Senate Bill No. 3

(By Senator Hunter)

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[Introduced January 12, 2000; referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]
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A BILL to amend article nine, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirteen-a, relating to protecting the rights of West Virginia works program participants who are employed in subsidized employment and the rights of regular employees who work at work sites where those participants are employed.

Be it enacted by the Legislature of West Virginia:
That article nine, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirteen-a, to read as follows:
ARTICLE 9. WEST VIRGINIA WORKS PROGRAM.
§9-9-13a. Rights of West Virginia works participants in subsidized employment.
(a) Notwithstanding any other provision of this code to the contrary, a participant who is employed or assigned to subsidized work activity pursuant to this article in which he or she performs services for an employer is considered an employee of that employer for purposes of West Virginia's unemployment compensation law, workers' compensation law, temporary disability insurance and any other state or federal law that otherwise applies to employees in the private sector and state, county and municipal government. The employer and the participant shall make all payments, contributions and payments in lieu of contributions that are otherwise required in the private sector or in state, county and municipal government, based on the value of the wages paid by the employer to the participant, combined with the amount of any cash assistance benefits provided to the participant under the West Virginia works program, which combined amount is considered the participant's "wages" during the period of employment or work activity.
(b) In the event that a participant who is employed or assigned to subsidized work is laid off by the employer or becomes unable to work because of a disability, all determinations of eligibility and computations of benefit amounts to be paid to the participant pursuant to a temporary disability insurance policy, workers' compensation or unemployment compensation shall be based on the value of the wages paid by the employer to the participant, combined with the amount of any cash assistance benefits provided to the participant under the West Virginia works program during the period of employment or work activity.
(c) A participant who is employed or assigned to a subsidized work activity in which the participant performs services for the employer shall be paid by the employer at a rate which, when combined with the hourly wage value of cash assistance benefits provided to the participant under the West Virginia works program, is not less than the minimum wage required under state or federal law or the minimum wage then in place for that job classification as required by state or federal law, or collective bargaining agreements, whichever is greater. For purposes of this subsection, the "hourly wage value" of monthly cash assistance benefits provided to the participant under the West Virginia works program means the total amount of the monthly cash assistance benefit received divided by the number of hours in that month that the participant spent performing services for the employer.
(d) Notwithstanding any other provision of law to the contrary, a participant who is employed in or assigned to a subsidized work activity may not be employed:
(1) In or assigned to a position at any work site of an employer which was previously filled by a regular employee if that position or a substantially similar position at the same work site has been made vacant through a demotion, a substantial reduction of hours, the layoff of a regular employee during the preceding twelve months, or elimination by the employer during the preceding twelve months;
(2) In or placed at a work site of an employer in such a way as to infringe upon the rights of unsubsidized employees at that work site, including previously agreed upon wage rates, benefits and overtime provisions;
(3) In or placed at a work site of an employer in such a way as to violate an existing collective bargaining agreement or any applicable statutory provision that governs that work site;
(4) In or placed at a work site in such a way as to supplant or duplicate existing positions in approved apprenticeship programs at that work site;
(5) By or through an employment agency or temporary help service firm;
(6) In or assigned to a position at an employer's work site if there is a contractual or statutory recall right to that position at that work site; or
(7) In or assigned to any position at an employer's work site if there is an ongoing strike or lockout at that work site.
(e) Nothing in this section prevents the inclusion in or enforcement of additional provisions designed for the protection of regular employees in any collective bargaining agreement.
(f) Any person who believes that he or she has been adversely affected by a violation of the provisions of this section, or any organization that is duly authorized to represent the collective bargaining unit to which that person belongs, shall be afforded an opportunity to meet, either in person or through a representative, with the commissioner of labor's designee. The designee shall attempt to resolve the person's complaint of an alleged violation within thirty days of the date of the request for the meeting. If the designee determines that a violation has occurred, he or she may fashion an appropriate remedy. If the complaint is not resolved at the expiration of thirty days, the person may utilize any internal grievance procedure that is provided by law and, if the arbitrator determines that a violation has occurred, he or she may fashion an appropriate remedy; or the person may appeal to the circuit court of the county in which the violation is alleged to have occurred for appropriate relief. The cost of any court proceeding brought under this section shall be borne by the culpable party to the dispute, as determined by the court.

NOTE: The purpose of this bill is to ensure certain employment related rights of persons employed in or assigned to subsidized employment under the West Virginia Works Program.

This section is new; therefore, strike-throughs and underscoring have been omitted.