STATE OF WEST VIRGINIA RETAIL COMPENDIUM OF LAW

Transcription

1 STATE OF WEST VIRGINIA RETAIL COMPENDIUM OF LAW Updated in 2016 By Peter T. DeMasters Mina R. Ghantous Flaherty Sensabaugh Bonasso PLLC 48 Donley Street Suite 501 Morgantown, WV Tel: (304) Flahertylegal.com Original compendium prepared by Huddleston Bolen LLP 2016 USLAW Retail Compendium of Law

2 RETAIL, RESTAURANT, AND HOSPITALITY GUIDE TO WEST VIRGINIA PREMISES LIABILITY 1. WEST VIRGINIA COURT SYSTEM 1 A. West Virginia State Court System 1 i. Structure 1 ii. Judicial Selection 2 B. West Virginia Federal Court System 3 C. Arbitration 4 2. NEGLIGENCE 4 A. General Negligence Principles 4 B. Premises Liability/Slip and Fall 5 C. Open and Obvious 6 D. Landlord/Tenant and Liability for Leased Premises 6 E. Dramshop Act 7 F. Comparative Fault/Contributory Negligence 8 G. Joint and Several Liability 8 H. The Empty Chair Defense 10 I. Collateral Source Rule WORKER S COMPENSATION 11 A. Deliberate Intent 12 i. Actual Knowledge 13 ii. Violation of Safety Statutes and Standards 14 iii. Compensable Injury 14 iv. Verified Statement 15 B. Discrimination/Retaliation EMPLOYMENT 18 A. Minimum Wage/Maximum Hours 18 B. Wage Payment and Collection Act 18 C. West Virginia Human Rights Act 21 D. Retaliatory Discharge 22 i. Legislative Findings 22 ii. Substantial Public Policy 23 E. Negligent Hiring, Retention and Supervision 25 F. Privacy EMPLOYMENT CONTRACTS AND RELATED CLAIMS 27 A. Non-Compete Agreements 27 B. Tortious Interference 28

3 6. DAMAGES IN PREMISES LIABILITY CASES 29 A. Caps on Damages 29 B. Calculation of Damages 30 C. Available Items of Personal Injury Damages 31 i. Past medical bills 31 ii. Future medical bills 31 iii. Hedonic damages 31 iv. Increased risk of harm 32 v. Disfigurement 32 vi. Disability 32 vii. Past pain and suffering 33 viii. Future pain and suffering 33 ix. Loss of Society 33 x. Lost income, wages, earnings 33 D. Mitigation 33 i. Breach of Contract 33 ii. Specific economic damages 34 E. Punitive Damages 34 i. Intentionality 34 ii. Breach of Contract 34 iii. Recklessness 34 iv. Factors Considered 34 v. Insurability 35 F. Settlements Involving Minors 36 i. Court Approval 36 ii. Court Considerations 36 G. Recovery of Pre- and Post-Judgment Interest 36 i. Pre-judgment interest 37 ii. Post-judgment interest INSURANCE AND INDEMNIFICATION 37 A. Insurance 37 i. Duty to Defend 37 B. Indemnification 38 i. Express Indemnity 38 ii. Implied Indemnity 38

4 1. WEST VIRGINIA COURT SYSTEM A. West Virginia State Court System i. Structure The West Virginia State Court System, as it would relate to retail, consists of three (3) courts: the Supreme Court of Appeals, circuit courts, and magistrate courts. There is no intermediate appellate court. (1) Supreme Court of Appeals: The Supreme Court of Appeals is the court of last resort in West Virginia and is located in the state capital, Charleston, West Virginia. The Court has extraordinary writ powers and original jurisdiction in proceedings involving habeas corpus, mandamus, prohibition, and certiorari. It receives appeals from the circuit courts throughout the state, in addition to worker s compensation appeals, which are made directly to the Court. The matter in controversy in civil appeals, exclusive of costs, must be of a value or amount exceeding $100. Every appeal, unless dismissed, will result in a decision on the merits. 1 (2) Circuit Courts: West Virginia's thirty one (31) circuit courts are courts of original and general jurisdiction over all civil cases at law in which the amount in controversy, excluding interest, exceeds $2,500; all civil cases in equity; proceedings in habeas corpus, mandamus, quo warranto, prohibition, and certiorari; and all felonies and misdemeanors. In addition, circuit courts receive appeals from magistrate courts, municipal courts, family courts, and administrative agencies (excluding workers' compensation appeals). 2 (3) Magistrate Courts: West Virginia s fifty-five (55) magistrate courts are courts of limited jurisdiction. Magistrates hear misdemeanor cases, conduct preliminary hearings in felony cases, hear civil cases with $5, or less in dispute, and issue arrest warrants, search warrants, and emergency protective orders in cases involving domestic violence. 3 1 See generally, WEST VIRGINIA JUDICIARY, Supreme Court of Appeals-About the Court, (last visited February 5, 2016); W. VA. CODE (1923); W. VA. R. APP. P. 21, Clerk s Comments (2010) ( The ability to enter memorandum decisions rather than refusal orders under prior practice is at the core of the revised process. ). Appeals are of right, as opposed to permission. W. VA. R. APP. P. 21, Clerk s Comments (2010). 2 See generally, WEST VIRGINIA JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction, (last visited February 5, 2016); W. VA. CODE (b)- (d) (2008). 3 See generally, WEST VIRGINIA JUDICIARY, Magistrate Courts-Trial Courts of Limited Jurisdiction, (last visited February 5, 2016); W. VA. CODE (1994). 1

5 Additionally, a unique aspect of the West Virginia Court System is the relatively recent creation of the Business Court Division, as of June 13, The State s Business Courts handle a specialized docket within the circuit courts, consisting of those cases involving commercial issues and disputes between businesses. See W. VA. TR. CT. R (2014); W. VA. TR. CT. R (a) (2014) (defining business litigation ); W. VA. CODE (2010). Any party or judge may seek a referral of Business Litigation to the Division by filing a Motion to Refer to the Business Court Division with the Clerk of the West Virginia Supreme Court of Appeals, which is ultimately reviewed and decided by the Chief Justice. W. VA. TR. CT. R (2014). The Business Court Division has seven (7) judges, who can serve staggered, successive seven (7) year terms. W. VA. TRIAL COURT R (2014). ii. Judicial Selection The rules regarding the election and appointment of judges and magistrates within West Virginia are as follows: (1) Justices for the West Virginia Supreme Court of Appeals: Elected by the voters for twelve (12) year terms, the five (5) Justices on the Supreme Court must have practiced law for at least ten (10) years. Annually, members of the Court choose the position of Chief Justice. The Governor appoints Justices to fill vacancies on the five-member bench if they should occur between elections. 4 (2) Circuit Court Judges: Elected by the voters of the Circuit, circuit judges serve terms of eight (8) years. In circuits with two or more judges, there shall be a chief judge. Circuit court judges must have practiced law for at least five (5) years. The Governor appoints judges to fill vacancies if they should occur between elections. 5 4 W. VA. CONST. art. VIII 2; W. VA. CODE , (2015). See generally, WEST VIRGINIA JUDICIARY, Supreme Court of Appeals-About the Court, (last visited February 5, 2016). 5 W. VA. CONST. art. VIII 5; W. VA. CODE (2015). See generally, WEST VIRGINIA JUDICIARY, Circuit Courts-Trial Courts of General Jurisdiction, (last visited February 5, 2016). 2

6 (3) Magistrate Court Judges: Elected for four (4) year terms, magistrates do not have to be lawyers. Circuit Court Judges appoint Magistrates to fill vacancies if they should occur between elections. 6 As of January, 2016, the election of West Virginia Supreme Court Justices, circuit court judges, family court judges, and magistrate court judges are to be conducted on a non-partisan basis and by division. See W. VA. CODE (2015); W. VA. CODE (2015); W. VA. CODE (2015). B. West Virginia Federal Court System West Virginia is divided into two (2) separate jurisdictions, the Northern District of West Virginia and the Southern District of West Virginia. The Northern District is composed of thirtytwo (32) counties, and four (4) points of holding court, located in Clarksburg, Elkins, Martinsburg, and Wheeling. See UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF WEST VIRGINIA, Court Locations, (last visited January 31, 2016). The Southern District is composed of twenty-three (23) counties, and four (4) points of holding court, located in Beckley, Bluefield, Charleston, and Huntington. See UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA, Judicial Districts by County, (last visited January 31, 2016). West Virginia is part of the Fourth Circuit Court of Appeals, in the company of Maryland, Virginia, North Carolina, and South Carolina. UNITED STATES COURT of APPEALS for the FOURTH CIRCUIT, About the Court, (January 31, 2016). 6 W. VA. CONST. art. VIII 10; W. VA. CODE (2015). See generally, WEST VIRGINIA JUDICIARY, Magistrate Courts-Trial Courts of Limited Jurisdiction, (last visited February 5, 2016). 3

7 C. Arbitration As of July 1, 2015, the Revised Uniform Arbitration Act governs arbitration proceedings in West Virginia. Parties wishing to end a dispute may voluntarily submit the controversy to arbitration in West Virginia. See W. VA. CODE (2015), et seq. Once a dispute is submitted to arbitration, the submission is irrevocable absent leave of court. See W. VA. CODE (2015). Similar to the majority of states, West Virginia has held that an arbitration provision that is part of a larger contract does not require separate consideration so long as there is adequate consideration for the contract as a whole. See Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 737 S.E.2d 550 (2012). A court, however, must determine on a case-by-case basis whether an arbitration provision is so harsh or unfair that it should not be enforced. In an employment contract, if a court finds an arbitration provision to be one-sided or unreasonably favors one party, then the court can decide to not enforce the arbitration provision. See generally, New v. GameStop, Inc., 232 W. Va. 564, 753 S.E.2d 62 (2013) (per curiam). 2. NEGLIGENCE A. General Negligence Principles West Virginia follows the traditional approach to negligence actions. In all claims of negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of care, that the defendant breached that duty and that the breach was the proximate cause of the damages sustained by the plaintiff. See generally, Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W. Va. 16, 23, 560 S.E.2d 491, 498 (2001). See also Syl. Pt. 2, Tolliver v. Shumate, 151 W. Va. 105, 150 S.E.2d 579 (1966). Proximate cause is that cause which in actual sequence, unbroken by any independent cause, produces the event and without which the event would not have occurred. 4

8 Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, , 77 S.E.2d 180, 189 (1953) (citation omitted). In other words, there must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act, the injury would not have occurred. Rowe v. Sisters of the Pallottine Missionary Soc'y, 211 W. Va. 16, 23, 560 S.E.2d 491, 498 (2001). B. Premises Liability/Slip and Fall Under West Virginia law, [t]he owner or the possessor of premises is not an insurer of the safety of every person present on the premises. Syl. Pt. 8 (in part), Hersh v. E-T Enters., P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013) (overruled on other grounds). "In determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury." Syl. Pt. 6, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). Of these factors, foreseeability is the most important. Syl. Pt. 5, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Syl. Pt. 5, in part, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999) (citation omitted). The common law distinction between licensee and invitees for the purposes of premises liability has been abolished. Syl. Pt. 4, Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999). However, a category that remains significant is that of the trespasser, and to her or him, possessors of real property owe no duty of care, (except where a common-law right-of-action existed as of April 29, 5

9 2015), including the duty to refrain from willfully or wantonly causing the trespasser injury. W. VA. CODE (a) (2015). C. Open and Obvious In 2015, the West Virginia Legislature statutorily abrogated the decision of the West Virginia Supreme Court in Hersh v. E-T Enters., P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013). 7 Pursuant to the Hersh Court s decision, all premises liability matters were to be judged under a straight negligence standard, and the open and obvious doctrine was not a complete defense in a premises liability action. Id. See also Syl. Pt. 6. However, W. VA. CODE (c) (2015) reinstated the open and obvious doctrine, prior to the Hersh decision, such that possessors of real property are under no duty to protect others against dangers that are in fact open and obvious. D. Landlord/Tenant and Liability for Leased Premises Under West Virginia law, absent a leased provision to the contrary, a landlord is not responsible for keeping the leased premises in repair. See generally, Lennox v. White, 133 W. Va. 1, 3, 54 S.E.2d 8, 9 (1949). 8 However, there are exceptions to this general rule. One such exception is the "common use" doctrine, that is, where tenants or invitees of tenants are injured on part of the premises that can be used in common by tenants or by the public, such as sidewalks, 7 A valuable resource in identifying actions of the West Virginia Legislature relevant to West Virginia retail law was the West Virginia Legislation Updates, Parts I and II, utilized in the Compendium, passim. See Joseph K. Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part I, 118 W. Va. L. Rev. Online 23 (2015), Joseph K. Reeder & Matthew G. Chapman, 2015 West Virginia Legislation Update: Part II, 118 W. Va. L. Rev. Online 45 (2015), 8 Where property is leased to different tenants in severalty, the landlord is not responsible for the negligent use of, or failure to keep in repair, heating, lighting, or plumbing fixtures under the control of a tenant in the latter's portion of the premises; and where, as a result of such negligence, injury results to the goods of another tenant, the landlord is not liable therefor." Barker v. Withers, 141 W. Va. 713, 718, 92 S.E.2d 705, 708 (1956) (citation omitted). 6

10 passageways, bathrooms, etc. Syl. Pt. 6, Cowan v. One Hour Valet, 151 W. Va. 941, 157 S.E.2d 843 (1967). This exception applies to all cases where the landlord retains control of certain places or things in connection with the leased premises. See Cowan v. One Hour Valet, 151 W. Va. 941, , 157 S.E.2d 843, (1967). The landlord or lessor can also be held liable in such cases where the lessor has knowledge of a defective condition at the expiration of a lease and does not disclose or repair such condition before he renews the lease or relets the premises. Id. Further, West Virginia has recognized that a landlord can be held liable for a defective condition regardless of the general rules prohibiting such liability when the control of the premises is really with the lessor or landlord, although it may also serve the lessee or tenant, such as adjoining walls, plumbing, and electrical equipment. Id. E. Dramshop Act Those who sell or serve alcohol in the State of West Virginia 9 should be acutely cognizant of W. VA. CODE (2003). 10 Its provisions concern the sale and serving of alcohol to minors, when alcohol can and cannot be sold or served, and when liability can attach to those who sell or serve alcohol to an intoxicated individual who subsequently injures another, triggering application of West Virginia s dramshop act. W. VA. CODE (a)(3) (2003) renders it unlawful to sell, furnish or give non-intoxicating beer to any person under twenty-one (21) years old. With the exception of private clubs, it 11 cannot be sold, given, or dispensed until 9 The Code specifically speaks to any licensee, his, her, its or their servants, agents or employees. 10 Legislation introduced in 2016 seeks to amend several aspects of this Chapter of the West Virginia Code. Depending upon when this Compendium is reviewed, the accuracy of the statute should thus be verified. 11 W. VA. CODE 60-3A-18 (2011) and W. VA. CODE (2007) addresses liquor and wine sales. See also n.10, supra. 7

11 after one o clock p.m. 12 on Sundays. W. VA. CODE (a)(1) (2003). Pursuant to W. VA. CODE (a)(2) (2003), it is unlawful to sell, furnish or give it to any person visibly or noticeably intoxicated or to any person known to be insane or known to be a habitual drunkard. Put simply, alcohol vendors can face civil liability in negligence for injuries sustained by third parties as a consequence of a purchaser s intoxication. Anderson v. Moulder, 183 W. Va. 77, 82, 394 S.E.2d 61, 66 (1990). As in all negligence actions, questions of foreseeability and causation will be central to the determination of whether or not liability attaches. F. Comparative Fault/Contributory Negligence West Virginia operates under a modified comparative fault standard. W. VA. CODE a(a) (2015). Therefore, recovery in personal injury, property damage, or wrongful death cases is based upon the percentage of fault of each applicable party. W. VA. CODE a(b) (2015). However, in order to recover damages, the plaintiff s own negligence or fault must not be equal to or greater than the defendant's negligence. If the plaintiff is less than 50% at fault, the award is decreased by the plaintiff s percentage of fault. If the plaintiff is 50% or more at fault, she/he cannot recover. See W. VA. CODE c(c); Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). G. Joint and Several Liability As a result of the 2015 Legislative session, joint liability for compensatory damages was abolished. W. VA. CODE c(a) (2015). 13 However, there are several exceptions to this prohibition. Joint liability may be imposed on two (2) or more defendants who consciously 12 Pending 2016 legislation seeks to change this to ten o clock a.m. S.B. 21, 82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 298, 82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 307, 82nd Leg., 2nd Sess. (W. Va. 2016). 13 Section 13c does not apply to the following: W. VA. CODE 29-12A-1, et seq. (the Governmental Tort Claims and Insurance Reform Act); W. VA. CODE , et seq. (the Uniform Commercial Code); and W. VA. CODE 55-7b-1, et seq. (the Medical Professional Liability Act). 8

12 conspire and deliberately pursue a common plan or design to commit a tortious act or omission. W. VA. CODE c(a) (2015). If a defendant drives a vehicle under the influence of alcohol, a controlled substance, or any other drug or combination thereof, which is a proximate cause of the plaintiff s damages, joint and several liability shall apply. W. VA. CODE c(h)(1) (2015). A defendant whose acts or omissions constitute criminal conduct or an illegal disposal of hazardous waste (pursuant to W. VA. CODE ) which is the proximate cause of the plaintiff s damages shall also be subject to joint and several liability. W. VA. CODE c(h)(2) (2015). To calculate the judgment amount attributable to each defendant pursuant to the modified comparative fault standard, the Court multiplies the total amount of compensatory damages recoverable by the plaintiff by the percentage of each defendant s fault, which is the maximum amount recoverable against her or him. W. VA. CODE c(b) (2015). However, should the plaintiff s fault equal or exceed that of the combined fault of all other persons responsible for the total amount of damages, then the plaintiff is barred from recovery. W. VA. CODE c(c) (2015). If the plaintiff s fault is less than the combined fault of all other persons, then the plaintiff s recovery is reduced in proportion to her/his degree of fault. Id. Importantly, if a plaintiff is unable to collect from a liable defendant through good faith efforts, the plaintiff may move for reallocation of any uncollectible amount among the other parties found liable. W. VA. CODE c(d) (2015). The plaintiff must do this not later than one year after judgment becomes final through lapse of time for appeal or through exhaustion of appeal, whichever occurs later. Id. If the Court determines that part, or all, of the defendant s proportionate share is uncollectible from that defendant, the uncollectible amount shall be reallocated among the other liable parties, including the plaintiff, according to their percentages at 9

13 fault. W. VA. CODE c(d)(1) (2015). However, the Court may not reallocate to any defendant an uncollectible amount greater than the defendant s percentage of fault, multiplied by the uncollectible amount. Id. Additionally, [t]here shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff s percentage of fault, nor can fault allocated to an immune defendant, or a defendant whose liability is limited by law, be reallocated to another defendant. Id. W. VA. CODE c(g) (2015). The parties may conduct discovery on the issue of collectability before a hearing on the reallocation motion. W. VA. CODE c(d)(2) (2015). H. The Empty Chair Defense The trier of fact may consider all persons who contributed to a plaintiff s alleged damages, regardless of whether or not they could have been named as a party to the suit. W. VA. CODE d(a)(1) (2015). Consideration of the fault of such a party is permissible if the plaintiff entered into a settlement agreement with the non-party or if a defending party gives notice, no later than one hundred and eight (108) days after service of process on said defending party, that a non-party was wholly or partially at fault. W. VA. CODE d(a)(2) (2015). However, legislation pending as of January 26, 2016, proposes to extend the time frame for giving notice to one hundred and eighty (180) days. See S.B. 385, 82nd Leg., 2nd Sess. (W. Va. 2016). Additionally, proposed legislation changes the circumstances that can bar a plaintiff s recovery, specifically concerning the prohibition of recovery for damages for wrongful conduct H.B. 4008, 82nd Leg., 2nd Sess. (W. Va. 2016); S.B. 7, 82nd Leg., 2nd Sess. (W. Va. 2016). I. Collateral Source Rule West Virginia recognizes the collateral source rule. See generally Kenney v. Liston, 233 W. Va. 620, 760 S.E.2d 434 (2014). The rule "normally operates to preclude the offsetting of 10

14 payments made by health and accident insurance companies or other collateral sources as against the damages claimed by the injured party." Syl. Pt. 7, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981). The purpose of the collateral source rule is to prevent the jury from being tempted to reduce the damages "based on the amounts that the plaintiff has been shown to have received from collateral sources." Id. at Syl. Pt WORKERS COMPENSATION The West Virginia Workers Compensation Act ( WVWCA ), W. VA. CODE , et seq., was developed in order to guarantee employees injured on-the-job limited benefits no matter who was at fault for the accident, while also granting the employer immunity from tort liability. The workers compensation system provides the employee with compensation for medical bills paid and lost wages. The employer is, however, entitled to a set-off of any amount received or receivable by plaintiffs from workers compensation. Any employer who pays into the workers' compensation fund "is not liable to respond in damages at common law or by statute for the injury or death of any employee." W. VA. CODE (2003). Instead, claims that arise out of the furtherance of the employer's business must be submitted to the workers' compensation board. This compromise system between employer and employee allows an employer to foresee and prepare for the costs of on-the-job injuries, and thus pass those costs on to consumers of their products or services. The WVWCA applies nearly universally to employers across the state, and includes all persons, firms, associations, and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service, or business in this state. W. VA. CODE (a) (2005). All injuries that occur in the course of, and resulting from, such covered employment fall within the system. Employees must give written notice of work-related injuries 11

15 immediately or as soon as practicable after the occurrence, and the employer must then report the injury to the commissioner within five (5) days of receiving the employee s notice of injury, or within five (5) days after the commissioner notifies the employer that a claim of benefits has been filed, whichever is sooner. W. VA. CODE a (2003); W. VA. CODE b (2005). A. Deliberate Intent If you do business in West Virginia, you should be familiar with not only the mandatory workers compensation law, but the deliberate intent exception to statutory immunity as well. Pursuant to this exception, if an employee can prove that the employer acted with deliberate intent to injure the employee, the employer is stripped of its workers compensation immunity. W. VA. CODE (d)(2) (2015). [A]n employee, widow, widower, child, or dependent has a deliberate intention cause of action against the employer for injury or death of an employee. In the event of an employee's death, the decedent's estate has a claim." Syl. Pt. 3, in part, Murphy v. E. Am. Energy Corp., 224 W. Va. 95, 680 S.E.2d 110 (2009). See also W. VA. CODE (c) (2015). The traditional negligence standard is insufficient for the employee to prevail in a deliberate intent action, as the statute delineates the two (2) methods by which an employee s claim may succeed. First, an employee can prove the employer acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to the employee. W. VA. CODE (d)(2)(A) (2015). This standard requires the showing of an actual, specific intent and is not satisfied by either allegation or proof of conduct that produced a result not specifically intended, conduct that was negligent, no matter how gross or aggravated, or willful, wanton or reckless misconduct. Id. 12

16 The second avenue available to an employee to establish deliberate intent is if the trier of fact determines that the following five (5) elements are proven: (i) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death; (ii) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition. (iii) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer. (iv) That notwithstanding the existence of the facts set forth in subparagraphs (i) through (iii), inclusive, of this paragraph, the person or persons alleged to have actual knowledge under subparagraph (ii) nevertheless intentionally thereafter exposed an employee to the specific unsafe working condition; and (v) That the employee exposed suffered serious compensable injury or compensable death as defined in section one, article four, chapter twenty-three as a direct and proximate result of the specific unsafe working condition. W. VA. CODE (d)(2)(B) (2015). The law relating to deliberate intent underwent substantial amendment as a result of the 2015 legislative session. Notable changes made to the pre-existing deliberate intent statute concerned (i) how actual knowledge is established; (ii) what constitutes violation of safety statutes and standards; (iii) what constitutes intentional exposure; (iv) the definition of compensable injury; and (v) pleading requirements regarding the verified statement. i. Actual Knowledge This must be specifically proven and not deemed or presumed. W. VA. CODE (d)(2)(B)(ii)(I) (2015). It may be shown by evidence of intentional and deliberate failure to conduct an inspection, audit or assessment required by state or federal statute or regulation... specifically intended to identify each alleged specific unsafe working condition. Id. Actual knowledge is not established by what an employee s immediate 13

17 supervisor or management personnel should have known, had reasonable care or more diligence been exercised. W. VA. CODE (d)(2)(B)(ii)(II) (2015). Additionally, proof of an immediate supervisor or management personnel s knowledge of prior accidents, near misses, safety complaints or citations from regulatory agencies must be proven by documentary or other credible evidence. W. VA. CODE (d)(2)(B)(ii)(III) (2015). ii. Violation of Safety Statutes and Standards If the specific unsafe working condition relates to a commonly accepted and well-known safety standard within the industry or business of the employer, it must be a consensus written rule or standard promulgated by the industry or business of the employer, such as an organization comprised of industry members. W. VA. CODE (d)(2)(B)(iii)(I) (2015). If the specific unsafe working condition relates to a violation of a state or federal safety statute, rule or regulation, it must be specifically applicable to the work and working condition involved and intended to address the specific hazard(s) presented by the alleged specific unsafe working condition. W. VA. CODE (d)(2)(B)(iii)(II) (2015). iii. Compensable Injury It can only be established by one of four (4) methods delineated by statute as follows: (I) It is shown that the injury, independent of any preexisting impairment: (a) Results in a permanent physical or combination of physical and psychological injury rated at a total whole person impairment level of at least thirteen percent (13%) as a final award in the employees workers compensation claim; and (b) Is a personal injury which causes permanent serious disfigurement, causes permanent loss or significant impairment of function of any bodily organ or system, or results in objectively verifiable bilateral or multi-level dermatomal radiculopathy; and is not a physical injury that has no objective medical evidence to support a diagnosis; or (II) Written certification by a licensed physician that the employee is suffering from an injury or condition that is caused by the alleged unsafe working condition and is likely to result in death 14

18 within eighteen (18) months or less from the date of the filing of the complaint. The certifying physician must be engaged or qualified in a medical field in which the employee has been treated, or have training and/or experience in diagnosing or treating injuries or conditions similar to those of the employee and must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed. (III) If the employee suffers from an injury for which no impairment rating may be determined pursuant to the rule or regulation then in effect which governs impairment evaluations pursuant to this chapter, serious compensable injury may be established if the injury meets the definition in subclause (I)(b). (IV) If the employee suffers from an occupational pneumoconiosis, the employee must submit written certification by a board certified pulmonologist that the employee is suffering from complicated pneumoconiosis or pulmonary massive fibrosis and that the occupational pneumoconiosis has resulted in pulmonary impairment as measured by the standards or methods utilized by the West Virginia Occupational Pneumoconiosis Board of at least fifteen percent (15%) as confirmed by valid and reproducible ventilatory testing. The certifying pulmonologist must disclose all evidence upon which the written certification is based, including, but not limited to, all radiographic, pathologic or other diagnostic test results that were reviewed: Provided, That any cause of action based upon this clause must be filed within one year of the date the employee meets the requirements of the same. W. VA. CODE (d)(2)(B)(v) (2015). iv. Verified Statement To be submitted when a complaint is served pursuant to W. VA. CODE (d)(2)(B) (2015), it must be from a person with knowledge and expertise of the workplace safety statutes, rules, regulations and consensus industry safety standards specifically applicable to the industry and workplace involved in the employee s injury. W. VA. CODE (d)(2)(C)(i) (2015). The statement must set forth opinions and information on: (I) The person s knowledge and expertise of the applicable workplace safety statutes, rules, regulations and/or written consensus industry safety standards; (II) The specific unsafe working condition(s) that were the cause of the injury that is the basis of the complaint; and (III) The specific statutes, rules, regulations or written consensus industry safety standards violated by the employer that are directly related to the specific unsafe 15

19 working conditions: Provided, however, That this verified statement shall not be admissible at the trial of the action and the Court, pursuant to the Rules of Evidence, common law and subclause two-c, subparagraph (iii), paragraph (B), subdivision (2), subsection (d), section two, article four, chapter twenty-three of this code, retains responsibility to determine and interpret the applicable law and admissibility of expert opinions. Id. Additionally, causes of action are to be brought either in the circuit court of the county in which the alleged injury occurred or where the employer s principal place of business is located. W. VA. CODE (e) (2015). Discovery may be bifurcated upon the employer s request to resolve liability issues prior to those concerning damages. W. VA. CODE (d)(2)(C)(iii) (2015). The amendments resulting from the 2015 Legislative session apply to all injuries occurring on or after July 1, W. VA. CODE (g) (2015). The affirmative defenses of comparative negligence and assumption of the risk are not available to employers in a deliberate intent case. The battleground during the dispositive motion and trial phases is the fine line between arguing the plaintiff s comparative negligence and presenting evidence that the employee created the specific unsafe working condition. B. Discrimination/Retaliation When an injured employee seeks to collect benefits and pursue his or her statutory remedies, however, some employers are tempted to retaliate against that employee in some cases. The anti-discrimination provisions of the WVWCA are designed to prohibit an employer from discriminating in any manner against any of his present or former employees because of such... employee s receipt of or attempt to receive benefits under this chapter. W. VA. CODE 23-5A-1 (1978). The Supreme Court of Appeals of West Virginia has held that in order to prevail on a claim of workers compensation discrimination, an employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers Compensation Act, W. Va. Code , et seq.; and (3) the filing of a workers compensation 16

20 claim was a significant factor in the employer s decision to discharge or otherwise discriminate against the employee. See Syl. Pt. 1, Powell v. Wyo. Cablevision, 184 W. Va. 700, 403 S.E.2d 717 (1991). It is a discriminatory practice under the WVWCA to terminate an injured employee while the injured employee is off work due to a compensable injury... and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense. W. VA. CODE 23-5A-3(a) (1990). In addition, an employee is generally entitled to reinstatement after the employee is physically able to return to work. Under the applicable provision of the W. VA. CODE 23-5A- 3(b) (1990): It shall be a discriminatory practice... for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee s former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing.... In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, [t]hat the employee provides to the employer a current mailing address during this one-year period. Under this statute, reinstatement is required so long as the position is available, and the employee is not disabled from performing the duties of the job, with reasonable accommodations. If the position is not available, the employee should be reinstated to a comparable position in terms of wages, working conditions, and job duties. If no such comparable position is available, the employee is entitled to preferential recall rights to any position the employee is capable of performing for one year from the date that the employee notifies the employer that he or she wants 17

21 reinstatement. In order to exercise the reinstatement rights protected by this statute, including rights to preferential recall, an employee must prove through competent medical evidence that he has recovered from his compensable injuries and is capable of returning to work and performing his job duties. Id. 4. EMPLOYMENT A. Minimum Wage/Maximum Hours Employers are to pay their employees wages at a rate not less than $8.75 per hour. W. VA. CODE 21-5C-2(a)(5) (2014). 14 No employee shall be employed for a work week exceeding forty (40) hours unless compensated for the employment in excess of the forty (40) hours. W. VA. CODE 21-5C-3(a) (1992). Specifically, this shall be at a rate not less than one and one-half times the regular rate at which she/he is employed. Id. Currently, West Virginia House Bill 2243, introduced on January 13, 2016, proposes that when an employee is required to work on a State holiday, regardless of whether or not it is in excess of the forty (40) hour work week, she/he shall be paid at a rate not less than one and one half time the regular rate at which said employee is employed. H.B. 2243, 82nd Leg., 2nd Sess. (W. Va. 2016). B. Wage Payment and Collection Act Companies that process paychecks and benefits out-of-state often find themselves in violation of the West Virginia Wage Payment and Collection Act (the Act ), W. VA. CODE , et seq. For the purposes of this Act, the definition of employee includes any person suffered or permitted to work by a person, firm or corporation, and therefore, independent contractors may also be protected by the Act. W. VA. CODE (b) (2015). The term 14 However, [w]hen the federal minimum hourly wage as prescribed by 29 U.S.C. 206(a)(1) is equal to or greater than the wage rate prescribed in the applicable provision of this subsection, every employer shall pay to each of his or her employees wages at a rate of not less than the federal minimum hourly wage as prescribed by 29 U.S.C. 206(a)(1). W. VA. CODE 21-5C-2(a)(6) (2014). 18

22 employer means any person, firm or corporation employing any employee. W. VA. CODE (m) (2015). The term wages is defined as compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation. W. VA. CODE (c) (2015). Wages include then accrued fringe benefits capable of calculation and payable directly to an employee. Id. The term fringe benefits means any benefit provided [to] an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage. W. VA. CODE (l) (2015). However, the Act does not require fringe benefits to be calculated contrary to any agreement between an employer and his employees, which does not contradict the Act. For instance, if an employer does not have a policy for paying an employee for unused sick days at the time of separation from employment, the Act does not require unused sick days to be paid as part of the fringe benefits owed at the time of separation of employment. To be compliant with the Act, employees are to be paid at least twice a month, with no more than nineteen (19) days between settlement, absent special agreement. W. VA. CODE (a) (2015). No employee can be employed for a work week exceeding forty (40) hours, unless the employee is compensated at a rate not less than one and a half times the regular rate at which the employee is employed. W. VA. CODE 21-5C-3(a) (1992). In terms of separation from employment, the Act contemplates three (3) scenarios. In West Virginia, if an employee is discharged, quits, or resigns, the employer shall pay the employee s wages in full prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable. W. VA. CODE (b) (2015). [F]ringe benefits, as defined in 19

23 section one of this article, that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement. For purposes of this section, business day means any day other than Saturday, Sunday or any legal holiday as set forth in section one, article two, chapter two of this code. Id. However, if the employee gives at least one (1) pay period s written notice of intention to quit, the employer shall pay all wages earned by the employee at the time of quitting. W. VA. CODE (c) (2015). When the work of any employee is suspended as a result of a labor dispute, or when an employee for any reason whatsoever is laid off, the employer shall pay the employee s wages in full no later than the next regular payday. W. VA. CODE (d) (2015). Payment in all instances may be made through the regular pay channels or, if requested by the employee, by mail. Id. The penalties for violating the Act can be significant. If an employer fails to pay an employee wages as required, the employer, in addition to the amount that was unpaid when due, is liable to the employee for twice that unpaid amount as liquidated damages. W. VA. CODE (e) (2015). Attorneys fees and interest are also available in addition to the penalty. W. VA. CODE (b) (1975). C. West Virginia Human Rights Act 20

24 In West Virginia, a wrongful or retaliatory discharge claim that is not based on contract or a violation of public policy is usually brought under the West Virginia Human Rights Act ( WVHRA ). There exists no general public policy against harassment in the workplace for purposes of wrongful discharge law. The WVHRA governs a claim where an individual was allegedly discriminated against because of race, religion, color, national origin, ancestry, sex, age, blindness or handicap. W. VA. CODE (1998). 15 An individual may bring a claim under the WVHRA in the West Virginia Human Rights Commission ( the Commission ) itself or in the circuit court. W. VA. CODE (1994); W. VA. CODE (b) (1998). A claim filed with the Commission must be brought within three hundred sixty-five (365) days of the adverse act. W. VA. CODE (1994). Any person against whom a complaint has been filed must respond in writing within ten (10) days of receipt of the complaint. W. VA. CODE R (2015); W. VA. CODE R , 6.3a (2015). The Commission rarely grants an extension for the employer to respond to a complaint. When a claim is brought before the Commission, an assistant attorney general may represent the claimant. W. VA. CODE R (2015). The Rules allow for written discovery in the form of interrogatories and requests for production of documents. W. VA. CODE R b; 7.16.c (2015). Requests for admissions are not provided for in the Commission s Procedural Rules. The Commission s Procedural Rules only provide a period of ten (10) days for answering interrogatories and twenty (20) days for responding to requests for production. W. VA. CODE R , 7.26.b (2015). Depositions may be taken at the discretion of the Administrative Law Judge ( ALJ ) upon motion by a party. W. 15 Senate Bill 111, proposing changes to the WVHRA, was introduced on January 13, Significantly, the changes the Bill seeks to incorporate concern the prevention of discrimination on the basis of sexual orientation. See S.B. 111, 82nd Leg., 2nd Sess. (W. Va. 2016). 21

25 VA. CODE R a, 7.22 (2015). Motions must be made in writing. W. VA. CODE R (2015). Any response to a motion must be submitted within five (5) days, regardless of whether a hearing has been set on the motion. Id. The ALJ may use discretion in scheduling arguments upon a motion or making a ruling based upon the written submissions alone. Id. Once a hearing is scheduled, agreed-to resolutions short of adjudication remain favored. Aggrieved parties may file petitions for administrative appeal with the Commission within thirty (30) days of receipt of the decision. W. VA. CODE (a) (1989). Any party aggrieved by a final order of the Commission may appeal the decision to the Supreme Court. Any final order of the Commission in which the complainant is awarded back pay in excess of $30,000 or other damages in excess of $5,000 may be appealed into the circuit court of Kanawha County. Id. A party may forego filing a claim with the Commission and pursue claims brought under the Act directly in the circuit court, for which there is a two (2) year statute of limitations. See Syl. Pt. 1, Price v. Boone County Ambulance Auth., 175 W. Va. 676, 37 S.E.2d 913 (1985); W. VA. CODE (b) (1998). D. Retaliatory Discharge i. Legislative Findings Employees of the State of West Virginia are entitled to be free from wrongful discharge and unlawful retaliation. W. VA. CODE 55-7E-2(a)(1) (2015). Citizens and employers alike are entitled to a legal system that adequately and reasonably compensates those subjected to unlawful employment actions, and the system should be fair, predictable in its outcomes, and it should function within the mainstream of American jurisprudence. W. VA. CODE 55-7E-2(a)(2) (2015). However, the Legislature s sweeping intentions are tempered by the fact that the goal of compensation remedies in employment law cases is to make the victim whole. W. VA. CODE 55-7E-2(a)(3) (2015). Lack of uniformity in 22

26 damage awards, inconsistent with established federal law and the law of surrounding states, puts West Virginia and its businesses at a competitive disadvantage. W. VA. CODE 55-7E-2(a)(4) (2015). The purpose of the newly-added Article 7E, a product of the 2015 Legislative session, is to provide a framework for adequate and reasonable compensation to those persons who have been subjected to an unlawful employment action, but to ensure that compensation does not far exceed the goal of making a wronged employee whole. W. VA. CODE 55-7E-2(b) (2015) (emphasis added). ii. Substantial Public Policy The general rule under West Virginia law is that employment is at-will and freely terminable by either party, subject to the exception that if the employee can show that the employer s motivation for discharge contravenes some substantial public policy. Syl. Pt. 1, Harless v. First Nat l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978). It is well-established that in West Virginia, retaliatory discharge cases are generally based on a public policy articulated under the constitution, legislative enactments, legislatively approved regulations, and judicial opinions. Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp. 188 W. Va. 371, 424 S.E.2d 606 (1992). The basis of such claims is that it serves the greater good to prohibit employers from taking disciplinary action against employees for opposing employer wrongdoing. Inherent in the concept of a public policy claim is that the public has an interest in the supposed wrongdoing identified and reported by the plaintiff asserting such a claim in order for it to be actionable. A substantial public policy should be easily recognizable so as to provide specific guidance to a reasonable person. Id. at Syl. Pt. 3. To obtain relief under a claim for wrongful discharge in violation of a substantial public policy, a former employee must show: (1) a clear public policy existed and was manifested in a state or federal constitution, statute, administrative regulation, or in the common law; 23