COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 31
(By Senators White, Hunter, Walker, Jackson, Deem,
Plymale and Wooton)
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[Introduced January 14, 1998;
referred to the Committee on the Judiciary.]
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A Bill to amend and reenact article five-b, chapter twenty-one of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, relating to requiring equal pay for equal
work for men and women; establishing 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; expiration of commission; duties of
commission; promulgation of rules; and causes of action.
Be it enacted by the Legislature of West Virginia:
That article five-b, 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 5B. EQUAL PAY FOR EQUAL WORK.
§21-5B-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, and to establish a commission to study both
the methodology and funding for the implementation of a gender
discrimination prohibition.
§21-5B-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, 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.
§21-5B-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) 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 section six of this article. 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.
§21-5B-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 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 section six of this article. 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.
§21-5B-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 eleven members, each to serve for
a term of two years, as follows:
(1) Two members of the House of Delegates, appointed by the
speaker;
(2) Two members of the Senate, appointed by the president;
(3) Four representatives of the business community appointed
by the governor, no more than two of whom may be members of the
same political party;
(4) Three state employee representatives, including one
labor union member representing state employees, as agreed to by
the speaker and president;
(5) The director of the women's commission, or his or her
designee; and
(6) 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 persons appointed by the governor shall serve
as chair of the commission.
(d) 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.
(e) 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.
(f) The commission expires on the first day of July, two
thousand three.
§21-5B-6. Commission's duties and 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 a report for
submission to the Legislature which includes:
(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 its report and
recommendations to the joint committee on government and finance
not later than thirty days before the first day of the regular
session of the year two thousand.
(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 its recommendations, if the
commission considers a rule appropriate given its findings.
§21-5B-7. Causes of action.
(a) An employee may not bring any cause of action in any
court in this state or institute any administrative proceeding in
this state under the provisions of this article until the rules
promulgated under the provisions of section six of this article
become effective. An employee's right to bring a cause of action
or institute an administrative proceeding shall be subject to the
provisions of the commission's rules.
(b) Neither the report nor any part of the report, including
any findings and recommendations submitted under the provisions
of section six of this article, shall constitute evidence of any
or be used as evidence in any cause of action or any
administrative proceeding.
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(NOTE: This bill prohibits the state from discriminating on
the basis of gender in the payment of wages for work of
comparable character. An Equal Pay Commission is established to
study and report on the implementation of a gender discrimination
prohibition.
This article has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.)