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They Giveth and They Taketh Away - 2018 West Virginia Legislative Session and Employers
April 03, 2018
This year’s regular session of the West Virginia legislature simultaneously granted employers more rights while taking some away. 
The Giveth
First, the good news. Employers in West Virginia may now withhold from an employee’s final wages the replacement cost of some items they provide to an employee that the employee fails to return at the time of separation. That right, however, is not unfettered. The revision to the West Virginia Wage Payment and Collection Act only applies to property an employer provides an employee for use in the employer’s business and has a value greater than $100. Also, in order to withhold money from an employee’s final pay, the employee must sign a written agreement when they receive the property. There is a one-time exception for property the employer provided before this law's effective date of May 14, 2018, which means employers should require employees to sign an agreement for previously supplied property immediately. To be effective under the revised statute, the written agreement must state:
  • A specific itemization of what was provided with a specified replacement cost;
  • The items are to be returned immediately upon the termination of employment; and
  • Failure to return the property could result in the replacement cost of the items being recovered from the employee’s final wages.
Even with the agreement, employers must inform employees, in writing, of the replacement cost of the items and of the deadline to return the property, which cannot exceed 10 business days when the employee separates. If the items are returned, the employer must then repay the employee the withheld amount, provided the items are returned in age-appropriate condition.
There is a process for addressing situations where the employee believes the replacement cost is too high. The law is clear that an employer’s replacement cost means the actual cost paid by the employer, including any vendor discounts provided to the employer. Therefore, accurate estimates of replacement costs are critical. 
The $100 threshold establishes the statute is meant to protect employers who supply “big ticket” items such as expensive electronic equipment (cell phones, tablets, and computers) and not small items (uniforms or small tools). If used properly, this law will help employers protect their bottom line. Be careful, however, to have a protocol for providing employees with expensive electronic equipment (i.e., only do so with a proper written agreement in compliance with the statute), and be careful not to overstate the value of items. For your convenience, a sample written agreement is at the end of this article.
The Taketh
There is one major reduction in an employer’s rights to his or her property. House Bill 4187, otherwise and curiously known as the “Business Liability Protection Act,” prohibits employers from taking certain actions against persons who legally possess firearms while also providing new provisions granting immunity from liability.
West Virginia formerly provided the right to private property owners to prohibit the open or concealed carry of firearms or deadly weapons on their property. HB 4187 partially erodes that right regarding public and private employers:
  1. Employers are no longer allowed to prohibit customers/employees/invitees from possessing legally owned firearms in a locked private vehicle in a parking lot;
  2. Employers are no longer allowed to ask if there are firearms in a customer/employee/invitee’s locked vehicle;
  3. Employers are no longer allowed to take action against a customer/employee/invitee if they hear of a firearm in a private vehicle;
  4. Employers are no longer allowed to search any private vehicles for firearms unless the search is conducted by law enforcement based on due process;
  5. Employers are no longer allowed to condition employment on whether or not a person possesses a concealed carry license;
  6. Employers are no longer allowed to condition employment on an agreement prohibiting firearm possession in a locked private vehicle; and
  7. Employers are no longer allowed to keep a customer/employee/invitee from entering the employer’s parking lot on the basis that a legal firearm is inside the vehicle, as long as the firearm is out of sight.
The bill makes employers immune from civil liability based on complying with HB 4187.
If an employer violates HB 4187, an aggrieved employee can bring suit for damages and injunctive relief, and is entitled to court costs and attorney’s fees if he or she succeeds. In addition, the West Virginia Attorney General may bring an action for $5000 per violation plus attorney’s fees and costs.
What this means is that people are allowed to keep firearms in their locked personal vehicles in a business’ parking lots (which means anywhere such people park on a business' property), and employers are not be able to take any action against them. Employers cannot hire/refuse to hire based on whether someone has a concealed carry permit, and cannot try to keep an employee from lawfully keeping a firearm in his locked vehicle. The bill specifically says the court “shall award” attorney’s fees to an employee if they sue and win. However, employers are protected from any civil liability based on “actions or inactions” taken in compliance with the new law. In other words, if an employee lawfully keeps a gun in his vehicle and the employer complies with the law and people end up getting hurt in the parking lot equivalent of the OK Corral (a scenario that appears more likely now that employers are stripped of their right to ban employees from bringing guns to work in personal vehicles), the employer is shielded from liability (as long as the employer didn’t do something else that would create liability). 


            _____________________ (“Employee”) hereby acknowledges receipt of the property listed below (the “Property”) that has been provided to him/her by ____________________ (“Employer”). Employee acknowledges that the Property is intended for Employee’s use in connection with his/her employment with Employer and that Employee will return the Property to Employer immediately upon separation from employment, for whatever reason, in age-appropriate condition.
Employee acknowledges and agrees that if he/she does not return the Property to Employer immediately after separation from employment, Employer may recover the replacement cost of the Property from the Employee's final wages, pursuant to the Wage Payment and Collection Act (W.Va. Code §21-5-1 et seq.). A copy of this Agreement will be placed in Employee's file for reference.
Description of Property Replacement Cost Date
EMPLOYEE:                                                             EMPLOYER:
___________________________                              ___________________________
Printed Name                                                              Printed Name, Title
___________________________                              ___________________________
Signature                                                                     Signature
___________________________                              ___________________________     
Date                                                                            Date
Property returned on _________________
Employees’ Initials __________     Employer’s Initials _______________

Labor & Employment Law Kevin L. Carr
304.340.3877 Eric E. Kinder
304.340.3893 Chelsea E. Thompson