H. B. 2149
(By Delegates Linch, Hunt, Collins,
Williams, McGraw, Rowe and Fleischauer)
[Introduced January 13, 1999; referred to the
Committee on Finance then Government Organization.]
A BILL 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 one-c, relating to
creating the "West Virginia Jobs Act"; providing
definitions; application; legislative findings and policy;
hiring of employees; job orders; certificates of
availability; contracts, criminal penalties; and existing
contracts.
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 one-c, to read
as follows:
ARTICLE 1C. EMPLOYMENT OF RESIDENTS OF LABOR MARKET.
§21-1C-1. Short title.
This article may be cited as the "West Virginia Jobs Act."
§21-1C-2. Definitions.
As used in this article:
(a) The term "construction project" means any construction,
reconstruction, improvement, enlargement, painting, decorating or
repair of any public improvement let to contract in an amount
equal to or greater than twenty-five thousand dollars. The term
"construction project" does not include temporary or emergency
repairs;
(b) The term "employee" includes any person engaged or
permitted to perform hourly work for wages by a person, firm or
corporation in the construction industry. The term "employee"
does not include: (1) Bona fide employees of a public authority
or individuals engaged in making temporary or emergency repairs;
(2) Bona fide independent contractors; or (3) salaried
supervisory personnel necessary to assure efficient execution of
the employee's work;
(c) The term "employer" means any person, firm or
corporation employing one or more employees on any public
improvement;
(d) The term "labor market" is defined as the labor market area designated by the West Virginia Division of Highways for
Appalachian Regional Commission projects and shall include every
county in West Virginia.
(e) The term "public authority" means any officer, board or
commission or other agency of the state of West Virginia, or any
political subdivision the state, authorized by law to enter into
a contract for the construction of a public improvement,
including any institution supported, in whole or in part, by
public funds of the state of West Virginia or its political
subdivisions, or any economic development authority of the state
or any of its political subdivisions authorized to issue economic
development bonds as a means of financing private construction
projects; and
(f) The term "public improvement" includes all buildings,
roads, highways, bridges, streets, alleys, sewers, ditches,
sewage disposal plants, waterworks, airports and all other
structures or works on which a construction project may be let to
contract by (1) any public authority; (2) any private person,
corporation, partnership, or any other business entity receiving
the benefit of state tax incentives or credits; or (3) any
private person, corporation, partnership or any other business
entity receiving the benefit of economic development bonds
authorized or issued by any public economic development authority or economic development board in connection with construction
projects in this state whether the construction project is public
or private.
§21-1C-3. Application of article.
This article applies to:
(a) expenditures by any public authority made, in whole or
in part, from public funds for a construction project;
(b) any construction project, whether public or private
funded, in whole or in part, by any bonds issued by any economic
development board or agency authorized to issue economic
development bonds for public or private construction projects;
and
(c) any private construction project resulting, in whole or
in part, from the issuance of tax incentives, tax credits, or
other benefits granted by the state or any of its political
subdivisions to induce or encourage the undertaking of any such
construction project by any private person, corporation or any
other entity.
§21-1C-4. Policy.
The Legislature hereby finds that the average income of
residents of the State of West Virginia is significantly below
the national average income of residents of the United States of
America; that the rate of unemployment in this state is significantly higher than the rate of unemployment in other
states in the United States of America; and that a majority of
counties in this state are designated as labor surplus areas by
the United States Department of Labor.
The Legislature further finds that unemployment is a chronic
and serious problem in this state; that unemployment adversely
impacts the health and welfare of the populace, and the state's
tax base and tax revenues; and that all necessary and lawful
measures must be employed to guard against the menace to the
state resulting from unemployment; and that from time to time, in
an effort to combat unemployment the state and its political
subdivisions contract for public improvement projects as defined
above and subsidize public improvement construction projects
through the issuance of economic development bonds, tax
incentives, tax credits and other taxpayer guaranteed or funded
benefits to private persons, corporations, partnerships and other
entities. The Legislature further finds that the employment of
persons from outside the local labor market on public improvement
construction projects contracted for and subsidized by the
taxpayers of the State of West Virginia contributes significantly
to the rate of unemployment and the low per capita income among
qualified persons in West Virginia. It hereby is declared to be
the policy of the State of West Virginia that residents of local labor markets, as defined in section two of this article, should
be employed in the construction of all public improvement and
private construction projects which depend, in whole or in part,
on taxpayer funding, economic development bonds, or other
incentives for which West Virginia taxpayers are responsible
either through taxes or guarantees.
§21-1C-5. Hiring of employee; contracts to contain certain
provisions.
(a) On all public improvements, a minimum of ninety percent
of every employer's employees shall be individuals who have
resided in the relevant labor market for at least six months
preceding their application for employment: Provided, That an
employer may employ nonresidents of the relevant labor market on
public improvements when labor market residents are not available
or are not qualified to perform the work involved.
(b) Any employer not otherwise able to employ a minimum of
ninety percent labor market residents as employees on a public
improvement must inform the nearest office of the West Virginia
division of employment security of his or her employment needs.
If within one week following the placing of a job order, the
division is unable to refer any qualified job applicants to the
employer, or less than the number requested, the division will
award a certificate to the contractor indicating the unavailability of applicants. The certificate shall be made a
part of the contractor's permanent project records. Upon receipt
of the certificate, the contractor may employ nonresidents of the
labor market to fill any positions covered by the certificate.
(c) Every public improvement contract let shall contain a
provision conforming to the requirements of this article. Every
subcontract for a public improvement which is, or reasonably may
be, done as on-site work shall contain a provision conforming to
the requirements of this article.
§21-1C-6. Penalties for violation of article.
(a) Any employer who violates any provision of this article
is guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than two hundred fifty nor more than one
thousand dollars.
(b) Any potential employee who applied for work and, but for
a violation of this article, would have been employed on a public
improvement, may recover from the employer those wages and
benefits which he or she would have received had he or she been
hired in accordance with this article as well as reasonable
attorney's fees and expenses. Any employer who engages in a
knowing and willful violation of this article shall also be
liable, as a penalty, for an additional amount equal to the
individual's lost wages and benefits.
§21-1C-7. Existing contracts.
This article applies only to contracts let after the
effective date of this article.
NOTE: The purpose of this bill is to encourage the hiring
of workers from the local labor market in public improvement
projects in West Virginia.
The entire article is new, therefore strike-throughs and
underscoring have been omitted.