(1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.Hurley v. Allied Chemical Corp., 262 S.E.2d 757, 758 (W. Va. 1980). The Supreme Court of Appeals has not determined whether a civil cause of action is available under Section 61-8-16.
The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action:(1)the plaintiff must be a member of the class for whose benefit the statue was enacted;(2)consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended;(3)an analysis must be made of whether a private cause of action is consistent with the underlying purpose of the legislative scheme; and (4)such private cause of action must not intrude into an area delegated exclusively to the federal government. Syl.pt. 1, Hurley v. Allied Chemical Corp., 164 W.Va. 268, 262 S.E.2d 757(1980). In Hurley, the Court decided a certified question regarding whether West Virginia Code § 27-5-9(a), which prevented employment discrimination based solely on the receipt of mental health services, created an implied cause of action.
3. “ ‘The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determinewhether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.’ Syllabus Point 1, Hurley v. Allied Chemical Corp., 164 W.Va. 268, 262 S.E.2d 757 (1980).” Syl. pt. 3, Hill v. Stowers, 224 W.Va. 51, 680 S.E.2d 66 (2009).
See Harless v. First Nat'l Bank, 289 S.E.2d 692, 694 (W. Va. 1982) (commonly referred to as "Harless II"). Later, in Hurley v. Allied Chemical Corp., 262 S.E.2d 757 (W. Va. 1980), the Supreme Court of Appeals found that an employment relationship is necessary in order to assert a Harless claim: In Harless, we dealt with what may be termed the retaliatory discharge rule, where an at will employee is fired because he has exercised some substantial public right which his employer has attempted to frustrate or avoid. An essential ingredient for the cause of action is an existing employment relationship between the parties.
Schaffer v. Acme Limestone Co., Inc., 524 S.E.2d 688, 702 n. 17 (W.Va. 1999). The parties agree that the relevant test for determining whether plaintiff is possessed of a private cause of action against the defendants for their alleged violation of § 17A-6A-13(3)(a) is found in Hurley v.Allied Chemical Corp, 262 S.E.2d 757 (W.Va. 1980). (Memo. in Supp. Mot. to Dismiss at 3; Resp. to Mot. to Dismiss at 4).
The existence of a remedy procedure within the statute distinguishes this case from those instances in which the West Virginia Court has recognized an implied private cause of action under positive law. See, e.g., Jenkins v. J.C. Penney Casualty Ins. Co., 280 S.E.2d 252 (W.Va. 1981); Hurley v. Allied Chemical Corp., 164 W. Va. 268, 262 S.E.2d 757 (1980). In Hurley the court was concerned with a statute which prohibited the denial of civil rights to a person who had received mental health services.
Finally, petitioner argues that the circuit court erred in ruling that he could not pursue a private cause of action against respondents for discrimination, harassment, and reprisal. To determine whether a private cause of action exists based upon a violation of statute, this Court set forth a four-part test in Hurley v. Allied Chemical Corp., 164 W.Va. 268, 262 S.E.2d 757 (1980). In syllabus point one of Hurley, we held:
The dismissal motion was among the preliminary matters assigned to a federal magistrate. After briefing and a hearing on the issues related to the motion to dismiss, the magistrate entered an order on May 9, 2002, in which he found that pursuant to West Virginia Code § 55-7-9 and this Court's decision in Hurley v. Allied Chemical Corporation, 164 W. Va. 268, 262 S.E.2d 757 (1980), a private cause of action is implied for violations of West Virginia Code § 49-6A-2. Defendants filed objections and requested review by the district court judge.
I. Both parties acknowledge that whether a private cause of action exists based on a violation of a statute is determined under the standard set in Syllabus Point 1 of Hurley v. Allied Chemical Corp., 164 W. Va. 268, 262 S.E.2d 757 (1980): "The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government."
In West Virginia, whether a private cause of action exists based on a violation of a statute is determined by applying the four-part test set forth in Hurley v. Allied Chemical Corporation, 262 S.E.2d 757 (W.Va. 1980). This test considers (1) whether the plaintiff is a member of the statute's intended class of beneficiaries, (2) whether there exists express or implied legislative intent to create a private cause of action, (3) whether a private cause of action is consistent with the statutory scheme, and (4) whether a private cause of action would intrude into exclusively federal areas.