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What are the requirements relating to advertising open positions?


Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

West Virginia law does not prohibit an employer from seeking access to information concerning an applicant’s or employee’s criminal conviction or arrest record. 

(b )Medical history

The Human Rights Act adopts the terms of the Americans with Disabilities Act regarding the timing of subjecting an employee to a medical examination, including solicitation of medical history.

(c) Drug screening

Coal industry employees may be subjected to drug testing during the course of their employment. Otherwise, drug testing is permissible:

  • on a post-offer, pre-employment basis;
  • where there is a reasonable good-faith objective suspicion that an employee is presently under the influence; or
  • where the employee works in a safety-sensitive position.

Thus, the only permissible “random” drug testing is for safety-sensitive employees.   

(d) Credit checks

Credit checks are permissible.

(e) Immigration status

No state-specific limitations exist.   

(f) Social media

No state-specific limitations exist.

(g) Other


Wage and hour

What are the main sources of wage and hour laws in your state?

The Wage Payment and Collection Act (applies to all employers) and the Minimum Wage and Maximum Hours Act (applies to employers with six or more employees).

Overtime requirements apply unless 80% of the employer’s employees are subject to the Fair Labor Standards Act, which means that most West Virginia employers are exempt.

What is the minimum hourly wage?

The minimum wage is $8.00 per hour, increasing to $8.75 per hour on January 1 2016. The state minimum wage law applies to all employers with six or more employees. 

What are the rules applicable to final pay and deductions from wages?

Employers must pay discharged employees their wages in full (including accrued fringe benefits capable of calculation) by the next regularly scheduled payday. Employees who quit or are laid off must receive their final pay by the next regularly scheduled payday. The Wage Payment and Collection Act prohibits certain deductions from pay without a notarized wage assignment. Legal deductions (e.g., those for taxes, pension plans, union dues, healthcare premiums, hospitalization, charitable contributions, and payroll savings plans) do not require a notarized wage assignment. 

Hours and overtime
What are the requirements for meal and rest breaks?

During a workday of six or more hours, West Virginia law requires employers to give employees a 20-minute meal break at a reasonable time, unless the employer otherwise provides breaks to employees or allows them to eat while working. Federal law governs the compensability of breaks. Short breaks of between five and 20 minutes are generally deemed compensable.

What are the maximum hour rules?

State overtime law is the same as federal law, in that non-exempt employees working more than 40 hours per week must be compensated at a rate of one-and-a-half times their regular rate for the extra hours. The state law applies to employers with six or more employees, unless the Fair Labor Standards Act covers 80% of their employees.

Under the state law, employers are free to set the amount of working time required and may require overtime or decline to offer it at all. Children under 14 years of age are generally prohibited from working (except for agricultural or domestic work, employment by a parent or legal guardian, as an actor or performer, or as a newspaper delivery worker). Children under 18 years of age are prohibited from working in mining and other dangerous occupations.

How should overtime be calculated?

Most West Virginia employers are subject to federal overtime law. In any event, state law is the same as federal, requiring that non-exempt employees be paid one-and-a-half times their regular rate of pay for any time worked over 40 hours in a working week. 

What exemptions are there from overtime?

Most West Virginia employers are subject to federal overtime law, including exemptions from overtime requirements. To the extent that state law applies, it provides exemptions for individuals employed in bona fide professional, executive, or administrative capacities. 

Record keeping
What payroll and payment records must be maintained?

According to the Wage Payment and Collection Act, an employer shall maintain payroll and employment records during an employee’s employment and for a period of no less than five years from the date on which each record was created. An employee’s written record must contain the following information:

  • the employee’s full name or identifying symbol or number in place of a name on any record;
  • the employee’s social security number;
  • the employee’s home address;
  • the employee’s date of birth, if under 18;
  • the employee’s occupation, title, or job classification;
  • the employee’s rate of regular pay and overtime pay, if applicable;
  • the hours worked each working day by the employee and the total hours worked each working week by the employee; and
  • documentation of the employee’s legal status or authorization to work.

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