West Virginia Minimum Wage
Frequently Asked Questions
What is the current minimum wage in West Virginia?
As of January 1, 2015, the minimum wage in West Virginia became $8.00 per hour.
That requirement will again increase to $8.75 as of January 1, 2016.
Does this requirement apply to all employers and their employees working in West Virginia?
No. In order for West Virginia minimum wage requirements to apply, the employer
must have at least six (6) nonexempt employees working at any one separate, distinct,
and permanent business location.
My business was previously covered under federal minimum wage requirements due to 80%
of my employees being covered by the Fair Labor Standards Act. Does that rule still apply?
No. For the purposes of minimum wage coverage only, as of January 1, 2015, the
definition of employer as stated in §21-5C-1(e) no longer contains the jurisdictional
exemption for employers having 80% of their employees covered by federal law.
However, this exemption still applies to state overtime requirements.
The number of employees I have working at each business location often fluctuates. If I
currently do not have the required six (6) employees working at one separate, distinct, and
permanent location, does that mean I do not have to be concerned about ever paying the
state minimum wage?
Minimum wage coverage would fluctuate depending upon whether the six employee
requirement was met for each calendar week.
What am I supposed to pay my tipped employees? Does the federal standard of $2.13 still
apply?
No. As the credit for tipped employees applies to the minimum hourly wage
requirement, the standards that apply for determining state minimum wage coverage
also applies to allowable credits against the minimum wage. That means if you’re
considered an employer as defined in §21-5C-1(e), then the standards relating to tip
credits under state law also apply. Based on those standards, (§21-5C-4) a credit of
seventy percent of the minimum wage rate is allowable to employers for their
employees that customarily receive tips. As of January 1, 2015, the hourly rate for
tipped employees will be $2.40 per hour, and as of January 1, 2016, that rate will
increase to $2.62.
Division of Labor, Building 6, Room 749-B, Charleston, WV 25305
www.wvlabor.com [email protected] 304 558 7890
Page 1
West Virginia Minimum Wage
Frequently Asked Questions
As an employer with tipped employees, do I need to be concerned about how much they
receive in tips?
Yes. Although state law allows employers a 70% credit against the minimum wage
requirement for their employees that receive gratuities, any time a tipped employee
does not receive an hourly rate, plus tips, to equal the minimum wage, the employer
must increase that individual’s hourly wage in order to make up the difference. In
addition, for tips to be considered against the 70% credit, they must be reported on
forms recognized by the IRS.
I’ve seen several references to nonexempt employees. How do I know which of my
employees may qualify as nonexempt?
In the definition of employee, {§21-5C-1(f)}, there are several occupations and/or
situations that may exclude an individual from being covered by state minimum wage
standards. All occupational exemptions listed are based on the work actually
performed by the employee, not their work title. An individual that qualifies for any of
these exemptions would also not be considered as one of the six (6) employees
required for coverage. Those occupations and/or situations are stated as follows:
Individuals employed by the United States; volunteers involved in educational,
charitable, religious, fraternal or nonprofit activities where the employee/employer
relationship does not exist; newsboys; shoeshine boys; golf caddies; pin-boys and pin
chasers in bowling alleys; traveling salesmen and outside salesmen; services performed
by an individual in the employ of his or her parent, son, daughter or spouse;
professional, executive or administrative employees; individuals involved in on the job
training (vocational); a handicapped individual working in a nonprofit sheltered
workshop; individuals working in a boys or girls summer camp; any person 62 years of
age or older receiving social security benefits; agricultural workers; state employed fire
fighters; ushers in theaters; part time students working 24 hours or less; employees of
local interurban motorbus carriers; any employee under federal DOT regulations; and
those employed on a per diem basis by the West Virginia State Senate, House of
Delegates, or the Joint Committee on Government and Finance.
I do not have the required six (6) nonexempt employees to be covered under state law.
Does that mean I may pay my employees a rate of my own choosing?
As federal minimum wage requirements may also apply, you should also check with the
United States Department of Labor (USDOL), Wage & Hour Division, to make sure the
federal minimum wage would not apply. You may visit the USDOL’s website @
www.dol.gov for further information.
Division of Labor, Building 6, Room 749-B, Charleston, WV 25305
www.wvlabor.com [email protected] 304 558 7890
Page 2
West Virginia Minimum Wage
Frequently Asked Questions
My business has locations both within and outside the boundaries of the State of West
Virginia. If I have the required six (6) employees working at a location within West Virginia,
does that mean those employees are entitled to the West Virginia minimum wage or may I
pay them the federal minimum wage as it applies to my other employees?
If your business meets the definition of a covered employer as stated in §21-5C-1(e),
then your nonexempt employees working within the State of West Virginia would be
entitled to receive the minimum wage as established within West Virginia. As the same
would apply to your tipped employees, the 70% credit against the minimum wage
would also apply.
Is there an increase required for my employees that were already being paid $8.00 per hour
prior to the increase in the minimum wage?
The required minimum wage is exactly that, the minimum hourly wage that an
employee must be paid. The increase to the state’s minimum wage would not apply to
those already being paid that hourly rate.
What happens should the federal minimum wage be increased to a rate higher than West
Virginia’s current minimum wage requirement?
West Virginia’s Minimum Wage law {§21-5C-2(a)(6)} states that whenever the federal
minimum wage is equal to or greater than the rate prescribed by state law, every employer
shall pay each of his or her employee’s wages at a rate of not less than the federal minimum
hourly wage. That same provision of law also states that the minimum wage in West Virginia
will be adjusted in accordance with any such increase to the federal minimum wage rate.
Division of Labor, Building 6, Room 749-B, Charleston, WV 25305
www.wvlabor.com [email protected] 304 558 7890
Page 3