West Virginia Wrongful Termination Laws

Find out about workplace protections for West Virginia employees.

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Gavel and Scales

Have you recently lost your job? If so, you might be wondering whether you have grounds for a wrongful termination lawsuit. In West Virginia, as in other states, employees work at will. This means an employee can generally be fired at any time and for any reason, or for no reason at all.

But there are some exceptions to the at-will rule. For example, if your West Virginia employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim against your employer for wrongful termination.

Every state’s laws on wrongful termination are different. This article covers some of the common legal grounds you might have for suing your West Virginia employer for wrongful termination. But it’s not a comprehensive list of West Virginia employment rights, which can change as courts issue new rulings and legislators pass or modify laws. To find out the full extent of your legal claims, speak to an experienced West Virginia employment lawyer. To learn more about West Virginia employment law, contact the office of the West Virginia Division of Labor.

Discriminatory Firing

Under federal law, it is illegal for an employer to fire an employee based on a protected characteristic. Federal law prohibits employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (if the employee is at least 40), disability, citizenship status, or genetic information. However, only employers with a minimum number of employees must comply with these laws. Most types of discrimination are prohibited once an employer has at least 15 employees. However, the minimum is 20 employees for age discrimination and four employees for citizenship status discrimination. 

West Virginia law prohibits employment discrimination based on race, color, national origin, ancestry, sex, religion, blindness, disability, age (40 and older), or HIV or AIDS status. West Virginia employers must comply with these laws if they have 12 or more employees.

These laws also make it illegal for an employer to retaliate against you for asserting your rights. For example, if you complain to your company’s HR department that you believe you were passed over for promotion because of your age, your employer may not discipline or fire you for your complaint. Likewise, your employer cannot fire you for participating in an investigation of a discrimination complaint (no matter who made the complaint), testifying in court, or making other efforts to stop discriminatory practices.

Before filing a discrimination or retaliation lawsuit, you must file a complaint with the appropriate government agency. The West Virginia Human Rights Commission enforces the state’s laws prohibiting discrimination; the Commission has offices in Charleston. In many cases, state fair employment practices agencies will record your complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws. However, you should check to make sure. If not, you may also have to file a complaint with the EEOC; you can find contact information for the nearest office at the EEOC’s Field Offices page.

Breach of Contract

If you have a written employment contract promising you job security, you are not an at-will employee. West Virginia recognizes employment contracts based on statements in an employee handbook or oral promises on which the employee relied. For example, if your employee handbook states that employees will be fired only for good cause, your employer cannot fire you without a legitimate reason (such as misconduct or poor performance).

Wage and Hour Issues

The minimum wage in West Virginia is $7.25 an hour. Under federal and West Virginia law, employees who work more than 40 hours a week may be eligible for overtime. West Virginia requires employers to provide a meal break of at least 20 minutes for each six consecutive hours worked, unless employees are allowed to take breaks as needed or to eat lunch while working. 

Under federal law, employers who provide breaks of 20 minutes of less must generally pay employees for that time. Employers also must pay their employees for any time during which they must work, even if the employer characterizes that time as a “break.” Employers may not fire employees for filing wage complaints or testifying in wage proceedings.

Time Off Work

State and federal laws give employees the right to take time off work for certain civic obligations and personal responsibilities. Employers may not discipline or fire workers for exercising these rights. In West Virginia, these rights include:

  • Military leave. Under federal law, employees have the right to take up to five years of leave to serve in the military, with the right to be reinstated when they return to work. (This law also prohibits discrimination against employees based on their military service, protects employees from discharge without good cause for up to one year after they return from military duty, and provides other protections; see Nolo’s article Taking Military Leave for more information.) West Virginia extends these rights to employees who are members of the state’s organized militia and are called to active state service.
  • Jury duty. In West Virginia, employees are entitled to unpaid leave for jury service. Employers may not threaten or discipline employees, or cut their pay, for responding to a jury summons. Employers who fire or penalize employees for jury service are subject to criminal sanctions and special damages in a wrongful termination lawsuit.
  • Voting leave. Employers in West Virginia must allow employees to take up to three hours of paid leave to vote. Leave is not required if the employee has at least three non-work hours when polls are open. Employers in health, transportation, communications, production, and processing facilities may change employee schedules to allow them sufficient and convenient time to vote without impairing essential operations.
  • Family and medical leave. West Virginia employees are protected by the federal Family Medical Leave Act (FMLA). The FMLA requires employers with 50 or more employees to provide eligible employees with up to 12 weeks off, unpaid, every year for a serious health condition, to care for a family member with a serious health condition, to care for a new child, or to handle certain practical matters arising out of a family member’s military service. Employees can take up to 26 weeks off in a single year to care for a family member who is seriously injured while serving in the military. Employees who take FMLA leave must be reinstated to the same position once their leave is over. To learn more, see Nolo’s FMLA page.

Other State Claims

  • Workers' compensation. Employers may not fire employees for pursuing workers' compensation benefits.
  • Off-duty conduct. Employers may not fire employees for engaging in the legal use of tobacco while off-duty and away from the workplace. 

What to Do Next

If you think you were fired illegally, talk to a West Virginia employment lawyer. A lawyer can help you sort through the facts and assess the strength of your claims. A lawyer can also inform you of other state or local claims that you may have in addition to those listed above. Whether you want to try to get your job back, negotiate a severance package, or sue your employer in court, a lawyer can walk you through your options and help you decide on how best to proceed.

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