The rule in West Virginia
In West Virginia, hours over 40 in a workweek are paid at 1.5 times your regular rate. There is no general daily limit, so a 12-hour day inside a 36-hour week earns no overtime.
The US Department of Labor's state table adds: “Applies to employers of 6 or more employees at one location.”
Employers with six or more at one location
Applies to employers of 6 or more employees at one location.
What counts toward your regular rate
Overtime is 1.5 times your regular rate of pay: everything you earned for the week at straight time, divided by every hour you worked.
Counts
- Your hourly pay for every hour worked, at each rate you worked
- Non-discretionary bonuses — attendance, production, safety, or any bonus promised in advance
- Commissions
- Shift differentials for nights, weekends or hazardous work
Does not count
- Discretionary bonuses and gifts, where both the fact and the amount were up to the employer
- Expense reimbursements
- Pay for time not worked: vacation, holidays, sick days
A worked example
Common mistakes employers make in West Virginia
- Counting employees company-wide. West Virginia counts six or more employees at one separate, distinct and permanent location, so the same employer can be covered at one site and not at another.
- Counting holiday, vacation or sick hours toward the 40-hour line. West Virginia counts only hours actually worked.
- Deducting unreturned property from final wages without a signed agreement. The property must be worth more than $100 and the employee must have signed a written agreement for it.
Other West Virginia pay rules worth knowing
- Final paycheck if fired: By your next regularly scheduled payday. The date depends on your pay schedule, not on when you were let go.
- Unused PTO: Accrued vacation that can be calculated and is payable to you counts as wages under West Virginia law, so it is owed on the terms of your employer's written policy. The law does not require an employer to offer vacation at all.
- Late final pay: Liquidated damages of 2 times the unpaid wages, on top of the wages themselves.
West Virginia final paycheck law and deadline calculator →
West Virginia overtime: common questions
Does my employer have to pay overtime if they didn't approve it?
Yes. Time your employer knew you were working, or allowed you to work, counts as hours worked, whether or not anyone approved it in advance. An employer can discipline you for breaking an overtime policy, but it still has to pay overtime for those hours — in West Virginia as everywhere else under federal law.
Does my bonus change my overtime rate?
Yes, if the bonus is non-discretionary — promised for attendance, production, safety or hitting a target. It is added to your straight-time pay and divided by all the hours you worked, and your overtime is 1.5 times that higher rate. Discretionary gifts, expense reimbursements and paid time off are left out.
Who enforces overtime in West Virginia?
Usually the federal government. West Virginia's Division of Labor says overtime is preempted by federal statute and enforced by federal agencies, so unpaid overtime normally goes to the US Department of Labor's Wage and Hour Division. The state division still handles West Virginia wage payment complaints, including a final paycheck that arrives late.
What is a workweek, and can my employer change it?
A workweek is a fixed, recurring block of seven consecutive 24-hour days, and it can start on any day and at any hour. Overtime is counted per workweek, never averaged across two, even when you are paid every two weeks. Your employer can change the start day, but only permanently and not to avoid paying overtime.
If you think you were underpaid
- Keep your own record of the hours you worked — the time card calculator totals them and exports a CSV — plus photos of the posted schedule and messages about shifts.
- Ask your employer in writing to correct the pay. Email beats a conversation because it creates a dated record.
- File a wage claim — Submit a Request for Assistance to the West Virginia Division of Labor, Wage & Hour Section — wageandhour@wv.gov or 304-558-7890. It is free, and you do not need a lawyer.
- Federal overtime claims must generally be brought within 2 years of the underpayment, or 3 years if the violation was willful.
Spotted something wrong? Report an error.
Other states that also add their own exception to the 40-hour rule: Connecticut, Hawaii and Kansas.
Work across a state line? Kentucky overtime rules and Maryland overtime rules.