WEST virginia legislature

2021 regular session

Introduced

House Bill 2961

By Delegates Barach, Lovejoy, Brown, Rowe, Dean, Griffith, Garcia, Young, Pushkin, Paynter, and Fleischauer

[Introduced March 08, 2021; Referred to the Committee on the Judiciary]

A BILL to amend and reenact §55-7E-2 and §55-7E-3 of the Code of West Virginia, 1931, as amended, all relating to rights of persons in an employment related dispute; requiring a jury trial when requested by either party; prohibiting an employer, as a condition of employment that an employee consent to binding arbitration as a condition of being hired or for continued employment and providing exceptions thereto; and providing an effective date. 

Be it enacted by the Legislature of West Virginia:

ARTICLE 7E. DUTY TO MITIGATE DAMAGES Rights of parties IN EMPLOYMENT CLAIMS.

§55-7E-2. Legislative findings and declaration of purpose.

(a) The Legislature finds that:

(1) Employees of this state are entitled to be free from unlawful discrimination, wrongful discharge and unlawful retaliation in the workplace. Employers are often confronted with difficult choices in the hiring, discipline, promotion, layoff and discharge of employees.

(2) The citizens and employers of this state are entitled to a legal system that provides adequate and reasonable compensation to those persons who have been subjected to unlawful employment actions, a legal system that is fair, predictable in its outcomes, and a legal system that functions within the mainstream of American jurisprudence.

(3) The goal of compensation remedies in employment law cases is to make the victim of unlawful workplace actions whole, including back pay; reinstatement or some amount of front pay in lieu of reinstatement; and under certain statutes, attorney's fees for the successful plaintiff.

(4) In West Virginia, the amount of damages recently awarded in statutory and common law employment cases have been inconsistent with established federal law and the law of surrounding states. This lack of uniformity in the law puts our state and its businesses at a competitive disadvantage.

(5) It is at times necessary for West Virginians to protect their employment rights and every citizen should not be required, as a condition of his or her being hired or continued employment, to agree to binding arbitration of any legal claims made against an employer.

(6) For any employee in any employment related action, the preservation of the right to a jury trial is a matter of equity, and he or she is therefore entitled to a jury trial. 

(b) The purpose of this article 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.

§55-7E-3. Statutory or common law employment claims; duty to mitigate damages.

(a) In any employment law cause of action against a current or former employer, regardless of whether the cause of action arises from a statutory right created by the Legislature or a cause of action arising under the common law of West Virginia, the plaintiff has an affirmative duty to mitigate past and future lost wages, regardless of whether the plaintiff can prove the defendant employer acted with malice or malicious intent, or in willful disregard of the plaintiff's rights. The malice exception to the duty to mitigate damages is abolished. Unmitigated or flat back pay and front pay awards are not an available remedy. Any award of back pay or front pay by a commission, court or jury shall be reduced by the amount of interim earnings or the amount earnable with reasonable diligence by the plaintiff. It is the defendant's burden to prove the lack of reasonable diligence.

(b) In any employment law claim or cause of action, the trial court shall make a preliminary ruling on the appropriateness of the remedy of reinstatement versus front pay if such remedies are sought by the plaintiff. If front pay is determined to be the appropriate remedy, the amount of front pay, if any, to be awarded shall be an issue for the trial judge to decide.

(c) Upon a timely demand of any party in a civil proceeding relating to any employment related claim, the court shall conduct a jury trial.

(d) A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law-enforcement agency, or any court or other governmental entity of any alleged violation.

(e) An employer shall not threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law- enforcement agency, or any court or other governmental entity of any alleged violation.

(f) For purposes of this section, an agreement that requires an employee to opt out of a waiver or take any affirmative action in order to preserve their rights is deemed a condition of employment.

(g) An employer shall not condition employment, continued employment, or the receipt of any employment-related benefit on the party’s agreement to arbitration. Any employment agreement term contemplating arbitration shall include an option for the employee or applicant to affirmativitly acknowledge and agree to arbitration or refuse such term.

(1) Agreement to an arbitration term must be separate and distinct from any other written employment agreement.

(2) The arbitration agreement must put the employee on notice that affirmative acknowledgement and agreement to arbitration will waive their right to a jury trial.

(3) Refusal by an employee or applicant to agree to an abritration term shall not be grounds for an employer to terminate, retailate, or discriminate against an employee or applicant.

(h) In addition to injunctive relief and any other remedies available, a court may award a prevailing plaintiff enforcing their rights under this section reasonable attorney’s fees.

(i) This section does not apply to a person registered with a self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78c) or regulations adopted under that act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes that arise between the person and their employer or any other person as specified by the rules of the self-regulatory organization.

(j) If any provision of this section, or the application thereof, to any person or circumstance is found to be preempted by the Federal Arbitration Act (9 U.S.C. Sec. 1 et seq.)., such invalidity shall not affect other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.

(k) This section does not apply to post dispute settlement agreements or negotiated severance agreements.

(l) This section applies to contracts for employment entered into, modified, or extended on or after January 1, 2022.

NOTE: The purpose of this bill is to provide protections for employees in legal employment disputes by providing that no employee can be required as a condition of employment to agree to mandatory arbitration; and authorizing any party in any legal proceeding relating to employment dispute to demand a jury trial.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.