I think I have been paid less than the minimum wage. How do I know and can I do anything about that?
Most employers are required to pay a “minimum wage.” In West Virginia the minimum wage went to $8.75/hour on January 1, 2016.
The same law also requires that hourly wage employees must be paid overtime pay rate for all hours over 40 worked in any one week. The overtime rate is one and one-half times their normal hourly wage rate.
An employer who violates either one of these requirements is liable to the employee for the unpaid wages.
A lawsuit to recover the unpaid wages can be filed by either the employee or the commissioner of labor. If you do have to file suit, there are three possible categories of money that you may win:
- The Unpaid Wages. Usually you cannot get more than two years of unpaid wages. But there are some circumstances where you can get up to three years of wages.
- “Liquidated Damages.” Finally, a court can also award an extra penalty against the employer for violating the law. This penalty on top of paying the unpaid wages is called “liquidated damages.” The liquidated damages can be up to but not more than the total amount of unpaid wages.
- Attorney Fees. Finally, on top of both the unpaid wages and the possible liquidated damages, the court can award attorney fees. You won’t have to pay a percentage of your unpaid wages to the lawyer; if you win, the employer may be required to pay your lawyer on top of paying you.
What does the Wage & Hour Division of the West Virginia Division of Labor do?
The West Virginia Division of Labor has a “Wage & Hour Section.” This office investigates employee complaints of unpaid and late-paid wages and benefits. The Wage & Hour Section does not charge for its investigative and legal services.
The Wage & Hour Section enforces many aspects of West Virginia labor laws. The most frequent problem they handle involves claims under the Wage Payment & Collection Act (WPCA).
The Wage Payment & Collection Act (WPCA) requires the following:
- the payment of wages for all hours actually worked;
- the timely payment of final wages;
- the frequency of paydays, and;
- the payment of any fringe benefits that are given the same priority under the law as wages.
After getting a complaint that a violation has occurred, the Wage & Hour Section will investigate. If it finds there is a solid basis for the claim, then the Wage & Hour Section will issue a final determination based on the facts of the case. When necessary, an administrative hearing may be held to determine what wages, if any, are owed. The entire investigative process is provided at no cost to the complaining employee.
Can anyone get help from Wage & Hour to collect unpaid wages?
No. The Division can only accept complaints from actual employees. Most amounts earned by “independent contractors” are not considered “wages.” Claims of non-payment to independent contractors must be addressed through magistrate OR circuit court.
In many situations, it’s hard to tell whether someone is an “employee” or an “independent contractor.” If you’re not sure, you should talk to a lawyer.
Can the Wage & Hour Section help me with unfair job termination?
No. The Wage & Hour Section does not help with firings or “wrongful discharge” or other terminations. If wages are not paid properly after a firing, the Wage & Hour Section can help with the wages issue. But they cannot help you with a claim that you should not have been fired.
My employer told me they could fire me for any reason they want because my employment is “at-will.” What is “at-will” employment?
West Virginia does follow the at-will doctrine for hiring and firing. This means that employers have the right to hire and fire “at will,” without having to give any reason at all.
There are exceptions to the At-Will Employment doctrine.
- If you have a contract that defines permitted reasons for firing, or describes the procedure for firing, the company has to follow the contract. The company gave up its “At Will” rights when it signed the contract.
- Your employer can never violate the laws protecting against illegal discrimination on the basis of race, gender, age, national origin, religion, or disability.
- Finally, employers cannot fire people for reasons that are against “public policy.” For example, you can’t be fired for reporting illegal acts that your employer is committing.
If you feel you’ve been discriminated against, you should contact an attorney for assistance OR the West Virginia Human Rights Commission.
Can the Wage & Hour Section help me with a hostile work place?
No. The Wage & Hour Section can only provide assistance concerning unpaid wages or benefits.
Again, however, the Human Rights Commission may be able to assist you. If the Hostile Work Environment is a form of illegal discrimination is based on race, gender, age, national origin, religion, or disability, you may want to talk to a lawyer or to the Human Rights Commission.
Does the Wage Payment & Collection Act cover employee seniority rights?
No. Seniority rights may be addressed by private contract and/or employment agreement (or by state law with respect to state employees). But seniority rights are not addressed by state wage & hour law. This means that layoffs or promotions are at the discretion of the employer and not under the jurisdiction of the Wage & Hour Division.
Does the Wage Payment & Collection Act require that I receive an automatic cost of living increase each year after receiving a favorable evaluation?
No. As long as you’re receiving the current minimum wage, Wage & Hour cannot force your employer to give you a raise.
If you had a contract with the company to get a raise, and the company failed to give you the raise, Wage & Hour may be able to help. But that’s only if the raise is stated in your contract of employment.
Can my employer reduce my hourly rate of pay?
Yes, but only after providing you with a full pay period’s notice of the reduction. If your wages are reduced without such notification, you can file a complaint with Wage & Hour. However, your complaint will be limited to the difference in your hourly rate for the first pay period in which the change occurred.
If my employer sends me home after arriving to work or changes my schedule without prior notice, am I entitled to receive show-up or call-out pay?
No. Wage & Hour can only require employers to pay their employees for actual hours worked. Many employers do have written policies that may require payment under such circumstances. You may want to talk to a lawyer to find out whether the company’s policies amount to a legal binding contract in the law.
Can I be fired for not reporting to work when the governor has issued a state of emergency?
State law does not prohibit such firings. As previously stated, employers in the state of West Virginia may hire and fire “at will” without notice or cause.
If my employer closes his business due to weather or other unforeseen circumstances and does not allow me to work, am I entitled to payment for the hours that I wasn't allowed to work?
No. Wage & Hour can only require employers to pay their employees for actual hours worked; again, however, many employers have written policies that may require payment under such circumstances.
Wage & Hour Section - Timely Payment of Wages
How often should I receive a paycheck?
Employers must pay their employees all wages due at least once every two (2) weeks. The only exception is if the employer has a special written agreement with the Commissioner of Labor allowing the company to pay less frequently.
How do I know if my employer has been given a special agreement?
Call the Division of Labor at 304-558-7890 and ask for extension 124 to ask for that information.
What if the company does not have an agreement with the commissioner and I still don't get paid every two weeks?
You can file a formal complaint with the Wage & Hour Section. Fill out and return a paper Request for Assistance form. You can also file a Request for Assistance online.
You can also contact a private attorney who may agree to take the case on a contingent fee basis. This means you will be required to pay the attorney only if you win your case.
Who decides when payday will be?
As mentioned previously, state law requires employers to pay wages at least once every two weeks (unless the company has a written exception from the State). Other than that, employers have the right to set for themselves:
- the time and place for the payment of wages
- when the “work week” begins and ends
- when the “pay period” begins and ends.
Your employer must provide notice of this information to all employees. You should get this notification when are hired. The company also should have a poster in a common work area that includes this information.
What if my paycheck is late?
Employers are required to meet payroll at least once in every two weeks and pay their employees all wages earned for up to five (5) days previous to pay day.
Suppose your employer fails to pay you on the time and date they have designated as payday. You may be eligible to file a complaint in magistrate court for liquidated damages if your wages were more than five (5) days late.
If your wages were paid late but within the five (5) day requirement, no violation would exist. However, if your employer is consistently late in paying wages, you may want to file a formal complaint with Wage & Hour or consult with a private attorney.
When should I receive my “final wages,” after my job ends?
If your job ends, your wages must be paid on or before the next regular payday. It doesn’t matter whether you quit or you were fired.
What if the deadline has passed but still I haven't been paid my final wages?
Once the time period for the payment of final wages has passed, the law gives no excuses to an employer. The Wage & Hour Division can take your complaint and begin an investigation. But this may not get you the wages you are owed for quite some time.
Another option is to contact a private attorney to protect your right to receive those wages. The Wage Payment and Collection Act requires an employer who has violated the Act to pay the attorney fees if you have to go to court to recover your wages. Often, private attorneys will handle these cases more quickly than Wage & Hour can do.
What if my employer paid me but not within the time frame stated in the schedule?
Even if you were eventually paid, you may still be able to get a penalty from the employer for paying late.
The West Virginia Wage Payment & Collection Act provides “liquidated damages.” This is a penalty which can be as much as three times the amount of wages that were paid late.
Suppose your employer is late in paying you a final paycheck of $200. The Wage Payment Collection Act allows you to collect three times that amount (or, $600) as a penalty against the employer for paying you too late.
Here again, you may want to talk to an attorney about how to get liquidated damages for late payment of final wages.
Is unused vacation to be included with final wages?
This is a difficult question. Some vacation pay and other fringe benefits may be considered “wages” under the WPCA. Some vacation pay and other fringe benefits may not be considered “wages” under the WPCA. It depends on whether the vacation or benefits are “vested” under your agreement with the company.
“Vested” means that the vacation or fringe benefit cannot be taken away from you and must be paid out when you are discharged or quit. “Unvested benefits” are not protected.
The law allows the employer to define what benefits are considered “vested.”
In order to determine if any of your unused benefits (such as vacation pay) should be paid out as part of your final wages, you should review the provisions of your company’s written policy relating to that benefit. You may need a review of the policy by Wage & Hour or a private attorney to determine whether the benefits are vested or unvested.
Is an employer allowed to withhold wages because the employee failed to turn in a uniform or key?
No. State law does not allow employers to withhold an employee’s wages, for any reason.
Unreturned property or equipment or damaged property must be addressed through magistrate or circuit court.
In addition, an employer is not allowed to discount or reduce the actual number of hours you have worked, even if the employer believes you were not really working.
Wage & Hour Section - Fringe Benefits
Is an employer required to provide vacation and sick leave benefits to his employees?
No, the law does not require employers to provide paid fringe benefits such as holiday pay; vacation pay; sick leave or any other type of paid leave to their employees.
However, if the employer does choose to provide such benefits, the company is responsible for establishing a written policy outlining how those benefits are earned and paid.
Does an employer have the option of changing its fringe benefit policy?
Yes. There is no requirement for an employer to provide benefits in the first place. So the employer can stop them entirely, or reduce them, or change them, at any time. The only requirement is that the company must provide written notice to the affected employees at least one pay period in advance of the change.
What if I have unused benefits coming to me when the fringe benefit policy is changed?
The answer depends on whether the benefits have been “vested” or not. “Vested” means that the vacation or fringe benefit cannot be taken away from you and must be paid out. “Unvested benefits” are not protected.
The employer can change its policy at any time to reduce or stop paying particular benefits in the future. As long as the company gives proper advance notice, then the policy can change and all further benefits cut off.
The company cannot take back any benefits that have already been earned or “vested” under the previous policy. But be careful about which benefits are considered “vested” so they are protected, and which are not vested and can be taken away.
For example, an employer has the option to quit giving vacation benefits. However, the company must allow the employees to use the vacation hours they’ve already earned.
Can an employer pay out unused benefits to some employees when they leave the company and not to others?
Yes, but only if the reasons for differing treatment are written into company policies or contracts.
Employers can put specific wording into their benefit policy to exclude the payment of unused benefits under certain conditions. For example, the employer can write a policy saying that benefits are not payable when someone is fired “for cause,” or not payable when someone quits.
Otherwise, employers may not pick and choose which employees will receive benefits.
Wage & Hour Section Employee - Break Requirements
Does State law require employers to provide employees with any type of a lunch or rest break?
A rest break is required for some employees. Here are the conditions:
- You must work at least a six (6) hour shift; AND
- you are not already being given a rest or meal break, THEN
- You get at least one twenty (20) minute unpaid break period.
However, this requirement does not apply if:
- the employees are allowed to eat and visit the restroom while working; OR
- the employees are already being provided a lunch or meal break (no matter how long or short it is).
What if I'm provided a twenty minute lunch period but I have to take phone calls or perform other work duties during that time? Is the break still unpaid?
Uninterrupted break periods lasting twenty-minutes or longer may be unpaid. However, if those twenty minutes are interrupted by your work duties OR the break is cut short of the full twenty minutes, that time is considered to be work time and must be paid.
My employer wants to give me my break immediately when my shift starts. Are there any guidelines that require the twenty minute break to be given after a certain number of hours worked?
No. The break is to be given at times as established by the employer. What that means is that the employer is allowed to schedule your break at any time during your work shift.
If I work more than twelve straight hours, does that mean I'm entitled to two twenty minute breaks?
No. Coverage is determined by the minimum number of hours worked and not the total number of hours.
What do I do if my employer is not following these guidelines?