H. B. 3092
(By Mr. Speaker, Mr. Kiss, and Delegates Amores
and Fleischauer)
[Introduced
February 21, 2003
; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact sections two, three, four, five and six
of article five-e, chapter twenty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating generally to equal pay for equal work of state
employees; modifying definitions; clarifying prohibited
discrimination in payment of wages for work of comparable
character; changing the employee's remedy for a violation of
prohibited acts and establishing an effective date; extending
the equal pay commission; eliminating certain authority and
duties of the equal pay commission; and making technical
corrections.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five and six, article five-e,
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:
§21-5E-2. Definitions.
For the purposes of this article:
(2) (1) "Employee" means any person hired for permanent
employment, either full or part-time, or hired for temporary
employment for more than six consecutive months, by any department,
agency, commission or board of the state created by an act of the
Legislature, except any person employed by the university of West
Virginia board of trustees, the board of directors of the state
college system or by any state institution of higher education, or
a member of the state police, an employee of any constitutional
officer who is not classified under the provisions of article six,
chapter twenty-nine of this code and any employee of the
Legislature. The definition of "employee" does not include any
patient or inmate employed in a state institution;
(1) (2) "Employer" means the state of West Virginia that state
department, board, commission, or agency utilizing the services of
an employee.
(4) (3) "Rate" with reference to wages means the basis of
monthly or hourly compensation for services by paid to an employee
for an by the employer and includes compensation based on the time
spent in the performance of those services, or on the number of
operations accomplished, or on the quantity produced or handled;
(5) (4) "Unpaid wages" means the difference between the wages
actually paid to an employee and the wages required to be paid to
an employee pursuant to section three of this article;
(7) (5) "Wage gap" means the difference between the median annual earnings of men and women;
(3) (6) "Wages" means all compensation for performance of
service by an employee for an employer, whether paid by the
employer or another person, including the cash value of all
compensation paid in any medium other than cash; and
(6) (7) "Work of comparable character" means work that may be
dissimilar, but whose the requirements of which are comparable or
equivalent when viewed as a measured by the composite of levels of
the skill, effort, responsibility and working conditions normally
required in the performance of the work.
§21-5E-3. 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 the performance of work of comparable
character, the performance of which requires comparable skills; or
(2) Pay wages to any employee at a rate less than the rate
other employees of the opposite sex are paid for the performance of
work of comparable character, the performance of which requires
comparable skills.
(b) Nothing in subsection (a) of this section prohibits the
payment of different wages to employees where the payment is made
pursuant to:
(1) A bona fide seniority system;
(2) (1) A merit system; or
(3) (2) A system that measures earnings by quantity or quality
of production.
(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 to 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 proceeding pursuant
to this article.
(e) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the equal pay commission under the provisions
of subsection (c) of said section.
§21-5E-4. Remedy and limitation.
(a) Any employee whose compensation is at a rate that is in
claiming a violation of section three of this article has the right
to may file a grievance complaint pursuant to the provisions of
article six-a eleven, chapter twenty-nine five of this code.
(b) No agreement for compensation at a rate of less than the
rate to which the employee is entitled under this article is a
defense to any action under this article.
(c) The rights and procedures provided under this section shall be subject to the provisions of the rules promulgated by the
equal pay commission in accordance with section six of this
article.
(d) Except as otherwise provided in subsection (d), section
six of this article, the provisions of this section shall not
become effective until the Legislature approves for promulgation
the rules proposed by the equal pay commission under the provisions
of subsection (c) of said section.
(c) The provisions of this section do not become effective
prior to the first day of July, two thousand eight.
§21-5E-5. Establishment of the equal pay commission; appointment
of members; and expiration date.
(a) The equal pay commission is hereby established. The
commission shall be composed of seven members, as follows:
(1) Two members of the House of Delegates, appointed by the
speaker;
(2) Two members of the Senate, appointed by the president; and
(3) Three state employee representatives, including one labor
union member representing state employees, as agreed to by the
speaker and president; 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.
(b) The commission shall seek input from and invite the
commissioner of labor or his or her designee and the director of
the personnel division of the department of administration his or her designee to attend meetings of the commission.
(c) One of the members of the Senate and one of the members of
the House of Delegates, as designated by the president and the
speaker respectively, shall serve as cochair of the commission.
(d) The members of the House of Delegates, the members of the
Senate and the state employee representative members initially
appointed shall serve until the thirty-first day of December, one
thousand nine hundred ninety-eight. Those members shall thereafter
be appointed to serve two-year terms beginning the first day of
January, one thousand nine hundred ninety-nine.
(e) Any member whose term has expired shall serve until his or
her successor has been duly appointed. 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
the commission.
(g) The commission expires on the first day of July, two
thousand three eight.
§21-5E-6. Commission's duties.
(a) The equal pay commission shall study both the methodology
and funding for the implementation of a gender discrimination
prohibition and shall prepare reports for submission to the Legislature which include:
(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 review of similar efforts to eliminate gender-based wage
differentials implemented by other governmental entities in this
and other states.
(b) The commission shall submit an initial report with
recommendations for implementation of a gender discrimination
prohibition to the joint committee on government and finance not
later than the first day of July, two thousand, and shall submit
status reports annually thereafter.
(c) Based upon the findings and recommendations in its report,
the commission may propose legislative rules for promulgation in
accordance with article three, chapter twenty-nine-a of this code
to implement the provisions of this article.
(d) The Legislature finds that it has not fully assessed the
potential cost to the state if the provisions of sections three and
four of this article are implemented and that those provisions
should not be implemented until a reasonable estimate of the amount
of public funds that may be required for appropriation and
expenditure as a result of the implementation can be calculated.
Accordingly, notwithstanding any other provisions of this article
to the contrary, the provisions of sections three and four of this
article shall not become effective until enactment of general law specifically providing an effective date of implementation of those
sections. During the interim period between the two thousand two
regular session of the Legislature and the two thousand three
regular session of the Legislature, the equal pay commission shall,
in the manner prescribed by the joint committee on government and
finance, meet and consult with the joint standing committee on the
judiciary, the joint committee on finance and others as may be
prescribed for the purposes of conducting a joint assessment of
budgetary or other financial impact on the state if the provisions
of sections three and four of this article are implemented. Prior
to the two thousand three regular session of the Legislature, those
directed to conduct the joint assessment shall report their
findings to the joint committee on government and finance and, if
warranted, report any recommendations for the passage of
legislation that would effectively lessen or eliminate the cost of
implementation of sections three and four of this article in a
manner that is consistent with achieving the purposes for which
this article was initially enacted.
NOTE: The purpose of this bill is to clarify the prohibited
discrimination and to change the employee's remedy for a violation
of prohibited acts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.