West Virginia Overtime Laws

January 23rd 2024

According to the West Virginia Labor Law, employees are rightfully entitled to compensation for overtime hours beyond the standard 40-hour workweek. These laws ensure that employees are fairly compensated for their additional efforts, recognizing the importance of work-life balance and just remuneration.

This article will provide information to successfully navigate West Virginia’s overtime regulations, whether you’re an employer aiming for compliance or an employee defending your rights.

This article covers:

West Virginia Overtime Rates

Overtime law in West Virginia is designed to prevent employees from being exploited by their employers. Employees who work over 40 hours per week are entitled to overtime pay at time-and-a-half (1.5) for every additional hour worked. 

Since the regular minimum wage in West Virginia is $8.75 per hour, this means West Virginia’s overtime minimum rate is $13.13 per hour. 

Overtime Entitlement in West Virginia

According to West Virginia overtime laws, overtime pay is required for any non-exempt employees and employers.

When examining the applicability of West Virginia’s overtime provisions to a company, an assessment is necessary to determine if the company itself, or at least 80% of its employees, is covered by the overtime provisions stipulated in the Fair Labor Standards Act. It should be noted that if the company can establish jurisdiction through federal enterprise coverage or individual employee interstate commerce activity, the requirements of state law cannot be imposed.

For West Virginia overtime laws to be applicable, the following conditions must all be satisfied:

  • The company does not qualify for federal “enterprise” coverage.
  • At least 80% of the company’s employees are not individually eligible for federal overtime coverage based on work duties involving interstate commerce activity.
  • The company employs a minimum of six non-exempt workers at a distinct, permanent business location.

It is important to note that the overall eligibility for overtime pay will be based on what an employee’s job duties are as well as what type of business they or their employer are in.

Read more about Overtime Exceptions and Exemptions in West Virginia.

Compensatory Time in West Virginia

In West Virginia, only county and municipal government employees have the option to receive compensatory time off, or “comp time”, instead of overtime compensation. This means that for every hour of work that requires overtime, government employees can accumulate comp time at a rate of no less than time-and-a-half for each hour worked.

However, it is important to note that employees are eligible for comp time only under specific circumstances, which are as follows:

  • Comp time must be awarded based on a prior written agreement between the employer and the employee. This agreement can be modified by mutual consent, but changes cannot affect pre-earned comp time.
  • The duration of comp time must be accurately documented in the employer’s record of hours worked.
  • The employee has not accumulated compensatory time beyond the specified limits.
Specified compensatory time limits

Depending on the nature of their work, employees in public safety, emergency response, or seasonal activities can accumulate up to 480 hours of comp time. Meanwhile, employees engaged in other roles within county or municipal government can accrue up to 240 hours of comp time. However, once an employee reaches the limit of 480 or 240 hours, they must be paid overtime compensation for any additional hours worked. If an employee receives monetary compensation for their accrued comp time off, it should be paid at their regular rate at the time of receiving the payment.

When an employee who has accumulated authorized comp time leaves their employment, they are entitled to receive payment for the unused comp time. The rate of compensation for the unused time should be no less than:

  • The employee’s average regular rate over the last three years of employment.
  • The employee’s final regular rate, whichever rate is higher.

It is important to note that an employee who has requested to use their accrued comp time must be granted permission by their employer, provided that it doesn’t significantly disrupt the functioning of the public agency. The employee should be allowed to use the comp time within a reasonable period after making the request. Comp time must be utilized within one year from the time it was earned.

Overtime for Tipped Employees in West Virginia

Tipped employees in West Virginia are entitled to overtime pay if they work more than a specific number of hours in a week. Overtime pay is calculated at a rate of 1.5 times the employee’s regular hourly wage for every overtime hour worked. In West Virginia, there is no specified minimum threshold for tips that an employee must receive to be considered a “tipped employee.” As a result, any employee who receives tips can be remunerated following West Virginia’s laws governing the minimum wage for tipped employees.

To further understand the compensation structure for tipped employees, the concept of a “tip credit” comes into play. The tip credit allows an employer in West Virginia to pay tipped employees a reduced minimum wage of $2.62 per hour, under the condition that the employee’s total wage, including tips, reaches or exceeds the regular tipped employee’s minimum wage of $8.75.

Simply put, employers cannot include the tip credit in the overtime pay calculation but must use the entire tipped employee minimum wage of $8.75 to determine the overtime pay rate for tipped employees.

Overtime for Piece Rate Workers in West Virginia

Piece rate workers in West Virginia are eligible to receive overtime wages, as outlined by state laws. Piece rate workers are individuals who are paid based on the number of items they produce or tasks they complete, rather than receiving a fixed hourly wage or salary.

It is important to note that even though their payment structure may differ, these employees are still protected by the requirement of fair compensation for their extra hours of work. To determine the appropriate overtime wages, a calculation is performed to establish the employee’s hourly rate for the specific workweek. Subsequently, any hours worked beyond the standard 40 hours within that week are to be remunerated at a rate of 1.5 times the employee’s regular rate of non-overtime hours.

Overtime for On-Call Employees in West Virginia

Under West Virginia’s laws, employers must consider on-call time as hours worked for overtime requirements. This only applies to employees who are obligated to stay on or near the employer’s premises or their home, limiting their ability to use the time for personal purposes.

However, if employees are not required to remain on the employer’s premises and are only required to provide contact information to be reached, they are not entitled to overtime pay.

Overtime Exceptions and Exemptions in West Virginia 

According to the laws of West Virginia, certain employees are not entitled to receive overtime pay:

  • United States Government employees
  • Volunteers in educational, charitable, religious, fraternal, or non-profit organizations
  • Newsboys, shoeshine boys, golf caddies, pin-boys, and pin chasers in bowling alleys
  • Traveling and outside salesmen
  • Individuals employed by their parent, son, daughter, or spouse
  • Bona fide professional, executive, or administrative employees
  • On-the-job trainees
  • Handicapped individuals working in a nonprofit sheltered workshop
  • Boys or girls summer camp employees
  • Individuals 62 years of age or older who receive social security benefits
  • Agricultural workers
  • Firefighters employed by the state
  • Ushers in theaters
  • Students working 24 hours or less per week
  • Individuals employed by a local interurban motorbus carrier
  • Employees under Federal Department of Transportation (DOT) regulations
  • Individuals employed on a per diem basis by the West Virginia State Senate, the House of Delegates, or the Joint Committee on Government and Finance
  • Salesmen, parts men, or mechanics engaged in selling or servicing (excluding manufacturing) automobiles, trailers, trucks, farm implements, or aircraft
  • Seasonal employees of commercial whitewater outfitters and amusement park workers who work less than 7 months in a calendar year

Mandatory Overtime for Hospital Nurses in West Virginia

In West Virginia, a hospital is not allowed to force or pressure a nurse to work overtime hours. Hospital employers cannot retaliate against a nurse for refusing overtime assignments if the nurse believes that working additional hours could compromise the safety of patients or employees at the facility. In critical situations where patient safety is at risk, a nurse may be required to work additional hours beyond their scheduled shift or be mandated to continue their duty in an overtime status.

In some cases, a nurse may need to work overtime to finish a specific patient care procedure that is already in progress. However, it’s important to note that this does not allow employers to use staffing patterns as a way to substitute mandatory overtime by requiring nurses to complete procedures. Mandatory overtime is only applicable when there is a collective bargaining agreement between nurses and the hospital.

Any nurse who works 12 or more consecutive hours, must have a minimum of 8 consecutive hours off-duty immediately after completing the shift. A nurse should not exceed working 16 hours within a span of 24 hours. In cases where an on-call nurse has already worked 16 hours, the hospital should make efforts to find a substitute nurse for work duties.

Statute of Limitations For Unpaid Overtime Claims in West Virginia

In West Virginia, the statute of limitations sets the time frame in which employees can seek unpaid overtime wages. Typically, employees have two years from the date of the violation to file a complaint and pursue back wages for overtime. This means that if an employee initiates legal action today, they can only claim compensation for violations that occurred within the past two years.

However, under certain circumstances, the statute of limitations may be extended to three years. This extension comes into play when an employer has knowingly or intentionally violated overtime regulations.

Legal Cases Relating to Overtime Compensation in West Virginia

Below, we present law cases relating to fair overtime compensation for employees in West Virginia: 

1. CFO Deliberately Failed to Pay Overtime Wages to an HR Employee

In the case of Deskins v. Southern West Virginia Community and Technical College, Melissa Deskins filed a lawsuit against Southern West Virginia Community and Technical College (SWVCTC) for unpaid overtime wages. Deskins filed this lawsuit on behalf of herself and other similarly situated individuals. 

Deskins worked in the SWVCTC’s human resources department for about three years before her employment ended. Deskin claimed that she consistently worked more than 40 hours per week without receiving the required overtime pay. She alleged that the college did not record her actual work hours, which violated the Fair Labor Standards Act (FLSA). Deskin also accused the college’s chief financial officer of knowingly and deliberately not paying overtime wages. 

Deskin believed that other employees had faced similar compensation issues. She requested conditional certification of the lawsuit as a collective action to notify other potential employees. This was approved by the court. After approval, Deskin sought damages, which included overtime pay, liquidated damages, attorney fees, costs, and interest for three years before the complaint. After months of discovery, the parties settled. The proposed settlement was $20,000, with $9,000 allocated for attorney’s fees and $11,000 to compensate Deskins. 

Ultimately, the court granted the joint motion to approve the settlement, dismissed the case with prejudice, and awarded the proposed attorney’s fees.

Key lessons from this case:

  • Lawsuits can be filed on behalf of a group of similarly situated employees, known as a collective action.
  • Employers must maintain accurate records of employees’ work hours, including overtime hours worked.
  • Employees can seek overtime back wages of up to 3 years if their employer has been proven to willfully violate overtime laws.
2. Delivery Driver Seeks Unpaid Overtime Wages After Being Misclassified as an Independent Contractor

In the case of Young v. Act Fast Delivery of West Virginia, Eric Young filed a complaint on behalf of himself and others against Act Fast Delivery, a courier for Omnicare. Young alleged that they were wrongly classified as independent contractors and were not paid overtime or reimbursed for expenses incurred during their delivery work.

The court allowed the case to proceed as collective action, and the trial focused on whether Omnicare was a joint employer and whether the drivers should be considered employees. The trial ended in favor of Omnicare. After the trial, Young’s lawyer discovered that Omnicare had failed to disclose important evidence known as the ASN-POD Reports. These reports contained information about the deliveries made by the drivers and were crucial to the case. Young filed a motion to challenge the judgment, arguing misconduct.

The court determined that the motion was not filed too late and that Young acted promptly upon discovering Omnicare’s misconduct. The court agreed that Omnicare’s deliberate concealment and misleading responses during the discovery process were considered misconduct. 

The court concluded that Young had a valid case, and Omnicare’s misconduct prevented them from fully presenting their arguments. The court granted Young’s motion and vacated the judgment.

Key lessons from this case:

  • When multiple entities are involved in a worker’s employment, such as a contractor and a subcontractor, both may be considered joint employers and can be held jointly liable for violations.
  • Discovery is the process where parties exchange relevant information and evidence.
  • Employers who mislead or conceal evidence undermine the integrity of the process and may lead to severe consequences in overtime lawsuits.
3. Employer Knowingly Failed to Provide Overtime Pay Due to Lack of Funds

In the case of Butterfield v. University Physicians & Surgeons, Inc., Michelle Butterfield filed a lawsuit against University Physicians & Surgeons, also known as Marshall Health, for violating the Fair Labor Standards Act (FLSA). Butterfield claimed she and other employees regularly worked more than 40 hours per week without receiving the required overtime pay.

Butterfield specifically mentioned that she reported overtime hours to Marshall Health but they failed to compensate her for the extra hours. Marshall Health claimed it couldn’t afford to pay for overtime. As a result, Butterfield filed the lawsuit on behalf of herself and other healthcare employees who were paid on an hourly basis at Marshall Health during the three years before the lawsuit.

Marshall Health filed a motion to dismiss the lawsuit, by arguing that the complaint did not state a claim under the FLSA. However, the court determined that Butterfield’s allegations were enough to support a plausible claim for overtime pay. It noted that she provided specific facts about reporting overtime hours and being denied payment based on a lack of funds. 

As a result, the court denied Marshall Health’s motion to dismiss the case, which allowed Butterfield’s claim and potential class action to proceed. The court directed the parties to move forward with discovery to gather more information and determine the details.

Key lessons from this case:

  • Employees can file for unpaid overtime claims up to 3 years prior if their employer is found to willfully violate overtime laws.
  • An employee needs to provide sufficient evidence in an overtime lawsuit to pursue a class action lawsuit.
  • Financial constraints do not absolve employers from their legal obligation to provide overtime pay.

Learn more about West Virginia Labor Laws through our detailed guide.

Important Cautionary Note

When making this article we have tried to make it accurate but we do not give any guarantee that the information provided is correct or up-to-date. We therefore strongly advise you seek advice from qualified professionals before acting on any information provided in this article. We do not accept any liability for any damages or risks incurred for use of this article.

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