Pub. 5 2014 Issue 3

www.wvbankers.org 18 West Virginia Banker The new year will bring some big changes in West Virginia wage and hour law. Beginning January 1, 2015, nearly all employers in the state will, for the first time, be covered by the state’s minimum wage law. Employers will be required to pay their workers at least $8.00 per hour on January 1, 2015, and at least $8.75 beginning January 1, 2016. I f you’re thinking, “We pay more than minimum wage, so we don’t have to worry,” think again. The minimum wage law does more than set a minimum hourly wage. The law defines what con- stitutes “time worked” for which the min- imum wage must be paid. For example, the regulations interpreting the state law control whether hourly wage earners must be paid for meal breaks, rest breaks, on- West Virginia’s Wage and Hour Laws are Changing call time, waiting time, preliminary and postliminary activities such as donning and doffing of protective clothing, and pre-shift meetings. The law also imposes recordkeeping requirements which differ from the federal requirements. To complicate matters, the current regu- lations interpreting the state’s minimum wage law have not been updated for more than 30 years, and they differ substan- tially from the federal rules. In June, the Legislature authorized the West Virginia Division of Labor to issue emergency rules, but none have been filed yet. While we can all hope that the new regulations will be updated to match the federal regulations we’re familiar with, nothing is guaranteed. Another less-obvious impact of the rein- vigorated state minimum wage law will be an increase in wage-related lawsuits. Under current law, in order to sue for vio- lations of the minimum wage or overtime standards, employees must assert claims under the federal Fair Labor Standards Act (FLSA). Because the federal court system tends to be more conservative than the state courts, most plaintiff ’s lawyers shy away from asserting federal wage and hour claims unless they are lucrative collective action cases involving scores of employees and large sums of money. Once the state law amendments take effect in 2015, that deterrent will be eliminated, and we can expect to see more wage claims in West Virginia for such things as non-payment for missed meal breaks and for time spent donning and doffing safety gear. Because the state law does not contain the FL- SA’s opt-in requirement for class actions, plaintiff ’s lawyers will be permitted to file opt-out class actions against employers who make mistakes affecting large groups of employees. The good news is that employees can only recover their unpaid wages, interest, costs and fees under state law whereas the federal law also provides for liquidated damages that double the amount of back wages owed. New Wage Payment and Col- lection Act Regulations In 2014, the Division of Labor issued a new set of regulations relating to another state wage law, the West Virginia Wage Payment and Collection Act. This law controls the timing of final wage pay- ments, and famously mandates treble damages for wages paid even one day late. By Brian M. Peterson, Attorney, Bowles Rice LLP.