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No hourly wage??? West Virginia

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  • No hourly wage??? West Virginia

    Hi - I was just talking to my sister who works in an independently run (not a chain) restaurant in WV. She said she gets no hourly wage. She gets a paycheck every 2 weeks, but it always says $0??? On the Dept of Labor website it says minimum should be $5.80, am I right? Or are some businesses exempt? There are more than 6 employees at this place. This is her first job, and I've never worked as a waiter, so I don't know about this stuff but it sounds like she's getting really really screwed. Any help or guidance would really be appreciated. Thanks.

  • #2
    Federal minimum wage is actually $7.25/hr, although the rules are different if the employee receives tips. Does the employee receive tips? I am guessing so since you said "waiter". I am going to include a pointer to the federal factsheet on tipped employment. I am going to suggest that you first read the factsheet, then re-ask your question.


    It is possible for a business to not be subject to federal FLSA law (MW, OT and such), but it is a very small possibility, sort of similar to the chances of winning a big lottery prize. The chances that a restaurant with more then 6 employee is somehow exempt from FLSA is very poor. The rules are strangly written, but court decisions over the years have made almost everyone subject to FLSA one way or the other.

    WV can and probably does also have it own rules, but since your state is not my state, I do not know what those rules are. I can say that it is not possible for WV to make federal rules go away, so the federal rules are always the starting point.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)


    • #3
      Thank you very much for your reply. I read several links associated with the one you posted, including WV's DOL site. This restaurant clears more than $500,000/year (unless they're doing something very dirty with their books, which I'm begninning to think is very possible). Even if they're able to manipulate this, I believe they're still covered according to this from the WVDOL:

      Once you’ve determined that your company doesn’t gross over $500,000.00
      annually (the enterprise test) and that the nature of your business does not
      involve interstate commerce, you must also meet the following requirements
      to be a covered “employer” under West Virginia law:
      1. You must have six (6) employees at a separate and distinct location.
      2. Less than 80% of your employees are engaged in any type of “individual”
      interstate commerce activity.
      If you answered yes to both of these questions and have already determined
      that your business does not meet the enterprise OR interstate commerce test to
      qualify for federal minimum wage jurisdiction, then your business would be
      considered a covered employer under the West Virginia Minimum Wage statute.

      The business has more than 6 employees. About 50% of the staff handle credit cards, but I'm sure the employer can claim otherwise. She makes plenty in tips, but what I'm concerned about is that she is not making an hourly wage. She gets the $0 paycheck every 2 weeks, but on her W2 in box 3 (social security wages) there is a dollar amount that looks roughly equivalent to what would be $2.13/hr based on her work hrs last year (even though she is likely entitled to the WV min, which is $5.80). Maybe my question is, is it possible to receive a $0 paycheck thruout the year, and then receive a W2 that states otherwise? Thanks very much.


      • #4
        She has to be actually paid at least $2.13/hr under federal rules, no matter what tips look like, period, no exceptions. A wage claim could be filed with federal DOL on this.

        WV is not my state and I have no opinion on WV rules.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


        • #5
          West Virginia - basic combined cash & minimum wage rate - $7.25; maximum tip credit against minimum wage - $1.45; minimum cash wage $5.80.

          West Virginia. For employers with six or more employees and for state agencies.

          per US DOL link to state laws.
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