West Virginia — Wage & Hour

West Virginia requires employers to pay a minimum wage of $8.75 per hour, effective January 1, 2016. This rate applies to employers with six or more non-exempt employees working at any one separate, distinct, and permanent work location. If the federal minimum wage exceeds $8.75, employers must pay the higher federal rate. Employers with fewer than six employees at a location are not covered by the state minimum wage but may be subject to the federal $7.25 minimum wage under the FLSA.

Source: W. Va. Code § 21-5C-2

West Virginia requires employers with six or more employees at any one separate, distinct, and permanent location to pay overtime at one and one-half times the regular rate for all hours worked over 40 in a workweek. The state's overtime law applies to employers not fully covered by federal overtime protections, creating a backstop for smaller operations. Employers subject to both state and federal law must comply with whichever standard gives employees greater protection.

Source: W. Va. Code § 21-5C-3(a)

West Virginia's Wage Payment and Collection Act (W. Va. Code § 21-5-4) imposes a single timing rule for final wage payments that applies uniformly to all employment separations, whether the employee is discharged, quits, resigns, is laid off, or leaves due to a labor dispute.

The uniform rule. Under W. Va. Code § 21-5-4(b), whenever an employer discharges an employee, or whenever an employee quits or resigns from employment, the employer must pay all wages due for work the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable. This same deadline applies to layoffs and work suspensions resulting from a labor dispute under subsection (d) of the statute. The statute does not distinguish between voluntary and involuntary separations, nor does it provide an earlier deadline (such as immediate payment or payment within 72 hours) for discharge or for employees who gave advance notice of resignation. The statutory text is unambiguous: final wages are due on or before the next regular payday, regardless of the reason for or manner of separation.

What counts as "wages." Final wages include all compensation for labor or services rendered, including accrued fringe benefits that are capable of calculation and payable directly to the employee. W. Va. Code § 21-5-1(c) and (f). If fringe benefits (such as vacation pay or PTO) are provided pursuant to an agreement between the employer and employee and are due, but the agreement specifies they are to be paid at a future date or upon additional conditions which are ascertainable, those benefits are not subject to the next-regular-payday rule and instead are payable according to the terms of the agreement. W. Va. Code § 21-5-4(b) (proviso).

Payment method. Employers may pay final wages through the employer's regular pay channels or by mail if the employee requests. Wages paid by mail are deemed to have been paid on the date the mailed payment is postmarked. W. Va. Code § 21-5-4(c).

Liquidated damages for late payment. An employer that fails to pay final wages as required is liable to the employee for two times the unpaid amount as liquidated damages, in addition to the unpaid wages. W. Va. Code § 21-5-4(e). The failure is deemed to continue from the date payment was due until the date of actual payment or until the employer is adjudicated bankrupt, whichever occurs first; for purposes of liquidated damages, however, the failure does not continue after the date of filing a bankruptcy petition with respect to the employer.

West Virginia employers subject to both state and federal law must comply with whichever standard provides greater employee protection. Because the federal Fair Labor Standards Act does not impose final-paycheck timing requirements, West Virginia's deadline applies to covered employers operating in the state.

Source: W. Va. Code § 21-5-4 Source: W. Va. Code § 21-5-1

West Virginia permits employers to take a tip credit equal to 70% of the state minimum wage for service employees (tipped employees) who receive tips or gratuities equal to at least 70% of the current minimum wage for all hours worked. With the state minimum wage at $8.75 per hour, the maximum tip credit is $6.13 per hour, allowing employers to pay a minimum cash wage of $2.62 per hour to tipped employees, provided that the employee's cash wage plus actual tips received totals at least $8.75 per hour. If tips do not bring the employee's total compensation to the full minimum wage, the employer must pay the difference.

The 20% rule for non-tipped duties. West Virginia Code of State Rules § 42-8-12.1.2 provides that when a service employee spends more than 20% of his or her time during a workweek performing duties for which he or she does not receive tips — such as cleaning or setting tables, making coffee, or similar tasks — an employer must pay the employee at least the full minimum wage, without taking a tip credit, for the time the employee spends performing those duties. This rule ensures that the tip credit applies only to hours spent in tip-generating work.

Dual job employees. An employer may take a tip credit equal to 70% of the minimum wage for all hours worked by a dual job employee (an employee who performs both service and non-service work) as a service employee, as long as the employee receives tips or gratuities equal to at least 70% of the current minimum wage. The employer must pay a dual job employee at least the full minimum wage, without taking a tip credit, for all hours worked by the employee as a non-service employee. An employer may not take a tip credit for a non-service employee.

Recordkeeping requirements — mandatory for tip credit. Under W. Va. Code St. R. § 42-8-12.1.5, an employer must have written tip records completed by the employee in order to take the tip credit. For dual job employees, the employer must also maintain a record of the time worked as a service employee. The employee's report of tips must specify the time period in which the tips were received, the amount of cash tips received, the amount of credit or debit card tips received, the amount of tips paid out, and the amount of net tips retained by the employee. The employee must sign and date the report. The regulation permits an employee to use IRS Form 4070 ("Employee's Report of Tips to Employer"), IRS Form 4070A ("Employee's Daily Record of Tips"), or any other form that contains the information required by the regulation.

Tip pooling. If an employer taking a tip credit permits tip-sharing or tip pooling, the employer must divide the shared or pooled tips among only service employees and dual job employees working as service employees, and must ensure that the employees individually document the amount of tips paid out. An employer taking a tip credit is not entitled to receive any shared or pooled tips.

West Virginia's minimum wage and tip credit rules apply to employers with six or more non-exempt employees working at any one separate, distinct, and permanent work location. Employers with fewer than six employees at a location are not covered by the state minimum wage but may be subject to the federal $7.25 minimum wage and the federal tip credit under the FLSA.

Source: W. Va. Division of Labor — Minimum Wage FAQ Source: W. Va. Code § 21-5C-2 Source: W. Va. Code St. R. § 42-8-12

West Virginia permits employers to pay a subminimum training wage of $6.40 per hour to employees first hired after December 31, 2014, provided the employee meets specific age and duration restrictions. This training wage is substantially higher than the federal youth minimum wage of $4.25 per hour under 29 U.S.C. § 206(g)(1), so West Virginia employers must pay the higher state rate.

Age restriction. An employer may not pay the subminimum training wage to any individual who has attained, or attains while employed by the employer, the age of 20 years. W. Va. Code § 21-5C-2(b)(2)(A). Once an employee turns 20, the employer must immediately pay at least the full state minimum wage of $8.75 per hour (or the higher federal minimum wage if applicable).

Duration limits. The subminimum training wage may be paid for a cumulative period of not more than 90 days per employee. W. Va. Code § 21-5C-2(b)(2)(B). This 90-day period is the maximum training-wage period for an established business.

New business exception — extended training period. If a business has not been in operation for more than 90 days at the time the employer hired the employee, the employer may pay the employee the subminimum training wage for an additional period not to exceed 90 days. W. Va. Code § 21-5C-2(b)(2)(B) (proviso). This means a qualifying new business may pay the training wage for up to 180 cumulative days (90 days plus an additional 90 days).

Federal floor. When the federal subminimum training wage prescribed by 29 U.S.C. § 206(g)(1) is equal to or greater than West Virginia's $6.40 training wage, employers must pay the higher federal rate. W. Va. Code § 21-5C-2(b)(3). Additionally, W. Va. Code § 21-5C-2(c) provides that the subminimum training wage established by West Virginia law may not fall below the federal subminimum training wage rate as prescribed by 29 U.S.C. § 206(g)(1). However, because the federal youth minimum wage is currently $4.25 per hour, the West Virginia rate of $6.40 applies.

Scope of coverage. The training wage is available to employers subject to West Virginia's minimum wage law — those with six or more non-exempt employees working at any one separate, distinct, and permanent work location. Employers with fewer than six employees at a location are not covered by the state minimum wage statute and therefore cannot take advantage of the state's training wage provision, though they may be able to use the federal youth minimum wage under the FLSA if they are otherwise covered by federal law.

Distinction from on-the-job training exemption. West Virginia Code § 21-5C-1(f)(7) separately exempts from the definition of "employee" any person whose employment is for the purpose of on-the-job training (vocational). That exemption removes those workers entirely from minimum wage and overtime coverage; it is distinct from the subminimum training wage authorized under § 21-5C-2(b), which allows covered employees to be paid a reduced wage for a limited period.

Source: W. Va. Code § 21-5C-2 Source: 29 U.S.C. § 206(g)(1) Source: W. Va. Code § 21-5C-1

West Virginia's minimum wage law exempts specific categories of workers by excluding them from the statutory definition of "employee" under W. Va. Code § 21-5C-1(f). Workers who fall within these exemptions are not entitled to the state's $8.75 minimum wage, though they may still be covered by the federal Fair Labor Standards Act (FLSA) if they meet federal coverage tests.

The statutory exemptions. West Virginia Code § 21-5C-1(f) provides that "employee" includes any individual employed by an employer but does not include:

1. Any individual employed by the United States;
2. Any individual engaged in the activities of an educational, charitable, religious, fraternal, or nonprofit organization where the employer-employee relationship does not in fact exist, or where the services rendered to such organizations are on a voluntary basis;
3. Newsboys, shoeshine boys, golf caddies, pinboys, and pin chasers in bowling lanes;
4. Traveling salesmen and outside salesmen;
5. Services performed by an individual in the employ of his or her parent, son, daughter, or spouse;
6. Any individual employed in a bona fide professional, executive, or administrative capacity;
7. Any person whose employment is for the purpose of on-the-job training (vocational);
8. Any person having a physical or mental handicap so severe as to prevent his or her employment or employment training in any training or employment facility other than a nonprofit sheltered workshop;
9. Any individual employed on a part-time basis who is a student in any recognized school or college;
10. Any person employed in agriculture;
11. Any person employed by an amusement or recreational establishment if certain seasonal conditions are met;
12. Any person employed as a seasonal employee of an amusement park where the seasonal employee works less than seven months in any one calendar year (limited to exemption from overtime under § 21-5C-3, not minimum wage).

The statute contains additional exemptions for seasonal employees of amusement parks. W. Va. Code § 21-5C-1(f)(19) and (20) exempt seasonal amusement park employees from the maximum hours provisions of § 21-5C-3 but not from the state's minimum wage requirement.

Bona fide professional, executive, or administrative capacity — alignment with federal rules. Exemption (6) mirrors the FLSA's white-collar exemptions. West Virginia Code § 21-5C-6(a) authorizes the Commissioner of Labor to promulgate emergency rules to conform state standards defining employee exemptions with federal law if a conflict exists. The state generally follows the federal duties test and salary-basis test under 29 C.F.R. Part 541, though employers should verify current state regulations.

Material differences from federal FLSA exemptions. West Virginia's exemption list differs from the FLSA in several respects:

• Family employment. West Virginia exempts services performed by an individual in the employ of a parent, son, daughter, or spouse under exemption (5). The FLSA exempts only employees of a parent or a spouse who is a parent (29 U.S.C. § 203(e)(1)) and applies the exemption only in agriculture and certain small businesses. West Virginia's family-employment exemption is broader and applies to all industries.

• Newsboys and similar occupations. West Virginia explicitly exempts newsboys, shoeshine boys, golf caddies, pinboys, and pin chasers (exemption (3)). The FLSA contains a narrower exemption for newspaper delivery under 29 U.S.C. § 213(d) but does not categorically exempt the other listed occupations.

• Students employed part-time. Exemption (9) excludes any individual employed on a part-time basis who is a student in any recognized school or college. The FLSA permits subminimum wages for student learners and full-time students in retail or service establishments under certificate programs (29 C.F.R. § 520) but does not categorically exempt part-time students from minimum wage coverage. West Virginia's exemption is broader.

• Agricultural employees. West Virginia exempts any person employed in agriculture (exemption (10)). The FLSA exempts certain small-farm agricultural employees under 29 U.S.C. § 213(a)(6) but covers larger agricultural operations. West Virginia's blanket agricultural exemption is broader than the federal rule.

• On-the-job training. Exemption (7) excludes any person whose employment is for the purpose of on-the-job training (vocational). This is distinct from the subminimum training wage authorized under W. Va. Code § 21-5C-2(b), which permits employers to pay a $6.40 training wage to employees under age 20 for up to 90 days. The exemption (7) category removes the worker entirely from minimum wage coverage when the employment is vocational training, a broader exclusion than the FLSA's apprentice or student-learner certificate programs under 29 C.F.R. § 520.

• Nonprofit sheltered workshop employees. Exemption (8) excludes persons with severe physical or mental handicaps employed in nonprofit sheltered workshops. The FLSA permits subminimum wages for workers with disabilities under special certificates (29 U.S.C. § 214(c)), but West Virginia exempts these workers entirely from state minimum wage coverage when employed in a nonprofit sheltered workshop.

Scope of coverage. West Virginia's minimum wage law applies only to employers with six or more non-exempt employees working at any one separate, distinct, and permanent work location (W. Va. Code § 21-5C-1(e)). The exemptions in § 21-5C-1(f) apply on top of this employer-size threshold. An employer with fewer than six employees is not subject to the state minimum wage regardless of whether workers fall within an exemption, though the employer may still be covered by the FLSA.

Source: W. Va. Code § 21-5C-1 Source: W. Va. Code § 21-5C-2 Source: W. Va. Code § 21-5C-6

West Virginia's Wage Payment and Collection Act requires employers to pay employees at least twice every month, with no more than 19 days between wage settlements. W. Va. Code § 21-5-3(a). This semi-monthly minimum applies to all employers doing business in the state, except railroad companies (which are governed by separate federal provisions under W. Va. Code § 21-5-1 et seq.).

The 19-day cap. The statute imposes a bright-line rule: no two consecutive paydays may be separated by more than 19 calendar days. An employer may choose weekly, biweekly, or semi-monthly pay cycles — or any other interval the employer prefers — so long as every employee receives wages at least twice per month and no pay period spans more than 19 days. Common compliant schedules include weekly (7-day intervals), biweekly (14-day intervals), and twice-monthly (e.g., the 15th and the last day of the month, typically 15 or 16 days apart). A monthly pay schedule violates the statute absent a special agreement approved by the Commissioner of Labor.

Special agreement exception — Commissioner approval required. Under W. Va. Code § 21-5-1(f), a "special agreement" is an arrangement filed with and approved by the Commissioner of Labor whereby an employer is permitted, upon a compelling showing of good cause, to establish regular paydays less frequently than once every two weeks. However, even under a special agreement, the employee must be paid in full at least once each calendar month. The statute does not define "compelling showing of good cause," and the West Virginia Division of Labor has not published regulatory guidance elaborating the standard. Employers seeking less-frequent payment must file a written request with the Commissioner and obtain advance written approval; paying monthly without such approval exposes the employer to enforcement action and liquidated damages under W. Va. Code § 21-5-4(e).

Payment methods. Employers may satisfy the pay-frequency requirement by compensating employees in cash, by check, by direct deposit into a federally insured depository institution, by money order, or by deposit or electronic transfer into a payroll card account. W. Va. Code § 21-5-3(b) and § 21-5-4(a). Employers who compensate employees using payroll cards must provide full written disclosure of any applicable fees associated with the card, and the payroll card must comply with additional consumer-protection provisos set forth in subsection (b)(3).

No federal pay-frequency floor. The federal Fair Labor Standards Act does not impose a minimum pay frequency; it requires only that wages be paid "finally and unconditionally" at some regular interval. West Virginia's twice-monthly rule therefore operates independently and applies to all covered employers in the state, whether or not they are also subject to the FLSA.

Relationship to final-paycheck timing. The twice-monthly pay-frequency rule governs ongoing employment. When an employee separates from employment (whether discharged, quits, resigns, or is laid off), West Virginia law requires the employer to pay all wages due for work performed prior to separation on or before the next regular payday on which the wages would otherwise be due and payable. W. Va. Code § 21-5-4(b). That final-paycheck rule is covered separately in the final-paycheck-timing section of this guide.

Coverage. The pay-frequency requirement applies to all employers doing business in West Virginia, with no minimum-employee threshold. By contrast, West Virginia's minimum wage and overtime laws (W. Va. Code Article 21-5C) apply only to employers with six or more employees at a single location. An employer with fewer than six employees must still comply with the twice-monthly pay-frequency rule under Article 21-5.

Source: W. Va. Code § 21-5-3 Source: W. Va. Code § 21-5-1 Source: W. Va. Code § 21-5-4

West Virginia requires employers to make available at least twenty minutes for meal breaks during the course of a workday of six or more hours, at times reasonably designated by the employer. W. Va. Code § 21-3-10a. The statute applies to "all employers" and imposes no minimum-employee threshold or industry exclusions. Unlike the state's minimum wage and overtime laws (which cover only employers with six or more non-exempt employees at a single location under W. Va. Code § 21-5C), the meal-break requirement is universal.

The exception — when the break is not required. The twenty-minute meal break is required only "in all situations where employees are not afforded necessary breaks and/or permitted to eat while working." W. Va. Code § 21-3-10a. If an employer already provides employees with necessary breaks during the workday, or if employees are permitted to eat while working (for example, a receptionist who can eat at the front desk while monitoring incoming calls), the employer is not required to provide an additional twenty-minute meal break. The West Virginia Division of Labor has confirmed this interpretation on its official webpage: the meal-break requirement does not apply if the employee is already being given a lunch or rest break, or if the employee is allowed necessary bathroom breaks and is allowed to eat while working.

Employer control over timing. The statute grants the employer sole discretion to designate when during the workday the meal break is taken, so long as the timing is reasonable. Employees do not have the right to demand a meal break at a specific time; the employer sets the schedule.

Paid vs. unpaid — state law is silent; federal FLSA principles control. West Virginia Code § 21-3-10a does not specify whether the twenty-minute meal break must be paid or unpaid. In the absence of a state rule, federal Fair Labor Standards Act principles govern. Under 29 C.F.R. § 785.19, bona fide meal periods (typically thirty minutes or longer) are not compensable work time if the employee is completely relieved from duty for the purpose of eating regular meals. However, under 29 C.F.R. § 785.18, rest periods of short duration — running from 5 to about 20 minutes — are common in industry and must be counted as hours worked and paid as compensable time.

Because West Virginia's required meal break is exactly twenty minutes, it sits at the boundary of the FLSA's bright-line rule. The Division of Labor has not issued regulatory or interpretive guidance clarifying whether a twenty-minute break must be treated as a paid rest period (under the § 785.18 standard) or may be unpaid if the employee is completely relieved of duty (under the § 785.19 meal-period standard). Employers should consider treating the required twenty-minute break as paid time to avoid classification disputes, or provide a longer break (thirty minutes or more) that clearly qualifies as an unpaid meal period under federal law.

No state-law rest break requirement. West Virginia does not require employers to provide separate rest breaks (short breaks of five to twenty minutes for purposes other than eating). If an employer voluntarily provides rest breaks, those breaks must be paid under federal FLSA principles (29 C.F.R. § 785.18) because they are short breaks that promote employee efficiency. But West Virginia law does not mandate them.

Coverage. The meal-break statute imposes no employer-size threshold and contains no exclusions by industry or employee category. It applies to all private and public employers operating in West Virginia, including employers with fewer than six employees (who are not subject to the state's minimum wage or overtime laws). Federal employers are excluded by operation of W. Va. Code § 21-3-10a, which references "all employers" in the context of state labor regulation.

Enforcement. The West Virginia Division of Labor enforces the meal-break requirement. Employees who believe their employer has violated the statute may file a complaint with the Division. The statute itself does not specify penalties for non-compliance, but the Division of Labor has general enforcement authority under W. Va. Code Ch. 21, Art. 3.

Comparison to federal law. The federal Fair Labor Standards Act does not require employers to provide meal breaks or rest breaks of any duration. West Virginia's twenty-minute meal-break requirement therefore operates independently and creates a state-law obligation that exceeds the federal floor. Employers subject to both state and federal law must comply with the West Virginia rule for employees working in the state.

Source: W. Va. Code § 21-3-10a Source: W. Va. Division of Labor — Employee Meal Break Requirements Source: 29 C.F.R. § 785.18 Source: 29 C.F.R. § 785.19