Jackson Kelly PLLC

Labor & Employment News Alert


February 24, 2015

Employers who have defended employment discrimination and wrongful discharge suits in West Virginia courts know that the damages a plaintiff can obtain under state law are greater than those available in virtually any other jurisdiction.  In fact, an employee who is fired from a West Virginia workplace can obtain more damages in court than an employee who is seriously injured in a West Virginia workplace.  


Unlike federal law, there are no caps on the amount of damages a plaintiff can obtain under state law. Peculiar to West Virginia law, potential or even actual mitigation does not offset back or front pay awards if the plaintiff was discharged with "malice"--a concept that remains undefined by the courts.


Last Friday, the West Virginia Senate passed a bill that better aligns West Virginia law with other jurisdictions and recognizes that damages in employment cases are intended to make a plaintiff whole for a wrongful firing--not provide a windfall that effectively allows the employee to retire. SB344 specifically abolishes the "malice exception" to the duty to mitigate damages.  Under the new bill, any award of back or front pay must be reduced by a plaintiff's actual interim earnings or potential income a plaintiff could earn with reasonable diligence.  The employer retains the burden to prove a lack or reasonable diligence, akin the current burden to prove a plaintiff's failure to mitigate economic loss damages.  In addition, the issue of reinstatement or any award of front pay both become an issue for the judge to determine--not the jury.  


Also last week, the Senate passed SB421, which caps punitive damages at the greater of $500,000.00 or four times the amount of compensatory damages.  The bill also requires a bifurcation of the punitive damages issue at trial, if requested.  


Both bills were introduced in the House of Delegates last week and were referred only to the House Judiciary Committee.  Paired together, these bills are potential game changers in West Virginia employment discrimination and wrongful discharge litigation and position the State to correct years of imprecise jurisprudence that has left West Virginia in a class of its own with regard to damages available in these claims.  


Should you have any questions regarding this article or any other employment or labor matter, please contact  Erin Elizabeth Magee of Jackson Kelly PLLC at (304) 340-1360.







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