WEST virginia legislature
2020 regular session
House Bill 4752
By Delegates Graves and Pushkin
[Introduced February 07, 2020; Referred to the Committee on Industry and Labor then Government Organization]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-10P-1, §18-10P-2, and §18-10P-3; and to amend and reenact §21-5C-1 of said code, all relating to initiating a State Employment First Policy to facilitate integrated employment of disabled persons; providing legislative findings; establishing a taskforce to develop a State Employment First Policy; providing for implementation of the State Employment First Policy; and providing definitions for “competitive integrated employment” and “customized employment”.
Be it enacted by the Legislature of West Virginia:
article 10p. employment first policy.
§18-10P-1. Legislative findings.
The Legislature finds that due to West Virginia having: The highest population per capita of people with disabilities and that West Virginia has the highest number of unemployed citizens with disabilities that there is a need to create a state initiative to promote competitive, integrated, and customized employment in the general workforce for disabled citizens using publicly funded services for all working-age individuals regardless of the levels. of disability. This Employment First initiative is intended to promote the expectation that individuals with intellectual, developmental and other disabilities are valued members of the workforce and can often meet the same employment merit standards responsibilities, and expectations as other working-age adults when provided the proper education, reasonable accommodations, and supports.
§18-10P-2. Creation of Employment First Taskforce.
(a) The Director of the Division of Rehabilitation Services who shall serve as chairperson and shall establish a taskforce for the purpose of developing recommendations on implementation of an Employment First Policy. The director shall appoint the membership of the taskforce, which shall include the following members:
(1) The Director of the Division of Rehabilitation Services;
(2) An individual with a developmental disability;
(3) A family member of a person with a disability;
(4) A representative of Workforce West Virginia;
(5) A representative of the Bureau for Behavioral Health;
(6) A representative of the Bureau for Medical Services;
(7) A representative of Disability Rights of West Virginia;
(8) A representative of the West Virginia Statewide Independent Living Council;
(9) A representative of the West Virginia Higher Education Commission; and
(10) A representative of a provider of integrated and competitive employment services who does not also provide sheltered or segregated services for individuals with disabilities.
(b) The Taskforce shall elect from its membership a vice chairperson and such other officers as it considers appropriate. A majority of the members shall constitute a quorum at any meeting held by the taskforce. The chairperson may vote only to break a tie.
(c) The taskforce shall hold meetings at the call of the chairperson, or upon written request of a majority of members. The taskforce shall meet no less than four times each year.
§18-10P-3. State Employment First Policy.
The Division of Rehabilitation Services, the Department of Education, the Higher Education Commission Workforce West Virginia, the State Bureau for Behavioral Health and Health Facilities and the Bureau for Medical Services shall adopt and implement a joint Employment First plan as recommended by the Employment First Taskforce pursuant to §18-10P-2 of this code, which recognizes that earning a living wage through competitive integrated employment in the general workforce is the first and preferred outcome of all publicly funded services provided to working-age individuals with disabilities. The Employment First Taskforce shall develop and implement a plan that:
(1) Describes timeframes and proposals for aligning state policies, including eligibility and funding priorities, allocations for responsibility and authority for ensuring implementation;
(2) Detailed cost projections for additional state funding needed over a five-year period to: (A) Provide rate increases and incentives to providers that implement Employment First services; and (B) train and/or retrain the workforce.
(3) Describes strategies, timelines and plans to reduce sheltered work settings while increasing investment in integrated employment services.
(4) Incorporates Employment First practices and methods in policy improvement plans so that customized, person-centered and individually tailored employment supports are available to people with intellectual, developmental, and other disabilities, including people with complex support needs.
(5) Complies with federal policy and practice mandates regarding employment services design, settings and coordination among stakeholders including:
(A) Centers for Medicare and Medicaid Services Home and Community Based Services setting final rule;
(B) Workforce Innovation and Opportunity Act; and
(C) United States Department of Justice rulings that found that segregated work settings violate the “most integrated setting” rule of the Americans with Disabilities Act relative to the findings of the Supreme Court of the United States in the Olmstead court case.
(6) Describes minimal workforce competency-based training standards applicable for job coaches, case managers, and other relevant personnel.
(7) Establishes interagency agreements, as appropriate, to improve coordination of services, and collect and share data to inform long-term systems planning.
(8) Proposes initiatives to address the culture of low expectations, to which parents of young children with intellectual, developmental, and other disabilities are exposed.
(9) Provides the Governor and Legislature the Employment First Plan within 12 months of the enactment of this statute which shall include:
(A) The number of working age persons with disabilities who received publicly funded services through each department during the most recent period for which data are available and the number of those persons identified who are employed in competitive integrated employment during that period.
(B) The percentage change that the numbers under paragraph A, subdivision nine of this section, represent as compared to the numbers from the previous period,
(C) The data on the average number of hours worked and wages earned by persons with a disability who are employed in competitive integrated employment.
(D) The data on the average number of hours spent in pre-employment services by persons through the Intellectual and Developmental Disabilities Waiver combined with the time previously spent in sheltered workshops,
(E) Information appropriate to each department related to progress in achieving competitive integrated employment;
(F) Identified barriers to achieving goals and objectives established under this section and strategies and policy changes in accordance with this section for each department, acting individually and collectively, to overcome or mitigate those barriers.
(G) A statement or-analysis specifically detailing the impact that the collaboration has had on each department's progress, outcomes, and achievements in increasing: participation in competitive integrated employment;
(H) In addition to reporting data on a statewide basis the departments shall also report the data by region, county, or other geographic subdivision if data are already available on any such basis through the departments data systems; report to the Governor and the Legislature annually on the findings and results of the efforts of the taskforce to accomplish the goals of the plan;
(10) Provides updates to the plan biennially or more often as needed; and
(A) That individuals, particularly secondary and post-secondary students, with disabilities understand the importance of, and are given the opportunity to explore options for further training, as a pathway to integrated employment;
(B) The availability and accessibility of individualized training and support in an individual’s preferred employment options;
(C) The availability and accessibility of resources necessary to enable an individual to understand possible effects of earned income and accumulation of assets on the individual’s eligibility for public benefits and opportunities to properly manage and save income and assets without jeopardizing such benefits;
(D) That competitive integrated employment, while being the first and preferred outcome, is not required of an individual with a disability to secure and maintain necessary public benefits, health care, training and support for individuals with disabilities, and this statute may not be construed to limit or disallow any disability benefits to which a person with a disability who is unable to be employed as contemplated by this statute would otherwise be entitled;
(E) That the staff of public schools, vocational service programs and community providers are trained and supported to assist in achieving the goal of competitive integrated employment for all individuals with disabilities; and
(12) Promotes partnerships with employers to overcome barriers to meet workforce needs including the creative use of technology and innovation.
chapter 21. labor
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR EMPLOYEES.
As used in this article:
(a) “Commissioner” means the Commissioner of Labor or his
or her duly authorized representatives. (b) “Wage
and hour director” means the wage and hour director appointed by the
Commissioner of Labor as Chief of the Wage and Hour Division. (c) “Wage” means compensation due an employee by reason
of his or her employment. (d) “Employ”
means to hire or permit to work.
“Competitive Integrated Employment" means jobs held by people with disabilities in typical workplace settings where the majority of persons are not persons with disabilities, in these jobs, the individuals with disabilities earn wages consistent with wages paid workers without disabilities in the community performing the same or similar work. the individuals earn at least minimum wage, and they are paid directly by the employer.
“Customized Employment” means those employment supports and services for an individual that are designed in a way to personalize the employment relationship between the person with a disability and employer in a way that meets the needs of both.
(e) “Employer” includes the State of West Virginia, its
agencies, departments, and all its political subdivisions, any individual,
partnership, association, public or private corporation, or any person or group
of persons acting directly or indirectly in the interest of any employer in
relation to an employee; and who employs during any calendar week six or more
employees as herein defined in any one separate, distinct, and permanent
location or business establishment: Provided, That prior to January 1,
2015, the term “employer” does not include any individual, partnership,
association, corporation, person or group of persons, or similar unit if 80
percent of the persons employed by him or her are subject to any federal act
relating to minimum wage, maximum hours, and overtime compensation: Provided,
however, That after December 31, 2014, for the purposes of §21-5C-3 of this
code, the term “employer” does not include any individual, partnership,
association, corporation, person or group of persons, or similar unit if 80
percent of the persons employed by him or her are subject to any federal act relating
to maximum hours and overtime compensation. (f) “Employee” includes any individual employed by an
employer but shall may not include: (1) Any individual employed
by the United States; (2) any individual engaged in the activities of an
educational, charitable, religious, fraternal, or nonprofit organization where
the employer-employee relationship does not in fact exist, or where the
services rendered to such organizations are on a voluntary basis; (3) newsboys,
shoeshine boys, golf caddies, pinboys, and pin chasers in bowling lanes; (4)
traveling salesmen and outside salesmen; (5) services performed by an
individual in the employ of his or her parent, son, daughter, or spouse; (6)
any individual employed in a bona fide professional, executive, or administrative
capacity; (7) any person whose employment is for the purpose of on-the-job
training; (8) any person having a physical or mental handicap so severe as to
prevent his or her employment or employment training in any training or
employment facility other than a nonprofit sheltered workshop; (9) any
individual employed in a boys or girls summer camp; (10) any person 62 years of
age or over who receives old-age or survivors benefits from the Social Security
Administration; (11) any individual employed in agriculture as the word
“agriculture” is defined in the Fair Labor Standards Act of 1938, as amended;
(12) any individual employed as a firefighter by the state or agency thereof;
(13) ushers in theaters; (14) any individual employed on a part-time basis who
is a student in any recognized school or college; (15) any individual employed
by a local or interurban motorbus carrier; (16) so far as the maximum hours and
overtime compensation provisions of this article are concerned, any salesman,
parts man, or mechanic primarily engaged in selling or servicing automobiles,
trailers, trucks, farm implements, or aircraft if employed by a
nonmanufacturing establishment primarily engaged in the business of selling
such vehicles to ultimate purchasers; (17) any employee with respect to whom
the United States Department of Transportation has statutory authority to
establish qualifications and maximum hours of service; (18) any person employed
on a per diem basis by the Senate, the House of Delegates, or the Joint Committee
on Government and Finance of the Legislature of West Virginia, other employees
of the Senate or House of Delegates designated by the presiding officer
thereof, and additional employees of the Joint Committee on Government and
Finance designated by such joint committee; (19) any person employed as a
seasonal employee of a commercial whitewater outfitter where the seasonal
employee works less than seven months in any one calendar year and, in such
case, only for the limited purpose of exempting the seasonal employee from the
maximum hours provisions of §21-5C-3 of this code; or (20) any person employed
as a seasonal employee of an amusement park where the seasonal employee works
less than seven months in any one calendar year and, in such case, only for the
limited purpose of exempting the seasonal employee from the maximum hours
provisions of §21-5C-3 of this code. (g) “Work
week” means a regularly recurring period of 168 hours in the form of seven
consecutive 24-hour periods, need not coincide with the calendar week, and may
begin any day of the calendar week and any hour of the day. (h) “Hours worked” means the hours for which an employee
is employed: Provided, That in determining hours worked for the purposes
of §21-5C-2 and §21-5C-3 of this code, there shall be excluded any time spent
in changing clothes or washing at the beginning or end of each workday, time
spent in walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which the employee is
employed to perform and activities which are preliminary to or postliminary to
the principal activity or activities, subject to such exceptions as the
commissioner may by rules define. (i)
“Amusement park” means any person or organization which holds a permit for the
operation of an amusement ride or amusement attraction under §21-10-1 et
seq. of this code.
NOTE: The purpose of this bill is to provide for fair pay and maximized employment of disabled persons; create a state “Employment First” policy that encourages agencies to facilitate employment of disabled persons; establish a task force to initiate these policies; and provide for implementation of the policy. The bill also provides definitions for “competitive integrated employment” and “customized employment”.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.