Articles About West Virginia Labor & Employment Law.

Governor Jim Justice recently signed into law Senate Bill 272, the West Virginia Employment Law Workers Classification Act (the “Act”), which goes into effect on June 9, 2021.  The legislation provides standards for determining who is an employee and who is an independent contractor under certain West Virginia statutes. 

West Virginia may have been the last state to report a positive case of the coronavirus (COVID-19), but it has been quick in its response. Governor Jim Justice issued a stay at home order and closed all non-essential businesses.

On March 21, 2018, West Virginia Governor Jim Justice signed into law House Bill 4187, referred to as the Business Liability Protection Act, which limits an employer’s ability to prohibit the lawful possession of firearms locked in vehicles parked in company parking lots. Previously, employers and other property owners in West Virginia had the ability to prohibit the carrying or concealing of firearms on any property “under his or her domain,” including parking areas. HB 4187 amends the prior law to create an exception for employer parking lots.

West Virginia’s right to work law will be enforceable beginning October 15, 2017. The West Virginia Supreme Court of Appeals, the state’s highest court, has dismissed a lower court’s preliminary injunction blocking implementation of the legislation.

Workplace drug and alcohol testing in West Virginia traditionally has been scrutinized by the courts and has been available to employers in limited circumstances. That will change dramatically this summer when the state’s new drug and alcohol testing law, the West Virginia Safer Workplace Act, takes effect. Passed by the state legislature on April 8, 2017 and signed by the Governor on April 26, 2017, the Safer Workplace Act will significantly broaden the circumstances under which employers may conduct workplace drug and alcohol testing. The law takes effect on July 7, 2017.

West Virginia Governor Jim Justice signed legislation that legalizes the use of marijuana for medicinal uses on April 19, 2017. The new law, Senate Bill 386, known as “The West Virginia Medical Cannabis Act,” permits patients suffering from serious medical conditions including cancer, ALS, HIV/AIDS, multiple sclerosis, Parkinson’s disease, epilepsy, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, sickle cell anemia, severe chronic or intractable pain, or certain spinal cord damage to use marijuana for medicinal use.

The highest court in West Virginia recently affirmed the dismissal of a lawsuit in which an employee challenged the decision to terminate her employment after she refused to submit to a reasonable suspicion drug test. Layne v. Kanawha County Board of Education, No. 16-0407 (W.VA. Feb. 17, 2017). The case highlights the right way to conduct reasonable suspicion testing, and illustrates the usefulness of such testing to employers.

Wheeling has become West Virginia’s eleventh city to pass a sexual orientation and gender identity anti-discrimination ordinance protecting the housing and employment rights of LGBTQ residents. The ordinance also protects residents who are veterans.

For a number of years, W. Va. Code § 23-4-2 (commonly known as the deliberate intent statute) has provided employees with work-related injuries an avenue to circumvent the workers’ compensation immunity afforded to West Virginia employers. In part, the statute provides that the traditional immunity from suit for an employee’s work-related injury “may be lost only if the employer or person against whom liability is asserted acted with ‘deliberate intention,'” which requires proof of certain specific facts.

Significant changes to West Virginia’s Wage Payment and Collection Act (“WPCA”) and a cap on damages available to plaintiffs in employment litigation highlight the latest West Virginia Legislative Session for employers.

For the past several decades, West Virginia has not fared particularly well when employers were faced with tough decisions regarding whether to close or open new facilities in the state. One of the factors that undoubtedly played a role in West Virginia faring so poorly was the state’s legal climate. West Virginia employers faced a much higher litigation risk than employers in neighboring and other states.

In welcome news for employers, the West Virginia Department of Labor (WVDOL) has withdrawn a set of emergency regulations that would have significantly revamped state wage and hour requirements and created conflicts with federal wage and hour regulations. The WVDOL proposed the regulations to West Virginia’s Secretary of State on November 19, 2014 and requested they take effect on January 1, 2015, giving employers little time to respond to the proposal or develop compliance strategies. Despite the eleventh-hour approach used by the WVDOL, employers mounted a focused response analyzing the various flaws in the proposed regulations, which in many instances were vaguely worded, inconsistent with decades-long practices under federal and state law, and beyond the WVDOL’s legislative mandate to amend existing regulations.

Last month, the Supreme Court of Appeals of West Virginia ruled that a sheriff’s deputy failed to state a claim for invasion of privacy with respect to a drug test.