Answers Posted By walt auvil

Answer to Unlawful Termination

inapplicable to a private employer

the short answer depends upon whether the employer is a private company or a public agency. if it is a private company you are probably out of luck. i was the attorney for the nurse whoise case is described in the clip from lexis quoted below. as you may see the free speach argument we tried did not work out too well there, because we were dealing with a private employer.

"Plaintiff nurse filed an action alleging that defendant hospital unlawfully terminated her employment and tortiously interfered with her subsequent employment. The Circuit Court of Kanawha County (West Virginia) entered two orders granting summary judgment to the hospital. The nurse sought review of the circuit's court's orders.


OVERVIEW: The nurse wrote a letter to a newspaper criticizing the hospital's budgetary cutbacks. The newspaper published the letter. The hospital expressed displeasure with the nurse's actions, but took no adverse action. Thereafter, the hospital conducted a nonpublic meeting to discuss a planned merger. The nurse brought a reporter to the meeting. The hospital objected and terminated the nurse's employment shortly after the meeting. The hospital also informed the nurse's subsequent employer that she was a union organizer. Upon receipt of the information, the employer terminated its relationship with the nurse. The nurse filed an action alleging numerous theories of liability. The court held (1) the nurse could not maintain a claim for wrongful discharge based upon a violation of the public policy of freedom of expression, as found in the Free Speech Clause of the West Virginia Constitution, because the Clause was inapplicable to a private employer such as the hospital, and (2) the information the hospital gave the nurse's subsequent employer was truthful and the hospital thus had an absolute defense to the nurse's tortious interference claim.


OUTCOME: The court affirmed the grant of summary judgment in favor of the hospital with regard to the nurse's wrongful discharge and tortious interference claims. The court reversed, in part, and remanded the matter with instructions for the circuit court to make further factual findings regarding its dismissal of the remainder of the nurse's claims."

Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135 (1998)

good luck.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@theemploymentlawcenter.com


posted Dec 30, 2003 12:35 PM [EST]

Answer to demotion due to medical leave and absences

no easy answer

the complex of issues presented by your fact situation has no easy, simple answer. there are a variety of state and federal laws which might protect you - with varying degrees of success - from adverse treatment. in general, west virginia law protects against discrimination based upon handicap, or perception of handicap. it also requires reasonable accommodation of handicaps. on the other hand, employers are generally permitted to expect and get regular attendance at work from employees. these cases can turn on many very specific facts which you would need to explore very carefully with counsel before deciding what, if any, legal action to take.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@theemploymentlawcenter.com

posted Nov 16, 2003 10:59 AM [EST]

Answer to harrassment/defamation

harrassment/defamation

in wv an employer is not legally required to treat employees with respect. the employment at will doctrine says an employer can pretty much treat his or her employees as he or she likes. there are, of course, exceptions to this general rule too numerous and detailed to mention.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@theemploymentlawcenter.com



posted Jul 17, 2003 12:43 PM [EST]

Answer to privacy

cameras in restrooms

west virginia has recognized a claim for invasion of privacy. in Roach v. Harper, 143 W. Va. 869, a tenant alleged that her landlord installed a hearing device in her apartment and listened in on her private conversations. She brought a lawsuit against him for invasion of privacy. The court held that there was a right of action for recovery of damages for invasion of privacy.

is there any way to find out whether they are there? i would check and see if the store uses pictures/film from the cameras in the case against the fired employee. if not you could ask the store if that it true.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@citynet.net


posted May 21, 2003 09:19 AM [EST]

Answer to Restriction on Postemployment Competition.

wv covenant not to compete

there are several questions which would need to be explored before i could advise you on the best course of action. a review of the contract to determine whether it has a choice of law provision - a clause stating which state's law governs the contract - is important because i practice only in wv. if the contract is governed by tn law i would not be able to advise you. as a general matter covenants not to compete are quite dificult to enforce in wv unless substantial separate consideration is given in return for that agreement. an article which i authored on that subject was published in the november 2001 issue of the west virginia lawyer, the journal of the west virginia state bar.

walt auvil
the employment law center, pllc
1208 market street
parkersburg, wv 26101
phone: 304-485-3058
fax: 304-485-6344
auvil@citynet.net


posted Apr 29, 2003 09:22 AM [EST]