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"Minimum Wage, Maximum Headaches for West Virginia Employers"

By: Brian M. Peterson
Employment Law Alert
March 19, 2014

The state's minimum wage bill has far-reaching unintended consequences.

Most employers in West Virginia currently are not covered by the state's minimum wage and maximum hours law because 80 percent or more of their employees are covered by the federal Fair Labor Standards Act. But, if Governor Tomblin signs the new minimum wage bill (HB4283) into law, the 80-percent exemption will be eliminated, and all West Virginia employers with six or more employees will be required to comply with the state's minimum wage and overtime requirements.

Although most of the debate surrounding HB4283 has focused on the wisdom of increasing the minimum wage, little debate has occurred regarding the extension of the state's overtime rules to nearly every employee. The state law lacks many of the exemptions found in the FLSA for minimum wage and overtime. For example, the state law contains no overtime exemptions for

  • Computer professionals;
  • Commissioned sales employees of retail/service establishments;
  • Seasonal and recreational establishments (except boys and girls summer camps and whitewater outfitters);
  • Companions for the elderly; or
  • Highly compensated employees (making more than $100,000 per year).

The state law also lacks many of the narrower, but important, exemptions such as the §7(k) exemption for firefighters and law enforcement employees, which allows employers to calculate overtime on periods longer than a work week, and the similar §7(j) exemption for hospitals and residential care facilities that allows so-called "8 and 80" overtime plans.  Once the state bill is signed,  all of these currently exempt workers will be entitled to overtime based on a 40-hour workweek like everyone else.

While state law does contain white-collar exemptions for professional, executive and administrative employees, the regulations defining those exemptions differ from the federal regulations, which were substantially updated in 2004.  Unlike the FLSA regulations, which consist of hundreds of pages of detailed guidance and interpretation on such things as tip pooling, fluctuating workweeks, deductions from pay for lost tools, etc., the state regulations consist of a 14-page set of rules last updated in 1982.  This will require West Virginia employers to re-evaluate all of their exempt employees to ensure that they will remain exempt under state law.

Unlike the minimum wage hike, which will not take effect until January 2015, the overtime changes will take effect on June 6, 2014. This leaves employers little time to determine whether their pay practices comply with both state and federal law.

For more information, or to discuss the new law's impact on your business, contact your Bowles Rice attorney today.

To see the bill history of HB 4283 and read the enrolled and "redline" versions, click here.