Most folks in West Virginia—employers and employees alike—have heard the phrase “at-will employment.” It gets tossed around a lot, especially when someone’s been fired and is trying to figure out if it was legal. But like a lot of legal phrases, “at-will” means more (and sometimes less) than people assume.
In this article, we’re going to take a clear-eyed look at what at-will employment actually means under West Virginia law, the key exceptions to it, and how courts treat wrongful discharge claims. Whether you’re running a business or advising a worker, understanding these rules is crucial to avoiding (or pursuing) a lawsuit.
The Basic Rule: At-Will Employment Means Either Side Can Walk
The general rule in West Virginia—and most other states—is that employment is presumed to be at-will. That means an employer can terminate an employee for any reason, no reason, or even a bad reason, just not an illegal one. Similarly, employees can quit at any time without notice or explanation.
This doctrine has been around forever. It’s grounded in common law principles and reinforced by state court decisions. But, as always, the devil is in the details.
The Big Exceptions to the At-Will Rule
While at-will employment is the starting point, West Virginia law recognizes several important exceptions. Here are the big ones:
1. Public Policy Exception — Harless v. First Nat’l Bank
West Virginia’s most famous employment law case is Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978). This case carved out an exception to the at-will rule: an employee cannot be fired if the discharge violates a substantial public policy.
This is called a wrongful discharge in violation of public policy claim. Courts have recognized valid claims under this theory when an employee was terminated for:
- Refusing to engage in illegal acts;
- Reporting illegal conduct (whistleblowing);
- Filing for workers’ compensation;
- Serving on a jury;
- Exercising a right under law (like taking family leave or reporting safety violations).
Not every unfair firing is illegal. But if the employee can tie it to a clearly established public policy—usually found in statutes, constitutional provisions, or regulations—it opens the door to litigation.
2. Implied Contract Exception
Even if there’s no written employment contract, West Virginia courts may find an implied contract based on employee handbooks, policies, or oral assurances. If a handbook says that employees will only be fired “for cause” or after a series of disciplinary steps, that language might override the at-will presumption.
In Cook v. Heck’s Inc., 342 S.E.2d 453 (W. Va. 1986), the court said handbooks can form part of the employment contract if the language is specific enough and the employee relied on it. However, as I have written in another blog article, West Virginia courts have established significant hurdles for employees trying to argue that handbooks create contractual job security.
Employers can protect themselves by including disclaimers in handbooks stating that employment remains at-will despite any procedures or policies.
3. Discrimination and Retaliation Statutes
This is the most well-known exception: you can’t fire someone for a discriminatory reason. Under the West Virginia Human Rights Act (W. Va. Code § 5–11‑1 et seq.), it’s illegal to terminate someone because of their:
- Race
- Sex
- Age (40+)
- Religion
- Disability
- National origin
This statute also protects employees from retaliation if they oppose discrimination or participate in an investigation or lawsuit. Federal laws—like Title VII, the ADA, and the ADEA—offer overlapping protections.
So, even in an at-will job, an employee who’s fired after, say, filing a harassment complaint may have a claim for retaliatory discharge.
4. Statutory Rights (Workers’ Comp, FMLA, etc.)
Other West Virginia and federal statutes limit the at-will doctrine by protecting employees who exercise specific legal rights. For example:
- Employees can’t be fired for filing a workers’ compensation claim (W. Va. Code § 23–5A‑1).
- Eligible employees have rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
- The federal Occupational Safety and Health Act (OSHA) prohibits firing employees for reporting safety violations.
What Employers Should Do
If you’re advising businesses, the at-will doctrine gives flexibility—but not total freedom. Employers should:
- Document performance issues and disciplinary actions;
- Avoid knee-jerk firings, especially right after a complaint or protected activity;
- Review handbooks and make sure they include clear at-will disclaimers;
- Train managers on discrimination and retaliation risks.
Even when a firing is justified, how it’s handled matters.
What Employees Should Know
If you’re counseling employees who’ve been let go:
- Don’t assume that “at-will” means there’s no case. Look at the timeline—was the firing right after a complaint or injury?
- Ask for the handbook and any performance evaluations or emails.
- If there’s a protected class or whistleblowing situation involved, there may be grounds for a claim.
Final Thoughts
“At-will employment” is real—but it’s not absolute. In West Virginia, the doctrine coexists with important statutory and common law protections. Employers who ignore those protections do so at their peril, and employees who’ve been fired unfairly shouldn’t assume they’re out of options just because “at-will” was mentioned in the hiring paperwork.
The legal landscape is always evolving, and even old doctrines like at-will employment get reshaped by new decisions and changing expectations. Understanding the exceptions is half the battle—whether you’re drafting a termination letter or preparing a wrongful discharge complaint.
- The West Virginia Human Rights Act has moved! — April 15, 2025
- Background Checks in Hiring—What Employers Can (and Can’t) Do — April 15, 2025
- Understanding “Constructive Discharge” in Employment Law—When Quitting Is Really Getting Fired — April 13, 2025