Wage and Hour Blog
Dolley Law LLC

West Virginia

West Virginia Wage and Hour Law

Dolley Law’s lawyers are eager to assist you with your wage and hour matter. Wage and hour law is our specialty, and we have vast experience and knowledge regarding topics such as minimum wage and overtime under both federal and state laws. We have represented clients across the country in connection with these matters. Contact us if you are seeking legal representation in connection with a wage and hour issue.

West Virginia Overtime Law

In general, West Virginia has the same overtime requirements as the Fair Labor Standards Act (“FLSA”). See 29 U.S.C. § 207(a); W. Va. Code § 21-5C-3(a). Employers should pay employees a minimum of one-and-one-half times their regular rate for every hour worked more than 40 in a work week. 29 U.S.C. § 207(a)(1).

However, the overtime requirements of the FLSA do not apply to all employees. See 29 U.S.C. § 213(a)(1). The FLSA specifies categories of employees who may be exempt from its overtime pay and minimum wage requirements, such as employees who perform certain executive, professional, or administrative functions as their primary duty. Id. West Virginia state law generally includes the same exemptions. W. Va. Code § 21-5C-1(f).

West Virginia Minimum Wage Law

West Virginia has a higher minimum wage than the FLSA. See W. Va. Code § 21-5C-2; 29 U.S.C. § 206(a)(1)(C). The FLSA sets the federal minimum wage at $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). However, as of 2020, employers in West Virginia must pay their non-exempt employees at least $8.75 per hour pursuant to state law. W. Va. Code § 21-5C-2(a)(5). If the federal rate ever exceeds the state minimum wage rate, West Virginia employers must follow the federal rate. W. Va. Code § 21-5C-2(a)(6).

Special minimum wage rules exist for employees who regularly receive tips. Both West Virginia and federal law permit employers to pay employees an hourly rate less than the applicable minimum wage rate where the employee earns sufficient money through tips to maintain an average regular rate of pay above the minimum wage for each workweek. See 29 C.F.R. § 516.28 (2019); W. Va. C.S.R. § 42-8-12.1(a). West Virginia employers may pay tipped employees a hourly cash wage at a rate up to 70% less than the applicable state minimum wage rate, making the current tipped minimum wage in West Virginia $2.62 per hour. See W. Va. C.S.R. § 42-8-12.1(a). By contrast, the federal minimum hourly rate for tipped employees is $2.13 per hour. 29 C.F.R. § 516.28 (2019).

Employees who are less than 20 years of age and in their first 90 days of employment can receive less than the minimum wage rate, which is known as a training wage. 29 U.S.C. § 206(g)(1); W. Va. Code § 21-5C-2(b). Under the FLSA, these employees must receive at least $4.25 per hour, but in West Virginia employers must pay qualifying employees at least $6.40 per hour. Id.

Who is Covered under State Wage and Hour Laws?

Employers and employees should understand whether they are covered under state and/or federal law to know what wage and hour rules apply. The FLSA covers basically all employers except those who gross less than $500,000 in annual revenue and otherwise do not engage in any interstate commerce. See 29 U.S.C. § 203(s).

West Virginia has its own distinct limits on coverage in relation to its state minimum wage and overtime laws. See W. Va. Code § 21-5C-1(e). For West Virginia’s minimum wage and overtime laws to apply to an employer, the employer must employ at least six non-exempt employees at the same separate, distinct, and permanent location. Id.

Since 2015, West Virginia’s overtime law does not apply to an employer if 80% of its employees “are subject to any federal act relating to maximum hours and overtime compensation,” which would include the FLSA—that is, a statute with broad applicability. Id. By defining “employer” so narrowly for purposes of overtime coverage, West Virginia law limits the number of employers and employees who fall under the purview of its state overtime rules.

Potential Wage and Hour Violations

Like violation(s) of the FLSA, violation(s) of West Virginia wage and hour laws can subject an employer to potential liabilities in the form of unpaid wages, civil penalties, and attorney’s fees. 29 U.S.C. §216(b); W. Va. Code §§ 21-5C-8(a), (c).

For FLSA violations, employers typically owe employees unpaid wages, liquidated damages equal to the amount of unpaid wages, and reasonable attorney’s fees. 29 U.S.C. § 216(b). Employers may have a defense to liquidated damages if the actions the employer took when enacting the pay practices at issue were sufficient to demonstrate “good faith and that he had reasonable grounds for believing that his act or omission was not a violation”. 29 U.S.C. § 260; Mayhew v. Wells, 125 F.3d 216, 220 (4th Cir.1997).

These types of liabilities differ slightly under West Virginia’s wage and hour law. See W. Va. Code §§ 21-5C-8(a), (c). West Virginia employers who violate the state minimum wage and overtime laws must pay employees for unpaid wages and attorney’s fees. Id. Unlike the FLSA, the statute does not generally mandate that the employer pay liquidated damages. Id.

Both the FLSA and West Virginia wage and hour law limit the time available for employees to bring an action to two years. 29 U.S.C. § 255(a); W. Va. Code § 21-5C-8(d). However, unlike West Virginia’s laws, the FLSA allows for the statute of limitations to be extended to three years, if the employer willfully violated the statute. See 29 U.S.C. § 255(a); Ting You v. Grand China Buffet & Grill, Inc., No. 1:17CV42, 2019 WL 1245794, at *3 (N.D.W.V. Mar. 18, 2019).

Contact Our Wage and Hour Law Firm

Our Firm represents clients in wage and hour cases in federal and state courts throughout the United States. Our legal expertise can help you to properly comply with state and federal laws and avoid liabilities. We can help answer questions regarding compliance with state and federal minimum wage and overtime requirements. If you are an employee or employer in or around Charleston or Huntington (or Kanawha, Berkeley, or Monongalia counties) and wish to discuss a wage and hour issue contact our attorneys directly at 314-645-4100 or by email at kevin@dolleylaw.com.