West Virginia has previously held county commission employees may be joint employees of the county commission and an elected county official, including county clerks, circuit clerks, and assistant prosecuting attorneys. The state Supreme Court recently reaffirmed this ruling in Burke v. Wetzel County Commission.

Case background

Burke began working in the County Assessor’s Office in 2013. During the course of his employment he suffered from a disabling back condition, and eventually applied for a FMLA leave of absence to undergo back surgery. Upon return to work, Burke alleged he was subject to various harassment for his injury, including expansive medical records requests, demeaning comments, and unfounded discipline. Shortly after his own unsuccessful bid for the County Assessor in 2015, Burke was terminated for poor performance.

His Complaint alleged hostile work environment, wrongful termination, violation of the Human Rights Act, and violation of Whistle-blower laws.  The Defendants, the Assessor and the County Commission, filed a Motion to Dismiss arguing, inter alia, the Commission was not Burke’s employer, the Assessor was entitled to qualified immunity, and Burke’s Complaint failed to state a claim upon which relief could be granted. Although the Circuit Court agreed and dismissed the case, the State Supreme Court reversed and remanded the case for further proceedings.

Regarding the County Commission, the Supreme Court found it plausible the County Commission and Assessor were Burke’s joint employers. More specifically, the Court found the County Commission was sufficiently plead as Burke’s joint employee under W. Va. Code § 7-7-7, and under Burke’s reference to the Commission as his “employer” on his W-2.

The Court found Burke’s remaining claims survived the Motion to Dismiss. Although disapproving of the “kitchen sink” nature of the Complaint, the Court nonetheless found Burke had sufficiently plead the necessary factual allegations associated with each claim. Pursuant to the Supreme Court’s ruling, Burke’s case will be remanded back to the Trial Court for further proceedings.

For more information on employment law and the joint employment relationship, speak with an attorney at Pullin, Fowler, Flanagan, Brown & Poe, PLLC, at 304-344-0100 or contact us online.