Compliance Watch:

What are my rights as an hourly employee in West Virginia?

Hourly employment in West Virginia can be defined as the wages that are paid based on the actual hours worked during each pay period, resulting in varying income from one pay cycle to another.

To ensure hourly employees are accurately compensated, time tracking techniques are typically employed to record their payable working hours. Conversely, salaried employees are compensated with a predetermined annual amount, irrespective of the actual hours they have worked.

Moreover, while hourly employees are likely to be eligible for overtime pay, they may have fewer employment benefits (such as health coverage or pension benefits) compared to salaried workers.

To learn more about West Virginia labor laws, you can access our informative guides on understanding your rights as a salaried employee in West Virginia and discovering how to run payroll in West Virginia.

While federal and state labor laws do not specify the required weekly work hours for an employee, the federal Fair Labor Standards Act (FLSA) mandates employees to be compensated at a wage rate of 150% of their regular hourly wage for any hours worked over 40 per week.

West Virginia’s current minimum hourly wage is $10.00, which is higher than the federal minimum of $7.25. However, the rate only applies to employers with at least six employees.

Nevertheless, employers in the state must still adhere to federal wage requirements. In case the federal minimum wage is higher than the state-mandated rate, hourly employees are entitled to the federal minimum wage.

Therefore, in a standard 40-hour workweek, an hourly wage earner in West Virginia would typically earn a minimum weekly income of $350 in adherence with the minimum wage requirement of the state.

While some employees are legally entitled to the state’s minimum wage, it is worth acknowledging that federal and state labor laws exempt certain types of employees from earning the state’s minimum wage and overtime requirements. These particular exempt employees are as follows:

• Tipped Employees: Employees who receive tips are permitted to earn an hourly wage lower than the state’s minimum wage, provided that the tips, when added to the hourly wage, align with the state’s minimum wage of $10.00.
• Full-time students: High school or college students who work part-time may earn as low as $7.44 per hour, which is 85% of West Virginia’s minimum hourly wage, for up to 20 hours of work in a week.
• Employees below the age of 20: Federal rules allow employees below the age of 20 to earn a minimum hourly pay of $4.25 within the first 90 days of commencing employment. Afterwards, they must be paid the state’s minimum wage.
• Outside salespeople.
• Newspaper deliverymen.
• Federal employees.
• Employees engaged in the work of shoe shining.
• Agricultural employees.
• Administrative, executive, or professional employees.
• Employees who are computer professionals.

According to federal and state standards, overtime hours are any work done beyond 40 hours per week, entitling non-exempt employees to overtime payment at one and half times their regular hourly wage. That means an hourly employee in West Virginia typically earns an overtime pay rate of $10.00 per hour worked overtime.

Apart from the previously mentioned exempt employees, the following categories of employees are specifically exempt from earning overtime compensation under West Virginia’s statutory laws:

• Employees of a commercial whitewater outfitter who work less than seven months in any single calendar year.
• Seasonal employees of an amusement park who work less than seven months in any single calendar year.

In West Virginia, where employees are not afforded the opportunity to take necessary breaks and/or permitted to eat on the job, the state’s break laws require employees to be granted a paid 20 minute meal break time if they are scheduled to work for 6 or more hours in a day. In addition, the meal break can be scheduled at any time of the working day at the employer’s discretion. 

Moreover, state laws also mandate employees below the age of 16 to be provided with a 30 minute meal break if they are scheduled to work for more than 5 hours in a day.

As for employees who are lactating mothers, the labor laws in West Virginia regulating breastfeeding breaks are scant. For this reason, federal laws apply, which require employers to provide reasonable unpaid breaks for breastfeeding mothers to express milk in a secluded non-washroom area, for up to a year after childbirth.

• Voting leave: Under West Virginia’s statutory laws, employers must give their employees 3 hours of paid leave for absence to vote, provided that the employee has requested for this leave 3 days prior to voting and that the time to vote outside their working hours is insufficient.  
• Military leave: West Virginia employees are entitled to 5 years of unpaid, job-secured leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for fulfilling their military duties, with the opportunity to reclaim their previous job position. Furthermore, this Act permits employees to maintain their group healthcare benefits for 24 months during their military leave. 
• Pregnancy disability leave: In West Virginia, anti-discrimination laws regarding pregnancy mandate employers to provide reasonable accommodations for employees with known pregnancy or childbirth-related limitations, including necessary leave of absence.
• Jury duty leave: While employers are not mandated to compensate employees for the time spent serving on a jury, anti-discrimination laws regarding jury duty obligations require employers to excuse employees for responding to a jury summons if they provide proof of the summons the day after receiving it.
• Emergency responder leave: According to the state’s statutory laws pertaining to volunteer firemen or emergency medical service attendants, West Virginia employers must permit their employees to take emergency response leave in the wake of an emergency call to serve as a member of the firefighter department or as an emergency medical service attendant. Additionally, while employees may use their available paid leave for such duties, they are not obligated to do so.
• Family and Medical Leave: The Family and Medical Leave Act (FMLA) is a federal law that legally grants employees with 12 weeks of unpaid leave for issues concerning serious medical conditions of the employee or their immediate family member, the birth or adoption of a child or certain military activities. However, for an employee to be considered for this leave, they must:
  • Be employed under the same employer for at least 12 months prior to taking their leave.
  • Have worked for at least 1,250 hours within those 12 months of employment under the same employer.
  • Be employed by an employer that has 50 or more employees within a 75 mile radius.

According to the statutory laws in West Virginia, employers can only make authorized deductions from an employee’s paycheck if:

• They are obligated to do so by law.
• They have been given prior written consent by the respective employee.
• It has been permitted for union or club dues, pension plans, payroll savings plans credit unions, charities and hospitalization and medical insurance.

Furthermore, the wage deductions that can only be made from the written authorization of the employee include; cash shortages, damages, rent, uniforms, tools, any other items necessary for employment.

It is also worth emphasizing that the Department of Labor has prohibited any wage deductions made by an employer if such deductions result in the employee earning less than the federal minimum wage of $7.25 per hour in that particular pay period.

• Minimum wage: West Virginia’s minimum wage and maximum hours law entitles hourly employees to be compensated according to the state’s minimum wage of $10.00 per hour. 
• Overtime: The federal and state labor laws afford non-exempt employees the legal right to earn overtime payment for all hours worked in excess of the 40-hour work week at an hourly wage rate set at one and a half times their regular hourly wage.
• Worker’s compensation insurance: Under the West Virginia’s Worker’s Compensation Act, it is a statutory requirement for employers to cover their employees with worker’s compensation insurance. The employees covered under this Act are entitled to receive several kinds of benefits if they have been inflicted with occupational-related illnesses or injuries arising out of and in the course of their employment.
• Unemployment insurance benefits: The unemployment insurance benefits, administered by the West Virginia Department of Commerce, offer temporary income to individuals who have lost their jobs through no fault of their own. The benefits provided by this insurance serve to partially offset lost wages while the unemployed individual searches for suitable employment opportunities or until they are recalled by an employer to work. Furthermore, the employee’s wages remain untouched to fund for this insurance coverage.
• Extended health insurance benefits: The Consolidated Omnibus Budget Reconciliation Act (COBRA) is a federal law that allows for continued health insurance after an individual’s termination of employment. However, since the federal Act is only applicable to employers with 20 or more employees, West Virginia has made its own version of the Act which entitles employees with the privilege to continue their disability insurance for up to 18 months upon their termination.

• Social media information protection: The West Virginia Internet Privacy Protection Act prohibits employers from requesting or coercing employees to reveal their login credentials. In addition, employers are also prohibited from coercing employees to enable access to personal accounts or adding the employer to contact lists for access to personal accounts.
• Employee monitoring protection: The labor laws of West Virginia prohibit employers from listening or recording their employees’ oral, electronic or wire conversations, unless prior consent has been given by at least one party to the communication.
• Medical Marijuana employment protection: Under state labor law provisions, an employee is legally protected from the discrimination and retaliation of an employer for their certified usage of medical marijuana to treat their particular serious medical conditions.
• Child labor protection: The state of West Virginia has implemented a number of restrictions that limit the workplaces and work hours permitted for employed minors. However, West Virginia’ statutes permit employees below the age of 14 years to be employed in the occupations listed below: 
  • Non-hazardous agricultural and horticultural work.
  • domestic service performed at least within the premises of the employer’s residence.
  • work performed for a parent or legal guardian’s solely owned business.
  • work done as an actor or performer (e.g., in motion pictures, productions, etc.). 
  • newspaper delivery work.

Similar to many other states across the U.S., West Virginia follows the employment-at-will principle with regards to the general regulation of employment relationships. Both the employer and employee have the privilege to terminate the employment relationship at any time without the need to provide specific justifications, unless such reasons violate the law. However, this general concept has several exceptions that curtail the employer’s capacity to freely terminate the employment relationship which are listed below:

• Breach of contract: An employment contract may specify particular circumstances that lead to the termination of employment, such as poor work performance. With such provisions in place, employers are excluded from the general applicability of the employment-at-will concept. Instead, they must strictly adhere to the relevant terms of the oral or written employments contracts, as well as any agreements outlined in their employment handbooks, which respectively govern their employment relationships.
• Public policy: Employers are prohibited from terminating their employees if the grounds for termination violate established public policies. This includes terminating an employee who refuses to engage in an illegal activity at the request of an employer or for rightfully filing a claim for their legal right to worker’s compensation.
• Retaliation: Laws at federal and state standards prohibit employers from taking personnel actions against their employees who have participated in discrimination hearings, asserted their legal rights, or taken their legally entitled leave of absence (such as taking leave to serve on a jury or the military).
• Discrimination: The West Virginia Human Rights Act prohibits employers from discriminating against their employees based on their protected characteristics such as their race, religion, color, age (40 years old and above), blindness or disability. Additionally, employees are protected by state statutory law from employment discrimination based on their legal usage of tobacco products outside of their workplace during non-working hours.

Moreover, West Virginia’s statutory provisions require employers to provide terminated employees with their final paycheck for the work performed prior to the end of their employment either on or before the next regular payday. Failure to pay such wages by the employer will result in legal liability, requiring the employer to pay the employee two times the unpaid amount in the form of liquidated damages, in addition to the outstanding amount.

In the state of West Virginia, employers are under no obligation to make severance payments to their employees upon their termination under both state and federal law. Employers are only obligated to offer severance pay to their terminated employees if it has been mandated by the provisions of the employment contract or collective bargaining agreement. 

Typically, West Virginia employers choose to make such payments contingent upon the tenure of their employees, whereby employees’ receive one week’s worth of severance pay for every year of their employment. Severance pay is also commonly given on a lump sum basis, although it can also be paid in several instalments.