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Exceptions to the Employment At Will Doctrine

Employee Handbook

You may have heard that West Virginia is an employment at-will state. What this means is that in general workers do not have any guaranteed rights to continued employment. An at-will employee is one who can be fired at any time for any reason. In fact, the employer is not even required to give a reason at all when firing an at-will employee. By the same token, an at-will employee is free to quit a job at any time, without giving any notice to the employer or reason for the departure.

Contractual Exceptions to Employment At Will

As you might have guessed, while employment at will may be the general rule in West Virginia, there are actually many exceptions to this rule. The biggest exception to at will employment is probably the existence of an employment contract. Contractual employees and their employers are bound by the terms of the contract, which generally include a duration of employment and/or possible reasons for termination. Some contracts may list several reasons that could lead to firing, such as incompetence, insubordination, excessive tardiness or absences, poor performance reviews, safety violations, etc. Others may simply state that the employee may be fired “for cause” or for “good cause.” If there is any language like this in the contract, then the employment relationship is not at-will, and the terms of the agreement control.

Even if there is not a written contract in place, there are other ways a contractual relationship can be formed. Documents such as an employee handbook or a written job description may make express or implied statements about job security or the requirements of the job, so that it is hard for the employer to argue the employment is still at-will.

Finally, workers in unionized settings likely have job protections set out in the collective bargaining agreement, and public employees may be covered by a statute specific to their occupation or profession which provides statutory job protections and removes them from the status of at-will employees.

Public Policy Exceptions to At-Will Employment

Earlier it was stated that an at-will employee could be fired for any reason. This statement should be amended to say that an at-will employee can be fired for any legal reason. There are many laws protecting workers from illegal employment discrimination, which would include wrongful discharge. For instance, a covered employee cannot be fired on the basis of race, color, national origin/ethnicity, gender, age, religion, disability, pregnancy or military status. Also, an at-will employee could not be fired for reporting health or safety violations, illegal activity or other protected whistleblowing, or in retaliation for filing a workers’ compensation claim or giving a statement in a workers’ compensation inquiry or other workplace investigation.

The Law Provides Remedies for Wrongful Termination

If you lost your job for engaging in protected activity or due to an illegal reason, or if you believe the termination violated the terms of an employment contract, you may be able to get your job back or be entitled to compensation and other legal damages. It may be worthwhile to visit with an experienced employment lawyer, who can help you determine whether you have a case or not. In southern West Virginia, attorney Kay Bayless at the Bayless Law Firm in Princeton offers a free initial consultation in cases of wrongful termination. She can be reached at 304.487.8707, toll free at 800.359.2356, or contacted online.

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