West Virginia – Minimum Wage and Overtime Exemptions

West Virginia Minimum Wage and Overtime Exemptions

Executive exemption

West Virginia exempts bona fide executive employees from its minimum wage and overtime requirements. WV Code 21-5C-1(f)(6). To qualify as an executive employee, an employee must:

  • perform primary duties consisting of the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof;
  • customarily and regularly directs the work of two or more other employees;
  • 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; and
  • customarily and regularly exercises discretionary powers.

WV Admin. Code 21-5C-8.7(b)

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:

  • 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;
  • customarily and regularly exercises discretion and independent judgment;
  • perform work where he or she:
    • regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, or
    • performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge, or
    • executes under only general supervision special assignments and tasks;

WV Admin. Code 21-5C-8.7(c)

Professional exemption

West Virginia exempts bona fide professional employees from its minimum wage and overtime requirements. WV Code 21-5C-1(f)(6). To qualify as a professional employee, an employee must:

  • perform primary duties consisting of:
    • performing work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or
    • performing work which is original and creative in character in a recognized field of artistic endeavor, as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training, and the result of which depends primarily on the intention, imagination, or talent of the employee; or
    • teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he is employed;
  • perform work that requires the consistent exercise of discretion and judgment in its performance; and
  • perform work that is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

WV Admin. Code 21-5C-8.7(a)

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, as well as on the premises in one of the following alternative activities:
    • making sales, including any sale, exchange, contract to sell, consignment for sale, shipment for sale or other disposition;
    • obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer;
  • spend no more than 30 percent of his or her worked in the work week performing non-sales work, which does not include work that is performed incidental to and in conjunction with the employee’s own outside sales or solicitations, including incidental deliveries and collections;

Employees who are training to be outside salesmen but do not actually perform outside salesmen work do not qualify for the outside salesman exemption.

WV Admin. Code 21-5C-8.5

Computer employee exemption

West Virginia minimum wage laws do exempt computer systems analysts, computer programmers, software engineers, or other similarly skilled workers from its minimum wage or overtime requirements.

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;
  • 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 fire fighter 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; or
  • 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 and, in such case, only for the limited purpose of exempting the seasonal employee from the maximum wage provisions of section three of this article.

WV Code 21-5C-1(f)