1. What legal protection does West Virginia provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
West Virginia recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that contravenes a substantial public policy principle. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, West Virginia courts will look to statutes, constitutional provisions, regulations, and judicial opinions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a West Virginia statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening West Virginia’s public policy. In both situations, employees are protected from retaliatory discharge. Whistleblowers have received some protection under the public policy exception.
In addition, the West Virginia Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, miners’ health and safety, nursing home employees, wages and hours, and workers’ compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that contravenes public policy. Specifically, West Virginia courts have protected the following employee activities:
- Filing a workers’ compensation claim
- Refusing to falsify workplace safety reports
- Filing a lawsuit against an employer (to obtain overtime wages)
- Refusing to participate in unlawful conduct
- Defending yourself from robbery / danger (self-defense)
Whistleblowers have received some protection from West Virginia courts. In one instance, a bank employee was permitted to sue after alleging that he was fired for reporting violations of consumer credit protection laws to his supervisors.
Discrimination: An employee may not suffer reprisal (or be otherwise discriminated against) for opposing practices that violate the West Virginia Human Rights Act (WVHRA). Nor may an employee suffer reprisal for filing a complaint, testifying in a proceeding, or assisting in a proceeding under the WVHRA. The WVHRA prohibits, among other things, discrimination in employment on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, or disability. W. Va. Code § 5-11-9(7)(C).
Miners’ Health and Safety: An employee may not be discharged (or discriminated against) in retaliation for the following protected activities:
- Reporting an alleged violation or danger to the coal mine operator or West Virginia Office of Miners’ Health, Safety & Training
- Filing or instituting a proceeding under West Virginia’s miner safety laws
- Testifying in a proceeding under West Virginia’s miner safety laws ⚖
Nursing Home Employees: A nursing home employee may not be discharged (or discriminated against) in retaliation for filing a complaint or participating in a proceeding to report abuse and neglect of a resident. W. Va. Code § 9-6-12(b).Additionally, an employee may not be discharged (or discriminated against) in retaliation for assisting the Long-Term Care Ombudsman in the furtherance of their duties. W. Va. Code § 16-5L-18.
Public Employees: An employee may not be discharged (or discriminated against) for reporting wrongdoing or waste to their employer or to the appropriate authority. W. Va. Code § 6C-1-3.
Wage and Hour Violations: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, filing a petition or criminal complaint, or testifying in a proceeding under West Virginia’s wage and hour laws (which includes minimum wage laws). Employers who discharge an employee for this reason are guilty of a misdemeanor and may be fined $100 to $500 per violation. W. Va. Code § 21-5C-7(a).
Workers’ Compensation: An employee may not be discriminated against in retaliation for filing (or attempting to file) a workers’ compensation claim. W. Va. Code § 23-5A-1.
3. How do I file a whistleblower or retaliation claim in West Virginia?
Generally: An employee may file a retaliatory discharge lawsuit in an appropriate court. The complaint must be filed within 2 years ⚖ of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the West Viriginia Human Rights Commission (WVHRC). The complaint must be filed within 365 days of the retaliatory action. If you believe you have a claim, you should contact the WVHRC immediately. The WVHRC has made a complaint form available on their web site (PDF). The WVHRC may be reached at:
West Virginia Human Rights Commission
1321 Plaza East Room 108A
Charleston, WV 25301-1400
Alternatively, an employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years ⚖ of the retaliatory action. If you wish to pursue this route, you should contact a lawyer.
Miners’ Health and Safety: An employee may file a complaint with the Coal Mine Safety Board of Appeals in the Office of Miners’ Health, Safety & Training. The complaint must be filed within 30 days of the retaliatory action. If you believe you have a claim, you should contact the Board of Appeals immediately at:
Coal Mine Safety Board of Appeals
1615 Washington St. East
Charleston WV 25311-2126
Alternatively, an employee may file a retaliatory discharge lawsuit in an appropriate court. If you pursue this route, you should contact a lawyer.