Category Archives: WV Human Rights Act

WV Human Rights Act, WV Human Rights Commission, WV Legislation

The West Virginia Human Rights Act has moved!

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This is real­ly just a heads up to oth­er attor­neys. I am still see­ing a lot of lawyers incor­rect­ly cite the West Vir­ginia Human Rights Act to its pri­or location.

The West Vir­ginia had been orig­i­nal­ly cod­i­fied at § 5–11‑1.

Because of the West Vir­ginia leg­is­la­ture reor­ga­niz­ing last year var­i­ous part of the West Vir­ginia Code, the Human Rights Ac t has been relo­cat­ed to W. Va. Code § 16B-17–1.

A bit of detail (prob­a­bly more than you want):

Con­tin­ue read­ing The West Vir­ginia Human Rights Act has moved! →
Constructive discharge, Retaliation claims, WV Human Rights Act

Understanding “Constructive Discharge” in Employment Law—When Quitting Is Really Getting Fired

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Intro­duc­tion
Most peo­ple think of get­ting fired as a clear-cut event—your boss calls you into the office, maybe there’s a stern con­ver­sa­tion, and you’re sent pack­ing. But not every ter­mi­na­tion is that explic­it. Some­times, the work­ing con­di­tions get so bad that an employ­ee feels they have no real choice but to quit. That’s where the legal con­cept of con­struc­tive dis­charge comes into play.

In West Vir­ginia (and under fed­er­al law), con­struc­tive dis­charge is tech­ni­cal­ly not a self-suf­fi­cient legal claim. Con­struc­tive dis­charge is a legal doc­trine for deter­min­ing whether a res­ig­na­tion will be treat­ed as a dis­charge, so that the con­struc­tive­ly dis­charged employ­ee is treat­ed as hav­ing been invol­un­tar­i­ly sep­a­rat­ed (ter­mi­nat­ed, fired). If an employ­ee’s res­ig­na­tion is tru­ly vol­un­tary, then there is no “wrong­ful dis­charge,” and the employ­er is not legal­ly respon­si­ble for the employ­ee’s finan­cial harm after the res­ig­na­tion. But if the res­ig­na­tion is treat­ed as a con­struc­tive dis­charge, the employ­ee may have a viable wrong­ful dis­charge claim, and may have recov­er­able dam­ages for the finan­cial harm expe­ri­enced after the dis­charge. But the con­struc­tive dis­charge itself is not inde­pen­dent­ly “actionable”–it must be cou­pled with a legal the­o­ry such as sex dis­crim­i­na­tion or retal­i­a­tion for whistleblowing.

Con­tin­ue read­ing Under­stand­ing “Con­struc­tive Dis­charge” in Employ­ment Law—When Quit­ting Is Real­ly Get­ting Fired →
Hostile work environment, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

The Evolving Standard for Hostile Work Environment Claims

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When employ­ees say their work­place is “tox­ic” or “hos­tile,” they’re often using the term loosely—maybe it’s office dra­ma, an annoy­ing boss, or just a gen­er­al­ly tense atmos­phere. But in employ­ment law, a hos­tile work envi­ron­ment has a very spe­cif­ic legal mean­ing. And as courts have refined the stan­dard over the years, the line between what’s action­able and what’s just unpleas­ant has got­ten sharp­er (but not nec­es­sar­i­ly clearer).

For both employ­ers and employ­ees in West Vir­ginia, it’s impor­tant to under­stand what actu­al­ly qual­i­fies as a hos­tile work envi­ron­ment under the law, how these claims are proven, and what the poten­tial pit­falls are in lit­i­ga­tion. Spoil­er alert: just being a jerk isn’t nec­es­sar­i­ly illegal.

What Is a Hostile Work Environment?

Under both fed­er­al law and West Vir­ginia law, a hos­tile work envi­ron­ment occurs when an employ­ee is sub­ject­ed to dis­crim­i­na­to­ry harass­ment that is severe or per­va­sive enough to alter the con­di­tions of employ­ment and cre­ate an abu­sive work­ing environment.

Con­tin­ue read­ing The Evolv­ing Stan­dard for Hos­tile Work Envi­ron­ment Claims →
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) →
Joint Employment, National Labor Relations Act, National Labor Relations Board, WV Human Rights Act

Understanding Joint Employment Under Federal and West Virginia Law

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If you work in health­care, hos­pi­tal­i­ty, or any indus­try that relies on staffing agen­cies, fran­chise mod­els, or shared employ­ment struc­tures, you’ve like­ly encoun­tered the con­cept of joint employ­ment. But what does it actu­al­ly mean? And more impor­tant­ly, how could it affect you or your clients?

Joint employ­ment occurs when mul­ti­ple entities—like a com­pa­ny and a staffing agency, or a fran­chisor and a franchisee—share con­trol over an employee’s work. That shared con­trol can lead to shared lia­bil­i­ty, espe­cial­ly in wage-and-hour dis­putes, dis­crim­i­na­tion claims, and union mat­ters. With recent changes to fed­er­al rules and ongo­ing court deci­sions, under­stand­ing joint employ­ment has nev­er been more important.

What Is Joint Employment?

Sim­ply put, joint employ­ment hap­pens when two or more enti­ties have sig­nif­i­cant con­trol over the terms and con­di­tions of a worker’s job. That could include con­trol over sched­ules, pay rates, hir­ing, fir­ing, or dai­ly super­vi­sion. For legal pur­pos­es, both enti­ties may be con­sid­ered “employ­ers,” mean­ing they’re both respon­si­ble for com­ply­ing with employ­ment laws.

Con­tin­ue read­ing Under­stand­ing Joint Employ­ment Under Fed­er­al and West Vir­ginia Law →
Americans with Disabilities Act, Disability discrimination, Reasonable Accommodations, WV Human Rights Act

Understanding the Interactive Process Under the ADA: A Two-Way Street

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Let’s talk about a con­cept in employ­ment law that often gets over­looked or misunderstood—the “inter­ac­tive process” under the Amer­i­cans with Dis­abil­i­ties Act (ADA). If you rep­re­sent employ­ers or employ­ees, or you’re an HR pro­fes­sion­al nav­i­gat­ing accom­mo­da­tion requests, this process is absolute­ly cen­tral to ADA compliance.

It’s also one of the more com­mon areas where employ­ers get tripped up—not nec­es­sar­i­ly by refus­ing to accom­mo­date a dis­abil­i­ty, but by fail­ing to com­mu­ni­cate prop­er­ly and in good faith.

What is the Interactive Process?

Under the ADA, once an employ­er becomes aware that an employ­ee needs an accom­mo­da­tion for a dis­abil­i­ty, the law requires the employ­er to engage in an “inter­ac­tive process” with the employ­ee to iden­ti­fy a rea­son­able accom­mo­da­tion. The statu­to­ry basis is 42 U.S.C. § 12112(b)(5)(A), which defines dis­crim­i­na­tion to include not mak­ing “rea­son­able accom­mo­da­tions to the known phys­i­cal or men­tal lim­i­ta­tions of an oth­er­wise qual­i­fied indi­vid­ual with a dis­abil­i­ty,” unless the employ­er can show undue hardship.

The Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) explains that this is not a one-time conversation—it’s a col­lab­o­ra­tive dia­logue aimed at iden­ti­fy­ing and imple­ment­ing accom­mo­da­tions that allow the employ­ee to per­form the essen­tial func­tions of their job.\

The gov­ern­ing reg­u­la­tion, 29 C.F.R. § 1630.2(o)(3), puts it this way:

“To deter­mine the appro­pri­ate rea­son­able accom­mo­da­tion it may be nec­es­sary for the cov­ered enti­ty to ini­ti­ate an infor­mal, inter­ac­tive process with the indi­vid­ual with a dis­abil­i­ty in need of the accommodation.”

Con­tin­ue read­ing Under­stand­ing the Inter­ac­tive Process Under the ADA: A Two-Way Street →
Americans with Disabilities Act, Disability discrimination, WV Human Rights Act

Workplace Disability Discrimination: Understanding Rights and Employer Obligations

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Dis­abil­i­ty dis­crim­i­na­tion in the work­place is an issue that affects both employ­ees and employ­ers. With the Amer­i­cans with Dis­abil­i­ties Act (ADA) set­ting the legal frame­work, busi­ness­es must nav­i­gate rea­son­able accom­mo­da­tions while ensur­ing com­pli­ance. Employ­ees, on the oth­er hand, need to under­stand their rights and what steps to take if they expe­ri­ence dis­crim­i­na­tion. Let’s break it down.

What Is Disability Discrimination?

Dis­abil­i­ty dis­crim­i­na­tion occurs when an employ­er treats an employ­ee or job appli­cant unfa­vor­ably because of a dis­abil­i­ty. This can include:

  • Refus­ing to hire a qual­i­fied appli­cant due to a disability.
  • Fail­ing to pro­vide rea­son­able accom­mo­da­tions that would enable an employ­ee to per­form essen­tial job functions.
  • Wrong­ful­ly ter­mi­nat­ing or demot­ing an employ­ee based on their disability.
  • Harass­ing an employ­ee due to their dis­abil­i­ty or med­ical condition.

The ADA (42 U.S.C. § 12112) pro­hibits dis­crim­i­na­tion against qual­i­fied indi­vid­u­als with dis­abil­i­ties in all aspects of employ­ment, includ­ing hir­ing, fir­ing, pro­mo­tions, and job assignments.

Con­tin­ue read­ing Work­place Dis­abil­i­ty Dis­crim­i­na­tion: Under­stand­ing Rights and Employ­er Oblig­a­tions →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, WV Human Rights Act, WV Human Rights Commission

The Roles of the EEOC and the West Virginia Human Rights Commission in Workplace Discrimination Claims

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Work­place dis­crim­i­na­tion is a seri­ous issue, and employ­ees who believe they’ve been treat­ed unfair­ly often turn to the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) or the West Vir­ginia Human Rights Com­mis­sion (“HRC”) for help. But what exact­ly do the EEOC and HRC do, and how does the com­plaint process work? Whether you’re an employ­er try­ing to stay com­pli­ant or an employ­ee con­sid­er­ing fil­ing a claim, it is impor­tant to under­stand the EEOC’s and HRC’s roles.

What Is the EEOC?

The EEOC is the fed­er­al agency respon­si­ble for enforc­ing anti-dis­crim­i­na­tion laws in the work­place. It inves­ti­gates com­plaints of dis­crim­i­na­tion based on race, sex, age, dis­abil­i­ty, nation­al ori­gin, reli­gion, and oth­er pro­tect­ed char­ac­ter­is­tics under laws like:

  • Title VII of the Civ­il Rights Act of 1964 (42 U.S.C. § 2000e‑2)
  • The Age Dis­crim­i­na­tion in Employ­ment Act (ADEA) (29 U.S.C. § 623)
  • The Amer­i­cans with Dis­abil­i­ties Act (ADA) (42 U.S.C. § 12112)

The agency also enforces laws pro­hibit­ing retal­i­a­tion, mean­ing an employ­er can’t pun­ish an employ­ee for fil­ing a com­plaint or par­tic­i­pat­ing in an investigation.

Con­tin­ue read­ing The Roles of the EEOC and the West Vir­ginia Human Rights Com­mis­sion in Work­place Dis­crim­i­na­tion Claims →
Pregnancy discrimination, Sex Discrimination, Sexual harassment, Title VII of the Civil Rights Act of 1964, WV Human Rights Act

Workplace Harassment: What Employers and Employees Need to Know

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Work­place harass­ment is a seri­ous issue that can lead to legal trou­ble for employ­ers and cre­ate a tox­ic work envi­ron­ment for employ­ees. While most peo­ple think of harass­ment in terms of sex­u­al mis­con­duct, the law cov­ers a much broad­er range of behav­iors. Under­stand­ing what con­sti­tutes work­place harass­ment and how to han­dle it is cru­cial for both employ­ers and employees.

What Is Workplace Harassment?

Harass­ment is defined as unwel­come con­duct based on race, col­or, reli­gion, sex (includ­ing preg­nan­cy, gen­der iden­ti­ty, and sex­u­al ori­en­ta­tion), nation­al ori­gin, age (40 or old­er), dis­abil­i­ty, or genet­ic infor­ma­tion (42 U.S.C. §2000e‑2(a)). It becomes ille­gal when:

  • Endur­ing the offen­sive con­duct becomes a con­di­tion of con­tin­ued employ­ment, or
  • The con­duct is severe or per­va­sive enough to cre­ate a hos­tile work envi­ron­ment (Mer­i­tor Sav. Bank v. Vin­son, 477 U.S. 57 (1986)).

Harass­ment isn’t just about inap­pro­pri­ate jokes or unwant­ed advances—it can include threats, intim­i­da­tion, offen­sive images, or even work­place poli­cies that dis­pro­por­tion­ate­ly affect cer­tain groups.

Con­tin­ue read­ing Work­place Harass­ment: What Employ­ers and Employ­ees Need to Know →
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

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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 →