Category Archives: Contract Issues

Contract Issues, Employee handbook, Family and Medical Leave Act (FMLA), Harless wrongful discharge, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), Worker's compensation retaliation, WV Human Rights Act, WV Human Rights Commission

“At-Will” Employment in West Virginia: What It Really Means (and What It Doesn’t)

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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.

Con­tin­ue read­ing “At-Will” Employ­ment in West Vir­ginia: What It Real­ly Means (and What It Doesn’t) →
Contract Issues, Independent Contractors, Wage and Hour Issues

The Legal Risks of Misclassifying Employees as Independent Contractors

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Mis­clas­si­fy­ing employ­ees as inde­pen­dent con­trac­tors is one of the biggest pit­falls in employ­ment law, and it’s an issue that both employ­ers and work­ers need to under­stand. Get­ting it wrong can mean seri­ous legal and finan­cial con­se­quences. So, what’s the dif­fer­ence, why does it mat­ter, and how can busi­ness­es avoid cost­ly mistakes?

Employee vs. Independent Contractor: What’s the Difference?

At its core, the dis­tinc­tion between an employ­ee and an inde­pen­dent con­trac­tor comes down to con­trol. Employ­ees are sub­ject to their employer’s con­trol over how, when, and where they work. Inde­pen­dent con­trac­tors, on the oth­er hand, typ­i­cal­ly oper­ate their own busi­ness­es and con­trol how they com­plete their work.

The Inter­nal Rev­enue Ser­vice (IRS) and the U.S. Depart­ment of Labor (DOL) use dif­fer­ent tests to deter­mine work­er classification:

  • IRS Test: Focus­es on three pri­ma­ry factors—behavioral con­trol, finan­cial con­trol, and the rela­tion­ship between the par­ties (IRS Pub­li­ca­tion 15‑A).
  • DOL’s Eco­nom­ic Real­i­ties Test: Eval­u­ates fac­tors such as the degree of con­trol, the worker’s oppor­tu­ni­ty for prof­it or loss, and the per­ma­nen­cy of the work rela­tion­ship (29 C.F.R. § 800.110).
  • West Vir­ginia Law: The state fol­lows the com­mon law test sim­i­lar to the IRS approach, but courts may also con­sid­er eco­nom­ic depen­dence when decid­ing cases.
Con­tin­ue read­ing The Legal Risks of Mis­clas­si­fy­ing Employ­ees as Inde­pen­dent Con­trac­tors →
Contract Issues, Non-disclosure agreements

The Role of Non-Disclosure Agreements (NDAs) in Employment

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Non-Dis­clo­sure Agree­ments (NDAs) are every­where in the busi­ness world. Whether you’re start­ing a new job, work­ing on a sen­si­tive project, or leav­ing a com­pa­ny, you might be asked to sign one. But what do these agree­ments real­ly mean, and how enforce­able are they? Let’s break it down.

What Is an NDA?

An NDA is a con­tract that pre­vents employ­ees from dis­clos­ing con­fi­den­tial infor­ma­tion. Employ­ers use them to pro­tect trade secrets, busi­ness strate­gies, client lists, and oth­er pro­pri­etary data. NDAs can be stand­alone agree­ments or part of a broad­er employ­ment contract.

There are two main types:

  1. Uni­lat­er­al NDAs – One par­ty (usu­al­ly the employ­ee) agrees not to dis­close information.
  2. Mutu­al NDAs – Both par­ties agree to keep shared infor­ma­tion con­fi­den­tial, often used in busi­ness partnerships.
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Contract Issues, Employee handbook, Employment at will rule

Handbooks and other ways to bypass the employment at will rule

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Part 2 of a series on West Virginia employment law

This arti­cle fol­lows up my pri­or blog arti­cle, The Employ­ment at Will Rule in West Vir­ginia. In that arti­cle, I explained the basic con­tours of the employ­ment at will rule.

With the employ­ment at will rule radi­at­ing in the back­ground, there are many ways it can be mod­i­fied or bypassed. All claims relat­ing to dis­crim­i­na­tion and retal­i­a­tion, for exam­ple, mod­i­fy the rule to the extent an excep­tion is cre­at­ed by which the employ­er may not ter­mi­nate the rule for a spe­cif­ic rea­son, such as age.

Scenarios: handbooks and other promises

But this arti­cle focus­es on con­trac­tu­al or con­tract-like lim­i­ta­tions on the employ­ment at will rule. The par­ties (employ­er and employ­ee) can enter into a for­mal employ­ment con­tract that mod­i­fies the employ­ment at will rule. But I am not address­ing that for­mal con­tract in this arti­cle. I am real­ly try­ing to focus on two scenarios:

Con­tin­ue read­ing Hand­books and oth­er ways to bypass the employ­ment at will rule →