The West Virginia Department of Labor's Regulations prohibit employees from waiving their rights under the WPCA, and these regulations declare that all improper wage assignments are void. Thus, you must be aware that the following deductions are the only payroll deductions authorized by law without first obtaining a valid wage assignment from an employee:
Authorized deductions for amounts required by law or allowed by law to be withheld, union or club dues, pension plans, payroll savings plans, credit unions, charities or hospitalization or medical insurance.
To be valid, the wage assignment must satisfy the following criteria:
1. Be written;
2. Specify the total amounts due;
3. State that 75 percent of the wages are exempt;
4. Be acknowledged by the employee before a Notary Public (or other authorized official);
5. Contain the written acceptance of the employer; and,
6. Shall only be valid for a period of one (1) year.
You are also required to post an abstract of the WPCA.
Discharged employee must be paid their wages within 72 hours of their final hour of employment. An employee who quits must be given his or her final wages (including fringe benefits) by the next regular payday unless the employee gave at least one pay period’s notice, in which case, the employee must receive all of his or her final wages at the time he or she leaves.
The term "wages" is defined very broadly under the WPCA, as follows:
[Wages are] compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation [and] shall also include the accrued fringe benefits capable of calculation and payable directly to an employee.
None of this should be construed, however, to mean that West Virginia or any other state could require you to make specific payments under a qualified ERISA type benefit plan, such as a "severance" plan or "sick leave" plan, when you have reserved to yourself (or, more precisely, to the plan administrator) in the plan documents the right to control, reduce, or offset payments under the plan for previous "overpayment" to the employee whether they were caused by employee fraud or clerical mistake.
Nevertheless, it is also important to note that wage payment actions for recovery of "accrued vacation" at lease with respect to vacation that is paid out of the general assets of the company, are not preempted by the same ERISA laws that may arguably be applicable to "health and welfare" benefits.
The penalties for failing to pay wages when due, i.e., for making unauthorized deductions, are harsh. You will be responsible to the employee for the following payments:
1. The amount erroneously deducted;
2. Liquidated damages equal to three (3) times the unpaid amount;
3. Atorney’s fees and court costs if you are sued; and
4. Interest on the unpaid damages (five year statute of limitations).
Furthermore, "The employee shall not be subject to a suit for reimbursement from a party to whom the employer improperly paid the employee’s wages". Consequently, West Virginia employers should be particularly cautious about making payroll deductions, even when an employee already has had the full use of the money that was being deducted and owes it back.
Wage Assignment Authorization Form
Authorization for Payroll Deducation Form