The West Virginia Wage Payment and Collection Act addresses many issues relating to the relationship between employer and employee, including the rules for meeting payroll, the payment of hourly (and salaried) wages, commissioned wages, final wages, the accrual and payment of employee fringe benefits, the rules for authorized and unauthorized payroll deductions, employer responsibilities concerning employee notifications and recordkeeping requirements.
If you believe you’ve been deprived of the compensation to which you’re legally entitled, please contact the Lore Law Firm. Our overtime rights lawyers represent West Virginia employees who have been subjected to workplace wage and hour violations and take cases on a contingent fee basis – no fee if no recovery of backpay.
West Virginia Wage and Overtime laws
While West Virginia does have certain state labor laws that differ from the federal Fair Labor Standards Act (FLSA), the state law applies only in instances where it provides greater rights or protections than federal law. Whichever law (state or federal) is more favorable to the worker will apply. In most instances, however, federal law will cover issues involving overtime pay and minimum wage.
The current West Virginia minimum wage is $8.75 per hour and the federal minimum wage is $7.25 per hour.
West Virginia’s Minimum Wage laws allow covered employers to take a credit against the state minimum wage requirement for as much as seventy percent (70%) of the current minimum wage for their service employees that customarily receive gratuities (tips). For more detail regarding the rules for minimum wage and tip pooling / sharing under West Virginia law[ML1] , see the fact sheet published by the DOL.
The state minimum wage applies when an employer has six or more non-exempt employees working at any separate, distinct, and permanent work location in West Virginia.
West Virginia state labor laws regarding the payment of overtime are largely consistent with the federal overtime laws. As most employers are covered by the FLSA, generally the FLSA will apply and requires employers to pay time and a-half for all hours worked over 40 per workweek, unless an employee is properly classified as exempt.
For minimum wage workers in West Virginia, the overtime pay rate amounts to $13.13 per hour (1.5 x $8.75).
In order to determine whether a company is covered under the overtime provisions of W. Virginia state law, an assessment must first be made to establish whether the company itself, or at least 80% of the company’s employees, fall under the overtime provisions of the Fair Labor Standards Act. If the FLSA applies, then the requirements of W.V. state law cannot be applied.
The following are exempt from W. Virginia state overtime requirements (but not necessarily from federal overtime requirements):
1.) Any individual employed by the United States Government.
2.) Volunteers involved in educational, charitable, religious, fraternal or non-profit activities
where the employee/employer relationship does not in fact exist.
3.) Newsboys; shoeshine boys; golf caddies; pin-boys and pin chasers in bowling alleys.
4.) Traveling salesmen and outside-salesmen.
5.) Services performed by an employer’s parent, son, daughter or spouse.
6.) Any individual employed in a bona fide professional, executive or administrative capacity.
7.) Any person whose employment is for the purpose of on-the-job training (vocational).
8.) A handicapped individual working in a nonprofit sheltered workshop.
9.) Individuals working in a boys or girls summer camp.
10.) Any person 62 years of age or older receiving social security benefits.
11.) Agricultural workers.
12.) State-employed fire fighters.
13.) Ushers in theaters.
14.) Students working 24 hours or less a week.
15.) Employees of local interurban motorbus carriers.
16.) Any employee under Federal Department of Transportation (DOT) regulations.
17.) Those employed on a per diem basis by the West Virginia State Senate, House of Delegates, or the Joint Committee on Government and Finance.
18.) Any salesman, parts man or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, and aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchases.
19.) Any person employed as a seasonal employee of a commercial whitewater outfitter where the seasonal employee works less than seven months in any one calendar year.
20.) Any person employed as a seasonal employee of an amusement park where the seasonal employee works less than seven months in any one calendar year.
Which Employees are Entitled to Overtime Pay
Most workers in West Virginia are entitled to overtime pay when they work more than 40 hours per week. In certain circumstances, however, there are exemptions.
Employees engaged in executive, administrative, or professional capacities (and paid at least $455 per week on a salary basis) are exempt from the overtime requirement. Note that new minimum salary requirements for overtime exemption take effect in January 2020 and increase the minimum salary threshold to $684 per week (or $35,568 annually). This change in federal law will also apply to most workers in West Virginia when making the determination of whether they are classified as exempt or non-exempt from the overtime pay laws.
Misclassification of Independent Contractors
Misclassification occurs when a business treats its workers as independent contractors (or subcontractors) rather than employees to avoid legal obligations such as social security taxes, worker’s compensation, unemployment insurance and overtime pay.
While there are situations in which workers are legitimately running their own business and properly treated as independent contractors who are not entitled to receive overtime, employers are not allowed to mischaracterize employee roles to avoid paying overtime compensation.
Merely labeling a worker as an independent contractor, or even entering into a written agreement, is not enough to avoid the labor laws on overtime pay.
There are several factors to be considered in determining if a worker in West Virginia is an employee or independent contractor (a/k/a 1099 employee)
If properly classified as an independent contractor under West Virginia law, workers are typically eligible for only the specific compensation bargained for in a contract.
Reporting Time / Show-Up Pay
West Virginia wage laws do not require reporting pay or show-up pay when workers show up for a scheduled shift but are sent home due to no available work.
An employer doesn’t violate overtime laws by requiring employees to work overtime, (ie “mandatory overtime”), as long as they are properly compensated at the premium rate required by law.
Authorized payroll deductions are those deductions that are allowed by law, required by court order, or relate to employer-sponsored or provided fringe benefit plans in which the employee is a participant. In order to take a deduction from wages that is not specifically authorized, the employer and employee must enter into a wage assignment agreement. In order for such an agreement to be considered valid, the employee must complete an “Assignment of Future Wages Form.
West Virginia wage laws state that all employers shall pay employees at least twice every month and with no more than nineteen days between paydays and pay them the wages due, less authorized deductions and authorized wage assignments, for their work or services.
West Virginia law requires that an employer pay an employee who leaves or is discharged from employment in full for all wages or salary earned by the employee no later than the next regular pay day following the date of separation.
Meal and Rest Breaks
The West Virginia Wage and Hour Laws require that employees working within the state and who work six or more hours per day or be provided with at least a twenty-minute meal/break period unless the employee is already being provided a lunch or break period or is allowed to eat while working. The break requirement remains at twenty-minutes regardless of the total number of hours the employee works in excess of the required six. The break may be given at any time throughout the employee’s work day at a time deemed reasonable by the employer. The twenty-minute requirement doesn’t have to be provided all together in one break period. It may be provided in smaller increments at the discretion of the employer.
Any meal break or rest period that lasts twenty-minutes or less must be paid.
The federal Fair Labor Standards Act does not require that an employer give employees any mandatory rest breaks or meal breaks.
Vacation or Holiday leave
West Virginia doesn’t require employers to provide workers with paid or unpaid vacation leave.
Statute of limitations
West Virginia’s deadline for filing an overtime claim adheres to the FLSA, which requires those seeking to recover unpaid back overtime wages file a lawsuit within two years from the date of the employer’s wage violation. So, a lawsuit filed today would be able to seek recovery of back overtime for only the prior 2 (sometimes 3) years.
As an example, suppose you believe that your employer has failed to pay you proper overtime wages since January 1, 2016. Waiting until June 1, 2019, to file your lawsuit means you are only allowed to seek unpaid wages from June 1, 2017, to June 1, 2019.
The statute of limitations may be extended to three years if an employer’s violation of the FLSA was willful. An FLSA violation is deemed willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard.
Penalties for Violations
Under federal law, employers who fail to pay proper overtime wages may be liable for up to double the amount of unpaid back wages plus costs and attorney’s fees incurred by employees. These cases can be brought by overtime pay lawyers on a class or collective basis on behalf of all workers who were subjected to the same illegal pay practices.
Layoffs, Plant Closings and WARN Notices
The Worker Adjustment and Retraining Notification Act (WARN) offers protection to West Virginia workers, their families and communities by requiring employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs. This notice must be provided to either affected workers or their representatives (e.g., a labor union).
An employer who violates the WARN Act by failing to provide appropriate notice is liable to each employee for an amount up to 60 days back pay and benefits for the period of violation.
On your side
At the Lore Law Firm, we represent salaried, hourly, and day-rate workers in an array of employment litigation matters, including unpaid overtime compensation claims in West Virginia. Our attorneys, and the West Virginia overtime law attorneys we associate with, are passionate about protecting the rights of workers and have helped recover millions of dollars in unpaid overtime wages for our clients.
Contact us for a free and confidential review of your situation.