Senate Bill No. 578
(By Senator Barnes)
[Introduced March 13, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
A BILL to amend and reenact §21-5A-5 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §21-5A-10a, all relating to
calculating the West Virginia prevailing wage on federally
funded construction projects to be identical to the
methodology used in the federal Davis-Bacon Act; and exempting
projects that are less than $250,000 from the State of West
Virginia prevailing wage.
Be it enacted by the Legislature of the State of West Virginia:
That §21-5A-5 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §21-5A-10a of said code be
amended and reenacted, all to read as follows:
ARTICLE 5A. WAGES FOR PUBLIC IMPROVEMENTS CONSTRUCTION.
§21-5A-5. Prevailing wages established at regular intervals; how
determined; filing; objections to determination;
hearing; final determination; appeals to board;
(1) The Department of Labor, from time to time, shall
investigate and determine the prevailing hourly rate of wages in
the localities in this state. Determinations thereof shall be made
annually on January 1 of each year and shall remain in effect
during the successive year: Provided, however,
That such rates
shall not remain in effect for a period longer than fifteen months
from the date they are published.
In determining such prevailing rates for projects other than
those where federal funding is involved,
the Department of Labor
may ascertain and consider the applicable wage rates established by
collective bargaining agreements, if any, and such rates as are
paid generally within the locality in this state where the
construction of the public improvement is to be performed.
Notwithstanding any other provision in the code, if federal funding
is involved, then the methodology for calculating said prevailing
wages shall be identical to the methodology used in the federal
(2) A copy of the determination so made, certified by the
secretary of the board, shall be filed immediately with the
Secretary of State and with the Department of Labor. Copies shall
be supplied to all persons requesting same within ten days after
(3) At any time within fifteen days after the certified copies
of the determination have been filed with the Secretary of State
and the Department of Labor, any person who may be affected thereby
may object in writing to the determination or such part thereof as he deems objectionable by filing a written notice with the
Department of Labor stating the specific grounds of the objection.
(4) Within ten days of the receipt of the objection, the
Department of Labor shall set a date for a hearing on the
objection. The date for the hearing shall be within thirty days
after the receipt of the objection. Written notice of the time and
place of the hearing shall be given to the objectors at least ten
days prior to the date set for the hearing and at a time so as to
enable the objectors to be present.
(5) The Department of Labor at its discretion may hear such
written objection separately or consolidate for hearing any two or
more written objections. At the hearing the Department of Labor
shall introduce into evidence the results of the investigation it
instituted and such other facts which were considered at the time
of the original determination of the fair minimum prevailing hourly
rate including the sources which formed the basis for its
determination. The Department of Labor or any objectors thereafter
may introduce such further evidence as may be material to the
(6) Within ten days of the conclusion of the hearing, the
department must rule on the written objections and make such final
determination as shall be established by a preponderance of the
evidence. Immediately upon such final determination, the
Department of Labor shall file a certified copy of its final
determination with the Secretary of State and with the Department
of Labor and shall serve a copy of the final determination on all parties to the proceedings by personal service or by registered
(7) Any person affected by the final determination of the
Department of Labor, whether or not such person participated in the
proceedings resulting in such final determination, may appeal to
the board from the final determination of the Department of Labor
within ten days from the filing of the copy of the final
determination with the Secretary of State. The board shall hear
the appeal within twenty days from the receipt of notice of appeal.
The hearing by the board shall be held in Charleston. The hearing
by the board shall be upon the record compiled in the hearing
before the Department of Labor and the board shall have the
authority to affirm, reverse, amend, or remand for further
evidence, the final determination of the Department of Labor. the
board shall render its decision within ten days after the
conclusion of its hearing.
(8) Any party to the proceeding before the board or any person
affected thereby may within thirty days after receipt of the notice
of its decision, appeal the board's decision to the circuit court
of the county wherever the construction of a public improvement is
to be performed, which shall consider the case on the record made
before the Commissioner of Labor and before the board. The
decision of such circuit court may be appealed to the Supreme Court
of Appeals of West Virginia by any party to the proceedings or by
any person affected thereby in the manner provided by law for
appeals in civil actions.
(9) Pending the decision on appeal, the rates for the
preceding year shall remain in effect.
§21-5A-10a. Exemption of projects.
Notwithstanding any other provision in this code, or for
public improvement projects involving federal funding, this article
shall otherwise only apply to construction projects exceeding the
cost of $250,000.
NOTE: This bill shall require the calculating of the West
Virginia prevailing wage on federally funded construction projects
to be identical to the methodology used in the federal Davis-Bacon
Act, and shall exempt certain projects that are less than $250,000
from the State of West Virginia prevailing wage.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would