Executive exemption
West Virginia exempts bona fide executive employees from its minimum wage and overtime requirements. WV Statute 21-5C-1(f)(6). To qualify as an executive employee, an employee must:
- be compensated on a salary basis at a rate of at least $455 per workweek;
- perform primary duties consisting of the management of the employer’s organization or a customarily recognized department or subdivision of the organization;
- customarily and regularly direct the work of two (2) or more full-time employees or the equivalent of two (2) or more full-time employees; and
- have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight.
Administrative exemption
West Virginia exempts bona fide administrative employees from its minimum wage and overtime requirements. WV Code 21-5C-1(f)(6). To qualify as an administrative employee, an employee must:
- be compensated on a salary basis at a rate of at least $455 per workweek;
- perform primary duties consisting of the performance of office or nonmanual field work directly related to management policies or general business operations of his or her employer or his or her employer’s customers; and
- customarily and regularly exercises discretion and independent judgment with respect to matters of significance.
Professional exemption
West Virginia exempts three (3) types of bona fide professional employees from its minimum wage and overtime requirements – learned professionals, creative professionals, and computer professionals (discussed below). WV Code 21-5C-1(f)(6).
Learned Professional
To qualify as a learned professional employee, an employee must:
- be compensated on a salary or fee basis at a rate equal to at least $455 per workweek, provide that the salary or fee requirements of this provision do not apply to bona fide teachers or practitioners of law or medicine;
- perform primary duties consisting of the performance of work requiring advanced knowledge:
- in a field of science or learning
- that is customarily acquired by a prolonged course of specialized intellectual instruction.
Creative Professional
To qualify as a creative professional employee, an employee must:
- be compensated on a salary or fee basis at a rate equal to at least $455 per workweek; and
- perform primary duties requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, such as music, writing, acting, and graphic arts.
Outside salesman exemption
West Virginia exempts outside salesmen from its minimum wage and overtime requirements. WV Code 21-5C-1(f)(6). To qualify as an outside salesmen, an employee must:
- customarily and regularly work away from his or her employer’s place or places of business; and
- perform primary duties requiring making sales, or in obtaining orders or contracts for services or for the use of facilities for which a client or customer pays consideration.
Employees who are training to work in outside sales but who are not independently working on their own do not qualify for the outside salesman exemption and must be paid minimum wage and overtime unless they qualify for another exemption.
Computer professional employee exemption
West Virginia exempts computer professional employees from its minimum wage and overtime requirements. WV Code 21-5C-1(f)(6). To qualify as a computer professional employee, an employee must:
- be compensated at a rate of at least $27.63 per hour;
- be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field;
- perform primary duties requiring:
- the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system functional specifications;
- design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specificiations; or
- design, documentation, testing, creation or modification of computer programs related to machine operating systems.
Other minimum wage and overtime exemptions
West Virginia also exempts the following employees from its minimum wage and overtime requirements:
- any individual employed by the United States;
- any individual engaged in the activities of an educational, charitable, religious, fraternal or nonprofit organization where the employer-employee relationship does not in fact exist, or where the services rendered to such organizations are on a voluntary basis;
- newsboys;
- shoeshine boys;
- golf caddies;
- pinboys and pin chasers in bowling lanes;
- traveling salesmen;
- services performed by an individual in the employ of his parent, son, daughter or spouse;
- any person whose employment is for the purpose of on-the-job training;
- any individual employed in a boys or girls summer camp;
- any person sixty-two years of age or over who receives old-age or survivors benefits from the social security administration;
- any individual employed in agriculture as the word agriculture is defined in the Fair Labor Standards Act of 1938, as amended;
- any individual employed as a firefighter by the state or agency thereof;
- ushers in theaters;
- any individual employed on a part-time basis who is a student in any recognized school or college;
- any individual employed by a local or interurban motorbus carrier;
- so far as the maximum hours and overtime compensation provisions of this article are concerned, any salesman, parts man or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles to ultimate purchasers;
- any employee with respect to whom the United States Department of Transportation has statutory authority to establish qualifications and maximum hours of service;
- any person employed on a per diem basis by the Senate, the House of Delegates, or the joint committee on government and finance of the Legislature of West Virginia, other employees of the Senate or House of Delegates designated by the presiding officer thereof, and additional employees of the joint committee on government and finance designated by such joint committee;
WV Statute 21-5C-1; WV Admin. Code 42-8-8
Overtime only exemptions
West Virginia exempts from its overtime requirements:
- any individual, partnership, association, corporation, person or group of persons, or similar unit if 80$ of the persons employed by him or her are subject to any federal act relating to maximum hours and overtime compensation;
- any person employed as a seasonal employee of a commercial whitewater outfitter where the seasonal employee works less than seven months in any one calendar year; or
- any person employed as a seasonal employee of an amusement park where the seasonal employee works less than seven months in any one calendar year and, in such case.
WV Statute 21-5C-1; WV Statute 21-5C-3
