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Chapter 55     Entire Code
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Chapter 55  |  Article 55 - 7E
WVC 55- CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
WVC 55 - 7 E- ARTICLE 7E. DUTY TO MITIGATE DAMAGES IN EMPLOYMENT CLAIMS.

WVC 55 - 7 E- 1 §55-7E-1. Definitions.

  In this article:

  (a) "Back pay" means the wages that an employee would have earned, had the employee not suffered from an adverse employment action, from the time of the adverse employment action through the time of trial.

  (b) "Front pay" means the wages that an employee would have earned, had the employee not suffered from an adverse employment action, from the time of trial through a future date.

WVC 55 - 7 E- 2 §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.

          (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.

WVC 55 - 7 E- 3 §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.

Note: WV Code updated with legislation passed through the 2016 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.


Recent legislation affecting the Code

Citation Year/Session Short Title
§55 - 7 B- 2 - (Amended Code)
§55 - 7 B- 4 - (Amended Code)
§55 - 7 B- 6 - (Amended Code)
§55 - 7 B- 10 - (Amended Code)
§55 - 7 B- 11 - (Amended Code)
SENATE BILL - 338
PASSED - Regular Session

SB338 SUB1 enr  (Uploaded - 10/06/2017)
Relating to medical professional liability
§55 - 7 - 19 - (Amended Code)
SENATE BILL - 497
PASSED - Regular Session

SB497 SUB1 enr  (Uploaded - 10/02/2017)
Relating to liability for health care providers who provide services at school athletic events
§55 - 7 - 31 - (New Code)
HOUSE BILL - 2850
PASSED - Regular Session

HB2850 SUB ENR  (Uploaded - 10/06/2017)
Relating to product liability actions
§55 - 7 - 13 D - (Amended Code)
§55 - 7 B- 5 - (Amended Code)
SENATE BILL - 7
PASSED - Regular Session

SB7 SUB1 ENR  (Uploaded - 02/25/2016)
Establishing wrongful conduct rule prohibiting recovery of damages in certain circumstances
§55 - 7 I- 1 - (New Code)
§55 - 7 I- 2 - (New Code)
§55 - 7 I- 3 - (New Code)
§55 - 7 I- 4 - (New Code)
§55 - 7 I- 5 - (New Code)
§55 - 7 I- 6 - (New Code)
§55 - 7 I- 7 - (New Code)
SENATE BILL - 14
PASSED - Regular Session

SB14 ENR  (Uploaded - 02/23/2016)
Limiting successor corporation asbestos-related liabilities
§55 - 7 - 30 - (New Code)
SENATE BILL - 15
PASSED - Regular Session

SB15 enr  (Uploaded - 02/18/2016)
Adopting learned intermediary doctrine as defense to civil action due to inadequate warnings or instructions
§55 - 2 - 21 - (Amended Code)
SENATE BILL - 29
PASSED - Regular Session

SB29 ENR  (Uploaded - 03/08/2016)
Tolling statute of limitations in certain cases
§55 - 7 B- 9 - (Amended Code)
§55 - 7 B- 9 C - (Amended Code)
SENATE BILL - 602
PASSED - Regular Session

SB602 SUB1 ENR  (Uploaded - 03/23/2016)
Relating to Patient Injury Compensation Fund
§55 - 7 - 23 - (Amended Code)
SENATE BILL - 627
PASSED - Regular Session

SB627 ENR  (Uploaded - 03/11/2016)
Permitting physician to decline prescribing controlled substance
§55 - 2 - 15 - (Amended Code)
HOUSE BILL - 2605
PASSED - Regular Session

hb2605 ENR  (Uploaded - 03/17/2016)
Removing the limitation on actions against the perpetrator of sexual assault or sexual abuse upon a minor
§55 - 7 J- 1 - (New Code)
§55 - 7 J- 2 - (New Code)
§55 - 7 J- 3 - (New Code)
§55 - 7 J- 4 - (New Code)
§55 - 7 J- 5 - (New Code)
§55 - 7 J- 6 - (New Code)
HOUSE BILL - 4309
PASSED - Regular Session

Increasing criminal penalties for conviction of certain offenses of financial exploitation of an elderly person
§55 - 7 B- 2 - (Amended Code)
HOUSE BILL - 4735
PASSED - Regular Session

hb4735 ENR  (Uploaded - 03/07/2016)
Relating to the definition of health care provider, and clarifying that speech-language pathologists and audiologists are two separate providers
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