Category Archives: Harless wrongful discharge

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)

Leave a comment

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) →
Dodd-Frank Act, False Claims Act, Harless wrongful discharge, Retaliation claims, Sarbanes-Oxley Act, Whitle blower claims (including Harless)

Workplace Whistleblower Protections: What Employees and Employers Need to Know

Leave a comment

Whistleblowing is one of the most powerful tools for exposing illegal activities in the workplace. Employees who report misconduct, fraud, or safety violations help keep businesses accountable, but they also risk retaliation. Federal and state laws offer protections for whistleblowers, ensuring they can report wrongdoing without fear of losing their jobs. Let’s break down what both employees and employers should know about whistleblower protections.

What Is a Whistleblower?

A whistleblower is an employee who reports unlawful or unethical behavior within a company. Common types of whistleblowing include:

  • Reporting fraud or financial misconduct (e.g., securities fraud, tax evasion).
  • Reporting unsafe working conditions or OSHA violations.
  • Disclosing discrimination or harassment in violation of employment laws.
  • Exposing government contract fraud or misuse of public funds.
Continue reading Workplace Whistleblower Protections: What Employees and Employers Need to Know →
Concerted activity, Employment at will rule, Harless wrongful discharge, National Labor Relations Act

When Personal Conduct Off the Clock Leads to Termination: Off-Duty Behavior and Employment Law

Leave a comment

Let’s talk about something that’s become more and more relevant in today’s world—off-duty conduct. What happens when an employee gets into trouble outside of work? Can an employer fire someone for something they did on their own time? And how do courts draw the line between private behavior and job-related consequences?

The short answer: yes, employers often can terminate someone for off-duty conduct, but it depends heavily on the circumstances—and there are key legal protections that limit this right.

This area of law lives in a gray zone where employment at-will, public policy, discrimination statutes, and even social media all overlap. Let’s dive in.

At-Will Employment and the Right to Terminate

As you know, West Virginia is an at-will employment state, like most of the country. That means employers can generally terminate an employee for any reason—or no reason at all—so long as it’s not illegal or in violation of a public policy. See W. Va. Code § 21-5-4 and Felix v. Grafton City Hospital, 447 S.E.2d 418 (W. Va. 1994).

So, in theory, an employer could fire an employee because of something they did off the clock—say, a bar fight, a controversial Facebook post, or a DUI arrest.

But theory and practice aren’t always the same.

Continue reading When Personal Conduct Off the Clock Leads to Termination: Off-Duty Behavior and Employment Law →
Harless wrongful discharge, Retaliation claims, Title VII of the Civil Rights Act of 1964, Whitle blower claims (including Harless), WV Human Rights Act

Wrongful Termination: What It Is and What It Isn’t

Leave a comment

Losing a job is tough, but not every termination is illegal. The term “wrongful termination” gets thrown around a lot, but in legal terms, it has a specific meaning. Both employers and employees need to understand what actually qualifies as wrongful termination under federal and West Virginia law.

What Is Wrongful Termination?

Wrongful termination happens when an employer fires an employee in violation of a law, contract, or public policy. This can include:

  • Discrimination: Firing someone based on race, gender, age, disability, or other protected characteristics violates federal and state anti-discrimination laws (42 U.S.C. §2000e-2; W. Va. Code §16B-17-9).
  • Retaliation: Employers can’t fire an employee for reporting discrimination, workplace safety violations, or engaging in other protected activities (42 U.S.C. 2000e-3(a); W. Va. Code §16B-17-9(7)).
  • Breach of contract: If an employee has a written contract or even an implied contract promising job security, a termination outside the agreed terms may be wrongful (Cook v. Heck’s Inc., 342 S.E.2d 453 (W. Va. 1986)).
  • Public policy violations: Employers can’t fire employees for reasons that violate public policy, such as refusing to engage in illegal activities (Harless v. First Nat’l Bank, 246 S.E.2d 270 (W. Va. 1978)).
Continue reading Wrongful Termination: What It Is and What It Isn’t →
Harless wrongful discharge, Seminars

Drew Capuder Will Be Speaking At Upcoming West Virginia Employment Lawyers Association Conference

Leave a comment

I look forward to speaking at the West Virginia Employment Lawyers Association‘s annual conference on October 12 and 13, 2018, at Hawk’s Nest State Park in Ansted, West Virginia.

I will be speaking and presenting an article on the Harless wrongful discharge doctrine, which deals with termination of employees where the employer’s motivation allegedly violates a substantial public policy.

I will also be presenting an article and participating in a panel discussion on social networking & electronic discovery issues.

Here is information on the conference, joining the WVELA, and attending the conference.

Harless wrongful discharge, Hostile work environment, Intentional infliction of emotional distress, Medical Industry Litigation, Pleading requirements, Result for Employee, Retaliation claims, Sex Discrimination, Sexual harassment, WV Human Rights Act, WV Supreme Court

Sorry boss, I didn’t know you were having sex in the office!!

1 Comment

The West Virginia Supreme Court recently issued an opinion dealing with one of those stereotypically awkward situations, where an employee allegedly stumbles into a room where the boss is having sex with a co-worker. The decision was  Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curiam). It was a 3-2 decision, in which the 3-vote majority consisted of Justices Robin Davis, Margaret Workman, and  Thomas McHugh. Justices Menis Ketchum and Brent Benjamin dissented, and Justice Ketchum wrote a dissenting opinion.

The Facts–Sex at Work

These are the facts according to the complaint in the lawsuit: Tricia Roth was a respiratory therapist working at DeFeliceCare, Inc. in Ohio County, West Virginia, and she was about to go on vacation. She was directed by Leslie DeFelice (the male boss/owner) to come to work sometime during the weekend preceding her vacation in June 2006. She was not told a specific time to come to work during that weekend. When she came to work as ordered, she “observed Defendant [Leslie] DeFelice and/or Michelle Kelly partially clothed and in a compromising position”. Mr. DeFelice instructed Ms. Roth to go into a conference room and wait–meanwhile Mr. DeFelice and the other employee got all their clothes back on. Mr. DeFelice then talked to Ms. Roth and told her to forget about what she had just seen, and threatened Ms. Ross with the loss of her respiratory therapy license and the loss of her employment.

Ms. Roth then went on vacation. When she got back from vacation and returned to work, she had a meeting with Mr. DeFelice that didn’t go well. Ms. Roth told Mr. DeFelice that she hadn’t told anyone about his sexual encounter at work. Mr. DeFelice proceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal theories centering around sex discrimination and sexual harassment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s complaint (the document which starts the lawsuit and describes the plaintiff’s allegations) focused on the sexual incident I have described above, but also made allegations about other sexual harassment–I will discuss those details below.

Continue reading Sorry boss, I didn’t know you were having sex in the office!! →