H. B. 2769
(By Delegates Marshall, Fleischauer,
Caputo, Boggs, Williams,
Martin and Leach)
[Introduced March 6, 2001; referred to the
Committee on Industry and Labor, Economic Development and
Small Business then Finance.]
A BILL to amend chapter twenty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article one-c, relating to
creating the "West Virginia Jobs Act"; defining terms; setting
forth legislative findings and policy; setting forth the
applicability of the act; requiring employment of West
Virginia residents for certain jobs under certain conditions;
allowing waiver certificates to employers under certain
conditions; providing criminal penalties; and establishing an
effective date for the employment requirements by
grandfathering in certain existing contracts.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article one-c, to read as
follows:
ARTICLE 1C. EMPLOYMENT OF RESIDENTS OF LABOR MARKET.
§21-1C-1. Short title.
This article may be cited as the "West Virginia Jobs Act."
§21-1C-2. Definitions.
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 twenty-five thousand 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;
(4) The term "labor market" means that labor market area
designated by the West Virginia division of highways for Appalachian regional commission projects and includes every county
in West Virginia;
(5) The term "public authority" means any officer, board or
commission or other agency of the state of West Virginia, or any
political subdivision of the state, 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, or any
economic development authority of the state or any of its political
subdivisions authorized to issue economic development bonds as a
means of financing private construction projects; and
(6) The term "public improvement" includes all buildings,
roads, highways, bridges, streets, alleys, sewers, ditches, sewage
disposal plants, waterworks, airports and all other structures or
works on which a construction project may be let to contract by:
(A) Any public authority;
(B) Any private person, corporation, partnership, or any other
business entity receiving the benefit of state tax incentives or
credits; or
(C) Any private person, corporation, partnership or any other
business entity receiving the benefit of economic development bonds
authorized or issued by any public economic development authority
or economic development board in connection with construction
projects in this state whether the construction project is public or private.
§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 economic development bonds, tax
incentives, tax credits and other taxpayer-guaranteed or funded
benefits are issued periodically to private persons, corporations,
partnerships and other entities to subsidize public improvement
construction projects, and that these incentives and benefits are
made by the state in an effort to combat unemployment in the state
and its political subdivisions.
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, as a policy,
residents of local labor markets, as defined in section two of this
article, should be employed and be given preference in hiring for
the construction of all public improvement and private construction
projects which depend, in whole or in part, on taxpayer funding, economic development bonds or other incentives for which state
taxpayers are responsible, either through taxes or guarantees.
§21-1C-4. Local employee quota on certain construction projects;
exceptions; waiver certificate issued in certain
instances.
(a) In hiring employees for any and all construction projects
as defined in section two of this article, at least ninety percent
of each employer's employees shall be individuals who are West
Virginia residents and who have resided in the relevant labor
market for at least six months preceding their application for
employment.
(b) Any employer not able to employ the minimum quota of West
Virginia residents shall inform the nearest office of the bureau of
employment programs' division of employment services of the
employer's employment needs. If within one week 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, the division shall grant
a waiver certificate to the contractor indicating the
unavailability of applicants and setting a new quota for the
project. The waiver certificate shall be made a part of the
contractor's permanent project records. Upon receipt of the waiver
certificate, the contractor may employ non-West Virginia residents
to fill any positions covered by the waiver certificate.
§21-1C-5. Applicability of article; mandatory requirements to be
set forth in contracts.
(a) This article applies to expenditures by any public
authority made, in whole or in part, from public funds for a
construction project, including, but not limited to:
(1) Any construction project, whether public or private
funded, in whole or in part, by any bonds issued by any economic
development board or agency authorized to issue economic
development bonds for public or private construction projects; and
(2) Any private construction project resulting, in whole or in
part, from the issuance of tax incentives, tax credits or other
benefits granted by the state or any of its political subdivisions
to induce or encourage the undertaking of any construction project
by any private person, corporation or any other entity.
(b) Every public improvement contract let shall contain a
provision conforming to the requirements of this article. Every
subcontract for a public improvement which is, or reasonably may
be, done as on-site work shall contain a provision conforming to
the requirements of this article.
§21-1C-6. Penalties for violation of article.
(a) Any employer who violates any provision of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than two hundred fifty nor more than one thousand
dollars.
(b) Any potential employee who applies for work and, but for
a violation of this article, would have been employed on a public
improvement, may recover from the employer those wages and benefits
which he or she would have received had he or she been hired in
accordance with this article, as well as reasonable attorney's fees
and expenses. Any employer who engages in a knowing and willful
violation of this article is also liable, as a penalty, for an
additional amount equal to the individual's lost wages and
benefits.
§21-1C-7. Existing contracts not subject to the requirements of
this article.
This article applies only to contracts let after the effective
date of this article.
NOTE: The purpose of this bill is to mandate the hiring of
workers from the local labor market in public improvement projects
in West Virginia before out-of-state labor is hired.
This article is new; therefore, strike-throughs and
underscoring have been omitted.