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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 that either the employer or the employee may end an employee's employment without cause and for any reason or no reason, as long as it is not otherwise contrary to law (e.g., discrimination, retaliation, and whistleblowing).

Right-to-Work Laws

West Virginia is a right-to-work state. Therefore, no employee can be required to join a union as a condition of employment. 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. Employees also have the right to refrain from these activities, including the right to refrain from paying dues, fees, or assessments to a labor union or any third party. Id.

Immigration Verification

West Virginia places some additional employment verification procedures on employers beyond Federal I-9 compliance. Every employer with employees working in West Virginia is required to verify the legal employment status or authorization to work for each of their individual employees at the time of hire.

Employers meet this responsibility by requiring any one of the following types of identification at the time of hire — a valid:

  1. Social Security card
  2. Immigration or non-immigration visa, including photo identification
  3. Birth certificate
  4. Passport
  5. Photo ID card issued by a government agency
  6. Work permit or supervision permit issued by the WV Division of Labor
  7. Permit issued by the Department of Justice

Additional information regarding West Virginia's employment verification requirements may be accessed 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 hiring or continued 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. Specifically, an employer may require a current employee to take a drug or alcohol test on suspicion of intoxication or drug use if the employer's written policy allows for drug or alcohol testing to investigate whether an individual employee is impaired, and the employer follows all West Virginia Safer Workplace Act notice, educational, and procedural requirements. W. Va. Code § 21-3E-8(c)(2).

Jury Duty Leave

West Virginia employers must allow employees to take leave to serve as jurors. Jury duty leave can be unpaid. Employers cannot discharge or discriminate against employees because they take leave to serve as jurors. W. Va. Code § 61-5-25a. An employee may have a private right of action against their employer if they are discriminated against by their employer because such employee received or was served with a summons for jury duty, or 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 in West Virginia are required to grant employees sufficient time off to vote. Specifically, employees may take voting leave for up to three hours between the opening and closing of the polls on Election Day. W. Va. Code § 3-1-42. Employees are required to notify employers at least three days before Election Day that they need time off to vote. Id. Employers in industries such as essential government, health, hospital, transportation, and communication services; and in production, manufacturing, and processing works requiring continuity in operation, 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, emergency medical service attendants, or members of emergency medical services. W. Va. Code § 21-5-17. Any time lost from employment as provided in this section may be charged against the employee's regular pay or accumulated leave, if any, at the option of the employee. Id.

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 in West Virginia must make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant, unless these accommodations would impose undue hardship on employers. W. Va. Code § 5-11B-2. It is unlawful for employers to deny an employment opportunity to a job applicant or employee if such denial is based on the employer's refusal to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee or applicant, or require an employee or applicant to accept an accommodation that such applicant or employee chooses not to accept. Id. 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

It is unlawful for public and private West Virginia employers to 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. This requirement does not apply to nonprofit organizations that, as one of their primary purposes or objectives, discourage the use of tobacco products by the general public. Id.

Break Time to Express Milk

West Virginia does not have any state-specific statutes or other provisions relating to breastfeeding rights for employees. However, if the employee 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 their nursing child for one year after the child's birth each time such employee has the need to express milk. Id. In addition, 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 co-workers and the public, that may be used by an employee to express breast milk. Id.

Meal Breaks

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

Minimum Wage, Overtime, and Wage Recordkeeping

West Virginia's state minimum wage rate is $8.75 per hour. W. Va. Code § 21-5C-2. For West Virginia's state minimum wage requirements to apply, at least six or more non-exempt employees must be working at the same separate, distinct, and permanent work location. Id. If that requirement is not met, the federal minimum wage may apply. Employers must still comply with federal wage laws and regulations.

West Virginia's minimum wage standards allow employers a 70% credit against the minimum wage requirement for their service employees who receive tips. W. Va. Code § 21-5C-4. That means an employer may pay their tipped employees a cash wage of $2.62 per hour, as long as the employee's hourly cash rate, plus reported tips, equals the state minimum wage of $8.75 per hour. Id.

West Virginia law requires employers to pay overtime to employees, unless otherwise exempt, at the rate of 1½ times the employee's regular rate of pay for all hours worked in excess of 40 hours in a workweek. W. Va. Code § 21-5C-3. However, any individual that is involved in one of the categories of work, or descriptions of work, listed in W. Va. Code § 21-5C-1(f), are exempt from overtime requirements under West Virginia law.

This does not apply to agricultural employees.

Employers are required to maintain payroll and employment records during an employee's employment and for a period of not less than 5 years from the date each record was created. W. Va. Code R. § 42-5-5. This record must contain the employee’s:

  • Full name
  • Home address
  • Date of birth (if under 18)
  • Occupation, title or job classification
  • Rate of regular pay
  • Hours worked each workday and total hours worked each workweek
  • Documentation of legal status or authorization to work, as required by W. Va. Code § 21-1B-1 et seq.

Final Payments

Whenever a person, firm, or corporation discharges an employee, or whenever an employee quits or resigns from employment, the person, firm, or corporation shall pay the employee's wages due for work that the employee performed before the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable. W. Va. Code § 21-5-4. Wages due include at least all wages earned up to and including the 12th day immediately preceding the regular payday. Id. If a person, firm, or corporation fails to pay an employee wages as required under this section, the person, firm, or corporation is liable to the employee for two times that unpaid amount as liquidated damages in addition to the amount that was unpaid when due. Id.

Frequency of Wage Payments

Employers in West Virginia must pay employees at least twice every month with no more than 19 days between pay periods, unless provided by a special agreement. W. Va. Code § 21-5-3. If an employee is absent from their regular place of labor and does not receive their wages, the employer must pay the wages due upon demand at the place where their wages are usually paid. 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. Pursuant to this law, most West Virginia employers are statutorily required to maintain workers' compensation insurance coverage. Id. 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.

The following employers are not required to procure workers' compensation insurance, but may elect to do so:

  • Employers of employees in domestic services
  • Employers of five or fewer full-time employees in agricultural service
  • Employers of employees while the employees are employed without the state except in cases of temporary employment without the state
  • Employers with fewer than three employees and the period of employment is temporary, intermittent, and sporadic in nature and does not exceed 10 calendar days in any calendar quarter
  • Churches
  • Employers engaged in organized professional sports activities
  • Any volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission, municipality, or other government entity or political subdivision
  • Taxicab drivers of taxicab companies
  • Any employer whose employees are eligible to receive benefits under the federal Longshore and Harbor Workers' Compensation Act

The West Virginia Workers' Compensation Act is administered by the West Virginia Offices of the Insurance Commissioner. W. Va. Code § 23-2-1. Additional information regarding the Act may be accessed at www.wvinsurance.gov/Workers-Compensation.

Child Labor

Generally, 14 is the minimum age for employment under West Virginia state law. W. Va. Code § 21-6-1.Children or youth under the age of 14 are generally prohibited from working unless one of the following exceptions apply:

  • Being employed by parents in non-hazardous occupations
  • Working as actors or performers
  • Delivering newspapers
  • Employed as homeworkers in making wreaths from natural elements
  • Performing certain agricultural work

Id.

There are restrictions for places of work dealing with minors, as well as on the hours of the day the minor may work. 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 may not prohibit any customer, applicant, employee, or other person lawfully on the premises from storing a lawfully possessed firearm inside a privately owned vehicle in a company parking lot, as long as the firearm is out of view and locked in the vehicle. Id. Employers cannot condition employment based on whether employees and applicants have a license to carry certain deadly weapons or 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 employers may maintain a drug-free workplace policy, prohibiting employees to report to work under the influence or use or possess marijuana in the workplace.

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Guide last updated November 2022.

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