Current through Register Vol. XLI, No. 50, December 13, 2024
Section 42-8-3 - Definitions3.1. "Act" means the Minimum Wage and Maximum Hours Standards for Employees Act, W. Va. Code § 21-5C-1et 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.