1. In Wasanyi v. Rite Aid Corp., (W.Va. Supreme Ct. Oct. 20, 2015) (memorandum decision), the West Virginia Supreme Court of Appeals upheld a judgment in favor of Rite Aid against its former employee, David Wasanyi, to recover a signing bonus that paid to him. 

    The terms of Wasanyi's employment were set forth in an offer letter, and included a $10,000 signing bonus.  The offer letter stated that it did not constitute a contract; however, attached to the letter was a promissory note that characterized the $10,000.00 signing bonus as a loan, and provided that the loan would be forgiven upon the completion of two years' service. Unlike the offer letter, the promissory was a contract, and was signed by Wasanyi.  The loan became repayable if Wasanyi separated from employment "for any reason."

    Less than two years after his hire date, Rite Aid fired Wasanyi, and he failed to repay the note within 30 days, as required.  Rite Aid sued to recover the $10,000 (plus 6 percent interest required by the note) and the circuit court entered summary judgment for Rite Aid.

    On appeal, the state supreme court affirmed, agreeing with Rite Aid that, although the offer letter was not a contract, the promissory note was.

    Moral to the story: Any time you are expecting an employee to repay anything that looks like wages, it's a good idea to obtain a note signed separately by the employee. Don't rely on a document such as an offer letter or handbook policy that states it is "not a contract."
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  2. Employee handbooks are extremely useful, but they should never be contracts.  In fact, all handbooks should contain one or more conspicuous disclaimers stating they are not contracts to avoid creating unintended contractual rights for employees.

    In employment cases, it's not uncommon for employees to sue an employer for breach of contract for violating a handbook provision.  In its defense, the employer inevitably points to the conspicuous disclaimer in the handbook stating that the document is "not a contract" and "is not intended to create any contractual rights."  It's unusual to see employers argue that a handbook creates a contract. But that's exactly what the employer argued in Lorenzo v. Prime Communications, L.P., Nos. 14-1622 and 14-1727 (4th Cir. Nov. 24, 2015).

    In Lorenzo, the plaintiff employee sued her employer for violating state and federal wage and hour laws.  Relying on an arbitration provision contained in the company's employee handbook, which had been provided to Lorenzo when she began her employment, Prime Communications filed a motion to compel arbitration.

    The district court denied the motion, concluding that Prime Communications did not provide sufficient evidence that Lorenzo had agreed to arbitration. The court held that mere receipt of the employee handbook and continued work for Prime Communications after receiving it were insufficient evidence of Lorenzo’s agreement to the handbook’s arbitration provision.

    In response to Prime Communications’ argument that “its routine requirement for employees to execute an acknowledgment form [was] sufficient evidence of [Lorenzo’s] agreement,” the court noted that Prime Communications “ha[d] been unable to produce any signed acknowledgment form signed by [Lorenzo],” and thus found the argument “untenable.”

    The acknowledgment signed by the employee expressly disclaimed (as it should) that it formed a contractual relationship between the employer and employee:

    I understand that I am responsible for reviewing the Prime Communications Employee Handbook.
    * * * 
    I understand that the Prime Communications’ Employee Handbook is not a contract of employment and does not change the employment-at-will status of employees. Moreover, no provision should be construed to create any bindery [sic] promises or contractual obligations between the Company and the employees (management or non-management).
     * * * 
    By my signature below, I acknowledge, understand, accept, and agree to comply with the information contained in the Employment Handbook. I acknowledge that I will review and read the Company Handbook and that I have the opportunity to ask my Manager questions about the Handbook. I further acknowledge that I fully understand or will make sure that I do understand the contents there of, as they relate to my employment with Prime Communications. I understand that the information contained in the Handbook are guidelines only and are in no way to be interpreted as a contract. 
    (emphasis added).

    Agreeing with the district court that the handbook's arbitration clause was not a contract, the Fourth Circuit refused to compel arbitration.  It emphasized that although the handbook committed “all employment issues” first to an internal dispute resolution process, then to mediation, and finally to arbitration, the signed acknowledgement form stated that “no provision should be construed to create any bindery [sic] promises or contractual obligations between the Company and the employees."

    Moral to the story: It's best to use stand-alone arbitration agreements.  Don't bury the provision in a handbook, especially one with a prominent disclaimer stating that none of its provisions constitute a contract.
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  3. The U.S. Department of Labor issued a new “Administrator’s Interpretation” on employee / independent contractor status under the FLSA.  Administrator's Interpretation No. 2015-1 (July 15, 2015).

    Although there is nothing too “earth-shattering” here, it does emphasize that the common law “control” test is not outcome-determinative under the FLSA.  

    Instead, the FLSA uses the economic realities test that has the following factors:

    (A) the extent to which the work performed is an integral part of the employer’s business;
    (B) the worker’s opportunity for profit or loss depending on his or her managerial skill;
    (C) the extent of the relative investments of the employer and the worker;
    (D) whether the work performed requires special skills and initiative;
    (E) the permanency of the relationship; and
    (F) the degree of control exercised or retained by the employer.

    Whether the worker's activities are tightly controlled by the hiring entity is only one of many factors the DOL will look at to determine whether the worker is an employee.
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  4. Employers sometimes use temporary staffing agencies to supply labor in hopes that, if a temporary employee doesn't work out, they can part ways without the messy employment-related claims.  These "try before you buy" relationships just got a little more risky today.
    In a published opinion, the U.S. Court of Appeals for the Fourth Circuit held that a manufacturer who requested the termination of a staffing agency employee was a joint employer with the staffing agency for Title VII purposes.  In other words, it held that multiple entities may simultaneously be considered employers under Title VII.  Brenda Butler v. Drive Automotive Industries, No. 14-1348 (4th Cir. July 15, 2015) (published).
    The employer, Drive Automotive Industries, operated a factory and used a staffing agency called ResourceMFG to supply some of the labor.  Under the arrangement, both exercised control over the staffing agency employees' employment. ResourceMFG issued the uniforms, paid the employees, provided a special parking lot the employees, and had ultimate responsibility for issues related to discipline and termination.  Drive, on the other hand, set the employees' work schedules, arranged portions of their training, and supervised the employees while they worked on the factory floor.
    The plaintiff was a ResourceMFG employee who was told that she worked for "both" ResourceMFG and Drive.  She also claimed she was repeatedly sexually harassed by a Drive supervisor while working at the factory. The plaintiff claims she reported the harassment to both her ResourceMFG supervisor and to a Drive supervisor named Lisa Thomas, who supervised the alleged harasser, but nothing was done.
    Later, after she refused to work on a piece of machinery because she felt fatigued from working overtime the night before, the alleged harasser told her she was "a temp and could easily be fired." When she reported the encounter to Thomas, Thomas requested another supervisor at Drive to have the plaintiff terminated. The request was sent to ResourceMFG. The alleged harasser then allegedly contacted the plaintiff and told her that she could save her job by performing sexual favors for him.  When she refused, ResourceMFG terminated her from Drive.
    The lower court found that Drive could not be held liable under Title VII because it was not the plaintiff's employer.  Instead, it found that ResourceMFG was the plaintiff's sole employer.
    On appeal, the Fourth Circuit disagreed, reversed and remanded the case.  The court held that both Drive and ResourceMFG were the plaintiff's employer.  Before today, the Fourth Circuit had never expressly adopted the joint employment doctrine in the Title VII context, and it had never articulated a set of factors for determining when two entities would be considered joint employers.
    In today's opinion, the Court articulated a "hybrid test," consisting of the following factors, to use in assessing whether an individual is jointly employed by two or more entities:
    (1) authority to hire and fire the individual;
    (2) day-to-day supervision of the individual, including employee discipline;
    (3) whether the putative employer furnishes the equipment used and the place of work;
    (4) possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes;
    (5) the length of time during which the individual has worked for the putative employer;
    (6) whether the putative employer provides the individual with formal or informal training;
    (7) whether the individual’s duties are akin to a regular employee's duties;
    (8) whether the individual is assigned solely to the putative employer; and
    (9) whether the individual and putative employer intended to enter into an employment relationship.
    Although no factor is dispositive, the court acknowledged that the first three factors (in bold above) are the most important.
    Applying these factors, the court found that both Drive and ResourceMFG were the plaintiff's employer.  While ResourceMFG had the actual power to fire, Drive had the power to request that ResourceMFG's employees be reassigned, and those requests were always followed.  That gave Drive effective control over the plaintiff's employment.  Drive also supervised the day-to-day activities of ResourceMFG's employees, and furnished all of the equipment and place of work.  Many of the remaining 6 factors were also present.
    So, if your company uses a staffing agency, but retains the right to have employees reassigned and supervises them alongside your own employees, then you very well could be deemed a joint employer with the staffing agency for Title VII purposes.  Requesting the staffing agency to reassign a problem employee can result in liability in the same way as firing one of your own true W-2 employees.
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  5. An employer's "lukewarm" response to anonymous racist death threats can lead to hostile work environment liability, held the U.S. Court of Appeals for the Fourth Circuit yesterday in Pryor v. United Air Lines, Inc., No. 14-1442 (4th Cir., July 1, 2015).

    The plaintiff, Renee Pryor, an African-American flight attendant, alleged that her employer, United Air Lines, failed to adequately respond to a racist death threat left in her company mailbox. The district court concluded that Pryor was subjected to a racially hostile work environment, but granted summary judgment to the airline after deciding that it was not liable for the offensive conduct.  On appeal, the Fourth Circuit reversed, holding that the employer had not made an adequate response.

    The plaintiff joined United Airlines in 1984 and began working out of Dulles International Airport in the early 1990s. In January 2011, she discovered in her company mailbox a paper note claiming to be a “N[-word] Tag – Federal N[-word] Hunting License,” declaring that the holder was “licensed to hunt & kill N-----S during the open search hereof in the U.S.” The tag also purported to give “the holder permission to hunt day or night, with or without dogs.” A hand-drawn image of a person hanging from a pole or a tree appeared on one corner of the document, along with the words “this is for you.” The mailbox was in a secure space at the airport, accessible to United employees and others with company authorization.

    Acknowledging that "instances of anonymous harassment pose unique challenges to companies that must work both to identify the perpetrator and to protect victims from a faceless, though ominous, threat," the court found that
    on the other hand, an employer maintains a responsibility to reasonably carry out those dual duties of investigation and protection. The anonymous nature of severe threats or acts of harassment may, in fact, heighten what is required of an employer, particularly in circumstances where the harassment occurs inside a secure space accessible to only company-authorized individuals.
    Employers may be held liable for hostile work environments created by co-workers and third parties "if it knew or should have known about the harassment and failed to take effective action to stop it ... [by] respond[ing] with remedial action reasonably calculated to end the harassment." (Slip Op. at 19) (emphasis in original).

    In the present case, the court found that a reasonable jury could conclude that United Air Lines' investigation was "neither prompt nor reasonably calculated to end the harassment."  It found the following faults in United's response:
    • United supervisors did not call police, even though police later suggested that they should have.
    • They violated their own policy by failing to escalate the matter to the Employee Service Center, which was responsible for "initial in-take of the [harassment] complaint and ... forward[ing] to an investigative team for investigation and follow-up" under United's Harassment & Discrimination ("H&D") Policy.
    • They did not inform corporate security of the racist message on the fliers discovered in the break room. 
    • They did not promptly install cameras or other monitoring devices. 
    • They did not provide Pryor with additional security or protective measures. 
    • They did not obtain fingerprints, do other forensics analysis, or interview co-workers. 
    • And they remarkably did not inform Pryor when their investigation closed, an event that occurred without management having sent any correspondence to employees to solicit information and/or put them on notice that the company was being vigilant in monitoring the workplace. 
    To make matters worse for United, after this first round of threats and its "lukewarm" response, the racist notes reappeared in even more employee's mailboxes.  The court found that "on this record, a reasonable jury could find a causal relationship" between the initial response and the later reappearance of the notes.

    So, the moral to this story is that employers must take anonymous threats seriously and not just throw up their hands and say they can't do anything about it.  Even though the anonymous harasser may never be found, the employer can protect itself from liability by reacting swiftly and taking all reasonable measures to investigate and catch the perpetrator.  That could include calling police, installing surveillance cameras, conducting forensic examinations, and offering additional protection to the harassed individuals.  Context is important.  This harassment occurred in a secure area of an airport, and involved death threats.  Not every case involves such serious factors.  But, to avoid liability for a hostile work environment, employers should err on the side of caution by being as thorough as reasonably possible to find the culprit and stop the harassment.
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  6. The West Virginia Legislature removed several stumbling blocks for employers last legislative session that become effective June 11 and 12.

    Senate Bill 12 (effective June 11, 2015) (amends W.Va. Code §§ 21-5-1 and 21-5-4)

     Effective today, employees who are discharged or who resign must be paid their final wages "on or before the next regular payday on which the wages would otherwise be due and payable."

    This common-sense amendment removes a major trap for unwary employers in this state.

    Prior to this bill, employers were required to pay discharged employees all wages and fringe benefits by the next regular payday or within four business days, whichever occurred first. Employers who missed the deadline faced a massive penalty of three times the untimely paid amount in liquidated damages.  The new deadline means employers do not have to pay employees outside of the normal payroll cycle when they quit or are fired, removing a major burden for employers.

    Senate Bill 12 also reduced the liquidated damages to double instead of triple the untimely paid amount, and revises the deadline for paying certain fringe benefits.  The law states that
    fringe benefits [as defined in the statute] ... that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement.
    In other words, if an employer has an agreement with an employee to pay out unused vacation within 30 days of discharge or resignation, that deadline will be controlling, and the unused vacation will not be due on the next regular pay date following discharge.

    The amendment is also significant because it creates a common deadline for final wage payment, regardless of whether an employee resigns with notice, without notice, or is discharged. And finally, it clarifies that liquidated damages are not available to employees who claim they were misclassified as exempt from overtime under state and federal wage and hour laws.  (Numerous case authorities provide that the WPCA cannot be used to recover overtime due under the FLSA.)

    Senate Bill 318 (effective June 12, 2015) (amends W.Va. Code § 21-5-3)

    Beginning tomorrow, employers in West Virginia may begin paying their employees twice per month instead of every two weeks (so long as the employer does not allow more than 19 days between payments).  This means employers may pay employees on the 15th and 30th of each month, which saves 2 payroll cycles per year.  Under prior law, employers could pay twice a month only if they obtained a special agreement from the Commissioner of the Division of Labor.

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  7. A former ExxonMobil employee claiming he was fired in retaliation for reporting illegal pharmacy practices in the workplace stated a viable claim of public policy wrongful discharge under Virginia law, the Fourth Circuit held in Weidman v. Exxon Mobil Corp., No. 13-2007 (4th Cir., Jan. 8, 2015).

    The employee's complaint alleged that in 2009, he discovered ExxonMobil had been operating illegal pharmacies in multiple states, and had illegally stockpiled large quantities of medication in its Fairfax, Virginia office, as well as in other clinics.  He claims senior managers were aware of the illegal activities, and terminated him after he refused to participate in the illegal distribution scheme. He also claimed that the stress his managers put him under caused him to suffer a heart attack and emotional stress.  He sued ExxonMobil and a number of managers for fraud, intentional infliction of emotional distress, personal injury, and wrongful discharge.

    The district court dismissed all of the claims.  On appeal, the Fourth Circuit affirmed the dismissal of all but the wrongful discharge claim, finding that it was viable under Virginia law.  Virginia has a statutory prohibition against operating illegal pharmacies. Va Code Ann. 54.1-111.  The case was remanded for further proceedings.
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  8. The time warehouse workers spend going through security screenings is not compensable under the Fair Labor Standards Act (FLSA), a unanimous U.S. Supreme Court ruled Dec. 9. Integrity Staffing Solutions, Inc. v. Busk, et al., No. 13-433, (U.S. Sup. Ct., Dec. 9, 2014).

    The court, in a unanimous opinion authored by Justice Thomas, said the Amazon.com workers couldn’t proceed with a lawsuit seeking wages for the security checks because the time they spent waiting to be screened wasn’t an integral and indispensable part of their jobs.

    The case could have been a disaster for many retail and warehouse employers, had it gone the other way. Thankfully, it didn't. The Court stood by its longstanding interpretation of the Portal-to-Portal Act, which treats preliminary and postliminary activities such as this as noncompensable.
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  9. Employees suing to recover prevailing wages under the West Virginia Prevailing Wage Act (PWA) may not also recover liquidated damages under the West Virginia Wage Payment and Collection Act (WPCA), the West Virginia Supreme Court ruled in Grim v. Eastern Electric, LLC, (No. 13-1133, W.Va. Supreme Court, Nov. 3, 2014).

    The plaintiffs in Grim were seven electricians employed by Eastern Electric, LLC, to work on several public works projects.  They claim they were not paid the prevailing wage, and sued Eastern Electric to recover statutory wages and penalties under the PWA, as well as treble liquidated damages under WPCA. 

    The circuit court granted summary judgment for Eastern Electric on all claims.  It found that the applicable statute of limitations had expired, that Eastern Electric had proven its "honest mistake or error" affirmative defense, and that the WPCA was not applicable because (1) the PWA damages were an exclusive remedy, and (2) PWA damages were not "wages."

    On appeal, the the West Virginia Supreme Court reversed the dismissal of the PWA claims, but affirmed the dismissal of the WPCA claims.  Regarding the PWA claims, it found the 5-year statute of limitations for unwritten contracts applicable rather than the catchall 2-year statute.  It found genuine issues of material fact existed regarding the "honest mistake or error" affirmative defense.

    The more controversial ruling, however, involved the WPCA claim.  To analyze this issue, the court had to grapple with how the WPCA works (or doesn't) in conjunction with other wage-related claims. The WPCA provision at issue, W.Va. Code § 21-5-4, is the dreaded "final wages" rule.  It sets deadlines for payment of final wages, and famously provides for treble liquidated damages when employers miss those deadlines.  

    Most of the time, WPCA claims revolve around simple late payment of the final paycheck.  But in some cases, there is a genuine dispute over what wages are owed.  Employees have argued, mostly unsuccessfully, that WPCA damages can be tacked on to late payments of overtime premiums recovered under the FLSA, and back wages under the WARN Act.

    But, the question of whether the WPCA could be used in conjunction with the PWA was one of first impression.  The circuit court held that the PWA's damages provision was the "exclusive remedy." The PWA provides for recovery of the difference between the amount paid and the prevailing wage, plus a like amount as a statutory "penalty."  The circuit court also found that the amount recovered under the PWA was not "wages" but was some other form of damages.

    The supreme court rejected the reasoning of the circuit court, but affirmed the decision anyway.  The Court explained its reasoning as follows:
    Unlike the PWA, the WPCA does not create a right to compensation; rather it merely provides a statutory vehicle for employees to recover agreed-upon, earned wages from an employer. "'The West Virginia Wage Payment and Collection Act is remedial legislation designed to protect working people and assist them in the collection of compensation wrongly withheld.'" 
    The WPCA explicitly provides a private cause of action and statutory remedy when the employer breaches its obligation to pay earned wages. Notably, the WPCA "does not establish a particular rate of pay, instead, it controls the manner in which employees in West Virginia are paid wages and it imposes on employers an obligation to pay employees' wages in a timely manner."  The amount of wages payable to an employee pursuant to the provisions of the WPCA is determined exclusively by the terms of the employment agreement. We emphasize that petitioners' independent rights to both contractual wages and statutory prevailing wages emanate from different sources, as do the mechanisms for recovery of such wages. Straight-time wages (above the minimum wage) are a matter of private contract or agreement between the employer and employee. Entitlement to prevailing wages, on the other hand, is mandated by the PWA and is based on an important public policy. The duty to pay prevailing wages is a statutory duty imposed by the State; it is not a matter left to the private discretion of the employer.
    In this case, petitioners attempt to bootstrap a WPCA claim to the statutory remedies provided by the PWA by obtusely contending they were not paid "wages due." However, as made clear above, the WPCA merely provides a statutory mechanism to recover "compensation wrongly withheld." Petitioners herein do not contend that their contractual wages were wrongly "withheld" or that their agreed-upon wages were not paid timely. Rather, the gravamen of petitioners' complaint is that the agreed-upon wages were in violation of the PWA; therefore, their remedy for this violation lies within the PWA. The WPCA creates no right to prevailing wages. 
    Grim, supra (citations omitted).  What this case seems to say is that where the obligation to pay wages is statutory rather than contractual, then a WPCA claim is not viable.  This should prevent WPCA recoveries for violations of the FLSA, the West Virginia Minimum Wage and Maximum Hours Standards, and any other statute that imposes wage payment obligations.

    Justice Davis, in her dissenting opinion, found that the majority's reasoning was flawed.  She reasoned that the two laws serve different purposes, and would have allowed the WPCA claim to be asserted in addition to the PWA claim.
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  10. Yesterday, the West Virginia Supreme Court confirmed what most of us have always believed--that the state's overtime law does not apply to employers who have 80 percent or more of their employees "subject to" the federal Fair Labor Standards Act.  There was, perhaps, some room for argument about what "subject to" meant, but the court cleared that up yesterday in King v. West Virginia's Choice, Inc., No. 13-1255 (W.Va. Supreme Court, Nov. 7, 2014). 

     In King, the plaintiff was an in-home direct care worker employed by W.Va. Choice, a companionship services provider to the elderly and infirm. Ms. King filed a class action complaint alleging that W.Va. Choice violated the state’s Minimum Wage and Maximum Hours Standards law by failing to pay her overtime. The circuit court granted summary judgment to W.Va. Choice, finding that W.Va. Choice was not an "employer" under state law. 

     When this action was instituted in 2012, the statutory definition of “employer” included the proviso that “the term ‘employer’ shall not include any . . .corporation . . . if eighty percent of the persons employed by him are subject to any federal act relating to minimum wage, maximum hours and overtime compensation.” W.Va. Code § 21-5C-1(e) (emphasis added). 

     This provision was amended effective January 1, 2015, so that this exception will only apply to the overtime provision of the state law, not the minimum wage and other provisions. Because more than 80 percent of W.Va. Choice's employees are subject to the FLSA, the state law is inapplicable, the circuit court ruled.

     On appeal the W.Va. Supreme Court agreed and affirmed the decision.  The plaintiff argued that "subject to" the FLSA meant "entitled to" overtime wages under the federal law.  The employer argued that "subject to" meant "governed by or affected by" the federal law, not necessarily entitled to overtime or minimum wage.  This distinction is important because employees can be "subject to" the FLSA and yet not receive overtime or minimum wage because they are expressly "exempted from" its effects.  Ms. King, for example, was overtime exempt under the FLSA's home health care worker exemption.  Other examples of overtime exempt employees include white-collar professionals, executives, and administrators.  They are "subject to" the law, but exempt from its overtime provisions.

     Justice Loughry, writing the opinion for the court, found that the phrase "subject to" must be given its ordinary, accepted meaning.  "The phrase 'subject to' is defined as 'under authority of' and 'governed or affected by,'" he explained.   "Conversely, the phrase 'entitled to' is defined as to 'give (someone) a legal right or a just claim to receive . . . something' and 'to give a right . . . to.'”  He found that the legislature meant what it said:  Employers who have 80 percent or more of their work force "subject to" (governed or affected by) the FLSA are not "employers" under state law, even if some or all of its employees are "exempt" from overtime or minimum wage.  "Importantly," the court explained, "the applicability of a particular FLSA exemption does not mean that an employer or an employee is no longer subject to the FLSA."

     The court further held that because W.Va. Choice was a covered "enterprise" under the FLSA all of its employees were "subject to" the federal law. See, Shultz v. Poirier, 300 F.Supp. 1156, 1158 (D.C. La. 1969) ("Under the concept of enterprise coverage, a business that qualifies as a covered enterprise within the meaning of the statute is subject to the [FLSA’s] requirements with respect to all its employees[.]") This clearly satisfies the 80-percent threshold.

     Although this opinion was decided under the pre-2014 amendments to the Minimum Wage and Maximum Hours Standards law, it is significant because the new amendments use the same phrase "subject to." The new revisions change the definition of "employer" to this:
    (e) “Employer” includes the State of West Virginia, its agencies, departments and all its political subdivisions, any individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee; and who employs during any calendar week six or more employees as herein defined in any one separate, distinct and permanent location or business establishment: Provided, That prior to January 1, 2015, the term “employer” shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him or her are subject to any federal act relating to minimum wage, maximum hours and overtime compensation: Provided, however, That after December 31, 2014, for the purposes of section three of this article, the term “employer” shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him or her are subject to any federal act relating to maximum hours and overtime compensation.
    W.Va. Code § 21-5C-1(e) (2014).  So, after December 31, 2014, the term "employer" in the state's overtime provision only (W.Va. Code § 21-5C-3) will continue to mean those very few employers who have more than 6 employees, but do not have 80 percent of their employees "subject to" the FLSA.  Any employer who is a covered "enterprise" under the FLSA will not be covered by the state overtime provision, and will continue to pay its employees in accordance with the federal overtime laws.

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