ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 31
(Senators White, Hunter, Walker, Jackson, Deem,
Plymale and Wooton, original sponsors)
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[Passed March 12, 1998; in effect ninety days from passage.]
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AN ACT 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 five-e, relating
to requiring equal pay for equal work for state employees;
setting forth legislative findings and purpose; defining
terms; prohibiting the state from discriminating on the
basis of gender in payment of wages for work of comparable
character; creating right of action; establishing the equal
pay commission; providing for the appointment of members and
the expiration of commission; setting forth duties of the
commission; authorizing commission to promulgate legislative
rules; and establishing operative date.
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 five-e, to read
as follows:
ARTICLE 5E. EQUAL PAY FOR EQUAL WORK FOR STATE EMPLOYEES.
§21-5E-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that it is the
public policy of this state to provide all citizens equal
opportunity for employment without regard to gender and that
gender discrimination in hiring and promotion has played a role
in maintaining a segregated workforce in this state.
(b) The Legislature hereby further finds and declares that
the existence of wage differentials between equivalent jobs
segregated by gender depresses wages and living standards,
prevents the maximum utilization of the available labor resources
and constitutes an unfair method of competition.
(c) It is therefore the purpose of this article to provide
state employees equal pay for work of comparable character,
regardless of gender, to create a commission to study both the
methodology and funding for the implementation of a gender
discrimination prohibition and to establish a procedure to remedy
complaints of the failure to provide equal pay for work of
comparable character to state employees.
§21-5E-2. Definitions.
For the purposes of this article:
(1) "Employer" means the state of West Virginia;
(2) "Employee" means any person hired for permanent
employment, either full or part-time, or hired for temporary
employment for more than six consecutive months, by any
department, agency, commission or board of the state created by
an act of the Legislature, except any person employed by the
university of West Virginia board of trustees, the board of
directors of the state college system or by any state institution
of higher education, or a member of the state police, an employee
of any constitutional officer who is not classified under the
provisions of article six, chapter twenty-nine of this code and
any employee of the Legislature. The definition of "employee"
does not include any patient or inmate employed in a state
institution;
(3) "Wages" means all compensation for performance of
service by an employee for an employer, whether paid by the
employer or another person, including the cash value of all
compensation paid in any medium other than cash;
(4) "Rate" with reference to wages means the basis of
compensation for services by an employee for an employer and
includes compensation based on the time spent in the performance
of those services, or on the number of operations accomplished,
or on the quantity produced or handled;
(5) "Unpaid wages" means the difference between the wages
actually paid to an employee and the wages required to be paid to
an employee pursuant to section three of this article;
(6) "Work of comparable character" means work that may be
dissimilar, but whose requirements are comparable or equivalent
when viewed as a composite of levels of skill, effort,
responsibility and working conditions; and
(7) "Wage gap" means the difference between the median
annual earnings of men and women.
§21-5E-3. Discrimination between sexes in payment of wages for
work of comparable character prohibited.
(a) No employer shall:
(1) In any manner discriminate between the sexes in the
payment of wages for work of comparable character, the
performance of which requires comparable skills; or
(2) Pay wages to any employee at a rate less than the rate
other employees of the opposite sex are paid for work of
comparable character, the performance of which requires
comparable skills.
(b) Nothing in subsection (a) of this section prohibits the
payment of different wages to employees where the payment is made
pursuant to:
(1) A bona fide seniority system;
(2) A merit system; or
(3) A system that measures earnings by quantity or quality
of production.
(c) No employee shall be reduced in wages in order to
eliminate an existing, past or future wage discrimination or to
effectuate wage equalization.
(d) No employer shall in any manner discriminate in the
payment of wages to any employee because the employee has filed
a complaint in a proceeding under this article, or has testified,
or is about to testify, or because the employer believes that the
employee may testify, in any investigation or proceeding pursuant
to this article.
(e) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the equal pay commission under the
provisions of subsection (c) of said section.
§21-5E-4. Employee's right of action against employer.
(a) Any employee whose compensation is at a rate that is in
violation of section three of this article has the right to file
a grievance pursuant to the provisions of article six-a, chapter
twenty-nine of this code.
(b) No agreement for compensation at a rate of less than the
rate to which the employee is entitled under this article is a
defense to any action under this article.
(c) The rights and procedures provided under this section
shall be subject to the provisions of the rules promulgated by
the equal pay commission in accordance with section six of this
article.
(d) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the equal pay commission under the
provisions of subsection (c) of said section.
§21-5E-5. Establishment of the equal pay commission; appointment
of members; and expiration date.
(a) The equal pay commission is hereby established. The
commission shall be composed of seven members, as follows:
(1) Two members of the House of Delegates, appointed by the
speaker;
(2) Two members of the Senate, appointed by the president;
and
(3) Three state employee representatives, including one
labor union member representing state employees, as agreed to by
the speaker and president; the director of the women's
commission, or his or her designee; and the director of the
office of equal employment opportunity, or his or her designee.
(b) The commission shall seek input from and invite the
commissioner of labor or his or her designee and the director of the personnel division of the department of administration or his
or her designee to attend meetings of the commission.
(c) One of the members of the Senate and one of the members
of the House of Delegates, as designated by the president and the
speaker respectively, shall serve as cochair of the commission.
(d) The members of the House of Delegates, the members of
the Senate and the state employee representative members
initially appointed shall serve until the thirty-first day of
December, one thousand nine hundred ninety-eight. Those members
shall thereafter be appointed to serve two-year terms beginning
the first day of January, one thousand nine hundred ninety-nine.
(e) Any member whose term has expired shall serve until his
or her successor has been duly appointed. Any person appointed to
fill a vacancy shall serve only for the unexpired term. Any
member shall be eligible for reappointment.
(f) Any vacancies occurring in the membership of the
commission shall be filled in the same manner as the original
appointment for the position being vacated. The vacancy shall
not affect the power of the remaining members to execute the
duties of the commission.
(g) The commission expires on the first day of July, two
thousand three.
§21-5E-6. Commission's duties; promulgation of rules.
(a) The equal pay commission shall study both the methodology and funding for the implementation of a gender
discrimination prohibition and shall prepare reports for
submission to the Legislature which include:
(1) An analysis of state job descriptions which measures the
inherent skill, effort, responsibility and working conditions of
various jobs and classifications; and
(2) A review of similar efforts to eliminate gender-based
wage differentials implemented by other governmental entities in
this and other states.
(b) The commission shall submit an initial report with
recommendations for implementation of a gender discrimination
prohibition to the joint committee on government and finance not
later than the first day of July, two thousand, and shall submit
status reports annually thereafter.
(c) Based upon the findings and recommendations in its
report, the commission may propose legislative rules for
promulgation in accordance with article three, chapter twenty- nine-a of this code to implement the provisions of this article.
(d) Notwithstanding any other provision of this article, if
no legislative rules are approved for promulgation by the
Legislature pursuant to this article prior to the first day of
July, two thousand one, then the provisions of sections three and
four of this article shall become effective on such date.