West Virginia — Termination

West Virginia follows the at-will employment doctrine. Under this rule, employers may terminate an employee at any time without stating a reason or providing advance notice, and employees may likewise resign without notice. The Division of Labor confirms that West Virginia follows the at-will doctrine for employment relationships, meaning employers may terminate an employee without stating a reason or providing notice.

However, the at-will rule is subject to several exceptions. An employer cannot terminate an employee for reasons that violate federal or state anti-discrimination laws, in breach of an express or implied employment contract, or in retaliation for conduct protected by statute. The West Virginia Supreme Court of Appeals also recognizes a common-law public policy exception: "The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge." This public policy exception, first articulated in Harless v. First National Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978), protects employees from termination when the discharge would frustrate a clearly established public policy found in the state constitution, statutes, regulations, or judicial decisions.

Source: WV Division of Labor – Division Authority & Referral Information

West Virginia requires employers to pay final wages to separated employees on or before the next regular payday on which the wages would otherwise be due and payable. This uniform deadline applies regardless of whether the employee was discharged, quit, resigned, or was laid off. The rule is codified in W. Va. Code § 21-5-4(b).

Payment deadlines by separation type

Under § 21-5-4(b), whenever an employer discharges an employee, or whenever an employee quits or resigns from employment, the employer must pay the employee's wages due for work performed prior to the separation on or before the next regular payday. This timing requirement is identical for all forms of voluntary and involuntary separation.

For layoffs, § 21-5-4(c) imposes the same deadline: when an employee's work is suspended as a result of a labor dispute or the employee is laid off for any reason, the employer must pay in full to the employee not later than the next regular payday, either through the regular pay channels or by mail if requested by the employee, all wages earned at the time of suspension or layoff.

Fringe benefits and final wages

The term "wages" for purposes of final-paycheck timing includes accrued fringe benefits that are capable of calculation and payable directly to an employee, as defined in W. Va. Code § 21-5-1(c). However, § 21-5-4(b) carves out fringe benefits that are provided 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 ascertainable conditions. Such benefits are not subject to the next-regular-payday rule and instead are payable according to the terms of the agreement.

The West Virginia Division of Labor's guidance explains that fringe benefits earned and payable upon separation based on written company policy are normally considered part of final wages unless the policy specifically designates them payable at a later date. Examples of fringe benefits include vacation pay, sick leave, personal leave, production incentive bonuses, and medical and pension contributions.

Method of payment

Under § 21-5-1(l), employers may pay discharged or separated employees their final wages by any permissible manner and through regular payment channels or, if requested by the employee, by mail. Employers who pay final wages by mail are considered to have made the payment on the date the payment is postmarked.

Liquidated damages for late payment

If an employer fails to pay final wages as required under § 21-5-4, the employer is liable to the employee for two times the unpaid amount as liquidated damages, in addition to the amount that was unpaid when due. Before an employee may seek liquidated damages or attorney's fees in court, W. Va. Code § 21-5-4a generally requires the employee to make a written demand to the employer seeking payment. The employer then has seven calendar days from receipt to correct the alleged underpayment or nonpayment. If the employer fails to do so, the employee may pursue liquidated damages and attorney's fees. This written-demand requirement does not apply if the employer fails to notify the employee, upon separation or with the final paycheck, of the authorized representative and where to send a written demand.

Source: W. Va. Code § 21-5-4 Source: W. Va. Code § 21-5-1 Source: W. Va. Code § 21-5-4a Source: WV Division of Labor – Final Wages Fact Sheet