A Rule We Often Forget

Obviously many county school systems are beginning the process of educating themselves on the changes found in Senate Bill 359. Some of the major changes that will be new for all are found in West Virginia Code 18A-4-7a, relating to the hiring of professional employees (we no longer get to say “1st Set of Factors and 2nd Set of Factors”). However, the purpose of this educational alert relates to statutory changes that impact the termination of employees, both service and professional.

Unfortunately, often times we find ourselves having to terminate an employee for misconduct or failure to improve performance. As we all know, the termination of a county board of education employee, for cause, is found in West Virginia Code 18A-2-8.

An issue that we often overlook, and an issue many are unaware of, is what I call the “72 Hour Rule” found in West Virginia Code 21-5-4. That is, a board of education/employer must pay a terminated employee’s wages within 72 Hours of termination. If payment is not made within 72 Hours, the board of education/employer is liable to the employee for three times that unpaid amount as liquidated damages. Over the past several years there have been a large number of lawsuits filed by disgruntled terminated employees seeking recover of three times their final paycheck simply because the final wages were not issued within 72 Hours of termination. And, the West Virginia courts have ruled in favor of the disgruntled terminated employee, and awarded treble damages along with attorney fees.

The purpose of this educational alert is to update administrators/payroll on recent legislative changes to the 72 Hour Rule.

Senate Bill 355 was approved by the Legislature, amending the 72 Hour Rule. The statutory language now waiting for the Governor’s signature is as follows:

Whenever a person, firm or corporation discharges an employee, such person, firm or corporation shall pay the employee's wages no later than the next regular payday or four business days, whichever comes first. Payment shall be made through the regular pay channels or, if requested by the employee, by mail. For purposes of this section, “business day” means a day on which state offices are open for regular business.

It is important to note that when Senate Bill 355 becomes effective, the treble damages still remain should the employer fail to pay wages within the time set forth above. So it is important to ensure timely payment of final wages to terminated employees following acceptance of termination by the board of education.