Senators propose new Round of Changes to the Wage Payment and Collection Act
Senators Charles Trump (R-Morgan), Sue Cline (R-Wyoming), and Tom Takubo (R-Kanawha) have introduced legislation that would, if enacted, require a separated employee who claims unpaid wages to make a written demand for those wages before filing a suit to recover under the Wage Payment Collection Act (WPCA), W. Va. Code 21-5-1, et seq. Upon receipt of the demand, their former employer will have the opportunity to pay the wages outside of court and avoid additional liability above the wages owed.
The purpose of the WPCA is to provide recovery to an employee separated from employment who is not timely paid all wages, including fringe benefits which are payable upon separation. However, to achieve this purpose narrow timelines for compliance and harsh penalties were imposed upon the employer. As it stands, after multiple amendments over the last few legislative sessions, an employee who successfully sues under WPCA receives the wages which remain unpaid, plus double that amount as liquidated damages, along with any attorney fees incurred in recovering the wages. To avoid liability, an employer must pay all wages due to the separated employee on or before the next regularly scheduled pay day after separation. As it stands, there is no requirement that the employee make a demand of the employer before filing suit.
The proposed change, designated as Senate Bill 7, would amend the statute to require a pre-suit demand and an opportunity to cure prior to filing a suit. Proposed as W. Va. Code § 21-5-12, an employee would now be required, before filing suit under the WPCA, to send a notice in writing by certified mail, informing their former employer that they believe they are due unpaid wages or fringe benefits. Upon receipt of such a notice, the former employer would then have 20 days to make an offer to cure. If the offer is accepted by the former employee, the employer would then have an additional 20 days to pay the agreed-upon wages. If the employer fails to make an offer to cure, or if the same is refused, litigation may proceed. The most significant effect of this law would be to permit an employer to voluntarily pay the wages owed upon request, thereby avoiding liquidated damages and attorney's fees. Proponents of this change claim that a notice requirement will prevent unnecessary litigation, as most employers who fail to timely pay due and owing wages and benefits after separation do not do so willfully, and would pay them if notified. Opponents claim that this change will further delay already overdue payments, which may cause particular hardship to low-income employees dependent on the overdue payment.