January 18, 2021

Volume XI, Number 18

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January 18, 2021

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West Virginia Amends Law on Final Wages, Imposes Mitigation Duty on Former Employees Who Sue

Significant changes to West Virginia’s Wage Payment and Collection Act (“WPCA”) and a cap on damages available to plaintiffs in employment litigation highlight the latest West Virginia Legislative Session for employers. 

Changes to WPCA

West Virginia’s Wage Payment and Collection Act has placed significant burdens on employers in making payment of final wages to departing employees and has imposed steep penalties for violations. Changes were made to the WPCA last year, including the designation of multiple timeframes within which final wages must be remitted. This year’s changes include the following:

Payment on Termination

As of June 11, 2015, employers must pay a terminated employee all wages due by the next regular payday, rather than the earlier of the next regular payday or within four business days. The wages may be paid by mail at the employee’s request. This does not affect payment to employees who quit or resign or in cases of a work suspension related to a labor dispute or layoff. 

The Legislature also clarified that “wages” include accrued fringe benefits that are capable of calculation and payable directly to an employee. Further, fringe benefits to be paid at a future date in accordance with the terms of an agreement between an employer and an employee do not have to be paid on or before the next scheduled payday after the end of the employment relationship; rather, those fringe benefits should be paid in accordance with the terms of the agreement.

Penalties

As of June 11, 2015, employers who fail to pay an employee in accordance with the WPCA’s time limits will be liable to the employee for liquidated damages equal to twice the outstanding amount of wages due. Previously, the employer was liable for three times the outstanding amount.

Frequency of Payments

West Virginia employers generally have been required to pay employees every two weeks. Effective June 12, 2015, employers must pay employees at least twice every month, with no more than 19 days between payments. 

New Law on Duty to Mitigate Damages

Contrary to the former law, as of June 8, 2015, former employees who file a claim against their former employer will have an affirmative duty to mitigate past and future lost wages in all employment litigation matters, regardless of whether the plaintiff can prove the employer acted with malice or malicious intent or in willful disregard of the plaintiff’s rights. 

Any award of back pay or front pay will be reduced by the amount of interim earnings or the amount the former employee could have earned with the exercise of reasonable diligence. The defendant-employer has the burden to prove the lack of reasonable diligence. 

The former law relieved employees from mitigating their damages if they could demonstrate the employer acted with malice. 

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Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 161
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About this Author

Marla Presley, Employment Labor Litigation Attorney, Jackson Lewis Law Firm
Principal and Office Litigation Manager

Marla N. Presley is a Shareholder in the Pittsburgh, Pennsylvania office Jackson Lewis P.C. Prior to joining Jackson Lewis, Ms. Presley was a litigation attorney at both a regional and national law firm, concentrating in the field of labor and employment litigation, including individual and collective action discrimination and wage and hour claims.

Ms. Presley’s practice is focused exclusive on the representation of employers in employment related litigation before administrative agencies and courts on both the state and federal levels. Ms....

(412) 232-0404
Bethany Wagner, NCAA Attorney, Jackson Lewis Law Firm
Associate

Bethany Swaton Wagner is an Associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She practices in the areas of employment and Title IX and NCAA compliance.

In her employment practice, Ms. Wagner focuses on preventative human resource policy development, training, and advice and counseling. She also develops and reviews policy and handbooks, particularly for multi-state issues and compliance. In addition, Ms. Wagner represents employers in employment-related litigation before administrative agencies and courts on the federal and state levels...

412-338-5149
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