Starting June 4, 2020, a new “safe harbor” revision to the West Virginia Wage Payment and Collection Act provides West Virginia’s employers an avenue to avoid the liquidated damages and attorney’s fees provisions of the Act. Without this safe harbor, employers face penalties for different types of violations, some of which allow an employee to recover liquidated damages in the amount of twice the wages owed and allow for an employee to recover his or her attorney fees and costs.

Under the new safe harbor provision:

• The employer must provide proper notification to the separated employee outlining contact information for dispute resolution;
• The employee must notify the employer in writing of a “pre-suit demand” which includes any amounts he or she believes are still due;
• The employer has 7 days after notification to correct the error;
• If the error is corrected, the employee may not sue for additional damages;
• The pre-suit demand is required for single plaintiff and class action suits.

The provisions allow former employees a prompt resolution to wage payment issues that are easily resolved, while protecting businesses that make honest errors from costly litigation.

The employer’s communication at the time of separation is critical for protection under the new safe harbor provision, and employers should immediately implement a process for communicating the required information with employees separating from employment to help avoid future liability.