West Virginia Code of State Rules › Agency 42 - Labor › Title 42 - LEGISLATIVE RULE DIVISION OF LABOR › Series 42-08 - Minimum Wages, and Maximum Hours, and Overtime Compensation › Section 42-8-3 - Definitions

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. "Act" means
				the Minimum Wage and Maximum Hours Standards for Employees Act, W. Va. Code
				§
									21-5C-1
et
				seq
.
3.2. "Agriculture"
				means farming in all its branches and among other things includes the
				cultivation and tillage of the soil, dairying, the production, cultivation,
				growing and harvesting of any agricultural or horticultural commodities
				(including commodities defined as agricultural commodities in the Agricultural
				Marketing Act of 1946, 12
				U.S.C. §
										1141j), the raising of
				livestock, bees, fur-bearing animals, or poultry, and any practices (including
				any forestry or lumbering operations) performed by a farmer or on a farm as an
				incident to or in conjunction with such farming operations, including
				preparation for market, delivery to storage or to market or to carriers for
				transportation to market.
3.3.
				"Bona fide sleep period," for an employee who is on duty for 24 or more
				consecutive hours, means a regularly scheduled time period of eight hours,
				provided that the employer furnishes adequate sleeping quarters for the
				employee, during which the employee can usually enjoy a night's
				sleep.
3.4. "Claimant" means an
				employee or former employee who submits a request for assistance to the
				Division of Labor, alleging that he or she is owed unpaid minimum wages,
				overtime wages, or alleging any other violation of the Act or this
				rule.
3.5. "Commission" means a sum
				of money paid by an employer to an employee when the employee performs or
				completes a certain task, such as the selling of a specified amount of goods or
				services, or for performing a specified service for the employer.
3.6. "Compensable time" means the time an
				employer requires, permits, or suffers an employee to work and for which the
				employee must be paid.
3.7.
				"Customarily and regularly" means work normally performed during every
				workweek, but does not include isolated or one-time tasks.
3.8. "Customarily recognized department or
				subdivision" means a unit within an employer's organization with permanent
				status and functions.
3.9.
				"Directly related to management or general business operations," as that term
				is used in 8.11.2 of this rule, means work performed by an employee that is
				directly related to assisting with the running or servicing of an employer's
				business or the business of an employer's customer, as distinguished, for
				example, from working on a manufacturing production line or selling a product
				in a retail or service establishment. Work directly related to management or
				general business operations includes, but is not limited to, work in functional
				areas such as tax, finance, accounting, budgeting, auditing, insurance, quality
				control, purchasing, procurement, advertising, marketing, research, safety and
				health, personnel management, human resources, employee benefits, labor
				relations, public relations, government relations, computer network, internet
				and database administration, legal and regulatory compliance, and similar
				activities.
3.10. "Director" means
				the director of the Division of Labor Wage and Hour Section and his or her
				authorized representatives.
3.11.
				"Discretion and independent judgment" means the comparison and the evaluation
				of possible courses of conduct, and acting or making a decision after the
				various possibilities have been considered. The phrase "discretion and
				independent judgment" must be applied in light of all the facts involved in a
				particular employment situation in which the question arises. Factors to
				consider when determining whether an employee exercises discretion and
				independent judgment with respect to matters of significance include, but are
				not limited to: whether the employee has the authority to formulate, affect,
				interpret, or implement an employer's management policies or operating
				practices or the management policies or operating practices of an employer's
				customer; whether the employee carries out major assignments in conducting the
				operations of the business; whether the employee performs work that affects
				business operations to a substantial degree, even if the employee's assignments
				are related to the operation of a particular segment of the business; whether
				the employee has the authority to commit the employer in matters that have
				significant financial impact; whether the employee has the authority to waive
				or deviate from established policies and procedures without prior approval;
				whether the employee has the authority to negotiate and bind the employer on
				significant matters; whether the employee provides consultation or expert
				advice to management; whether the employee is involved in planning long - or
				short-term business objectives; whether the employee investigates and resolves
				matters of significance on behalf of management; and whether the employee
				represents the employer in handling complaints, arbitrating disputes, or
				resolving grievances.
3.12.
				"Division" means the West Virginia Division of Labor.
3.13. "Dual job employee" means an employee
				who performs work as both a service, or tipped, employee and a non-service, or
				non-tipped, employee for one employer.
3.14. "Engaged to wait" means a period of
				inactivity during which an employee remains at work or on duty, is under the
				employer's direction and control, is unable to use the time effectively for his
				or her own purposes, and the waiting is an integral part of the employee's
				job.
3.15. "Exempt employee" means
				an employee who is not covered by the Act and this rule.
3.16. "Fee basis" means a predetermined
				agreed amount of compensation for a single job, regardless of the amount of
				time required to complete the job.
3.17. "Field of science or learning" means
				and includes law, medicine, theology, accounting, actuarial computation,
				engineering, architecture, teaching, various types of physical, chemical, and
				biological sciences, pharmacy, and other occupations that have a recognized
				professional status and are distinguishable from the mechanical arts or skilled
				trades where the knowledge could be of a fairly advanced type, but is not in a
				field of science or learning.
3.18.
				"Final order" or "Commissioner's final order" means an order issued by the
				Commissioner of the Division which the employer either does not appeal pursuant
				to W. Va. Code §
									29A-5-4, or which has been upheld
				after the employer has exhausted his or her appeal rights pursuant to W. Va.
				Code §
									29A-5-4 and §
									29A-6-1.
3.19. "Management" generally includes, but is
				not limited to, activities such as interviewing, selecting, and training of
				employees; setting and adjusting of employees' rates of pay and hours of work;
				directing the work of employees; maintaining production or sales records for
				use in supervision or control; appraising employees' productivity and
				efficiency for the purpose of recommending promotions or other changes in
				employees' status; handling employee complaints and grievances; disciplining
				employees; planning the work; determining the techniques to be used;
				apportioning the work among the employees; determining the type of materials,
				supplies, machinery, equipment, or tools to be used or merchandise to be
				bought, stocked, and sold; providing for the safety and security of the
				employees and property; planning and controlling the budget; and monitoring or
				implementing legal compliance measures.
3.20. "Matters of significance" means a level
				of substantial importance or consequence of the work performed.
3.21. "Non-exempt employee" means an employee
				who is covered by the Act and this rule.
3.22. "Non-service employee" means an
				employee who does not customarily receive tips or gratuities in connection with
				his or her work.
3.23. "On-call
				time" means the time an employer requires an employee to remain on, or in close
				proximity to, the employer's premises so that the employee is not free to use
				the time as he or she wishes. If an employer only requires an employee to leave
				his or her contact information at home with the employer, the employee is not
				working "on-call."
3.24. "Overtime"
				means compensation at one and one-half times a non-exempt employee's regular
				rate of pay for all time worked in excess of 40 hours in the employer's
				established workweek.
3.25. "Pay
				period" means a defined time frame established by an employer for which an
				employee receives a paycheck.
3.26.
				"Particular weight" means that an executive employee's recommendations
				regarding the hiring, firing, promotion, or other changes in status of
				subordinate employees are frequently requested by, made to, and relied upon by
				the executive's superior or higher level manager.
3.27. "Political subdivision" means and
				includes a county, city, township, village, school, sanitation, utility,
				irrigation, drainage and flood-control districts, and similar governmental
				entities that are created or authorized by statute.
3.28. "Primary duty" means an employee's
				principal, main, major, or most important duty, as determined by the character
				of the employee's job as a whole.
3.29. "Regular rate" means the compensation
				an employer pays to a non-exempt employee for his or her work for no more than
				40 hours worked in the employer's established workweek.
3.30. "Request for Assistance" or "RFA" means
				a form provided by the Division and submitted by a claimant alleging that he or
				she is owed unpaid wages or alleging any other violation of the Act or this
				rule.
3.31. "Salary" means a
				predetermined amount of pay that constitutes an employee's compensation for a
				pay period, and which is not subject to a reduction based on the quality or
				quantity of work the employee performs.
3.32. "Sale" or "sell" means any sale,
				exchange, contract to sell, consignment for sale, shipment for sale, or other
				disposition.
3.33. "Seasonal
				employee" means an individual who works less than seven months in any one
				calendar year.
3.34. "Service
				employee" means an individual who customarily receives tips or gratuities in
				connection with his or her work.
3.35. "Status conference" means an employer's
				informal meeting with the Division regarding the status of the Division's
				investigation into an alleged violation of the Act or this rule.
3.36. "Volunteer" means a person who performs
				or offers to perform a service for an educational, charitable, religious,
				fraternal, public, or similar non-profit agency or organization, including
				public agencies, without compensation, provided that such services are not the
				same type of services which the individual is employed to perform for the
				agency or organization.
3.37. "Work
				day" means any continuous 24-hour period within a workweek.
3.38. "Work requiring advanced knowledge"
				means work that is predominantly intellectual and requires the consistent
				exercise of discretion and judgment.