H. B. 2018
(By Delegates Caputo, H. White, and McGraw)
[Introduced Janucary 13, 1999; referred to the committee on Industry and Labor then the Judiciary.]
A BILL to amend and reenact section three, article five-c,
chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
maximum hours of work; and providing that an employee has
the right to decline to work more than forty hours in any
one workweek.
Be it enacted by the Legislature of West Virginia:
That section three, article five-c, 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 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR
EMPLOYEES.
§21-5C-3. Maximum hours; overtime compensation.
(a) On and after the first day of July, one thousand nine hundred eighty, no employer shall may employ any of his or her
employees for a workweek longer than forty hours, unless such
employee receives those employees receive compensation for his
their employment in excess of the hours above specified at a rate
of not less than one and one-half times the regular rate at which
he is they are employed: Provided, That an employee has the
right to decline to work longer than forty hours in any workweek.
(b) As used in this section the "regular rate" at which an
employee is employed shall be deemed to include includes all
remuneration for employment paid to, or on behalf of, the
employee, but shall not be deemed to does not include:
(1) Sums paid as gifts; payments in the nature of gifts made
at Christmas time or on other special occasions, as a reward for
service, the amounts of which are not measured by or dependent on
hours worked, production or efficiency;
(2) Payments made for occasional periods when no work is
performed due to vacation, holiday, illness, failure of the
employer to provide sufficient work, or other similar cause;
reasonable payments for traveling expenses, or other expenses,
incurred by an employee in the furtherance of his or her
employer's interests and properly reimbursable by the employer,
and other similar payments to an employee which are not made as
compensation for his or her hours of employment;
(3) Sums paid in recognition of services performed during a given period if either: (a) Both the fact that payment is to be
made and the amount of the payment are determined at the sole
discretion of the employer at or near the end of the period and
not pursuant to any prior contract, agreement or promise causing
the employee to expect such payments regularly; or (b) the
payments are made pursuant to a bona fide profit-sharing plan or
trust or bona fide thrift or savings plan, meeting the
requirements of the commissioner set forth in appropriate
regulation which he or she shall issue, having due regard among
other relevant factors, to the extent to which the amounts paid
to the employee are determined without regard to hours of work,
production or efficiency; or (c) the payments are talent fees (as
such talent fees are defined and delimited by regulations of the
commissioner) paid to performers, including announcers, on radio
and television programs;
(4) Contributions irrevocably made by an employer to a
trustee or third person pursuant to a bona fide plan for
providing old-age, retirement, life, accident, or health
insurance or similar benefits for employees;
(5) Extra compensation provided by a premium rate paid for
certain hours worked by the employee in any day or workweek
because such hours are hours worked in excess of eight in a day
or in excess of the maximum workweek applicable to such the
employee under subsection (a) or in excess of the employee's normal working hours or regular working hours, as the case may
be;
(6) Extra compensation provided by a premium rate paid for
work by the employee on Saturdays, Sundays, holidays or regular
days of rest, or on the sixth or seventh day of the workweek,
where such the premium rate is not less than one and one-half
times the rate established in good faith for like work performed
in nonovertime hours on other days; or
(7) Extra compensation provided by a premium rate paid to
the employee, in pursuance of an applicable employment contract
or collective bargaining agreement, for work outside of the hours
established in good faith by the contract or agreement as the
basic, normal or regular workweek where such the premium rate is
not less than one and one-half times the rate established in good
faith by the contract or agreement for like work performed during
such the workweek.
(c) No employer shall be deemed may be considered to have
violated subsection (a) of this section by employing any employee
for a workweek in excess of the maximum workweek applicable to
such that employee under subsection (a) if such the employee is
employed pursuant to a bona fide individual contract, or pursuant
to an agreement made as a result of collective bargaining by
representatives of employees, if the duties of such the employee
necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than
the minimum hourly rate provided in section two and compensation
at not less than one and one-half times such that rate for all
hours worked in excess of such a maximum workweek, and (2)
provides a weekly guaranty of pay for not more than sixty hours
based on the rates so specified.
(d) No employer shall be deemed may be considered to have
violated subsection (a) of this section by employing any employee
for a workweek in excess of the maximum workweek applicable to
such that employee under such that subsection if, pursuant to an
agreement or understanding arrived at between the employer and
the employee before performance of the work, the amount paid to
the employee for the number of hours worked by him or her in such
that workweek in excess of the maximum workweek applicable to
such that employee under such that subsection:
(1) In the case of an employee employed at piece rates, is
computed at piece rates not less than one and one-half times the
bona fide piece rates applicable to the same work when performed
during nonovertime hours;
(2) In the case of an employee performing two or more kinds
of work for which different hourly or piece rates have been
established, is computed at rates not less than one and one-half
times such those bona fide rates applicable to the same work when
performed during nonovertime hours; or
(3) Is computed at a rate not less than one and one-half
times the rate established by such agreement or understanding as
the basic rate to be used in computing overtime compensation
thereunder: Provided, That the rate so established shall be
authorized by regulation by the commissioner as being
substantially equivalent to the average hourly earnings of the
employee, exclusive of overtime premiums, in the particular work
over a representative period of time; and if: (i) The employee's
average hourly earnings for the workweek exclusive of payments
described in subdivisions (1) through (7) of subsection (b) of
this section are not less than the minimum hourly rate required
by applicable law; and (ii) extra overtime compensation is
properly computed and paid on other forms of additional pay
required to be included in computing the regular rate.
(e) Extra compensation paid as described in subdivisions
(5), (6) and (7) of subsection (b) of this section shall be
creditable toward overtime compensation payable pursuant to this
section.
(f) (1) Employees of county and municipal governments may
receive, in accordance with this subsection and in lieu of
overtime compensation, compensatory time off at a rate not less
than one and one-half hours for each hour of employment for which
overtime is required pursuant to this section.
(2) County and municipal governments may provide compensatory time under subdivision (1) of this subsection, only
pursuant to a written agreement arrived at between the employer
and employee before the performance of the work, and recorded in
the employer's record of hours worked, and if the employee has
not accrued compensatory time in excess of the limit prescribed
in subdivision (3) of this subsection. Any written agreement may
be modified at the request of either the employer or the
employee, but under no circumstances shall may changes in the
agreement deny an employee compensatory time heretofore acquired.
(3) An employee may accrue up to four hundred eighty hours
of compensatory time if the employee's work is a public safety
activity, an emergency response activity or a seasonal activity.
An employee engaged in other work for a county or municipal
government may accrue up to two hundred forty hours of
compensatory time. Any such employee who has accrued four
hundred eighty or two hundred forty hours of compensatory time,
as the case may be, shall for additional overtime hours of work,
be paid overtime compensation. If compensation is paid to an
employee for accrued compensatory time off, such compensation
shall be paid at the regular rate earned by the employee at the
time the employee receives such payment.
(4) An employee who has accrued compensatory time off
authorized to be provided under subdivision (1) of this
subsection shall, upon termination of employment, be paid for the unused compensatory time at a rate of compensation not less than:
(A) The average regular rate received by such employee
during the last three years of the employee's employment; or
(B) The final regular rate received by such that employee,
whichever is higher.
(5) An employee of a county or municipal government:
(A) Who has accrued compensatory time off authorized to be
provided under subdivision (1) of this subsection; and
(B) Who has requested the use of such that compensatory
time, shall be permitted by the employee's employer to use such
that time within a reasonable time after making the request if
the use of the compensatory time does not unduly disrupt the
operation of the public agency. Compensatory time must be used
within one year from the time it was acquired.
(6) For purposes of this subsection the terms "compensatory
time" and "compensatory time off" mean hours during which an
employee is not working, which are not counted as hours worked
during the applicable workweek or other work period for purposes
of overtime compensation, and for which the employee is
compensated at the employee's regular rate.
NOTE: The purpose of this bill is to provide that an
employee has the right to decline to work more than forty hours
in a workweek.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.