WAGE AND HOUR DEMAND LETTER
State of West Virginia
West Virginia Wage Payment and Collection Act and FLSA Claims
[ATTORNEY/FIRM LETTERHEAD]
[Firm Name]
[Address Line 1]
[City, West Virginia ZIP]
Tel: [Phone Number]
Fax: [Fax Number]
[Attorney Email]
[West Virginia State Bar ID Number]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA EMAIL TO: [recipient_email]
[Date]
[Employer Contact Name]
[Title]
[Company Legal Name]
[Company Address]
[City, State ZIP]
Copy to:
[Company General Counsel, if known]
[Registered Agent, if different]
Re: Wage and Hour Violations - [Client Full Name]
[and All Similarly Situated Employees - if collective/class action contemplated]
Demand for Unpaid Wages Under West Virginia Law and FLSA
CONFIDENTIAL SETTLEMENT COMMUNICATION PURSUANT TO WV R. EVID. 408
Dear [Mr./Ms./Mx. Last Name]:
This firm has been retained by [Client Full Name] ("our client") to pursue claims for unpaid wages against [Company Legal Name] ("[Company Short Name]" or "the Company") arising from violations of the West Virginia Wage Payment and Collection Act, W. Va. Code Section 21-5-1 et seq., the West Virginia Minimum Wage and Maximum Hours Standards, W. Va. Code Section 21-5C-1 et seq., and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Section 201 et seq.
Please direct all further communications regarding this matter to our office.
I. WEST VIRGINIA-SPECIFIC LEGAL FRAMEWORK
A. Applicable Wage and Hour Law
West Virginia has its own minimum wage and overtime laws that provide protections beyond the federal FLSA. The state's Wage Payment and Collection Act includes liquidated damages provisions and protects fringe benefits.
Key Legal Framework:
| Category | West Virginia Requirement | Citation |
|---|---|---|
| Minimum Wage | $8.75/hour | W. Va. Code Section 21-5C-2 |
| Tipped Minimum | 70% of minimum wage ($6.13/hour) | W. Va. Code Section 21-5C-2 |
| Overtime | 1.5x regular rate after 40 hours/week | W. Va. Code Section 21-5C-3 |
| Pay Frequency | At least twice per month | W. Va. Code Section 21-5-3 |
| Liquidated Damages | Equal to unpaid wages | W. Va. Code Section 21-5-4(e) |
B. Statute of Limitations
| Claim Type | Limitations Period | Citation |
|---|---|---|
| West Virginia wage claims | 5 years | W. Va. Code Section 55-2-6 |
| FLSA (standard) | 2 years | 29 U.S.C. Section 255(a) |
| FLSA (willful) | 3 years | 29 U.S.C. Section 255(a) |
C. West Virginia Wage Payment Requirements
Payment Timing Requirements (W. Va. Code Section 21-5-3):
| Situation | Requirement | Citation |
|---|---|---|
| Regular wages | At least twice per month | W. Va. Code Section 21-5-3 |
| Involuntary termination | Immediately, or within 4 business days | W. Va. Code Section 21-5-4 |
| Voluntary resignation | Next regular payday | W. Va. Code Section 21-5-4 |
| Fringe benefits | Per agreement; penalties for non-payment | W. Va. Code Section 21-5-4 |
Payroll Deductions (W. Va. Code Section 21-5-3):
- Written authorization required
- May only deduct as permitted by law or authorized in writing
- Cannot reduce wages below minimum wage
D. Enforcement Mechanisms
Administrative:
- West Virginia Division of Labor
- Wage and Hour Section
- File complaint at labor.wv.gov
Private Right of Action (W. Va. Code Section 21-5-4(e)):
- Direct lawsuit in state or federal court
- Unpaid wages plus liquidated damages (equal amount)
- Reasonable attorney's fees and costs
- 5-year statute of limitations
E. West Virginia Tip Credit Rules
| Requirement | Standard | Citation |
|---|---|---|
| Cash wage minimum | 70% of minimum ($6.13/hour) | W. Va. Code Section 21-5C-2 |
| Tip credit maximum | 30% of minimum | W. Va. Code Section 21-5C-2 |
| Total must equal | $8.75/hour minimum | W. Va. Code Section 21-5C-2 |
| Notice required | Yes | Federal requirements apply |
| Tip pooling | Valid for customarily tipped employees | Federal rules apply |
II. INTRODUCTION AND SUMMARY OF CLAIMS
Our client was employed by [Company Short Name] as a [Job Title] from [Start Date] to [End Date / Present], working at [Work Location(s)] in West Virginia. During this employment, [Company Short Name] violated West Virginia wage laws by:
[ ] Failing to pay the West Virginia minimum wage of $8.75 per hour
[ ] Failing to pay overtime compensation at 1.5 times the regular rate for hours worked over 40 per week
[ ] Misclassifying our client as exempt from overtime when [he/she/they] should have been classified as non-exempt
[ ] Misclassifying our client as an independent contractor when [he/she/they] was an employee entitled to wage protections
[ ] Failing to pay wages at least twice per month as required by law
[ ] Failing to pay final wages upon termination within the required time
[ ] Failing to pay for all hours worked, including:
[ ] Off-the-clock work before/after shifts
[ ] Uncompensated meal periods during which work was performed
[ ] Time spent on required pre-shift or post-shift activities
[ ] Travel time that should have been compensated
[ ] Training time
[ ] Making unlawful deductions from wages
[ ] Unlawful tip pooling or tip credit violations
[ ] Failure to pay fringe benefits as agreed
III. FACTUAL BACKGROUND
A. Employment Relationship
| Category | Details |
|---|---|
| Employee Name | [Client Full Name] |
| Job Title(s) | [Title(s)] |
| Dates of Employment | [Start Date] to [End Date / Present] |
| Work Location(s) | [Address(es) in West Virginia] |
| Primary Duties | [Describe job duties] |
| Rate of Pay | $[Amount] per [hour/week/year] |
| Classification | [Exempt / Non-Exempt / Independent Contractor] |
| Pay Frequency | [Weekly / Bi-weekly / Semi-monthly] |
| Supervisor(s) | [Name(s) and Title(s)] |
B. Hours Worked
Our client regularly worked the following schedule:
Typical Weekly Schedule:
| Day | Scheduled Hours | Actual Hours Worked | Unpaid Time |
|---|---|---|---|
| Monday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Tuesday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Wednesday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Thursday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Friday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Saturday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Sunday | [X:XX - X:XX] | [X:XX - X:XX] | [X hours] |
| Weekly Total | [X hours] | [X hours] | [X hours] |
Average overtime hours per week not compensated at 1.5x rate: [X hours]
C. Specific Wage Violations
[Detail specific violations as applicable - off-the-clock work, misclassification, tip violations, etc.]
IV. LEGAL ANALYSIS
A. West Virginia Wage Payment and Collection Act Violations
1. Wage Payment Requirements (W. Va. Code Section 21-5-3)
West Virginia requires employers to pay wages at least twice per month on regular paydays. [Describe any violation.]
2. Final Wage Payment (W. Va. Code Section 21-5-4)
For involuntary terminations, employers must pay all wages immediately or within 4 business days. [Describe violation.]
3. Liquidated Damages (W. Va. Code Section 21-5-4(e))
Employees who prevail on wage claims are entitled to liquidated damages equal to the unpaid wages.
B. West Virginia Minimum Wage Violations (W. Va. Code Section 21-5C-2)
West Virginia requires employers to pay at least $8.75 per hour. By [describe violation], [Company Short Name] failed to pay our client the minimum wage.
C. West Virginia Overtime Violations (W. Va. Code Section 21-5C-3)
West Virginia requires overtime at 1.5 times the regular rate for hours worked over 40 in a workweek.
D. FLSA Violations
1. Enterprise Coverage
[Company Short Name] is subject to the FLSA because it is an enterprise engaged in commerce with annual gross sales of at least $500,000. 29 U.S.C. Section 203(s)(1)(A).
2. Overtime Requirements (29 U.S.C. Section 207)
The FLSA requires employers to pay non-exempt employees overtime at a rate of 1.5 times the regular rate for all hours worked over 40 in a workweek.
V. DAMAGES CALCULATION
A. West Virginia and FLSA Damages
Relevant Period: [Start Date - 5 years prior to anticipated filing] to [End Date / Present]
Total Weeks in Period: [X weeks]
1. Unpaid Overtime
| Period | Avg. OT Hours/Week | Regular Rate | OT Rate (1.5x) | Unpaid OT/Week | Weeks | Total |
|---|---|---|---|---|---|---|
| [Period 1] | [X] | $[X.XX] | $[X.XX] | $[X.XX] | [X] | $[Amount] |
| Unpaid Overtime Subtotal | $[Amount] |
2. Unpaid Minimum Wage
| Period | Hours Below MW | Shortfall/Hour | Weeks | Total |
|---|---|---|---|---|
| [Period] | [X] | $[X.XX] | [X] | $[Amount] |
| Minimum Wage Subtotal | $[Amount] |
B. Summary of Damages
| Category | Amount |
|---|---|
| Unpaid Wages | $[Amount] |
| West Virginia Liquidated Damages (Equal Amount) | $[Amount] |
| OR FLSA Liquidated Damages (Equal Amount) | $[Amount] |
| Pre-Judgment Interest | $[Amount] |
| Attorney's Fees (estimated) | $[Amount] |
| Costs (estimated) | $[Amount] |
| TOTAL INDIVIDUAL DAMAGES | $[Amount] |
C. Collective/Class Action Exposure
If this case proceeds as a collective or class action:
| Category | Individual | Estimated Class Size | Total Exposure |
|---|---|---|---|
| Unpaid Wages | $[Amount] | [X employees] | $[Amount] |
| Liquidated Damages | $[Amount] | [X employees] | $[Amount] |
| Class Exposure | $[Amount] |
VI. SETTLEMENT DEMAND
Based on the foregoing, we demand that [Company Short Name] pay $[Settlement Demand Amount] to settle all claims of [Client Full Name].
This demand includes:
- Unpaid wages
- Liquidated damages
- Pre-judgment interest
- Attorney's fees and costs incurred to date
This demand will remain open for twenty-one (21) days from the date of this letter, expiring on [Response Deadline Date].
VII. RESPONSE AND LITIGATION
If we do not receive a satisfactory response by the deadline, we will file suit in:
[ ] West Virginia Circuit Court, [County] County
[ ] United States District Court for the Northern District of West Virginia
[ ] United States District Court for the Southern District of West Virginia
The Complaint will seek:
1. Unpaid wages under W. Va. Code Section 21-5-1 et seq. and Section 21-5C-1 et seq.
2. Unpaid overtime under W. Va. Code Section 21-5C-3 and 29 U.S.C. Section 207
3. Liquidated damages under W. Va. Code Section 21-5-4(e)
4. FLSA liquidated damages under 29 U.S.C. Section 216(b)
5. Attorney's fees and costs
6. Collective/class certification
VIII. DOCUMENT PRESERVATION
LITIGATION HOLD NOTICE
[Company Short Name] must immediately preserve all documents and ESI relevant to these claims, including:
[ ] Time and attendance records
[ ] Payroll records and pay stubs
[ ] Personnel files and job descriptions
[ ] Employee handbooks and policies
[ ] Scheduling records
[ ] Communications regarding pay practices
[ ] Training materials
[ ] Prior Division of Labor investigations
[ ] Tip records (if applicable)
[ ] Fringe benefit agreements
Spoliation of evidence will result in severe sanctions.
IX. CONFIDENTIALITY
This letter is a confidential settlement communication protected under West Virginia Rule of Evidence 408 and applicable evidentiary privileges.
We look forward to your prompt response.
Sincerely,
[Attorney Name]
[Title]
[Firm Name]
[West Virginia State Bar ID No.]
Enclosures:
[ ] Authorization to Represent
[ ] Pay stubs / wage statements (sample)
[ ] Time records (if available)
cc: [Client Name] (via email)
WEST VIRGINIA-SPECIFIC PRACTICE NOTES
[ ] 5-Year Statute of Limitations: West Virginia has a long 5-year SOL for wage claims - powerful for back pay
[ ] State Minimum Wage: $8.75/hour, higher than federal; state law controls
[ ] State Overtime Law: West Virginia has its own overtime law at W. Va. Code Section 21-5C-3
[ ] Liquidated Damages: W. Va. Code Section 21-5-4(e) provides liquidated damages equal to unpaid wages
[ ] Fringe Benefit Protection: West Virginia law specifically protects accrued fringe benefits
[ ] Division of Labor: West Virginia Division of Labor handles wage claims
- Website: labor.wv.gov
- Phone: (304) 558-7890
[ ] 4 Business Days for Final Pay: Terminated employees must receive final wages within 4 business days
[ ] Court Venue:
- Circuit Court: All counties
- Northern District (Wheeling, Clarksburg): Northern West Virginia
- Southern District (Charleston, Huntington): Southern West Virginia
[ ] Coal/Energy Industry: Many wage issues arise in mining and energy sectors; special rules may apply
[ ] Tip Credit at 70%: West Virginia requires payment of 70% of minimum wage to tipped employees