Compliance Watch:

What are my rights as a salaried employee in West Virginia?

A salaried employee in West Virginia is any worker who receives a fixed predetermined amount of compensation for their work at the end of every pay period. Salaries remain constant regardless of the number of hours worked by an employee, the quality of their work, or the quantity of their output.

According to West Virginia labor laws, salaried employees should receive their pay at least twice in a month and pay periods should not be more than 19 days apart. The acceptable salary payment methods in the state include electronic transfers or deposits to an employee’s payroll card account, money orders redeemable for cash, or direct deposits into an employee’s bank account, credit union, or savings and loans institution. 

Salaried employment in West Virginia is classified into two categories. The first category comprises exempt employees who are not bound by the state’s minimum wage and overtime laws. The second category of salaried employees is subject to both laws and is entitled to overtime pay and compensation of at least the state’s minimum wage.

Salaried Employees in West Virginia are entitled to the following fundamental basic rights and protections:

• Minimum Wage: Non-exempt salaried employees in the state have the right to receive compensation of at least the state minimum wage of $8.75 per hour if their employer has at least 6 non-exempt employees working from a permanent work location or the federal minimum wage of $7.25 per hour if their employer does not meet these requirements. 
• Overtime Pay: Eligible salaried employees in West Virginia are entitled to overtime pay at a rate of 1.5 times their regular rate for all time worked in excess of 40 hours in a workweek.
• Workplace Safety: As per the West Virginia Occupational Safety and Health Administration program, employers in the state are required to provide a safe workplace that is free from all known hazards that can cause injuries, serious illnesses, and death. 
• Family and Medical Leave: The state upholds the federal Family and Medical Leave Act (FMLA), which entitles exempt employees in West Virginia to up to 12 weeks of job-protected unpaid leave for specified family or medical reasons. Salaried employees of state agencies are entitled to similar benefits under the West Virginia Parental Leave Act (PLA). 
• Non-Discrimination: Employees in the state enjoy the protection of the West Virginia Human Rights Act, which prohibits any form of workplace discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, blindness or disability. Pregnant employees are also protected from discrimination and are entitled to reasonable accommodations during pregnancy and after delivery. 
• Right to Organize: West Virginia is a right-to-work state. Therefore, employees in the state have the right to join or form labor unions and engage in collective bargaining. However, union membership is voluntary, and employers cannot require union membership or the termination of union membership as a condition for employment.

Yes, while some salaried employees are exempt from overtime, compensation by salary basis does not exclude an employee from earning overtime pay. Non-exempt salaried employees in West Virginia are entitled to overtime pay at a rate of 1.5 times their regular pay for all time worked in excess of 40 hours in a workweek. It’s important to note that the only hours that count towards the threshold for overtime are the hours an employee spends working. Therefore, any time taken off work, including sick leave, vacation leave, and holiday leave, is not considered in the overtime calculation. 

Some categories of employees in the state are not entitled to overtime pay as per the West Virginia overtime laws. These include:

• United States government employees
• Volunteers
• Traveling and outside salespeople
• Bona fide professional, executive, and administrative employees 
• Vocational apprentices 
• State firefighters
• Agricultural employees
• Student workers who work 24 hours or less in a workweek

Yes, employers in West Virginia are allowed to make the following payroll deductions and wage assignments:

• Payroll deductions that are authorized by courts of law, federal, or state laws.
• Deductions for employer-sponsored benefits plans.
• The cost of replacing employer-issued property that was not returned upon termination of employment. Please note that an employer can only make this deduction on an employee’s final wages.

Yes. Employees who work for six or more hours in a workday are entitled to a break of at least 20 minutes at a reasonably designated time. Employers can break down the 20 minutes into several shorter breaks that add up to 20 minutes. It’s important to note that employees are not entitled to a break if their employer provides meal breaks and allows their employees to take restroom breaks when necessary and have their meals while working. 

While all salaried employees in West Virginia are entitled to 20-minute breaks, entitlements to different types of leave are more selective. Private employers in the state are not required to offer vacation leave, sick leave, bereavement leave, or holiday leave. Further, if they choose to offer these types of leave, they are allowed to institute use-it-or-leave-it policies that prevent unused leave from rolling over to subsequent years. However, private employers are required to allow their employees to answer summons for jury duty, serve on juries, and take up to three hours of paid leave to vote. 

Unlike private employees, state employees are entitled to paid sick leave of up to 18 days a year, which accrues at a rate of 1.50 days for every month of work. In addition to sick leave, salaried state employees are entitled to up to 40 days of annual or vacation leave, depending on their length of service.

The West Virginia Department of Administration defines a flexible work arrangement as any variation from the standard 8-hour workday. The state does not enact any laws requiring private employers to offer flexible work arrangements, but it encourages them to consider allowing employees to work alternative schedules if doing so does not affect the efficiency and effectiveness of their operations.

State agencies are also encouraged to adopt flexible work arrangements, including flex time, telecommuting, compressed workweeks, and part-time work. Any employer who offers any flexible work arrangement is required to ensure that employees take at least 2.5 hours of paid lunchtime for every 40 hours of work.

In West Virginia, exempt status refers to exemption from the state’s minimum wage laws, including overtime requirements. The state exempts several categories of employees from overtime requirements, including four categories of exemptions that are designated as exempt by the Fair Labor Standards Act (FLSA). These categories are bona fide administrative, executive, and professional employees and outside salespeople.

Exempt status carries several implications for employees. These include:  

• Overtime Eligibility: Exempt employees in the state are not eligible for overtime pay regardless of the number of hours worked in a workweek. Therefore, they do not receive any additional compensation for working beyond 40 hours a week.
• Salary-Based Compensation: Exempt employees are entitled to a fixed salary that is not tied to the number of hours they work or the quality of their work. 
• Minimum Wage: Exempt employees are not bound by the state’s minimum wage laws. 
• Job Duties: Salaried employees must perform specific duties to qualify as exempt.
• Compliance: Salaried employees must meet the federal criteria for exemption to be classified as exempt. 

Exempt status has the following implications for employers:

• Salary Requirements: Employers must pay exempt employees a fixed salary that meets or exceeds the federal minimum salary threshold of $844 per week ($43,888 per year).  
• Administrative Burdens: Administrative employees are not entitled to overtime pay and earn a fixed salary, making payroll management and other administrative duties easier.  
• Job Duties: Exempt employees perform specific duties as per the FLSA. Employers must ensure that their job responsibilities align with the criteria they fall under to avoid the legal consequences of employee misclassification.

In West Virginia, an employee’s classification as exempt is based on the following tests, which are based on the federal criteria for exemption: 

• Salary Basis Test: According to the FLSA, exempt employees must be paid on a salary basis. 
• Salary Level Test: An exempt employee in West Virginia should earn a minimum of $844 per week (or $43,888 per year),
• Duties Test: Exempt employees in West Virginia must perform specific job duties that fall within any of the following exemption categories as listed by the FLSA:
  • Executive Exemption: An executive employee who passes the salary level and basis tests is considered exempt if they manage an enterprise or of one of its divisions, supervise two or more employees, and have the authority to influence significant personnel decisions such as hiring, firing, and promoting employees. 
  • Administrative Exemption: An administrative employee who meets the salary level and basis criteria is considered exempt if they exercise independent judgment and discretion on significant matters in their work and perform duties related to office or non-manual work that is directly related to the management and operations of their employer’s business.
  • Professional Exemption: Salaried professionals who meet the salary level criteria are considered exempt if they perform work that requires advanced knowledge in a field of science and knowledge and exercise discretion and independent judgment in their work. It’s important to note that teachers in the state are considered professionals. Further, licensed lawyers and medical professionals are only exempt if they are engaged in the field of work for which they are licensed. 
  • Outside Sales Exemption: Salaried employees whose salaries meet or exceed the salary threshold for exempt employees are considered exempt if their primary duties involve making sales or obtaining orders away from their employer’s place of business.

Non-exempt salaried employees in the state are entitled to a minimum compensation of $8.75 per hour if their employer has more than six non-exempt employees working at a permanent location and $7.25 per hour if their employer does not meet this criteria. The state’s minimum wage is expected to rise to $10 per hour on 31 December 2023. Comparatively, exempt employees are entitled to a minimum compensation of $844 per week or $43,888 per year.

Eligible salaried employees earn overtime pay at a rate of 1.5 times their regular rate for all time worked beyond 40 hours in a workweek. Eligible employees who perform different tasks with different rates of pay earn overtime pay at the rate that is typically applied to the type of work that was performed beyond 40 hours in a workweek.

West Virginia labor laws allow employers to make three types of wage deductions as follows:

• Wage Garnishments: Employers in the state are required to comply with court orders that require them to withhold part of an employee’s for garnishments such as child support and alimony.
• Deductions Authorized by Law: Wage deductions that are required by federal and state laws are permissible. West Virginia laws classify deductions for employer-sponsored benefit programs under this category of deductions.
• Wage Assignments: All deductions that require an employee’s authorization are categorized under wage assignments. Permissible wage assignments in West Virginia include the cost of replacing lost or damaged equipment, deductions for the repayment of personal loans, and the cost of physical examinations or drug tests required by an employer.

Employees in West Virginia are entitled to the following benefits and protections: 

• Workplace Safety: The state enacts laws that require employers to provide safe and healthy work environments for their employees. 
• Family and Medical Leave: Exempt employees in West Virginia are entitled to job-protected leave of up to 12 weeks under FMLA. 
• Workers’ Compensation: Employees who sustain work-related injuries and illnesses are entitled to medical benefits, temporary disability benefits, rehabilitation, and permanent disability benefits. 
• Protection from Discrimination: Employees in West Virginia are protected from any form of discrimination in the workplace on the basis of the protected characteristics that are recognized by the state.
• Wage Payment and Collection: Employees in West Virginia are protected from variations in the frequency of compensation by laws that require employers to pay their employees regularly and within no more than 19 days between paydays. 
• Protection for Minor Employees: Employees aged 17 and below are protected from engaging in hazardous work. Similarly, employees aged 14-15 are protected from working for more than 3 hours on days when school is in session and 8 hours a day when school is not in session.

All wage-related complaints in the state are addressed by the West Virginia Division of Labor. You can report wage payment and collection violations to the division by filling out the West Virginia Request for Assistance (RFA) form. If you believe that you’ve fallen victim to workplace discrimination, you can file a complaint with the West Virginia Human Rights Commission by filling out the employment pre-complaint background form.