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Employment Litigation Issues in West Virginia

Generally, in West Virginia, an employer can terminate an employee at any time, with or without cause. The Supreme Courts Of Appeals of West Virginia and statutory law, however, have put limits on this employment-at-will doctrine. The court has required that this principle be tempered when the employer’s reason for terminating an employee contravenes a substantial public policy. West Virginia statutes restrict an employer’s right to discharge an employee under certain circumstances, such as when an employee is unable to work due to a compensable injury. Federal law also affects the employment-at-will doctrine through several statues, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. This article provides summarizes the significant exceptions to the employment-at-will doctrine and explains how employers can avoid liability under these exceptions when hiring, disciplining or terminating employees.

1. Employment-at-Will Doctrine

In West Virginia, generally, employment may be terminated at any time, with or without cause, at the will of either party. This is called the employment-at-will doctrine. See Williamson v. Sharvest Management Company, 415 S.E.2d 271 (W. Va. 1992). Under this doctrine, an employer can terminate an employee for a good reason, a bad reason, or no reason at all, so long as the reason is not illegal. Williams v. Precision Coil, Inc., 459 S.E.2d 329, 340 (W. Va. 1995); see also Town of Romney Housing Authority v. West Virginia Human Rights Commission, 406 S.E.2d 434, 438 (W. Va. 1991) ("the question is not whether an employment decision was essentially fair"); Conaway v. Eastern Associated Coal Corp., 358 S.E.2d 423 (W. Va. 1986) ("[T]he reason [for discharge] need not be a particularly good one."). While the employment-at-will doctrine is the default rule in West Virginia, it is subject to many exceptions.

Employers and employees sometimes enter into written employment agreements for a specified periods. If such a contract exists, then the terms and conditions of employment will be dictated by it.

In addition to explicit written employment contracts, the Supreme Court of Appeals of West Virginia has recognized implied employment contracts under certain circumstances. For example, an employee handbook may form the basis of a unilateral contract if it appears to contain a promise on the part of an employer not to terminate an employee except for specified reasons. See Cook v. Heck's Inc., 342 S.E.2d 453 (W. Va. 1986); Hogue v. Cecil I. Walker Mach. Co., 431 S.E.2d 687 (W. Va. 1993).

2. Public policy exception

According to the Supreme Court of Appeals of West Virginia, the general principle that an employee may be discharged at any time for any reason should be tempered when the reason for that termination contravenes a substantial public policy. Harless v. First National Bank of Fairmont, 246 S.E.2d 270 (W. Va. 1978). In Harless, the plaintiff alleged that he was discharged for trying to make his employer comply with state and federal consumer protection laws, and that the employer's conduct leading up to and surrounding the discharge constituted intentional, malicious, and outrageous conduct which caused him severe emotional distress. Although the Court reaffirmed the employment-at-will doctrine, it nevertheless stated that:

We conceive that the rule giving the employer the absolute right to discharge an at will employee must be tempered by the further principle that where the employer's motivation for the discharge contravenes some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by the discharge.

Id. at 275. The Harless court, however, did not define what constituted a "substantial public policy.” Rather, it proclaimed:

We have no hesitation in stating that the Legislature intended to establish a clear and unequivocal public policy that consumers of credit covered by the Act were to be given protection. Such manifest public policy should not be frustrated by a holding that an employee of a lending institution covered by the Act, who seeks to ensure that compliance is being made with the Act, can be discharged without being furnished a cause of action for such discharge.Id. at 276.

The existence of a public policy is a question of law for the court, rather than the jury, and that public policies are derived from such things as the federal and state constitutions, statutes, judicial decisions, and applicable principles of the common law. Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111 (W. Va. 1984). A court must exercise restraint in determining public policy, and "an issue which is fairly debatable or controversial in nature is one for the legislature and not for th[e] Court." Yoho v. Triangle PWC, Inc., 336 S.E.2d 204 (W. Va. 1985); see also Collins v. AAA Homebuilders, Inc., 333 S.E.2d 792, 793 (W. Va. 1985) (stating that “the legislative branch of government has the primary responsibility for translating public policy into law”).

Over the years, the Supreme Court of Appeals of West Virginia has identified several specific instances of what qualifies as a "substantial public policy," including:

  • An employee who is denied employment on the sole basis that he received services for mental illness, mental retardation, or addiction has a cause of action for wrongful discharge. Hurley v. Allied Chemical Corp., 262 S.E.2d 757 (W. Va. 1980) (citing W. Va. Code § 27-5-9(a) as a source of public policy).
  • Filing a claim under the Workers' Compensation Act, W. Va. Code § 23-5A-1 et seq., is not a valid reason for firing an otherwise at-will employee. Shanholz v. Monongahela Power Co., 270 S.E.2d 178 (W. Va. 1980); Powell v. Wyoming Cablevision, Inc., 403 S.E.2d 717 (W. Va. 1991). 
  • Privacy can be covered by public policy such that firing for refusal to take a lie detector test is a violation of public policy. Cordle v. General Hugh Mercer Corp., 325 S.E.2d 111 (W. Va. 1984).
  • An employee has a cause of action for wrongful discharge where his employer fired him for his efforts to ensure that his employer complied with federal and state mine safety laws and for his refusal to operate unsafe equipment. Wiggins v. Eastern Associated Coal Corp., 357 S.E.2d 745 (W. Va. 1987).
  • Wage and hour laws under W. Va. Code § 21-5C-8 are the source of public policy making it illegal to discharge a worker for reporting violations. McClung v. Marion County Commission, 360 S.E.2d 221 (W. Va. 1987).
  • The West Virginia Mine Safety Act, W. Va. Code § 22A-1A-20, is a substantial public policy. Collins v. Elkay Mining Co., 371 S.E.2d 46 (W. Va. 1988).
  • It is contrary to the public policy in favor of an individual's right to privacy for an employer to require employee drug testing unless the testing is based upon reasonable suspicion or the employee's job involves public safety. Twigg v. Hercules Corp., 406 S.E.2d 52 (W. Va. 1990).
  • An employee has a cause of action for wrongful discharge where the employer discharged him in retaliation for exercising rights under the Veterans Reemployment Rights Act. 38 U.S.C. § 2021 et seq. Mace v. Charleston Area Medical Center Foundation, Inc., 422 S.E.2d 624 (W. Va. 1992).
  • An employee bringing improper actions by a housing authority to the attention of federal prosecutors is protected by a substantial public policy. Slack v. Kanawha County Housing and Redevelopment Authority, 423 S.E.2d 547 (W. Va. 1992).
  • Refusing to operate a vehicle with unsafe brakes under W. Va. Code §§ 17C-15-1(a), 17C-15-31, and 24A-5-5(j) is a protected exception to at-will employment. Lilly v. Overnight Transportation Company, 425 S.E.2d 214 (W. Va. 1992).
  • W. Va. Code § 21-5-5, making it illegal to coerce employees into purchasing goods in lieu of wages, represents a substantial public policy and employees asserting their rights under the code cannot be discharged. Roberts v. Adkins, 444 S.E.2d 725 (W. Va. 1994).
  • It is a public policy violation to discharge an employee over concerns that the employee has or may give truthful testimony in a legal action. Page v. Columbia Natural Resources, Inc., 480 S.E.2d 817 (W. Va. 1996).
  • Regulations of the West Virginia Board of Health governing the licensing of hospitals protect employees who notify their superiors of violations. Tudor v. Charleston Area Medical Center, Inc., 506 S.E.2d 554 (W. Va. 1997).
  • Providing truthful information to an investigation of the West Virginia Board of Barbers and Cosmetologists is a protected exception to the at-will employment doctrine. Kanagy v. Fiesta Salons, Inc., 541 S.E.2d 616 (W. Va. 2000).
  • The right to self-defense in response to a lethal imminent danger is a substantial public policy. Feliciano v. 7-Eleven, Inc., 559 S.E.2d 713 (W. Va. 2001).
  • A public employee subject to grievance procedures under W. Va. Code § 18-29-1 cannot be fired while the grievance procedures are ongoing. Wounaris v. West Virginia State College, 588 S.E.2d 406 (W. Va. 2003).

3. West Virginia statutory exceptions

Several West Virginia statutes restrict an employer's right to discharge an employee, including:

  • No employer shall terminate an injured employee while the injured employee is unable to work due to a compensable injury, and is receiving, or is eligible to receive, temporary total disability benefits, except where the injured employee committed a separate offense warranting discharge. No employer shall fail to reinstate an employee who has sustained a compensable injury to his or her former position if it is available and the employee is not disabled. W. Va. Code § 23-5A-3.
  • No employer shall discharge an employee on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, or handicap. Furthermore, no employer shall engage in any form of reprisal, or otherwise discriminate against a person who files a complaint under the West Virginia Human Rights Act, or opposes any of the forbidden practices contained in the Act. W. Va. Code § 5-11-9.
  • No employer may threaten to discharge an employee in order to prevent him or her from freely exercising the right to vote. W. Va. Code § 3-9-20.
  • An employee is entitled to reinstatement after serving on a jury. W. Va. Code § 52-3-1. An employer that threatens to discharge an employee for serving on a jury is subject o fine and/or imprisonment. W. Va. Code § 61-5-25a.
  • An employer cannot threaten an employee in order to influence his or her political views. W. Va. Code § 3-8-11(b). In addition, the crime of corrupt practices includes an employer threatening an employee with loss of employment if a particular candidate is elected or defeated. W. Va. Code § 3-9-15.
  • Members of the state militia are entitled to the same reemployment rights as provided veterans under federal law. W. Va. Code § 15-1E-135.
  • An employer cannot terminate an employee for failing to take a psycho physiological detection of deception examination (formerly polygraph). W. Va. Code § 21-5-5b.
  • No public employer may discharge or discriminate against an employee because he or she has filed a complaint or participated in proceedings under the West Virginia Occupational Safety and Health Act. W. Va. Code § 21A-3A-13(a).
  • No employer may discharge a member of the volunteer fire or ambulance department because he or she has lost time from employment in responding to an emergency. W. Va. Code § 21-5-17.
  • No public employer may discharge or discriminate against an employee who has made a good faith report about instances of wrongdoing or waste (whistle-blower). W. Va. Code § 6C-1-3.
  • An employer may not discharge an employee because a creditor has garnished or attempted to garnish his or her wages to satisfy a judgment arising from a consumer credit loan. W. Va. Code § 46A-2-131.
  • An employer cannot terminate an employee solely because of the employee's mental illness, mental retardation, addiction, or receipt of mental health services. W. Va. Code § 27-5-9(a).
  • An employer cannot terminate an employee for making complaints under the Equal Pay for Equal Work Act. W. Va. Code §§ 21-5B-1 through 6.
  • An employer cannot terminate against an employee based on his service in the Legislature. W. Va. Code § 6-5-11.
  • An insurance company cannot terminate or refuse to renew a written contract with an agent, which relationship existed for five years, without "good cause," as defined by the statute. W. Va. Code § 33-12A-3. Furthermore, an insurance company cannot terminate or refuse to renew a written contract with an agent because of a loss ratio resulting from claims paid under an uninsured or underinsured motorist policy. W. Va. Code § 33-12-31.
  • An employer cannot terminate an employee for use of tobacco products during nonworking hours. W. Va. Code § 21-3-19.
  • An employer cannot terminate an employee who refuses to pay the costs of a medical examination. W. Va. Code § 21-3-17.
  • No employer shall discharge or otherwise discriminate against a miner who has notified a supervisor or authorized official of any alleged mine safety violation or danger, has filed a proceeding under West Virginia's mine safety laws, or has testified in any mine safety proceeding. W. Va. Code § 22A-1-22.
  • No nursing home shall discharge or otherwise discriminate against an employee who has filed a complaint or participated in a proceeding governed by state nursing home laws. W. Va. Code § 16-5C-8.
  • No employer may discharge or discriminate against an employee who has complained to the employer or to the commissioner of labor that they have not been paid in accordance with the minimum wage and maximum hours of the state. W. Va. Code § 21-5C-7.

4. Federal statutory exceptions

There are many federal statutes that affect the employment-at-will doctrine, including:

  • Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. Title VII also protects anyone who has opposed a practice made unlawful under the Act from retaliation.
  • Age Discrimination in Employment Act prohibits discrimination based on age against person 40 years of age or older. The Act also prohibits retaliation against anyone who has opposed a practice made unlawful under the Act.
  • Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities and individuals "regarded as" having disabilities. The Act also protects anyone who has opposed a practice made unlawful under the Act from retaliation.
  • Family and Medical Leave Act prohibits discrimination and/or retaliation against employees who use FMLA leave.
  • There are many federal laws that prohibit retaliation against employees who make complaints or exercise rights under those laws. For example, the Occupational Safety and Health Act, the Federal Mine Safety and Health Act, and the Clean Air Act.

These statutory exceptions to the employment at will doctrine prohibit employers from taking certain employment actions against an employee based factors such as race, age, religion, and disability. Further, these exceptions prohibit adverse employment actions taken in response to an employee’s reporting violations of certain state or federal laws. These statutory exceptions trump the employment at-will doctrine. Therefore, employers should ensure that they are not disciplining or terminating an employee under any of these conditions, if they wish to avoid future liability. 

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume II, Number 161


About this Author

Brian Moore, labor and employment litigator, Dinsmore Shohl law firm,
Of Counsel

Brian represents companies in labor, employment, and general litigation matters. His business-oriented approach enables him to guide clients through a myriad of challenges. Brian draws on his experience to help clients reach efficient resolutions -- or pursue litigation and trial -- as the situation warrants. Working with clients in the banking, insurance, retail, health care, energy, hospitality, and food and beverage industries, he has guided them through an array of issues, including discrimination, harassment, wage and hour, deliberate intent, unfair labor practice,...

Katherine B. Capito, attorney employment, related litigation, matters Dinsmore Law

Katherine Capito is a member of the Labor & Employment Department, where she works with a variety of clients to handle employment-related litigation matters, including discrimination and harassment claims. She has worked with clients ranging from coal companies to national consumer product retailers, handling everything from providing counsel to drafting motions to managing the discovery process. She places a premium on learning her client’s business, enabling her to tailor a strategy that meets their objectives and keeps them moving toward a resolution.

Katherine also frequently authors and edits labor and employment-related papers and articles for national publications. Prior to joining the firm, Katherine worked at the United States Attorney's Office.