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©: 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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