Recruiting: West Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Eric E. Kinder, Spilman Thomas & Battle, PLLC
- The West Virginia Department of Commerce provides an online resource for employers seeking qualified job candidates. See Methods and Sources.
- The West Virginia Human Rights Act (WVHRA) is the state counterpart to Title Vll of the Civil Rights Act. Unlike Title VII, however, the WVHRA applies to employers with 12 or more employees. See West Virginia Human Rights Act.
- Employers that knowingly recruit and hire unauthorized workers will be subject to fines and other potential penalties. See Undocumented Workers.
- West Virginia imposes specific requirements for the areas in which workers who are minors may be employed. See Underage Workers.
- West Virginia prohibits discrimination against job applicants and employees based on their off-duty tobacco use. See Smokers' Rights.
- State law permits private employers to grant a veterans preference in hiring. See Veterans Preference.
Methods and Sources
One resource for West Virginia employers is Workforce West Virginia through the state's department of commerce. The website gives employers ways to match up with qualified job applicants, and has the largest online database of job seekers in West Virginia. The site also includes training and labor market information.
Employers also may use the full range of employee recruitment tools: employee referrals, print media, advertising, online postings, professional organizations, job fairs and word of mouth. However, employers must ensure that recruitment efforts of any form do not discriminate against job applicants or potential applicants.
West Virginia Human Rights Act
The West Virginia Human Rights Act (WVHRA) is the state analog to Title VII of the federal Civil Rights Act. W. Va. Code § 5-11-1 et seq. It prohibits discrimination on the basis of race, religion, color, national origin, ancestry, sex, age (40 years of age and older), blindness or handicap. +W. Va. Code § 5-11-4.
Employers cannot discriminate against members of these classes with respect to compensation, hire, tenure, and terms, conditions or privileges of employment. Employers, employment agencies and labor organizations cannot elicit information from individuals regarding these classes prior to membership, nor can they deny full and equal membership to the organization because of them.
These classifications also cannot be used to select or exclude individuals from training programs. In addition, individuals may not be retaliated against because they made a claim of discrimination. +W. Va. Code § 5-11-9.
The West Virginia Human Rights Commission (WVHRC) administers and enforces the WVHRA.
The WVHRA applies to employers with 12 or more employees in West Virginia for 20 or more calendar weeks within the calendar year that the alleged act of discrimination occurred. The WVHRA applies to public and private employers and also to private clubs. +W. Va. Code § 5-11-3(d). All covered employers must post a WVHRA Notice Poster in a conspicuous place on their premises.
An employer can be liable for the discriminatory acts of its employees in certain circumstances. Individuals may not discriminate against someone in a protected class by denying accommodations or privileges of places of public accommodation or by engaging in reprisal for filing a claim of discrimination or opposing discriminatory practices. An employer also may not willfully obstruct any person from complying with the WVHRA. +W. Va. Code § 5-11-9 (6) ; +W. Va. Code § 5-11-9 (7).
The West Virginia Human Rights Act generally tracks Title VII. It prohibits discrimination and harassment based on the following categories:
- National Origin;
- Blindness; or
- Age (40 years or above).
An employer may take into consideration a protected classification when making an employment decision if it is a bona fide occupational qualification (BFOQ). This does not constitute unlawful discrimination. +W. Va. Code § 5-11-9; Gibson v. West Virginia Dept. of Health & Human Res., Div. of Health, +192 W. Va. 372 (1994); Shepherdstown Volunteer Fire Dept. v. State ex rel. State of West Virginia Human Rights Comm'n, +172 W. Va. 627 (1983).
Age Discrimination--Employees who are 40 and older are protected from discrimination on account of their age. +W. Va. Code § 5-11-3(k).
Disability Discrimination--Employees with a mental or physical impairment that substantially limits one or more major life activity are protected from discrimination on account of that impairment. The term major life activity includes functions such as caring for one's self, walking, talking, seeing, hearing, breathing and working as well as records of those impairments.
Current drug and alcohol use does not constitute a disability under the WVHRA. +W. Va. Code § 5-11-3(m). An employer must make reasonable accommodations for known impairments that permit the employee to perform the essential functions of his job unless the accommodations would be an undue hardship on the employer. Skaggs v. Elk Run Coal Co., +198 W. Va. 51 (1996).
Religious Discrimination--All aspects of an employee's religious observance and practice, as well as belief, are protected under the WVHRA. This does not include mere personal choices or codes or social or political beliefs that are narrow and temporal in character. +W. Va. CSR. § 77-3-2. An employer must make all reasonable accommodations of an employee's religious beliefs unless it would cause undue hardship on the employer. +W. Va. CSR. § 77-3-3.
Religious discrimination provisions do not apply to religious corporations, associations, educational institutions or societies with respect to employment of individuals tasked with carrying on religion-related activities. +W. Va. CSR. § 77-3-7.
Sex Discrimination and Pregnancy--The WVHRA prohibits discrimination against women who are affected by pregnancy, labeling this as sex discrimination. +W.Va. Code § 5-11-9(a); See Frank's Shoe Store v. West Virginia Human Rights Comm'n, +179 W. Va. 53 (1986).
Under West Virginia law, it is unlawful for employers to knowingly employ, hire or recruit a worker who is not authorized to be employed by law. This applies to both public and private employers. Employers that violate this provision are subject to a fine between $1,000 and $10,000, revocation of any license they hold, and citations from the Labor Commissioner. W. Va. Code § 21-1B-1 et seq.
Employers are required to verify the legal status or authorization of prospective employees by social security card, visa, birth certificate, passport and other means. Employers are required to keep records of these verifications. +W. Va. Code § 21-1B-4. A violation of these provisions results in a misdemeanor conviction and a fine of $100 for each offense. +W. Va. Code § 21-1B-5(a).
Children under 14 years of age are permitted to be employed in the following fields:
- Agriculture and horticulture activities that have not been declared hazardous by the US Department of Labor;
- Domestic services within the residence of the employer;
- Work for parents or legal guardians in their solely owned businesses;
- As actors or performers in motion pictures, theatrical, radio, or television productions; and
- Newspaper delivery.
When recruiting minors, employers also must be aware that children under 18 are not permitted to be employed in the following fields:
- Motor vehicle driver and outside helper whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivery of goods;
- The manufacture, storage, handling or transportation of explosives or highly flammable substances;
- Ore reduction works, smelters, hot rolling mills, furnaces, foundries, forging shops, or in any other place in which the heating, melting or heat treatment of metals is carried on;
- Logging and saw milling occupations;
- Power-driven woodworking machine occupations;
- Occupations involving exposure to radioactive substances and ionizing radiations;
- Power-driven hoisting apparatus occupations;
- Power-driven metal-forming, punching, and shearing machine occupations;
- Mining, including coal mining;
- Occupations involving slaughtering, meat-packing, or processing or rendering;
- Power-driven bakery machines;
- Power-driven paper-products machine occupations;
- Occupations involved in the manufacturing of brick, tile and kindred products;
- Occupations involved in the operation of power-driven circular saws, band saws and guillotine shears;
- Occupations involved in wrecking, demolition, and ship-breaking operations;
- Roofing operations above ground level; and
- Excavation operations.
Additionally, children under 18 may not be employed or permitted to work in a bar or in a setting where they would be serving alcohol, and they may not be employed or permitted to work in an occupation that the Labor Commissioner has deemed to be dangerous of injurious. +W. Va. Code § 21-6-2.
A child 14 or 15 may be employed in any gainful occupation with the issuance of a work permit by the Superintendent of Schools. +W. Va. Code § 21-6-3. An employer may request a blanket work permit when 25 or more children under the age of 18 will be employed for 90 or fewer days. +W. Va. Code § 21-6-8a.
An employer that violates these sections is subject to a fine between $50 and $200.
In West Virginia, no public or private employer may refuse to hire or discharge any individual solely because that individual uses tobacco products off premises during nonworking hours. +W. Va. Code. § 21-3-19.
The law exempts any employer that is a nonprofit organization and, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public.
West Virginia also does not prohibit an employer from having health, disability or life insurance policies that make distinctions for type of coverage and price based on an employee's use of tobacco products provided that the differential rates reflect differential costs to the employer.
Private employers in West Virginia may grant a veterans preference in hiring to a veteran or a veteran with a disability if the individual meets all of the knowledge, skills and eligibility requirements for the job. The law provides that granting a veterans preference would not violate state equal employment laws.
For purposes of West Virginia law, a veteran is any person who has received an honorable discharge and has provided more than 180 consecutive days of full-time, active-duty service in the US Armed Services or Reserve components, including the National Guard; or has a service-connected disability rating fixed by the US Department of Veterans Affairs. +2016 W.V. ALS 97.
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