Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

Pending West Virginia legislation would, if passed, extend the time employers have to issue a terminated employee’s final paycheck, from the current 72 hours after discharge to the next regular pay day.

On January 28, 2011, Senators Palumbo and Klempa introduced Senate Bill 339, which is being referred to the Labor and Finance Committees. You can keep track of the progress of the bill by going to the Bill Status page and entering 339 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the Senate Members page and pick the member from a drop-down list.

Senate Bill 339 would amend the WV Wage Payment and Collection Act, which deals in part with the obligation of an employer to issue a final paycheck to an employee within a certain period of time.  The Wage Payment and Collection Act currently sets two different deadlines, depending on whether the employee resigned or was discharged.

  • Section 21-5-4(b): If an employee is discharged, the employer must pay the employee all earned wages within 72 hours after the discharge.
  • Section 21-5-4(c): if the employee resigns, the employer must pat the employee all earned wages by the next regular payday, either through “regular channels” or, if the employee requests, by mail. There is this additional variation where the employee resigns: if the employee provides “at least one pay period’s notice of intention to quit”, then the employer must pay the employee all earned wages “at the time of quitting” (which is the final day worked after giving notice).

Senate Bill 339 is simple in what it does: it eliminates the distinction between voluntary resignation and involuntary discharge, and would extend the discharge time period (now 72 hours) to the next regular payday. So under Senate Bill 339, employers would have to pay separated the employee all earned wages by the next regular payday, regardless of whether the employee resigned or was discharged.

Here is the marked up language of section 21-5-4(b) in Senate Bill 339 to show you exactly how the section will bee change, if the bill becomes law:

Whenever a person, firm or corporation discharges an employee, such the person, firm or corporation shall pay the employee’s wages in full within seventy-two hours no later than the next regular payday through the regular pay channels or by mail if requested by the employee.

Part of the significance of this proposed change is the potential penalty that applies if an employer fails to issue final pay checks to departing employee by the deadlines set out in the Wage Payment and Collection Act. Section 21-5-4(e) states that an employer that fails to meet one of these deadlines in issuing a final check is liable to the employee for “liquidated damages” in the additional amount (above and beyond the earned wages) for three times the unpaid amount. So if an employer owes a discharged employee final wages of $5,000, and the employer fails to pay that amount within 72 hours (or by the next regular payday under Senate Bill 339), then the employer owes the employee an additional $15,000, for a total of $20,000. The Act also allows the award of attorneys’ fees and expenses incurred by the employee in collecting the unpaid wages. Senate Bill 339 does not eliminate this liquidated damage liability, but it gives the employer the same deadline for issuing the final paycheck, regardless of whether the employee resigned or was discharged.

When there is any progress in the legislature on Senate Bill 339, I’ll update you on this blog.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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