Member Article

by Peter R. Rich

Companies seeking business in the heart of the Marcellus Shale natural gas reserves will find a skilled and experienced workforce.  However, as any business owner knows, mistakes made in the hiring process can be costly.  With that in mind, we offer the following comments on five specific aspects of Pennsylvania and West Virginia law that are applicable to hiring.

 

Employment-at-will

 

Unless you are already a party to a union collective bargaining or pre-hire agreement, the individuals you evaluate for hire will generally be considered to be employed at will in both Pennsylvania and West Virginia.  Under the traditional “employment-at-will” doctrine, employers may hire and fire employees at any time and for any reason, or for no reason at all, in the absence of a statute or other common law rule to the contrary.  However, it is important that employers take precautions to ensure that they preserve these rights. 

 

The courts in both states have ruled that an employment manual or handbook may, in certain circumstances, create an enforceable employment contract.  We recommend that employers always include a strong employment-at-will statement and disclaimer in communications to prospective employees and in their employee manuals and handbooks.

 

Lie Detectors

 

Both Pennsylvania and West Virginia have enacted strong restrictions on the use of polygraphs and other measures for detecting deception as a condition for employment.  In Pennsylvania an employer may not require that a prospective or current employee take a polygraph test as a condition for employment or continuation of employment, although the law recognizes an exception for employees in the field of public law enforcement or who dispense or have access to narcotics or dangerous drugs.  18 Pa. C.S.A.  § 7321.  Requiring or requesting an employee or prospective employee to submit to mechanical or electronic deception testing in West Virginia is similarly prohibited with limited exceptions for individuals who would have access to controlled substances and for law enforcement agencies and state military forces.  W. Va. Code § 21-5-5b.  The West Virginia Supreme Court of Appeals has additionally held that requiring polygraph examinations as a condition of employment is contrary to public policy, as it violates the employee’s interest in privacy. 

 

Drug Testing

 

Neither Pennsylvania nor West Virginia has enacted a statute or regulation governing employee drug testing in the private sector.  However, the West Virginia Supreme Court of Appeals has held that the random drug testing of employees is violative of public policy grounded in the potential invasion of an individual’s right to privacy, unless (1) the employer has a reasonable good faith objective suspicion of the employee’s drug use or (2) the employee’s job responsibility involves public safety or the safety of others.  Twigg v. Hercules Corporation, Syl. Pt. 2, 406 S.E.2d 52, 185 W. Va. 155 (1990).  The Court has ruled that the right to privacy does not prohibit a pre-employment urinalysis.  Baughman v. Wal-Mart Stores Inc., 592 S.E.2d 824, 215 W. Va. 45 (2003)

 

The courts in Pennsylvania, unlike West Virginia, have not formally recognized that such testing violates an independent right to privacy.  The U.S. Court of Appeals for the Third Circuit has speculated that, under certain circumstances, Pennsylvania courts might recognize a private sector at-will employee’s claim for wrongful discharge in violation of public policy if the drug test is deemed a tortious invasion of the employee’s privacy.  Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 622 (3d Cir. 1992).  There are no reported decisions that prohibit pre-employment drug testing in Pennsylvania.

 

Use of Arrests and Conviction Records

 

There is no statute in West Virginia that generally regulates or limits an employer’s inquiry into an employee’s arrest or conviction records.  However, a person whose criminal records are expunged does not have to disclose the fact of the records or any matter relating to the records on an application for employment.  W.Va. Code § 61–11–25

 

In Pennsylvania, an employer may consider a job applicant’s criminal record when deciding whether to hire the applicant, but may consider felony and misdemeanor convictions only to the extent to which they relate to the applicant’s suitability for employment in the desired position.  18 Pa. C.S.A. §§ 9125(a)–(b).  Moreover, an employer must notify a job applicant in writing if the decision not to hire is based, either in whole or in part, on the applicant’s criminal record.  18 Pa. C.S.A. § 9125(c).

 

Right to Work

 

Pennsylvania and West Virginia are not “right to work” states.  This means that neither state has enacted legislation that prohibits compulsory unionism or the payment of union dues.  Pennsylvania prohibits “anti-union” or so-called “yellow-dog” agreements and contracts containing promises not to join, become or remain a member of any labor organization violate public policy.  43 P.S. § 206e. 

  

This article and its author endeavor to put forth useful information to help you navigate successfully through the often-challenging issues related to labor & employment law. However, if you have a specific question or matter on which you need advice, we encourage you to seek the counsel of an attorney. Offering a comprehensive range of services, the labor & employment practice of Spilman Thomas & Battle is nationally recognized for its excellence. Whether you need a partner to counsel you on employment matters, to advise you on labor matters or to defend you in an employee claim or lawsuit, look no further than Spilman Thomas & Battle, PLLC.