H. B. 3116
(By Delegates Armstead, Palumbo, Calvert,
Trump, Cann, Amores and Smirl)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, eleven and thirteen,
article five, chapter twenty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to amend
and reenact section one, article five-a, chapter twenty-one of
said code, all relating to wage payment and collection;
requiring the commissioner of the division of labor to provide
notice to employers against whom the commissioner initiates
any investigation or action; requiring the commissioner to
conclude actions taken against employers within thirty days;
providing that the commissioner may not randomly investigate
an employer more than once per year; and defining, in the
context of wage payment, the term "final payment" and
providing that final payment is the lesser of either retainage
under the contract, final installment under the contract, or
an amount shown by the commissioner to be damages.
Be it enacted by the Legislature of West Virginia:
That sections one, eleven and thirteen, article five, chapter
twenty-one of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that section
one, article five-a, chapter twenty-one of said code be amended and
reenacted, all to read as follows:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-1. Definitions.
As used in this article:
(a) The term "firm" includes any partnership, association,
joint-stock company, trust, division of a corporation, the
administrator or executor of the estate of a deceased individual or
the receiver, trustee or successor of any of the same, or officer
thereof, employing any person.
(b) The term "employee" or "employees" includes any person
suffered or permitted to work by a person, firm or corporation.
(c) The term "wages" means compensation for labor or services
rendered by an employee, whether the amount is determined on a
time, task, piece, commission or other basis of calculation. As
used in sections four, five, eight-a, ten and twelve of this
article, the term "wages" shall also include then accrued fringe
benefits capable of calculation and payable directly to an
employee: Provided, That nothing herein contained shall require
fringe benefits to be calculated contrary to any agreement between
an employer and his or her employees which does not contradict the provisions of this article.
(d) The term "commissioner" means commissioner of labor or his
or her designated representative.
(e) The term "railroad company" includes any firm or
corporation engaged primarily in the business of transportation by
rail.
(f) The term "special agreement" means an arrangement filed
with and approved by the commissioner whereby a person, firm or
corporation is permitted upon a compelling showing of good cause to
establish regular paydays less frequently than once in every two
weeks: Provided, That in no event shall the employee be paid in
full less frequently than once each calendar month on a regularly
established schedule.
(g) The term "deductions" includes amounts required by law to
be withheld, and amounts authorized for union or club dues, pension
plans, payroll savings plans, credit unions, charities and
hospitalization and medical insurance.
(h) The term "officer" shall include includes officers or
agents in the management of a corporation or firm, who knowingly
permit the corporation or firm to violate the provisions of this
article.
(i) The term "wages due" shall include includes at least all
wages earned up to and including the fifth day immediately
preceding the regular payday.
(j) The term "construction" means the furnishing of work in
the fulfillment of a contract for the construction, alteration,
decoration, painting or improvement of a new or existing building,
structure, roadway or pipeline, or any part thereof, or for the
alteration, improvement or development of real property: Provided,
That construction performed for the owner or lessee of a single
family dwelling or a family farming enterprise is excluded.
(k) The term "minerals" means clay, coal, flagstone, gravel,
limestone, manganese, sand, sandstone, shale, iron ore and any
other metallurgical ore.
(l) The term "fringe benefits" means any benefit provided an
employee or group of employees by an employer, or which is required
by law, and includes regular vacation, graduated vacation, floating
vacation, holidays, sick leave, personal leave, production
incentive bonuses, sickness and accident benefits and benefits
relating to medical and pension coverage.
(m) The term "employer" means any person, firm or corporation
employing any employee.
(n) The term "doing business in this state" means having
employees actively engaged in the intended principal activity of
the person, firm or corporation in West Virginia.
(o) The term "final payment" means the lesser of the
following:
(1) Retainage as directed by the contract; or
(2) Final installment as directed by the contract; or
(3) An amount that the commissioner or his or her authorized
representatives may demonstrate as damages relating to violations
under the provisions of this chapter.
§21-5-11. Administrative enforcement.
(a) The commissioner shall enforce and administer the
provisions of this article in accordance with chapter
twenty-nine-a of this code. The commissioner or his or her
authorized representatives are empowered to enter and inspect, at
reasonable times, such places, question such employees, and
investigate such facts, conditions, or matters as they may deem
consider appropriate, to determine whether any person, firm or
corporation has violated any provision of this article, or any rule
or regulation issued hereunder or which may aid in the enforcement
of the provisions of this article.
(b) The commissioner or his or her authorized representatives
shall have power to administer oaths and examine witnesses under
oath, issue subpoenas, compel the attendance of witnesses, and the
production of papers, books, accounts, records, payrolls, documents
and testimony and to take depositions and affidavits in any
proceeding before said commissioner.
(c) In case of failure of any person to comply with any
subpoena lawfully issued, or on the refusal of any witness to
testify to any matter regarding which he may be lawfully interrogated, it shall be the duty of the circuit court, on
application by the commissioner, to compel obedience by attachment
proceedings for contempt, as in the case of disobedience of the
requirements of a subpoena issued from such court or a refusal to
testify therein.
(d) Within ten days of the first day that any action taken
that is authorized by this section, the commissioner or his or her
authorized representative must provide the person, firm or
corporation against whom the action is taken, written notification
of the subject of the action, including, but not limited to, the
project or job description, facts and circumstances surrounding the
alleged violations, and name of the commissioner or his or her
authorized representative taking the action.
(e) Within thirty days of the date of the notification
described in subsection (d) of this section, the action taken by
the commissioner or his or her authorized representative shall be
concluded. At the conclusion of the thirty-day period, any and
all remedial enforcement measures, including, but not limited to,
withholding of funds, shall be discharged.
(f) The commissioner or his or her authorized representative
may not randomly investigate a person, firm or corporation more
than one time within a one-year period.
§21-5-13. Rules.
The commissioner shall make reasonable rules and regulations to the extent necessary to effectuate the purposes of this article,
in accordance with the provisions of chapter twenty-nine-a of the
code of West Virginia, as amended.
ARTICLE 5A. WAGES FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS.
§21-5A-1. Definitions.
(1) The term "public authority," as used in this article,
shall mean means any officer, board or commission or other agency
of the state of West Virginia, or any political subdivision
thereof, authorized by law to enter into a contract for the
construction of a public improvement, including any institution
supported in whole or in part by public funds of the state of West
Virginia or its political subdivisions, and this article shall
apply to expenditures of such institutions made in whole or in part
from such public funds.
(2) The term "construction," as used in this article, shall
mean means
any construction, reconstruction, improvement,
enlargement, painting, decorating or repair of any public
improvement let to contract. The term "construction" shall not be
construed to include temporary or emergency repairs.
(3) The term "locality" means the county where the
construction is to be performed, except that if there is not
available in the county a sufficient number of competent skilled
laborers, workmen and mechanics to perform such construction
efficiently and properly, and may include one or more counties in this state adjacent to the one in which the construction is to be
performed and from which such skilled laborers, workmen and
mechanics may be obtained in sufficient numbers to perform the
construction. With respect to construction of public improvements
with the state road commission, "locality" may be construed to
include one or more counties in this state adjacent to the one in
which the construction or public improvement is to be performed and
from which skilled laborers, workmen and mechanics may be
accessible for work on such construction on public improvements.
(4) The term "public improvement," as used in this article,
shall include includes
all buildings, roads, highways, bridges,
streets, alleys, sewers, ditches, sewage disposal plants,
waterworks, airports and all other structures upon which
construction may be let to contract by the state of West Virginia
or any political subdivision thereof.
(5) The term "construction industry," as used in this article,
shall mean means
that industry which is composed of employees and
employers engaged in construction of buildings, roads, highways,
bridges, streets, alleys, sewers, ditches, sewage disposal plants,
waterworks, airports and all other structures or works whether
private or public on which construction work as defined in
subsection (2) of this section is performed.
(6) The term "board"
shall mean means
the minimum wage board
as constituted in this article.
(7) The term "employee," for the purposes of this article,
shall not be construed to include such persons as are employed or
hired by the public authority on a regular or temporary basis or
engaged in making temporary or emergency repairs.
(8) The term "final payment" means the lesser of the
following:
(A) Retainage as directed by the contract; or
(B) Final installment as directed by the contract; or
(C) An amount that the commissioner or his or her authorized
representative may demonstrate as damages relating to violations
under the provisions of this chapter.
NOTE: The purposes of this bill are as follows: (1) To
require the commissioner of the division of labor to provide notice
to employers against whom the commissioner initiates any
investigation or action related to wage payment and collection; to
require the commissioner to conclude actions taken against
employers within thirty days; to prohibit the commissioner from
randomly investigating an employer more than once per year; and to
define, in the context of wage payment, the term "final payment"
while providing that final payment is the lesser of either
retainage under the contract, final installment under the contract,
or an amount shown by the commissioner to be damages.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
