Employment At-Will: West Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Eric E. Kinder, Spilman Thomas & Battle, PLLC
- Employment relationships in West Virginia are presumed to be at-will, meaning the employment relationship can be terminated by either party, at any time, with or without cause. See The At-Will Relationship.
- West Virginia recognizes limited exceptions to the at-will presumption, including written and implied contracts and public policy exceptions. See Employment At-Will Exceptions.
- At-will employees in West Virginia challenging a discharge may file claims against their employers under tort theories, including intentional infliction of emotional distress and defamation, so long as the plaintiff-employee is able to satisfy an evidentiary burden. See Tort Considerations.
The At-Will Relationship
In West Virginia, courts presume that all employment relationships are at-will. An at-will employment relationship lasts for an indefinite period of time and is terminable by either party, at any time and for any lawful reason. Wright v. Standard Ultramarine & Color Co., +90 S.E.2d 459 (W. Va. 1955).
Employment At-Will Exceptions
In order to deviate from the employment at-will presumption, employees and employers must enter into an employment contract with a defined term, or otherwise indicate that termination of employment must be for cause. Contracts for employment greater than one year in duration must be in writing. Alkire v. Orchard Co., +79 W. Va. 526 (1917).
West Virginia courts recognize that lifetime employment contracts are extraordinary. As such, offers for lifetime employment must be expressed in clear and unequivocal terms before a court will conclude that an employer intended to shoulder such a weighty burden. Where the parties clearly and unequivocally show that they intended to create a contract for lifetime employment, no additional consideration is needed. However, where that intent is not clear, the employee must furnish additional consideration beyond the services incident to the terms of his or her employment. Williamson v. Sharvest Management Co., +187 W. Va. 30 (1992).
Employee handbooks. West Virginia courts recognize that employee handbooks or manuals distributed by employers can alter the at-will employment relationship. Specifically, promises of job security or grounds for termination in these publications constitute unilateral contracts; the employee's continuing to work, while under no obligation to do so, constitutes sufficient acceptance and consideration to make the employer's offer binding. Cook v. Heck's, Inc., +342 S.E.2d 453 (W. Va. 1986). However, West Virginia courts require more than vague provisions in a handbook to find an employment contract. Rather, the employer must have made a definite promise. Younker v. Eastern Associated Coal Corp., [LexisNexis: "591 S.E.2d 254" (W. Va. 2003).
Disclaimers. Employers may prevent an employee manual or handbook from being used to create an express or implied contract by requiring employees to sign a disclaimer acknowledging the at-will employment relationship. The disclaimer must be clear and prominent, and should state that the employment is for no definite period and that the handbook's provisions are not exclusive and not intended to create an employment contract. Bowe v. Charelston Area Med. Ctr., Inc., +428 S.E.2d 773 (W. Va. 1993).
Verbal Promises. The West Virginia Supreme Court of Appeals has additionally recognized that verbal promises can alter the at-will employment relationship. A verbal promise must contain ascertainable and definitive terms in order to alter at-will employment relationships. Sayres v. Bauman, +425 S.E.2d 226 (W. Va. 1992).
Employer Practice or Common Usage. Employees can also establish an implied employment contract by custom or usage, meaning the employer's consistent or expected behaviors. In order to do so, the employee must prove the employer acted in a certain way a sufficient number of times to indicate a regular course of business. Adkins v. Inco Alloys Intern., Inc., +417 S.E.2d 910 (W. Va. 1992).
Employment Offers. When extending an employment offer in writing, the written offer should include a provision indicating that the employment is at-will and an acknowledgement of the at-will relationship to be signed by the employee.
Implied Covenant of Good Faith and Fair Dealing
West Virginia courts have explicitly and repeatedly declined to recognize an implied covenant of good faith and fair dealing in the context of at-will employment. Hatfield v. Health Mgmt. Assocs. Of West Virginia, +672 S.E.2d 395 (W. Va. 2008).
West Virginia Antidiscrimination Laws
West Virginia prohibits employers from refusing to hire or discharging any individual or discriminating against any individual based on certain protected categories. For detailed information regarding West Virginia's antidiscrimination laws, see EEO - Discrimination: West Virginia.
Public Policy Exceptions
Although parties may generally terminate the employment relationship at any time, they may not do so if the motivation contravenes a substantial public policy of West Virginia. Harless v. First Nat. Bank in Fairmont, +246 S.E.2d 270 (W. Va. 1978). However, West Virginia courts require that the public policy considerations derive from specific sources of law, including the West Virginia constitution, legislative enactments, legislatively adopted regulations, and judicial opinions. Feliciano v. 7-Eleven, Inc., +559 S.E.2d 713 (W. Va. 2001).
To establish a claim for wrongful discharge in violation of a substantial public policy, the plaintiff-employee must establish the existence of a public policy, name the source from which the public policy derives and demonstrate that his or her discharge was motivated by an unlawful factor contravening that policy. The employer may rebut this by showing that it had a legitimate business reason for the adverse employment decision.
The West Virginia Legislature has enacted several other statutes prohibiting termination of employees in specific scenarios:
- Receipt of worker' compensation benefits, +W. Va. Code § 23-5A-1 et seq.;
- Exercising or attempting to exercise the right to vote, +W. Va. Code § 3-9-20;
- Serving on a jury, +W. Va. Code § 61-5-25(a);
- Absence from serving in the Legislature, +W. Va. Code § 6-5-11;
- Active service in the West Virginia militia, +W. Va. Code § 15-1F-8;
- Refusal to take a polygraph examination, +W. Va. Code § 21-5-5d;
- Reporting mine safety violations or testifying in a proceeding concerning mine safety violations, +W. Va. Code § 22A-1-22;
- Filing a complaint under or testifying before a proceeding of the West Virginia Occupational Safety and Health Act, +W. Va. Code § 21-3A-13(a);
- Instituting proceedings under the West Virginia Equal Pay for Equal Work Act, +W. Va. Code § 21-5B-3(3);
- Membership in a volunteer fire department and absence from work because of responses to emergencies, +W. Va. Code § 21-5-17;
- Membership in an emergency medical service and absence from work because of responses to emergencies, +W. Va. Code § 21-5-18;
- A public employee's good faith reporting about instances of wrongdoing or waste, +W. Va. Code § 6C-1-1 et seq.;
- Complaining to the employer or the Labor Commissioner about underpayment of wages or filing a wage collection action, +W. Va. Code § 21-5C-7;
- Use of tobacco on non-working hours, +W. Va. Code § 21-3-19; and
- A healthcare worker's good faith reporting of wrongdoing or waste, +W. Va. Code § 16-39-1.
In some situations, an at-will employee may pursue certain tort claims against an employer for allegedly improper conduct in connection with his or her termination. West Virginia recognizes the following claims:
Intentional Infliction of Emotional Distress and Outrage
An employee may recover for intentional infliction of emotional distress (IIED) and outrage (which are used nearly synonymously) as a claim distinct from wrongful discharge. Because of this, intentional infliction of emotional distress and outrage will only be found if the employee suffered severe emotional distress from the manner in which termination occurred, and not from the simple fact that the employee was discharged. Hosaflook V. Consolidation Coal Co., +497 S.E.2d 174 (W. Va. 1997).
In order for the claim to be successful, the employer's conduct must be so extreme and outrageous that it transcends the bounds of decency. Hines v. Hills Dept. Stores, Inc., +454 S.E.2d 385 (W. Va. 1997).
In order to be successful in a claim for IIED against an employer, an employee must demonstrate the following:
- The employer's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency;
- The employer acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from its conduct;
- The employer's actions caused the employee to suffer emotional distress; and
- The employee's emotional distress was so severe that no reasonable person could be expected to endure it.
Travis v. Alcon Labs., Inc., +504 S.E.2d 419 (W. Va. 1998).
For an outrage claim, the employee must prove similar, but slightly different elements:
- The wrongdoer's conduct was intentional or reckless;
- This is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress, or where he or she intended the conduct and knew or should have known that emotional distress would likely result from the conduct.
- The conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
- There was a causal connection between the wrongdoer's conduct and the emotional distress; and
- The emotional distress was severe.
Hosaflook v. Consolidation Coal Co., +497 S.E.2d 174 (W. Va. 1997).
A statement is defamatory if it tends to lower the employee's reputation in the community or deters third parties from dealing with him or her. In order to state a claim for defamation, the employee must prove:
- False or defamatory statements were made against him or her;
- The statement(s) was made to a third party who did not have a reasonable right to know; and
- The statements were made (at least) negligently (carelessly) by the employer and resulted in injury to the employee's reputation.
Bine v. Owens, +542 S.E.2d 842 (W. Va. 2001).
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