West Virginia to Count More Activities as Working Time

Author: Michael Cardman, XpertHR Legal Editor

UPDATE: On December 23, 2014, the West Virginia Division of Labor withdrew its proposed emergency regulations to "address concerns raised by West Virginia employers."

The agency said it will refile amended rules during the 2015 legislative session. These rules will go through the standard legislative rulemaking process, giving employers a chance to weigh in on them.

December 16, 2014

Employers will soon have to begin paying minimum wage employees in West Virginia for time they spend performing certain activities like undergoing security screenings or traveling to training sessions.

New regulations proposed recently by the West Virginia Division of Labor are expected to establish new definitions for what counts as working time under the state's minimum wage and overtime laws. These definitions differ from the federal Fair Labor Standards Act (FLSA) in a wide range of areas, including pre- and post-shift activities, training time, and break periods.

The new regulations will take effect December 31, or earlier if the Secretary of State approves them before then.

"West Virginia's wage laws are extraordinarily precise and specific," said Rodney Bean, a member with the firm Steptoe & Johnson PLLC. "We've always had a 'gotcha game' against employers, and this only adds to that."

Significant changes include requirements that employees be paid the minimum wage for:

  • Activities before and after a shift that are required by the employer, in contrast with a recent US Supreme Court decision that ignores whether activities are required by an employer;
  • Time spent preparing for and/or traveling to a training session, meeting or lecture, in contrast with federal regulations, under which such time may be excluded under certain conditions; and
  • Any break periods of 29 consecutive minutes or less, in contrast with federal rules that treat rest periods of 20 minutes or more as waiting time, which may or may not be compensable.

The new regulations will primarily affect employees who are paid at, or close to, the minimum wage rate, according to Eric E. Kinder, a member of the law firm of Spilman Thomas & Battle, PLLC.

Because employers that have 80 percent or more of their employees subject to the FLSA are not subject to West Virginia's overtime law, such employers may disregard the regulations' definitions of working time when counting how many hours a nonexempt employee has worked for overtime purposes.

So for the vast majority of employers, the expanded definitions of working time will be relevant only for West Virginia's minimum wage requirement. This will likely be moot for employees who are paid well above the minimum wage. For example, consider an employee who is paid $400 a week for 40 hours of work at $10 per hour. If she is suddenly considered to be working an additional hour per week under the new definitions, the minimum wage requirement will still be satisfied because $400 divided by 41 hours is $9.76 per hour.