Forums For Adjudicating Employment Disputes
Employment disputes are adjudicated in state and federal court. The West Virginia Division of Labor of the Department of Commerce administers and enforces state labor laws. The commissioner of labor is responsible for investigating, mediating and/or arbitrating labor disputes. The West Virginia Human Rights Commission investigates complaints alleging discrimination in employment.
The Main Sources Of Employment Law
The main sources are federal and state legislation and regulations, and court decisions. Collective bargaining agreements and individual contracts also are enforceable.
National Law And Employees Working For Foreign Companies
Federal and state law will apply to people who work within the territory but for a foreign company.
National Law And Employees Of National Companies Working In Another Jurisdiction
All federal employment laws apply to U.S. citizens working in every state. The West Virginia Human Rights Act applies only to West Virginia employers that employ twelve or more workers in the state for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place.
No applicable State law.
Legal Requirements As To The Form Of Agreement
Unless the parties agree otherwise, U.S. and West Virginia employees are employed at-will and not subject to a contract of employment. However, there are federal and state laws governing certain terms and conditions of employment and providing protection from termination for employees under certain circumstances.
There is no legal obligation to provide trial or probationary periods.
Hours Of Work
State and federal law both provide that non-exempt employees must be paid 1 ½ times their regular rate of pay for all hours worked in excess of 40 hours in a workweek.
Special Rules For Part-time Work
No applicable State law.
The state minimum wage is $8.75 per hour. The state minimum wage rate applies to all employers with six or more workers at one location or establishment. The state statute also provides a list of employees who are exempt from the state minimum wage requirements. These individuals include: golf caddies; shoe shiners; bowling alley pin setters; outside salespersons; the employer’s immediate family members; newspaper carriers; those in a bona fide professional, executive, or administrative capacity; on-the-job trainees; camp employees; agricultural workers; students working part-time; fire-fighters; federal employees; certain employees of state legislature; and employees who are 62 years of age or older who are receiving social security benefits.
West Virginia’s Minimum Wage and Maximum Hour Standards contain a provision within the definition of employer stating that relative to maximum hours and overtime compensation only the term “employer” does not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed are subject to any federal act relating to maximum hours and overtime compensation. That means if 80% of an employer’s workforce is subject to the provisions of the Fair Labor Standards Act (FLSA), the maximum hour and overtime requirements of West Virginia’s Minimum Wage & Maximum Hour Standards will not apply. §21-5C-1(e)
Tips can be counted for up to twenty percent of minimum wage.
The regulations allow for reasonable deductions from wages for board and lodging.
Employers must pay employees twice a month with no more than 19 days between payroll.
West Virginia has a statutory prohibition against working on Sunday; however, it is relatively inoperative. Only public employers are required to provide holidays. Additionally, West Virginia employers must provide a 20-minute meal break to employees if their workday lasts six or more hours. Employers must count rest periods less than 20 minutes as time worked. When an employee is required to work 24 or more consecutive hours, the employer and employee may agree on a meal and sleeping schedule of no more than eight hours to be deducted from the workday. If the parties do not enter into an agreement, then sleeping and meal time is counted as work time. If the employee’s meal or sleep time is interrupted by a call to duty, then the time must be counted as hours worked.
State and federal law place restrictions on employing individuals under 18 years old. Work permits are required for minors under the age of 16. Minors between the ages of 14 and 15 may not be employed during school hours while school is in session. West Virginia generally will not grant work permits to minors under the age of 14. Employers must provide minors with a 30-minute meal period for every five hours of continuous work.
State and federal law prohibit discrimination against individuals who are age 40 or older.
State and federal law prohibit discrimination against individuals with disabilities. The federal Family and Medical Leave Act requires covered employers to provide eligible employees with up to 12 weeks of unpaid job-protected leave to care for their own serious health condition or to care for a spouse, child, or parent with a serious health condition or for any “qualifying exigency” arising out of the fact that a covered military member is on active duty, or has been notified of an impending call or order to active duty in support of a contingency operation. It also entitles eligible employees to take up to 26 weeks of job-protected leave in a “single 12-month period” to care for a covered servicemember with a serious injury or illness.
Location Of Work/Mobility
There are no mandatory requirements relating to an employee’s location of work/mobility.
Pension plans are not mandatory. If a pension plan is provided, it is regulated by the federal Employee Retirement Income Security Act (ERISA).
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
The federal Family and Medical Leave Act requires covered employers to provide eligible employees with up to 12 weeks of unpaid job-protected leave because of the birth of a child and to care for the newborn child or because of the placement of a child with the employee for adoption or foster care. The federal Pregnancy Discrimination Act of 1978 prohibits discrimination or harassment because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Types Of Agreement
All employees are at-will unless a contract exists between the parties establishing the duration of employment. The state does not have different rules for different types of agreements (e.g. fixed term, unlimited term, part-time, agency work, etc.).
West Virginia state law governs the protection of trade secrets. Employers may require employees to enter into confidentiality agreements protecting against the disclosure of trade secrets and proprietary information as a condition of their employment.
Ownership of Inventions/Other Intellectual Property (IP) Rights
Generally, employers own intellectual property created by their employees as part of their employment or created using the employer’s information, equipment, or materials.
No applicable State law.
There are federal requirements specifying the rules for hiring non-nationals. Employers should be aware that foreign nationals must be authorized to work in the U.S. and whether such employment is restricted in any way. U.S. laws, rules, and regulations governing the work authorization of foreign nationals are complex. Basically, U.S. Citizenship and Immigration Services (USCIS) regulations establish three classes of foreign nationals who are allowed to work in the U.S.: (1) aliens authorized to work incident to their immigration status, (2) aliens who are permitted to work for a specific employer incident to their status, and (3) aliens who must apply for and obtain permission from the USCIS in order to accept employment in the U.S.
2.1 West Virginia state law also provides that it is unlawful for any employer to knowingly employ, hire, recruit or refer, either for himself or herself or on behalf of another, for private or public employment within the state, an unauthorized worker who is not duly authorized to be employed by law. Employers are required to verify a prospective employee’s legal status or authorization to work prior to employing the individual or contracting with the individual for employment services.
Hiring Specified Categories Of Individuals
Federal contracts have certain affirmative action obligations under Executive Order 11246. One requirement for federal contractors who have 50 or more employees and $50,000 or more in government contracts is to develop a written affirmative action program which helps the contractor identify and analyze potential problems in the participation and utilization of women and minorities in the contractors’ workforce. Federal and state law prohibit employers from discriminating in terms and conditions of employment based on: race, religion, national origin, color, gender, age (40 and over), disability, or ancestry.
Employers who provide care to children, elderly, and/or disabled individuals may utilize the state’s Central Abuse Registry to screen prospective employees.
Outsourcing And/Or Sub-Contracting
In order for contractors to bid on West Virginia public authorities’ contracts for public improvements, private contractors and their subcontractors must implement and maintain a written drug-free workplace policy.