Labor and Employment Law Overview: West Virginia

Labor and Employment Law Overview requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • West Virginia employers are prohibited from discriminating against employees in a variety of protected classes. See EEO, Diversity and Employee Relations.
  • An employer must meet certain conditions in order to conduct preemployment background checks and medical exams. See Recruiting and Hiring.
  • In West Virginia, there are many requirements relating to the minimum wage, overtime, meal and rest breaks and child labor. See Wage and Hour.
  • West Virginia has a number of laws that relate to employee pay and benefits, including wage payments, wage deductions, pay frequency and health care continuation coverage. See Pay and Benefits.
  • West Virginia laws require that employees be given time off for voting, jury duty and emergency services. See Attendance and Leave.
  • West Virginia employers must abide by termination pay requirements and generally enjoy immunity for providing job references in good faith. See Organizational Exit.

Introduction to Employment Law in West Virginia

West Virginia is generally considered both an employee- friendly and employer-friendly state.

Select West Virginia employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key West Virginia requirements impacting EEO, diversity and employee relations are:

West Virginia Human Rights Act

The West Virginia Human Rights Act (WVHRA) prohibits discrimination or harassment against applicants or employees on account of:

  • Race;
  • Religion;
  • Color;
  • National origin;
  • Ancestry;
  • Sex;
  • Disability;
  • Blindness;
  • Pregnancy; and
  • Age (40 and above).

The WVHRA prohibits retaliation or any form of reprisal against a person because he or she has opposed a practice or act forbidden under the WVHRA or because he or she has filed a complaint, testified or assisted in any proceeding under the WVHRA.

The WVHRA applies to any employer with 12 or more employees within the state for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place, or in the preceding calendar year. Private clubs are exempt.

Remedies under the WVHRA include reinstatement, back pay, other legal or equitable relief, and costs of litigation including attorney and witness fees. Employees may also recover emotional distress damages and punitive damages.

Veterans Preference

Under the WVHRA, it is not a discriminatory or unfair employment practice to grant a preference in hiring to a veteran or a disabled veteran if the individual meets all of the knowledge, skill and eligibility requirements for the job.

Pregnant Workers' Fairness Act

West Virginia's Pregnant Workers' Fairness Act (PWFA) prohibits discrimination or harassment against women affected by pregnancy, childbirth or related medical conditions, i.e., physical or mental symptoms or limitations relating to or caused by pregnancy.

The PWFA also requires employers to provide pregnant workers with reasonable accommodations, which may include modifying work schedules and allowing access to facilities that are more convenient and usable.

The PWFA applies to employers with 12 or more employees, with some exceptions.

Equal Pay for Equal Work Act

West Virginia's Equal Pay for Equal Work Act requires employers to pay the same wage rate to both male and female employees for work of comparable character that requires comparable skills.

The equal pay requirement does not apply if payment of wages is made under a seniority or merit system or if a differential is based on good-faith factors other than sex.

Covered employers may not retaliate against an employee for complaining about sex discrimination or for instituting or testifying in a related legal proceeding.

Smokers' Rights

West Virginia law prohibits an employer from taking adverse actions against an employee solely because the employee uses tobacco products off of the employer's premises during nonworking hours.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on EEO, diversity and employee relations practices in West Virginia can be found in the West Virginia Employee Handbook Table of Contents, Disabilities (ADA): West Virginia, EEO - Discrimination: West Virginia, EEO - Harassment: West Virginia, EEO - Retaliation: West Virginia, West Virginia Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in West Virginia? Federal requirements can be found in Disabilities (ADA): Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal and EEO - Retaliation: Federal.

Recruiting and Hiring

Key West Virginia requirements impacting recruiting and hiring are:

Background Checks

West Virginia law permits inquiries into an applicant's prior convictions, except those expunged or sealed, provided they are reasonably related to the job's qualifications. Employers must first obtain the applicant's consent in order to get the records through a third-party background check.

Preemployment inquiries into arrest records are prohibited.

Medical Exams

An employer may require a medical examination of an applicant but may not require the applicant to pay for the cost.

AIDS Tests

Testing for AIDS is permissible in narrow circumstances with the job applicant's informed consent. Testing can be required for persons with convictions of prostitution, sexual abuse, sexual assault, incest or molestation. Test results are confidential.

Lie Detector Tests

West Virginia law prohibits private employers from requiring or requesting applicants from taking lie detector tests, except for employees who manufacture, store, distribute or sell certain controlled substances.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in West Virginia can be found in Preemployment Screening and Testing: West Virginia and Employee Privacy: West Virginia. Federal requirements can be found in Preemployment Screening and Testing: Federal and Employee Privacy: Federal.

Wage and Hour

Key West Virginia requirements impacting wages and hours are:

Minimum Wage

West Virginia's Minimum Wage and Maximum Hours Standards Law requires that nonexempt employees be paid a minimum wage of $8.75 per hour. The law applies to an employer with six or more employees during any calendar week.

The law allows employers to claim a credit toward their minimum wage obligations for tips, lodging or board.

An employer may pay an employee under 20 years of age a training wage as low as $6.40 per hour for up to 90 days.

Overtime

The law requires that nonexempt employees be paid one-and-one-half times their regular pay rate for all hours worked in excess of 40 hours per week.

Meal and Rest Breaks

Employees who are not "afforded necessary breaks and/or permitted to eat lunch while working" must be provided meal breaks of at least 20 minutes when they work for six or more hours in a workday. A meal break of 20 minutes or less must be paid, while a meal break of 30 minutes or more need not be counted as compensable work time.

Similarly, rest breaks of short duration running from five to 20 minutes must be counted as hours worked, while rest breaks of 30 minutes or more need not be. However, an employer is not required to provide rest breaks.

Child Labor

Child labor laws in West Virginia restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

Minors under the age of 18 are prohibited from specified dangerous occupations, including, but not limited to, coal mining, excavation, logging, saw milling, smelting and work involving operation of power-driven heavy machinery. In addition, they may not work in a bar or sell, dispense or serve alcoholic beverages.

Minors under the age of 14 may not be employed in any occupation except:

  • Agriculture and horticulture activities permitted under federal law;
  • Domestic services within the employer's residence;
  • Work for parents or legal guardians in their solely owned business;
  • Acting or performing in motion pictures, theater, radio or television; and
  • Newspaper delivery.

Minors ages 14 and 15 may not work:

  • During school hours (except in federally approved work programs);
  • Before 7:00 a.m. or after 7:00 p.m. (after 9:00 p.m. from June 1 to Labor Day);
  • More than three hours per day on school days;
  • More than eight hours per day on nonschool days;
  • More than 18 hours per week during school weeks; and
  • More than 40 hours per week during nonschool weeks.

Minors are entitled to a 30-minute lunch period after five hours of work.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in West Virginia can be found in the West Virginia Employee Handbook Table of Contents, Minimum Wage: West Virginia, Overtime: West Virginia, Hours Worked: West Virginia, Child Labor: West Virginia and West Virginia Workplace Labor and Employment Law Posters. Federal requirements can be found in Minimum Wage: Federal, Overtime: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key West Virginia requirements impacting pay and benefits are:

Pay Rate Notification

At the time of hiring, West Virginia employers must notify their employees of their pay rate, overtime rate, fringe benefits and the day, hour and place of payment.

Pay Frequency

Employers must pay their employees all wages due at least twice a month and no more than 19 days apart. Wages due exclude authorized deductions or wage assignments.

Wage Deductions

Employers are permitted to make only the following deductions from wages:

  • Amounts required by law to be withheld (e.g., income and employment taxes);
  • Union dues;
  • Club dues;
  • Pension plan payments;
  • Payroll savings plan payments;
  • Credit union loans;
  • Charitable contributions;
  • Hospitalization and medical insurance premiums; and
  • Deductions agreed to by the employee.

Pay Statements

Employers must give employees an itemized statement of wage deductions made and the authority under which the employer made them for each pay period in which deductions are made.

Health Care Continuation

West Virginia's health care continuation coverage law requires employers with fewer than 20 employees to provide continued group health care coverage for up to 18 months to employees who are involuntarily laid off or terminated from work (except for misconduct that would disqualify the individual from collecting unemployment benefits).

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefits practices in West Virginia can be found in New Hire Paperwork: West Virginia, Payment of Wages: West Virginia, Involuntary and Voluntary Pay Deductions: West Virginia, Health Care Continuation (COBRA): West Virginia, West Virginia Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in West Virginia? Federal requirements can be found in New Hire Paperwork: Federal, Payment of Wages: Federal, Involuntary and Voluntary Pay Deductions: Federal and Health Care Continuation (COBRA): Federal.

Attendance and Leave

West Virginia has fewer laws relating to required leaves for employees than many other states, but does have mandated leave laws such as:

  • Jury duty leave;
  • Emergency services leave; and
  • Voting leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in West Virginia can be found in the West Virginia Employee Handbook Table of Contents, Jury Duty: West Virginia and Other Leaves: West Virginia. Federal requirements can be found in Jury Duty: Federal and Other Leaves: Federal.

Organizational Exit

Key West Virginia requirements impacting organizational exit are:

Termination Pay

Under West Virginia's Wage Payment and Collection Act, employers are required to pay all wages earned to employees who:

  • Voluntarily quit or resign;
  • Are involuntarily terminated; or
  • Are suspended because of a labor dispute.

Payment must be made by the next regular payday in the employer's usual manner. If an employee requests payment by mail, the payment will be considered to have been made on the postmark date of the mailed payment.

Terminated employees must be paid accrued but unused vacation time (or other fringe benefits) that was provided under an employer-employee 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.

References

Employers that provide employment references will be immune from civil liability as 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;
  • Discloses the information with reckless disregard for the truth;
  • Violates a nondisclosure agreement by providing the information; or
  • Provides the information with malicious purpose the current or former employee.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on organizational exit practices in West Virginia can be found in Payment of Wages: West Virginia and Performance Appraisals: West Virginia. Federal requirements can be found in Payment of Wages: Federal and Performance Appraisals: Federal.