The West Virginia Employment Law Guide

The state laws every business owner should know

Businesses must post all applicable state and federal labor law posters in the workplace.

West Virginia labor law posters to download

Federal labor law posters to download

Wages and Breaks

Minimum wage
$8.75

The current minimum wage in West Virginia is $8.75.

Tipped Min Wage
$2.62

The minimum wage rate for tipped employees is $2.62.

Overtime
1.5X

State law requires employers to pay non-exempt employees an overtime rate of 1 ½  their regular rate for all hours worked in a workweek in excess of 40.

The federal overtime rule stipulates that the minimum salary requirement for administrative, professional, and executive exemptions is $684 per week, or $35,568 per year.

Breaks
20 min per 6 hrs

In workplaces where employees cannot take necessary breaks and/or permitted to eat on the job, employers must provide a meal break of at least 20 minutes to employees who work 6 hours or more.

Minor Breaks
30 min per 5 hrs

All minors must be provided a meal break of at least 30 minutes if they are scheduled to work more than 5 hours.

Final Paychecks

Employees who separate from employment for any reason (including terminations, resignations and layoffs) must be paid all final wages by the next regularly scheduled payday.

Child Labor

Minors 14 and 15 years of age

Minors 14 and 15 years of age are subject to the following restrictions:

When school is in session: They may work a maximum of 3 hours a day on school days, a maximum of 8 hours a day on non-school days, a maximum of 18 hours a week during school weeks. They may work between the hours of 7 a.m. and 7 p.m. They may not work during school hours.

When school is not in session: They may work a maximum of 8 hours a day, no more than 40 hours a week. They may work between the hours of 7 a.m. and 9 p.m. from June 1 to Labor Day

Minors 16 and 17 years of age

Minors 16 and 17 years of age are permitted to work the same hours as adult employees.

Breaks

All minors must be provided a meal break of at least 30 minutes if they are scheduled to work more than 5 hours.

Leave Requirements

Sick days

Employers are not required to provide paid or unpaid sick leave but must comply with their own established policies if they choose to implement one.

Family and medical leave

Employers may be required to provide an employee unpaid leave in accordance with the Family and Medical Leave Act or other federal laws.

Bereavement leave

Employers are not required to provide bereavement leave.

Vacation time

Employers are not required to provide paid or unpaid vacation leave but must comply with their own established policies if they choose to implement one.

Employers may establish a policy that denies payment for accrued vacation time upon separation from employment.

Employers may also cap the amount of vacation time that can be accrued, and can implement a “use-it-or-lose-it” policy that requires employees to use their leave by a certain date.

Holiday leave

Private employers are not required to provide paid or unpaid time off for holidays.

Jury Duty

Employers are not required to pay employees for time spent on jury duty, but must excuse them for the days required in serving as a juror if they have proof of the summons on the next day after the summons.

Voting time

Employers must provide up to 3 hours of paid leave to vote as long as the employee has requested the time off in writing 3 days before the day of the vote.

If the employee has enough time outside of their shifts to vote, they do not need to be provided with paid leave.

Witness Leave

Employers cannot discharge an employee who testifies in a legal proceeding.

Emergency Response Leave

Employers may not discharge or discipline their employees because they take leave to serve as a volunteer firefighter or an emergency medical service attendant in response to an emergency. Employees may but cannot be required to use available paid leave.

Military Leave

West Virginia does not have its own military leave law, but the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) is applicable to all employers in the United States.

Hiring, firing, and more

Discrimination

Federal law makes it illegal for an employer to discriminate on the basis of: Race, Color, Age, Sex, Sexual orientation, Gender, Gender identity, Religion, National origin, Pregnancy, Genetic information, including family medical history, Physical or mental disability, Child or spousal support withholding, Military or veteran status, Citizenship and/or immigration status.

West Virginia law also makes it illegal to discriminate based on the following: Use of tobacco products off the premises during non-working hours; Arrest records; AIDS/HIV; Wage garnishment for consumer debt.

The West Virginia Pregnant Workers’ Fairness Act requires employers to make reasonable accommodations for employees who have limitations in their ability to work documented by a health care provider that stem from pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship on the employer.

Click here to read our blog on what acceptable and unacceptable questions to ask during an interview.

Termination

West Virginia is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason at any time, provided that the reason is not discriminatory and that the employer is not retaliating against the employee for a rightful action.

Record Keeping

Regarding employment and payroll data, under the Fair Labor Standards Act (FLSA) and others, you must:

For at least 3 years: keep payroll records, certificates, agreements, notices, collective bargaining agreements, employment contracts, and sales and purchase records. Also keep completed copies of each employee’s I-9 for three years after they are hired. If the employee works longer than three years, hold on to the form for at least one year after the employee leaves. 

For at least 2 years: Keep basic employment and earning records like timecards, wage-rate tables, shipping and billing records, and records of additions to or deductions from wages. Also keep the records that show why you may pay different wages to employees of different sexes, such as wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements.

For at least 1 year: The Equal Employment Opportunity Commission says employers should keep all employment records for at least one year from the employee’s date of termination. 

Other record-keeping laws that may apply to you: 

Under the Occupational Safety and Health Act, you need to keep records of job-related injuries and illnesses for five years. But some records, like those covering toxic substance exposure, have to be kept for 30 years.

You must keep files of benefit plans and seniority and merit systems while they are in effect and for at least a year after they end. You must also retain summary descriptions and annual reports of benefits plans for six years.

If your company is covered by the Family and Medical Leave Act, you must also retain relevant records of leaves, notices, policies, and more for three years.

Additional laws that may apply to you

Pay Practices

Employers must pay their employees at least semimonthly, except for railroad companies. An employer may request an exemption from the Labor Commissioner.

Whistleblower Protection

Employers may not discharge or discriminate against an employee for doing any of the following:

Filing a complaint regarding discrimination
Participating in a proceeding regarding discrimination
Opposing discrimination

Background checks

Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act, which are available here.

West Virginia requires that employers conduct background checks on the following types of employees or applicants: Employees who administer medications or perform health maintenance tasks for certain healthcare facilities; Nursing home employees who will have physical contact with a resident or access to their property, personally identifiable information, protected health information, or financial information; Assisted living facility administrators; Medical adult day care center directors; Residential care community administrators; Personnel, including volunteers over the age of 18, who work for a family childcare facility; Personnel, including volunteers, who work for an out-of-school-time childcare center, with limited exceptions; Personnel who work for a child-placing agency and who will work with children; Personnel, including volunteers, who work for a residential childcare facility; Personnel, including volunteers, who work for a treatment facility for children or transitioning adults; Final candidates for the president of certain colleges and universities.

Credit and Investigative Checks

West Virginia does not expressly allow or prohibit employers from obtaining credit reports on applicants or employees.

Arrest and Conviction Checks

West Virginia does not expressly allow or prohibit criminal history checks for employment purposes.

COBRA

COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” West Virginia has a limited mini-COBRA, which allows employees to continue their coverage for disability insurance for up to 18 months after they are laid off.

Employee Monitoring

Employers in West Virginia may not listen to or record their employees’ oral, electronic, or wire communications, unless they have consent from at least one party to the communication.

Social Media

Employers are prohibited from the following:

Requesting that an employee disclose a username or password
Requesting, requiring, or coercing employees or potential employees to access their personal accounts in the presence of the employer
Compelling employees or potential employees to add the employer or employment agency to their lists of contacts that enables such contacts to access their personal accounts

Compliance Calendar

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 Remember

This summary is not qualified legal advice. Laws are always subject to change, and they can vary from municipality to municipality. It’s up to you to make sure you’re compliant with all laws and statutes in your area. If you need more compliance help, we recommend consulting with a qualified lawyer, checking with your local government agencies, or signing up for Homebase to get help from our certified HR Pros. 

Additional Resources