Employee Rights in West Virginia
What are our legal rights at work in West Virginia? When we work for someone else, a person, a company, or the government, for wages we have certain rights. Generally, they fall into categories of payment of wages, benefits, a safe work environment, a right to organize, and the obligation of the employer to refrain from discriminatory actions.
Wages:
Minimum Wage and Overtime. Employers are required to pay wages to employees. Most employers must pay the minimum wage, which is currently $8.75 an hour in West Virginia. In addition, employers of six or more people must pay overtime 1 1/2 times the employee's regular pay rate for hours worked more than 40 in a workweek. The only employees exempt from this requirement are executive, administrative, and professional employees. Employers should consult with the West Virginia Division of Labor or with a lawyer to ensure that the employee meets all three requirements to be eligible for this exemption.
Timely Payments. Employers are also required to pay wages in a timely fashion, generally at least two times per month.
Violations. In addition to seeking redress through mediation or litigation, an employee may request assistance from the Wage and Hour section of the West Virginia Division of Labor at no cost to the employee. Information is located here: https://labor.wv.gov/Wage-Hour/Wage_Collection/Employees/Pages/RFA.
No requirement for Benefits:
Benefits such as holiday pay, paid time off, vacation pay, and sick leave are not required in West Virginia. However, when an employer chooses to provide such benefits, that employer is responsible for establishing a written policy outlining how those benefits are earned and paid.
Prohibition on Discrimination:
Employers have broad discretion in making employment decisions. However, they are not permitted to make employment decisions based on discriminatory reasons. These include race, color, religion, age over 40, color, ancestry, national origin, blindness, or disability. Decisions on hiring, promotions, and termination cannot be discriminatory. In addition to pursuing mediation and litigation, employees who believe that this discrimination has occurred may file a complaint with the EEOC or the West Virginia Human Rights Commission. To obtain a complaint from the Human Rights Commission, visit https://hrc.wv.gov/LINKS/Pages/ComplaintForms.aspx.
Organizing and Forming Unions: Employees often improve their working conditions, benefits, and wages when organized as a group. Under federal law, they have the right to form a union. Even without a union, employees often have the right to coordinate efforts to improve working conditions. When an employer interferes with this right, employees can file a complaint online directly with the National Labor Relations Board https://apps.nlrb.gov/MyAccount/#/ChargeAndPetition/TermsConditions. They may also work with the employer in mediation to resolve the difference.
Rights regarding termination: West Virginia is an "employment-at-will" state. An employer can fire any employee who does not have a contract or collective bargaining agreement for any reason, or no reason, so long as the reason is not discriminatory. If there is a collective bargaining agreement or a contract, the employee can only be terminated according to the agreement. In West Virginia, the employee has the burden to prove that they have a written or oral employment contract. When a disagreement about termination arises, both mediation and litigation are options to resolve the conflict.
Safe workplace: All employees should enjoy a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) requires employers to provide employees with working conditions free of known dangers. OSHA covers most private sector employers and workers in West Virginia. When employees believe that the employer is failing to provide a safe workplace, they may file a complaint directly with OSHA online at https://www.osha.gov/workers/file-complaint.
Compensation after injury: When workers are injured at work, they usually cannot pursue a civil action against their employer unless the employer demonstrates a deliberate intent to create the risk. Workers' compensation provides workers with payment of lost wages and medical expenses when injured. Previously, the state government administered workers’ compensation. Still, it is now provided according to an insurance policy that the employer must maintain. Therefore, a complaint about workers' compensation should be pursued through that insurance company. When the claim is denied, employees often retain a lawyer to seek to enforce coverage.
The bottom line? Workers may not enjoy the depth of rights they did when many workers belonged to unions and could negotiate benefits with employers and pressure legislatures to increase the worker protections provided by law. However, many of these rights remain, and many can be enforced directly through a state or federal agency. In other situations, the rights can be addressed through workplace mediation. And in the situations when these options are not available, litigation may provide an opportunity for an employee to determine if a right has been violated and can be compensated.