Labor and Employment Law Overview: West Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Susan Tahernia
- Under state law, certain employers may administer lie detector tests. See Preemployment Screening and Testing.
- State law imposes certain requirements for hiring employees who work on public construction improvement projects. See Hiring for Public Improvement Construction Projects.
- West Virginia employers are prohibited from discriminating against employees on the basis of a variety of factors. See Unlawful Discrimination.
- Under certain circumstances, state law provides job protection to employees who smoke and allows employers to charge smokers higher insurance premiums than non-smokers. See Unlawful Discrimination.
- West Virginia prohibits wage discrimination. See Unlawful Discrimination.
- West Virginia employers do not have to pay the state's minimum wage rate to certain employees. See Employee Compensation.
- West Virginia employers are bound by a state requirement regarding the frequency of paydays. See Employee Compensation.
- State law imposes certain requirements for paying employees who work on public construction improvement projects. See Employee Compensation.
- Meal breaks must be provided to employees under certain circumstances. See Hours Worked: Meal and Rest Periods.
- Certain employees are entitled to unpaid family leave. See Leaves of Absence.
- Employers may be required to allow employees to take time off to serve on a jury and to vote. See Leaves of Absence.
- State law specifies when employees must be paid after they are discharged, quit or are laid off. See Termination of Employment.
Preemployment Screening and Testing
Lie Detector Tests
State law prohibits most employers from administering lie detector tests, and similar tests that use mechanical or electronic measures to evaluate truthfulness, as a condition of employment or continued employment. There are exceptions for the following classes of workers:
- Law enforcement personnel;
- Military personnel; and
- Those who manufacture, store, distribute or sell certain controlled substances.
Where an exception applies, the test results may only be used to determine whether the employer should employ, or continue to employ, the individual tested. The results may not lawfully be used for any other purpose. In addition, both the employer and the person who actually administers the test must hold a valid license, issued the Commissioner of Labor. +W. Va. Code § 21-5-5b; +W. Va. Code § 21-5-5c.
Medical Exam Fee
In West Virginia, it is unlawful for an employer to require an employee or applicant to pay the cost of a medical examination as a condition of employment.
Hiring for Public Improvement Construction Projects
The West Virginia Jobs Act, W. Va. Code § 21-1C-1 et. seq., provides that employers must hire at least 75 percent of employees for public improvement construction projects from the local labor market - with at least two employees from outside the local labor market permissible for each employer per project.
West Virginia Human Rights Commission
The West Virginia Human Rights Commission (Commission) is the primary civil rights agency in the state. In addition to its other responsibilities, the Commission is responsible for investigating discrimination claims arising under the West Virginia Human Rights Act. The Commission consists of nine commissioners appointed by the governor, with the advice and consent of the Senate. Each commissioner serves a three-year term. +W. Va. Code § 5-11-5.
The West Virginia Human Rights Act (WVHRA) recognizes protected classes substantially similar to those established under federal antidiscrimination laws. WVHRA prohibits employers from discriminating in employment on the basis of the following:
- National origin;
- Age (40 years or above);
- Blindness; or
Employer means the following:
- The state;
- Any political subdivision of the state; and
- Any person (except a private club) employing 12 or more persons within the state for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year.
West Virginia's equal pay law prohibits employers from discriminating in any manner between the sexes in the payment of wages, or paying wages to any employee at a rate less than that at which employees of the opposite sex are paid. The law, essentially, requires men and women receive equal pay for equal work.
Under the equal pay law, employees are performing equal work if the work:
- Is of comparable character; and
- Requires comparable skills.
Exceptions to that requirement include payments made as follows:
- Under a nondiscriminatory seniority or merit system; or
- A differential in wages between employees that is based in good faith on factors other than sex.
Lawful Use of Lawful Products
West Virginia law prohibits discrimination for use of tobacco products. Specifically, the law states that public and private employers, and their agents, may not take certain actions against an employee solely because the employee uses tobacco products as follows:
- Off the employer's premises; and
- During nonworking hours.
Prohibited actions include:
- Refusing to hire any individual;
- Discharging any employee; or
- Otherwise putting at a disadvantage or penalizing an employee in terms of compensation, terms, conditions or privileges of employment.
An employer may offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for type of coverage or price of coverage based upon the employee's use of tobacco products, as long as the following criteria are met:
- Any differential premium rates charged to employees reflect differential costs to the employer; and
- The employer provides employees with a statement delineating the differential rates used by its insurance carriers.
The law does not apply to nonprofit organizations that, as one of their primary purposes or objectives, discourage the use of tobacco products by the general public.
West Virginia's Whistle-blower Law prohibits public employers from taking adverse employment action against employees who report, or threaten to report, the employer's waste or misconduct to a governing authority. +W. Va. Code § 6C-1-1.
Leaves of Absence
Emergency Services Leave
Employers may not terminate or discipline the following employees for taking time off to provide emergency services:
- Volunteer firefighters; and
- Medical service attendants.
Employers may, however, request proof that the employee was providing emergency services during the leave period. At the employee's option, emergency services leave may be charged against regular wages or accumulated leave time. +W. Va. Code § 21-5-17.
The Parental Leave Act provides that all full-time state government employees and employees of boards of education, who have been on the job 12 consecutive weeks or longer, are entitled to 12 weeks of unpaid family leave during a 12-month period for the following reasons:
- Birth of a child;
- Placement of a child by adoption; or
- Caring for an immediate family member or dependent who has a serious health condition.
If an employee is eligible for leave under both the federal Family and Medical Leave Act and state law, the employee is entitled to the greatest benefit or most generous rights provided under the different parts of each law. W. Va. Code § 21-5D-1 et seq.
Employees in West Virginia may have a right of action if they are subject to discrimination by their employer for any of the following reasons:
- They received, or were served with, a summons for jury duty; or
- They were absent from work to respond to a summons for jury duty or to serve on any jury.
Time Off to Vote
Upon written demand made at least three days prior to an election day, employees must be provided with up to three paid hours to vote. However, time off for voting may be unpaid if employees have three or more hours of their own time away from their work or place of employment to vote while the polls are open on election day.
Child Labor Laws
State child labor laws restrict the type of work minors can perform and limit their hours of work.
Pay Rate Notifications
At the time of hiring, West Virginia employers must notify their employees of the following:
- Their pay rate; and
- The day, hour and place of payment.
Subsequent notice of any changes must be provided. +W. Va. Code § 21-5-9.
Pay Rate Reductions
An employer may reduce an employee's hourly pay rate, but only after providing the employee with a full pay period's notice of the reduction.
Employers must pay their employees all wages due at least twice a month, but no more than 19 days apart. Wages due does not include authorized deductions or authorized wage assignments.
If an employee does not receive his or her wages on pay day, the employee can demand payment of the wages any time after that day at the location where the employee is typically paid. The employer can also mail the wages to the employee if the employee will receive them on time.
See also, Payroll > Payment of Wages: West Virginia.
West Virginia's minimum wage and maximum hours law applies to employers with six or more employees. Under the law, the state minimum wage is $8.75 per hour.
Every employer must pay hourly, nonexempt employees one-and-one-half times their regular pay rate for all hours worked in excess of 40 hours per week. + W. Va. Code § 21-5C-3. See Employee Compensation > Overtime: West Virginia.
Prevailing Wage Act
In West Virginia, a wage of at least the prevailing hourly rate of wages, as established each year by the West Virginia Division of Labor, may be paid to all workmen employed by, or on behalf of, any public authority engaged in the construction of a public improvement. See Employee Compensation > Minimum Wage: West Virginia.
Employers must furnish each employee with an itemized statement of deductions made from the wages each pay period.
West Virginia law prevents an employer from deducting more than 25 percent of an employee's earnings under a wage assignment, excluding the following:
- Amounts required by law to be withheld;
- Union dues;
- Club dues;
- Pension plans;
- Payroll savings plans;
- Credit unions;
- Charities; and
- Hospitalization and medical insurance.
Hours Worked: Meal and Rest Periods
All employers must provide at least a 20-minute meal break, at times reasonably designated by the employer, for employees who work a workday of six or more hours. This provision is required in all situations in which employees:
- Are not afforded necessary breaks; and/or
- Are not permitted to eat while working.
Minors are entitled to a 30-minute lunch after five hours of work.
Break periods and/or rest periods of short duration running from five - 20 minutes must be counted as hours worked.
Termination of Employment
Undere the West Virginia Wage Payment and Collection Act, employers are required to pay employees who voluntarily quit or resign, and employees who are involuntarily terminated, all wages earned before the termination of employment by the next regular payday. Payment may be made in the employer's usual manner, or by mail if the employee requests it. If an emplyee requests payment by mail, the payment will be considered to have been made on the postmark date of the mailed payment.
The same law applies to an employee who is suspended because of a labor dispute or is laid off.
Terminated employees who have accrued but unused vacation time (or other fringe benefits) that was provided by an employer-employee agreement and that is not payable by the next regular payday must be paid according to the terms of the agreement.
An employer that does not comply with the termination pay requirements is liable for two times the unpaid amount as liquidated damages, in addition to the amount that was not paid when due.
See also, Payroll > Payment of Wages: West Virginia.
Employers who provide employment references will be immune from civil liability so long as:
- The information provided was job-related;
- The reference was provided to the third-party, in writing;
- The current or former employee is provided with a copy of the reference; and
- The employer provided the reference information in good faith.
An employer will not be deemed to have acted in good faith if it:
- Knowingly provides false information;
- Deliberately provides misleading information;
- Provides the information without giving due consideration to whether the information is true or false;
- Violates a nondisclosure agreement by providing the information; or
- Provides the information with the intent to harm the current or former employee.
Health Care Continuation (COBRA)
Employers with 20 or more employees must comply with the federal Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA requires covered employers to provide continued health care coverage, under employers' group plans, to employees experiencing qualifying events that would otherwise result in a loss of coverage. Certain states, such as West Virginia, have mini-COBRA laws that apply to employers with less than 20 employees. West Virginia's mini-COBRA law allows eligible employees to elect continued coverage for up to nine months.
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