Overview of West Virginia Labor Laws
Understanding labor laws in West Virginia is vital for both employers and employees. For employers, labor laws provide guidance on the legal obligations and rights of employers. Specifically, most labor laws place requirements on employers regarding the employment relationship. Failing to comply with these laws can be costly to employers because employees can seek recourse for violations. For employees, a labor law violation can mean lost wages and benefits. For example , a LGBT employee facing discrimination in the workplace can file a charge with the Equal Employment Opportunity Commission and obtain relief if the claim is substantiated.
Labor laws are generally divided into five categories: hours and days of work, minimum wage, equal pay, child labor and overtime. In addition to these, there are also specific laws governing hiring and termination. In West Virginia, the primary law governing minimum wage and overtime pay is the West Virginia Minimum Wage and Accountability Act. The Wage and Hour Division of the United States Department of Labor also governs many aspects of employment law, which complement the state laws.
Compensation: Minimum Wage and Overtime Pay
Employers are obligated to pay at least the minimum wage, which, as of July 1, 2023, is $8.75 per hour in West Virginia. While most employees (including part-time, temporary, and seasonal employees) are entitled to minimum wage under the State and Federal Wage and Hour Laws, there are exceptions. For example, some employees are exempt from both minimum wage and overtime requirements under the law. These included South and North Dakota in home care workers. Additionally, employees spending the majority of their workweek performing outdoor labor have a lower minimum wage ($8.77).
West Virginia law also requires employers to pay non-exempt employees overtime (at least one-and-one-half times the employee’s regular hourly rate) for hours worked in excess of forty (40) hours in a workweek, unless they qualify for an overtime exemption. However, there are special rules that apply to state and local government employees regarding overtime. Any employee of the State or political subdivision of the State who is covered by the Federal Fair Labor Standards Act (FLSA) is entitled to a compensatory time off at the rate of one-and-one-half hours for each hour of employment for which overtime compensation was required under the FLSA.
Under federal law, certain employees are exempt from the overtime requirements. To qualify for the executive, administrative, and professional exemptions, employees must satisfy the following:
An employee also satisfies this requirement if the employee is compensated on a salary or fee basis of not less than $684 on a weekly or less frequent basis, and his/her primary duty is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily gained by a prolonged course of specialized intellectual instruction. However, one does not need to have a bachelor’s degree to qualify for this exemption. Rather, jobs such as baker, blacksmith, butcher, carpenter, cabinetmaker, electrician, mechanic, banker, insurance agent, and other professions requiring specialized education or apprenticeship training may qualify.
As with overtime exemptions, certain employees do not qualify for the West Virginia Minimum Wage Act. Similar to the federal exemptions discussed in the above paragraph, the exemptions under the West Virginia law also require that the employees be compensated on a salary or fee basis of not less than $684 per week. As far as duties, the employee’s primary duty must be the management of the enterprise or the management of a customarily recognized department of the enterprise and the customarily and regular exercise of discretion and independent judgment with respect to matters of significance.
Child Labor Laws in West Virginia
Certain restrictions and requirements apply to employing minors. For example, employers are restricted in the number of hours minors are permitted to work, depending on their age; certain occupations are prohibited, again depending on the age of the employees. The West Virginia Youth Employment Code, set forth in The West Virginia Code of State Rules Sections 42-5-1-17, requires firms employing persons under 18 years of age to keep a register showing each employee’s age and other information. West Virginia Youth Employment Code § 42-5-7-a.
Local ordinances and county commissions may adopt further limitations on the hours and conditions under which minors may be employed. West Virginia Code § 21-5-3-(b)(4). Even though local ordinances may impose greater restrictions than are found in the West Virginia Youth Employment Code, they may not be adopted arbitrarily or in an unreasonable manner. The West Virginia Youth Employment Code is intended to safeguard and promote the health and general welfare of minors. West Virginia Youth Employment Code § 42-5-2. This intent demands that the ordinance, to be valid, must be actually necessary to protect the health and safety of minors. Burkhart v. Nelson, 612 S.E. 2d 730, 736 (W.Va. 2005).
Thus, for example, in Burkhart v. Nelson, the West Virginia Supreme Court of Appeals upheld the validity of an ordinance restricting the hours of work for minors under 18 years of age at four hours per day and 23 hours per week. Burkhart v. Nelson, 612 S.E. 2d 730, 734 (W.Va. 2005).
The West Virginia Youth Employment Code provides, for example:
6. No employee under the age of 18 years shall be permitted to work in or connect with:
A Retail or Food Services Establishment – does not extend to work in offices of such establishment;
A Manufacturing or Mining Establishment
A Youth Employment Center
A Construction Site
A Machine Shop
A Laundries
West Virginia Youth Employment Code § 42-5-13-a.
In addition to being required to keep age records, certain records must be available for inspections or examinations by authorized government officials. West Virginia Youth Employment Code § 42-5-5.
Employee Rights: Protections and Benefits
Employment law is a set of federal and state laws designed to safeguard employees from discrimination, retaliation, unsafe working conditions and overtime violations. Labor law includes the legal right to fair wages, freedom from discrimination and protection from retaliation for asserting any rights under the law.
West Virginia labor law prohibits private employers with at least 12 employees for 20 or more weeks in the current or previous calendar year and government employers from discriminating against an applicant for employment or an employee because of age, race or sex.
West Virginia law requires that an employee who is validly discharged from employment for misconduct must be paid all wages due and payable within 72 hours of being discharged if the employee failed or refused to give the employer notice as required by law. If the employee gave the employer notice, the employee must be paid within 72 hours of the notice of discharge. If an employer fails to pay all wages due, the employer must pay the employee liquidated damages of two times to amount of damages owed.
West Virginia labor law specifically states that employers with more than 50 employees may not discriminate against an employee on the basis of age and prohibits employers from paying different wages based upon age for work that is substantially similar.
Employers must pay male and female employees the same wages for substantially similar work. West Virginia labor law specifically notes that it is not discriminatory for an employer holding a license, permit or certificate recognized under the law of this state or the United States which requires the holder to be of a particular sex to refuse to hire a person of the opposite sex. Employers are prohibited from paying any employee lower wages than the lowest wage paid to any employee of the opposite sex. Although employers are obligated to pay equal wages to its employees, the law specifically states that an employer is not obligated to allow both males and females to compete for all job classifications.
Employers are obligated to provide workers’ compensation insurance and un-employment compensation benefits to its employees. Employees working within the scope of their employment are entitled to all the rights and benefits authorized by the workers’ compensation law. Employers are specifically prohibited from firing an employee for filing a claim for workers’ compensation.
Under West Virginia workers’ compensation laws, you must provide a signed Certificate of Dependent Eligibility to receive benefits. If you do not provide the certificate, your dependents are not eligible to receive any death benefits. West Virginia law does not provide benefits for loss of a body part, except for injuries which result in total permanent loss of the use of a hand, arm, leg or other member of the body. Permanent total disability benefits are only awarded if an injury results in paralysis of a hand or foot, loss of a leg, hand, foot, arm, or any other member, unless the employer demonstrates that the employee is employable in another capacity, or if the injury has resulted in a disability equal to or greater than total industrial loss of use.
You must tell your doctor that your condition is related to an on-the-job injury and you should keep a record of every visit and treatment. You should report any worsening of your condition to your doctor. If you believe that your employer has wrongfully denied your workers’ compensation claim or you were wrongfully denied a beneficial treatment, a West Virginia workers’ compensation attorney can help you navigate through the complicated process.
Job Security: Unemployment and Workers’ Compensation
West Virginia maintains unemployment insurance and workers’ compensation systems.
In West Virginia, the Unemployment Compensation Division is part of the West Virginia Division of Workforce West Virginia. The Unemployment Compensation Division pays unemployment benefits to insured individuals who are unemployed through no fault of their own. A person may be entitled to unemployment compensation benefits in West Virginia if he or she is unemployed, able to work and available for work; has registered with the Division; and has earned sufficient wages during his or her base period to qualify for unemployment compensation benefits.
There is a process to apply for benefits through the Division. How the benefits are paid, such as using direct deposit, will likely depend on the individual’s situation as well.
The West Virginia Workers’ Compensation Commission pays workers’ compensation benefits to injured employees. These benefits cover lost wages, medical expenses and rehabilitation expenses of injured employees and death benefits for survivors of employees whose deaths are caused by work-related accidents, occupational disease or repetitive work injury. Most private employers are obligated to pay benefits to injured employees under the Workers’ Compensation Workers’ Compensation Act.
Leave Entitlements: Sick, Vacation, and Family Leave
Employees may have a number of different types of leaves available to them under the Federal Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (FMLA), the West Virginia Human Rights Act, §§ 5-11-1 to -20 (WVHRA), the federal Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117 (ADA), and the West Virginia Workers’ Compensation Act, W. Va. Code §§ 23-1 to -6a (Workers’ Comp Act). These leave entitlements are meant to protect employees from differential treatment or discharge for taking a leave of absence for a qualified reason.
The FMLA covers employers with 50 or more employees who worked within a 75-mile radius of each other during the previous 20 weeks. Employees are entitled to take up to 12 weeks of unpaid protected leave to care for a new child, spouse, son, daughter or parent with a serious health condition, or during a personal illness as a result of a serious health condition that renders the employee unable to perform his or her job functions. Employees are protected from discharge or retaliatory actions for requesting or taking medical leave. Employers may not discriminate or retaliate against employees for exercising their rights under FMLA, though they are free to grant additional leave as a matter of company policy.
The WVHRA includes similar employment protections as the FMLA. Both statutes require covered employers to grant employees who work for at least 12 months and 1,250 hours within the last 12 months up to 12 weeks of unpaid protected leave for their own or a family member’s serious health condition. Employees who are disabled are protected against employment discrimination under the WVHRA . Unlike the FMLA, the WVHRA does not contain a comparable size jurisdiction; however, West Virginia courts afford a broader interpretation of section 504 of the Rehabilitation Act of 1973 than other federal courts, thus bringing many employers within the scope of the WVHRA. This means employers who employ 15 or more employees for at least 20 weeks during the previous year are covered by the WVHRA.
The ADA covers employers with 15 or more employees, and protects employees who are disabled from discrimination or retaliation for exercising their rights under the statute. The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of an individual’s major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. Under the ADA, employees are entitled to reasonable accommodation for disabilities which may include leave. The ADA only permits employees to recover for lost wages for the duration of time they are unable to work.
The Workers’ Comp Act entitles employees to recover lost wages as a result of a work-related injury. Employees are entitled to recover wage loss benefits for up to five years, or until the injured employee reaches retirement age, whichever is longer. Employees who are unable to work because of both their work-related injury and a related disability are entitled to recover benefits for both injuries. Employees are entitled to recover a maximum of 72 weeks of benefits if they miss work for more than 24 weeks, then have a recurrence of the recovery-related injury that mires them out of work for another five years.
Resolving Employment Disputes: Your Options
Disputes over labor laws or employment law matters in West Virginia have to be resolved by way of litigation, mediation or arbitration. Depending on your employment contract, you may or may not need to mediate or arbitrate prior to pursuing litigation. Even if you do have to mediate or arbitrate, you can probably still file suit if need be.
Many, many lawsuits are filed in court before the parties ever mediate or arbitrate. If you must mediate or arbitrate, you can always ask the panel of mediators and/or arbitrators to reopen the case so that you can pursue discovery in court. Usually, the case would then be consolidated so that you do not have to go through the same process twice in two different venues.
That said, a lot of employment contracts now have mandatory arbitration clauses in them. When you sign something that says you have to arbitrate any disputes, you usually have to arbitrate the disputes, and you cannot pursue further litigation in court afterwards.
There is a lot of debate as to the merits of arbitration, and whether or not it always benefits the employee. For a well-drafted arbitration clause, you need to look at the cost of the arbitration and whether the costs are split equally by the employer and employee; whether there is a clause that states that the arbitrator will issue an opinion explaining the arbitrator’s ruling and if so, the length and substance of that opinion; how long the parties have to complete discovery and/or submit their briefs for consideration by the arbitrator; whether either party can file a motion to dismiss and/or a motion for summary judgment; how binding the ruling is and what rights each party has to appeal; and the general rules/procedures by which the arbitration is conducted.
If your employment contract does not contain mandatory arbitration, and you are trying to resolve a dispute between you and your employer, you may want to try to mediate first. Mediation is a process by which a neutral party helps you and your employer resolve the dispute. It is very important that you have a mediator that knows the ins and outs of the law to assist the parties in resolving the dispute.
If that does not work, and an arbitrator or judge is needed, you need a law firm that has experience litigating labor law claims and employment law claims, and one that knows the appropriate tactics for litigation. Many cases are settled prior to trial, but cases that are not settled need to be presented in an effective way to a jury or judge.
Recent Developments in West Virginia Labor Laws
Over the past couple of years there have been some major changes for employers operating in West Virginia. Most notably, the West Virginia legislature passed and updated legislation that affected a number of employment law areas (e.g., overtime, non-compete agreements, etc.). Some of the changes went into effect immediately, while others are effective as of July 1, 2015.
Committees or Commissions with authority to hear employee grievances are capped at $150 per dispute (previously they were allowed to charge $100). However, they are authorized to charge up to $25 per witness.
All agreements or documents with non-compete restrictions must be signed in the county in which it will be enforced. If it’s not, then the entire agreement is void.
Non-competes are unenforceable unless the employer can satisfy a six-part test.
Most importantly, an individual cannot be retaliated against in any way for refusing to sign a non-compete restriction.
Other helpful provisions to employers are the "estopped" section regarding the remedy for the failure to sign a non-compete, the statute of limitations is shortened from five years to two years, and the one-way attorney fee shifting lightens the load.
Discussion of non-competes: Obviously non-competes are an important issue for employers to consider as they grow their businesses. Recently I was interviewed by The Washington Post on the use of non-competes in West Virginia, and the article can be found here.
Disclosure of wages: This section of the West Virginia Wage Payment and Collection Act allows employees to disclose their wages to anyone at anytime, and is effective as of June 12, 2015.
General immunity: Under this section an employer is generally immune from civil claims arising from disclosures made in good faith. This means that employers cannot terminate an employee because he or she makes a complaint about the employer’s failure to pay wages owed. This is also effective as of June 12, 2015.
Compensatory damages: Section 21-5C-8[b] provides that if an employer does not immediately remedy a claim that wages are due, then the employee may receive an additional 25% in salary and all attorneys’ fees. This is effective as of June 12, 2015.
Action for wages: Employers can avoid a lawsuit if they willingly comply and remedy a claim made by an employee that wages are due. If the employer pays within 15 days of a claim being made, then the employee is not entitled to 25% wages or attorneys’ fees. However, if at the conclusion of a trial the employee prevails and it is determined that the employer knew or should have known that it did not owe money to the employee, then the employee will recover 25% of unpaid wages in addition to attorneys’ fees. This is effective as of June 12, 2015.
Penalties on employers: The old penalties of $500 or 10% of unpaid wages, whichever is greater, are replaced with $100 plus 10% of unpaid wages. This section only applies to employers who employ four or more employees. Also, any claims for penalties must be made within six months of the date wages are first due. This is effective as of June 12, 2015.
Conclusion and Further Reading
In this article, we have explored both federal and state workplace regulations that govern the relationship between West Virginia employers and their employees and applicants for employment. As we noted, certain workplace issues are governed by federal law. However, in certain areas, West Virginia law imposes requirements that are more protective of employees than are federal law. Additionally, certain issues may only be covered by West Virginia law. Regardless, although employers should review applicable federal and state law, they should also be mindful of applicable local law and the specifics of any contracts, plans or policies which apply to the employer’s workforce.
The following links include official and reputable material regarding federal, state and local laws in West Virginia which may be helpful in providing additional detail, context or clarification concerning some of the information we have discussed:
U.S. Department of Labor , Wage and Hour Division: http://www.dol.gov/whd/index.htm
U.S. EEOC: http://www.eeoc.gov/sub_nonex_state_and_local.html
West Virginia Workers’ Compensation Commission: http://www.wvinsurance.gov/WVIC/default.aspx
West Virginia Human Rights Commission: http://www.hrc.wv.gov/
Salary.com: http://www.salary.com/CC/Custom/General/Pages/Salary-Calculator-West-Virginia.aspx
U.S. Department of Labor, OSHA: http://www.osha.gov/pls/oshaweb/owascalindependent?base_year=2000&state_code=WV
National Labor Relations Board: http://www.nlrb.gov/about-nlrb/who-we-are/areas-served/west-virginia
American Association of University Women: http://www.aauw.org/research/trends/general/
National Partnership for Women and Families, Family and Medical Leave Act, Domestic Violence and the Workplace: http://www.nationalpartnership.org/site/DocServer/DV_TIP_Sheet_FMLA.pdf?docID=258