Senate Bill No. 440
(By Senators Brackenrich and Dittmar)
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[Introduced March 22, 1993; referred to the Committee
on Labor.]
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A BILL to amend and reenact section three, article five-c,
chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
maximum hours and overtime compensation; clarifying the term
regular rate with respect to piece-rate work, commission
work or salary; exempting certain public safety employees
from certain provisions; clarifying consecutive days worked
provisions; providing a formula for determining overtime pay
for public safety employees; and including state employees
under compensatory time off provisions of the statute.
Be it enacted by the Legislature of West Virginia:
That section three, article five-c, chapter twenty-one of
the code of West Virginia, one thousand nine hundred thirty-one,
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 employees for
a workweek longer than forty hours, unless such employee receives
compensation for his 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 is employed.
(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, the
"regular hourly rate" of an employee employed solely on the basis
of a single hourly rate shall be deemed as that single hourly
rate and the "regular hourly rate" of an employee employed on a
piece-rate, salary, commission or other basis shall be determined
by dividing his "regular rate" in any work period by the total
number of hours actually worked by the employee in that work
period for which such compensation was paid and cannot be agreed
upon by employer and employee, but must be a matter of
mathematical computation; 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 employer's
interests and properly reimbursable by the employer, and other
similar payments to an employee which are not made as
compensation for his 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 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 workweekbecause 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 ofnot 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 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 beauthorized 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) On and after the first day of July, one thousand nine
hundred ninety-three, no public agency of the state or a county
or municipal government shall be deemed to have violated
subsection (a) of this section with respect to the employment of
any employee in fire protection activities, or any employment in
law enforcement activities (including security personnel in
correctional institutions) if: (1) In a work period of twenty-
eight consecutive days the employee receives for tours of duty
which in the aggregate exceed the lesser of (A) one hundred
seventy-one hours for law enforcement activities and two hundred
twelve hours for fire protection activities, of (B) the average
number hours (pursuant to section six, subsection-c, subdivision
three of the federal Fair Labor Standards act as amended in 1974
in tours of duty of employees engaged in such activities in work
periods of twenty-eight consecutive days in calendar year 1993;
or (2) in the case of such an employee to whom a work period ofat least seven but less than twenty-eight days applies in his
work period the employee receives for tours of duty which in the
aggregate exceed a number of hours which bears the same ratio to
the number of consecutive days in his work period as one hundred
seventy-one hours for law enforcement activities and two hundred
twelve hours for fire protection activities (or if lower, the
number of hours referred to in clause (B) of paragraph (1) bears
to twenty-eight days) compensation at a rate not less than one
and one-half times the regular rate at which he is employed.
(e) (f) 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) (g) (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 theagreement 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 timewithin 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 clarify the term
regular rate with respect to piece rate work, commission work or
salary under maximum hours and overtime compensation in
employment. The bill exempts state, county and municipal fire
protection, law enforcement and correctional employees from
certain requirements involving consecutive days worked and
provides a formula for determining overtime pay for these
employees. The bill also includes state employees under
compensatory time off provisions.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.