A Summary of West Virginia Whistleblower Laws
West Virginia is an employment-at-will state. This means employees can be discharged from work for any reason or no reason. However, there are a few exceptions to this doctrine that are used to protect employees from wrongful retaliation. These exceptions include common law protections and statutory protections. Statutory protections are laws that are enacted by the state’s legislature to address specific subject areas, e.g., workers’ compensation, whereas common law protections are laws that are created by courts to address subject areas that are not covered by enacted laws.
This is a summary of West Virginia Whistleblower Laws, make sure to check out the Federal Whistleblower Laws as well.
Whistleblower Rights in West Virginia
Common Law Protections
West Virginia has a public policy that is applied as an exception to the employment-at-will doctrine. Therefore, it is illegal for employers to discharge an employee for reasons that violate public policy. To determine whether an employee is eligible for protection under the state’s public policy, the courts usually rely on statutory protections, constitutional provisions, and prior judicial opinions. For example, if a statute endorses a worker’s right to collect a wage not less than the minimum wage, an employer who discharges an employee in retaliation for exercising such a right may be found guilty of violating public policy. Generally, West Virginia protects employees who engage in the following activities from wrongful discharge:
- Acting in self-defense.
- Filing a workers’ compensation claim.
- Filing a lawsuit against the employer.
- Refusing to participate in unlawful activities.
- Refusing to write false workplace safety reports.
Statutory Protections
Public Employees
Employers are not allowed to discharge, threaten, alter terms of employment, or in any way discriminate against a public employee in retaliation for:
- Reporting in good faith or intending to report wrongdoing or waste to the employer or appropriate authority.
- Receiving a request or being subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry held by an appropriate authority or in a court action.
Discrimination
It is considered unlawful discriminatory practice to in any way discriminate against an individual as a reprisal for:
- Opposing practices that are forbidden under this act.
- Filing a complaint under this statute.
- Testifying or assisting in a proceeding under this statute.
Under this statute, discrimination in employment based on race, religion, color, national origin, ancestry, sex, age, blindness, or disability is prohibited. W. Va. Code § 5-11-9(7)(C).
Miners’ Health, Safety, and Training
No person is allowed to discharge or in any way discriminate against a miner or authorized representative of a miner in retaliation for believing or having information that:
- A miner has notified his or her representative, director, or operator of a violation or danger.
- Instituting or causing the institution of a proceeding under this statute.
- Testifying or intending to testify in a proceeding under this statute.
Nursing Home Employees
No nursing home is allowed to discharge or in any way discriminate against an employee in retaliation for:
- Filing a complaint concerning abuse, neglect, or financial exploitation of a vulnerable adult or facility resident.
- Participating in a proceeding concerning abuse, neglect, or financial exploitation of a vulnerable adult or facility resident.
Long-term Care Ombudsman
No person is allowed to discipline or in any way discriminate against an employee of a long-term care facility or government department or agency in retaliation for filing a complaint or providing information in good faith to a state or regional long-term ombudsman to aid the state or regional long-term ombudsman in carrying out his or her duties. W. Va. Code § 16-5L-18(b).
Wage and Hour Violations
Employers are not allowed to discharge or in any way discriminate against an employee in retaliation for:
- Filing a complaint concerning unpaid wages to the commissioner or employer.
- Instituting or intending to institute a civil action.
- Filing a petition or criminal complaint against the employer.
- Testifying or intending to testify in a proceeding, civil action, or criminal action under this statute.
Workers’ Compensation
Employers are not allowed to in any way discriminate against an employee or former employee in retaliation for receiving workers’ compensation benefits or attempting to file a claim for workers’ compensation benefits. W. Va. Code § 23-5A-1.
Whistleblower Retaliation Claims in West Virginia
Unless stated otherwise by a statute, retaliation lawsuits should be filed within 2 years of the retaliatory action.
Discrimination
Complaints under this statute should be filed with the West Virginia Human Rights Commission (WVHRC) within 365 days of the retaliatory action.
Public Employees
Lawsuits under this statute should be filed within 2 years of the retaliatory action.
Miners’ Health, Safety, and Training
Complaints under this statute should be filed with the Office of Miners’ Health, Safety & Training.
Whistleblower Hotlines in West Virginia
To file a complaint with the West Virginia Human Rights Commission, click here.
To file a complaint with the Office of Miners’ Health, Safety & Training, call 304-558-1425.
Whistleblower Retaliation and Violation Penalties in West Virginia
Unless stated otherwise by a statute, employers who carry out unlawful retaliation against an employee may be liable to the aggrieved employee for a combination or any of the following remedies:
- Reinstatement to the employee’s former position.
- Payment of back wages.
- Full reinstatement of fringe benefits and seniority rights.
- Actual damages.
- Litigation costs, including reasonable attorney’s fees.
- Plus any other appropriate relief.
Public Employees
Employers who violate this statute may be liable to the aggrieved employee for a combination or any of the following remedies:
- Reinstatement to the employee’s former position.
- Payment of back wages.
- Full reinstatement of fringe benefits and seniority rights.
- Actual damages.
In addition, the employer may be liable for a civil fine not exceeding $5000. Also, if the court finds that the employer committed the violation with the aim of discouraging the disclosure of information, the finding may be deemed official misconduct and malfeasance in office and may be used as evidence in any subsequent proceeding to remove the violator from public office. The finding may also be used by a public body as a basis to discipline the violator.
Discrimination
Violators of this statute may be liable to the aggrieved employee for:
- Cease and desist.
- Hiring, reinstatement, or promotion of the employee with or without back pay.
- Admission or restoration to membership in any respondent labor organization.
- Plus any other appropriate relief.
Nursing Home Employees
Persons who fail to make a report under this statute or persons who prevent another person from making a report under this statute may be found guilty of a misdemeanor and upon conviction may be punished by a fine not exceeding $100 or imprisoned in the county jail for not more than 10 days, or both.
Long-term Care Ombudsman
Any person who retaliates against an employee of a long-term care facility or government department or agency may be found guilty of a misdemeanor and upon conviction may be punished by a fine not exceeding $100 or imprisoned in the county jail for not more than 90 days, or both. For a second or any subsequent offense, the retaliator may be found guilty of a misdemeanor and upon conviction may be punished by a fine not exceeding $250 or imprisoned in the county jail for not more than 90 days, or both. Each day that a violation continues will be considered a separate offense.
Wage and Hour Violations
Violators of this statute may be found guilty of a misdemeanor and upon conviction, may be liable for a fine ranging from $100 to $500.
More West Virginia Laws