W.Va. mininum wage bill raises overtime issues

WHEELING, W.Va. — Red flags are being raised over West Virginia’s plan to raise the minimum wage, as lawyer Brian Peterson has pointed out what he believes are several flaws with the pending law that could cost businesses and taxpayers a substantial amount of additional overtime funding.

House Bill 4283, passed on the legislative session’s final day, calls for an increase in the state’s minimum wage from its current $7.25 per hour to $7.50 per hour next year; $8 per hour in 2016; and $8.75 in 2017. The legislation currently is awaiting Gov. Earl Ray Tomblin’s signature to become law.

But Peterson, a member of the Charleston-based Bowles Rice law firm, wrote in an employment law alert sent out by his firm that the legislation will do much more than raise the minimum wage; he predicts it will reshape how businesses and municipalities pay overtime to many of their employees.

“Most employers in West Virginia currently are not covered by the state’s minimum wage and maximum hours law because 80 percent or more of their employees are covered by the federal Fair Labor Standards Act,” Peterson said. “But, if Gov. Tomblin signs the new minimum wage bill into law, the 80-percent exemption will be eliminated, and all West Virginia employers with six or more employees will be required to comply with the state’s minimum wage and overtime requirements” along with continuing to comply with the federal law.

Peterson said current state law on wages and overtime “lacks many of the exemptions” found in the federal law. He listed several professions where he believes state law would not grant an overtime exemption but the federal law does:

— Computer professionals

— Commissioned sales employees of retail/service establishments

— Seasonal and recreational establishments, except summer camps and whitewater outfitters

— Companions for the elderly

— Employees that make $100,000 per year or more.

Municipalities also could be affected, he said.

“The state law also lacks many of the narrower, but important, exemptions such as the exemption for firefighters and law enforcement employees, which allows employers to calculate overtime on periods longer than a work week, and the similar exemption for hospitals and residential care facilities that allows so-called ‘8 and 80’ overtime plans,” he said. “Once the state bill is signed, all of these currently exempt workers will be entitled to overtime based on a 40-hour work week like everyone else…”

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