Frequently Asked Questions: Wage Payment & Collection

Are the services provided by the Division of Labor available to all workers?

No, before the Division of Labor can provide assistance relating to unpaid wages and/or benefits, an employment relationship must exist between the worker and employer involved. The Division’s services do not extend to employees of the federal government, employees of federal government contractors, or independent contractors.

Does the Division of Labor charge a fee for investigating a wage complaint?

No, the services provided by the Division are offered free of charge.

How does an employee file a complaint or ask for help from the Division of Labor?

By filing a Request for Assistance (RFA) form. Employees have the option of filing their complaint using a paper RFA form, which is available for printing from our website, or using the electronic version of the form that’s available from our website’s home page.

How often is an employer required to pay wages?

Employers must pay their employees all wages due at least twice a month, with no more than nineteen days between paydays, unless granted a special agreement by the Commissioner of Labor to pay less frequently.

How do I know if my employer has been issued a special agreement?

Special Agreement files are maintained in the Commissioner’s office. To find out if a specific company has a Special Agreement with this agency, call 304 558 7890 and ask to speak with someone in that office.

What if the company does not have an agreement with the Commissioner and I'm not being paid properly?

Any employee that is not receiving their wages at least twice a month, or is paid twice a month but there are more than nineteen days between paydays, may file a Request for Assistance (RFA) with this agency to initiate a wage payment investigation.

Who decides when wages are paid?

Employers are responsible for setting the time and place for paying wages, which basically means deciding when and where employee paychecks will be issued. Employers also have the responsibility of establishing a seven consecutive day workweek, and the beginning and end of their pay period. As long as those choices comply with the provisions of the Wage Payment & Collection Act, such decisions are left entirely to the employer.

What if my paycheck is late?

Employers are required to meet payroll at least twice a month with no more than nineteen days between paychecks, and to pay their employees for all wages earned up to and including the twelfth day immediately preceding pay day. Should an employer fail to meet these requirements, the employee may bring such issues to the attention of this agency by filing a Request for Assistance (RFA).  Should the late payment of wages be a one-time occurrence and the employer has already made arrangements to immediately correct the problem, the situation would not require the filing of a Request for Assistance (RFA).

Are employers required to provide vacation and sick leave benefits to their employees?

No, state law does not require employers to provide any type of employee fringe benefits such as holiday pay, PTO, vacation pay, sick leave, etc. to their employees. However, when an employer chooses to provide such benefits that employer is responsible for establishing a written policy outlining how those benefits are earned and paid.

Are fringe benefits considered as part of final wages? If not, when should I recieve payment for those benefits?

Earned fringe benefits that are determined by company policy as being payable directly to the employee are normally payable as final wages. However, if the employer’s written policy designates such benefits as being payable at a time other than separation from employment, the benefits would not be payable as final wages but at the time designated within company policy.

Does an employer have the option of changing their fringe benefit policy?

Yes, since state law does not require employers to provide their employees with fringe benefits, they have the right to change, or even discontinue, their existing policies by providing written notice to the affected employees at least one pay period in advance of when the change will occur.

Does a change in policy have any affect on fringe benefits that were earned under the conditions of the previous policy?

Although an employer may change a written policy at any time by providing employees with an advance pay period’s notice, the employees must be allowed to exhaust any benefits that were already earned or accrued under the previous policy.

May an employer pay out unused benefits to some employees when they leave the company, but not to others?

Yes, employers have the right to designate within their written policies specific terms and conditions that may restrict the payment of unused benefits to certain employees, while allowing those same benefits to be paid out to others. Should an employer choose to include such provisions in their written policy, the conditions allowing for such differences must be clearly stated and/or defined.

Are sales commissions considered wages?

Although employers have the right to set the terms and conditions for how commissioned sales are earned and paid, once commissions are determined payable to the employee they are considered wages.

May an employer withhold monies from wages without the employee's permission?

Employers are permitted to take certain withholdings from an employee’s wages without having to obtain the specific written authorization of the employee. In addition to normal payroll taxes, some examples of permissible withholdings include union or club dues, payments to credit unions, charities, savings plans, medical insurance premiums, contributions to pension plans, etc. Payroll deductions to recover an advance provided to the employee against his or her future wages, or to correct payroll errors also fall in the category of permissible deductions. Outside of those payroll deductions that are permitted by state law, or required by court order, employers must obtain the employee’s written notarized consent before taking any other type of payroll withholdings. The employee’s consent must include a completed “Assignment of Future Wages Form”, which is available for printing from the Division’s website.

May an employer reduce an employee's hourly rate of pay or salary?

Yes, as long as minimum wage requirements are met, employers may reduce an employee’s hourly rate of pay or salary amount after providing the employee with an advance pay period’s written notice of when the change will occur. If an employee’s wages are reduced without such notification, the employee may file a Request for Assistance (RFA) with the Division of Labor for the difference between the hourly rate (or salary amount) the employee previously received and the reduced rate as paid on the first check reflecting the change.

Are employers permitted to pay their employees different hourly rates for performing different duties?

Yes, as long as the employees are informed in advance that different rates of pay will apply and minimum wage requirements are met, employers may establish a schedule of hourly rates that would apply to different situations or circumstances. Some examples may include paying a different rate of pay for a specific type of work, for working a different schedule or shift, for the time an employee is waiting to be engaged, or for the time an employee spends traveling to and from different work locations that occur within the course of a regular work day.

If my employer sends me home upon arriving to work or changes my schedule without prior notification, am I entitled to show up time?

No, employers are only required to pay their employees for the amount of time they are permitted or suffered to work unless that employer has a written policy or contract that requires the payment of wages under such circumstances.

Does an employer have the right to fire someone for not reporting to work when the Governor has issued a State of Emergency?

The laws enforced by this agency do not address the hiring and firing of employees, only the collection of unpaid wages and fringe benefits. Unless the employer violates employee discrimination laws, or the terms and conditions of an employment contract or collective bargaining agreement, they have the right to hire and fire their employees “at will” without explaining their actions.

If an employer closes their business due to weather, or other unforseen circumstances, and does not allow the employees to work their normal schedules, are those employees entitled to any type of compensation for the time they were not allowed to work?

The Division of Labor does not have the authority to require employers pay their employees under such circumstances unless the employer has a written policy stating otherwise.

When an employer closes its doors for a period of time and does not allow the employees to work, is the employer allowed to require the employees to use their vacation hours to cover the missed day(s)?

Yes, employers do have the right to require employees to use their available vacation days, sick days, PTO hours etc. to fill in for such missing days.

When should I receive my final wages after being terminated?

The rules for paying final wages are the same regardless of whether an employee quits, resigns, or is otherwise terminated, which is the next regular pay day in which the wages would have been paid had the employee continued to work.

What if the time frame has passed to pay my final wages but I still have not been paid?

Any employee that does not receive his or her final wages by the next regular payday in which such wages would have normally been paid if still employed, may file a complaint for the unpaid wages with the Division of Labor by filing a Request for Assistance (RFA).

What if my employer paid my final wages, just not within the time frame required? Is the employer assessed any type of penalty under these circumstances?

The West Virginia Wage Payment & Collection Act provides for the assessment of liquidated damages as a monetary penalty to employers that fail to pay final wages in a timely manner. Such damages are calculated at two (2) times the total amount of unpaid wages or fringe benefits owed. As this agency does not have the authority to assess such penalties, in order to pursue the collection of liquidated damages the employee must file a complaint in magistrate or circuit court in the county where the work was performed. Employees have the option of filing the complaint on their own or hiring an attorney to represent them.

Is an employer allowed to withhold wages because the employee failed to turn in a uniform or key?

No, state law does not allow an employee’s final wages to be withheld for any reason. Employers must address any unreturned property or other damages that may have been caused by an employee, or former employee, through magistrate or circuit court.

Does the Wage Payment & Collection Act (WPC) require that I receive an automatic cost of living increase each year, or raise after receiving a favorable evaluation?

No, as long as you’re receiving at least the current minimum wage when applicable, we cannot require your employer to give you a raise under any conditions.

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Ph: (304) 558-7890

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