Labor Laws in West Virginia Regarding Breaks
The general provisions of West Virginia law related to employee breaks and rest periods are found in West Virginia Code § 21-3-3. Primarily, the regulation defines who is covered by the statute and how those employees are to be compensated for working through their break, if they work during one. The factors employees must consider when analyzing their entitlement to breaks and rest periods are as follows:
The above guidelines demonstrate that the rules governing breaks, meal periods, and rest periods do not apply to all employers, and as with most employment laws, it is impossible to make a blanket statement about the applicability of these provisions . That being said, based on the current law, the majority of West Virginia employers are probably not required to provide non-exempt employees breaks or rest periods, except where employees are working on a "manufacturing, mechanical, mercantile, or other industrial undertaking." Thus, employers should tread carefully and be certain whether or not a certain employee might be covered under the statute or may in the future become covered.
Mandatory Breaks for Adult Workers
The West Virginia legislature has also made it mandatory for businesses to provide breaks to most adult employees, but they have set much higher time thresholds than the federal Labor Secretary had proposed. Like the FLSA, W.Va. Code §§ 21-5C-1 et seq. only requires that non-exempt employers provide breaks to those employees receiving less than the state minimum wage. And like the FLSA, the statute does not make clear whether these breaks must be paid or if they may be unpaid time off from work.
Unlike the proposed FLSA regulation, however, the West Virginia legislature has imposed a mandatory break requirement at any point in the workday that exceeds six hours:
[A]n employer shall provide a ten-minute break for each four consecutive hours of employment for paid work to any employee if the employee is either: (1) An adult employee and is to be paid a wage rate in compliance with the wage and hour laws administered by the secretary of the Department of Labor; or (2) a minor employee and is to be paid a wage rate in compliance with the wage and hour laws administered by the Secretary of State, provided: (1) the employer does not pay the employee less than the minimum wage during the break; (2) the employee is authorized and permitted to conduct personal activities and duties; (3) the break is counted as hours worked for the purposes of wages and overtime wages, Workers’ Compensation, unemployment compensation and other statutory and contractual benefits; and (4) while taking the break the employee remains on-call by remaining on the employer’s worksite or other site or location controlled by the employer, expects to be able to return to his or her responsibilities and duties within a reasonable period of time.
Still, even though these provision may be beneficial to the extent they require that breaks be counted as part of the individual’s actual hours worked, employers need to become familiar with these requirements, as they can be significantly different than the provisions that have been proposed or implemented at the federal level.
Minors and Break Laws
An employer will need to consider the additional requirements placed on them when minors are employed — particularly with respect to work breaks. Specifically, West Virginia law requires that every employer allow at least fifteen minutes of work break for each four hours of continuous employment. While adults may be required to work up to six hours before being entitled to a break, a minor must always be allowed a break after working four hours. Further, employees must be allowed thirty consecutive minutes for each five consecutive hours of work. However, the longer breaks are not required unless the employee actually works five hours straight. For example, an employee who works 7:45pm to 11:45pm is not entitled to a thirty minute unpaid break, but an employee who works 7:15pm to 11:45pm is because they worked five straight hours.
Minors may also be entitled to additional breaks under the federal Fair Labor Standards Act (FLSA). Under the FLSA, minors must receive meal breaks of at least 30 minutes when they are scheduled for continuous work periods of five hours or more in a workday. If minors work 18 or more consecutive hours, they must be given two 30-minute meal breaks. Further, those required breaks cannot be unpaid for minors. Note that like the West Virginia labor laws, this does not mean employees actually worked 18 hours straight. Rather, the break must be paid if it is not taken after the first five consecutive hours and if the fifth hour is during a meal period, the break has to occur during the sixth consecutive hour of work.
Meal Breaks, the Law and Employers
In contrast to a break under the FLSA, West Virginia law does not require employers to provide meal periods or breaks to employees. Nor do they require a minimum length of meal periods if, in fact, an employer does provide them. In most circumstances, where no written definition exists, meal periods are understood as a period of time longer than 20 minutes.
Written agreements between an employer and employee that establish a bona fide meal period which last less than 20 minutes are considered invalid. Furthermore, the Department of Labor must regard a bona fide meal break as compensable unless an agreement between employer and employee necessarily requires the employee to perform any work during the interval.
Exemptions and Exceptions to the Break Rules
In addition to the federal FLSA’s categorical exemptions, West Virginia law lays out additional exemptions from its break and meal period requirements. Specifically, meals periods do not have to be paid when: There are also exceptions for continuous operations . For instance, time spent on call does not count towards the required hours of work when: Of course, employers may still provide breaks or meal periods at times, frequency, or durations more generous than those required by West Virginia law. Time spent during those additional breaks or meal periods will not count towards hours worked unless the breaks or meal periods are under circumstances that fall under WMH’s regular break rule.
Employer Responsibilities, Employee Break Laws
Employers in West Virginia, like those in any other state, have obligations when it comes to break times. First, the law requires that employees receive uninterrupted time for unpaid meal periods. Thus, if an employee is on break, he or she cannot be required to work – including by sending or replying to work-related emails, and so on – and must not be interrupted for work-related conversations. (See our post on Rest and Meal Periods for some exceptions to this basic rule.) While employers obviously have a vested interest in limiting downtime during the work day, they also have an obligation to honor their employees’ break rights. If an employer knowingly and intentionally denies an employee the opportunity to take a break, then it may be liable for backpay and additional damages. To reiterate, under federal law, breaks for 20 minutes or more and unpaid meal periods must be taken. Employees can report violations of the law, and seek to recover back wages and penalties.
Consequences for Not Providing Employee Breaks
Employers operating in West Virginia are required to provide the breaks mandated by the state, and those breaks must be paid unless exceptions apply. Failure to do so exposes employers to a variety of potential legal and financial consequences, from overtime pay to enforcement actions by state authorities.
One consequence for failing to meet the state minimum break requirements is that the state will require the employer to pay employees for the time they should have been allowed to take a break. Specifically, the state’s wage laws require employers to "pay [employees] for required meal or rest periods." That means that if an employer does not allow its employees to take the required breaks, it will have to pay them for the time they should have been allowed to take a break (whether or not they actually took a break). Additionally, if the employer has been found to have failed to provide breaks to its employees over a period of time , the state will require the employer to pay its employees overtime for all hours worked over a 40-hour work week and overtime for all hours worked over eight in a 24-hour work period (e.g., if the employer denies the required breaks, the state will require the employer to pay its employees overtime if the employees work more than 8 hours in a given day).
Additionally, the state oftentimes brings enforcement actions to penalize employers that fail to provide employees with the required breaks. The West Virginia Division of Labor enforces the state’s wage and hour laws, including the state break requirements. For example, the state will hold an employer liable for the unpaid breaks if it conducts an investigation and finds that the employee was denied the required breaks. The state conducts investigations-typically based on employee complaints-to ensure that employers are complying with the break requirements.