The employment at will rule in West Virginia

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:

  1. a good reason,
  2. no rea­son, or
  3. 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:

  1. 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.
  2. 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:

  1. The rule applies to all employ­ment deci­sions, not just termination.
  2. 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.

Drew M. Capuder
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Lat­est posts by Drew M. Capud­er (see all)

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