H. B. 2211
(By Delegates Fleischauer, Douglas, Jenkins and Thomas)
[Introduced January 14, 1998;
referred to the Committee on the Judiciary.]
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, all relating to improving the economic
condition of women; prohibiting the state from discriminating
on the basis of gender in payment of wages for work of
comparable character; and establishing the equal pay
commission to study and report on the implementation of a
gender discrimination prohibition.
Be it enacted by the Legislature of the 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:
(1) It is the public policy of the state of West Virginia to
provide all of its citizens equal opportunity for employment
without regard to sex.
(2) Wage differentials exist in West Virginia between
equivalent jobs segregated by sex.
(3) The existence of such wage differentials:
(A) Depresses wages and living standards for employees
necessary for their health and efficiency;
(B) Prevents the maximum utilization of the available labor
(C) Constitutes an unfair method of competition.
(4) Discrimination in hiring and promotion has played a role
in maintaining a segregated workforce.
(5) Many women work in occupations dominated by women.
(6) According to the 1990 U. S. Census, women in West Virginia
earn fifty-eight cents of every dollar earned by men, and when
part-time work is included, women earn forty-five cents for every
dollar earned by men, which places West Virginia in the rank of
fifty-first out of fifty-one of the states and the District of
Columbia in wage gap based on gender.
(7) Between one-third and one-half of the wage difference
between men and women cannot be explained by differences in
experience, education or other legitimate qualifications, and, the
more education a woman has, the less she makes relative to a man at the same age, experience and education level.
(8) Artificial barriers exist to the advancement of women into
management and decisionmaking positions in the workplace.
(9) The elimination of artificial barriers to the advancement
of women in the workplace would have positive effects, including:
(A) Providing a solution to problems in the economy created by
discriminatory wage differentials;
(B) Substantially reducing the number of working women earning
low wages, thereby reducing dependence on public assistance; and
(C) Promoting stable families by enabling working family
members to earn a fair rate of pay.
(10) The state of West Virginia can assist in the elimination
of artificial barriers to the advancement of women in the workplace
by ensuring that its employees are compensated with equal pay for
work of comparable worth, regardless of sex.
(b) It is therefore the purpose of this article to:
(1) Provide state employees equal pay for work of comparable
character, regardless of sex; and,
(2) Establish a commission to study the methodology and
funding of the implementation of a gender discrimination
(a) For the purposes of this section, "employer" means the
(b) "Employee" means any individual who, otherwise than as a
co-partner of the employer or as an independent contractor, renders
personal services wholly or partly in this state to an employer who
pays or agrees to pay such individual at a fixed rate: Provided,
That where services are rendered only partly in this state, an
individual is not an employee unless his or her contract of
employment has been entered into, or payments thereunder are
ordinarily made or are to be made, within this state.
(c) "Wages" means all compensation for performance of service
by an employee for an employer whether paid by the employer or
another person, including cash value of all compensation paid in
any medium other than cash.
(d) "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
such services, or on the number of operations accomplished, or on
the quantity produced or handled.
(e) "Unpaid wages" means the difference between the wages
actually paid to an employee and the wages required under section
four of this article, to be paid to such employee.
(f) "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.
(g) "Wage gap" means the difference between the median annual
earnings of men and women.
§21-5B-3. State commissioner of labor to enforce article.
The state commissioner of labor shall have the power and it
shall be his or her duty to carry out and enforce the provisions of
§21-5B-4. 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 that at which he pays
wages to his employees of the opposite sex for work of comparable
character, the performance of which requires comparable skills.
(b) Nothing in subsection (a) of this section shall prohibit
the payment of different wages to employees where such 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
(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 against 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 proceedings
pursuant to this article or in a criminal action pursuant to this
(e) This section shall become effective the first day of July,
one thousand nine hundred ninety-eight.
§21-5B-5. Employee's right of action against employer.
(a) Any employee whose compensation is at a rate that is in
violation of section four of this article shall have a right of
action against his or her employer for the recovery of: (1) The
amount of the unpaid wages to which the employee is entitled for
the one-year period preceding the commencement of the action; and
(2) an additional amount as liquidated damages equal to the amount
referred to in subdivision (1) of this subsection.
(b) In addition to any judgment awarded to the plaintiff, the
court shall allow reasonable attorney's fees and costs, including
expert witness fees, to be taxed as costs in any judgment
(c) The action for the unpaid wages and liquidated damages may
be maintained by one or more employees on behalf of themselves or
other employees similarly situated.
(d) No agreement for compensation at a rate of less than the
rate to which such employee is entitled under this article is a
defense to any action under this article.
(e) This section shall become effective as of the first day of
July, one thousand nine hundred ninety-eight.
§21-5B-6. Establishment of the equal pay commission; composition;
(a) There is established a commission, which shall be known as
the "Equal Pay Commission", to study the methodology and funding of
the implementation of a gender discrimination prohibition and to
prepare a report 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 comprehensive wage plan which includes:
(A) A timeline for making wage adjustments designed to ensure
the payment of equal wages for work of comparable character; and
(B) A funding plan for implementing such wage adjustments.
(b) The commission shall present its report to the Legislature
at least thirty days before the first day of the regular session of
the year one thousand nine hundred ninety-eight.
(c) The commission shall be composed of the following persons:
(1) Four members of the house of delegates, appointed by the
(2) Four members of the senate, appointed by the president;
(3) One member of the business community and one member of the
labor community, as agreed to by the speaker and president;
(4) Four representatives of statewide nonprofit women's
organizations, as agreed to by the speaker and president; and
(5) The following persons shall serve as ex officio members of
the commission: The commissioner of labor or his or her designee;
the director of the personnel division of the department of
administration, or his or her designee; 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.
(d) One of the appointed members of the house of delegates and
one of the appointed members of the senate, as designated by the
speaker and the president respectively, shall serve as co-chairs of
(e) Any member whose term has expired shall serve until his or
her successor has been duly appointed and qualified. 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
(g) A majority of the commission shall constitute a quorum for
the transaction of business.
NOTE: This bill is recommended by the Joint Standing
Committee on the Judiciary for introduction and passage this
This article has been completely rewritten; therefore, strike- throughs and underscoring have been omitted.