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Quick and Easy Guide to Labor & Employment Law: West Virginia

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in West Virginia.

At-Will Employment

West Virginia is an at-will employment state, which means an employer may end an employee's employment for any reason or no reason as long as it is not otherwise contrary to law (such as violation of anti-discrimination or retaliation laws).

Right-to-Work Laws

West Virginia is a right-to-work state. Employees have the right to self-organize; form, join or assist unions; bargain collectively through representatives of their own choosing; and engage in other concerted activities for collective bargaining purposes and other mutual aid or protection. W. Va. Code, § 21-1A-3. They also have the right to refrain from these activities; employers cannot require union membership as a condition of employment. Id.

Immigration Verification

West Virginia places some additional employment verification procedures on employers beyond Federal I-9 compliance. Employers in West Virginia are responsible for verifying employment eligibility. Additional information on West Virginia's verification requirements may be found at labor.wv.gov/Wage-Hour/Undocumented_Worker/Pages/default.aspx.

Drug Testing

Employers can test employees and applicants for drugs or alcohol as a condition of employment if such testing is conducted in accordance with the drug and alcohol testing law. W. Va. Code § 21-3E-4. An employer also can require employees to submit to a drug or alcohol test if the employer has a drug-free workplace program as established in the West Virginia code. W. Va. Code § 21-3E-4; W. Va. Code § 21-3E-16.

Jury Duty Leave

West Virginia employers must allow employees to take leave to serve as jurors. Employers cannot discharge or discriminate against employees because they take jury duty leave. W. Va. Code § 61-5-25a. An employee may have a private right of action against his or her employer if he or she is discriminated against by his or her employer because such employee received, was served with a summons for jury duty, was absent from work to respond to a summons for jury duty or to serve on any jury in federal or state court. W. Va. Code § 52-3-1.

Voting Leave

Employers must grant employees no more than three hours of voting time leave. W. Va. Code § 3-1-42. Employers in industries requiring continuity in operation, such as hospitals, transportation services and manufacturing facilities, can arrange schedules of employees' voting time leave to avoid disruption or impairment of essential services and operations. Id.

Other Leave

Emergency Response Leave

West Virginia employers with 15 or more employees must allow eligible employees to take emergency response leave if they respond to an emergency call as members of volunteer fire departments, as emergency medical service attendants or as members of emergency medical services. W. Va. Code § 15-1K-1.

Military Leave

Employers must grant the same re-employment rights to National Guard members on active military duty that are granted to members of the U.S. armed forces' reserve by applicable federal law. W. Va. Code § 15-1-1; W. Va. Code § 15-1F-8.

Pregnancy Disability Leave

Employers must make reasonable accommodations for employees and applicants limited by pregnancy, childbirth or related medical conditions, unless these accommodations would impose undue hardship on employers. W. Va. Code § 5-11B-2. Employers cannot require employees and applicants affected by pregnancy, childbirth or related medical conditions to take leave if other reasonable accommodations can be provided. Id.

Smoking Laws

West Virginia employers cannot refuse to hire applicants, discharge employees, or otherwise discriminate against or penalize employees solely because they use tobacco products off employer premises during nonwork hours. W. Va. Code § 21-3-19. West Virginia is one of the only states in the country that does not have a general state-wide ban on smoking indoors or in workspaces.

Break Time to Express Milk

The State of West Virginia does not have any statutes or other provisions relating to breastfeeding rights for employees. If the mother is protected by the Fair Labor Standards Act (FLSA), employers are required to provide reasonable break time for an employee to express breast milk for her nursing child. Additionally, under the FLSA, employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

Meal Breaks

During a workday lasting at least six hours, West Virginia employers must provide employees with at least 20 minutes for meal breaks. W. Va. Code § 21-3-10a.

Minimum Wage, Overtime and Wage Recordkeeping

Beginning January 1, 2016, the minimum wage in the State of West Virginia is not less than $8.75 per hour. W. Va. Code § 21-5C-2. Employers must still comply with federal wage laws and regulations. The employer may pay tipped employees $2.62 per hour as long as the employee's tips bring the total hourly wage up to the state minimum wage.

Provisions governing overtime pay can be found at personnel.wv.gov/agencies/flsa/Pages/otrule.aspx. Generally, if an employee works more than 40 hours, he or she must be compensated at a rate of one and one-half times the regular rate of pay at which he or she is employed. This does not apply to agricultural employees.

An employer shall make and keep for a period of not less than five years in or about the premises wherein any employee is employed a record of the name; address; date of birth; occupation, title or job classification of each of his or her employees; the rate of pay; the hours worked each workday and workweek for each employee; the employee’s legal status or authorization to work. W. Va. Code R. § 42-5-5.

Final Payments

The State of West Virginia requires employers to pay wages to discharged employees by the next regular pay day. W. Va. Code § 21-5-4. Wages due includes at least all wages earned up to and including the 12th day immediately preceding the regular payday. Id.

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the West Virginia Department of Commerce through WorkForce West Virginia, and additional information regarding the benefits may be accessed at workforcewv.org/unemployment.

Workers' Compensation

The West Virginia Workers' Compensation Act, W. Va. Code § 23-2-1, et seq., applies to every employer in West Virginia with three or more employees. Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits under the Act. Under the Act, a workplace injury must be immediately reported to the employer; failing to timely report an injury may result in a denial of benefits.

The Act is administered by the West Virginia Offices of the Insurance Commissioner, and additional information regarding the Act may be accessed at www.wvinsurance.gov/Workers-Compensation. Finally, unlike some states, West Virginia does not recognize a private cause of action for discrimination or retaliation based on the exercise of a workers' compensation right.

Child Labor

Generally, 14 is the minimum age for employment under West Virginia state law, although minors under age 14 can work in very limited circumstances outlined by statute. W. Va. Code § 21-6-1; W. Va. Code § 21-6-3. There are restrictions for places of work dealing with minors, as well as restrictions on the hours of the day the minor may work. The laws may be found at W. Va. Code § 21-6-2, et seq.

Gun Laws

Employers can prohibit employees and applicants from openly carrying or concealing firearms and other deadly weapons on employer property. W. Va. Code § 61-7-14. However, employers cannot prohibit employees and applicants from storing firearms in or on privately owned vehicles under certain conditions. Id. Employers cannot condition employment based on whether employees and applicants have a license to carry certain deadly weapons or based on agreements that prohibit them from keeping firearms in or on privately owned vehicles under certain conditions. Id.

Additional Laws and Regulations

Medical Marijuana. The State of West Virginia allows for the certified medical use of marijuana to treat certain serious medical conditions. W. Va. Code § 16A-1-1, et seq. An employer cannot discipline an employee solely for medical marijuana use, but employees may not come to work under the influence or possess marijuana at the workplace.

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Guide last updated July 2021.

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