religious accommodation that would exclude her from having to get the flu vaccine.  The hospital refused to exempt Chenzira and fired her for refusing the flu vaccination, which contained animal byproducts. 
Alert: Are Your Handbooks And Policies Outdated?
With the rash of decisions issued by the NLRB, if you have not reviewed or updated your workplace policies or handbooks in the past three months, they are most likely outdated.  Policy topics that are frequently unlawful as currently drafted: 
Alert: The NLRB Has Been A Busy Little Bee
The National Labor Relations Board (NLRB) has been very busy overturning precedent and trying to implement a pro-labor agenda.  Notwithstanding a ruling by the D.C. Court of Appeals on January 25, 2013 that President Obama’s recess appointments to the NLRB are unconstitutional, the NLRB has promised business as usual (at least until the Supreme Court addresses the issue).  This is not a good omen for employers.   The following are some of the more prominent (ominous) decisions recently: 
Alert: Ohio Employment Essentials
Ohio Employment Essentials March 2013 THE NLRB HAS BEEN A BUSY LITTLE BEE   The National Labor Relations Board (NLRB) has been very busy overturning precedent and trying to implement a pro-labor agenda.  Notwithstanding a ruling by the D.C. Court of Appeals on January 25, 2013 that President Obama’s recess appointments to the NLRB are unconstitutional, the NLRB has promised business as usual (at least until the Supreme Court addresses the issue).  This is not a good omen for employers.   The following are some of the more prominent (ominous) decisions recently: 
Alert: Wage and Hour Alert for Energy Industry
On Wednesday, November 14, 2012, Department of Labor (DOL) Investigator Diana Smargie spoke to the North Central WV Society for Human Resource Management (SHRM) chapter. Smargie made a number of points during her talk, one of which she was careful to highlight. As part of its 2013 enforcement initiative, the DOL will be targeting small energy producers and oil and gas service providers.  As Smargie put it, a lot of people in the industry have come up through the ranks being paid wrong, so when they are in a position to pay employees themselves, they really do not know how to pay properly and they violate the wage and hour law.So what are the chief issues she sees?  Her top three problems:
Alert: Employers’ Rights Affirmed
Following significant reforms to West Virginia’s workers’ compensation system in 2003 and 2005, insured employers benefitted from statutory changes that granted them the right to review claims in which awards of permanent total disability benefits had been made. This review process allowed insured employers to determine if workers who had been granted such awards previously remained qualified recipients of the benefits. This grant of authority from the legislature remained relatively unused since the revisions to the Workers’ Compensation Act because of a lack of interpretation from the Supreme Court of Appeals. A decision entered just this week, however, is likely to change that lack of use.
Webinar: June 2012 - Webcast Presentation - Employment in Ohio: 10 Things Energy Developers Should Know
To watch and listen to a recording of this webcast, CLICK HERE.June 2012 - Energy Keynote Webcast Employment in Ohio: 10 Things Energy Developers Should KnowOhio, like all states, has its own particular nuances on employment law that affect employers. In order to effectively operate in the State, you need to know the lay of the land. You will be guided through employment law issues unique to business operations in Ohio. In this webcast, Toney Stroud and Todd Sarver will discuss employment law issues that affect energy developers doing business in the Utica Shale. Discussion includes:
Webinar: November 2011 - Webcast Slides - MSHA Citation Defense - An Operator's Guide
MSHA Citation Defense - An Operator's GuideUnderstanding and handling MSHA citations and petitions can be a tedious task. Steptoe & Johnson attorneys have excellent insight into MSHA and how to handle citations and will share some of this knowledge with you this month. This webcast will address the litigation process of MSHA citations and petitions, how the negotiation process works with a Department of Labor attorney, and will give you tips as to what you can do at the time of inspections/citations to help your attorneys defend you. Discussion included: The litigation process of MSHA citations and petitions Update on the backlog project Demonstration of the negotiation process Your defense: what you can do to help    
Video: Return to Work Issues in West Virginia
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Video: Deliberate Intent in West Virginia
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Video: 5 Tips for Making a Union Organizer's Job Tougher
VIDEO TRANSCRIPTHi, my name is Jack Merinar and I’m a labor lawyer with Steptoe & Johnson.  If you’re watching this video, it’s probably because at some point you had a concern about union organizing.  Today, I’m going to share with you five tips that I think make a union organizer’s job more difficult. 
Alert: Change is Coming to Your Health Plan
Health Care Reform Reaches Beyond your Health Plan In the last seven months, employers have been flooded with information regarding the changes required in health plans to comply with the Patient Protection and Affordable Care Act ("PPACA"), as amended by the Health Care and Education Reconciliation Act of 2010 ("HCERA"). Even as you work with insurers, third-party administrators, and/or human resources professionals to address health plan changes, we cannot overlook the need for changes to other types of plans. This Client Update will briefly highlight certain amendments that may be needed by year's end to a cafeteria plan or health flexible spending account plan ("Health FSA").
Alert: HR Risks for Corporate Political Action
Changes in Corporate Political Activity Laws Present HR Risk
Alert: Pennsylvania Ups the Ante on Employee Misclassification
Have employees in Pennsylvania? Reading this alert could save you thousands in fines. Proper classification of workers as employees or independent contractors is an issue which frequently confronts employers, especially those with operations in Pennsylvania.Effective February 1, 2011, Pennsylvania increased the price employers in the construction industry might be required to pay for misclassification of workers.
Alert: PA Labor & Employment Tips - Pre-Hire Reminders
Welcome to the first edition of PA labor and employment tips. Over the next few months, we will feature focused labor & employment tips and reminders useful to companies with operations in the Commonwealth.To kick off our series, we will look at two factors important in the pre-hire process.
Alert: WV Legislature Considers Changes to Workers' Compensation System
As the 2012 legislative session moves forward, two bills affecting workers' compensation remain up for consideration, including:  
Alert: Pennsylvania Labor and Employment Tips II
Welcome to the Second Edition of PA Labor & Employment TipsIn our first issue we discussed two factors important in the pre-hire process. If you missed the first edition of this series, please feel free to visit PA Labor & Employment Tips.Today, I will give a brief overview of a number of post-employment, protected leaves of absence which can be problematic for employers, including:
Alert: Pennsylvania Labor and Employment Tips III
Welcome to the Third Edition of PA Labor & Employment TipsPayment of Wages:In this edition of the Pennsylvania Labor update, we will take a look at the basic requirements for payment of wages in PA. While many of these points may seem like ?old hat? to long-time employers, it is important to periodically review the basics in order to avoid the stringent costs associated with wage payment actions in the Commonwealth. Points to remember include:Time Worked:
Alert: OSHA's West Virginia "No-Notice" Campaign: What You Need to Know
According to media reports, the federal Occupational Safety and Health Administration (OSHA) is launching what it calls a "no-notice" campaign in West Virginia this summer. OSHA indicated that this campaign is designed to reduce construction injuries and deaths.
Alert: Out Of State Employers Need To Know Ohio Workers' Compensation System Is Different
Many new out-of-state employers entering Ohio as a result of the developments in the oil and gas industry are unsuspectingly operating without proper workers' compensation coverage. Without the proper coverage from the Ohio State Insurance Fund, these employers are at risk of being non-complying employers and subject to significant liability for any non-complying claims.Steptoe & Johnson has been contacted by Kevin R. Abrams, Chief of Employer Services for the Bureau of Workers' Compensation, to discuss their concern for workers' compensation coverage for out-of-state employers.Click here to read the entire alert.

Representative Experience

  • Defended healthcare client against violations of wage and hour laws, including class actions
  • Counseled clients on the development of legally sustainable post-offer-of-employment and return to work medical fitness for duty guidelines, including use of prescribed medications among commercial vehicle operators and sudden incapacitation of employees in safety sensitive positions
  • Represented employers in union representation elections; unfair labor practice changes, collective bargaining negotiations; employee grievance arbitrations; age, sex, and race discrimination claims before the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission; alleged violations of the Fair Labor Standards Act; counseling in employment-related matters including the Family and Medical Leave Act, the Americans with Disabilities Act, the Fair Labor Standards Act, reductions in force, hiring and terminations, handbooks and policies; unemployment and harassment litigation; and conducts workforce and supervisor training in employment-related matters
  • Managed campaigns in opposition to union representation elections
  • Acted as a member of the bargaining team and/or chief negotiator for clients in collective bargaining negotiations with nealy every major labor union in the tri-state area
  • Represented employers in employee grievance arbitrations
  • Defended employers on unfair labor practice charges
  • Defended employers in age, sex, race and handicap discrimination claims
  • Provided advice on and in the defense of wage and hour claims
  • Provided advice on state and federal labor statutes
  • Advised and strategized on work stoppages, plant closures strike misconduct, handbilling, picketing, unemployment compensation, hiring replacement workers, lockout issues, and general employment issues
  • Defends employers in claims involving employment discrimination, harassment, retaliatory discharge, Americans with Disabilities Act (ADA) and Family Medical Leave Act (FMLA),  before state and federal courts, the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission
  • Drafted drug-free workplace and testing policy for a large state agency
  • Drafted employers' position statements for discrimination and harassment claims before the EEOC and West Virginia Human Rights Commission
  • Defended large state agency in employment-related grievances before the West Virginia Public Employees' Grievance Board
  • Handled appeals to circuit court from administrative tribunals
  • Ceased the distribution of defamatory communication concerning small business owner
  • Counseled public and private employers concerning a variety of state and federal employment laws, including the ADA, FMLA, FLSA, OWBPA, NLRA, Title VII and the WVHRA
  • Provided legal analysis related to claims brought under the National Labor Relations Act, ADA, FMLA, and Title VII
  • Drafted and finalized the employee handbook and drug-free workplace policy for mining company
  • Represented major health care company in collective bargaining negotiations for renewal of collective bargaining agreement
  • Drafted employee benefit plans to correspond with employers' desires to offer retirement, health insurance, tuition reimbursement and other benefits
  • Advised and trained employees of non-profit corporation on compliance with healthcare laws, corporate policies and records management
  • Pursued numerous summary judgment motions for employers in a variety of employment disputes
  • Jury trial on behalf of long term care facility against claim of wrongful discharge related to allegations of improper and fraudulent documentation
  • Counseled Maryland and Pennsylvania resorts regarding personnel issues
  • Filed numerous summary judgment motions in a variety of employment disputes
  • Wrote the summary judgment and appellate briefs for a municipal client's defense of wage and hour claims by several employees, resulting in near seven-figure savings for public employer
  • Assisted in representation of hospital in collective bargaining negotiations
  • Experienced in defending employers in discrimination, retaliation, and harassment claims under the West Virginia Human Rights Act, Title VII, 42 U.S.C. § 1981, ADA, FMLA, FLSA, and ADEA, wrongful discharge claims, deliberate intent actions, unemployment compensation appeals, and both individual and collective actions under the West Virginia Wage Payment & Collection Act
  • Represented employers in over 25 collective bargaining negotiations, including first contracts, renewals, successor and effects negotiations
  • Obtained more than 25 injunctions for illegal strike misconduct
  • Provide day-to-day advice on employment issues from hiring to firing
  • Extensive briefing of summary judgment motion in disability discrimination case
  • Represented employers in workplace safety litigation, including serious injury and death claims
  • Defended discrimination claims of race, gender, age, disability, religion and national origin in state and federal courts as well as claims brought before the EEOC and state human rights agencies
  • Reviewed, negotiated and drafted complex contracts for publicly-traded and private corporations
  • Engaged in collective bargaining on behalf of employers where considerable focus was placed on the question of how to allocate the costs of health care between employers and employees
  • Defended numerous cases of employment discrimination before the Human Rights Commission on behalf of large hospitals as well as other employers
  • Defended environmental contractor in claim alleging work-related death
  • Defended major utility company against petition to enforce arbitration award
  • Represented clients in labor and employment litigation in state and federal courts
  • Defended health care facility in a race and national origin discrimination case through completion of jury trial
  • Advised and trained public employers on compliance with federal and state employment laws
  • Assisted construction industry contractors with picketing issues
  • Represented employers in wrongful discharge cases brought under state and federal anti-discrimination laws
  • Represented midsize and Fortune 500 companies in federal, state, and administrative cases of discrimination, wage and hour violations, sexual harassment, unemployment and related compensation claims, and wrongful and constructive discharge issues
  • Sought summary judgment for a large truck stop chain in federal district court in which the plaintiff claimed fraud in the inducement
  • Provided diversity and harassment training for both management and non-management employees
  • Defended discrimination suits under federal and state laws in the telecommunications, retail, publishing, printing, electric utility, banking, hotel and mining equipment industries
  • Regularly handles employment-related grievances filed under the WV Public Employees Grievance Procedure
  • Defended employers in wage payment and collection and retaliation claims
  • Represented client in response to NLRA election petition filed by steelworkers, a recognition strike, related litigation, and negotiation of the first collective bargaining agreement
  • Defended boards of education in negligence, wrongful hiring and supervision, and due process claims in both state and federal courts
  • Advised clients regarding the structuring and implementation of policies and procedures to foster compliance with various regulatory frameworks
  • Represented employer in jury trial in which the plaintiff alleged that his termination was unlawful due to disability discrimination
  • Sought injunctive relief for international manufacturing company to abate union strike activity
  • Drafted numerous summary judgment motions and motions to dismiss for employers, corporate clients and insurance carriers on a variety of claims
  • Managed substantial documentation in complex deliberate intent matter for a major energy client
  • Advised health care clients regarding discipline of employees who failed to comply with reporting requirements
  • Represented employers before the West Virginia Human Rights Commission in response to claims for age, disability, gender, race, national origin discrimination and retaliation
  • Represented employers in claims before the West Virginia Human Rights Commission
  • Drafted post-arbitration brief on behalf of employer defending against claim of terminating union employee without cause
  • Represented employers in state and federal court in claims for discrimination and retaliation under the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the West Virginia Workers' Compensation Act, the West Virginia Human Rights Act, the West Virginia Patient Safety Act, and Harless claims for retaliation
  • Defended newspapers in defamation claims
  • Assisted in representation of manufacturer in FMLA discrimination and retaliation claims in federal court
  • Jury trial for a large chemical manufacturing company in a case brought by seven women alleging sex discrimination
  • Drafted and revised numerous employment policies and personnel handbooks
  • Defended employer in a Maryland OSHA case involving a bridge collapse
  • Arbitrated wrongful termination claims for employer
  • Defended client against twenty-three FLSA actions
  • Experienced in drafting employee handbooks and policies
  • Represented employer filing unfair labor practice charge against union for failure to bargain in a successor situation
  • Challenged National Labor Relations Board's bargaining order against nursing home when labor board changed the size of the bargaining unit after the union election
  • Negotiated over fifty labor contracts in a variety of industries while maintaining sound relationships with a number of adversaries, including the Teamsters (IBT), Steelworkers (USWA), Electrical Workers (IBEW), Chemical Workers (ICWU), Paperworkers (PACE), Brick and Glass Workers (AFGWU), Service Employees (SEIU) and Food and Commercial Workers (UFCW) unions, all without a work stoppage
  • Represented employers in wage and hour disputes
  • Served as primary outside labor and employment counsel to a major natural gas utility
  • Sought injunctive relief and damages for violation of non-compete and non-solicitation agreements
  • Obtained a TRO in a suit to enforce a non-compete agreement on behalf of a software company
  • Handled multiple deliberate intent claims relating to injuries of deep and surface miners
  • Defended client in ERISA action brought by plaintiff alleging violations of severance entitlement and denial of benefits following plant closing
  • Guided employers' efforts to remain union free, and where necessary, to respond to union organizing attempts
  • Resolved unfair labor practice charges and defended employers in numerous arbitration cases in a variety of industries
  • Represented national companies, local businesses, non-profits, and government agencies in claims for breach of contract, deliberate intent, intentional infliction of emotional distress, malicious prosecution, false arrest, and invasion of privacy
  • Developed drug testing policies and provided drug-free workplace training for both management and non-management employees
  • Defended employer in a request for a TRO in a trade secret and breach of loyalty case against employees in the political consulting industry
  • Assisted clients in Department of Labor investigations
  • Defended several coal companies in employment class actions
  • Advised clients in response to crises events in the workplace
  • Sought summary judgment in ADA claim brought by employee alleging discriminatory discharge
  • Sought dismissal for an employer in unfair labor practice charges filed with the NLRB alleging that decision not to hire was based on anti-union bias
  • Drafted employee policies and procedures, employment agreements, and independent contractor agreements
  • Counseled financial institution in termination of senior level executive
  • Advised clients regarding potential discharge and other employment scenarios
  • Defended numerous coal operators in wrongful discharge and other employment-related cases
  • Sought summary judgment for national retail chain in race harassment/retaliation lawsuit
  • Drafted affirmative action plans for several government contractors
  • Counseled employers on all aspects of the employment relationships
  • Assisted employers and executives in negotiating employment contracts, non-competition agreements, separation agreements, and severance agreements
  • Assisted several coal operators in putting in place meaningful contractor indemnity/insurance agreements
  • Represented client against union pension fund that levied multi-million dollar contribution assessment
  • Handles internal employment-related investigations
  • Handled several unfair labor practice charges before the National Labor Relations Board
  • Defended employers in unfair labor practice charge litigation before the NLRB
  • Represented employers and executives in bonus, severance and other compensation disputes
  • Represented multiple employers in unfair labor practice proceedings, labor negotiations, and strikes
  • Counseled public and private employers concerning all aspects of the employment relationship
  • Helped employers defeat union organizing campaigns
  • Represented employers in over 50 representation proceedings including decertifications, unit clarifications and deauthorization petitions
  • Represented a Fortune 500 gas transmission company in an unfair labor practice charge concerning company's response to a union request for information
  • Negotiated numerous collective bargaining agreements in the manufacturing, steel, trucking, hotel and publishing industries
  • Represented and counseled multiple employers on labor issues in bankruptcy
  • Advised and counseled multiple employers on labor, employment and WARN issues in merger and acquisition transactions
  • Represented and advised multiple clients regarding proper employee classification under the FLSA, including auditing positions and payroll data
  • Assisted a regional manufacturer with a reduction in force at operations in four states
  • Represented and advised multiple clients regarding proper classification of contractors vs. employees, including unemployment proceedings regarding independent contractors
  • Negotiated the severance of the CEO of a large manufacturer
  • Represented large company in national class action challenging exempt status of certain employees
  • Defended a coal company from a seven-figure contract claim over liability for Coal Act obligations
  • Represented clients in investigations/audits by the Department of Labor
  • Advised employers engaged in strike contingency planning
  • Helped federal prosecutors by investigating picket line violence, including murder
  • Represented large company in national class action lawsuit challenging exempt status of certain employees
  • Represented employers in a variety of account-related matters, including issues of classification, ratemaking and premium issues
  • Represented client against union pension fund that levied multi-million dollar assessment
  • Helped control mass picketing and violence through court litigation in state and federal courts
  • Negotiated labor agreements with a number of different unions
  • Argued over 20 cases to the West Virginia State Supreme Court of Appeals, the United States Court of Appeals for the Fourth Circuit and the New York Court of Appeals
  • Tried over 30 wrongful discharge cases in state and federal courts throughout the region
  • Provided many training sessions to employees of clients on various HR topics, including EEO matters, harassment, documentation, investigations, hiring and interviewing, and factors to consider before firing

100

Steptoe & Johnson PLLC is a U.S. energy firm with core strengths in labor & employment, litigation and transactional law. In 2013, Steptoe & Johnson celebrated 100 years of helping clients reach their goals.

 

Did you know?

Face-to-Face Client Interviews

25+ face-to-face client interviews are conducted every year by our CEO and firm management to learn how we can do better (so please give us an earful).

Leaders in our Field

Steptoe & Johnson was the first firm to successfully secure regulatory approval for a multi-lateral Utica shale well.

15 Offices Throughout the U.S.

15 offices throughout Colorado, Kentucky, Ohio, Pennsylvania, Texas and West Virginia.

One Firm

Ours is a client-of-the-firm culture, service model and compensation system that matches the best talent to the assignment and puts your economic interest ahead of ours.

Leaders in our Field

22 of us are ranked as “Leaders in their Field” by Chambers USA.

10.5 Years

equals the average tenure of our client relationship. We'd like to be in it for the long haul with you too.