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Introduced Version Senate Bill 411 History

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Senate Bill No. 411

(By Senators Yost, Miller, Cookman, Kessler (Mr. President), Beach and Cann)

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[Introduced January 22, 2014; referred to the Committee on Labor; and then to the Committee on Finance.]

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A BILL to amend and reenact §21-5C-1 and §21-5C-2 of the Code of West Virginia, 1931, as amended, all relating to raising the minimum wage and indexing it to inflation; and removing language exempting certain employers covered by federal minimum wage from definition of “employer” for state minimum wage purposes.

Be it enacted by the Legislature of West Virginia:

    That §21-5C-1 and §21-5C-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR EMPLOYEES.

§21-5C-1. Definitions.

    As used in this article:

    (a) "Commissioner" means the Commissioner of Labor or his or her duly authorized representatives.

    (b) "Wage and Hour Director" means the Wage and Hour Director appointed by the Commissioner of Labor as Chief of the Wage and Hour Division.

    (c) "Wage" means compensation due an employee by reason of his or her employment.

    (d) "Employ" means to hire or permit to work.

    (e) "Employer" includes the State of West Virginia, its agencies, departments and all its political subdivisions, any individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee; and who employs during any calendar week six or more employees as herein defined in any one separate, distinct and permanent location or business establishment. Provided, That the term "employer" shall not include any individual, partnership, association, corporation, person or group of persons or similar unit if eighty percent of the persons employed by him are subject to any federal act relating to minimum wage, maximum hours and overtime compensation.

    (f) "Employee" includes any individual employed by an employer but shall does not include: (1) Any individual employed by the United States; (2) any individual engaged in the activities of an educational, charitable, religious, fraternal or nonprofit organization where the employer-employee relationship does not in fact exist, or where the services rendered to such the organizations are on a voluntary basis; (3) newsboys, shoeshine boys, golf caddies, pinboys and pin chasers in bowling lanes; (4) traveling salesmen and outside salesmen; (5) services performed by an individual in the employ of his or her parent, son, daughter or spouse; (6) any individual employed in a bona fide professional, executive or administrative capacity; (7) any person whose employment is for the purpose of on-the-job training; (8) any person having a physical or mental handicap so severe as to prevent his or her employment or employment training in any training or employment facility other than a nonprofit sheltered workshop; (9) any individual employed in a boys or girls summer camp; (10) any person sixty-two years of age or over who receives old-age or survivors benefits from the social security administration; (11) any individual employed in agriculture as the word agriculture is defined in the Fair Labor Standards Act of 1938, as amended; (12) any individual employed as a fire fighter by the state or agency thereof; (13) ushers in theaters; (14) any individual employed on a part-time basis who is a student in any recognized school or college; (15) any individual employed by a local or interurban motorbus carrier; (16) so far as the maximum hours and overtime compensation provisions of this article are concerned, any salesman, parts man or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such those vehicles to ultimate purchasers; (17) any employee with respect to whom the United States Department of Transportation has statutory authority to establish qualifications and maximum hours of service; (18) any person employed on a per diem basis by the Senate, the House of Delegates, or the Joint Committee on Government and Finance of the Legislature of West Virginia, other employees of the Senate or House of Delegates designated by the presiding officer thereof, and additional employees of the Joint Committee on Government and Finance designated by such the joint committee; or (19) any person employed as a seasonal employee of a commercial whitewater outfitter where the seasonal employee works less than seven months in any one calendar year and, in such that case, only for the limited purpose of exempting the seasonal employee from the maximum wage provisions of section three of this article.

    (g) "Workweek" means a regularly recurring period of one hundred sixty-eight hours in the form of seven consecutive twenty-four hour periods, need not coincide with the calendar week, and may begin any day of the calendar week and any hour of the day.

    (h) "Hours worked", in determining for the purposes of sections two and three of this article, the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday, time spent in walking, riding or traveling to and from the actual place of performance of the principal activity or activities which such the employee is employed to perform and activities which are preliminary to or postliminary to said the principal activity or activities, subject to such exceptions as the commissioner may by rules and regulations define.

§21-5C-2. Minimum wages.

    (a) Minimum wage:

    (1) After June 30, 2006, every employer shall pay to each of his or her employees wages at a rate not less than $5.85 per hour.

    (2) After June 30, 2007, every employer shall pay to each of his or her employees wages at a rate not less than $6.55 per hour.

    (3) (1) After June 30, 2008, every employer shall pay to each of his or her employees wages at a rate not less than $7.25 per hour.

    (2) After June 30, 2014, every employer shall pay to each of his or her employees wages at a rate not less than $7.85 per hour.

    (3) After June 30, 2015, every employer shall pay to each of his or her employees wages at a rate not less than $8.25 per hour.

    (4) Beginning on July 1, 2016 and no later than July 1 of each year after that, the minimum wage provided under this section shall be adjusted based upon the twelve-month percentage increase, if any, in the Consumer Price Index for all urban consumers as published by the Bureau of Labor Statistics of the United States Department of Labor, based upon the most recent twelve-month period for which data is available, and rounded up to the nearest five cents. The adjusted minimum wage rate shall be published by October 1 of each year, and become effective as the new minimum wage rate on July 1 of each year.

    (4) At such time as (5) When the federal minimum hourly wage as prescribed by 29 U.S.C. §206(a)(1) is equal to or greater than the wage rate prescribed in subdivision (3) (2) of this subsection, every employer shall pay to each of his or her employees wages at a rate of not less than the federal minimum hourly wage as prescribed by 29 U.S.C. §206(a)(1). The minimum wage rates required under this subparagraph shall be thereafter adjusted in accordance with adjustments made in the federal minimum hourly rate. The adoption of the federal minimum wage provided by this subdivision includes only the federal minimum hourly rate prescribed in 29 U.S.C. §206(a)(1) and does not include other wage rates, or conditions, exclusions, or exceptions to the federal minimum hourly wage rate. In addition, adoption of the federal minimum hourly wage rate does not extend or modify the scope or coverage of the minimum wage rate required under this subdivision.

    (b) Training wage:

    (1) Notwithstanding the provisions set forth in subsection (a) of this section to the contrary, an employer may pay an employee first hired after June 30, 2006, a subminimum training wage not less than $5.15 per hour.

    (2) An employer may not pay the subminimum training wage set forth in subdivision (1) of this subsection to any individual:

    (i) Who has attained or attains while an employee of the employer, the age of twenty years; or

    (ii) For a cumulative period of not more than ninety days per employee: Provided, That if any business has not been in operation for more than ninety days at the time the employer hired the employee, the employer may pay the employee the subminimum training wage set forth in subdivision (1) of this subsection for an additional period not to exceed ninety days.

    (3) At such time as When the federal subminimum training wage as prescribed by 29 U.S.C. §206(g)(1) is equal to or greater than the wage rate prescribed in subdivision (1) of this subsection, every employer shall pay to each of his or her employees wages at a rate of not less than the federal minimum hourly wage as prescribed by 29 U.S.C. §206(g)(1). The minimum wage rates required under this subparagraph shall be thereafter adjusted in accordance with adjustments made in the federal minimum hourly rate. The adoption of the federal minimum wage provided by this subdivision includes only the federal minimum hourly rate prescribed in 29 U.S.C. §206(g)(1) and does not include other wage rates, or conditions, exclusions, or exceptions to the federal minimum hourly wage rate. In addition, adoption of the federal minimum hourly wage rate does not extend or modify the scope or coverage of the minimum wage rate required under this subdivision.

    (c) Notwithstanding any provision or definition to the contrary, the wages established pursuant to this section shall be are applicable to all individuals employed by the State of West Virginia, its agencies, and departments, regardless if such the employee or employer are subject to any federal act relating to minimum wage: Provided, That at no time shall may the minimum wage established pursuant to this section fall below the federal minimum hourly wage as prescribed by 29 U.S.C. §206(a)(1).




    NOTE: The purpose of this bill is to raise the West Virginia minimum wage in two steps and to index it to inflation effective July 1, 2016. The bill also removes language exempting certain employers covered by federal minimum wage from the definition of employer for state minimum wage purposes.



    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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