Category Archives: Employment at will rule

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:

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Employee handbook, Employment at will rule

The employment at will rule in West Virginia

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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:

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