Unemployment Insurance: West Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Eric E. Kinder, Spilman Thomas & Battle, PLLC
- Unemployment insurance is a nationwide program created to provide partial wage replacement to unemployed workers while they conduct an active search for work. Unemployment Insurance is a joint federal-state program based on federal law and executed through state law. See West Virginia Unemployment Compensation.
- Employers finance unemployment insurance with state and federal tax contributions. The Federal Unemployment Tax Act (FUTA) was created to finance all administrative expenses of the federal/state unemployment insurance system and the federal costs involved in providing benefits. The West Virginia unemployment contribution is used only for the payment of regular benefits to qualified unemployed workers. See West Virginia Unemployment Compensation.
- Most employers are subject to the West Virginia Unemployment Compensation Law, which is administered by WorkForce West Virginia. See West Virginia Unemployment Compensation.
- Claimants must meet certain requirements in order to be eligible for unemployment benefits. See Employee Eligibility Requirements.
- Unemployment benefits will generally last for up to 26 weeks. See Benefits.
- Employers must follow specified recordkeeping, reporting and posting requirements. See Recordkeeping Requirements; Reporting Requirements; Posting Requirement.
West Virginia Unemployment Compensation
Unemployment compensation is a legally required benefit, and most employers are subject to the West Virginia Unemployment Compensation Law. The law provides workers who lose their jobs - through no fault of their own - with unemployment insurance payments.
The law is administered by WorkForce West Virginia, which is composed of the:
- Division of Unemployment Compensation;
- Division of Employment Service;
- Division of Development; and
- Division of Research, Information, and Analysis.
Covered employers pay contributions to the unemployment compensation fund, which is maintained to distribute unemployment benefits to eligible individuals. +W. Va. Code § 21A-8-1.
Some services are excluded from the definition of employment, such as:
- Agricultural labor performed by alien agricultural workers;
- Service covered by Railroad Unemployment Insurance;
- Service in the employ of the individual's son, daughter or spouse;
- Service of a child under 18 in the employ of the child's father or mother;
- Service in the employ of an employing unit operated for primarily religious purposes;
- Service performed by agents of mutual fund broker-dealers, investment companies or insurance companies if those agents are compensated wholly on a commission basis;
- Service of an election official appointed to serve during any municipal, county or state election if the amount of remuneration is less than $1,000; and
- Maritime employment if the office of the vessel is outside the state.
If the service is not considered employment for half of the term of service, then none of the service in the term is considered employment. +W. Va. Code § 21A-1A-16.
Employee Eligibility Requirements
An unemployed individual is eligible to receive unemployment compensation only if the WorkForce West Virginia Commissioner finds that an individual:
- Has registered for work and continues to report to an unemployment office;
- Has made a claim for benefits;
- Is able to work and is available for full-time work;
- Has been fully or partially unemployed for at least one week prior to the week he or she claims benefits;
- Was paid an amount equal to or greater than $2,200 during his or her base period and earned wages in more than one quarter during the base period; and
- Participates in reemployment services.
The following individuals are generally ineligible for unemployment benefits:
- Seasonal employees (i.e., individuals working fewer than 100 days during their base period in an industry generally recognized as seasonal);
- Individuals who voluntarily leave employment without good cause involving fault on the part of the employer, until the individual returns to covered employment for at least 30 working days;
- Individuals who are terminated for misconduct, although these individuals are eligible for reduced unemployment compensation after six weeks have elapsed since the termination;
- Individuals who are terminated for gross misconduct (e.g., willful destruction of employer property; assault; reporting to work intoxicated or being intoxicated at work; reporting to work under the influence of a controlled substance without a valid prescription or being under the influence of a controlled substance without a valid prescription while at work; attempting to thwart a drug or alcohol test; refusing to submit to random drug or alcohol testing for employees in a safety-sensitive position; arson, theft, larceny, fraud or embezzlement connected to work; an act of misconduct where the individual has received prior written warning that termination may result from the act). These individuals are not eligible for unemployment benefits until they have worked at least 30 days in covered employment;
- Individuals who do not work due to a strike or other bona fide labor dispute, even if they are replaced by nonstriking employees, contractors or other personnel on a temporary basis;
- Individuals who voluntarily leave employment to marry or to perform any marital, parental or family duty or to attend to personal business or affairs, except those who quit to accompany a spouse serving in active military service who has been reassigned from one military assignment to another; and
- Aliens, unless they were lawfully admitted for permanent residence at the time the services were performed, were lawfully present for purposes of performing the services or were permanently residing in the US under color of law at the time the services were performed.
Note that a striking employee may be eligible for benefits if he or she is permanently replaced. The employee must show that the employer is the subject of a strike or other bona fide labor dispute and that his or her position has been occupied by another employee who has been notified that he or she is permanently replacing the employee who previously occupied the position.
In addition, an employee may not be denied unemployment benefits due to a lockout, which is not considered a strike or other bona fide labor dispute. To establish that a lockout has occurred, the employee must show that he or she physically presented himself or herself at work on the first day of the lockout or on the first day he or she was able to present himself or herself and that the employer denied the employee the opportunity to work.
An individual is ineligible for benefits for weeks in which he or she fails, without good cause, to apply for available, suitable work or to accept suitable work when offered.
Factors taken into consideration when determining whether work is suitable for an individual are:
- The degree of risk involved to the individual's health, safety and morals;
- The individual's physical fitness and prior training;
- The individual's experience and prior earnings;
- The length of unemployment;
- The prospects of securing local work in the individual's customary occupation; and
- The distance of the available work from the individual's residence.
Covered employers pay contributions that are used to pay unemployment benefits to eligible workers. Contribution rates may vary based on the employer's claims experience.
In West Virginia, unemployment benefits generally last a maximum of 26 weeks. In periods of high unemployment, benefits can be extended for a minimum of 13 consecutive weeks, with the period of time increasing with higher unemployment rates. The amount of extended benefits is the same as for normal benefits. +W. Va. Code § 21A-6A-3; +W. Va. Code § 21A-6A-4; +W. Va. Code § 21A-6A-5.
Once an individual files a claim for unemployment benefits, notice is promptly given to the employer. The employer has four calendar days to provide any information requested regarding the claim. During this time, either party may request an informal hearing during which they may present information relevant to the eligibility and disqualification of the claimant. +W. Va. Code § 21A-7-4.
Decisions of the deputy may be appealed to an administrative law judge (ALJ) within eight calendar days of notice of the deputy's ruling. Decisions of the ALJ may be appealed to the Board of Review. +W. Va. Code § 21A-7-8; +W. Va. Code § 21A-7-10.
Disputed claims relating to labor disputes must be heard by an appeal tribunal. +W. Va. Code § 21A-7-4. Decisions of the appeal tribunal may be appealed to the Board of Review within eight days of notice of the appeal tribunal's decision. +W. Va. Code § 21A-7-10.
Employers are required to keep true and accurate records containing information required by the WorkForce West Virginia Commissioner. These records are open to inspection and subject to copying at any reasonable time. +W. Va. Code § 21A-10-4(1). Employers must keep records for no less than five years. +W. Va. CSR § 83-1-5.
The WorkForce West Virginia Commissioner may make copies, summaries, and compilations of employer records for preservation. If the original records become unavailable, the copies, summaries, and compilations may be admitted in any unemployment compensation proceeding in which the original records would have been admissible. +W. Va. Code § 21A-10-4(2).
Employers, including labor organizations, are required to submit certified quarterly reports to WorkForce West Virginia on forms supplied by the WorkForce West Virginia Commissioner. The reports must include:
- The employer's name, assigned unemployment compensation number, and address at which payroll records are kept;
- Each employee's name, Social Security account number, gross wages and dates of employment; and
- The total gross wages paid within the reporting quarter, including money wages and the cash value of any other remuneration.
These reports are not subject to publication or open to public inspection, but the WorkForce West Virginia Commissioner may provide information to other government agencies as long as they remain confidential and do not reveal the employer's or employees' identities.
An employer must conspicuously post a notice to employees (Form WVUC-B-59).
West Virginia Safer Workplace Act
The West Virginia Safer Workplace Act, effective July 7, 2017, allows employers to test any current and prospective employees for drugs and alcohol as a condition of employment or continued employment. The Act does not require an employer to implement a testing program, but an employer that chooses to conduct drug or alcohol testing must follow the Act's requirements. +2017 Bill Text WV H.B. 2857.
Under the Act, an employee who is found to have drugs or alcohol in his or her system in violation of company policy may be terminated and ineligible for unemployment compensation benefits. However, an employer may not argue that an employee is ineligible for benefits unless it has notified all employees that:
- It is a condition of employment to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body; and
- An injured employee who refuses to submit to a drug or alcohol test forfeits eligibility for unemployment compensation benefits.
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