Have you recently lost your job? If so, you might be wondering whether you have grounds for a wrongful termination lawsuit against your former employer. 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. If your West Virginia employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, for example, 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 legal grounds you might have for suing your employer in West Virginia 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 whether you have a legal claim for wrongful termination, speak to an experienced West Virginia employment lawyer.
Under federal law, it is illegal for an employer to fire someone based on a protected characteristic, such as race or religion. Federal law prohibits employers from firing employees because of their race, color, national origin, sex, 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; the minimum is 20 employees for age discrimination, and four employees for discrimination based on citizenship status.
West Virginia law prohibits employment discrimination based on race, color, national origin, sex, religion, disability, age (40 and older), HIV or AIDS status, or off-duty tobacco use. 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. If you are fired for complaining of discrimination, participating in an investigation of a discrimination complaint (whether you or another employee made the complaint), or testifying in court, you have a retaliation claim against your former employer.
If you believe you were fired for discriminatory or retaliatory reasons, you must file a charge of discrimination with a government agency before you may proceed with a lawsuit. In West Virginia, the Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting discrimination; you can find out where to file a complaint at the EEOC’s Field Offices page. The West Virginia Human Rights Commission enforces the state’s laws prohibiting discrimination.
Breach of Contract
If you have an employment contract promising you job security, you may not be an at-will employee. If, for example, you signed a written employment agreement stating that you could be fired only for good cause, you do not work at will. If your employer fired you without good cause, you have a legal claim for breach of contract. The same is true if, for example, your employer promised during your job interview that you would not be fired for the first year of your employment, but fired you sooner.
Fraud, Emotional Distress, or Other Tort Claims
Depending on the circumstances, you might be able to bring a “tort” (personal injury) lawsuit for wrongful termination. For example, some states allow fired employees to sue for fraud, violation of public policy, infliction of emotional distress, or other injuries. Which types of claims (if any) an employee can bring depends on decisions by state court judges, which means that the rules are always developing and changing. To find out whether you might have a valid tort claim in your particular situation, you’ll need to talk to an experienced employment lawyer.
West Virginia Employment Protections
Under federal and West Virginia law, an employer cannot fire employees for exercising workplace rights that are guaranteed by law. Some of these protections are outlined below; to learn more about West Virginia employment law, contact the office of the West Virginia Division of Labor.
Wage and Hour Issues
The minimum wage in West Virginia is $7.25 an hour. Federal law and the laws of some states allow employers to pay tipped employees a lower minimum wage, as long as they earn enough in tips to make up the difference. In West Virginia, employers may pay tipped employees 80% of the minimum wage, as long as that amount plus what the employees earn in tips are equal to at least the full minimum wage.
Under federal and West Virginia law, employees who work more than 40 hours a week may be eligible for overtime. Not every type of job is eligible for overtime, however.
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 must pay for shorter employee breaks during the day (under 20 minutes). Employers also must pay their employees for any time during which they must work, even if the employer characterizes that time as a “break.”
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. 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). This law gives eligible employees who work for larger employees the right to take up to 12 weeks off, unpaid, every year for their own 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 must be reinstated to the same position they previously held once their FMLA leave is over. To learn more, see Nolo’s FMLA page.
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 any claims you may have against your former employer. A lawyer can explain your options and help you protect your rights, whether you decide to try to get your job back, negotiate a severance package, or take your former employer to court.