There has been much discussion recently about the change in payroll practices for employees of the State of West Virginia. The debate serves to focus one of the glaring realities of today's workplace.
Both federal and state laws impact an employer. The West Virginia Wage Payment and Collection Act, (W.Va. Code 21-5-1 et. seq.) was first enacted more than 80 years ago in order to assure that workers could enforce their rights to be timely paid.
The Act contains several provisions to assure prompt payment of wages including requirements that workers be paid all amounts owed within specified times after leaving employment and that they be paid through a convenient means (cash, direct deposit, check or money order on banks convenient to the place of employment).
If the employer fails to comply with the statutory mandate, it can be assessed liquidated damages and be forced to reimburse the employee for attorneys' fees if the worker is forced to file suit.
The Act has never been a model of clarity. The statute contains separate provisions covering railroads which require that wages be paid "semimonthly" though private employers have been required to pay employees "... at least once in every two weeks ..."
Further, the statute defines the term "employer" to include "... any person, firm or corporation employing any employee ..." and as such there has historically been a question as to whether the Act applied to governmental employers. In 2000, the West Virginia Supreme Court of Appeals resolved that issue and ruled the term "employer" included both private and governmental employers.
Further complicating the situation is a provision which provides that an employer may avoid the statutory requirement by having a "special agreement" with the employee.
However, such an agreement requires notice to employees, an opportunity for employees to be heard in opposition to the arrangement and approval by the West Virginia Commissioner of Labor based on "... a compelling showing of good cause" by the employer. Very few of these "special agreements" exist since the standard for approving them is very difficult for an employer to meet.
As of April 23, 2013, the law required that all employees (other than rail workers) within the State of West Virginia be paid "every two weeks." (W.Va. Code 21-5-3).
On that date the three members of the West Virginia Enterprise Resource Planning (ERP) Board voted to move West Virginia's payroll process from semimonthly to biweekly pay for all state employees to bring all state employees under a unified pay schedule.
That schedule would also have been consistent with the requirements of the Act and offered the prospect of significant efficiency and administrative savings.
On March 14, 2014, Gov. Tomblin signed Senate Bill 322 allowing the frequency of state employee pay to change, and the ERP Board adopted a "phased in" approach which would begin April, 2015 (later postponed to June, 2015.)
But the West Virginia Legislature again amended the statute effective June 12, 2015, to require payment "... twice every month and with no more than 19 days between payments."
As a result of the continuing debate among the Commissioner of Labor, the Auditor, and the Legislative Auditor regarding the proper method for calculating pay for some state workers and other related issues, the majority of the ERP Board has now voted to delay implementation of the change.
The reality for every employer - private and governmental alike - is that there are often inconsistencies (or outright conflicts) between the "letter of the law" and the complex payroll processes necessary to quickly and accurately pay employees for each hour they have worked.
In addition, modifications to software and computerized payroll systems necessary to implement even seemingly minor changes can be time consuming, expensive and (initially) prone to errors.
As difficult as the issues may be in West Virginia, consider the fact that national employers must comply with the individual statutes of each state in which they employ workers.
Only one thing is certain; in the world of human resources and employment, nothing is ever easy.
Joe Price is a board member with the law firm Robinson & McElwee PLLC with 35 years of experience in labor and employment matters.