West Virginia Employment and Labor Laws

West Virginia was determined to be the state with the highest job resignation rate throughout the country, according to a 2023 report published by Miami-based personal finance company WalletHub. The Mountain State had a 4% resignation rate as of September 2023 and a 3.4% resignation rate in the previous 12 months.

While the surge in resignations among employees could be attributed to the COVID-19 pandemic, it does not change the fact that the decline in labor force participation has repercussions on labor and employment as a whole in the state. Currently employed workers may face longer working hours and higher stress, while employers may incur higher hiring costs. 

This development highlights the importance of understanding labor and employment regulations in the state. In this article, various topics related to employment law, such as wages, working hours, workplace discrimination, and wrongful termination, will be discussed. It also tackles labor law, a subset of employment law that focuses on the interactions and relationships among employers, employees, and labor unions.

West Virginia Wage and Hour Laws

Minimum Wage Requirements

The current hourly standard minimum wage in West Virginia is $8.75. All employers with six or more non-exempt employees or those paid by the hour working at the same location in the state are bound by this law. If these requirements are not met, the federal minimum wage may apply.

Since the state’s minimum wage is higher than the federal rate of $7.25 per hour, workers covered by federal and state minimum wage requirements are entitled to receive the latter. The law also maintains that the state minimum wage will always be equal to or higher than the federal minimum wage.

It is noteworthy that House Bill 2481, which seeks to increase the state minimum wage in incremental amounts over a five-year period from 2023 to 2028, is currently under review in Congress. The bill aims to increase the hourly minimum wage to $10 after December 31, 2023, and up to $15 in 2028.

The subminimum wage — also called youth minimum wage — in the state is $6.40 per hour. All workers aged 20 or younger should be paid this amount for the first 90 days of their employment. Thereafter, they are entitled to the standard minimum wage.

For workers who receive tips, the minimum wage is $2.62 per hour, provided that the employee’s hourly rate plus the tips equal at least $8.75 per hour. Under state laws, the employer may implement a policy against tipping as long as the employees still receive the hourly state minimum wage of $8.75.

Who Are Exempt and Non-Exempt Employees?

When determining whether an employee is exempt or non-exempt, this is simply a question of whether that employee is covered by or exempt from the minimum wage requirements laid down by the state or federal government. Non-exempt employees are those who are paid by the hour. They should receive the minimum wage for each hour they work and are entitled to overtime pay. 

Meanwhile, exempt employees receive a regular salary without consideration of the minimum wage requirements. Their jobs are outside the jurisdiction of the Fair Labor Standards Act. Some examples are those employed by the U.S. government; volunteers of educational, charitable, religious, fraternal, or nonprofit organizations; individuals aged 62 and above receiving Social Security benefits; agricultural workers; students working 24 hours or less in a week; and those employed as seasonal workers at an amusement park, where such workers work less than seven months in a calendar year.

Overtime Pay

West Virginia requires employers to pay a rate of 1.5 multiplied by an employee’s regular rate for every hour worked by non-exempt employees, which would exceed 40 hours within seven consecutive working days. This regulation covers piece workers or those paid for each task or product. This rule would apply so long as the following conditions are met:

• The employer is not bound by federal overtime laws on the grounds of federal enterprise coverage or interstate commerce activity.

• Less than 80% of the employees are carrying out tasks that fall under interstate commerce activities as defined by federal laws.

• The employer has at least six non-exempt employees working at the same location.

It goes without saying that exempt employees, examples of whom were listed prior, are not subject to the state overtime requirements.

Wage Payment Frequency and Recordkeeping Rules

Employees in the Mountain State must be paid at least two times a month, with no more than a 19-day gap between the pay periods. For other wage payment frequencies, these must be approved by the Commissioner of Labor. Should an employee quit or be discharged, their final paycheck is due on the next regular payday. The state’s Labor Division can impose fines on employers who fail to pay wages on time.

Employees must receive an itemized statement of their salary for each pay period. The details must include their name, the number of hours they worked, their wage rate, and any and all deductions.

Additionally, employers with at least six employees are expected to preserve their personnel records for a minimum of two years. These records should include each employee’s name, address, salary rate, total working hours, and payroll deductions.

Breaks and Leaves

In West Virginia, employees are entitled to a minimum 20-minute break for every six consecutive hours of work unless they can take breaks whenever or eat while working. This 20-minute break is not required to be taken all at once. For example, they can take a 10-minute break in the morning and another 10-minute break in the afternoon, or whatever works for them or the employer. Should the employee take their break while working, they must be paid for this working break. Only breaks of less than 20 minutes are paid by the employer; those exceeding this timeframe are not considered payable hours.

When it comes to leaves from work, the state recognizes two types: required and non-required. Required leaves refer to certain instances in which the employer, whether private or public, is mandated to allow their employees days off. These include parental leaves and those covered under the Family and Medical Leave Act. Public employers, on the other hand, are expected to allow their constituents to take a leave of absence when they are sick, are called into active military or jury duty, or participate in disaster relief services.

Meanwhile, non-required leaves are called such because no federal or state laws obligate a private employer to pay for hours not worked due to sickness, holidays, or vacation, among others. 

West Virginia Hiring Laws

Under the West Virginia Human Rights Act, all individuals must be provided an equal employment opportunity regardless of their race, color, national origin, or ancestry. No one should be denied a chance to work because of their religion, sex, age, disability, or medical condition. Employers cannot publish any work notice showing preference for certain employee characteristics or elicit such information on the application forms.

In 2016, West Virginia adopted the right-to-work law. This means that employees are not subject to union membership requirements as a condition for their employment. Their right to self-organize is respected. They can choose to form, join, or participate in labor unions and take part in collective bargaining efforts. In the same vein, they also have the right not to participate in unions and related activities, including paying fees or assessments.

Is West Virginia an At-Will Employment State?

The Mountain State follows the at-will principle, meaning that the employer can terminate an employee at any time and for any reason. The same applies to employees, who can also quit their jobs without notice and with or without cause.

The at-will rule is guaranteed, provided no contractual or statutory provisions dictate otherwise.

What Qualifies as Wrongful Termination in West Virginia?

Although West Virginia is an at-will state, the Human Rights Act makes it illegal for any employer to terminate an employee just because they are a member of a protected class. This means dismissing an employee because of their race, color, national origin, or ancestry would be grounds for a wrongful termination claim. The same goes for their religion, sex, age, disability, and medical condition.

The 2009 case of Peters v. Rivers Edge Mining is an example of wrongful termination on the grounds of disability discrimination. George Peters (complainant) was employed by Rivers Edge Mining (respondent). He broke his arm while on the job in October 2003 and continued working with a cast until March 2004. His physician ordered him to stop working to allow his arm to heal completely. He was terminated when he returned to work in May 2004. Peters then filed a complaint of wrongful discharge. The local court ruled in favor of the complainant, but the respondent appealed. Eventually, the Supreme Court of Appeals of West Virginia unanimously upheld the verdict, awarding compensatory and punitive damages to Peters.

Meanwhile, the state’s Whistleblower Law bars an employer from retaliating against an employee who reports violations in the workplace or participates in related investigations. They cannot fire, threaten, or discriminate against these employees; otherwise, they will be facing a wrongful termination lawsuit.

In case an employee is left without a job, whether voluntary or involuntary, they can keep their health insurance benefits through the Public Employees Insurance Agency health plan. This is through the Consolidated Omnibus Budget Reconciliation Act or COBRA. This regulation covers full-time state or local government employees; long-term substitute teachers and school personnel; their legal spouses, children, and stepchildren below 26 years old; and court-appointed guardians.

How Do You Report an Employer in West Virginia for Wrongful Termination?

If an employee believes they were wrongfully discharged because they are a member of a protected class, they can file a complaint with the State of West Virginia’s Office of Equal Opportunity. The first step is to speak to an Equal Employment Opportunity Counselor, who will then ask the employee to fill out certain forms, including the Formal Complaint Form. Then, the counselor will go over the details with the employee and explain the process. The latter will then be asked to sign the consultation verification form. 

The EEO Counselor will then forward the complaint to the EEO Coordinator to commence an investigation. The employee will later receive a letter indicating that the investigators will reach out to them and set up a meeting. An employee can also file the complaint themselves and fax or mail the necessary forms to the EEO Office.

Wrongfully discharged employees who experienced discrimination can also file a claim with the West Virginia Human Rights Commission. Moreover, employees have the option to reach out to employment lawyers who are well-versed in handling wrongful termination cases. Available for access is a list of the best employment lawyers in the state capital, Charleston.

What Is the Statute of Limitations for Wrongful Termination Cases in West Virginia?

In West Virginia, the statute of limitations for wrongful termination depends on the type of claim. For discrimination claims, the employee has 180 days to file a complaint with the EEO office. This is extended to 300 days if a state law specifically prohibits the discriminatory act. 

If it is a tort claim, usually involving personal injury or defamation, the employee has two years to take legal action against the employer. If it is a contractual claim, the deadline is five years for oral contracts and 10 years for written ones.

How Much Can Someone Sue an Employer in West Virginia for Wrongful Termination?

An employee who was terminated illegally in the Mountain State can demand compensation for economic damages, which refer to financial losses like front and back wages and lost benefits. They can also recover non-economic damages for the emotional distress, trauma, and other non-quantifiable losses they incurred due to the wrongful termination.

In some cases, the court awards punitive damages. This is granted when there is clear and convincing evidence that the employer acted with malice or reckless and outrageous indifference to the employee’s health, safety, and welfare. Such punitive damages cannot exceed $500,000 or four times greater than the amount of the compensatory damages, whichever is a greater amount.

Resources for Employees in West Virginia

The following are some of the organizations that offer information on labor and employment, as well as those that provide legal assistance in resolving related matters:

West Virginia Lawyer Referral Service

The Lawyer Referral Service, under the West Virginia State Bar, is a public service that helps connect those seeking legal assistance with an attorney who has handled the concern at hand and is within the locality. Practice areas include employment law, human rights, and immigration, among others. Initial consultations will only set a client back by $25 or less for the first 30 minutes. The service’s contact number is (304) 553-7220. The office is at the West Virginia State Bar, at 2000 Deitrick Boulevard in Charleston.

Tuesday Legal Connect

Every Tuesday from 6 to 8 p.m., the West Virginia State Bar holds the Tuesday Legal Connect. Here, volunteer lawyers take calls and answer legal concerns from the public, offering general guidance and recommendations. Tuesday Legal Connect can be contacted at 1-800-642-3617.

Legal Aid of West Virginia

Legal Aid of West Virginia is a nonprofit organization that provides legal assistance to workers in all 55 of the state’s counties. It helps those who experienced discrimination in the workplace or those who were terminated unlawfully. Its 12 offices are scattered throughout the Mountain State, with the main office in Charleston. The complete list of office locations and their contact details can be seen on its website.

RequestLegalHelp.com

RequestLegalHelp is a website that serves as a group advertisement for participating attorneys. Its mission is to connect those seeking legal assistance with law professionals across the country, including West Virginia, who are experienced in different areas of the law such as labor and employment. How it works is that the user enters an inquiry on the website, and then RequestLegalHelp forwards this to a lawyer within or near the requestor’s ZIP code.

West Virginia Free Legal Answers

This virtual legal advice clinic is a project of the American Bar Association’s Standing Committee on Pro Bono and Public Service. It aims to address legal matters asked by qualified users. Answers are provided by state-licensed attorneys at no cost to the user. Simply fill out the sign-up sheet on the website and answer a few qualifying questions to get started.