United States: West Virginia DOL Withdraws Proposed Emergency Wage And Hour Regulations

In welcome news for employers, the West Virginia Department of Labor (WVDOL) has withdrawn a set of emergency regulations that would have significantly revamped state wage and hour requirements and created conflicts with federal wage and hour regulations. The WVDOL proposed the regulations to West Virginia's Secretary of State on November 19, 2014 and requested they take effect on January 1, 2015, giving employers little time to respond to the proposal or develop compliance strategies. Despite the eleventh-hour approach used by the WVDOL, employers mounted a focused response analyzing the various flaws in the proposed regulations, which in many instances were vaguely worded, inconsistent with decades-long practices under federal and state law, and beyond the WVDOL's legislative mandate to amend existing regulations.

In response to these well-founded concerns, Acting WVDOL Commissioner John R. Junkins withdrew the proposed regulations on December 23. In his letter to the Secretary of State, Junkins stated that the WVDOL will submit an amended set of regulations at the next regular legislative session (which is set to convene on January 14) rather than seek an emergency enactment through the Secretary's office. As a result, the WVDOL's withdrawal may only represent a temporary reprieve for employers in West Virginia. Although the WVDOL intends to amend the regulations it will submit to the legislature, employers operating in West Virginia should familiarize themselves with the recently withdrawn regulations, which may provide a useful roadmap for the types of changes the WVDOL is contemplating.

The following is a brief description of the most significant changes to existing wage and hour regulations proposed in the WVDOL's withdrawn regulations:

Determination of Compensable Time

Preliminary and Postliminary Activities

Under the federal Fair Labor Standards Act (FLSA), employers are not required to pay employees for preliminary and postliminary activities that occur before or after performance of the employees' "principal activities."1 The WVDOL's proposed regulations would have expanded the types of activities occurring at the start and end of workdays for which employers must compensate employees.

The proposed regulations would have required employers to pay "the time an employee spends in preparing to begin work at his or her place of employment, or in preparing to leave work at his or her place of employment, such as changing clothes or washing, when such activities are an indispensable part of his or her work, are required by law or by the employer, required by contract, or are the custom and usage of a particular trade." The language concerning "activities [that] are an indispensable part of his or her work" may not represent a significant deviation from federal law, which already considers whether an activity is "integral and indispensable" to a principal activity in determining whether it is compensable.2 However, the proposed language that would make all activities compensable that are "required by the employer" represents a striking departure from federal law and the longstanding approach under West Virginia law.3 By its plain language, the proposed regulation would have required employers to pay employees for all time spent performing preparatory tasks such as donning and doffing of uniforms or protective equipment at an employer's place of business, waiting to clear security checkpoints, and booting up computers, so long as these activities are deemed to be "required" and regardless of whether they are integral and indispensable to the employee's primary duties. Such regulation would represent a significant expansion of compensable preliminary and postliminary activities.

Break Time

Federal regulations provide that bona fide meal periods of 30 minutes or more do not constitute compensable work time if the employee is completely relieved from duty and is free to leave his or her work area.4 Federal regulations further provide that a break of less than 30 minutes may be long enough to constitute a bona fide meal period under "special circumstances" and set the floor for uncompensated breaks at 20 minutes.5 Accordingly, breaks that last between 20 to 30 minutes may be unpaid under certain circumstances.

The WVDOL's proposed regulations would have removed the flexibility provided under the federal rules and required employers to pay employees for any break that does not last at least 30 minutes. This proposed regulation ignores the reality of many work environments, where employers cannot monitor the duration of employees' breaks to the minute, and creates the potential for costly litigation in circumstances where employees themselves may have chosen to return to work a minute or two early without the employer's knowledge or consent.

On-Call Time

The WVDOL's proposed regulations would also have expanded the scope of compensable on-call time. Under federal law, the compensability of on-call time often is determined on a case-by-case basis. Federal regulations make clear that an employee is entitled to compensation if required to stay on the employer's premises while on call.6 Otherwise, courts generally assess whether an employee is entitled to be paid for being on-call by determining whether such employee is able to use the on-call time for his or her own purposes. By contrast, the WVDOL's proposed regulations would have required employers to pay employees not only for on-call time spent at the employer's premises, but also for on-call time spent "in close proximity" to the premises or "at his or her home" if the employee "is not free to use the time as he or she wishes." This vaguely worded language expands the scope of compensable on-call time without giving employers any concrete notion of where the WVDOL has drawn the "compensability" line. For example, what is meant by the term "close proximity," and what determines whether an employee "is free to use the time as he or she wishes" is unclear. As a result, had the proposed regulation taken effect, employers would be left to guess when they should be paying employees for on-call time.

Sleep Time

Under the FLSA, when employees are on duty for periods of 24 or more consecutive hours, employers are permitted to treat eight hours as non-compensable sleeping time so long as the employee "can usually enjoy an uninterrupted night's sleep."7 As a practical matter, for the sleep period deduction to apply under federal law, the employee must get at least five hours of uninterrupted sleep.8 Accordingly, federal law does not require that the employee receive an uninterrupted eight hours of sleep. West Virginia has long followed a similar approach, using the same language as the federal regulations – i.e. "can usually enjoy an uninterrupted night's sleep."9

By contrast, the proposed regulations would have required employers to pay for all sleeping time unless the employee receives "8 hours of uninterrupted sleep in adequate sleeping quarters provided by the employer." If the employee is interrupted at all during the eight-hour sleep period, even if only for a few minutes, the entire deduction is forfeited. This represents a significant departure from both the federal practice and existing state practice in West Virginia and would make it far more difficult for employers to claim bona fide sleep periods to limit labor costs.


The proposed regulations do not differ substantively from federal law on rounding employees' time. Both permit employers to use rounding systems so long as the rounding does not work exclusively to the benefit of the employer. However, the proposed regulations would have required employers to establish written policies setting forth the interval of time used for rounding, which cannot exceed 15 minutes, and explaining how the rounding system works.

Employer Credits Toward the Minimum Hourly Wage

Tip Credit

Starting January 1, 2015, the minimum wage in West Virginia will be $8.00 per hour (and employers will no longer be exempt from this minimum wage when 80% of the employer's workforce is covered by the FLSA). West Virginia permits employers to take a tip credit equal to 70% of the minimum wage for "employee[s] customarily receiving gratuities."10 As such, employers will be able to take a tip credit of $5.60 per hour under state law. By contrast, the FLSA establishes a minimum wage of $7.25 per hour and allows a maximum tip credit of $5.12 per hour.11

In the proposed regulations, the WVDOL sought to clarify how the tip credit would be applied. The WVDOL began by distinguishing among: (1) "service employees," who customarily receive tips or gratuities in connection with their work; (2) "non-service employees," who do not customarily receive tips or gratuities in connection with their work; and (3) "dual job employees," who perform work both as a service and a non-service employee for the same employer. Under the proposed regulations, a dual job employee would have had to be paid the full minimum wage for all hours worked as a non-service employee. Additionally, when service employees spend more than 20% of their time during the workweek performing non-tips duties (e.g., cleaning or setting tables, making coffee), they would have had to be paid the full minimum wage for time spent performing these duties. These rules generally track federal requirements.12

The regulations further specify that, to claim a tip credit, employers would have had to maintain written tip records completed by an employee. Employee tip reports would have had to have been signed and dated by the employee and state the time period in which tips were received, the amount of cash, credit and debit card tips received, the amount of tips paid out, and the employee's net tips. IRS Form 4070 (Employee's Report of Tips to Employer), Form 4070A (Employee's Daily Record of Tips), or any other form containing the required information could have been used under the proposal. Additionally, employers would have had to keep record of time worked by a dual job employee as a service employee. Although state law, unlike its federal counterpart, does not contain a tip credit notice requirement,13 employers that do not provide tip credit notice expose themselves to liability under the FLSA as well as state law, which requires that employees receive written notice of their pay rate when employment begins.14 Accordingly, tip credit notice should be provided, preferably in writing.

The proposed regulations also cover tip pooling and sharing, which was not previously addressed by existing regulation. If an employer permits tip sharing or pooling, it would have had to divide shared or pooled tips among only service and dual job employees working as service employees, and ensure employees individually document the amount of tips paid out. An employer would not have been able to receive any shared or pooled tips. These rules are largely consistent with federal requirements, which permit pooling among tipped employees but prohibit including non-tipped employees in a tip pool.15

Meal & Lodging Credit

West Virginia allows employers to apply the costs of meals and lodging provided to employees towards meeting their minimum wage obligations.16 Under the proposed regulations, the meal credit would have increased from $1.00 to $4.00 per day if an employer makes meals available to an employee and the employee eats an available meal and works at least 8 hours in a work day. If an employee works less than 8 hours and eats an available meal, the credit would have increased from $.125 to $.50 per hour. Additionally, the regulations specify a meal credit cannot be applied if an employee does not eat a meal. Notably, the proposed regulations would have eliminated existing provisions related to employees with dietary problems or on paid leave.

The proposed regulations contain numerous changes to the lodging credit. In addition to being adequate, living quarters would have had to be habitable. Hot and cold running potable water would have been necessary, compared to the existing requirement of merely water. Toilet facilities and space for bathing would have had to be included, not just space for toilet purposes. Additionally, the rule would have continued to require heat, light, and space for cooking and sleeping. The maximum credit is essentially the same: one-third of the minimum wage, instead of 33 percent.


The proposed regulations contain slight wording changes to existing rules concerning uniform costs and laundering. Specifically, they provide that an employer would not be able to take a credit against employee wages for uniform costs and laundering if it requires employees to wear a uniform. Currently, the rule provides that a credit cannot be taken where the nature of the business requires an employee to wear a uniform, which is generally consistent with federal law.17 The proposed regulation did not, however, define what constitutes a uniform. Although federal rules concerning uniforms are not among the numerous federal regulations adopted and incorporated by reference into the proposed regulations, the federal rules, along with U.S. Department of Labor opinions and enforcement materials, may at the very least act as a guide for how West Virginia labor officials interpret their rule; at a minimum, they can be used by employers to understand their FLSA obligations.

Criteria for Student Workers and Volunteers

Student Workers

The proposed regulations would also have affected student workers. Individuals who qualify as "full-time students" would have been exempt from state minimum wage and overtime requirements if they: (1) are enrolled full-time in a school or college; and (2) work no more than 24 hours in a workweek. The proposed regulations defined "full-time student" as a student enrolled in sufficient courses to be treated as full time by his or her institution. By contrast, West Virginia's existing regulations provide that "student workers" are exempt from minimum wage and overtime requirements. A "student worker" is defined as "an individual who has matriculated and participates in regular and prescribed courses at any recognized school, college or university." Accordingly, the proposed regulations would have changed state law by narrowing the student worker exemption to exclude part-time students.

Additionally, if the employer employs a full-time student for more than 24 hours in a workweek, the proposed regulations would have required the employer to pay the student at least the minimum hourly wage for all hours worked and pay the student overtime for all hours worked over 40 in a workweek.


The proposed regulations addressed volunteers in two contexts. First, the regulations would have prohibited employers from requiring or permitting an employee to volunteer his or her services in any activity that is a normal and regular part of the employee's job duties. This is fairly consistent with federal law, which likewise prohibits employers from essentially coercing employees to work for free under the rubric of "volunteering."

The regulations would also have incorporated and adopted federal wage and hour regulations governing employees of state and local governments who would like to volunteer their services to other organizations. The federal regulations define a "volunteer" in this context as "an individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered."18 The federal regulations also state that "[i]ndividuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer."19 Notably, the regulations state that "an individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer."20 Accordingly, public employees would not have been able to "volunteer" their time to perform the types of services they normally perform for compensation.

Taken as a whole, these provisions concerning volunteers would largely have served to bring state law into line with federal law and likely would not have been as burdensome as many of the other provisions contained in the proposed regulations.


Employers scored a significant, though perhaps temporary, victory in securing the withdrawal of the WVDOL's emergency wage and hour regulations. If they have not already done so, affected employers are encouraged to write the WVDOL to register their concerns about the proposed regulations, as Acting Commissioner Junkins has indicated the WVDOL intends to amend the proposed regulations in light of concerns that have been raised. In the meantime, employers should familiarize themselves with the proposed regulations as currently worded, in preparation for whatever changes are eventually implemented.


1 29 C.F.R. § 254(a).

2 See Integrity Staffing Solutions, Inc. v. Busk, -- U.S. --, 2014 U.S. LEXIS 8293, at *9-10 (Dec. 9, 2014) (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005)).

3 See W. Va. Code Ann. § 21-5C-1(h) ("[I]n determining . . . the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday . . . or activities which are preliminary to or postliminary to said principal activity or activities.").

4 29 C.F.R. § 785.19(a).

5 29 C.F.R. §§ 785.18, 785.19(a).

6 29 C.F.R. § 785.17.

7 29 C.F.R. § 785.22(a).

8 29 C.F.R. § 785.22(b). It should be noted that federal law requires employers to pay for any time the employee actually performs work during an interruption of sleep.

9 W. Va. Code R. § 42-8-9.11(a).

10 W. Va. Code Ann. § 21-5C-4.

11 29 U.S.C. § 203(m); 29 C.F.R. § 531.50.

12 29 C.F.R. § 531.56 (Dual Jobs); United States Department of Labor, Wage and Hour Division, Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA) (rev. July 2013).

13 29 U.S.C. § 203(m); 29 C.F.R. § 531.59.

14 W. Va. Code § 21-5-9.

15 29 U.S.C. § 203(m); 29 C.F.R. § 531.54.

16 W. Va. Code § 21-5C-4.

17 See 29 U.S.C. § 203(m); see also 29 C.F.R. §§ 531.3, 531.32.

18 29 C.F.R. §553.101.

19 Id.

20 Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Sebastian Chilco
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions