AT-WILL EMPLOYMENT: ALIVE AND WELL IN WEST VIRGINIA

On May 5th, the West Virginia Supreme Court of Appeals issued yet another decision in a recent spate of labor and employment rulings relevant for employers statewide. In Barry Swears v. R. M. Roach & Sons, Inc., Docket No. 35309 (W. Va. 2010), the Court upheld the termination of an at-will employee who claimed he was wrongfully discharged in violation of a substantial public policy.

Of course, the wise West Virginia employer knows to have its employees sign an at-will acknowledgment that clearly and boldly notifies them that they may be discharged at any time, with or without cause, and R. M. Roach was no exception in this case. They hired Mr. Swears as the company’s controller — an at-will position that included oversight of finances.

By way of background, R. M. Roach was owned at the time primarily by three brothers, one of whom was Mr. Swears’ direct supervisor and owner of a separate business, Sunfire Patio & Spa. Well, Mr. Swears believed that Mr. Roach’s side business created a conflict of interest with the company. He further believed — and reported to the other two brothers — that Sunfire, through its owner Mr. Roach: (1) had improperly used R.M. Roach’s employees, (2) held $15,000.00 worth of the company’s inventory, (3) caused a $150,000.00 decline in the company’s sales, and (4) had finance charges owed by Sunfire removed from the company’s books. Thereafter, Mr. Swears claimed that Mr. Roach retaliated against him in an effort to force him to quit. He was subsequently discharged for insubordination and general hostility when he was questioned regarding his recording of and payment for accrued compensatory time.

The issue facing the Court was “whether an employee’s reporting of alleged criminal conduct committed by a principal of a private company amounts to a substantial public policy exception to the at-will employment doctrine, providing a basis for a wrongful discharge action.” In answering that question, the Court first repeated the familiar refrain that public policy exceptions in West Virginia are drawn from a variety of resources: our constitution, statutes, regulations, and judicial opinions. For example, the duty of a citizen to provide truthful testimony at trial is of such obvious import that public policy forbids the discharge of an employee for providing that testimony.

In this case, according to the Court, Mr. Swears was incorrect in his belief that Mr. Roach had committed any crimes and, in any event, had not reported him to any law enforcement agency. While statutes exist that make certain behavior criminal, the Court stated that the employee must show that the conduct at-issue is “injurious to the public good.” Here, only the financial interests of a private corporation were at stake, so Mr. Swears could not demonstrate the existence of a public policy exception. In other words, as an at-will employee, Mr. Swears could not successfully challenge his discharge.

This opinion again evidences the continued vitality of at-will employment in West Virginia. Employers should continue to follow the simple practice of using at-will employment disclaimers in their applications and handbooks, and should regularly have their employees sign those kinds of acknowledgements.

Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
 
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