COLUMN: WV Division of Labor Oversteps Authority on Minimum-Wage Rules

Date: December 17, 2014

The following column originally appeared in The Herald-Dispatch on Dec. 17, 2014:


When he signed the bill raising the state minimum wage, Gov. Earl Ray
Tomblin knew “there may be some unintended consequences,” but I don’t think
anyone thought it would be this bad:

In drafting a set of emergency rules for dealing with minimum wage and
maximum work hours, the West Virginia Division of Labor appears to have grossly
overstepped its authority.

The legislation raising the state minimum wage essentially did three
things: raise the minimum hourly wage to $8.75 an hour by 2016, expand the
statute to include more employers and change the “tip credit” available to

That’s it.

The division’s proposed rules, however, go much further by establishing
a legal definition of a workweek, creating new guidelines for dealing with
volunteers and student interns and determining the periods for which employees
must be paid, such as breaks and meals, training and travel time.

What’s more, by clumsily trying to adopt regulations consistent with
the federal Fair Labor Standards Act, the division would essentially create two
contradictory sets of requirements for dealing with basic timekeeping issues.

For example, federal regulations say certain activities such as
walking to and from a workstation, changing into a uniform or special clothing
or putting on or taking off safety equipment are considered “hours worked.” The
state Division of Labor, however, has come up with a completely different
definition of hours worked. The proposed state regulations also greatly expands
the rules concerning whether employees must be paid for being “on call.”

If the proposed rules are allowed to take effect, employers who comply
with the federal guidelines could find themselves in violation of the West
Virginia’s new rules.

Compounding the problem is the fact that the Division of Labor has
given employers so little time to review and make sense of the proposed rules.

The division released 200 pages of proposed rules on Nov. 19 and have
given employers and other interested parties until Dec. 19 to respond—just 12
days before the rules are take effect.

This is bad enough for large corporations but it’s flat-out unfair to
West Virginia’s small businesses.

People tend to lump all businesses together, but a small business
isn’t the same as a large corporation. Small businesses don’t have teams of
lawyers and compliance officers to review the proposed rules and take
appropriate action. When you have a small business, the CEO may be the
compliance officer, and the person who signs the check is often the same person
who empties the trash.

Having the government artificially raise the cost of labor by raising
the minimum wage is bad enough. There’s only so much money in the pot, after
all, so, when you have to pay each employee more, you can’t afford to have as
many employees.

To raise the cost of labor and then hit small businesses with such an
onerous set of rules and regulations is simply unfair. It’s a double-whammy
that’s going to make it even harder for some mom-and-pop businesses to keep the
doors open.

That’s why we’re asking the Division of Labor to back off. Do what the
Legislature said you could do, and don’t do anything more. Some of the proposed
regulations would represent a wholesale change in how West Virginia does
business. We need to review them and work together to create rules that work
for employees as well as their employers.

# # #

White is West Virginia state director of the National Federation of Independent
Business, the state’s leading small-business association.


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