H. B. 2307
(By Delegates Linch, Tillis, Hunt, Collins, Williams,
Seacrist and Sparks)
[Introduced March 3, 1997; referred to the
Committee on Government Organization then Finance.]
A BILL to amend chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article one-c, relating to
creating the "West Virginia Jobs Act"; providing definitions;
application; legislative findings and policy; hiring of
employees; job orders; certificates of availability;
contracts, criminal penalties; and existing contracts.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article one-c, to read as
follows:
ARTICLE 1C. EMPLOYMENT OF RESIDENTS OF LABOR MARKET.
§21-1C-1. Short title.
This article may be cited as the "West Virginia Jobs Act."
§21-1C-2. Definitions.
As used in this article:
(a) The term "construction project" means any construction,
reconstruction, improvement, enlargement, painting, decorating or
repair of any public improvement let to contract in an amount equal
to or greater than twenty-five thousand dollars. The term
"construction project" does not include temporary or emergency
repairs;
(b) The term "employee" includes any person engaged or
permitted to perform hourly work for wages by a person, firm or
corporation in the construction industry. The term "employee" does
not include: (1) Bona fide employees of a public authority or
individuals engaged in making temporary or emergency repairs; (2)
Bona fide independent contractors; or (3) salaried supervisory
personnel necessary to assure efficient execution of the employee's
work;
(c) The term "employer" means any person, firm or corporation
employing one or more employees on any public improvement;
(d) The term "labor market" is defined as the labor market
area designated by the West Virginia Division of Highways for
Appalachian Regional Commission projects and shall include every county in West Virginia.
(e) The term "public authority" means any officer, board or
commission or other agency of the state of West Virginia, or any
political subdivision the state, 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, or any
economic development authority of the state or any of its political
subdivisions authorized to issue economic development bonds as a
means of financing private construction projects; and
(f) The term "public improvement" includes all buildings,
roads, highways, bridges, streets, alleys, sewers, ditches, sewage
disposal plants, waterworks, airports and all other structures or
works on which a construction project may be let to contract by (1)
any public authority; (2) any private person, corporation,
partnership, or any other business entity receiving the benefit of
state tax incentives or credits; or (3) any private person,
corporation, partnership or any other business entity receiving the
benefit of economic development bonds authorized or issued by any
public economic development authority or economic development board
in connection with construction projects in this state whether the
construction project is public or private.
§21-1C-3. Application of article.
This article applies to:
(a) expenditures by any public authority made, in whole or in
part, from public funds for a construction project;
(b) any construction project, whether public or private
funded, in whole or in part, by any bonds issued by any economic
development board or agency authorized to issue economic
development bonds for public or private construction projects; and
(c) any private construction project resulting, in whole or in
part, from the issuance of tax incentives, tax credits, or other
benefits granted by the state or any of its political subdivisions
to induce or encourage the undertaking of any such construction
project by any private person, corporation or any other entity.
§21-1C-4. Policy.
The Legislature hereby finds that the average income of
residents of the State of West Virginia is significantly below the
national average income of residents of the United States of
America; that the rate of unemployment in this state is
significantly higher than the rate of unemployment in other states
in the United States of America; and that a majority of counties in
this state are designated as labor surplus areas by the United
States Department of Labor.
The Legislature further finds that unemployment is a chronic
and serious problem in this state; that unemployment adversely
impacts the health and welfare of the populace, and the state's tax
base and tax revenues; and that all necessary and lawful measures
must be employed to guard against the menace to the state resulting
from unemployment; and that from time to time, in an effort to
combat unemployment the state and its political subdivisions
contract for public improvement projects as defined above and
subsidize public improvement construction projects through the
issuance of economic development bonds, tax incentives, tax credits
and other taxpayer guaranteed or funded benefits to private
persons, corporations, partnerships and other entities. The
Legislature further finds that the employment of persons from
outside the local labor market on public improvement construction
projects contracted for and subsidized by the taxpayers of the
State of West Virginia contributes significantly to the rate of
unemployment and the low per capita income among qualified persons
in West Virginia. It hereby is declared to be the policy of the
State of West Virginia that residents of local labor markets, as
defined in section two of this article, should be employed in the
construction of all public improvement and private construction
projects which depend, in whole or in part, on taxpayer funding, economic development bonds, or other incentives for which West
Virginia taxpayers are responsible either through taxes or
guarantees.
§21-1C-5. Hiring of employee; contracts to contain certain
provisions.
(a) On all public improvements, a minimum of ninety percent of
every employer's employees shall be individuals who have resided in
the relevant labor market for at least six months preceding their
application for employment: Provided, That an employer may employ
nonresidents of the relevant labor market on public improvements
when labor market residents are not available or are not qualified
to perform the work involved.
(b) Any employer not otherwise able to employ a minimum of
ninety percent labor market residents as employees on a public
improvement must inform the nearest office of the West Virginia
division of employment security of his or her employment needs. If
within one week following the placing of a job order, the division
is unable to refer any qualified job applicants to the employer, or
less than the number requested, the division will award a
certificate to the contractor indicating the unavailability of
applicants. The certificate shall be made a part of the
contractor's permanent project records. Upon receipt of the certificate, the contractor may employ nonresidents of the labor
market to fill any positions covered by the certificate.
(c) Every public improvement contract let shall contain a
provision conforming to the requirements of this article. Every
subcontract for a public improvement which is, or reasonably may
be, done as on-site work shall contain a provision conforming to
the requirements of this article.
§21-1C-6. Penalties for violation of article.
(a) Any employer who violates any provision of this article is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than two hundred fifty nor more than one thousand
dollars.
(b) Any potential employee who applied for work and, but for
a violation of this article, would have been employed on a public
improvement, may recover from the employer those wages and benefits
which he or she would have received had he or she been hired in
accordance with this article as well as reasonable attorney's fees
and expenses. Any employer who engages in a knowing and willful
violation of this article shall also be liable, as a penalty, for
an additional amount equal to the individual's lost wages and
benefits.
§21-1C-7. Existing contracts.
This article applies only to contracts let after the effective
date of this article.
NOTE:The purpose of this bill is to encourage the hiring
of workers from the local labor market in public improvement
projects in West Virginia.
The entire article is new, therefore strike-throughs and
underscoring have been omitted.