H. B. 4132
(By Delegates Burdiss, Webster, Ellem, Hamilton, Mahan
(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
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:
"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
elve or more persons within the state for twenty or more calendar
weeks in the calendar year in which the employer-sponsored meeting
(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.