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Employment Law FAQs

In this post, attorney Mike Addair answers several frequently-asked employment law questions.

Q: Does my employer have to have a good reason before it can fire me?

A: If you are an employee who is employed under a contract for a definite term, the answer to this question is yes. For the most part, someone who is employed under an employment contract can be fired only for reasons listed in the contract. If the employer fires an employee under contract for reasons other than those set forth in the employment contract, the employee may have a claim for breach of contract.

However, most employees in West Virginia are not employed under an employment contract and, as a result, are "at-will employees." Under the "at-will employment doctrine," the employer and employee enter into a voluntary employment relationship that can be terminated by either party, at any time, for any reason. Therefore, just as an employee may quit his employment for any reason or no reason, an employer can fire an employee, at any time, for a good reason, a bad reason, or no reason at all, so long as the reason for termination does not violate the employee's rights under West Virginia law.

Q: Have I been wrongfully discharged from my job?

A: As discussed above, West Virginia follows the "at-will employment doctrine," which means an employer can discharge employees not employed under an employment contract for any reason as long as the reason has not been deemed unlawful by State or federal employment laws. If your employer fires you for an unlawful reason, it is deemed a wrongful discharge. Some examples of unlawful reasons for termination include unlawful discrimination, retaliation for certain protected activities like complaining about harassment or discrimination, retaliation for exercising your employment rights, and reasons that have been deemed to violate the public policy of West Virginia.

Q: What kind of discrimination is prohibited by law?

A: One common misconception is that an employer is not allowed to treat employees differently (discriminate) for any reason at all. This is not true. An employer who does not like folks who have tattoos, for instance, can decide to fire or not hire or promote an employee solely because the employee has tattoos and not be subject to legal consequences.

However, an employer cannot discriminate against an employee for unlawful reasons. Discrimination is unlawful when it is based upon an employee's status as a member of a “protected class.” Some examples of protected classes include age, gender, disability, race, national origin, religion, military status, and others. If an employer has treated you differently in regard to the terms and conditions of your employment (e.g., hiring, firing, promotion, pay, assignments, etc.) based upon your membership in a protected class, you may have a claim for unlawful workplace discrimination.

Q: What is sexual harassment?

A: Employees have the right to a work in a workplace free of sexual harassment. There are two categories of sexual harassment -- quid pro quo sexual harassment and hostile work environment sexual harassment. All forms of sexual harassment, regardless of type, are unlawful in West Virginia.

Quid pro quo sexual harassment takes place when an employer requests a romantic relationship or sexual favors in exchange for hiring or job advancement (e.g., continued employment, promotion, pay raise, favorable assignments, etc.). If you have been propositioned for sexual favors in exchange for employment or job advancement, you may have a claim for quid pro quo sexual harassment.

Hostile work environment sexual harassment can take many forms. For instance, you may be the victim of hostile work environment sexual harassment if you have been repeatedly subjected to sexually-charged jokes or innuendo; grabbed, groped, whistled at, or cat-called; subjected to unwanted sexual or romantic advances; and/or subjected to other physical, visual, or verbal conduct of a sexual nature or which is otherwise based upon your gender. If you have been subjected to any of this conduct at work, you may have a claim for sexual harassment.

Q: What if I have to quit my job due to a hostile work environment?

A: Some employees are subjected to work environments that are so hostile that they have no choice but to quit their job. Many people believe that if they quit their job instead of being fired, they have no recourse available to them. In some cases, this is not true.

If you have been subjected to severe and pervasive conduct based upon your membership in a protected class that changes your employment environment in a way that would leave a reasonable person no choice but to quit, you may have a claim for a type of wrongful discharge called "constructive discharge."

Q: Can I be fired for filing a workers' compensation claim?

A: No. An employer may not discriminate or retaliate against an employee in any manner because of the employee's receipt of or attempt to receive workers' compensation benefits.

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