Senate Bill No. 352
(By Senators Hunter, Unger, Bailey, Helmick, Rowe, Kessler, Plymale,
Dempsey, White, Bowman, Edgell, McCabe, Love, Sprouse, Minard, Snyder,
Caldwell, Chafin, Ross, Sharpe, Guills, Jenkins, Fanning, Prezioso and
[Passed March 8, 2003; to take effect March 15, 2003]
AN ACT to amend and reenact sections five and seven, article one-c,
chapter twenty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to the West
Virginia jobs act; requiring reporting to the state tax
department; and changing the effective date.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five and seven, article one-c,
chapter twenty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 1C. WEST VIRGINIA JOBS ACT.
As used in this article:
(1) 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 one million dollars. The term "construction
project" does not include temporary or emergency repairs;
(2) (A) The term "employee" means any person hired or
permitted to perform hourly work for wages by a person, firm or
corporation in the construction industry;
(B) The term "employee" does not include:
(i) Bona fide employees of a public authority or individuals
engaged in making temporary or emergency repairs;
(ii) Bona fide independent contractors; or
(iii) Salaried supervisory personnel necessary to assure
efficient execution of the employee's work;
(3) The term "employer" means any person, firm or corporation
employing one or more employees on any public improvement and
includes all contractors and subcontractors;
(4) The term "local labor market" means every county in West
Virginia and all counties bordering West Virginia that fall within
seventy-five miles of the border of West Virginia;
(5) The term "public authority" means any officer, board,
commission or agency of the state of West Virginia and its
subdivisions, including counties and municipalities. Further, the
economic grant committee, economic development authority,
infrastructure and jobs development council and school building
authority shall be required to comply with the provisions of this
article for loans, grants or bonds provided for public improvement
(6) The term "public improvement" includes the construction of
all buildings, roads, highways, bridges, streets, alleys, sewers,
ditches, sewage disposal plants, waterworks, airports and all other
structures that may be let to contract by a public authority,
excluding improvements funded, in whole or in part, by federal
§21-1C-3. Legislative findings; statement of policy.
The Legislature finds that the rate of unemployment in this
state is significantly higher than that of most other states and
that a majority of West Virginia counties are designated as labor
surplus areas by the United States department of labor.
The Legislature 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 contributes significantly to the rate of unemployment and the
low per capita income among qualified state residents who would
otherwise be hired for these jobs.
Therefore, the Legislature declares that residents of local
labor markets should be employed for the construction of public
improvement projects which directly utilize taxpayer funding, in
whole or in part.
§21-1C-4. Local labor market utilization on public improvement
construction projects; waiver certificates.
(a) Employers shall hire at least seventy-five percent of
employees for public improvement construction projects from the local labor market, to be rounded off, with at least two employees
from outside the local labor market permissible for each employer
(b) Any employer unable to employ the minimum number of
employees from the local labor market shall inform the nearest
office of the bureau of employment programs' division of employment
services of the number of qualified employees needed and provide a
job description of the positions to be filled.
(c) If, within three business days following the placing of a
job order, the division is unable to refer any qualified job
applicants to the employer or refers less qualified job applicants
than the number requested, then the division shall issue a waiver
to the employer stating the unavailability of applicant and shall
permit the employer to fill any positions covered by the waiver
from outside the local labor market. The waiver shall be either
oral or in writing and shall be issued within the prescribed three
days. A waiver certificate shall be sent to both the employer for
its permanent project records and to the public authority.
§21-1C-5. Applicability and scope of article; reporting
(a) This article applies to expenditures for construction
projects by any public authority for public improvements as defined
by this article.
(b) For public improvement projects let pursuant to this
article, the public authority shall file, or require an employer as defined in section two of this article to file, with the division
of labor copies of the waiver certificates and certified payrolls,
pursuant to article five-a of this chapter, or other comparable
documents that include the number of employees, the county and
state wherein the employees reside and their occupation.
(c) The division of labor shall compile the information
required by this section and submit it to the joint committee on
government and finance by the fifteenth day of October, two
thousand five, for a legislative audit to be prepared for the
December, two thousand five, interim session. Beginning with the
legislative interim meetings in May, two thousand three, and
continuing through the interim period ending in November, two
thousand five, the division of labor shall provide quarterly
reports to the joint committee on government and finance on the
information compiled pursuant to this article. The joint committee
may forward these reports to the legislative auditor to review and
make comments regarding the usefulness of the information collected
and to suggest changes to the division's method of reporting to
ensure the information collected will prove useful in evaluating
the effectiveness of the provisions of this article.
(d) Each public authority has the duty to implement the
reporting requirements of this article. Every public improvement
contract or subcontract let by a public authority shall contain
provisions conforming to the requirements of this article.
(e) The division of labor is authorized to establish procedures for the efficient collection of data, collection of
civil penalties prescribed in section six and transmittal of data
to the joint committee on government and finance.
§21-1C-7. Effective date.
This article is effective from passage through the fifteenth
day of March, two thousand six.