HB4368 H JUD AM 2-24 #1
The Committee on the Judiciary moves to amend the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5A-30-1, §5A-30-2, §5A-30-3, §5A-30-4, §5A-30-5, §5A-30-6, §5A-30-7, §5A-30-8, §5A-30- 9, §5A-30-10 and §5A-30-11, all to read as follows:
ARTICLE 30. WEST VIRGINIA EQUAL EMPLOYMENT OPPORTUNITY OFFICE.
§5A-30-1. Public policy; equal employment opportunity.
(a) It is declared to be in the best interest of the State of West Virginia to ensure that historic and any present patterns of sex and racial discrimination are eliminated and that each agency pursue a course of action in all areas of its operation to ensure that all citizens are provided with fair and equal opportunities for employment and advancement regardless of race, color, religion, national origin, age, sex, marital status, or physical or mental disability.
(b) Equal employment opportunity action shall be taken to ensure the implementation of a policy in state government employment which provides equal employment opportunity. Such policy shall apply to:
(1) Hiring, placement, upgrading, transfer, or demotion of employees;
(2) Recruitment, advertising, or solicitation for employment;
(3) Treatment during employment;
(4) Rates of pay or other forms of compensation;
(5) Selection for training;
(6) Layoff, termination, or reinstatement; and
(7) Any other terms or conditions of employment.
§5A-30-2. Terms, defined
As used in this article, unless the context otherwise requires:
(1) "Director" means the Equal Employment Opportunity Director.
(2) "Affirmative action" means a deliberate and sustained effort to identify and eliminate barriers to employment and advancement which may discriminate against various groups. Particular emphasis shall be focused on racial minorities, women, and the disabled but not to the exclusion of the criteria set forth in subdivision (1) of this section. The ultimate goal is to achieve, at all levels, a state government work force which is representative of the state working population. The composition of the state working population shall be determined annually through reports of the United States Department of Labor. Such a goal is to be an integral part of every aspect of personnel policy;
(3) "Agency" means any administrative unit of state government, including any authority, board, bureau, commission, committee, council, division, section or office;
(4) "Appointing authority" means a person or group of persons authorized by an agency to make appointments to positions in the classified or classified-exempt service;
(5) "Equal employment opportunity" means the right of all persons to work, to be compensated and to advance on the basis of merit and ability without regard to race, color, religion, national origin, age, sex, marital status, or physical or mental disability;
(6) "Program" means the Equal Employment Opportunity Program;
(7) "Office"means the Equal Employment Opportunity Office;
(8) "Plan" means the Equal Employment Opportunity Action Plan prepared by the individual agencies; and
§5A-30-3. Equal Employment Opportunity Office; created
(a) There is hereby created the Equal Employment Opportunity Office within the Office of the Governor . The office shall report to the Governor and to the Legislature on state equal employment opportunity programs. The state equal employment opportunity office shall be responsible for assuring compliance with the requirements of all federal agencies for equal opportunity and shall provide training and technical assistance as may be requested by all state departments as is necessary to comply with the intent of this article.
(b) The state equal employment opportunity office shall issue any guidelines, directives or instructions that are necessary to effectuate its responsibilities under this article, and is authorized to investigate possible discrimination and direct corrective action to the discrimination.
§5A-30-4. Equal Employment Opportunity Office; employees
The Equal Employment Opportunity Office shall consist of such employees as may be necessary to carry out the purposes of this article.
§5A-30-5. Equal Employment Opportunity Director; selection
(a) The Equal Employment Opportunity Director shall be appointed by the Governor. The director shall be qualified by training and experience to carry out the duties provided in this article.
(b) The Director:
(1) Shall serve on a full-time basis;
(2) May not hold political office in the government of the state either by election or appointment while serving as coordinator;
(3) Is required to be a citizen of the United States and to become a resident of the state within ninety days of appointment;
(4) Is entitled to receive an annual salary, as provided by the Governor; and
(5) Is exempt from coverage under classified service as provided in section four, article six, chapter twenty-nine of this code.
§5A-30-6. Equal Employment Opportunity Director; duties; enumerated
The director shall be the head of the office. The director shall be given all necessary management support to ensure that there is compliance with West Virginia's program and shall be provided with sufficient staff and budget support to carry out the duties of the office. The director shall:
(1) Have the authority and responsibility for coordinating, directing, and implementing the program;
(2) Adopt and promulgate rules for the implementation of the agencies' plans;
(3) Provide counseling and technical assistance to the agencies in the development of their plans;
(4) Review agency plans and direct modification to ensure the effectiveness of the plans and their compliance with the program;
(5) Monitor the progress of agency plans by establishing reporting forms as required by the program;
(6) Review the quarterly reports of the agencies;
(7) Monitor the progress of the program and report quarterly to the Governor;
(8) Make formal recommendations for legislation, when necessary, in order to make changes in the program;
(9) Serve as liaison between the state and federal compliance agencies;
(10) Plan, coordinate, and conduct training in equal employment opportunity, racial awareness, and concerns of women, the disabled, and aging for all segments of the state government work force;
(11) Coordinate the activities of the agency affirmative action individual in each agency;
(12) Investigate any complaints involving unfair treatment, terms and conditions of employment, or perceived acts or policies involving discrimination;
(13) Conduct contract compliance reviews on all vendors, grantees, and contractors who have programs or projects which are funded in whole or in part by state funds;
(14) Coordinate with the State Americans with Disabilities Coordinator, the Women's Commission and the Equal Pay Commission; and
(15) Submit an annual report to the Governor and Legislature.
§5A-30-7. Agency; plan; submit; update
Each agency shall submit a plan for that agency to the office for review and shall work with the director to ensure effectiveness of the plan. Each agency shall annually update its plan based on guidelines developed by the director.
§5A-30-8. Agency Equal Employment Opportunity Contact; appointed
The head of each agency with more than ten employees shall appoint at least one individual as agency equal employment Opportunity contact for the agency to coordinate equal employment and affirmative action efforts with the office.
(a) During the month of January in each year boards, agencies, commissions, or authorities are requested to file with the state equal employment Opportunity office a list of its members, designating their race, gender, and date of appointment.
(b) The appointing authority, in consultation with the equal employment opportunity director and the director the division of personnel within the department of administration, shall annually conduct a utilization analysis of appointments to state boards, commissions, public authorities and quasi-public corporations. Each agency shall give the director access to information, statistics, reports or other data, of a non-confidential nature, compiled or maintained by it regarding salaries, classifications, qualifications, skills, military service or other factors affecting employment of state employees.
(c) The equal employment opportunity director shall report the results of the analysis to the Governor and the Legislature by or on January 31 of each year. The report shall be a public record and shall be made available electronically on the Secretary of State's website.
§5A-30-9. Enforcement.
(a) The director is authorized to initiate complaints against any agencies, directors, or employees of any department or division within state government, excluding the legislative branch, who or which willfully fail to comply with the requirements of any applicable affirmative action plan or of this article or who or which fail to meet the standards of good faith effort, reasonable basis, or reasonable action, as defined in guidelines promulgated by the federal Equal Employment Opportunity Commission as set forth in 29 CFR 1607.
(b) Whenever the director initiates a complaint, he or she shall cause to be issued and served in the name of the equal employment opportunity office a written notice, together with a copy of the complaint, requiring that the agency, director, agent, or employee respond and appear at a hearing before a hearing examiner appointed by the director for such purpose, at a time and place specified in the notice.
(c) Hearings shall be conducted and decided by the hearing examiner in the time and manner provided for the hearing of contested cases in article five, chapter twenty-nine-a of this code. Each hearing examiner appointed under this section shall be qualified to act as such by reason of his training, education or experience.
(d) After a hearing and decision of the hearing officer, the equal employment opportunity office shall have the power to issue an order requiring a respondent to a complaint to cease and desist from any unlawful discriminatory practice and/or to take any affirmative action, including, but not limited to, hiring, reinstatement, transfer, or upgrading employees, with or without back pay, or dismissal, that may be necessary to secure compliance with any applicable affirmative action plan or with state or federal law.
(e) A final order of the equal employment opportunity office constitutes an order within the meaning of section four, article five, chapter twenty-nine-A of this code, is enforceable as an order and is subject to judicial review of contested cases in section four of said article five and in article six of said chapter twenty-nine-a.
§5A-30-10. Employment policies for state employees.
(a) Each appointing authority shall review the recruitment, appointment, assignment, upgrading, and promotion policies and activities for state employees without regard to race, color, religion, sex, sexual orientation, gender identity or expression, age, national origin, or disability. All appointing authorities shall hire and promote employees without discrimination.
(b) Special attention shall be given to the parity of classes of employees doing similar work and the training of supervisory personnel in equal opportunity/affirmative action principles and procedures.
(c) Annually, each appointing authority shall include in its budget presentation any necessary programs, goals and objectives that shall improve the equal employment Opportunity aspects of their department's employment policies.
(d) Each appointing authority shall make a quarterly report to the state equal employment Opportunity office on persons hired, disciplined, terminated, promoted, transferred, and vacancies occurring within their department.
§5A-30-11. Personnel administration.
(a) The office of personnel administration of the department of administration shall prepare a comprehensive plan indicating the appropriate steps necessary to maintain and secure the equal opportunity responsibility and commitment of that division. The plan shall set forth attainable goals and target dates based upon a utilization study for achievement of the goals, together with operational assignment for each element of the plan to assure measurable progress.
(b) The office of personnel administration shall:
(1) Take positive steps to ensure that the entire examination and testing process, including the development of job specifications and employment qualifications, is free from either conscious or inadvertent bias, and
(2) Review all recruitment procedures for all state agencies covered by this chapter for compliance with federal and state law, and bring to the attention of the equal employment Opportunity director matters of concern to its jurisdiction.