By Kaitlin L. Hillenbrand
The minimum wage bill passed by the West Virginia Legislature during the session’s final hours will have much broader effect than lawmakers may have intended. If the Governor signs the bill into law, it will have far-reaching consequences for West Virginia employers regarding overtime pay, not just the minimum wage. In particular, the bill would force virtually all West Virginia employers to pay overtime based on West Virginia law rather than based on federal law like they currently do. The result would be that employers would have to pay overtime to some employees who are exempt from overtime pay under federal law but not under West Virginia law.
The cause of this change is that the bill amends West Virginia’s Minimum Wage and Maximum Hours Law, West Virginia Code Section 21-5C-1 et seq., in a way that causes its provisions to apply to virtually all West Virginia employers, most of which are not subject to the current version of the law. The provisions of Section 21-5C-1 et seq.currently do not apply to employers if 80 percent or more of their employees are subject to a federal law relating to minimum wage, maximum hours, and overtime compensation. Section 21-5C-1 et seq. has been interpreted to apply mainly to West Virginia government employees, as other employees are nearly all subject to the federal Fair Labor Standards Act (FLSA). House Bill 4283 would amend Section 21-5C-1 et seq. so that it applies to all West Virginia employers with six or more employees, whether or not their employees are subject to a federal wage/hours/overtime law such as the FLSA.
The consequences of this change are not yet fully understood. This is largely due to the fact that no one has paid much attention to the West Virginia overtime provisions because, up to now, they have not applied to any West Virginia employers other than the state government. The West Virginia regulations are fourteen pages long and have not been updated since 1982, whereas the FLSA’s regulations are hundreds of pages long and were updated in 2004. Therefore, we can expect the West Virginia regulations to be behind the times in comparison. Additionally, the way overtime is calculated (that is, the determination of whether an employee has worked overtime) is not always the same under federal and West Virginia law.
Just as an example of the differences, both the FLSA and West Virginia law have certain “white-collar exemptions” for professional, administrative, and executive employees, but the definitions of these types of employees is different in the federal and state regulations. Additionally, the FLSA provides exemptions for computer employees (computer systems analysts, programmers, software engineers, and so on), outside sales employees, seasonal employees, and others that the West Virginia regulations do not exempt (West Virginia does have exemptions for summer camps and whitewater outfitters, though).
Most West Virginia employers will be affected if House Bill 4283 is signed into law. Employees who are exempt under the FLSA may not be exempt under West Virginia law. Even if they are currently exempt under the FLSA, any employees not exempt under West Virginia law and regulations would have to be paid overtime if the bill becomes law.
The bottom line is that, if House Bill 4283 is signed into law, all employers will need to reevaluate which of their employees are exempt from having to be paid for overtime work. The effect on each employer will depend on how many of its employees are exempt from overtime pay under federal law, and how many of those will remain exempt under West Virginia law. Any employees who are no longer exempt would have to be paid overtime compensation for work in excess of 40 hours per week.
About the Author
Kaitlin L. Hillenbrand began working at Steptoe & Johnson as a summer associate in 2011, and her practice focuses in the area of labor and employment. She holds degrees from West Virginia Wesleyan College, West Virginia University and the University of California – Riverside. During her time at West Virginia University, she served as the senior research editor of the West Virginia Law Review, and she has received CALI Awards in legal research and writing, contracts, appellate advocacy and lawyers and legislation seminar.
