West Virginia DOL Withdraws Proposed Emergency Wage And Hour Regulations

In welcome news for employers, the West Virginia Department of Labor (WVDOL) has withdrawn a set of emergency regulations that would have significantly revamped state wage and hour requirements and created conflicts with federal wage and hour regulations. The WVDOL proposed the regulations to West Virginia's Secretary of State on November 19, 2014 and requested they take effect on January 1, 2015, giving employers little time to respond to the proposal or develop compliance strategies. Despite the eleventh-hour approach used by the WVDOL, employers mounted a focused response analyzing the various flaws in the proposed regulations, which in many instances were vaguely worded, inconsistent with decades-long practices under federal and state law, and beyond the WVDOL's legislative mandate to amend existing regulations.

In response to these well-founded concerns, Acting WVDOL Commissioner John R. Junkins withdrew the proposed regulations on December 23. In his letter to the Secretary of State, Junkins stated that the WVDOL will submit an amended set of regulations at the next regular legislative session (which is set to convene on January 14) rather than seek an emergency enactment through the Secretary's office. As a result, the WVDOL's withdrawal may only represent a temporary reprieve for employers in West Virginia. Although the WVDOL intends to amend the regulations it will submit to the legislature, employers operating in West Virginia should familiarize themselves with the recently withdrawn regulations, which may provide a useful roadmap for the types of changes the WVDOL is contemplating.

The following is a brief description of the most significant changes to existing wage and hour regulations proposed in the WVDOL's withdrawn regulations:

Determination of Compensable Time

Preliminary and Postliminary Activities

Under the federal Fair Labor Standards Act (FLSA), employers are not required to pay employees for preliminary and postliminary activities that occur before or after performance of the employees' "principal activities."1 The WVDOL's proposed regulations would have expanded the types of activities occurring at the start and end of workdays for which employers must compensate employees.

The proposed regulations would have required employers to pay "the time an employee spends in preparing to begin work at his or her place of employment, or in preparing to leave work at his or her place of employment, such as changing clothes or washing, when such activities are an indispensable part of his or her work, are required by law or by the employer, required by contract, or are the custom and usage of a particular trade." The language concerning "activities [that] are an indispensable part of his or her work" may not represent a significant deviation from federal law, which already considers whether an activity is "integral and indispensable" to a principal activity in determining whether it is compensable.2 However, the proposed language that would make all activities compensable that are "required by the employer" represents a striking departure from federal law and the longstanding approach under West Virginia law.3 By its plain language, the proposed regulation would have required employers to pay employees for all time spent performing preparatory tasks such as donning and doffing of uniforms or protective equipment at an employer's place of business, waiting to clear security checkpoints, and booting up computers, so long as these activities are deemed to be "required" and regardless of whether they are integral and indispensable to the employee's primary duties. Such regulation would represent a significant expansion of compensable preliminary and postliminary activities.

Break Time

Federal regulations provide that bona fide meal periods of 30 minutes or more do not constitute compensable work time if the employee is completely relieved from duty and is free to leave his or her work area.4 Federal regulations further provide that a break of less than 30 minutes may be long enough to constitute a bona fide meal period under "special circumstances" and set the floor for...