H. B. 3116


(By Delegates Armstead, Palumbo, Calvert,
Trump, Cann, Amores and Smirl)

[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact sections one, eleven and thirteen, article five, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one, article five-a, chapter twenty-one of said code, all relating to wage payment and collection; requiring the commissioner of the division of labor to provide notice to employers against whom the commissioner initiates any investigation or action; requiring the commissioner to conclude actions taken against employers within thirty days; providing that the commissioner may not randomly investigate an employer more than once per year; and defining, in the context of wage payment, the term "final payment" and providing that final payment is the lesser of either retainage under the contract, final installment under the contract, or an amount shown by the commissioner to be damages.

Be it enacted by the Legislature of West Virginia:
That sections one, eleven and thirteen, article five, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section one, article five-a, chapter twenty-one of said code be amended and reenacted, all to read as follows:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.

 §21-5-1. Definitions.

As used in this article:
(a) The term "firm" includes any partnership, association, joint-stock company, trust, division of a corporation, the administrator or executor of the estate of a deceased individual or the receiver, trustee or successor of any of the same, or officer thereof, employing any person.
(b) The term "employee" or "employees" includes any person suffered or permitted to work by a person, firm or corporation.
(c) The term "wages" means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation. As used in sections four, five, eight-a, ten and twelve of this article, the term "wages" shall also include then accrued fringe benefits capable of calculation and payable directly to an employee: Provided, That nothing herein contained shall require fringe benefits to be calculated contrary to any agreement between an employer and his or her employees which does not contradict the provisions of this article.
(d) The term "commissioner" means commissioner of labor or his or her designated representative.
(e) The term "railroad company" includes any firm or corporation engaged primarily in the business of transportation by rail.
(f) The term "special agreement" means an arrangement filed with and approved by the commissioner whereby a person, firm or corporation is permitted upon a compelling showing of good cause to establish regular paydays less frequently than once in every two weeks: Provided, That in no event shall the employee be paid in full less frequently than once each calendar month on a regularly established schedule.
(g) The term "deductions" includes amounts required by law to be withheld, and amounts authorized for union or club dues, pension plans, payroll savings plans, credit unions, charities and hospitalization and medical insurance.
(h) The term "officer" shall include includes officers or agents in the management of a corporation or firm, who knowingly permit the corporation or firm to violate the provisions of this article.
(i) The term "wages due" shall include includes at least all wages earned up to and including the fifth day immediately preceding the regular payday.
(j) The term "construction" means the furnishing of work in the fulfillment of a contract for the construction, alteration, decoration, painting or improvement of a new or existing building, structure, roadway or pipeline, or any part thereof, or for the alteration, improvement or development of real property: Provided, That construction performed for the owner or lessee of a single family dwelling or a family farming enterprise is excluded.
(k) The term "minerals" means clay, coal, flagstone, gravel, limestone, manganese, sand, sandstone, shale, iron ore and any other metallurgical ore.
(l) The term "fringe benefits" means any benefit provided an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage.
(m) The term "employer" means any person, firm or corporation employing any employee.
(n) The term "doing business in this state" means having employees actively engaged in the intended principal activity of the person, firm or corporation in West Virginia.
(o) The term "final payment" means the lesser of the following:
(1) Retainage as directed by the contract; or
(2) Final installment as directed by the contract; or
(3) An amount that the commissioner or his or her authorized representatives may demonstrate as damages relating to violations under the provisions of this chapter.
§21-5-11. Administrative enforcement.

(a) The commissioner shall enforce and administer the provisions of this article in accordance with chapter twenty-nine-a of this code. The commissioner or his or her authorized representatives are empowered to enter and inspect, at reasonable times, such places, question such employees, and investigate such facts, conditions, or matters as they may deem consider appropriate, to determine whether any person, firm or corporation has violated any provision of this article, or any rule or regulation issued hereunder or which may aid in the enforcement of the provisions of this article.
(b) The commissioner or his or her authorized representatives shall have power to administer oaths and examine witnesses under oath, issue subpoenas, compel the attendance of witnesses, and the production of papers, books, accounts, records, payrolls, documents and testimony and to take depositions and affidavits in any proceeding before said commissioner.
(c) In case of failure of any person to comply with any subpoena lawfully issued, or on the refusal of any witness to testify to any matter regarding which he may be lawfully interrogated, it shall be the duty of the circuit court, on application by the commissioner, to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.
(d) Within ten days of the first day that any action taken that is authorized by this section, the commissioner or his or her authorized representative must provide the person, firm or corporation against whom the action is taken, written notification of the subject of the action, including, but not limited to, the project or job description, facts and circumstances surrounding the alleged violations, and name of the commissioner or his or her authorized representative taking the action.
(e) Within thirty days of the date of the notification described in subsection (d) of this section, the action taken by the commissioner or his or her authorized representative shall be concluded. At the conclusion of the thirty-day period, any and all remedial enforcement measures, including, but not limited to, withholding of funds, shall be discharged.
(f) The commissioner or his or her authorized representative may not randomly investigate a person, firm or corporation more than one time within a one-year period.
§21-5-13. Rules.

The commissioner shall make reasonable rules and regulations to the extent necessary to effectuate the purposes of this article, in accordance with the provisions of chapter twenty-nine-a of the code of West Virginia, as amended.
ARTICLE 5A. WAGES FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS.
§21-5A-1. Definitions.

(1) The term "public authority," as used in this article, shall mean means any officer, board or commission or other agency of the state of West Virginia, or any political subdivision thereof, 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, and this article shall apply to expenditures of such institutions made in whole or in part from such public funds.
(2) The term "construction," as used in this article, shall mean means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract. The term "construction" shall not be construed to include temporary or emergency repairs.
(3) The term "locality" means the county where the construction is to be performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workmen and mechanics to perform such construction efficiently and properly, and may include one or more counties in this state adjacent to the one in which the construction is to be performed and from which such skilled laborers, workmen and mechanics may be obtained in sufficient numbers to perform the construction. With respect to construction of public improvements with the state road commission, "locality" may be construed to include one or more counties in this state adjacent to the one in which the construction or public improvement is to be performed and from which skilled laborers, workmen and mechanics may be accessible for work on such construction on public improvements.
(4) The term "public improvement," as used in this article, shall include includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures upon which construction may be let to contract by the state of West Virginia or any political subdivision thereof.
(5) The term "construction industry," as used in this article, shall mean means that industry which is composed of employees and employers engaged in construction of buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures or works whether private or public on which construction work as defined in subsection (2) of this section is performed.
(6) The term "board" shall mean means the minimum wage board as constituted in this article.
(7) The term "employee," for the purposes of this article, shall not be construed to include such persons as are employed or hired by the public authority on a regular or temporary basis or engaged in making temporary or emergency repairs.
(8) The term "final payment" means the lesser of the following:
(A) Retainage as directed by the contract; or
(B) Final installment as directed by the contract; or
(C) An amount that the commissioner or his or her authorized representative may demonstrate as damages relating to violations under the provisions of this chapter.



NOTE: The purposes of this bill are as follows: (1) To require the commissioner of the division of labor to provide notice to employers against whom the commissioner initiates any investigation or action related to wage payment and collection; to require the commissioner to conclude actions taken against employers within thirty days; to prohibit the commissioner from randomly investigating an employer more than once per year; and to define, in the context of wage payment, the term "final payment" while providing that final payment is the lesser of either retainage under the contract, final installment under the contract, or an amount shown by the commissioner to be damages.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.