dissenting:
I dissent on the grounds that the majority opinion has both an unfair and unnecessary ex post facto effect on the defendant in this case. W.Va.Code 21-5-5b [1983] adequately protects employees in the future from an invasion of their privacy through a compelled polygraph examination. Because the Legislature thought that a statute governing employee privacy rights was necessary, it is more reasonable than not to infer that no public policy against polygraph examinations existed at common law before the majority opinion in this case was filed.
Law that is written in a language that no one understands or is whispered in a closet is not entitled to enforcement in the United States. At some point the judicial legislation that we call “common law development” must be judged by the standards of Article I, Section 10 of the Constitution of the United States. Furthermore, our Legislature has handled the problem of polygraph examinations comprehensively and forbidden this unpleasant practice in all future cases; thus there is no need for this Court to use an ex post facto decision to remedy a continuing problem that otherwise would be left uncured.
The defendant in this case was in the hotel business. One of the big problems in their hotel business was theft of guests’ and the hotel’s property. I suspect that the reason the employees in this case failed to take the polygraph examination was that they had stolen things from either the hotel or its guests. Hotels that have reputations for theft of guests’ property do not thrive in the hotel business. When a hotel gets a bad reputation the hotel goes bankrupt and the honest employees are unemployed. *330Consequently, I hardly find the facts of this case compelling.
This Court discussed problems of re-troactivity in civil cases in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), where we enunciated a set of criteria to determine whether it is appropriate for a new, or at least previously unarticulated, principle of law such as the one in this case to be applied to past conduct. There we said:
If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroac-tivity. Finally, we will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.
Id. 163 W.Va. at —, 256 S.E.2d at 889.
In the case before us none of the requirements allowing retroactivity has been met. Although this case sounds in tort, its basis is an at-will contract of employment where the law has been settled for decades. In West Virginia an employee can be fired for good cause, bad cause, or no cause.
Obviously, today’s ruling concerns a substantive and not a procedural rule. Certainly this is a radical decision that departs from prior law and it involves a substantial public issue that represents a clear departure from prior precedent. Finally, although other states have outlawed polygraph examinations this subject is handled by the legislatures and, in many states, it is not handled at all.