Argentina  How to Hire & Fire: A Global Guide  USA - West Virginia

Frost Brown Todd LLC

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.

Data privacy

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.

Mandatory Requirements
  • Trial Period
  • 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.

  • Earnings
  • 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.

  • Holidays/Rest Periods
  • 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.

  • Minimum/Maximum Age
  • 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.

  • Illness/Disability
  • 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
  • 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.

  • Compulsory Terms
  • No requirements.

  • Non-Compulsory Terms
  • No requirements.

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.

Pre-Employment Considerations

No applicable State law.

Hiring Non-Nationals

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.

Changes To The Contract

Contract principles would apply to contract changes made by either party. Changes typically require additional consideration.

Change In Ownership Of The Business

There are no specific rules which apply when there is a change in the ownership of the business.

Social Security Contributions

Employers and/or employees must make social security contributions.

Accidents At Work

Federal Occupational Safety and Health Act (OSHA) governs when work accidents are reportable. The handling of work-related injuries is governed by the state’s workers’ compensation law which, in most cases, not only prevents employees from suing employers directly, but also provides employees specific rights with respect to termination.

Discipline And Grievance

There are no laws mandating a discipline or grievance process for private sector employees who are not part of a collective bargaining unit governed by the West Virginia Labor-Management Relations Act or the National Labor Relations Act.

Harassment/Discrimination/Equal pay

Federal and state law prohibit employers from discriminating in terms and conditions of employment based on: race, religion, national origin, color, gender, age, disability/blindness, ancestry, or genetic information. West Virginia also prohibits discrimination based on an employee’s voting choices, political activities and use of tobacco products outside the workplace.

In addition, West Virginia provides specific anti-discrimination protections for employees who are off work due to a work-related injury

Compulsory Training Obligations

There are no compulsory training obligations.

Offsetting Earnings

Federal and West Virginia law permit offsets. Generally, the offsets require the employee’s approval and may not reduce the employee’s pay to less than the minimum wage. West Virginia law prohibits employers from deducting the cost of uniforms. The cost of uniforms and their cleaning must be paid by the employer.

Payments For Maternity And Disability Leave

West Virginia does not require employers to provide paid maternity and/or disability leave.

Compulsory Insurance

There is no requirement.

Absence For Military Or Public Service Duties

The federal Uniformed Services Employment and Reemployment Act governs military leave and reinstatement following such leave. West Virginia statutes also cover members of the state military forces who are ordered to active state duty. The West Virginia statute provides the same protection to state military forces as the federal provisions.

Works Councils or Trade Unions

The West Virginia Labor-Management Relations Act and the federal National Labor Relations Act (NLRA) apply.

Employees’ Right To Strike

The West Virginia Labor-Management Relations Act allows private sector employees to strike; however, strikes are prohibited for 60 days after the party seeking to modify or terminate the contract serves notice on the other party or until the contract expires, whichever is later. If employees strike during the 60 days period, they lose their “employee” status. See also discussion of Collective Bargaining rights in U.S. Federal law section.

Employees On Strike

See discussion of Collective Bargaining rights in U.S. Federal law section. In West Virginia strikes are prohibited for 60 days after the party seeking to modify or terminate the contract serves notice on the other party or until the contract expires, whichever is later. If employees strike during the 60 days period, they lose their “employee” status.

Employers’ Responsibility For Actions Of Their Employees

Employers are responsible for the actions of employees committed within the scope of their employment. Employers are not liable for acts committed outside the course of an employee’s employment.

In the U.S., most employees are not subject to a contract, but are at-will. To the extent that an employee has a contract with the employer, the agreement would be governed by contract law and, in some cases, the federal National Labor Relations Act (NLRA). The termination of employees who are part of a collective bargaining unit is typically addressed in the collective bargaining agreement.

Procedures For Terminating the Agreement

There are no rules relating to the specific form for terminating the employment relationship. The termination of actual employment contracts are governed by contract law.

An employer who engages in a “mass layoff” or “plant closing” must follow the procedures in the federal Worker Adjustment and Retraining Notification Act. These procedures generally require advance notice of the layoff.

Instant Dismissal

Employers and employees may terminate their at-will employment relationship at any time and for any reason, as long as the termination is not discriminatory, retaliatory or a breach of public policy.

Employee's Resignation

At-will employees may resign from their employment at any time.

Termination On Notice

No minimum notice is required to terminate employment in the absence of a specific contract provision.

Termination By Reason Of The Employee's Age

Employers cannot terminate an employee based on the employee’s age. Employees are protected under federal and state age discrimination laws. Employers may base an employment decision on an employee’s age in very limited cases where mandatory retirement is required by law.

Automatic Termination In Cases Of Force Majeure

Employment can be terminated automatically in cases of force majeure.

Collective Dismissals

No applicable State law.

Termination By Parties’ Agreement

The at-will relationship may be terminated by either party for any reason or for no reason. Employers may not terminate the employment relationship for reasons that would violate the laws prohibiting discrimination.

Directors Or Other Senior Officers

There are no special rules for firing directors or other senior officers.

Special Rules For Categories Of Employee

The collective bargaining agreement controls termination of employees who are part of the collective bargaining unit.

Whistleblower Laws

No applicable State law.

Specific Rules For Companies in Financial Difficulties

The federal WARN Act requires advance notice of certain plant closings or mass layoffs.

Special Rules For Garden Leave

No applicable State law.

Restricting Future Activities

West Virginia allows agreements which restrict future activities. Such agreements must be reasonable in scope, geographic limitation, and time.

Severance Payments

There are no federal or state laws requiring severance payments.

Involuntarily terminated employees must be paid their final wages on their next regular payday. Employees who resign must be paid on the next regular payday or on the employee’s last day of employment if the employee provided one pay period’s notice.

Special Tax Provisions And Severance Payments

There are no special tax provisions related to severance payments.

Allowances Payable To Employees After Termination

Employers are not required to contribute towards any allowances payable to employees after termination. However, wages include all fringe benefits accrued at the time of termination that are capable of calculation and payable directly to an employee. Accrued payable benefits (vacation time) must be paid upon termination in the same fashion as earned wages. Employers are not required to pay these if they have a policy that does not require payment and it is applied equally to all employees.

Time Limits For Claims Following Termination


Employees must file a charge alleging discrimination with the West Virginia Human Rights Commission within 365 days after the unlawful discriminatory practices alleged in the charge were committed. Employees must file a lawsuit alleging violation of the West Virginia Civil Rights Act within two years after the unlawful discriminatory practices alleged in the suit were committed. The employee’s right to sue alleging violation of state law is not contingent upon filing a charge of discrimination with the West Virginia Human Rights Commission.


Employees must file a charge alleging discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 300 days after the unlawful discriminatory practices alleged in the charge were committed. The employee’s right to sue in federal court is contingent upon filing a charge of discrimination with the EEOC. Suit in federal court alleging violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and/or the Age Discrimination in Employment Act must be filed within 90 days of receipt of the EEOC’s Dismissal and Notice of Rights. Suits for unpaid wages or alleging violation of the federal Equal Pay Act (“EPA”) must be filed in federal or state court within 2 years (3 years for wilful violations) of the alleged EPA underpayment.

Specific Matters Which Are Important Or Unique To This Jurisdiction

West Virginia has a variety of specific statutes, as well as case law, which protect employees from discrimination, including those employees on leave for a work-related injury, and which provide employees specific protection to their privacy and benefits. In addition, drug-testing requirements and prohibitions vary by industry.

Search by:
Need more information?
Contact a Contributing Author:
Katherine Brings Capito
Frost Brown Todd LLC
United States


© 2021, Frost Brown Todd LLC. All rights reserved by Frost Brown Todd LLC as author and the owner of the copyright in this chapter. Frost Brown Todd LLC has granted to Multilaw non-exclusive worldwide license to use and include this chapter in this guide and to sublicense Lexis Nexis, a division of RELX Inc. and its affiliates certain rights to use and distribute this Guide.

The information in the How to Hire and Fire Guide provides a general overview at the time of publication and is not intended to be a comprehensive review of all legal developments nor should it be taken as opinion or legal advice on the matters covered. It is for general information purposes only and readers should take legal advice from a Multilaw member firm.

Publication Date: June 2021