In West Virginia, state and federal laws determine how much you must be paid (including minimum wage and overtime), when you must be paid, and more. If your employer has not paid you what you have earned, on time, you can recover not only your unpaid wages, but also penalties intended to punish your employer for wage theft. Below, we explain how to calculate what you are owed.
Employees must be paid at least the minimum hourly wage. You are entitled to be paid the highest minimum wage that applies where you work, whether federal, state, or local. In West Virginia, the state minimum wage is $8.75 an hour. You are entitled to this rate because it is higher than the federal minimum hourly rate of $7.25.
To calculate your unpaid minimum wage, subtract what you were actually paid per hour from what you should have been paid per hour. For example, if you were paid only $7.75 an hour for your first three weeks of full-time work, you would be entitled to $1 an hour times 40 hours times three weeks, or $120.
In most states, employers may pay a lower minimum wage to employees who earn tips, as long as the hourly wage plus tips adds up to at least the full minimum wage. This is true in West Virginia, where you may be paid as little as 30% of the minimum wage (currently, $2.63), as long as you earn enough in tips to bring your hourly rate up to at least $8.75 an hour. (Learn more in West Virginia Laws for Tipped Employees.)
Failing to pay the overtime premium is one of the most common ways employers violate wage laws. Under federal and state law, employees are entitled to overtime if they work more than 40 hours in a week. (West Virginia’s law applies to employers with at least six employees; federal overtime laws apply to most employers.)
You are entitled to overtime unless your employer can prove that you fit into one of the narrow exemptions to the overtime rules. (The most common federal exemptions are for outside salespeople and “white-collar” employees who do professional, managerial, and administrative work and who have the authority to make relatively high-level decisions; see our overtime page for more information.)
If your employer has failed to pay you for overtime, you are entitled to an overtime premium of 50% of your hourly rate. For example, if you are usually paid $12 an hour, you are entitled to be paid time and a half— $18 an hour—for overtime work.
Example: Stephan works at the counter of a local café. He works 40 hours a week and earns $9 an hour. When his coworker falls ill with the flu, Stephan agrees to work four extra hours for three days to help out. For that week, Stephan is entitled to $522: $360 for his regular 40 hours at $9, and $162 for his 12 additional hours at $13.50.
According to the West Virginia Division of Labor, an employer must pay for any meal break that is shorter than 30 minutes or during which the employee is required to work. You are also entitled to be paid for any time during which you must work, even if your employer calls it a break. For example, if an office receptionist must eat lunch at her desk in order to cover the phones and accept deliveries, she is entitled to be paid for that time—even if her employer calls it a “lunch break.” (For more information on what breaks you must be given throughout the day, see our article on West Virginia meal and rest breaks.)
To calculate your unpaid break wages, add up how much time you spent on shorter breaks that should have been paid or breaks that you had to work through. Multiply this extra time by your hourly rate. And don’t forget overtime: Breaks for which you should have been paid count as hours worked, which means they may push your total hours for the week above 40 per week.
If your employer violates the federal minimum wage or overtime laws, you have the right to collect liquidated damages in the amount of your unpaid wages. For example, if your employer fails to pay you $4,500 in overtime, you can request liquidated damages in the same amount, for a total award of $9,000.
In West Virginia, your employer must provide your final paycheck on the next regular payday after you quit or are fired. If your employer fails to pay you on time, it can be required to pay you liquidated damages of two times your final wages.
If your employer failed to pay you all of the wages you earned, you can file a lawsuit in court or a wage claim with the West Virginia Division of Labor. (Check the Division’s website for information on how to file a claim for unpaid wages.)
If you plan to go forward with a lawsuit or a wage claim, talk to an experienced West Virginia wage and hour lawyer about representing you. A lawyer can represent you in either process. If you win, your attorney can ask the judge to require your employer to pay his or her fee.
If you plan to assert your rights, you should act quickly. You must generally file claims for unpaid wages within two years under federal and West Virginia law. (You may have up to five years to file a claim for a late final paycheck, though.) However, you shouldn’t wait this long. Memories fade, documents can be lost, and people move on to new jobs. It’s best to file a wage claim soon after your employer failed to pay you, so you can get the money you are owed and get on with your life.