THEIR VIEW: Two new laws W.Va. employers must know about

By Joseph U. Leonoro | May 15, 2014

The West Virginia Legislature’s 2014 regular session concluded (in March). Like in many states, the West Virginia Legislature passed a bill to increase the state minimum wage this year.


The West Virginia Legislature’s 2014 regular session concluded (in March). Like in many states, the West Virginia Legislature passed a bill to increase the state minimum wage this year.

In addition, following the lead of several other state legislatures, the West Virginia Legislature also passed a bill relating to pregnant employees. Both laws have significant implications for West Virginia employers.

Amendment to the Minimum Wage and Maximum Hours Standards for Employees Act

In passing a bill to amend the Maximum Wage and Maximum Hours Standards for Employees Act (MWMHS), the West Virginia Legislature raised the minimum wage in West Virginia. Specifically, the bill raised the minimum wage to $8.00 per hour effective January 1, 2015, and then $8.75 per hour effective January 1, 2016.

If the Fair Labor Standards Act (FLSA) is amended at any point to increase the federal minimum wage, then the higher of the two minimum wages will apply.

The potentially more relevant part of the bill, however, doesn’t have to do with the minimum wage. It revolves around a change to the definition of “employer” in the law, which is likely to change when most West Virginia employers must pay overtime compensation for work above a set number of maximum hours.

Prior to the amendment to the MWMHS, the statute applied to only a small number of employers in West Virginia. With some exceptions, if you were an employer in West Virginia and 80 percent of your employees were covered by the FLSA, the requirements in the statute did not apply to you.

Because most employers in the state were covered by the FLSA, most did not have to comply with the MWMHS. In the new bill, however, that proviso has been eliminated.

While the existing overtime provisions of the MWMHS have some similarities to the FLSA, the statute does not provide all of the same exemptions from the overtime requirement as the FLSA does. Thus, employees who may have previously been exempt from overtime under the FLSA may suddenly be owed overtime once the amendment to the MWMHS statute is effective.

In addition, there is very little case law interpreting the overtime exemptions that are included in the MWMHS because over the years, that portion of the law hasn’t applied to most West Virginia employers. Thus, it is possible that West Virginia courts will interpret the MWMHS’s overtime requirements in a more pro-employee manner than federal courts have interpreted the FLSA.

The amendments to the MWMHS are set to become effective in June. Exactly what final rules will govern employers in this context remains up in the air because, while West Virginia Governor Earl Ray Tomblin signed the bill, he also has scheduled a special legislative session beginning May 19 to address these and other concerns.

Some changes are likely. If you’re an employer in West Virginia, you’ll want to visit the Steptoe & Johnson Employment Essentials blog often late next month for details on what comes from that special session.

Pregnant Workers’ Fairness Act

The West Virginia Legislature also passed the Pregnant Workers’ Fairness Act this most recent session. The statute is similar to a bill that was proposed in the United States Senate in 2012, and is similar to laws which have been enacted by other legislatures throughout the United States.

The statute makes it unlawful to discriminate against pregnant employees and also requires employers to offer reasonable accommodations to pregnant employees, unless such an accommodation would amount to an undue hardship.

Notably, the first version of the bill that was introduced specifically defined what a reasonable accommodation was as a matter of law by listing types of accommodations. Ultimately, however, the enacted version of the law left the meaning of “reasonable accommodation” and “undue hardship” to be decided on a case-by-case basis using the Americans with Disabilities Act (ADA) as a primary guide – at least until the West Virginia Human Rights Commission enacts legislative rules which are supposed to shed some light on the meaning of “reasonable accommodation." The law requires that those rules be enacted within two (2) years.

The statute also prohibits retaliation, and provides for the same remedies and enforcement mechanism which is provided in the West Virginia Human Rights Act. Thus, an employee can file a claim with the West Virginia Human Rights Commission or file an action in court to pursue her rights.

While the Supreme Court of Appeals of West Virginia has long held that pregnant employees are entitled to the same reasonable accommodations that individuals with a disability are entitled to under the WVHRA, there are a few unique things in this law that employers should know about.

One of them relates to a pregnant employee’s specifically stated right to reject a proposed accommodation. Like under the ADA, the West Virginia Supreme Court of Appeals has held that the WV Human Rights Act does not require an employer to offer an employee the precise accommodation requested so long as the employer offers an accommodation that allows the employee to perform the essential functions of his or her job.

However, the PWFA makes it unlawful for an employer to “[r]equire a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept[.]”

This language in the PWFA is a bit curious, since it doesn’t necessarily settle what happens in the situation where the employee rejects proposed accommodations and the employer and employee cannot agree on any others which are deemed “reasonable.” In that situation, the employee may rely on this language of the statute for support, but the language standing alone doesn’t do anything to alter the fact that employers, still, must do no more than offer an accommodation that is reasonable and not an undue hardship.

The other notable part of the PWFA is that it also now requires a statement from a medical professional suggesting what accommodations are needed for the pregnant employee.

While a medical professional’s statement of what accommodations are needed doesn’t automatically make them “reasonable” or take them outside the realm of “undue hardship,” this new provision will add an additional wrinkle to the interactive process with a pregnant employee. In practice, it will either make employers feel more at ease in the interactive process by being able to point to the requirement of the Act that such a statement be furnished (when one has not been), or make it feel more challenging to reject such an accommodation knowing it has the backing of the employee’s treating physician.

Only time will allow employers and employees to fully explore these contours of the Act – and if necessary – press things to the point of getting a legal interpretation from the courts.

Leonoro is an attorney at Steptoe & Johnson's Charleston office. This editorial appeared in the firm's Employment Essentials blog.

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