WEST VIRGINIA State Laws by Topic AGE It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on age. In addition, employers cannot: elicit or attempt to elicit any information, make/keep a record of, or use any form or employment application containing questions or entries based on age; print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on age; and deny or limit, through a quota system, employment because of age. For the purposes of the Act, age means 40 years of age or older, and an employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year. AIDS Discrimination: Under the West Virginia Human Rights Act, HIV qualifies as a disability. In addition, employers are expressly prohibited from discriminating against an individual with AIDS or an AIDS-related virus. ARRESTS/CONVICTIONS Use of arrest or conviction records is prohibited unless an employer first obtains an applicant s consent. The West Virginia Pre-Employment Inquiry Guide deems an inquiry into arrest records as unlawful, and deems an inquiry into conviction records as advisable only if it is job-related. BREAKS Mandatory break time: A 20-minute meal break is required for each six hours employees work. Exceptions: Employees who can eat on the job, and employees who are provided with necessary breaks, need not be provided with meal breaks. Minors: Minors must be provided with a 30-minute meal break for each five hours they work.
BREAST-FEEDING No general provision. CHILD LABOR Click on the following link http://www.legis.state.wv.us/wvcode/code.cfm?chap=21& art=6 to access West Virginia s child labor law. CHILD SUPPORT Employers served with a child support order must begin withholding with the first pay period occurring after 14 days after the order is mailed. Amounts are remitted immediately. Notify the state agency promptly if the employee-obligor terminates. Up to 50% of an employee s employment-related bonus may be withheld to pay back child support. See jury duty. COURT ATTENDANCE DISABILITIES It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on blindness or disability. In addition, employers cannot: print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on blindness or disability; or deny or limit, through a quota system, employment because of blindness or disability. For the purposes of the Act, a person with a disability is defined as one who has a physical or mental impairment that substantially limits one or more major life activity, has a record of such an impairment, or is regarded as having such an impairment. An employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place, or in the preceding calendar year.
DRUG TESTING Under the state Workers Compensation law, if an employee claims to have been injured in the course of and resulting from his/her employment, an employer may require the employee to submit to a test to determine whether the employee is intoxicated. The employer must have a reasonable and good-faith suspicion of the employee s intoxication and may only test for the purpose of determining whether the person is intoxicated. The state recognizes same-sex marriage. FAMILIAL/MARITAL STATUS FAMILY/MEDICAL LEAVE Employee eligibility: The state s Parental Leave Act covers permanent state employees who have worked for at least 12 consecutive weeks performing services for remuneration within the state for any department, division, board, bureau, agency, commission or other unit of state government, or any county board of education in the state. Length of leave: Employees are entitled to 12 weeks of unpaid family leave following the exhaustion of all annual and personal leave during any 12-month period. Reasons for leave: Employees are granted leave for the birth of a child, adoption of a child, or to care for the employee s child, spouse, parent, or dependent who has a serious health condition. Notification: If a leave because of birth or adoption is foreseeable, employees must provide employers with a two-week written notice. If leave is foreseeable because of planned medical treatment or supervision, employees must: make a reasonable effort to schedule the treatment or supervision so as not to disrupt employers operations, subject to the health care provider s approval; and provide employers with a two-week written notice of the treatment or supervision. Benefits: Employers may not reduce or deny an employee s employment benefits or seniority because the employee took family leave. During family leave, employers must continue group health insurance coverage, but employees must pay employers the premium coverage costs. Reinstatement: Employees positions must be held open for the 12 weeks of parental leave, and employees must be returned to their positions. Temporary employees may be used to fill the positions for the leave period.
GENETIC TESTING No provisions specified in the general employment context. HEALTH CARE CONTINUATION COVERAGE Continuation coverage requirements generally apply to employers that have from two through 19 employees. Eligible employees have the right to continue coverage for up to 18 months. Click on the following link http://www.legis.state.wv.us/wvcode/code.cfm?chap=33&art= 16#16 to access the state code. JURY DUTY It is unlawful for employers to fire, threaten to fire, or discriminate against with regard to wages employees who are summoned for jury duty or serve as jurors. Employees do not have to be paid for the time they are actually absent from work for jury service. LIFESTYLE DISCRIMINATION It is unlawful for an employer to refuse to hire, or otherwise discriminate or penalize an employee in compensation, terms, conditions, or privileges of employment solely because the person uses tobacco products off the employer s premises during non-working hours. Exception: A nonprofit employer whose purpose is to discourage the use of tobacco. It is not a violation for an employer to offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions among employees for type or price of coverage based on the use of tobacco products, as long as: 1) any differential employee premium rates reflect differential costs to the employer, and 2) the employer gives workers a statement delineating the differential rates used by its insurance carrier. No state-specific notification provision. MASS LAYOFF NOTIFICATION MEDICAL DONATION LEAVE Full-time state employees are entitled to receive up to 120 hours of paid leave during each calendar year to use for a kidney or liver donation, and up to 56 hours of paid leave during each calendar year for a bone marrow donation.
MILITARY LEAVE Members of the U.S. Armed Forces reserves or National Guard are entitled to up to 30 working days of military leave per calendar year without loss of pay, status, or efficiency rating. Reinstatement: Employees are entitled to the same protections under state law as they are under federal law. MINIMUM WAGE Minimum hourly wage/overtime rate: $7.25/$10.88; $8/$12, beginning January 1, 2015; $8.75/$13.13, beginning January 1, 2016. Basis for overtime: Over 40 hours/week. Opportunity wage for under 20-year-olds: $5.15; $6.40, beginning January 1, 2015. Note: The state bases its minimum wage on the federal minimum wage. The state minimum may exceed federal minimum wage by a stated amount or percentage, or be adjusted to reflect cost of living increases. NATIONAL ORIGIN It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on national origin and ancestry. In addition, employers cannot: elicit or attempt to elicit any information, make/keep a record, or use any form or employment application containing questions or entries based on national origin and ancestry; print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on national origin and ancestry; and deny or limit, through a quota system, employment because of national origin and ancestry. For the purposes of the Act, an employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place, or the preceding calendar year. NEW-HIRE REPORTING Data to be reported: Employee s name, address, SSN, date of birth, first day of work; employer s name, address, federal EIN; also report employees who are terminated; employers may charge the employee a $1 processing fee.
Employers must report as new hires former employees who are rehired after a continuous separation of at least 60 days. Employers that anticipate paying independent contractors at least $2,500 must report them to the state directory of new hires. Reporting deadline/form: Within 14 days of hire or reinstatement; on W-4s or through the state s website. OVERTIME Basis for overtime: Over 40 hours in a workweek. Information required: Itemized deductions. PAY STATEMENTS No provision. PERSONNEL FILES POLYGRAPH TESTING No employer may require or request, either directly or indirectly, that any current or future employee submit to a polygraph, lie detector, or other such similar test utilizing mechanical measures of physiological reactions to evaluate truthfulness. No employer may knowingly allow the results of any such examination or test administered outside this state to be utilized for the purpose of determining whether to employ a prospective employee or to continue the employment of a current employee. Permitted testing: The prohibitions of the polygraph testing law do not apply to employees of an employer authorized to manufacture, distribute, or dispense drugs, excluding ordinary drugs. The results of any such examination must be used solely for the purpose of determining whether to employ or to continue to employ any person exempted under the provisions and for no other purpose. POSTING REQUIREMENTS Unemployment Benefits All employers Workers Compensation All employers Minimum Wage All employers
Discrimination All employers Wage Payment & Collection All employers Parental Leave All employers Meal Breaks All employers Child Labor Laws Recommended for all who employ youth under 18 Fair Housing Recommended for all businesses engaged in the sale or rental of real property PREGNANCY Accommodations: Unless there s an undue hardship, employers that have at least 12 employees on the payroll for 20 or more weeks during the current or preceding year must offer employees or job applicants reasonable accommodations on account of pregnancy, childbirth, or related medical conditions. Employees or job applicants must present documentation from their health care providers specifying employees limitations and suggesting appropriate accommodations. Employers can t discipline employees or job applicants who ask for reasonable accommodations, require them to accept an accommodation, or require them to take leave under any leave law or policy if another reasonable accommodation can be provided. See family/medical leave. RACE It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on race or color. In addition, employers cannot: elicit or attempt to elicit any information, make/keep a record, or use any form or employment application containing questions or entries based on race or color; print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on race or color; and deny or limit, through a quota system, employment because of race or color. For the purposes of the Act, an employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year. REFERENCES References: An employer who discloses job-related information about a former/current employee to a prospective employer is presumed to be acting in good faith and is immune from civil
liability for the disclosure or its consequences. The disclosure of job-related information must be in writing and a copy must be provided to the employee who is the subject of the disclosure. The presumption of good faith and, therefore, the immunity is lost if clear and convincing evidence show that the information disclosed was: 1) knowingly false; 2) disclosed with reckless disregard for the truth; 3) deliberately misleading; 4) rendered with malicious purpose toward the employee; or 5) disclosed in violation of a non-disclosure agreement or applicable law. If an employer discloses to a prospective employer job-related information that was false or misleading and the employee asks the employer to correct it, the employer must give the corrected information to every person or entity that is in the employer s records as having received the original information. RELIGION It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on religion. In addition, employers cannot: elicit or attempt to elicit any information, make/keep a record, or use any form or employment application containing questions or entries based on religion; print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on religion; and deny or limit, through a quota system, employment because of religion. For the purposes of the Act, an employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year. No provision. REPORTING PAY SAFETY Click on the following link http://www.wvlabor.com/newwebsite/pages/index.html to access the West Virginia Division of Labor home page, which includes a link to the safety section and the OSHA Onsite Consultation Program. No provision. SCHOOL VISITATION LEAVE
SEX DISCRIMINATION It is an unlawful employment practice, under the West Virginia Human Rights Act, for employers to discriminate against an individual based on sex, unless a bona fide occupational qualification exists. In addition, unless a bona fide occupational qualification exists, employers cannot: elicit or attempt to elicit any information, make/keep a record, or use any form or employment application containing questions or entries based on sex; print, publish, or cause to be printed or published an employment notice or advertisement indicating a preference, limitation, specification, or discrimination based on sex; and deny or limit, through a quota system, employment because of sex. For the purposes of the Act, an employer is defined as a person employing 12 or more individuals within West Virginia for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year. SEXUAL HARASSMENT The West Virginia Supreme Court of Appeals (Westmoreland Coal Co. v. Human Rights Commission, No. 382 SE2d 562, 1989) held that sexual harassment is a form of discrimination prohibited by the West Virginia Human Rights Act and decisions of the federal courts. The Act affords employees the right to work in an environment free from discriminatory intimidation, ridicule, or insult. Employers are encouraged to take all steps necessary to prevent sexual harassment, which is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature from any person directed towards, or in the presence of, an employee or applicant when: submission to the conduct is either explicitly or implicitly a term or condition of the individual s employment; submission to or rejection of the conduct by the individual is used as the basis for employment decisions affecting the individual; or such conduct has the purpose or effect of unreasonably interfering with the individual s work performance or creating an intimidating, hostile, or offensive working environment. Note: Harassment is not necessarily confined to unwanted sexual conduct. Hostile or physically aggressive behavior may also constitute sexual harassment if the disparate treatment is based on gender. Employers are responsible for acts of sexual harassment by supervisors regardless of whether the complained-about acts were authorized or even forbidden, and regardless of whether the employer knew or should have known of their occurrence. Employers are responsible for acts of
sexual harassment by co-workers and non-employees if they knew or should have known of the harassment and failed to take immediate remedial action. No provision. SEXUAL ORIENTATION DISCRIMINATION SMOKING Smoking is prohibited in public buildings, offices, and other spaces leased or owned by the state, except in designated smoking areas. Smoking areas must be ventilated so as to create a smoke-free environment in non-smoking areas. If a smoke-free environment cannot be created, smoking must be prohibited entirely. See also lifestyle discrimination. SOCIAL SECURITY NUMBER PRIVACY Employers that maintain computerized data that includes personal information (e.g., Social Security numbers) shall, following discovery of a breach in the security of the system containing such data, notify as soon as practicable anyone whose personal information might have been compromised. UNEMPLOYMENT INSURANCE Click on the following link http://www.wvcommerce.org/business/workforcewv/ unemployment_compensation/default.aspx to access the West Virginia Unemployment Compensation Division home page. To access a handbook explaining employers rights and responsibilities under the West Virginia Unemployment Compensation Law, click on http://www.wvcommerce.org/app_media/assets/doc/businessandworkforce/workforcewv/ unemploymentcompensation/employers/employer_handbook_revised_11_16_10.pdf. VACATION PAY UPON TERMINATION Accrued fringe benefits aren t considered to be part of final wages and may, therefore, be paid at a time agreed upon by the employer and employee. VIOLENCE All state employers must abide by the Worksite Security Policy, which states violent and threatening behavior will not be tolerated.
VOTING Employees are permitted up to three hours off to vote, provided they do not have three consecutive hours of non-work time while the polls are open and have provided proper written notice. For employees providing services in government, health care, hospitals, transportation, communications, production, manufacturing, and processing works requiring continuity in operation, the employer may specify which hours may be taken off to vote. Wages: Leave will be paid. Notification: Employees must provide at least three days written notice prior to Election Day of the need for time off to vote. WAGE DEDUCTIONS Lawful deductions include amounts required by law to be withheld, and amounts authorized for union or club dues, pension plans, payroll savings plans, credit unions, charities, and hospitalization and medical insurance. Any officer or employee of West Virginia may authorize a voluntary wage deduction for the payment of membership dues or fees to an employee association and/ or for any supplemental health and life insurance premium. Deductions must be authorized on a form provided by the state auditor, stating the identity of the employee, the amount and frequency of the deductions, and the identity and address of the association or insurance company to which the dues or premiums are to be paid. Deductions may be revoked at any time 30 days prior to the date on which the deduction is regularly made. Revocations are also made on a form provided by the state auditor. WAGE GARNISHMENT The lesser of 20% of disposable weekly pay, or the amount by which disposable weekly pay exceeds 30 times the federal minimum wage in effect during the week the garnishment is to occur, may be withheld. Employers may not terminate an employee because his/her disposable pay is subject to a creditor garnishment. Employee who quits: Next payday. WAGE PAYMENT ON TERMINATION Employee who s fired: Next regular payday. Payday requirements: At least biweekly. WAGE PAYMENTS
Direct deposit: Employers may not require employees to be paid electronically. Employee consents in writing. WHISTLEBLOWING Public employers are prohibited from discharging, threatening, or otherwise discriminating or retaliating against an employee with respect to compensation, terms, conditions, location, or privileges of employment because an employee, acting on his/her own volition, or a person acting on behalf of or under the direction of the employee: 1) makes a good-faith report, verbally or in writing, to the employer or appropriate authority in an instance of wrongdoing or waste, or 2) is requested to testify or is subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry held by an appropriate authority, or in a court action. WORK AUTHORIZATION It is unlawful for any employer to knowingly employ, hire, recruit, or refer, for the employer or on behalf of another, an individual not authorized to be employed by federal law. An employer is defined as any individual, person, corporation, department, board, bureau, agency, commission, division, office, company, firm, partnership, council or committee of the state government, public benefit corporation, public authority or political subdivision of the state, or other business entity that employs individuals. In addition, employers shall verify a prospective employee s legal status or authorization to work prior to their first day of employment or entering into a contract with the individual for employment services. Proof of legal status or authorization to work includes, but is not limited to: a valid Social Security card; a valid immigration or non-immigration visa, including photo identification; a valid birth certificate; a valid passport; a valid photo identification card issued by a government agency; a valid work permit or supervision permit authorized by the Division of Labor; a valid permit issued by the Department of Justice; or other valid document providing evidence of legal residence or authorization to work in the United States. These records are to be maintained by employers for a period of at least two years after the employee has separated from employment. Note: Failure to keep records on each employee as described above constitutes a separate offense. If the commissioner issues a notice to an employer to produce employment status verification records or documents, the employer has up to 72 hours to produce the records or risks receiving a citation. Any employer that willingly and knowingly fails to maintain records is guilty of a misdemeanor and may be fined up to $100 per offense. WORKERS COMPENSATION Click on the following link http://www.wvinsurance.gov/default.aspx?tabid=73 to access the West Virginia Workers Compensation Commission home page for employers.