If you are paid a salary and work more than 40 hours a week, you may still be owed overtime. A salary is a way of paying you, not an exemption. In West Virginia the federal claim is usually the one that carries the money: the state’s own overtime law reaches fewer employers than people expect, and in 2018 the Legislature closed the state’s late-pay penalty to misclassification claims. There is also a demand letter the statute requires before certain claims can be brought.
West Virginia’s Wage Payment and Collection Act is not an overtime statute. It governs when wages must be paid. It carries a penalty of two times the unpaid amount, and that penalty is the reason the Act gets written about so often. Read the whole subsection before counting on it: “If a person, firm, or corporation fails to pay an employee wages as required under this section, the person, firm, or corporation, in addition to the amount which was unpaid when due, is liable to the employee for two times that unpaid amount as liquidated damages. This section regulates the timing of wage payments upon separation from employment and not whether overtime pay is due. Liquidated damages that can be awarded under this section are not available to employees claiming they were misclassified as exempt from overtime under state and federal wage and hour laws.”1
The second and third sentences were added in 2018.2 If your claim is that you were called exempt and should not have been, the two-times multiplier is not available to you. The Act still reaches the unpaid wages themselves. The multiplier, and the leverage that goes with it, come from the federal claim instead.
When employment ends, the employer “shall pay the employee’s wages due for work that the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable.”20 It can hold back part of that check, but only on narrow terms: unreturned property it provided for use in its business, worth “in excess of $100”, covered by a written agreement you “signed … contemporaneous with the obtaining of the employer provided property” that itemized the property and its replacement cost, followed by a written demand for return “within a certain date, not to exceed 10 business days of the notification.” Return the property and the employer “shall relinquish the withheld, deducted, or diverted wages.”20 No contemporaneous itemized agreement, no deduction.
West Virginia also has a safe-harbor provision most summaries never mention. An employee bringing an action for unpaid wages due at separation “is not entitled to seek liquidated damages or attorney’s fees from an employer without first making a written demand … to the employer seeking the payment of any alleged underpayment or nonpayment.” Once that demand arrives, “the employer has seven calendar days from receipt to correct the alleged underpayment or nonpayment.” A “written demand” is defined broadly — “any writing, including e-mail.”3
One condition in that section runs your way. The employer must, “upon separation or with the issuance of the final paycheck, … notify the employee in writing who the employer’s authorized representative is and where to send a written demand by both e-mail and regular mail,” and “if the employer fails to provide the required written notice, the employee is not required to comply with the provisions of this section.”3 Most separation packets say nothing of the kind. Keep yours.
If a group of workers was paid the same way, the demand has to say so. Before a class action under the Act is filed, the employee “shall submit a written demand stating it is a demand for all other employees similarly situated for the underpayment or nonpayment of their wages and fringe benefits.” Paying off the named employee alone does not end it: “if only the underpayment or nonpayment of wages and fringe benefits of the named employee is corrected, a class action may proceed for the underpayment or nonpayment of wages and fringe benefits still owed to the other members of the class.”4
The state statute does not reach every employer. “Employer” means one “who employs during any calendar week six or more employees as herein defined in any one separate, distinct, and permanent location or business establishment.”13 “As herein defined” is doing real work: the six have to be employees under the statute’s own definition, which excludes twenty categories.
There is also a percentage carve-out, and this is where secondary sources go wrong. The statute once excluded an employer outright where 80 percent of its workforce was covered by federal wage law. That broad version expired. The current text provides that “after December 31, 2014, for the purposes of §21-5C-3 of this code, the term ‘employer’ does not include” an entity where 80 percent of its employees “are subject to any federal act relating to maximum hours and overtime compensation.”13 Section 21-5C-3 is the overtime section. The state minimum wage sits outside the carve-out. An employer can therefore be outside West Virginia’s overtime requirement and squarely inside its minimum wage requirement.
The West Virginia Division of Labor states the test in three parts: “[t]he company does not qualify for federal ‘enterprise’ coverage,” “[e]ighty percent (80%) of the company’s employees do not qualify individually for federal overtime coverage based on work duties,” and “[t]he company has the required six non-exempt employees working at any one separate, distinct, and permanent business location.”14 For most West Virginia workers at least one of those fails, and the federal Fair Labor Standards Act governs the overtime claim. That is not a dead end. It is where the better remedy is.
Three clocks can run on one set of paychecks, and they are different lengths.
Federal: an action for unpaid overtime “may be commenced within two years after the cause of action accrued … except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.”6 Willfulness is the difference between two years and three.
State overtime: recovery is capped at “such unpaid wages as should have been paid by the employer within two years next preceding the commencement of such action.”9 There is no willfulness extension in that sentence. Two years is two years.
Wage Payment and Collection Act: the Act sets no period of its own, and West Virginia courts apply the contract statute. Section 55-2-6 gives ten years “upon a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal,” and five years “upon any other contract, express or implied.”11 In Rowe v. Grapevine Corp. the Supreme Court of Appeals held that “the ten-year statute of limitations period for an action on a written contract, W. Va. Code 55-2-6 [1923], applies to an action against both the employer and the agent.”12 The overtime article says the same thing from its own side: “Nothing in this article shall be construed to limit the right of an employee to recover upon a contract of employment.”9 Whether you have five years or ten can turn on whether you signed something. Worth settling early, because the shortest of these clocks is already running and every month drops a month off the back end. See statute of limitations.
Federal law doubles unpaid overtime and shifts the fees. An employer that violates the overtime section “shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages,” and the court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”5 That word is shall.
West Virginia’s two wage statutes are worded differently. Under the overtime article, an employer who underpays “shall be liable to such employee for the unpaid wages,” and as to fees, “[t]he court in any action brought under this article may, in the event that any judgment is awarded to the plaintiff or plaintiffs, assess costs of the action, including reasonable attorney fees against the defendant.”9 The Wage Payment and Collection Act uses the same permissive wording.10 State-law fees are discretionary with the court. Federal fees are not.
These two systems work in opposite directions, and it matters to you.
A federal overtime case is opt-in. It may be brought “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated,” but “[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”5 If you never sign, you are not in it, and your clock keeps running.
A West Virginia class action is opt-out. Notice to a damages class must state “that the court will exclude from the class any member who requests exclusion” and “the time and manner for requesting exclusion,” and the judgment covers those “who have not requested exclusion.”21 The Wage Payment and Collection Act assumes that mechanism exists — its safe-harbor section is written around “a class action lawsuit brought under this article.”4 Silence keeps you in a state class and leaves you out of a federal collective.
A title does not decide it and neither does a salary. What you actually do all day decides it, and the duties half is where employers lose. See salary vs. hourly and the administrative exemption.
The patterns here follow how work gets paid in this state. Day rates and flat weekly amounts are standard in gas-field and oilfield services, and a day rate with no overtime premium is one of the most reliably defective pay structures in the country. “Supervisor” attached to operational rather than managerial work is another. In managed care, case management and utilization review roles get labelled administratively exempt on the strength of a title, when the day is spent applying someone else’s criteria to someone else’s guidelines. The same thing happens in human services, where caseworkers and program coordinators carry the title and none of the discretion.
The state statute excludes twenty categories of worker from the definition of “employee.” Some of them nobody expects:15
Two structural points follow. First, the state’s white-collar exclusion is bare: “any individual employed in a bona fide professional, executive, or administrative capacity.”15 No salary figure. No cross-reference to the federal regulations. On a state-law claim there is no salary floor to lean on, so the fight is about duties and nothing else. Second, the list cuts the other way too: there is no hospital exemption in it, no 8-and-80 arrangement, and no computer-professional exemption. Hospital and nursing-home staff and IT workers keep a state claim here that they would lose in some neighboring states.
West Virginia narrows “hours worked” by statute. For the minimum wage and overtime sections, “there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday, time spent in walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which the employee is employed to perform and activities which are preliminary to or postliminary to the principal activity or activities, subject to such exceptions as the commissioner may by rules define.”16 Gear, washing up, and the drive to the pad are carved out of the state claim.
Federal law carves out the same two categories — “walking, riding, or traveling to and from the actual place of performance of the principal activity” and “activities which are preliminary to or postliminary to said principal activity” — but with an exception the state statute does not have: an employer is not relieved “if such activity is compensable by either … an express provision of a written or nonwritten contract … or … a custom or practice in effect, at the time of such activity.”17 Whether a particular pre-shift task counts depends on what the task is and what the employer’s own practice was. Write down what you do before and after your shift and how long it takes. That record is worth more than a memory of it.
Overtime is 1.5 times your regular rate, and the regular rate is not simply your base pay. Under the state statute it “shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee,” with a closed list of exclusions.18 A bonus falls outside the rate only where “[b]oth the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly.”18 A production or safety bonus you were promised in advance belongs in the rate. Left out, it underpays every overtime hour you worked.
There is one provision employers reach for when work is irregular. No violation occurs where the employee’s “duties … necessitate irregular hours of work” and a bona fide individual or collectively bargained contract “specifies a regular rate of pay of not less than the minimum hourly rate … and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek,” and “provides a weekly guaranty of pay for not more than sixty hours based on the rates so specified.”19 Three requirements, all of them in writing. Most day-rate arrangements meet none of them.
Requiring overtime is lawful here. Not paying for it is not, and neither is punishing the person who asks.
West Virginia treats it as a crime rather than a damages claim: an employer who “wilfully discharges or in any manner wilfully discriminates against any employee because such employee has made complaint … that he has not been paid wages in accordance with the wage and hour provisions of this article” is “guilty of a misdemeanor” and fined between $100 and $500.22 The federal remedy is the one with money in it. It is unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter,”23 and the employer is then liable for “employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.”5
You can file a wage claim with the West Virginia Division of Labor’s Wage and Hour Section, file with the U.S. Department of Labor, or bring a private action — the route that reaches the full recovery and, where a group was paid the same defective way, the whole group at once. Bring what you have: pay stubs, a record of hours, the pay agreement, your separation paperwork, any message about schedules.
Siegel Law Group is based in Dallas, Texas and litigates wage cases nationwide. The firm concentrates in day-rate cases for energy and oilfield workers and exempt-misclassification cases against human services and managed-care organizations. We represent employees, never employers.
You do not need a lawyer in West Virginia to bring a West Virginia claim, and the case does not have to be filed in a West Virginia court. Which state’s wage laws a case carries depends on where the work was done and how the workers were paid, not on the courthouse. This firm has filed in one state’s federal court and pleaded a second state’s wage claims in the same case, West Virginia’s among them.
No. The rule is weekly: “no employer shall employ any of his employees for a workweek longer than forty hours, unless such employee receives compensation … at a rate of not less than one and one-half times the regular rate.”7 There is no premium for a long single day.
Often, yes. A salary is a method of payment, not an exemption. The state statute excludes only “any individual employed in a bona fide professional, executive, or administrative capacity” — and it names no salary figure and points to no federal regulation,15 so on a state claim the question is entirely about what you do, not what you are paid.
Not if your claim is misclassification. The statute says so in terms: those liquidated damages “are not available to employees claiming they were misclassified as exempt from overtime under state and federal wage and hour laws.”1 If the shortfall is something else — wages simply not paid on time at separation — the penalty is in play, but only after a written demand and seven calendar days for the employer to correct it.3 Which claim gets pleaded, and in what order, changes the answer. Ask before you send anything.
Often, yes. A day rate is a way of computing pay, not an exemption. Unless a real exemption fits your actual duties, hours over 40 still require a premium, and the regular rate is worked out from what you were actually paid and actually worked. Expect the employer to reach for the irregular-hours provision, which requires a written contract specifying a regular rate, time and a half above forty, and “a weekly guaranty of pay for not more than sixty hours.”19 Most day-rate arrangements satisfy none of that.
Shorter than you would like. Federal overtime reaches back two years, three if the violation was willful.6 The state overtime article caps recovery at two years and adds nothing for willfulness.9 A Wage Payment and Collection Act claim runs on the contract clock — five years, or ten on a signed written contract.1112 The earliest weeks drop off every month you wait.
Neither. What matters is where you did the work and how you were paid. A single case can carry West Virginia claims alongside claims under another state’s law and the federal statute, filed wherever the case properly belongs.
Consultations are free and confidential. These cases are generally handled on contingency — no fee unless we recover. Federal law shifts your attorney’s fees onto the employer if you prevail;5 West Virginia’s two wage statutes leave fees to the court’s discretion.910 Tell us what happened, call (214) 790-4454, or email [email protected].
Law verified October 5, 2026. Statutory text retrieved from the West Virginia Legislature’s official code site and the U.S. Government Publishing Office on that date.
This website contains attorney advertising. Past results do not guarantee future outcomes. This page is general information about West Virginia and federal wage law, not legal advice, and it does not create an attorney-client relationship. Siegel Law Group PLLC, 8350 N Central Expy #850, Dallas, TX 75206.
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Attorney advertising. Jack L. Siegel of Siegel Law Group PLLC, Dallas, Texas, is responsible for this content.
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