Senate Bill No. 507
(By Senators Hunter and White)
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[Introduced March 24, 1997; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
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A BILL to amend article nine, chapter nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section
thirteen-a, relating to protecting the rights of West
Virginia works program participants who are employed in
subsidized employment and the rights of regular employees
who work at work sites where such participants are employed.
Be it enacted by the Legislature of West Virginia:
That article nine, chapter nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
thirteen-a, to read as follows:
ARTICLE 9. WEST VIRGINIA WORKS PROGRAM.
§9-9-13a. Rights of West Virginia works participants in
subsidized employment.
(a) Notwithstanding any other provision of this code to the
contrary, a participant who is employed or assigned to subsidized
work activity pursuant to this article in which he or she
performs services for an employer shall be considered an employee
of that employer for purposes of West Virginia's unemployment
compensation law, workers' compensation law, temporary disability
insurance and any other state or federal law that otherwise
applies to employees in the private sector and state, county and
municipal government. The employer and the participant shall
make all payments, contributions and payments in lieu of
contributions that are otherwise required in the private sector
or in state, county and municipal government, based on the value
of the wages paid by the employer to the participant, combined
with the amount of any cash assistance benefits provided to the
participant under the West Virginia works program, which combined
amount shall be considered as the participant's "wages" during
the period of employment or work activity.
(b) In the event that a participant who is employed or
assigned to subsidized work is laid off by the employer or
becomes unable to work because of a disability, all
determinations of eligibility and computations of benefit amounts to be paid to the participant pursuant to a temporary disability
insurance policy, workers' compensation or unemployment
compensation shall be based on the value of the wages paid by the
employer to the participant, combined with the amount of any cash
assistance benefits provided to the participant under the West
Virginia works program during the period of employment or work
activity.
(c) A participant who is employed or assigned to a
subsidized work activity in which the participant performs
services for the employer shall be paid by the employer at a rate
which, when combined with the hourly wage value of cash
assistance benefits provided to the participant under the West
Virginia works program, is not less than the minimum wage
required under state or federal law or the minimum wage then in
place for that job classification as required by state or federal
law, or collective bargaining agreements, whichever is greater.
For purposes of this subsection, the "hourly wage value" of
monthly cash assistance benefits provided to the participant
under the West Virginia works program means the total amount of
the monthly cash assistance benefit received divided by the
number of hours in that month that the participant spent
performing services for the employer.
(d) Notwithstanding any other provision of law to the
contrary, a participant who is employed in or assigned to a subsidized work activity may not:
(1) Be employed in or assigned to a position at any work
site of an employer which was previously filled by a regular
employee if that position or a substantially similar position at
the same work site has been made vacant through a demotion, a
substantial reduction of hours, the layoff of a regular employee
during the preceding twelve months, or elimination by the
employer during the preceding twelve months;
(2) Be employed in or placed at a work site of an employer
in such a way as to infringe upon the rights of unsubsidized
employees at that work site, including previously agreed upon
wage rates, benefits and overtime provisions;
(3) Be employed in or placed at a work site of an employer
in such a way as to violate an existing collective bargaining
agreement or any applicable statutory provision that governs that
work site;
(4) Be employed in or placed at a work site in such a way as
to supplant or duplicate existing positions in approved
apprenticeship programs at that work site;
(5) Be employed by or through an employment agency or
temporary help service firm;
(6) Be employed in or assigned to a position at an
employer's work site if there is a contractual or statutory
recall right to that position at that work site; or
(7) Be employed in or assigned to any position at an
employer's work site if there is an ongoing strike or lockout at
that work site.
(e) Nothing in this section may be construed to prevent the
inclusion in or enforcement of additional provisions designed for
the protection of regular employees in any collective bargaining
agreement.
(f) Any person who believes that he or she has been
adversely affected by a violation of the provisions of this
section, or any organization that is duly authorized to represent
the collective bargaining unit to which that person belongs,
shall be afforded an opportunity to meet, either in person or
through a representative, with the commissioner of labor's
designee. The designee shall attempt to resolve the person's
complaint of an alleged violation within thirty days of the date
of the request for the meeting. If the designee determines that
a violation has occurred, he or she may fashion an appropriate
remedy. If the complaint is not resolved at the expiration of
thirty days, the person may utilize any internal grievance
procedure that is provided by law and, if the arbitrator
determines that a violation has occurred, he or she may fashion
an appropriate remedy; or the person may appeal to the circuit
court of the county in which the violation is alleged to have
occurred for appropriate relief. The cost of any court proceeding hereunder shall be borne by the culpable party to the
dispute, as determined by the court.
NOTE: The purpose of this bill is to ensure certain
employment related rights of persons employed in or assigned to
subsidized employment under the West Virginia Works Program.
This section is new; therefore, strike-throughs and
underscoring have been omitted.