Pub. 5 2014 Issue 3

fall 2014 19 West Virginia Banker The old regulations had not been updated since 1990, and contained a number of poorly-worded definitions and regulations that conflicted with state statutes. The new regulations, which became effective last July 1, are a mixed bag. Employers will be pleased to learn that they are now permitted to furnish itemized statements of wages to employees elec- tronically when paying by direct depos- it, provided the employee has “direct, immediate and convenient access” to the electronic statement. For years, employers paying by direct deposit have issued paper pay stubs to employees to satisfy their legal requirement to “furnish” wage state- ments. Allowing pay stubs to be furnished electronically will save time, money and natural resources. The updated regulations also contain new requirements. One affects employers who pay on fixed dates each month. The new rule states that if an employer’s regular payday is on specific days of the month (e.g. 15th and 30th), and the employer is closed for business on one of those dates, the employer shall pay its employees on the day immediately preceding the regular payday when the employer is open for business. Some employers have policies stating that if the fixed payday falls on Sunday, the pay day will be on Monday. That practice will no longer be permitted. Another revised rule governing wage assignments requires employers to have on file a wage assignment “on the form approved by the Commissioner” prior to making any deductions from an employ- ee’s wages, other than for authorized statu- tory deductions. The 1990 regulations did not require that the Commissioner’s form be used, but it did contain a form that was “presumptively compliant” with the Act. Interestingly, the new regulations do not contain the mandated form. Perhaps most importantly, the definition of “discharge” was clarified to remove some troublesome language. Under the 1990 rules, “discharge” was defined as “any involuntary termination or the cessa- tion of performance of work by [an] em- ployee due to employer action.” The latter part of that definition raised the question of whether employers were “discharging” employees by placing them on unpaid administrative leave prior to termination. Under the new definition, “discharge” is defined simply as “an involuntary termi- nation of employment by an employer.” The portion regarding cessation of work has been eliminated. This should give employers some assurance that employ- ees placed on involuntary leave pending investigation of misconduct will not be deemed “discharged” on the day the cease working, thereby triggering the final pay obligation. As long as the employee is maintained on the active payroll for ben- efits and all other purposes, the employee should not be considered “discharged” under this new definition simply because he stops working. 2014 has proven to be a rollercoaster year for wage and hour law changes in West Virginia. In the last quarter, Employers will need to be on the lookout for the new minimum wage regulations to see what additional excitement the government has in store as the ride continues. n Convert Fixed Rate Loans to Floating — Using Our Balance Sheet CenterState’s Assumable Rate Conversion (ARC) Program allows your bank to utilize our expertise and balance sheet in order to offer long-term fixed rate loans to your customer while your bank enjoys a floating rate – all without hedge accounting and hedge management. How is that for an idea? 5960 Fairview Road, Suite 400 Charlotte, North Carolina 28210 704.496.2612 www.csbcorrespondent.com Brian M. Peterson is a Bowles Rice at- torney in theMartinsburg, West Virginia office of Bowles Rice LLP. He focuses his practice in the areas of labor and employment law and litigation. Should you require more information, please feel free to contact Mr. Peterson at (304) 264-4223 or bpeterson@bowles- rice.com. Bowles Rice is proud to serve as general counsel to the West Virginia Bankers Association.