Current through Register Vol. XLI, No. 50, December 13, 2024
Section 42-8-8 - Employee Exemptions from Coverage of the Act8.1. The Division shall determine whether an employee is covered by the Act and this rule based on the employee's actual, customary, and regular job duties that he or she performs during any given workweek, and not based upon the employee's job title.8.2. An employee of the United States is exempt from coverage of the Act as long as he or she is directly employed by an agency or department of the federal government.8.3. An individual who is a volunteer is exempt from coverage of the Act.8.4. An individual who delivers newspapers, shines shoes, caddies at a golf course, or sets pins at a bowling alley is exempt from coverage of the Act.8.5. An individual performing services for, or who is otherwise employed by, his or her parent, child, or spouse is exempt from coverage of the Act.8.6. An individual engaged in making outside sales is exempt from coverage of the Act if he or she meets the following tests:8.6.1. The employee is customarily and regularly engaged away from his or her employer's place or places of business; and8.6.2. The employee's primary duty is in making sales, or in obtaining orders or contracts for services or for the use of facilities for which a client or customer pays consideration.8.6.3. An individual who is training to work in outside sales but who is not independently working on his or her own is not exempt from coverage of the Act.8.7. A learned professional employee is exempt from coverage of the Act if he or she meets the following tests: 8.7.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls: And provided further, That the salary or fee requirements of this provision do not apply to bona fide teachers or practitioners of law or medicine;8.7.2. The employee's primary duty is the performance of work requiring advanced knowledge;8.7.3. The advanced knowledge is in a field of science or learning; and8.7.4. The advanced knowledge is customarily acquired by a prolonged course of specialized intellectual instruction.8.8. A creative professional employee is exempt from coverage of the Act if he or she meets the following tests: 8.8.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls; and8.8.2. The employee's primary duty is the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor, such as music, writing, acting, and the graphic arts.8.9. A computer professional employee is exempt from coverage of the Act if he or she meets the following tests: 8.9.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek, or, if the employee is compensated on an hourly basis, at a rate not less than $27.63 an hour: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;8.9.2. The employee is employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties described in subsection 8.9.3 of this section; and8.9.3. The employee's primary duty consists of the following or a combination of the following: 8.9.3.a. The application of systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system functional specifications;8.9.3.b. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on or related to user or system design specifications; or8.9.3.c. The design, documentation, testing, creation, or modification of computer programs related to machine operating systems.8.10. An executive employee is exempt from coverage of the Act if he or she meets the following tests: 8.10.1. The employee is compensated on a salary basis at a rate of at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;8.10.2. The employee's primary duty is the management of the employer's organization, or the management of a customarily recognized department or subdivision of the organization;8.10.3. The employee customarily and regularly directs the work of two full-time employees or the equivalent of two or more full-time employees; and8.10.4. The employee has the authority to hire or fire other employees or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees is given particular weight.8.11. An administrative employee is exempt from coverage of the Act if he or she meets the following tests: 8.11.1. The employee is compensated on a salary or fee basis at a rate at least equal to $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;8.11.2. The employee's primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and8.11.3. The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.8.12. An individual employed for the purpose of on-the-job training is exempt from coverage of the Act for the duration of the training program if he or she meets the following tests: 8.12.1. The employee is enrolled in a training program that sets forth the terms and conditions for his or her training and employment, and that involves skills that are: 8.12.1.a. Customarily learned in a practical way;8.12.1.b. Clearly identified with and commonly recognized throughout a specific industry or trade; and8.12.1.c. Developed by participation in both classroom instruction and work experience; and8.12.2. The training program maintains a written record of the employee's time and progress.8.13. A physically or mentally disabled individual is exempt from coverage of the Act if he or she is employed by a nonprofit sheltered workshop or rehabilitation program that is operated pursuant to W. Va. Code § 18-10A-1et seq. or §18-10B-1et seq.8.14. An individual employed in a boys or girls summer camp is exempt from coverage of the Act.8.15. An individual who is at least 62 years old and who receives benefits from the Social Security Administration is exempt from coverage of the Act.8.16. An individual employed in agriculture is exempt from coverage of the Act.8.17. An individual employed as a firefighter by the State of West Virginia or one of its agencies is exempt from coverage of the Act.8.18. An individual employed as an usher in a theater is exempt from coverage of the Act.8.19. A student enrolled in a recognized school or college is exempt from coverage of the Act if he or she is employed for 24 hours or less during a workweek. A student who is employed for more than 24 hours during a workweek is not exempt from coverage of the Act for all hours he or she works during that workweek.8.20. An individual who is employed by a local or inter-urban motorbus carrier is exempt from coverage of the Act.8.21. An individual who works in sales or as a mechanic in a non-manufacturing business that sells vehicles, trailers, farm implements, or aircraft and related parts, is exempt from coverage of the Act.8.22. An employee whose qualifications and maximum hours of service are established by the United States Department of Transportation is exempt from coverage of the Act.8.23. An individual employed on a per diem basis by either body of the West Virginia Legislature, or by any legislative committee or joint committee, is exempt from coverage of the Act.8.24. An individual employed as a seasonal employee by a commercial whitewater outfitter is exempt from coverage of the Act.8.25. An individual employed as a seasonal employee by an amusement park is exempt from coverage of the Act.