Part 1 of a series on West Virginia employment law
This blog article is the first part of a series I will write on employment law in West Virginia, with a focus on litigation issues relating to alleged wrongful discharge.
I will start with the employment at will rule, and will carry through with articles on the numerous exceptions to the employment at will rule.
What is the employment at will rule?
The courts have long had a love-hate relationship with the employment at will rule. West Virginia, like virtually all other states, adheres to the rule.
So, what is the employment at will rule? For convenience, I will define it in terms of the right to end or terminate the employment relationship, but more about that definition in a moment. And more below about the big qualification on the rule.
One way to state the rule is that both parties to the employment relationship, the employer and the employer, have the right to terminate the employment relationship at any time and for any reason (but not for an illegal reason, and that is discussed below). It is important to understand that those are the two essential attributes of the rule: to terminate the employment relationship (1) at any time, and (2) for any reason. Both sides (employer and employee) have that right, although the right is almost always examined in terms of the employer’s right in wrongful discharge litigation.
West Virginia’s description of the rule
In the context of termination (more about that later) the employment at will rule has been described in West Virginia this way: the rule allows an employer to terminate an employee for:
- a good reason,
- no reason, or
- a bad reason.
Williams v. Precision Coil, Inc., 194 W. Va. 52, 63, 459 S.E.2d 329, 340 (1995).
An essential thing to understand about that statement is that there is no obligation to have “cause” or “just cause” to terminate an employee. And that rule applies no matter how long the relationship has been going on. In other words, the rule applies to an employee who has been working for the employer for 1 day, and applies to an employee who has been working there for 30 years.
Examples to illustrate the rule:
- Example of bad reason: “Bob, I’m firing you today because your socks don’t match.” That might be a bad (and stupid and cruel) reason to fire an employee, but bad reasons are allowed by the employment at will rule.
- Example of no reason: “Sally, I’m firing you today.” Why boss, you just promoted me, and I got a fabulous review and raise 2 days ago. ” The boss responds, “I don’t have a reason, Sally. I just got out of bed today in a terrible mood and decided to fire the first unfortunate schmuck to cross my path today, and bingo, it was you, Sally.” That is no reason at all to fire someone (and it is also stupid and cruel), but the employer doesn’t have to have a reason to fire someone under the rule.
To get us toward a more legal definition of the rule in light of when the rule may be modified or eliminated, the West Virginia Supreme Court has stated the rule as follows: “[I]n the absence of some contractual or legal provision to the contrary, an employment relationship may be terminated, with or without cause, at the will of either the employer or the employee.” Bine v. Owens, 208 W. Va. 679, 682, 542 S.E.2d 842, 845 (2000) (emphasis added); accord Swears v. R.M Roach & Sons, Inc., 225 W. Va. 699, 704, 696 S.E.2d. 1, 6 (2010).
The rule applies to all employment decisions
I’ve defined the rule in terms of a right to terminate the relationship, but the nature of the rule is that it applies to all employment decisions, not just termination. For example, the rule applies to the same extent to decisions to suspend an employee, refuse to promote an employee, refuse to hire an employee, etc. In other words, when the rule is stated in terms of “terminating” an employee at any time for any reason, you can change “terminate” to any other employment decision. Example, the employer may suspend the employee at any time for any reason.
The big exception: “but not for an illegal reason”
The employment at will rule has an important qualification. Again, from the standpoint of the employer’s right, the employer can terminate the employee at any time for any reason, but not for a reason that the law prohibits. That is the critical exception to the rule. An employer may fire someone for a bad reason or no reason but may not terminate the employee for a reason the law specifically prohibits. Examples of prohibited reasons include age, race, gender, disability, religion, whistle-blowing, and filing a worker’s comp claim. That is a very incomplete list.
The central and critical focus is on the employer’s motivation. Was the employer motivated by a specifically prohibited reason, in which case the termination may be actionable, or by any other reason, in which case the termination will not be actionable? The difficult thing about employment litigation is that, for wrongful discharge issues, it requires the jury to figure out what motivated the decision. The same decision (termination) may be illegal if it is based on gender (for example), or legal if it is based on any other non-prohibited reason.
Another big exception: where the parties agree to modify the rule
Another important thing to understand about the employment at will rule is that the parties may agree to alter or eliminate it. For example, the parties can agree to enter into an employment agreement that sets out a term (period of time) for the employment relationship, and that expressly limits the reasons why the relationship can be ended. That happens frequently for highly compensated employees (management). The parties also agree in union settings to alter the rule through collective bargaining agreements (“union contracts”).
Sometimes the modifications to the rule come through provisions in employee handbooks, but that is a very difficult issue that I will address in an upcoming blog article.
A better statement of the rule
In light of the two big exceptions to the employment at will rule, and applying it in the context of termination, here is a better and more complete statement of the rule:
Unless the parties have agreed otherwise, the employer may terminate an employee at any time for any reason, including a good reason, a bad reason, or no reason, but the employer may not terminate the employee for a reason that is prohibited by the law.
Here are important things to remember about the rule:
- The rule applies to all employment decisions, not just termination.
- The rule applies to a brand-new employee and a long-term employee.
Upcoming blog articles
l will discuss some of the important exceptions to the employment at will rule in upcoming articles.
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