A WEST VIRGINIA WAGE PAYMENT & COLLECTION ACT REFRESHER ON SURVIVING THE JUNGLE
Although most employers doing business in the Mountain State have at least some familiarity with the West Virginia Wage Payment & Collection Act (“WPCA”), the law remains a unique animal that still presents the occasional pitfall for employers. If you’re an employer, these are a few of the WPCA traps that are worth keeping on your radar as you navigate this jungle:
1. Payment upon termination of employment.
If an employee quits or resign, then you must pay him or her all wages due, including any accrued fringe benefits that are payable upon termination, no later than the next regular payday, with one exception: if the employee provides you with notice at least one pay period in advance of his or her last day, then you must pay your employee on his or her last day.
If you fire an employee, then you must pay that employee all wages due, including any accrued fringe benefits that are payable upon termination, within 72 hours of the firing. For that reason, if you’re going to fire an employee, consider providing the employee with his or her final paycheck at the discharge meeting.
If you lay off an employee or suspend his or her work as a result of a labor dispute, then you must pay the employee all wages due, including any accrued fringe benefits that are owed, as of the time of the suspension or layoff. Payment must be made no later than the next regular payday.
Why are these deadlines important? A violation of these WPCA statutory payment requirements exposes an employer to, among other things, liability for the amount unpaid when due and liquidated damages in the form of three times the amount unpaid when due. Simply stated, if you miss the payment deadline by even a day, then you have exposure under the WPCA.
2. Fringe benefits payable upon termination.
For a good discussion of recent case law regarding this topic, take a look at what we had to say about these benefits here, addressing the West Virginia Supreme Court of Appeals’ recent opinion in the Wolfe v. Adkins case.
3. Assignment of wages.
Without a valid wage assignment agreement, an employer is not permitted to make a deduction from an employee’s pay for something the employee may owe to the employer, e.g., cost of damaged equipment, loan repayment, etc. A copy of a wage assignment form approved by the West Virginia Division of Labor can be found in the WPCA regulations at W. Va. C.S.R. § 42-5-11. In short, the assignment must: be in writing; be signed as having been accepted by the employer and the employee, with the employee’s signature being notarized; specify the total amount due; state that three-fourths of the employee’s periodical earnings or wages shall at all times be exempt from such assignment; and be limited to a period of no more than one year.
While this article offers a primer on some of the most common traps that employers in West Virginia regularly face on wage payment issues, bear in mind that these tips are not a substitute for good legal advice regarding any specific issues that you or your company may be facing, nor is this a comprehensive guide regarding how to navigate the WPCA. Just as employers should keep these hazards in mind, they should be even more mindful of the need to consult a competent legal professional to help them with any wage payment issue they face. Be sure you get the bear, rather than letting the bear get you.