West Virginia: employee or independent contractor?
The test depends on which law you're dealing with. A worker can be a contractor for one law and an employee for another.
| Law | Test | Statute |
|---|---|---|
| Unemployment insurance | other (state statutory test) | W. Va. Code § 21A-1A-16(7); W. Va. Code § 21-5I-4 |
| Wage and hour / wage payment | Same § 21-5I-4 test (applies to the Wage Payment and Collection Act) | W. Va. Code § 21-5I-4(a) |
| Workers' compensation | The same § 21-5I-4 test applies to workers' compensation (chapter 23). | — |
| Federal income tax, FICA, FUTA | IRS common-law test | IRS |
| Federal minimum wage and overtime | Economic reality test (FLSA) | DOL |
Recent change
UI status now follows § 21-5I-4 (Employee Misclassification Prevention Act, 2021 Regular Session SB 272) instead of the ABC test shown in the DOL 2023 table.
Details and exceptions
- effective_date is the DOL table baseline (in effect on or before 2023-01-01); the enactment date was not checked.
- Requires a signed written independent-contractor contract, a business or self-employment tax filing (or a business entity), control of the manner and means of the work, and three or more listed criteria.
Law: W. Va. Code § 21A-1A-16(7); W. Va. Code § 21-5I-4
Running payroll in West Virginia?
Recent changes
Last verified against the official source on October 9, 2026.
No changes recorded since we started tracking this page.
Sources
- West Virginia Legislature (West Virginia Code) · data as of October 8, 2026 · last checked October 9, 2026
We copy figures from official sources and re-check them against the source before every update. See our methodology. This is general information, not legal advice.