by Rodney Bean
The West Virginia Division of Labor (DOL) has proposed emergency regulations that, if enforced in their present form, could force West Virginia employers to change by December 31 a number of common wage and hour practices that comply with long-standing federal regulations.
Although the state DOL’s emergency rules purport to adopt vast portions of federal Fair Labor Standards Act (FLSA) regulations, they simultaneously impose several new rules that contradict or otherwise differ from those same federal regulations, particularly as they relate to the determination of what constitutes compensable working time.
If applied broadly, the new rules would require West Virginia employers to depart from FLSA standards in at least the following areas:
- Break time;
- On-call time;
- Sleeping time;
- Training time;
- Meal credits;
- Lodging credits;
- How employees’ starting and stopping times are rounded;
- Exemptions from state wage and hour law;
- Full-time students;
- Tip credits;
- Preliminary and postliminary activities (time employees spend preparing to begin work and time spent preparing to leave work); and
- Commuting time.
The emergency regulations result from changes the legislature made earlier this year to the state’s minimum wage law. Although the legislature’s aim was to raise the state minimum wage, it did so in a way that subjected nearly every West Virginia employer to a law that previously had applied to almost no one in the private sector.
Employer outcry about the unintended consequences of that change forced the legislature to amend the law again during a special session. But the amendment was drafted in a way that only delayed many of the consequences of the original amendment instead of repairing them. The amendment appeared to provide that employers with 80 percent of their employees covered by the FLSA still would be exempt from the state law’s overtime provisions. But this new set of rules is likely to confuse that issue because most of the new regulations apply to issues beyond overtime, such as working time and credits against minimum wage. If the new regulations become effective, courts will have the final say about how broadly they will apply.
The state DOL has claimed that the new regulations are intended to provide employers with “essentially one set of rules to follow in complying with state and federal law.” But in fact the new rules contradict the FLSA. The new state rules will further confuse West Virginia wage and hour law and impose on employers the requirement to comply with two complicated sets of laws that differ in many important respects.
Because the new regulations are emergency rules, they will become effective without legislative action upon approval by the state secretary of state or on December 31 if the secretary of state doesn’t act.
Employers that wish to comment on the emergency regulations should contact John R. Junkins, acting commissioner, West Virginia Division of Labor, 749-B Building 6, Capitol Complex, Charleston, WV 25305.
More information on the emergency rules will appear in the January 2015 issue of West Virginia Employment Law Letter.
Rodney Bean is a member at Steptoe & Johnson PLLC in Morgantown. He can be reached at firstname.lastname@example.org.