IT DOESN’T MATTER HOW EVERYONE ELSE DOES IT — AT LEAST NOT IN WV
Sadly, the law can be a jealous mistress. For purposes of this piece, my point is that the law really doesn’t care about how others conduct their businesses; she only cares about whether you’re following occasionally tricky and sometimes convoluted directives. If you think that I’m kidding, wait until the West Virginia Division of Labor (“DOL”) knocks on your door one day.
If you’re a West Virginia employer that has been modeling your employment practices by what others within your industry are doing, take some time to revisit your practices. While it may turn out that you’re already on the right track, there is a chance that you may need to make a couple adjustments. To that end, here a few potentially problematic areas to consider as a starting point:
- Are you treating your workers as independent contractors? If so, are they truly independent contractors, or are they really your employees?
- Are you complying with the Fair Labor Standards Act in classifying certain employees as salaried employees, rather than hourly employees?
- Are you paying your West Virginia employees every two weeks? If not, do you have a DOL exemption that allows you to pay less frequently?
- Are you making deductions from your West Virginia employees’ paychecks (e.g., for uniforms, equipment, damaged items, loan repayment, etc.)? If so, are you using valid wage assignments?
- Are you complying with the West Virginia Wage Payment and Collection Act by timely paying your West Virginia employees all wages, including accrued fringe benefits to which they are entitled, upon separation from their employment?
If your immediate response to any of these questions is, “I’m just doing the same thing that everyone else in my industry is doing” or “I’m not sure,” then you may want to contact an employment attorney to work through the potential issues. Regardless, don’t just take it for granted that following the employment practices of others in your industry is a risk-free or even appropriate approach. Sometimes, you have to take the road less traveled. So long as that’s the legally correct road, you may even sleep a little better at night.