H. B. 4322
(By Delegates Rodighiero, Eldridge, Ellis,
Hrutkay and Reynolds)
[Introduced January 29, 2008; referred to the
Committee on Industry and Labor, Economic Development and
Small Business then Finance.]
A BILL to amend and reenact §21-5C-3 of the Code of West Virginia,
1931, as amended, relating to minimum wage and maximum hours
standards for employers.
Be it enacted by the Legislature of West Virginia:
That §21-5C-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR
EMPLOYEES.
§21-5C-3. Maximum hours; overtime compensation.
(a) On and after the first day of July, one thousand nine
hundred eighty, no employer shall employ any of his or her
employees for a workweek longer than forty hours, unless such
employee receives compensation for his or her employment in excess
of the hours above specified at a rate of not less than one and
one-half times the regular rate at which he or she is employed. When an employee is required to work on a state recognized holiday,
that employee shall be paid at a rate of not less than one and
one-half times the regular rate at which he or she is employed
irregardless if that shift is in excess of a forty hour workweek.
(b) As used in this section the "regular rate" at which an
employee is employed shall be deemed to include all remuneration
for employment paid to, or on behalf of, the employee, but shall
not be deemed to include:
(1) Sums paid as gifts; payments in the nature of gifts made
at Christmas time or on other special occasions, as a reward for
service, the amounts of which are not measured by or dependent on
hours worked, production, or efficiency;
(2) Payments made for occasional periods when no work is
performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause;
reasonable payments for traveling expenses, or other expenses,
incurred by an employee in the furtherance of his or her employer's
interests and properly reimbursable by the employer, and other
similar payments to an employee which are not made as compensation
for his or her hours of employment;
(3) Sums paid in recognition of services performed during a
given period if either: (a) Both the fact that payment is to be
made and the amount of the payment are determined at the sole
discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the
employee to expect such payments regularly; or (b) the payments are
made pursuant to a bona fide profit-sharing plan or trust or bona
fide thrift or savings plan, meeting the requirements of the
commissioner set forth in appropriate regulation which he or she
shall issue, having due regard among other relevant factors, to the
extent to which the amounts paid to the employee are determined
without regard to hours of work, production or efficiency; or (c)
the payments are talent fees (as such talent fees are defined and
delimited by regulations of the commissioner) paid to performers,
including announcers, on radio and television programs;
(4) Contributions irrevocably made by an employer to a trustee
or third person pursuant to a bona fide plan for providing old-age,
retirement, life, accident, or health insurance or similar benefits
for employees;
(5) Extra compensation provided by a premium rate paid for
certain hours worked by the employee in any day or workweek because
such hours are hours worked in excess of eight in a day or in
excess of the maximum workweek applicable to such employee under
subsection (a) or in excess of the employee's normal working hours
or regular working hours, as the case may be;
(6) Extra compensation provided by a premium rate paid for
work by the employee on Saturdays, Sundays, holidays or regular
days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate
established in good faith for like work performed in nonovertime
hours on other days; or
(7) Extra compensation provided by a premium rate paid to the
employee, in pursuance of an applicable employment contract or
collective bargaining agreement, for work outside of the hours
established in good faith by the contract or agreement as the
basic, normal or regular workweek where such premium rate is not
less than one and one-half times the rate established in good faith
by the contract or agreement for like work performed during such
workweek.
(c) No employer shall be deemed to have violated subsection
(a) by employing any employee for a workweek in excess of the
maximum workweek applicable to such employee under subsection (a)
if such employee is employed pursuant to a bona fide individual
contract, or pursuant to an agreement made as a result of
collective bargaining by representatives of employees, if the
duties of such employee necessitate irregular hours of work, and
the contract or agreement: (1) Specifies a regular rate of pay of
not less than the minimum hourly rate provided in section two and
compensation at not less than one and one-half times such rate for
all hours worked in excess of such maximum workweek; and (2)
provides a weekly guaranty of pay for not more than sixty hours
based on the rates so specified.
(d) No employer shall be deemed to have violated subsection
(a) by employing any employee for a workweek in excess of the
maximum workweek applicable to such employee under such subsection
if, pursuant to an agreement or understanding arrived at between
the employer and the employee before performance of the work, the
amount paid to the employee for the number of hours worked by him
or her in such workweek in excess of the maximum workweek
applicable to such employee under such subsection:
(1) In the case of an employee employed at piece rates, is
computed at piece rates not less than one and one-half times the
bona fide piece rates applicable to the same work when performed
during nonovertime hours; or
(2) In the case of an employee performing two or more kinds of
work for which different hourly or piece rates have been
established, is computed at rates not less than one and one-half
times such bona fide rates applicable to the same work when
performed during nonovertime hours; or
(3) Is computed at a rate not less than one and one-half times
the rate established by such agreement or understanding as the
basic rate to be used in computing overtime compensation
thereunder: Provided, That the rate so established shall be
authorized by regulation by the commissioner as being substantially
equivalent to the average hourly earnings of the employee,
exclusive of overtime premiums, in the particular work over a representative period of time; and if (i) the employee's average
hourly earnings for the workweek exclusive of payments described in
subdivisions (1) through (7) of subsection (b) are not less than
the minimum hourly rate required by applicable law, and (ii) extra
overtime compensation is properly computed and paid on other forms
of additional pay required to be included in computing the regular
rate.
(e) Extra compensation paid as described in subdivisions (5),
(6) and (7) of subsection (b) shall be creditable toward overtime
compensation payable pursuant to this section.
(f) (1) Employees of county and municipal governments may
receive, in accordance with this subsection and in lieu of overtime
compensation, compensatory time off at a rate not less than one and
one-half hours for each hour of employment for which overtime is
required pursuant to this section.
(2) County and municipal governments may provide compensatory
time under subdivision (1) of this subsection, only pursuant to a
written agreement arrived at between the employer and employee
before the performance of the work, and recorded in the employer's
record of hours worked, and if the employee has not accrued
compensatory time in excess of the limit prescribed in subdivision
(3) of this subsection. Any written agreement may be modified at
the request of either the employer or the employee, but under no
circumstances shall changes in the agreement deny an employee compensatory time heretofore acquired.
(3) An employee may accrue up to four hundred eighty hours of
compensatory time if the employee's work is a public safety
activity, an emergency response activity or a seasonal activity. An
employee engaged in other work for a county or municipal government
may accrue up to two hundred forty hours of compensatory time. Any
such employee who has accrued four hundred eighty or two hundred
forty hours of compensatory time, as the case may be, shall for
additional overtime hours of work, be paid overtime compensation.
If compensation is paid to an employee for accrued compensatory
time off, such compensation shall be paid at the regular rate
earned by the employee at the time the employee receives such
payment.
(4) An employee who has accrued compensatory time off
authorized to be provided under subdivision (1) of this subsection
shall, upon termination of employment, be paid for the unused
compensatory time at a rate of compensation not less than:
(A) The average regular rate received by such employee during
the last three years of the employee's employment; or
(B) The final regular rate received by such employee,
whichever is higher.
(5) An employee of a county or municipal government:
(A) Who has accrued compensatory time off authorized to be
provided under subdivision (1) of this subsection; and
(B) Who has requested the use of such compensatory time, shall
be permitted by the employee's employer to use such time within a
reasonable time after making the request if the use of the
compensatory time does not unduly disrupt the operation of the
public agency. Compensatory time must be used within one year from
the time it was acquired.
(6) For purposes of this subsection the terms "compensatory
time" and "compensatory time off" mean hours during which an
employee is not working, which are not counted as hours worked
during the applicable workweek or other work period for purposes of
overtime compensation, and for which the employee is compensated at
the employee's regular rate.
NOTE: The purpose of this bill is to provide overtime pay for
all employees who are required to work holidays regardless if the
holiday hours are in excess of a forty hour workweek.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.