Latest / WCHS Network Podcasts / 02/05/2026 Ask the Lawyer with Tom Peyton

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02/05/2026 Ask the Lawyer with Tom Peyton · WCHS Network Podcasts

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  Speaker 1: The views and opinions expressed on this program do not
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  Speaker 1: necessarily reflect the views and opinions of five eighty whs
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  Speaker 1: it's employees or WVRC Media.
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  Speaker 2: O Courts.
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  Speaker 3: Oh created equal Well Mass, come here in a Kate
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  Speaker 3: can Rob Spaw.
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  Speaker 1: Welcome to Thursday morning. You're listening to ask the lawyer.
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  Speaker 1: Tom Payton is here from the Payton Law from taking
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  Speaker 1: your calls. Threes are a four three four five fifty
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  Speaker 1: eight fifty eight three four five fifty eight fifty eight.
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  Speaker 1: Time to put the power of patent on your side
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  Speaker 1: this morning it has asked the lawyer every Thursday at
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  Speaker 1: eight twenty Right here on five eight w c HS
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  Speaker 1: Tom Payton, good morning, How you doing this morning?
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  Speaker 4: I'm doing great? How are you? Dale Man?
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  Speaker 1: I'm doing okay. It's uh, you know, I might be
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  Speaker 1: able to see the horizon above the so no, I
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  Speaker 1: don't know.
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  Speaker 4: Hopefully it hased to be like sixty next week.
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  Speaker 1: So hopefully we finally get some of that melt that
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  Speaker 1: reminds me so much of living in Michigan. I don't
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  Speaker 1: really have an experience that down here much since I
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  Speaker 1: came back in twenty ten. But you know, you get
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  Speaker 1: one snowfall that kind of lingers for several weeks, or
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  Speaker 1: I mean in Michigan sometimes you would get it in
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  Speaker 1: November and it would be there until April, with the
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  Speaker 1: piles of snow at the end of the parking lots
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  Speaker 1: and stuff.
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  Speaker 3: Yeah, you never get used to the ice and the
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  Speaker 3: snow that's piled up, and it creates all kinds of
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  Speaker 3: problems for school. Can't walk on the sidewalks. But the
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  Speaker 3: temperature is kind of relative. Your body will adjust pretty quickly.
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  Speaker 3: When we first started getting this, really after that ice,
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  Speaker 3: what was supposed to be the storm of this decade,
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  Speaker 3: that turned into, at least in Putnam County, mostly ice
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  Speaker 3: and a dusting. I think weekend before last, you know,
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  Speaker 3: it was in the teens or single digits. I was
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  Speaker 3: bundled up just as much as I could, and then
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  Speaker 3: by the end of the week, your body gets used
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  Speaker 3: to it, just wearing a hoodie and pants. It's kind
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  Speaker 3: of funny that night when we went regular fishing up
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  Speaker 3: in Way North Canada. I mean, like I've seen snow
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  Speaker 3: in August. We're so far up there, but you get
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  Speaker 3: in the boat in the morning and I've got layers
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  Speaker 3: upon layers on just riding a boat across the lake
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  Speaker 3: and I think it was only probably like forty five degrees,
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  Speaker 3: but we'd come from eighty five degree weather and here's
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  Speaker 3: the guide running the boat with a T shirt on right,
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  Speaker 3: taking me feel pretty pretty wimpy at that point. But yeah,
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  Speaker 3: this will get better. That's a good thing about West
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  Speaker 3: Virginia and living here. You do have the seasons and
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  Speaker 3: it makes spring that much better. So there's lights in
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  Speaker 3: the tunnel that to get better. We're still staying busy
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  Speaker 3: at Peyton Law Firm. We've had people come in this
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  Speaker 3: week and last week we kind of left off. We
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  Speaker 3: were talking about the activities in Minnesota and the and
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  Speaker 3: the protesters and the Ice agents and the Border Patrol
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  Speaker 3: agents and love if I was reading a jury instruction,
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  Speaker 3: which they don't have it with me today. That basically
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  Speaker 3: the gist of it is, you I can't think of
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  Speaker 3: any circumstance what I'd ever recommend somebody resist law if
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  Speaker 3: you know their law enforcement and they're just trying to
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  Speaker 3: detain or arrest you. The universal legal advice is don't
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  Speaker 3: resist period, because you place yourself. I'm talking about risk
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  Speaker 3: necessary of death or serious bodily harm, but certainly there's
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  Speaker 3: some risk of that when you resist law enforcement, whether
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  Speaker 3: you have a firearm in your waistband, legally in your
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  Speaker 3: waistband or not. But if there is a criminal charge
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  Speaker 3: against you after you resist for the purpose of escaping, it,
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  Speaker 3: actually it's a self defense defense when you go to trial.
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  Speaker 3: And I've never had one of those cases where the
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  Speaker 3: facts applied. The case I was reading last week was
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  Speaker 3: actually where a judge gave that jury instruction to a
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  Speaker 3: jury when I thought the defendant, really, I mean, he
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  Speaker 3: was resisting when he clearly was subject to a lawful arrest.
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  Speaker 3: It's not a defense to defend yourself against a law
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  Speaker 3: enforcement agent for the purpose of escape when it's attempting
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  Speaker 3: to make a lawful arrest. And then what's unlawful and
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  Speaker 3: then you get into definitions of that. But there are defenses.
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  Speaker 3: And then I had a question about that after last week.
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  Speaker 1: Yeah, it's a little clarification that because one of the
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  Speaker 1: things I was warning about and all these stories that
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  Speaker 1: you're hearing and things like that, and this has intersected
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  Speaker 1: my life the past of my life was several people
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  Speaker 1: I've known, so I've heard some one on one anecdotes
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  Speaker 1: from some folks that I know and so forth. And
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  Speaker 1: the one thing that I wondered, like what we were
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  Speaker 1: talking about last week and this and uh, you know,
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  Speaker 1: you never recommend any sort of of of you know,
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  Speaker 1: resisting arrest. However, if someone is I mean we law
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  Speaker 1: enforcement officers, but if you're part of a division that
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  Speaker 1: doesn't enforce law but a specific thing, and you know
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  Speaker 1: without question that you are not that specific thing. So example,
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  Speaker 1: if it's someone who is an greation enforcement officer who's
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  Speaker 1: telling you, you know, uh, who's making assertions to you
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  Speaker 1: that that you may not be a resident, and you are,
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  Speaker 1: without questioning a legal resident or a natural or whatever
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  Speaker 1: it might be in here, like you have absolutely no
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  Speaker 1: authority over me at this point, that I haven't broken
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  Speaker 1: any law that you can enforce. I mean, that's a
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  Speaker 1: that's a problem.
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  Speaker 3: So the case in West Virginia was a state trooper
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  Speaker 3: and that's an easy one because that you know, you know,
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  Speaker 3: that's a legitimate.
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  Speaker 1: Right, yeah, that law.
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  Speaker 3: Yes, Now, the lines get blurred a bit when you
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  Speaker 3: have you know, unconventional and quote enforcement officers who wear
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  Speaker 3: masks won't identify themselves. Not just anecdotal information, but you know,
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  Speaker 3: routinely they're detaining or arresting people with no due process
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  Speaker 3: of law, no hearing or not prompt hearings where you
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  Speaker 3: go before some neutral member of the judiciary or even
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  Speaker 3: administrative judge, you know, the and some of those. I
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  Speaker 3: mean due process doesn't necessarily require anyt doesn't require a
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  Speaker 3: jury trial, you know, certainly not at the beginning, and
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  Speaker 3: in a lot of in immigration, there's no jury trial
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  Speaker 3: on immigration issues related to deporting. But you will have
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  Speaker 3: situations kind of like you're referencing, where like there's misidentification,
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  Speaker 3: and that's why you need to have when somebody's held
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  Speaker 3: by the government against their will, those quick hearings or
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  Speaker 3: appearance before some.
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  Speaker 4: Neutral magistrate.
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  Speaker 3: That can weigh basically weed out frivolous type charges because
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  Speaker 3: they got the wrong person or they know some other
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  Speaker 3: problem with it. That's pretty clear. It shows detention is improper.
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  Speaker 3: And when you don't have that even first level of
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  Speaker 3: due process, you run into problems like like we've seen
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  Speaker 3: and then I don't know, you know, we don't know
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  Speaker 3: how some of these ian you know, let's say an
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  Speaker 3: ICE agent goes to in the alex Pretty case, it
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  Speaker 3: was a woman that was being shoved to the ground
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  Speaker 3: on the ice, and then I guess pepper sprayed by
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  Speaker 3: the ice age a man and you it was she
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  Speaker 3: resisting or not? I mean, if they would have they
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  Speaker 3: charged her with resisting arrest or obstructing or something. I
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  Speaker 3: don't know what she was doing before that. And if
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  Speaker 3: you know, obstructing is a little more, it's got elements
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  Speaker 3: in it can be complicated. It's it's generally very difficult
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  Speaker 3: to convict someone of obstructing law enforcement if the primary
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  Speaker 3: or maybe sole basis of the obstructing charge is something
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  Speaker 3: they said or a noise they're making. It's all factual
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  Speaker 3: dependent on the situation. But like there is a litany
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  Speaker 3: of cases that stand for the proposition that a person.
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  Speaker 4: Can yell.
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  Speaker 3: Derogatory comments at law enforcement, and that cannot be alone
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  Speaker 3: the basis for an obstructing charge because you have your
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  Speaker 3: First Amendment, Trump's the criminal obstructing statutes. So we never
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  Speaker 3: really got to see how I haven't seen all those
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  Speaker 3: have played out in an actual court. If somebody like
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  Speaker 3: in that woman's position was s targed with obstructing, is
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  Speaker 3: blowing a whistle in the street to alert the public
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  Speaker 3: where ice is? Is that obstructing or is that something
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  Speaker 3: that's protected by the First Amendment.
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  Speaker 4: I don't know.
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  Speaker 3: I haven't seen that case. Now, you know, if ice
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  Speaker 3: is just driving down the street, they're not trying to
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  Speaker 3: make our arrest, and somebody stands in the public road
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  Speaker 3: as part.
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  Speaker 4: Of a protest, is that protected by the First Amendment.
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  Speaker 4: I don't know.
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  Speaker 3: We'll have to I haven't seen those play out yet.
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  Speaker 3: It'll be interesting to see. Now they're going to arrest
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  Speaker 3: somebody and you interfere with it, I mean, you know,
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  Speaker 3: help a person escape or jumping between them while they're
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  Speaker 3: legitimately making arrest. I think you're probably you're putting yourself
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  Speaker 3: at risk and that's probably obstructing. Now what they do
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  Speaker 3: to arrest you and detain you in their particular behavior,
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  Speaker 3: that's subject to other issues, but you certainly could be
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  Speaker 3: charged with obstructing if you're interfering with an actual, legitimate
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  Speaker 3: investigation and arrest.
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  Speaker 1: We have a caller that's called on the line who's
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  Speaker 1: been on hold. I believe is this Dawn. You're on
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  Speaker 1: the air.
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  Speaker 5: Yes, Hey, I have a question, but this is a
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  Speaker 5: labor question pertaining to pay I hope this is kind
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  Speaker 5: of in your field a little bit.
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  Speaker 3: Maybe yeah, I've done some wage an hour law over
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  Speaker 3: the years. Well, what's your question. You'll give it a shot.
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  Speaker 5: Okay, I belong to a union and we are paid
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  Speaker 5: time and a half over eight every day. It's over eight,
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  Speaker 5: it's not just over forty. So we can work ten
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  Speaker 5: hours a day Monday through Thursday and that gets us
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  Speaker 5: to forty plus. We also get our time and a
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  Speaker 5: half for each day we went over eight hours. Well Friday,
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  Speaker 5: they work a straight time and tell us we're not
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  Speaker 5: entitled to time and a half even though we're over forty.
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  Speaker 5: And I thought I read where that over time at
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  Speaker 5: least one and a half times your normal rate to
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  Speaker 5: pay over forty cannot be negotiated away by labor or
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  Speaker 5: by management. Is that true or not?
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  Speaker 4: Well? Over forty right, right, I got you.
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  Speaker 3: So, I haven't done work on, you know, regarding collective
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  Speaker 3: bargaining agreements except to when they relate back to a
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  Speaker 3: wrongful discharge claim or something like that. So as far
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  Speaker 3: as what is legal to collectively bargain, I'm not one
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  Speaker 3: hundred percent sure about that. I can't answer that now.
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  Speaker 3: I can tell you the conventional let's set that aside. Then,
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  Speaker 3: under the wage in hour laws. It's forty hours a week,
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  Speaker 3: and anything beyond forty hours in the week is to
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  Speaker 3: be paid time and a half.
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  Speaker 4: And if you're.
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  Speaker 3: A non exempt employee, meaning you're just a hourly type employee,
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  Speaker 3: then I don't believe that can be waived. Yeah, and
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  Speaker 3: there's so that's my understanding. Now, Now you can be
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  Speaker 3: if you make over a certain threshold amount, which I
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  Speaker 3: don't recall what that is right now because there's been
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  Speaker 3: different administrations on the federal level that have proposed raising
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  Speaker 3: that and then it gets pulled back. It was around
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  Speaker 3: thirty nine thousand dollars. I think it may be more
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  Speaker 3: than that, and now they tried to raise it, and
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  Speaker 3: I think the new administration did not put the minim
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  Speaker 3: in effect.
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  Speaker 4: But anyway, if you.
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  Speaker 3: Make at least that amount, and then you kind of
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  Speaker 3: think of it as a you've got kind of a
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  Speaker 3: professional level job, then you could be salaried. Now, if
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  Speaker 3: you're salaried, you can you just get your job done
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  Speaker 3: within the parameters your employer gives you. But there's no
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  Speaker 3: You might get paid one hundred thousand dollars a year
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  Speaker 3: and one week you work sixty hours a week, and
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  Speaker 3: another week you work forty hours a week.
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  Speaker 4: And there's no overtime there.
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  Speaker 3: Now that you can then what a person is exempt
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  Speaker 3: as a salary employee so they don't get over time,
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  Speaker 3: a minimum wage, or whether they were miscategorized as that
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  Speaker 3: type of employee. That's subject to litigation too, and it's
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  Speaker 3: a fact specific. I've had those cases where somebody's miscategorized
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  Speaker 3: as a salary employee when they shouldn't have been salary
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  Speaker 3: because their job doesn't have enough autonomy, so to speak,
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  Speaker 3: to be a salary employee. And then when you're salaried,
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  Speaker 3: there's actually a calculation can go in the Department of Labor.
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  Speaker 3: It's got a formula there. You've got to go back
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  Speaker 3: and try and reconstitute how many hours this person worked
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  Speaker 3: and divide it by their pay. It would they even
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  Speaker 3: make a minimum wage, that's the first thing. And then
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  Speaker 3: if they were working one than fourty hours a week,
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  Speaker 3: you've got to go figure out an hourly rate and
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  Speaker 3: then argue that they should have been getting time and
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  Speaker 3: a half that rate for all the hours worked over forty.
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  Speaker 3: So if you've got an issue like that, keep now
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  Speaker 3: you can go generally, I get involved in those keys
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  Speaker 3: and when once there's separation from employment. So somebody stopped
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  Speaker 3: working either been discharged or resigned or something, and then
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  Speaker 3: there's a dispute over what wages are due, and there's
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  Speaker 3: some there's some helpful laws to the employee in that
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  Speaker 3: regard with lawyer's fees and used to be triple damages.
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  Speaker 3: I think it's double now, but those are I've handled
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  Speaker 3: a good many of those over the years. They're viable cases.
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  Speaker 3: But if you're still working and you want to have
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  Speaker 3: it addressed, you can go to the state I think
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  Speaker 3: it's the Division of Labor or the Feds. It takes
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  Speaker 3: them a while, but you can file a complaint there,
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  Speaker 3: and once you do that, you generally are It doesn't
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  Speaker 3: mean you won't get weird looks or ostracized at the workplace,
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  Speaker 3: but you basically get protected status that they are not
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  Speaker 3: to retal your employers, not to retaliate against you with
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  Speaker 3: adverse employment conditions if you make that kind of report.
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  Speaker 3: So you can contact the Division of Labor and now opener,
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  Speaker 3: we no investigated if there's as long as it's not
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  Speaker 3: frienvolu as, they screen them out, make sure's some good
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  Speaker 3: calls for it, and they'll go look at the employers
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  Speaker 3: records and things like that, So it could be something
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  Speaker 3: in the collective bargaining agreement that's permitted in that regard.
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  Speaker 3: Don I don't know about that, but conventional wage and
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  Speaker 3: hour laws as I understand them and in the cases
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  Speaker 3: i've handled, Yeah, anything over forty hours for a regular
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  Speaker 3: hourly employee has to be paid at time and a
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  Speaker 3: half and they have to be paid minimum wage.
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  Speaker 5: Yes, well, can you just call the labor board and
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  Speaker 5: ask them without file and a complaint.
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  Speaker 4: Or I think so.
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  Speaker 3: I've never done that because I always come in after
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  Speaker 3: maybe it's been a lot of folks will call me
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  Speaker 3: to handle the cases because it's taken too long for
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  Speaker 3: the Divisional Labor to answer it.
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  Speaker 4: But yeah, I think they'll probably give you.
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  Speaker 3: Some information. You can check the website. They have frequently
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  Speaker 3: asked questions on there, on the Divisional Labor and the
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  Speaker 3: Federal Department of Labor. But you can give it a try,
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  Speaker 3: you know. Most I think they'll probably give you some
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  Speaker 3: informal advice because they do, I mean, they need to
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  Speaker 3: screen out legitimate issues versus ones that they don't want
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  Speaker 3: to spend their resources on. So yeah, reach out to
• 16:14
  Speaker 3: those entities and see if you can get some information there.
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  Speaker 5: Okay, all right, well, thank you very much. I appreciate
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  Speaker 5: your time.
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  Speaker 4: Yeah.
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  Speaker 3: And then if you are a member of a union,
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  Speaker 3: which there's not that many anymore, you know you can
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  Speaker 3: Normally there'll be a grievance procedure and you would have
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  Speaker 3: an advocate, and I don't if you have a collective
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  Speaker 3: bargaining agreement, generally you have to use the lawyer. That's
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  Speaker 3: that's the union rep lawyer, not a private attorney that
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  Speaker 3: you hire. And so that's why I don't get involved
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  Speaker 3: in those very often unless there's something outside the collective
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  Speaker 3: bargaining agreement we're arguing about, like there's a discrimination issue
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  Speaker 3: at work or a wrongful discharge based on something else.
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  Speaker 3: But yeah, take advantage of your grievance procedure if you can.
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  Speaker 3: I think unions are generally pretty good. Actually, most of
• 16:59
  Speaker 3: my clients can playing that they don't do enough for
• 17:01
  Speaker 3: them and their their reps don't take aggressive enough action.
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  Speaker 4: But it's it's.
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  Speaker 3: A way to provide the employees some leverage so they
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  Speaker 3: can bargain as a group because they are otherwise they
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  Speaker 3: don't have The employer has all the leverage, and then
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  Speaker 3: those negotiations if you can't join together and bargain your
• 17:24
  Speaker 3: terms of employment as a as a large collective group.
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  Speaker 5: Well, thank you again for your time. I appreciate it
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  Speaker 5: and the information will is helpful.
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  Speaker 1: Okay, thanks, Don really appreciate your time. Don, thank you
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  Speaker 1: very much. That leaves a line open. Three zero four
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  Speaker 1: three four five fifty eight fifty eight three four five
• 17:37
  Speaker 1: fifty to fifty eight. Tell you what, Let's go ahead
• 17:38
  Speaker 1: and get our bak out of the way. Then we
• 17:39
  Speaker 1: don't have to worry about it for the remainder of
• 17:41
  Speaker 1: the program. If you want to get in and talk
• 17:42
  Speaker 1: to Tom Payton about anything about the topics we opened
• 17:45
  Speaker 1: up the show with, or something else that's spent on
• 17:47
  Speaker 1: your mind. You want to put the power of petal
• 17:48
  Speaker 1: on your side, give us call this morning three zero
• 17:50
  Speaker 1: four three four five fifty eight fifty eight. I have
• 17:52
  Speaker 1: the text the machine open in front of me as
• 17:53
  Speaker 1: well if you want to send us a text. Threes
• 17:55
  Speaker 1: are a four non three five five zeros or eight
• 17:57
  Speaker 1: threes are a four non three five five zero zero eight.
• 17:58
  Speaker 1: We'll take a break and b backcraft this. You're listening
• 18:00
  Speaker 1: to ask the Lawyer with Tom Peyton from the Peyton
• 18:02
  Speaker 1: Law Firm Pathanlawfirm dot Com. We'll be back after this.
• 18:05
  Speaker 1: On five adwchs The Boys to Charleston.
• 18:07
  Speaker 2: If you've been injured, you need a lawyer who knows
• 18:09
  Speaker 2: West Virginia because they live in West Virginia. Tom and
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  Speaker 2: Harvey Peyton were born and raised here. They've spent decades
• 18:17
  Speaker 2: fighting for injury victims, and they know how to get results.
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  Speaker 2: At the Peyton Law Firm, you get straight talk, strong representation,
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  Speaker 1: Twenty minutes until the top of the hour. You're listening
• 19:25
  Speaker 1: to ask the lawyer. Tom Payton is in studio with
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• 19:57
  Speaker 3: That it was a good call by Dawn. We don't talk
• 20:00
  Speaker 3: about that. You know, we've we've had some success over
• 20:03
  Speaker 3: the years doing employment law related issues almost exclusively on
• 20:09
  Speaker 3: behalf of the employee and wage an hour issues normally
• 20:15
  Speaker 3: after separation from employment. But it's kind of you get
• 20:18
  Speaker 3: a decent number of calls. People call and you know
• 20:21
  Speaker 3: West Virginia, well they call and an employee and they're
• 20:26
  Speaker 3: they're upset because their employer let them go for a
• 20:28
  Speaker 3: reason that's not a good reason in the employee's mind,
• 20:32
  Speaker 3: like maybe they were even accused of some mouthfeasons at work,
• 20:37
  Speaker 3: but it turns out that they weren't the ones that
• 20:40
  Speaker 3: did it, or it was a mistake on a time clock,
• 20:43
  Speaker 3: they really weren't entering time where they weren't working, or
• 20:45
  Speaker 3: something like that. And absent having a contract of employment
• 20:52
  Speaker 3: that has particular terms, which is what a collective bargain
• 20:55
  Speaker 3: agreement essentially is. It's a it's an agreement, you know,
• 20:59
  Speaker 3: where you're union representatives have negotiated terms of employment for
• 21:04
  Speaker 3: all of the employees and it's governed by that agreement.
• 21:09
  Speaker 3: So it's like a contract you have. Those are your
• 21:11
  Speaker 3: rights as far as employment, and of course you can
• 21:14
  Speaker 3: have an employment contract, but most conventional employees, even salary ones,
• 21:21
  Speaker 3: don't have an employment contract. Sometimes you have an employee
• 21:24
  Speaker 3: handbook that might give you some rights for internal appeal
• 21:29
  Speaker 3: of a bad decision by an employer, but most people
• 21:33
  Speaker 3: must viniar are what they call at will employees. So
• 21:37
  Speaker 3: it's very frustrating when I have to tell for them,
• 21:40
  Speaker 3: you know, well, yeah, you you really didn't feel that
• 21:43
  Speaker 3: drug test because you got a confirmation it was clean.
• 21:46
  Speaker 3: Or it turns out even though they thought you did
• 21:50
  Speaker 3: something wrong and you didn't do anything wrong, and they
• 21:52
  Speaker 3: still let you go. Normally and they are exceptions, then
• 21:59
  Speaker 3: that's not a longful discharge case because you're an at
• 22:02
  Speaker 3: will employee. So your employer can let you go for
• 22:07
  Speaker 3: a good, valid reason or a bad reason that you're
• 22:11
  Speaker 3: an at will employee. So now there are things that
• 22:16
  Speaker 3: are prohibited motivations for employers, and in letting you go,
• 22:20
  Speaker 3: you know, letting somebody go based on race, gender, disability,
• 22:30
  Speaker 3: whistleblower type situations, that's a little gray. In the private sector,
• 22:36
  Speaker 3: I would say the law still is generally that if
• 22:38
  Speaker 3: you like the wage an hour call we just had,
• 22:41
  Speaker 3: So if Dawn calls and I get some informal advice,
• 22:45
  Speaker 3: but then goes ahead and files a complaint and then
• 22:48
  Speaker 3: the Department Labor sends an investigator in. They want all
• 22:50
  Speaker 3: to pay records and things like that because he reported
• 22:55
  Speaker 3: in good faith, didn't make something up. That's a different.
• 22:58
  Speaker 3: If you're reporting frivolous things to administrative agencies causing your
• 23:03
  Speaker 3: employer trouble, then you're not protected. But if you make
• 23:06
  Speaker 3: a good faith complaint to an outside agency, like governmental agency,
• 23:12
  Speaker 3: about wrongdoing, generally you're protected from retaliation. So your employer
• 23:18
  Speaker 3: if they say, well, now, don you know, he came
• 23:23
  Speaker 3: in five minutes late, so he's fired after he makes
• 23:29
  Speaker 3: the complaint to the Department of Labor. Well, people come,
• 23:32
  Speaker 3: I've come in five minutes late one hundred times over
• 23:35
  Speaker 3: the five years I've worked here, and so does Suzy
• 23:37
  Speaker 3: Q and John Doe, and nothing happened to them.
• 23:41
  Speaker 4: You see where I'm going.
• 23:42
  Speaker 3: So that's how you built you know, is that excuse
• 23:46
  Speaker 3: by the employer what they call pretext. It's just a
• 23:50
  Speaker 3: fabricated reason to discharge down when really they're upset that
• 23:56
  Speaker 3: he filed the Department of Labor claims. So you have
• 23:59
  Speaker 3: someections in that regard. Then if you're a public employe,
• 24:03
  Speaker 3: it's difference government. There's some other whistleblower statutes that provide
• 24:06
  Speaker 3: some extra protections. But but it doesn't hurt to call
• 24:12
  Speaker 3: if you feel like you've been uh, call our email
• 24:15
  Speaker 3: us if you feel like you've been discharged wrongfully. But
• 24:17
  Speaker 3: a lot of times I'm fortunately have to give people
• 24:20
  Speaker 3: that information which is not satisfactory to them, and I
• 24:24
  Speaker 3: tell them we'll go back and talk to your employer.
• 24:26
  Speaker 3: If you were a good employee and really didn't do
• 24:30
  Speaker 3: what they thought you did caused your discharge, then you know,
• 24:35
  Speaker 3: good business person would take you back. You know, if
• 24:37
  Speaker 3: you're a valuable employee, go talk to your employer and see.
• 24:40
  Speaker 3: And you know, every there's small employers, larger employers, everything's
• 24:44
  Speaker 3: everything's different, but it and normally you're entitled to unemployment
• 24:51
  Speaker 3: even if you did something that wasn't that was maybe
• 24:56
  Speaker 3: inappropriate at work, or were a little bit late, unless
• 24:59
  Speaker 3: you warned before in writing that if it happens again,
• 25:02
  Speaker 3: you'll be discharged, or unless you commit gross misconduct at work,
• 25:08
  Speaker 3: which is you know, there's a certain things that stealing
• 25:11
  Speaker 3: and things like that, then normally you're entitled to unemployment
• 25:17
  Speaker 3: one way or another. If you just kind of a
• 25:20
  Speaker 3: run of the mill negligent type thing at work, then
• 25:22
  Speaker 3: you'll get full unemployment benefits. But if it's if it's misconduct,
• 25:28
  Speaker 3: if it's simple misconduct, you get a little delay in
• 25:30
  Speaker 3: your benefits, but if it's gross misconduct, then you don't
• 25:33
  Speaker 3: get unemployment benefits, which is a different matter, completely separate
• 25:37
  Speaker 3: from a wrongful discharge case.
• 25:41
  Speaker 1: It's really interesting, and this is another reason why you
• 25:44
  Speaker 1: should put the power of payton, an attorney or something
• 25:46
  Speaker 1: on your side if you have issues in this space
• 25:48
  Speaker 1: and you're not sure, because what seems like it could
• 25:51
  Speaker 1: be And from an employer perspective, I've sitt in before.
• 25:53
  Speaker 1: I've worked for a company where I've had to sit
• 25:55
  Speaker 1: in a and basically like an arbitration meeting between a
• 25:58
  Speaker 1: union representative where I was on the management side of things,
• 26:01
  Speaker 1: and then I had an employee that had a had
• 26:04
  Speaker 1: a complaint fout against against her, And so we were
• 26:07
  Speaker 1: in this meeting talking about this, and my employee kept
• 26:10
  Speaker 1: on bringing up the handbook, and the union representative kept saying,
• 26:14
  Speaker 1: if we went back through all the employees that's worked
• 26:17
  Speaker 1: for you, uh, would we see that you have referenced
• 26:20
  Speaker 1: the handbook the same amount of times with all employees
• 26:22
  Speaker 1: as you have mine now over this period of time
• 26:25
  Speaker 1: and what and frankly, the lady that worked for me,
• 26:27
  Speaker 1: she was an assistant manager for me that worked at
• 26:29
  Speaker 1: a satellite location. She was frankly in the wrong. She
• 26:32
  Speaker 1: she did the wrong thing here and she was trying
• 26:33
  Speaker 1: to fall back on our basically our training, like this
• 26:36
  Speaker 1: is your handbook, this is what we're supposed to do,
• 26:38
  Speaker 1: which all would have worked fine if she treated everybody equally,
• 26:40
  Speaker 1: you know, because because then you do have that employee
• 26:42
  Speaker 1: that handbook that you go buy and everything else. But
• 26:44
  Speaker 1: she didn't do that with She picked favorites and that
• 26:46
  Speaker 1: was a lot. That was a big trouble for her
• 26:48
  Speaker 1: and she had we had to wind her way out
• 26:50
  Speaker 1: of that. But you you really have to be aware
• 26:53
  Speaker 1: of those things because just because there's a certain way
• 26:57
  Speaker 1: that it's presented to you doesn't always necessarily and that's
• 27:00
  Speaker 1: the way it's going to go depending on how you know.
• 27:02
  Speaker 3: I've had, for example, every and every medium to large
• 27:12
  Speaker 3: size employer that has a handbook or a policy manual
• 27:16
  Speaker 3: is going to have a language in it about equal
• 27:20
  Speaker 3: employment opportunity commission type. We don't discriminate based on all
• 27:25
  Speaker 3: the protected classes that you can't discriminate on. And then
• 27:28
  Speaker 3: I've had them trying you, well, look here's our here's
• 27:31
  Speaker 3: our policy, Mada. It says we don't do this, but
• 27:33
  Speaker 3: that's you know, that's not conclusive. And and a lot
• 27:37
  Speaker 3: of the handbooks are given to the employer employee at
• 27:42
  Speaker 3: the beginning of employment, and then they aren't necessarily followed
• 27:45
  Speaker 3: all the way with you, but their evidence. And so
• 27:46
  Speaker 3: if you got an issue with the way your employers
• 27:50
  Speaker 3: treating you, that is the first place you should go
• 27:52
  Speaker 3: look and see. You know what, what did you sign?
• 27:55
  Speaker 3: What did they give you? What's the policy? Because it
• 28:00
  Speaker 3: can in certain situations be interpreted as in implied contract
• 28:05
  Speaker 3: of employment. It gives you terms that are different than
• 28:08
  Speaker 3: at will employment that I was referencing earlier.
• 28:11
  Speaker 1: We have a text that came in. This isn't a question.
• 28:13
  Speaker 1: This is a statement on our last caller when Don
• 28:15
  Speaker 1: called in about his asking you about the how the
• 28:18
  Speaker 1: wages worked out. And this seems to make sense. Again,
• 28:20
  Speaker 1: I don't know about this, but from the nine zero
• 28:23
  Speaker 1: four seven one six, the previous caller had already been
• 28:26
  Speaker 1: paid for the overtime rate of two hours each day
• 28:29
  Speaker 1: by working ten hour shifts. He only worked thirty two
• 28:32
  Speaker 1: hours Monday through Thursday. Therefore Friday overtime rate would only
• 28:36
  Speaker 1: be equipable after working in another eight hours. I thought
• 28:40
  Speaker 1: that he said that they work. Let's see each day
• 28:42
  Speaker 1: working he only worked thirty two hours Monday through Thursday. Oh,
• 28:46
  Speaker 1: I see, so they already got paid the overtime. He
• 28:48
  Speaker 1: only worked thirty two regular hours Monday through Thursday, already
• 28:52
  Speaker 1: getting paid overtime with the assumption of the overtime at
• 28:54
  Speaker 1: the end of the week. I guess is what we're
• 28:56
  Speaker 1: looking at you.
• 28:57
  Speaker 3: I mean, so his ha started with they were paying
• 29:03
  Speaker 3: overtime for working more than eight hours per day. That,
• 29:08
  Speaker 3: as far as I know, is not the laws. It's
• 29:11
  Speaker 3: a forty hour work week as I understand it. I
• 29:14
  Speaker 3: could be wrong, but I think that's what the text
• 29:17
  Speaker 3: is saying. Like, if you'd already been paid time and
• 29:21
  Speaker 3: a half when you weren't legally entitled to it, and
• 29:26
  Speaker 3: perhaps when you worked over forty hours.
• 29:30
  Speaker 4: That's a I don't know, that's a difficult, it's weird.
• 29:32
  Speaker 4: I would have to research that.
• 29:34
  Speaker 1: And here's another question, what's the difference between doing that
• 29:36
  Speaker 1: and just paying eight hours of overtime?
• 29:37
  Speaker 4: One Friday.
• 29:38
  Speaker 1: I guess it depends on how your schedule breaks out
• 29:40
  Speaker 1: or whatever, But wouldn't it the math work out the same.
• 29:42
  Speaker 1: If you're paid two hours a day overtime over four days,
• 29:44
  Speaker 1: why not pay eight hours of over time.
• 29:46
  Speaker 3: Where I was thinking about it is if your regular pay,
• 29:49
  Speaker 3: if your regular pay is a premium, let's say, no,
• 29:54
  Speaker 3: it's not really overtime pay, but you get paid time
• 29:57
  Speaker 3: and a half just because of an policy per day,
• 30:04
  Speaker 3: then maybe that's just really part of your regular pay,
• 30:08
  Speaker 3: and that should be folded into what your normal pay is.
• 30:12
  Speaker 3: And then if you have to work for more than
• 30:15
  Speaker 3: forty hours a week, perhaps you take a blended rate
• 30:19
  Speaker 3: that includes that time and a half and say, well,
• 30:21
  Speaker 3: that's my base rate. Now when I work over forty
• 30:24
  Speaker 3: hours a week, I'm entitled to get time and a half.
• 30:28
  Speaker 3: Whatever that base rate is. So if you make ten
• 30:31
  Speaker 3: dollars an hour, but then you make fifteen dollars an
• 30:33
  Speaker 3: hour for the two hours you work over, well maybe
• 30:36
  Speaker 3: you got to gross those up and divide it by
• 30:39
  Speaker 3: the ten hours and that's your true hourly rates. I
• 30:43
  Speaker 3: don't know that that's the answer. That's the kind of complicated.
• 30:47
  Speaker 3: You know, you have to go back and look at
• 30:49
  Speaker 3: the regulations and then compare it to the situation. Look,
• 30:52
  Speaker 3: he's he I think started off saying he's a member
• 30:54
  Speaker 3: of a union too, So what does the collective bargain
• 30:58
  Speaker 3: agreement say about that? But I know what the callers saying.
• 31:01
  Speaker 3: He he could have essentially been paid what he was
• 31:04
  Speaker 3: entitled right because he got paid time and a half
• 31:08
  Speaker 3: when it wasn't When it wasn't he was they weren't
• 31:12
  Speaker 3: legally obligated to pay him.
• 31:14
  Speaker 1: That, right. Yeah, that's it's it's an odd way to
• 31:16
  Speaker 1: do the overtime on that. It's not as bad as
• 31:19
  Speaker 1: I worked for hour for a company when I was
• 31:21
  Speaker 1: in New Mexico, and it was the business owner had
• 31:26
  Speaker 1: four different corporations and basically they ran a bunch of
• 31:29
  Speaker 1: motel like really really bad motel chains. You could rent
• 31:32
  Speaker 1: anyway from the from the hour up to the month basically,
• 31:36
  Speaker 1: but they had four different motel chains. I was their
• 31:38
  Speaker 1: quote unquote night manager. I worked like sixty hours a week,
• 31:41
  Speaker 1: but I would work like twenty hours at each location
• 31:44
  Speaker 1: incorporated differently, so I never got any overtime at all
• 31:47
  Speaker 1: because I was technically working for three different corporations. Although
• 31:50
  Speaker 1: they were all.
• 31:50
  Speaker 3: His Yeah, and that's I would have to look into that,
• 31:54
  Speaker 3: but you know, that's probably an issue whether they were
• 31:59
  Speaker 3: they were true separate. They can be readishiped with the
• 32:02
  Speaker 3: Secretary of State. It's like an LLC loadbuild a company
• 32:06
  Speaker 3: or a closely held corporation. I mean, you can craz
• 32:09
  Speaker 3: as many as you want with the Secretary of State
• 32:11
  Speaker 3: legally when you get into that if you get sued,
• 32:14
  Speaker 3: for example, and maybe they're underfunded cash wise, some of
• 32:18
  Speaker 3: these corporations or LLCs, and you can even apply to
• 32:21
  Speaker 3: your situation. Is it really just a front, it's not
• 32:26
  Speaker 3: truly its own separate legal entity. And that's again very
• 32:30
  Speaker 3: factual specific. I mean, they have separate bank accounts the
• 32:33
  Speaker 3: same owner, they have their own bylaws.
• 32:37
  Speaker 1: I was frankly a country traveling vagabond at the time,
• 32:39
  Speaker 1: you know, I didn't really have any attachment anywhere. And
• 32:41
  Speaker 1: those are the people that they absolutely went after for employment,
• 32:45
  Speaker 1: you know, people that didn't really have any recourse or
• 32:47
  Speaker 1: didn't really care one way or the other.
• 32:49
  Speaker 3: Yeah, And that's the kind of kind of borderline complicated thing.
• 32:52
  Speaker 3: A younger person would be discouraged from seeking help on
• 32:56
  Speaker 3: why they're employed because they need their job. Now, once
• 32:59
  Speaker 3: you get separated from the employment, then maybe you can
• 33:01
  Speaker 3: take action, and that's when we normally normally get involved.
• 33:05
  Speaker 3: But yeah, the kind of the text that came in,
• 33:08
  Speaker 3: that would be a good scenario to run by the
• 33:14
  Speaker 3: Department of Labor and see what they say about it.
• 33:17
  Speaker 3: They might have something in their rags about that particular situation.
• 33:20
  Speaker 3: But yeah, it's complicated and involves math as well, which
• 33:23
  Speaker 3: is I have experts for that normally.
• 33:27
  Speaker 4: Yeah.
• 33:27
  Speaker 1: Right, it's odd the way some of the situations that
• 33:30
  Speaker 1: you can find out there, though, I mean, and you
• 33:32
  Speaker 1: need to put the law on your side to protecting
• 33:34
  Speaker 1: I mean, there's some of these situations that almost seem
• 33:36
  Speaker 1: commonplace that until you get involved in it, that you
• 33:39
  Speaker 1: don't know that it's you know, there's a scheme involved
• 33:41
  Speaker 1: or something that you might need some protection. So it's
• 33:43
  Speaker 1: worthwhile making a phone call because sometimes you just never
• 33:46
  Speaker 1: know what those things.
• 33:47
  Speaker 3: Sure or send an email. So that's the kind of
• 33:49
  Speaker 3: questions that we answer, you know, if we can, you know,
• 33:52
  Speaker 3: if we got to do research and really want us
• 33:53
  Speaker 3: to look into it a little more depth, and we
• 33:55
  Speaker 3: might have to charge your fee.
• 33:57
  Speaker 4: But if you just.
• 33:59
  Speaker 3: You know, want to know what the basic law is
• 34:01
  Speaker 3: and call or really even better and emailed our office.
• 34:05
  Speaker 3: Usually we can get some details and just get you
• 34:07
  Speaker 3: going in the right right direction if there's something there,
• 34:10
  Speaker 3: like if there's a department of if there's an overtime
• 34:12
  Speaker 3: issue that we think might have some legs. Normally we'll
• 34:15
  Speaker 3: do that basic research and we don't charge anything if
• 34:17
  Speaker 3: we take those cases. We take them on contingency fee,
• 34:20
  Speaker 3: just like you know insurance cases or bodily injury cases.
• 34:25
  Speaker 3: So no harm in reaching out just to see what
• 34:28
  Speaker 3: your status is. Even on the on the wrongful termination,
• 34:30
  Speaker 3: we're an at well employee. You know, you never know
• 34:32
  Speaker 3: there might be something there. It's hard, you know, wrong
• 34:37
  Speaker 3: ful termination when somebody is terminated and they think it's
• 34:40
  Speaker 3: based on because they're in a protected class, they're a gender, race,
• 34:45
  Speaker 3: for example, disability actually medical marijuana card when they pass
• 34:52
  Speaker 3: I've had one of those cases. When they passed the
• 34:54
  Speaker 3: medical marijuana bill in West Virginia. I don't know, it's
• 34:57
  Speaker 3: probably been took them years to get it in place.
• 35:00
  Speaker 3: The bill was passed maybe eighteen years ago. But there's
• 35:05
  Speaker 3: a there's an anti discrimination provision in there. So if
• 35:09
  Speaker 3: somebody now it's got carve outs for certain types of employment,
• 35:13
  Speaker 3: or employment connected to where your employment is private, but
• 35:18
  Speaker 3: connected to federal jobs where marijuana is still illegal to use,
• 35:22
  Speaker 3: but otherwise they can't retaliate just because you have a
• 35:26
  Speaker 3: medical marijuana card. So that's another one that takes it
• 35:28
  Speaker 3: outside the realm of that well employment. But normally it's
• 35:34
  Speaker 3: you have to rely on circumstantial evidence for those type
• 35:36
  Speaker 3: of cases, because not I mean, it happens, and when
• 35:40
  Speaker 3: it happens, I love it from the evidence standpoint, But
• 35:44
  Speaker 3: you don't often have somebody express it's more these days
• 35:48
  Speaker 3: than maybe it was before, but express their discriminatory motive,
• 35:53
  Speaker 3: like fire Dale because he's old. You don't see texts
• 35:59
  Speaker 3: like that very often to or emails, although with all
• 36:03
  Speaker 3: the electronic communications these days, I actually have had some cases.
• 36:06
  Speaker 1: Make mistakes a lot now, right, They just get.
• 36:08
  Speaker 3: To flip it and don't think about it, you know,
• 36:11
  Speaker 3: just like I guess you kind of related back to
• 36:14
  Speaker 3: this crazy Epstein stuff. All these billionaires with these just slimy,
• 36:18
  Speaker 3: slazy communications. Obviously they never they never envisioned that there
• 36:23
  Speaker 3: what they thought was private communications would would be made public.
• 36:27
  Speaker 3: And but we're in the employment realm, of course, I
• 36:29
  Speaker 3: think like a lawyer, so it's different. But you know,
• 36:32
  Speaker 3: I've had a few cases where it's just outright sex
• 36:36
  Speaker 3: discrimination laid out in a text or multiple texts or emails,
• 36:39
  Speaker 3: and of course that's or voicemails. I've had that before too.
• 36:42
  Speaker 3: But normally it's circumstantial evidence. So you got to go
• 36:45
  Speaker 3: and figure out because intent and motive is in its
• 36:50
  Speaker 3: mindset and you can't see it. So you know, where
• 36:54
  Speaker 3: you treated differently than other people that weren't in the
• 36:57
  Speaker 3: protected class? Did your employer, uh give a reason for
• 37:02
  Speaker 3: discharging you?
• 37:03
  Speaker 4: That was.
• 37:05
  Speaker 3: Just a made up reason because their real motivation was
• 37:08
  Speaker 3: your age. For example, and forty and over is old
• 37:14
  Speaker 3: age employee in West Virginia.
• 37:16
  Speaker 1: Oh my, how's that happened in West Virginia when everybody's
• 37:19
  Speaker 1: over forty? That's crazy.
• 37:20
  Speaker 3: That's the threshold those cases, you know. I mean, if
• 37:24
  Speaker 3: you have somebody who's thirty seven, thirty eight, thirty nine,
• 37:28
  Speaker 3: I mean, somebody's barely forty being treated differently. It's all relative, right,
• 37:33
  Speaker 3: but you're not in a protected class as an older
• 37:36
  Speaker 3: employee until you reach forty.
• 37:37
  Speaker 4: Let's put it that way.
• 37:38
  Speaker 1: Okay, Well, that makes ten a lot of suits if.
• 37:40
  Speaker 3: You're forty, you have some protection against age discrimination. If
• 37:44
  Speaker 3: you're younger than that, you don't.
• 37:46
  Speaker 1: That's the Paton Law Firm. Tom Pathan from the Paithon
• 37:48
  Speaker 1: Law Firm. You can put the power of pathon on
• 37:50
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• 37:52
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• 37:57
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• 38:01
  Speaker 1: Every Thursday right here at eight twenty ask the Lawyer
• 38:03
  Speaker 1: on WCCHS The Voice with Charleston. Tom, thanks a lot
• 38:05
  Speaker 1: for your time again.
• 38:06
  Speaker 4: Glad to be here and be back next week. Look
• 38:08
  Speaker 4: forward to it.
• 38:09
  Speaker 1: Look forward to it. That's Tom Payton from the Painton
• 38:10
  Speaker 1: Law Firm. Have a great day everyone. I'll be back
• 38:12
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• 38:14
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• 38:24
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• 38:31
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