Mark H. Dellinger

Mark H. Dellinger is a Member in the Firm's Labor & Employment group, as well as the Coal, Energy and Manufacturing industry groups. He practices out of the Firm’s office in Charleston, West Virginia.

With a career spanning more than 20 years, Mark has built a solid practice focused on representing private and public sector employers in preventive counseling, employment litigation, and traditional labor relations matters. A significant part of Mark's litigation practice is devoted to representing employers in the defense of cases filed in federal and state courts, and on appeal. He is a seasoned trial attorney, having successfully tried many types of employment cases to verdict, including claims alleging wrongful discharge, discrimination, harassment, and retaliation. Mark also represents employers in administrative hearings and other proceedings before various federal and state agencies.

In his labor relations practice, Mark serves as the lead negotiator for employers in collective bargaining negotiations, including negotiations conducted under contract reopener provisions. Acting in this role, he represents employers engaged in many different industries, including manufacturing, energy, gaming, and healthcare. Mark also represents management in grievance arbitrations involving "just cause" discharge and contractual issues such as promotions/job bids, subcontracting, benefit changes, and dues check-off clauses. Furthermore, he defends employers against unfair labor practice charges filed with the National Labor Relations Board, as well as actions filed in federal court under the Labor Management Relations Act.

Mark is recognized for his work in the field of labor and employment law by The Best Lawyers in America^®, Chambers USA, and Super Lawyers^®. He also has received a preeminent AV peer-review rating from Martindale-Hubbell. In addition, he was appointed by West Virginia Governor Earl Ray Tomblin to serve as a member of the State Personnel Board.

Prior to joining the Firm, Mark served as the leader of a labor and employment practice group of a regional law firm for over a decade.

West Virginia University College of Law (J.D., 1998)
Lenoir-Rhyne University (B.A., 1991)

West Virginia (1998)

Supreme Court of Appeals of West Virginia (1998)
U.S. Court of Appeals, Fourth Circuit (2007)
U.S. District Court, Southern District of West Virginia (1998)
U.S. District Court, Northern District of West Virginia (1998)

Obtained a complete defense verdict for a division of a publicly traded company in a disability discrimination/failure to accommodate and gender pay disparity case after a three-day jury trial
Obtained a complete defense verdict on behalf of a publicly traded company in a wrongful discharge/gender discrimination case after an eight-day jury trial
Obtained a complete defense verdict on behalf of a state official in a multi-party sexual harassment case after a five-day jury trial
Obtained a verdict of no damages on behalf of a manufacturing company in a sexual harassment case after a five-day jury trial
Obtained a complete dismissal of a disability discrimination case on behalf of an electrical contractor after a three-day administrative trial before the West Virginia Human Rights Commission
Successfully defended an energy company in a “same sex” sexual harassment case filed by the U.S. Equal Employment Opportunity Commission
Defeated a collective action brought under the Fair Labor Standards Act
Obtained multiple dismissal and summary judgment orders in employment cases
Successfully prosecuted motions to compel arbitration of employment claims
Briefed and argued multiple appeals before the Supreme Court of Appeals of West Virginia
Served as chief negotiator for employers during collective bargaining negotiations
Successfully represented employers in numerous labor arbitrations
Substantial experience representing employers in unemployment compensation proceedings, including strike-related claims before the Labor Dispute Tribunal
Authored more than 45 published articles on labor and employment law topics

Fugate v. Frontier West Virginia Inc., 304 F.Supp.3d 503 (S.D.W.Va. 2018) (granting summary judgment on FMLA interference and retaliation claims)
Verizon Services Corp. v. Board of Review of WorkForce West Virginia, 240 W.Va. 355, 811 S.E.2d 885 (2018) (interpreting "stoppage of work" provision of unemployment compensation statute and holding that striking employees were disqualified from receiving benefits as part of a nationwide labor strike)
Fugate v. Frontier West Virginia Inc., 2017 WL 3065216 (S.D.W.Va. July 19, 2017) (dismissing multiple claims on the grounds of workers’ compensation immunity/exclusivity, res judicata, and failure to satisfy the at-will employment requirement necessary to sustain a retaliatory discharge claim)
Lindenmuth v. Laboratory Corporation of America, 2016 WL 5109159 (S.D.W.Va. Sept. 19, 2016) (granting summary judgment on age and disability discrimination claims)
Randolph-Kennedy v. Verizon Services Corp., 2015 WL 20693822, No. 14-0682 (W.Va. Supreme Court, May 1, 2015) (memorandum decision) (claimant disqualified from receiving unemployment compensation benefits based on acceptance of employment separation package)
Hope v. Board of Directors of Kanawha Public Service Dist., 2013 WL 3340699 (S.D.W.Va. July 2, 2013) (dismissing claims alleging retaliatory discharge, intentional infliction of emotional distress and constitutional due process violations)
Verizon Services Corp. v. Epling, 230 W.Va. 439, 739 S.E.2d 290 (2013) (claimant disqualified from receiving unemployment compensation benefits when she quit her job based on a change in work schedule)
Porter v. Petroleum Transport, Inc., 2012 WL 3918356 (S.D.W.Va. Sept. 7, 2012) (granting summary judgment on the issue of “willfulness” and determining that two year, rather than three year, statute of limitations applied to a FLSA collective action)
Elswick v. Daniels Electric Inc., 787 F.Supp.2d 443 (S.D.W.Va. 2011) (dismissing claim under the Wage Payment and Collection Act as being preempted by the Labor Management Relations Act)
Deem v. BB&T Corp., 279 Fed.Appx. 283 (4th Cir. 2008) (affirming dismissal of claims for gender discrimination, retaliation and tortious interference on the grounds of ERISA preemption)
Casto v. American Union Boiler Company of West Virginia, 2006 WL 660458 (S.D.W.Va. March 14, 2006) (dismissing age discrimination claim based on the doctrine of judicial estoppel)
State ex rel. Wells v. Matish, 215 W.Va. 686, 600 S.E.2d 583 (2004) (granting motion to compel arbitration of employment claims)
State ex rel. Sale v. Goldman, 208 W.Va. 186, 539 S.E.2d 446 (2000) (rejecting constitutional challenge to city’s curfew ordinance)
Vieweg v. Gatson, 209 W.Va. 268, 546 S.E.2d 267 (2000) (analyzing voluntarily quit provision of unemployment compensation statute where claimants were discharged prior to the date of their prospective resignations)

Jackson Kelly PLLC (2018-Present)
Bowles Rice LLP (1999-2018)
Seibert & Kasserman, L.C. (1998-1999)

American Bar Association, Labor and Employment Law Section
West Virginia State Bar, Employment Law Committee
Defense Research Institute; Employment Law Committee, former Regional Editor of The Job Description
Defense Trial Counsel of West Virginia, Employment Law Committee

Speaking Engagements

Presenter, "How the Trump Administration NLRB's Recent Decisions Affect All Employers," Jackson Kelly PLLC Trends in Employment and Labor Law Seminar, Tropicana Evansville, Indiana, Jan. 25, 2019
Co-presenter with Al F. Sebok, "How the NLRB's Recent Decisions Affect All Employers," Jackson Kelly PLLC Trends in WV Employment, Labor and Benefits Law Seminar, Charleston, West Virginia, Oct. 16, 2018
Mark has conducted presentations on various labor and employment topics for the following industry groups, organizations and commercial entities: West Virginia Chamber of Commerce; West Virginia Equal Employment Opportunity Office; West Virginia Rural Water Association; West Virginia Tax Institute; West Virginia University Continuing Legal Education (WVCLE); AlignHR; Society for Human Resource Management; and Lorman Education Services

Writings and Publications

"Employment Law Update: Emerging Issues in Litigating Damages in Employment Cases," West Virginia University Continuing Legal Education (WVCLE), May 24, 2018
"Constructing a Plan to Prepare for Medical Cannabis Issues in the Workplace," West Virginia Construction News, Nov./Dec. 2017
“The West Virginia Safer Workplace Act Expands the Ability of Banks to Conduct Alcohol and Drug Testing,” West Virginia Banker, Fall 2017
“West Virginia Employers Need to Prepare for Medical Cannabis,” The State Journal, May 30, 2017
“The Defend Trade Secrets Act: A Bank’s New Remedy for Misappropriation of Trade Secrets,” The Community Banker, Summer 2016
“Recent West Virginia Employment Legislation Affecting Banks,” The Community Banker, Fall 2015
“Is It Possible for Employers to Prove There Was a ‘Stoppage of Work’ When Defending Unemployment Compensation Claims Arising Out of a Labor Dispute,” Defense Trial Counsel of West Virginia Annual Meeting Notebook of Articles, Thirty-Second Annual Meeting, May 2014
“Avoiding Liability for Unemployment Compensation Benefits When an Employee Resigns Due to a Change in Work Hours,” The Community Banker, Winter 2014
“Counselor’s Corner: Avoiding Unemployment Compensation Liability When Employees Resign Their Employment as a Result of a Change in Work Hours,” Mountain State Manufacturing, Spring 2013
“EEOC Issues Updated Guidance on Employer Use of Criminal Background Information,” West Virginia Banker, Winter 2012
"Counselor's Corner: Managing Risks in the Electronic Workplace," Mountain State Manufacturing, Summer 2011
"U.S. Supreme Court Holds That Employers are Subject to Third-Party Retaliation Claims," West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Spring 2011
“Time for a Legal Check-Up: How Healthy is Your Wellness Program?,” West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Fall 2010
“Pandemic Preparations for the Workplace: Considerations for West Virginia Employers,” West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Summer 2009
“The West Virginia Workers’ Compensation Act: Using Statutory Immunity to Defeat Common Law Claims in Employment Discrimination Cases,” Defense Trial Counsel of West Virginia Annual Meeting Notebook of Articles, Twenty-Sixth Annual Meeting, May 14-16, 2008

Selected as a 2018 Elite Lawyer of the South by Martindale-Hubbell and American Lawyer Media
Named to The Best Lawyers in America® for Employment Law - Management; Litigation - Labor & Employment (2011-present)
Ranked in Chambers USA: America's Leading Lawyers for Business among “Leaders in Their Field” for Labor and Employment Law (2009-present)
Recognized by West Virginia Super Lawyers® - Employment & Labor (2007-present)
Peer-Review Rated AV Preeminent by Martindale-Hubbell

West Virginia State Personnel Board by appointment of the Governor, Former Member
West Virginia Chamber of Commerce, Human Resources Committee
Mountaineer Athletic Club of West Virginia University, Member

Bio

Prior to joining the Firm, Mark served as the leader of a labor and employment practice group of a regional law firm for over a decade.

Education

West Virginia University College of Law (J.D., 1998)
Lenoir-Rhyne University (B.A., 1991)

Admissions

West Virginia (1998)

Supreme Court of Appeals of West Virginia (1998)
U.S. Court of Appeals, Fourth Circuit (2007)
U.S. District Court, Southern District of West Virginia (1998)
U.S. District Court, Northern District of West Virginia (1998)

Notable Legal Experience

Obtained a complete defense verdict for a division of a publicly traded company in a disability discrimination/failure to accommodate and gender pay disparity case after a three-day jury trial
Obtained a complete defense verdict on behalf of a publicly traded company in a wrongful discharge/gender discrimination case after an eight-day jury trial
Obtained a complete defense verdict on behalf of a state official in a multi-party sexual harassment case after a five-day jury trial
Obtained a verdict of no damages on behalf of a manufacturing company in a sexual harassment case after a five-day jury trial
Obtained a complete dismissal of a disability discrimination case on behalf of an electrical contractor after a three-day administrative trial before the West Virginia Human Rights Commission
Successfully defended an energy company in a “same sex” sexual harassment case filed by the U.S. Equal Employment Opportunity Commission
Defeated a collective action brought under the Fair Labor Standards Act
Obtained multiple dismissal and summary judgment orders in employment cases
Successfully prosecuted motions to compel arbitration of employment claims
Briefed and argued multiple appeals before the Supreme Court of Appeals of West Virginia
Served as chief negotiator for employers during collective bargaining negotiations
Successfully represented employers in numerous labor arbitrations
Substantial experience representing employers in unemployment compensation proceedings, including strike-related claims before the Labor Dispute Tribunal
Authored more than 45 published articles on labor and employment law topics

Representative Published Decisions

Fugate v. Frontier West Virginia Inc., 304 F.Supp.3d 503 (S.D.W.Va. 2018) (granting summary judgment on FMLA interference and retaliation claims)
Verizon Services Corp. v. Board of Review of WorkForce West Virginia, 240 W.Va. 355, 811 S.E.2d 885 (2018) (interpreting "stoppage of work" provision of unemployment compensation statute and holding that striking employees were disqualified from receiving benefits as part of a nationwide labor strike)
Fugate v. Frontier West Virginia Inc., 2017 WL 3065216 (S.D.W.Va. July 19, 2017) (dismissing multiple claims on the grounds of workers’ compensation immunity/exclusivity, res judicata, and failure to satisfy the at-will employment requirement necessary to sustain a retaliatory discharge claim)
Lindenmuth v. Laboratory Corporation of America, 2016 WL 5109159 (S.D.W.Va. Sept. 19, 2016) (granting summary judgment on age and disability discrimination claims)
Randolph-Kennedy v. Verizon Services Corp., 2015 WL 20693822, No. 14-0682 (W.Va. Supreme Court, May 1, 2015) (memorandum decision) (claimant disqualified from receiving unemployment compensation benefits based on acceptance of employment separation package)
Hope v. Board of Directors of Kanawha Public Service Dist., 2013 WL 3340699 (S.D.W.Va. July 2, 2013) (dismissing claims alleging retaliatory discharge, intentional infliction of emotional distress and constitutional due process violations)
Verizon Services Corp. v. Epling, 230 W.Va. 439, 739 S.E.2d 290 (2013) (claimant disqualified from receiving unemployment compensation benefits when she quit her job based on a change in work schedule)
Porter v. Petroleum Transport, Inc., 2012 WL 3918356 (S.D.W.Va. Sept. 7, 2012) (granting summary judgment on the issue of “willfulness” and determining that two year, rather than three year, statute of limitations applied to a FLSA collective action)
Elswick v. Daniels Electric Inc., 787 F.Supp.2d 443 (S.D.W.Va. 2011) (dismissing claim under the Wage Payment and Collection Act as being preempted by the Labor Management Relations Act)
Deem v. BB&T Corp., 279 Fed.Appx. 283 (4th Cir. 2008) (affirming dismissal of claims for gender discrimination, retaliation and tortious interference on the grounds of ERISA preemption)
Casto v. American Union Boiler Company of West Virginia, 2006 WL 660458 (S.D.W.Va. March 14, 2006) (dismissing age discrimination claim based on the doctrine of judicial estoppel)
State ex rel. Wells v. Matish, 215 W.Va. 686, 600 S.E.2d 583 (2004) (granting motion to compel arbitration of employment claims)
State ex rel. Sale v. Goldman, 208 W.Va. 186, 539 S.E.2d 446 (2000) (rejecting constitutional challenge to city’s curfew ordinance)
Vieweg v. Gatson, 209 W.Va. 268, 546 S.E.2d 267 (2000) (analyzing voluntarily quit provision of unemployment compensation statute where claimants were discharged prior to the date of their prospective resignations)

Work History

Jackson Kelly PLLC (2018-Present)
Bowles Rice LLP (1999-2018)
Seibert & Kasserman, L.C. (1998-1999)

Professional Organizations

American Bar Association, Labor and Employment Law Section
West Virginia State Bar, Employment Law Committee
Defense Research Institute; Employment Law Committee, former Regional Editor of The Job Description
Defense Trial Counsel of West Virginia, Employment Law Committee

Speaking Engagements & Publications

Speaking Engagements

Presenter, "How the Trump Administration NLRB's Recent Decisions Affect All Employers," Jackson Kelly PLLC Trends in Employment and Labor Law Seminar, Tropicana Evansville, Indiana, Jan. 25, 2019
Co-presenter with Al F. Sebok, "How the NLRB's Recent Decisions Affect All Employers," Jackson Kelly PLLC Trends in WV Employment, Labor and Benefits Law Seminar, Charleston, West Virginia, Oct. 16, 2018
Mark has conducted presentations on various labor and employment topics for the following industry groups, organizations and commercial entities: West Virginia Chamber of Commerce; West Virginia Equal Employment Opportunity Office; West Virginia Rural Water Association; West Virginia Tax Institute; West Virginia University Continuing Legal Education (WVCLE); AlignHR; Society for Human Resource Management; and Lorman Education Services

Writings and Publications

"Employment Law Update: Emerging Issues in Litigating Damages in Employment Cases," West Virginia University Continuing Legal Education (WVCLE), May 24, 2018
"Constructing a Plan to Prepare for Medical Cannabis Issues in the Workplace," West Virginia Construction News, Nov./Dec. 2017
“The West Virginia Safer Workplace Act Expands the Ability of Banks to Conduct Alcohol and Drug Testing,” West Virginia Banker, Fall 2017
“West Virginia Employers Need to Prepare for Medical Cannabis,” The State Journal, May 30, 2017
“The Defend Trade Secrets Act: A Bank’s New Remedy for Misappropriation of Trade Secrets,” The Community Banker, Summer 2016
“Recent West Virginia Employment Legislation Affecting Banks,” The Community Banker, Fall 2015
“Is It Possible for Employers to Prove There Was a ‘Stoppage of Work’ When Defending Unemployment Compensation Claims Arising Out of a Labor Dispute,” Defense Trial Counsel of West Virginia Annual Meeting Notebook of Articles, Thirty-Second Annual Meeting, May 2014
“Avoiding Liability for Unemployment Compensation Benefits When an Employee Resigns Due to a Change in Work Hours,” The Community Banker, Winter 2014
“Counselor’s Corner: Avoiding Unemployment Compensation Liability When Employees Resign Their Employment as a Result of a Change in Work Hours,” Mountain State Manufacturing, Spring 2013
“EEOC Issues Updated Guidance on Employer Use of Criminal Background Information,” West Virginia Banker, Winter 2012
"Counselor's Corner: Managing Risks in the Electronic Workplace," Mountain State Manufacturing, Summer 2011
"U.S. Supreme Court Holds That Employers are Subject to Third-Party Retaliation Claims," West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Spring 2011
“Time for a Legal Check-Up: How Healthy is Your Wellness Program?,” West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Fall 2010
“Pandemic Preparations for the Workplace: Considerations for West Virginia Employers,” West Virginia Human Resources Journal, West Virginia Chamber of Commerce, Summer 2009
“The West Virginia Workers’ Compensation Act: Using Statutory Immunity to Defeat Common Law Claims in Employment Discrimination Cases,” Defense Trial Counsel of West Virginia Annual Meeting Notebook of Articles, Twenty-Sixth Annual Meeting, May 14-16, 2008

Awards

Selected as a 2018 Elite Lawyer of the South by Martindale-Hubbell and American Lawyer Media
Named to The Best Lawyers in America® for Employment Law - Management; Litigation - Labor & Employment (2011-present)
Ranked in Chambers USA: America's Leading Lawyers for Business among “Leaders in Their Field” for Labor and Employment Law (2009-present)
Recognized by West Virginia Super Lawyers® - Employment & Labor (2007-present)
Peer-Review Rated AV Preeminent by Martindale-Hubbell

Community

West Virginia State Personnel Board by appointment of the Governor, Former Member
West Virginia Chamber of Commerce, Human Resources Committee
Mountaineer Athletic Club of West Virginia University, Member

Practices

Labor & Employment

Industries

Insights