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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 29078
Experience:  Former judicial law clerk, lawyer
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Can you sue for hostile work environment in west Virginia?

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Can you sue for hostile work environment in west Virginia?

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear about your girlfriend's situation.

Can you explain a little of what is happening? A hostile work environment is very fact-specific.
Customer: replied 3 years ago.

Appx. 3 years ago one of the doc's cheated on his wife and married another woman. My girlfriend took the wife's side. Ever since then he has given her a had time at work. For example she was at work and she answered a call about her daughters car accident which lasted 1 min and 10 seconds. He told the doctor who she works for (not him) that he should dock her pay. He puts her down in front of her coworkers also. She has more instances of this but I am worried for her. She thinks she wants to quit and find another job but worries about her 401 and retirement. She has 3 children.

Well, first, any contributions that she made into her 401(k) are hers, and can be rolled into a 401(k) with another employer, or an IRA at any financial institution. Contributions that the employer made depend on what the employer's rules for vesting is. Many companies fully vest after 5 years, but it's possible that she is at least partially vested in employer contributions. That means that she would get a portion of the money. She may want to talk to human resources or review the paperwork associated with her 401(k) before making a decision. If the job offers any sort of pension, that would likely be forfeited if she leaves, but it again depends on the specific plan and the company's policy, plus the type of account they have it in. The only way to be sure is to ask for copies of all documentation associated with the account, or to review what she has.

As far as a hostile work environment goes, legally, that term applies to inappropriate conduct based on sexual harassment. It has recently been extended in some cases of racial harassment, but does not apply where an employer is generally unpleasant. The law presumes that the at-will nature of employment protects employees in that situation, because they can terminate their employment if the employer creates an uncomfortable work environment.

In some cases, unemployment benefits may be collected where a person quits for good cause attributable to the employer. What the state looks at, on a case-by-case basis, is whether a reasonable person would have quit. She must make reasonable efforts to keep the job prior to leaving. As a starting point, that means that she would need to discuss the situation with the doctor that she works for (and it may be better to put it in writing).

If she is an exempt employee and her pay was docked because of that phone call, she could actually sue or file a Complaint with the state. That might also be an option.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
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Customer: replied 3 years ago.

Will she lose her vacation time that she has? 5 weeks

Yes, probably. The law doesn't require that vacation time be paid when an employee leaves, so unless they have a written policy of paying it, they wouldn't have to.

But that doesn't mean that she couldn't try to schedule some vacation time before giving notice, to help look for a new job. If a person just gives notice, an employer is allowed to decline the notice and ask them to leave immediately, so keep that in mind. (I'm not saying they will, but it's not illegal if they do.)
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