West Virginia

Labor Compliance Guide

Hours & Pay Regulations

Normal Working Hours

West Virginia minimum wage laws require employees to be paid for all hours worked. Hours worked is defined to include all time during which an employee is necessarily required to be on the employer’s premises on duty or at a prescribed workplace. It also includes all time an employee spends in physical or mental exertion under the control or direction of his or her employer and any work not requested but allowed or permitted to be performed. Hours worked does not include time spent changing clothes or washing at the beginning or end of each workday, unless there is a contract, custom, or practice to the contrary or it is indispensable to the employees’ work; time spent in walking, riding, or traveling to and from the place an employee’s principal work activities will be performed; and time spent in activities prior to or after principal activities are performed.

 

West Virginia minimum wage laws define a workweek as a regularly recurring period of 168 hours which is the equivalent of seven consecutive 24-hour periods. The workweek does not need to coincide with the calendar week and may begin on any day of the calendar week and at any hour of the day.

Overtime

Employees covered by West Virginia’s overtime law must be paid 1.5 times their regular rates for hours worked in excess of 40 per week.

Breaks

State law requires all employers that have employees working within the State of West Virginia to provide their employees working at least six hours each day with a meal break period of at least twenty (20) minutes in duration unless such employees are allowed to eat while working and make necessary restroom visits throughout the workday. The twenty (20) minute break requirement is not intended as an additional requirement for any break or lunch periods already being provided by the employer. It is only required when employees are not being provided a break or lunch period of any kind and are not permitted to eat or have necessary restroom visits while working. Any meal break or rest period that lasts for twenty minutes or less must be paid.

Annual Leave

State law does not require employers to provide any type of employee fringe benefits such as holiday pay, PTO, vacation pay, etc. to their employees. However, when an employer chooses to provide such benefits that the employer is responsible for establishing a written policy outlining how those benefits are earned and paid.

Minimum Wage

As of January 1, 2018, the state’s hourly minimum wage is $8.75, and the state’s hourly minimum cash wage for tipped employees is $2.62, based on a maximum tip credit of $6.13. The amounts are unchanged from those in effect in 2016.

 

Employers may pay employees younger than 20, first hired on or after January 1, 2015, an hourly training wage of at least $6.40 for the first 90 days of employment.

Tips & Gratuities

On January 1, 2016, the tip credit of up to 70 percent against the required minimum wage rate for tipped workers is to increase to $6.13, resulting in a reduced wage rate for tipped employees of at least $2.62 an hour. The tip credit amount hasn’t increased since last effective change on January 1, 2016. To qualify for the tip credit, employers must ensure that the employees’ tips and the reduced hourly wage rate equal at least the required minimum wage rate and must keep accurate records of employees’ tips.

Meal Breaks

State law requires all employers that have employees working within the State of West Virginia to provide their employees working at least six hours each day with a meal break period of at least twenty (20) minutes in duration unless such employees are allowed to eat while working and make necessary restroom visits throughout the workday. The twenty (20) minute break requirement is not intended as an additional requirement for any break or lunch periods already being provided by the employer. It is only required when employees are not being provided a break or lunch period of any kind and are not permitted to eat or have necessary restroom visits while working. Any meal break or rest period that lasts for twenty minutes or less must be paid.

 

Whenever an employer authorizes one or more employee break times, or meal times, of twenty (20) consecutive minutes or less during a workday, the employer shall treat the break time or meal time as compensable time. Whenever an employer authorizes one or more employee break times or meal times that typically last for thirty consecutive minutes or longer during a workday, the employer may treat the break or meal period as non-work time. “Break time” or “break period”, when authorized by an employer, means a rest period of short duration lasting up to twenty minutes that must be counted as hours worked. Federal guidelines consider rest periods of short duration, usually twenty minutes or less, to be counted as hours worked. Bona fide meal periods, which typically last thirty minutes or more, generally need not be considered as work time.

Special Leave

Parental Leave

An employee shall be entitled to a total of twelve weeks of unpaid family leave, following the exhaustion of all his or her annual and personal leave, during any twelve-month period:

      • Because of the birth of a son or daughter of the employee; or
      • Because of the placement of a son or daughter with the employee for adoption; or
      • In order to care for the employee’s son, daughter, spouse, parent or dependent who has a serious health condition.

In the case of a son, daughter, spouse, parent or dependent who has a serious health condition, such family leave may be taken intermittently when medically necessary. An employee may take family leaves on a part-time basis and on a part-time leave schedule, but the period during which the number of workweeks of leave may be taken may not exceed twelve consecutive months, and such leave shall be scheduled so as not to disrupt unduly the operations of the employer.

 

If a leave because of birth or adoption is foreseeable, the employee shall provide the employer with two weeks, written notice of such expected birth or adoption. If a leave under this section is foreseeable because of planned medical treatment or supervision, the employee:

        • Shall make a reasonable effort to schedule the treatment or supervision so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee’s son, daughter, parent or dependent; and
        • Shall provide the employer with two weeks, written notice of the treatment or supervision.
Unpaid Leave
Employees may be eligible to take unpaid, job-protected, leave under the Family Medical Leave Act (“FMLA”). Please refer to the main United States page for further details on this Federal law.
Voting Leave
Every person entitled to vote at any election who may be employed by any person, company, or corporation on the day on which such election shall be held in this state, shall, on written demand of such employee, made at least three days prior thereto, be given a period of not more than three hours, if necessary, between the opening and the closing of the polls on such day, for the purpose of enabling such person to repair to the place of voting to cast his vote and return, without liability to any penalty or deduction from his usual salary or wages on account of such absence, except that any employee, who has three or more hours of his own time away from his work or place of employment at any time between the hours of the opening and the closing of the polls on election day and who fails or neglects to vote or elects not to vote during such free time away from his work or employment, may be subject to wage or salary deductions for the time actually absent from his work or employment for voting in such election.
 
Pregnancy Disability Leave
It shall be unlawful to –
      • Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee, following delivery by the applicant or employee of written documentation from the applicant’s or employee’s health care provider that specifies the applicant’s or employee’s limitations and suggesting what accommodations would address those limitations, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
      • Deny employment opportunities to a job applicant or employee, if such denial is based on the refusal of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant; or
      • Require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept; or
      • Require an employee to take leave under any leave law or policy of the covered entity if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee.
Jury Duty Leave
Upon receiving a summons to report for jury duty an employee shall, the next day the employee is engaged in employment, exhibit the summons to the employee’s immediate superior and the employee shall thereupon be excused from employment for the day or days required in serving as a juror in any court created by the Constitutions of the United States or of the State of West Virginia or the laws of the United States or the State of West Virginia.
Leave of absence for public officials for performing public duties
Any persons elected to a part-time public office or appointed to a part-time elected public office shall be entitled to a leave of absence from his or her private employment except when such employment is with an employer employing five or fewer persons on a full-time basis on the days or portion of any day during which he or she is engaged in performing the duties of his or her public office. The leave of absence shall not result in any penalty being imposed upon the persons entitled to the leave of absence: Provided, That such leave of absence may be without pay by the private employer.
Volunteer Firefighter and Emergency Medical Services Leave
No employer may terminate, or use any disciplinary action against, an employee who is a member of a volunteer fire department or who is an emergency medical service attendant and who, in the line of emergency duty as a volunteer fireman or an emergency medical service attendant, responds to an emergency call prior to the time he or she is due to report for work and which emergency results in a loss of time from his or her employment. Any time lost from employment as provided in this section may be charged against the employee’s regular pay or against the employee’s accumulated leave, if any, at the option of the employee. At the request of an employer, any employee losing time as provided herein shall supply his or her employer with a statement from the chief of the volunteer fire department or the supervisor or other appropriate people in charge of the emergency medical service entity stating that the employee responded to an emergency call and the time thereof.
 
In essential government, health, hospital, transportation and communication services and in production, manufacturing, and processing works requiring continuity in operation, the employer may, upon receipt of such written demand for voting time off, arrange and schedule a calendar of time off for any and all of his employees for voting so as to avoid impairment or disruption of essential services and operations, but every such schedule or calendar of time off for voting so arranged shall provide ample and convenient time and opportunity for each employee of such services or works to cast his vote as herein provided.
Donor Leave
Full-time state employees are allowed up to 120 hours of paid leave for kidney and liver donation. The legislature encourages political subdivisions and private employers to grant full-time employees paid leave similar to the paid leave granted to full-time state
employees. (§29-6-27 & §29-6-28).

Last updated on: February 7th, 2019