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 law prohibits an employer from discriminating and retaliating against employees in a variety of protected classes. Employers must also provide pregnancy accommodations and equal pay. See EEO, Diversity and Employee Relations.
  • West Virginia permits preemployment background checks and drug and alcohol testing. See Recruiting and Hiring.
  • In West Virginia, there are requirements relating to the minimum wage, overtime, meal breaks and child labor. See Wage and Hour.
  • West Virginia has laws that relate to employee pay and benefits, including wage notices, wage deductions, pay statements, pay frequency and health care continuation coverage. See Pay and Benefits.
  • Under West Virginia law, employees are entitled to certain leaves or time off, including jury duty leave, military leave, Civil Air Patrol leave, emergency responder leave, public officials leave and voting leave. See Time Off and Leaves of Absence.
  • West Virginia prohibits using a handheld device while driving and smoking in certain workplaces with appropriate signage. An employer may prohibit weapons in the workplace, but not in personal vehicles in company parking lots. See Health and Safety.
  • When employment ends, West Virginia employers must comply with applicable final pay and job reference requirements. See Organizational Exit.

Introduction to Employment Law in West Virginia

West Virginia has laws that provide greater protections to employees than federal law, including pregnancy accommodation rights, a higher minimum wage and health care continuation coverage obligations for smaller employers, but generally follows federal law with respect to topics such as computing overtime pay and occupational safety.

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:

Fair Employment Practices

The West Virginia Human Rights Act (WVHRA) prohibits discrimination against applicants and employees based on protected characteristics, such as:

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

The WVHRA also prohibits sexual harassment and 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 employers with 12 or more employees within the state.

Pregnancy Accommodation

West Virginia's Pregnant Workers' Fairness Act (PWFA) prohibits discrimination based on pregnancy, childbirth or related medical conditions. 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.

Equal Pay

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 system based on seniority, merit or quantity or quality of production, or if a differential is based on good-faith factors other than sex.

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:

Criminal Checks

West Virginia law permits inquiries into an applicant's prior convictions, except those that have been expunged or sealed, provided they are reasonably related to the job's qualifications. The employer 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.

Drug Testing

Under the West Virginia Safer Workplace Act, an employer may test prospective employees for drugs and alcohol as a condition of employment. The Act does not require testing, but an employer that chooses to test must follow the law.

An employer may designate the type of sample to be used for testing and may require a prospective employee to present reliable individual identification to the person collecting the sample. Sample collection and testing must be performed according to specified standards.

In addition, any drug or alcohol testing or retesting must be carried out according to the terms of a written policy that is available for review by prospective employees.

The employer must pay all costs for a required drug or alcohol test.

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 Does This Law Apply to My Organization in West Virginia?. Federal requirements can be found in Preemployment Screening and Testing: 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 generally applies to an employer with six or more employees in any one separate, distinct and permanent location 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 for up to 90 days.

Overtime

West Virginia law requires that employers with six or more employees in one location pay nonexempt employees one-and-one-half times their regular pay rate for all hours worked in excess of 40 hours per week.

Meal 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 may be unpaid.

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.

All minors are prohibited from working in hazardous 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 who work for more than five continuous hours are entitled to a meal break.

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, 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 Minimum Wage: Federal, Overtime: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key West Virginia requirements impacting pay and benefits are:

Payment of Wages

An employer must pay employees in cash, or by check or money order that can be deposited or cashed at a bank convenient to the place of employment. An employer may pay by direct deposit or electronic paycards if the employer and employee agree to it in writing.

Pay Notices

At the time of hire, West Virginia employers must notify 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.

Wage Deductions

Employers are permitted to make specified deductions from wages, such as those required by law (e.g., income and employment taxes), union dues and medical insurance premiums. The employer and employee may agree to other types of deductions.

Pay Statements

An employer must give employees an itemized statement of wage deductions made, including 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.

Time Off and Leaves of Absence

West Virginia has a few laws relating to required time off and leaves of absence for employees, which cover all employers. These laws include:

  • Jury duty leave;
  • Military leave;
  • Civil Air Patrol leave;
  • Emergency responder leave;
  • Public officials 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 time off and leave of absence practices in West Virginia can be found in the West Virginia Employee Handbook Table of Contents, Jury Duty: West Virginia, USERRA: West Virginia, Other Leaves: West Virginia and Does This Law Apply to My Organization in West Virginia? Federal requirements can be found in Jury Duty: Federal, USERRA: Federal and Other Leaves: Federal.

Health and Safety

Key West Virginia requirements impacting health and safety are:

Smoke-Free Workplace

In West Virginia, it is illegal to smoke in an area where an employer covered by the law (e.g., factories, mercantile establishments, mills or workshops) clearly and conspicuously posts a No Smoking sign.

Weapons in the Workplace

Under the Business Liability Protection Act, an employer may not prohibit employees, customers or invitees from storing a firearm in a privately owned vehicle in a company parking lot if they are allowed to be present in that area and the firearm is:

  • Lawfully possessed;
  • Out of view; and
  • Locked inside or locked to a motor vehicle in a parking lot.

However, an employer may prohibit individuals from carrying or concealing a firearm in certain areas of the employer's property or business, including buildings and sidewalks, and in company cars used in the course of employment.

Safe Driving Practices

West Virginia prohibits drivers from using handheld devices to talk, text, email, play games or view or transmit images or data.

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 health and safety practices can be found in the West Virginia Employee Handbook Table of Contents, HR and Workplace Safety: West Virginia, Employee Health: West Virginia, Workplace Security: West Virginia and Does This Law Apply to My Organization in West Virginia? Federal requirements can be found in HR and Workplace Safety (OSHA Compliance): Federal, Employee Health: Federal and Workplace Security: Federal.

Organizational Exit

Key West Virginia requirements impacting organizational exit are:

Final Pay

Under West Virginia's Wage Payment and Collection Act, all wages earned before the termination of employment must be paid by the next regular payday, either in the usual manner of payment or by mail if the employee requests it. The law applies to employees who voluntarily quit, who are involuntarily terminated, who are suspended because of a labor dispute or who are laid off.

Accrued, unused vacation time or other fringe benefits provided by an employer-employee agreement and that are not payable by the next regular payday must be paid according to the terms of the agreement.

In the absence of actual notice of probate proceedings, wages owed to a deceased employee of $800 or less may be paid without letters testamentary or before the administration of the estate.

References

West Virginia employers are immune from liability for their disclosure of information regarding an employee's or former employee's job performance, unless the information was:

  • Knowingly false;
  • Disclosed with reckless disregard for the truth;
  • Deliberately misleading;
  • Rendered with malicious purpose toward the employee; or
  • Disclosed in violation of a nondisclosure agreement or applicable law.

The reference must be in writing, and a copy must be provided to the 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, Performance Appraisals: West Virginia and Does This Law Apply to My Organization in West Virginia? Federal requirements can be found in Payment of Wages: Federal and Performance Appraisals: Federal.