COMMITTEE SUBSTITUTE

FOR

H. B. 4132

(By Delegates Burdiss, Webster, Ellem, Hamilton, Mahan

and Shook )


(Originating in the House Committee on the Judiciary)


[February 21, 2008]


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §21-3-22, relating to employer mandating employee participation in certain activities; prohibiting employers from mandating communication with employees regarding certain employer beliefs and activities; granting commissioner of labor enforcement powers; authorizing commissioner of labor to establish administrative process and rulemaking; authorizing commissioner of labor to seek injunctive relief; providing for civil damages to employees; providing for special revenue account for administrative penalties; providing that certain employers have limited exemptions from the provisions of this section; and providing for exemption of the provisions of this section when federally preempted.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §21-3-22, to read as follows:
ARTICLE 3. SAFETY AND WELFARE OF EMPLOYEES.
§21-3-22. Employer meetings and communications regarding politics and labor prohibited.

(a) As used in this section:

(1) "Employer" means any person, partnership, limited partnership, limited liability company, association (unincorporated or otherwise), corporation, institution, trust, governmental body or unit or agency, or any other entity (whether its principal activity is for-profit or not-for-profit) situated, doing business, or conducting its principal activity in the state and who employs tw elve or more persons within the state for twenty or more calendar weeks in the calendar year in which the employer-sponsored meeting occurred;
(2) "Employee" means a person who performs a full or part-time service for wages, salary, or other remuneration under a contract of hire, written or oral, express or implied, for an employer; and
(3) "Political matters" means the expression of opinions and beliefs relating to, or the encouraging or discouraging of participation in, any political or labor activity which does not have any reasonable relationship to the daily job responsibilities of the employee who may be subjected to the circumstances provided in subsections (b) and (c) of this section.
(b) No employer or an employer's agent, representative, or designee may require its employees to attend a meeting with the employer or its agents, representatives, or any invitee of the employer, when the primary purpose is to threaten, intimidate, compel, force or coerce an employee to adopt the employer's opinions or beliefs about political matters.
(c) No employer may discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, makes a good faith complaint, verbally or in writing, of a violation or suspected violation of this section.
(d) Pursuant to the powers set forth in article one of this chapter, the Commissioner of Labor is charged with the enforcement of this article. The commissioner shall propose legislative and procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish procedures for enforcement of this article. These rules shall include at a minimum, provisions to protect due process requirements, and a hearings and appeals procedure. Any complaint must be filed with the commissioner regarding an alleged violation of the provisions of this article and must be made within one year following the occurrence of the incident giving rise to the alleged violation. The commissioner shall keep each complaint anonymous until the commissioner finds that the complaint has merit.
(1) Assessment of administrative penalties:
(A) The administrative penalty for the first violation of this article is a fine not to exceed five hundred dollars; and
(B) The administrative penalty for the second and subsequent offenses is a fine of not less than two thousand five hundred dollars and not more than five thousand dollars for each violation.
(2) The commissioner may institute a civil action against any employer charged of a second or subsequent offense to enjoin the employer for further violations of the provisions of this section. (3) All administrative fines received by the commissioner shall be deposited in a special revenue fund in the state treasury. The fund shall be administered by the commissioner and expended for the administration of this article upon appropriation of the Legislature. Any balance in the fund at the end of any fiscal year shall remain in the fund and shall not expire or revert to the state general revenue fund.
(e) Nothing in this section limits an employee's right to bring a common law cause of action against an employer for wrongful termination or to diminish or impair the rights of a person under any collective bargaining agreement. Further, nothing in this section shall be construed to limit the employee's ability and right to file a private cause of action and seek common law remedies against an employer for a violation of this section even if an administrative action has commenced.
(f) Nothing in this section prohibits an employer from requiring employee participation in communications when the employer is, an educational, labor, political, or similar organization when the employee's work activities require the employee to adopt or adhere to those positions or beliefs.
(g) The purpose of this section is to protect every employee's right of privacy, and to protect his or her right of freedom to withdrawal, without penalty, from any employer speech that constitutes political matters, and that the employee finds objectionable. No provision of this section is intended to govern any employment issue associated with a labor dispute, unionization effort or any employee-employer dispute or grievance preempted by the federal National Labor Relations Act [29 U.S.C. §158]. This section is to be construed to exempt from the scope of its enforcement those actions regulated or otherwise protected by the National Labor Relations Act.