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Carol King v. West Virginia’s Choice, Inc.

Carol King v. West Virginia’s Choice, Inc.

Case No. 
Type of Proceeding: 
Appeal from the Circuit Court of Kanawha County (Judge Stucky)

The issue is whether the Respondent West Virginia’s Choice, Inc. (“WVC”) is an “employer” as defined by W. Va. Code, § 21-5C-1, the Minimum Wage and Maximum Hours Standards Act (“MWMHS” or “the Act”), and, therefore, subject to state regulation requiring the payment of wages at the overtime rate of time and a half.  The Act exempts otherwise covered employers when 80% of their workforce is “subject to any federal act relating to minimum wage, maximum hours and overtime compensation.”  Here, the issue turns on the Court’s interpretation of the phrase “subject to” – i.e., does it mean eighty percent of the employees are entitled to minimum wages or overtime under federal law or does it simply mean that federal law, including its exemptions from minimum wages or overtime, applies to eighty percent of the employees.


The operative facts are not in dispute.  Petitioner was employed by the Respondent to provide “companionship services”, as that term is defined by federal law, to its elderly and infirm clients.  All of WVC’s employees are employed to provide “companionship services.”  Federal law exempts these employees from minimum wage and overtime requirements.  West Virginia law, on the other hand, does not exempt these employees from its minimum wage and overtime requirements.  In 2012, the Petitioner filed suit seeking overtime wages for herself and a putative class of employees under the West Virginia MWMHS.  The circuit court found that the Respondent was not an employer as defined by the Act and granted summary judgment.


Positions of the Parties: 

Petitioner (WVC):

The Plaintiff/Petitioner argues that because all of WVC’s employees are exempt from the minimum wage and overtime requirements under federal law, they are NOTsubject to any federal act relating to minimum wage, maximum hours and overtime compensation.”  Petitioner further contends that if the circuit court and Respondent’s position were correct and those employees specifically exempted from overtime under federal law are “subject to” federal law “relating to minimum wage, maximum hours and overtime compensation,” the MWMHS would not apply to any worker employed in West Virginia.

Respondent (King)

Defendant/Respondent WVC argues that while Petitioner is not entitled to overtime under federal law, she is subject to regulation under the federal Fair Labor Standards Act.  WVC contends that both the W.Va. Department of Labor and the U.S. Department of Labor share its view.

Probable Impact: 

The opinion in this case could potentially impacts thousands of West Virginia workers.  This is a Rule 20 case.  Placement on the Rule 20 docket signals that the Court is contemplating a new syllabus point regarding the scope of the Act.  Since this appeal was filed, the legislature tweaked the definition of “employer” under the Act and slightly broadened its scope in order to implement its efforts to raise the minimum wage.  The Court’s opinion could spark additional efforts by the legislature to again amend the Act.

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