Senate Bill No. 534

(By Senators Wooton, Redd, Hunter and Kessler)

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[Introduced March 20, 2001; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article ten, relating to prohibiting nursing facilities and home health care agencies from using state funds to assist, promote, deter or discourage union organization; requiring certification and reporting; establishing civil actions and penalties; and creating exemptions.

Be it enacted by the Legislature of West Virginia:
That chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article ten, to read as follows:
ARTICLE 10. HEALTH CARE ONLY ACT.
§9-10-1. Legislative intent.
(a) The Legislature finds and declares that it is the policy of the state not to pay for efforts to interfere with an employee's choice about whether to join or to be represented by a labor union. It is also a policy of the state to take reasonable steps, as a large purchaser of healthcare, to ensure that healthcare funds deliver top quality care to those eligible for state assistance. It is therefore the intent of the Legislature in enacting this article to prohibit certain healthcare employers from using state funds to assist, promote, deter or discourage union organizing.
(b) The Legislature finds that, as the largest purchaser of nursing home and home care services in the state, the state has a significant proprietary interest in the delivery of care at these facilities. The Legislature also recognizes that short staffing results in poor care for state-funded nursing home residents and that activities regarding unionization often take place while employees are scheduled to provide health care services. Therefore, the Legislature hereby intends to prohibit activities relating to unionization during the work day or shift of employees who provide services to medicaid beneficiaries.
§9-10-2. Definitions.
(a) "Department" means the department of health and human resources.
(b) "Provider" means any provider of nursing facility services, home health care or home care personnel services licensed and doing business in this state.
(c) "Secretary" means the secretary of the department of health and human resources.
§9-10-3. State funds for union activities prohibited.
(a) No provider may use state funds for any activity to assist, promote, deter or discourage union organization.
(b) No provider may use state funds for any activity prohibited by the provisions of subsection (a) of this section that occurs during a work day or shift in which participating employees provide services to medicaid beneficiaries or patients whose care is otherwise financed by state funds.
§9-10-4. Maintenance of records; certification.
(a) Any provider that makes expenditures to assist, promote, deter or discourage union organizing shall maintain records sufficient to show that no state funds were used for those expenditures. The provider shall submit the records to the secretary of the department of health and human resources upon request.
(b) All providers subject to this article shall provide certification to the secretary that no state funds will be used to assist, promote, deter or discourage union organizing.
§9-10-5. Complaints and civil actions.
(a) Any person may file a complaint with the department if he or she believes that a provider is expending funds in violation of this article. Upon the filing of such a complaint, the department shall, within one week, notify the provider that it must provide records sufficient to show that no state funds were used in violation of this article within ten business days.
(b) A civil action for a violation of this chapter may be brought by the attorney general or by any taxpayer on behalf of the people of the state of West Virginia for injunctive relief, damages, civil penalties and other appropriate equitable relief. All damages and civil penalties collected pursuant to this chapter shall be paid to the state treasury.
(c) Before filing an action under this section, a taxpayer shall give written notice to the attorney general of the alleged violation and the intent to bring suit. The notice may not be given until twenty days after a complaint is filed with the division and the notice must include a copy of the complaint filed with the division and its disposition, if any. If the attorney general commences a civil action for the same alleged violation within sixty days of receiving the notice, a separate action by the taxpayer is barred.
(d) A taxpayer may intervene as a plaintiff in any action brought under this section.
(e) A prevailing plaintiff in any action under this section is entitled to recover reasonable attorney's fees and costs. A prevailing taxpayer intervenor who makes a substantial contribution to an action under this section is entitled to recover reasonable attorney's fees and costs.
§9-10-6. Penalties.
(a) A provider is liable to the state for the amount of any funds expended in violation of this article plus a civil penalty equal to twice the amount of those funds. If a provider violates this article, it is liable to the state for that proportion of the cost of the campaign which represents the proportion of the provider's revenues from medicaid in the fiscal year of the campaign and the civil penalty does not apply.
(b) Any individual who knowingly authorizes the use of state funds in violation of this article is liable to the state for the amount of those funds.
§9-10-7. Included activities.
For purposes of this article, any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning or coordination of, or carrying out, an activity to assist, promote or deter union organizing shall be treated as paid or incurred for that activity.
§9-10-8. Excluded activities.
 (a) The provisions of this article do not apply to an activity performed, or to an expense incurred, in connection with any of the following:
(1 ) Addressing a grievance or negotiating or administering a collective bargaining agreement; or
(2) Performing an activity required by federal or state law or by a collective bargaining agreement.
(b) The provisions of this article do not apply to an expenditure made prior to the first day of January, two thousand two.
(c) Nothing in this article requires employers to maintain records in any particular form.
§9-10-9. Discriminatory acts prohibited.
(a) No provider subject to the provisions of this article may discharge, demote, threaten or otherwise discriminate against any person or employee with respect to compensation, terms, conditions, or privileges of employment because the person or employer, or any person acting pursuant to the request of the employee, provided or attempted to provide information to the department or to the attorney general or his or her designee regarding possible violations of this article.
(b) Any person or employee or former employee subject to the provisions of this article who believes that he or she has been discharged or discriminated against in violation of this section may file a civil action within three years of the date of the discharge or discrimination.
(c) If a court of competent jurisdiction finds by a preponderance of the evidence that a violation of this section has occurred, the court may grant such relief as it may consider appropriate, including:
(1) Reinstatement to the employee's former position;
(2) Compensatory damages, costs and reasonable attorneys fees; (3) Other relief to remedy past discrimination.
(d) The protections of this section do not apply to any employee or person who:
(1) Deliberately causes or participates in the alleged violation of law or regulation; or
(2) Knowingly or recklessly provides substantially false information to the department.



NOTE: The purpose of this bill is to prohibit nursing facilities and home health care agencies from using state funds to assist, promote, deter or discourage union organization. It requires certification and reporting and establishes civil actions and penalties.

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