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WEST virginia legislature
2020 regular session
Introduced
House Bill 4900
By Delegates S. Brown and Pyles
[Introduced February 11, 2020; Referred to the Committee on Industry and Labor then the Judiciary ]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-17-1, §21-17-2, §21-17-3, §21-17-4, §21-17-5, §21-17-6, §21-17-7, §21-17-8, §21-17-9 and §21-17-10, all relating to enacting fair workweek employment standards; requiring certain retail, hospitality, and food services establishments, and property services companies to meet certain employment standards; requiring advance notice of work schedules and compensation for changed work schedules; providing a right to rest between work shifts; requiring offer of work to existing employees; providing protections for the exercise of rights; prohibiting retaliation; and including provisions for rules, certain notice requirements, required employer records, and enforcement, including criminal penalties.
Be it enacted by the Legislature of West Virginia:
Article 17. FAIR WORKWEEK EMPLOYMENT STANDARDS.
§21-17-1. Definitions.
As used in this article:
“Calendar week” means a period of seven consecutive days beginning on any designated day.
“Chain” means a set of establishments that do business under the same trade name or brand or that are characterized by standardized options for decor, marketing, packaging, products and services, regardless of the type of ownership of each individual establishment.
“Commissioner” means the West Virginia Commissioner of Labor.
“Covered employer” is limited to an employer that is: A retail establishment, a hospitality establishment, a food services establishment, or a property services company as defined in this section, that employs 250 or more employees worldwide regardless of where those employees perform work, including, but not limited to, chain establishments or franchises associated with a franchisor or network of franchises that employ more than 250 employees in aggregate. In determining the number of employees for purposes of this subsection, all employees performing work for compensation on a full-time, part-time or temporary basis shall be counted: Provided, That where the number of employees who work for an employer for compensation fluctuates, business size may be determined for the current calendar year based upon the average number of employees who worked for compensation per week during the preceding calendar year, and Provided, however, That in determining the number of employees performing work for an employer that is a chain business, the total number of employees in that group of establishments shall be counted.
“Employee” means any person employed or permitted to work at or for a covered employer within the geographic boundaries of West Virginia who is required under state or federal law to be paid at an overtime rate for hours in excess of a maximum number per workweek or calendar week, including, but not limited to, full-time employees, part-time employees, and seasonal and temporary workers. An alleged employer bears the burden of proof that the individual is an independent contractor rather than an employee.
“Employer” means any individual, partnership, association, corporation or business trust or any person or group of persons, or a successor thereof, that employs another person, and includes any entity or person acting directly or indirectly in the interest of the employer in relation to the employee. More than one entity may be the “employer” if employment by one employer is not completely disassociated from employment by the other employer.
“Food services establishment” means a food services contractor, caterer, mobile food service, drinking place (alcoholic beverages); full service restaurant, limited-service restaurant, cafeteria, grill buffet, or buffet; or snack and nonalcoholic beverage bar. as defined under the 2012 North American Industry Classification System (“NAICS”) 722: Provided, That full-service restaurants must have 30 or more locations worldwide, including, but not limited to, chain establishments or franchises where the franchisor and franchisees own or operate 30 or more such establishments in the aggregate worldwide.
“Hospitality establishment” means a hotel or motel as defined under NAICS 721110.
“On-call shift” or “on-call hours” means any time that an employer requires an employee to be available to work, and to contact the employer or the employer's designee or wait to be contacted by the employer or its designee, to determine whether the employee must report to work at that time.
“Predictability pay” means a payment calculated on an hourly basis at the employee's regular rate of pay and paid to an employee as compensation for changes made by the employer to an employee’s work schedule, in addition to any wages earned for work performed by that employee.
“Posted work schedule” means the written notice of work hours required to be provided no later than 14 days before the first day of any new schedule pursuant to §21-17-2(c) of this code.
“Property services company” means any contractor or subcontractor of an employer that provides janitorial or security services, or both, at a hospitality, retail or food services establishment covered by this article.
“Retail establishment” means a retail business as defined under NAICS 441 through 454.
“Shift” means the consecutive hours an employer requires an employee to work or to be on-call to work: Provided, That breaks totaling two hours or less are not considered an interruption of consecutive hours.
“Successor” means any person to whom an employer quitting, selling out, exchanging, or disposing of a business sells or otherwise conveys in bulk and not in the ordinary course of the employer's business a major part of the property, whether real or personal, tangible or intangible, of the employer's business. For purposes of this definition “person” includes an individual, receiver, administrator, executor, assignee, trustee in bankruptcy, trust, estate, firm, corporation, business trust, partnership, limited liability partnership, company, joint stock company, limited liability company, association, joint venture, or any other legal or commercial entity.
“Work schedule” means all of an employee's regular and on-call shifts, including specific start and end times for each shift, during a calendar week.
§21-17-2. Advance notice of work schedules.
(a) Upon hiring an employee, a covered employer shall provide the employee with a written, good faith estimate of the employee’s work schedule. The employer shall revise the good faith estimate when there is a significant change to the employee’s work schedule due to changes in the employee’s availability, or to the employer’s business needs. The good faith estimate is not a contractual offer binding the employer, but an estimate made without a good faith basis is a violation of this section. The good faith estimate shall contain:
(1) The average number of work hours the employee can expect to work each week:
(2) Whether the employee can expect to work any on-call shifts;
(3) A subset of days and a subset of times or shifts that the employee can expect to work. or days of the week and times or shifts on which the employee will not be scheduled to work.
(b) At the time of hire and during employment the employee has the right to make work schedule requests. The requests protected under this section include, but are not limited to:
(1) Requests not to be scheduled for work shifts during certain days or times or at certain locations;
(2) Requests not to work on-call shifts;
(3) Requests for certain hours, days, or locations of work; and
(4) Requests for more or fewer work hours.
The employer is encouraged to engage in an interactive process to discuss the employee requests but may grant or deny the request for any reason that is not unlawful.
(c) On or before the commencement of employment, a covered employer shall provide the employee with a written work schedule that runs through the last date of the currently posted schedule. Thereafter, an employer shall provide written notice of work hours no later than 14 days before the first day of any new schedule pursuant to §21-17-2(d) of this code. This section does not prohibit an employer from providing greater advance notice of employee’s work schedules and/or changes in schedules than that required by this section. An employer who fails to post a written work schedule at least 14 calendar days before the first day of the work schedule shall compensate each employee in the amount of $75 per day that the schedule is not posted.
(d) Written notice of the work schedule shall be provided by posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees and transmitting the posted work schedule to each employee. The transmission may be done electronically if electronic means are regularly used to communicate scheduling information to employees. The posted work schedule shall include the shifts of all current employees at that worksite, whether or not they are scheduled to work or be on-call that week.
(e) A covered employer shall provide notice of any proposed changes to the employee’s posted work schedule as promptly as possible and prior to the change taking effect. The covered employer must revise the written work schedule to reflect any changes within 24 hours of making the change.
(f) An employee may decline to work any hours not included in the posted work schedule. If the employee voluntarily consents to work the hours, the consent must be recorded in writing. A communication of an employee’s desire to work shifts made available pursuant to §21-17-5 of this code is considered written consent.
§21-17-3. Compensation for changed work schedules.
(a) For each employer-initiated change to the posted work schedule that occurs after the advance notice required in §21-17-2(c) of this code, a covered employer shall pay an employee predictability pay at the following rates:
(1) One hour of predictability pay when the covered employer adds hours of work or changes the date, time, or location of a work shift with no loss of hours.
(2) No less than one-half times the employee’s regular rate of pay per hour for any scheduled hours the employee does not work when the covered employer:
(A) Subtracts hours from a regular or on-call shift; or
(B) Cancels a regular or on-call shift.
(b) A covered employer is not required to pay predictability pay under this section or obtain written consent pursuant to §21-17-2(f) of this code when:
(1) An employee requests a shift change in writing, including, but not limited to, the use of sick leave, vacation leave, or other leave policies offered by the employer;
(2) A schedule change is the result of a mutually agreed upon shift trade or coverage arrangement between employees, subject to any existing employer policy regarding required conditions for employees to exchange shifts;
(3) The covered employer’s operations cannot begin or continue due to:
(A) Threats to the employees or the employer’s property;
(B) The failure of a public utility or the shutdown of public transportation;
(C) A fire, flood or other natural disaster;
(D) A state of emergency declared by the President of the United States, the Governor, or the governing body of the municipality; or
(E) Severe weather conditions that pose a threat to employee safety.
§21-17-4. Right to rest between work shifts.
(a)(1) An employee may decline, without penalty, any work hours that are scheduled or otherwise occur:
(A) Less than 11 hours after the end of the previous day’s shift; or
(B) During the 11 hours following the end of a shift that spanned two days.
(2) An employee may consent to work such shifts: however, consent must be provided in writing, either for each such shift or for multiple shifts, and may be revoked in writing at any time during employment.
(b) The employer shall compensate the employee for each instance that the employee works a shift described in subsection (a) of this section at one and one-half times the employee’s scheduled rate of pay for the hours worked that are less than 11 hours apart.
§21-17-5. Offer of work to existing employees.
(a) Before hiring new employees from an external applicant pool or subcontractors, including hiring through the use of temporary services or staffing agencies, a covered employer shall offer work shifts to existing employees.
(b) The employer shall post written notice of available work shifts for at least 72 hours, unless a shorter posting period is necessary in order for the work to be timely performed.
(1) The notice shall be in English and in the primary language or languages of the employees at the particular workplace, posted in a conspicuous location at the workplace that is readily accessible to all employees. The notice shall also be provided electronically to each employee if the covered employer customarily communicates in that manner with employees.
(2) The notice shall include a description of the position and its required qualifications, the schedule of available shifts, the length of time the employer anticipates requiring coverage of the additional hours, the process by which employees may notify the employer of their desire to work the offered shifts, and an advisement that an employee may accept a subset of the shifts offered.
(3) The employer may post the notice concurrently at the location where the hours described in the notice will be worked, locations other than the location where the work is to be performed, and to external candidates.
(c) A covered employer shall distribute hours, in accordance with the criteria contained in the notice required by subdivision (2) subsection (b) of this section, to one or more employees who have accepted such shifts and who, to a reasonable employer acting in good faith, are qualified to perform the work: Provided, That:
(1) A covered employer shall distribute hours to employees whose regular workplace is the location where the hours described in the notice will be worked; or, if no such employee accepts the hours within the time defined in this section, to employees whose regular workplace is a covered location other than the location where such hours will be worked; or, if no such employee accepts the hours described in the notice within the time defined in this section, to temporary or seasonal workers who have been continuously assigned for at least four weeks to the location where the hours described in the notice will be worked.
(2) The employer’s system for distribution of hours may not discriminate on the basis of race, color, creed, religion, ancestry, national origin, sex, sexual orientation, gender identity, disability, age, citizenship, marital or familial status, nor on the basis of family caregiving responsibilities or status as a student, and the employer may not distribute hours in a manner intended to avoid application of the Patient Protection and Affordable Care Act, 42 U.S.C. §18001, and the employer may not distribute hours in a manner intended to retaliate against an employee for exercising rights under this article.
(d) A covered employer may hire individuals from an external applicant pool or subcontractors to perform the work described in, and in accordance with the criteria set forth in, the notice posted pursuant to subdivision (2), subsection (b) of this section if the employer provides notice of available work shifts to all employees as required herein, and:
(1) No employee responds to the written notice of available work shifts by the end of the 72-hour posting period; or
(2) Within the 72-hour posting period, the employer receives written confirmation from eligible employees that they are not interested in accepting the available work shifts; or
(3) Existing employees have accepted a subset of the offered work hours, in which case the existing employees must be awarded that subset of work hours and external applicants may be offered the remaining shifts.
(e) This section does not require any covered employer to offer employees work hours paid at a premium rate under state or federal law, or prohibit the employer from offering such work hours.
(f) An employer must notify an employee in writing of their policy for offering and distributing work hours under this section, at the time of hire and within 24 hours of any change. and must post the notice in an accessible location in the workplace. The notice shall communicate:
(1) Where employees can access written notices of available work hours;
(2) The process by which employees may notify the employer of their desire to work the available work hours; and
(3) The criteria for distribution of work hours among qualified and interested employees.
(g) An employer who fails to offer hours of work as required by this section must compensate each existing employee $100 for each such occurrence. An employer who fails to award hours to the qualified employee who is eligible to receive the hours under the policy posted pursuant to subdivision (3), subsection (f) of this section must compensate the qualified employee in the amount of $1,000.
§21-17-6. Exercise of rights protected; retaliation prohibited.
(a) It is unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this article.
(b) A person may not take adverse action against an employee that penalizes the employee for, or is reasonably likely to deter such employee from, exercising or attempting to exercise any right protected under this article. Taking an adverse action includes threatening, intimidating, disciplining, discharging, demoting, suspending, or harassing an employee; assigning an employee to a lesser position in terms of job classification, job security, or other condition of employment; reducing the hours or pay of an employee or denying the employee additional hours; informing another employer that an employee has engaged in activities protected by this article, and discriminating against the employee, including actions or threats related to perceived immigration status or work authorization.
(c) Protections of this section apply to any person who mistakenly but in good faith alleges violations of this article.
(d) There is a rebuttable presumption of retaliation if the employer or any other person takes an adverse action against an employee within 90 calendar days of the employee's exercise of rights protected in this article. In the case of seasonal employment that ended before the close of the 90-calendar day period, the presumption also applies if the employer fails to rehire a former employee at the next opportunity for work in the same position.
§21-17-7. Rules.
The commissioner is authorized to coordinate the implementation, administration, and enforcement of this article, and shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code it considers necessary.
§21-17-8. Notice.
Each covered employer shall post and keep posted, in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice, to be prepared or approved by the commissioner, setting forth the rights and privileges provided under this article, stating that retaliation against employees for exercising their rights is prohibited, and providing other information the commissioner may require. If the employer has an employee handbook, the notice shall also be included in the employee handbook.
§21-17-9. Employer records.
(a) Covered employers shall keep records necessary to demonstrate compliance with this article, including, but not limited to, good faith estimates of work schedules, written work schedules and any modifications thereto, written consent for work shifts as required by this article, and offers of work shifts to existing employees and responses to those offers. Employers shall retain those records for a period of two years, and shall allow the commissioner access to the records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this article. When an issue arises as to a covered employer's compliance with this article, if the employer does not maintain or retain adequate records documenting compliance or does not allow the commissioner reasonable access to the records within 30 days of the commissioner’s request, it is presumed that the employer has violated the article, absent clear and convincing evidence otherwise.
(b) Upon request by any employee, and in accordance with the rules of the commissioner, a covered employer shall provide the employee with work schedules in writing for any previous week worked for the past two years, including the originally posted and modified versions of work schedules. The work schedules shall be considered personnel records.
(c) Employers may record employee consent and employee requests using any printed or printable communication in physical or electronic format, including a communication that is transmitted through email, text message, or a computer system, or is otherwise sent and maintained electronically.
§21-17-10. Enforcement and penalties.
(a) An employee or other person may report to the commissioner any suspected violation of this article.
(b) The commissioner is authorized to take steps it considers appropriate to resolve complaints and enforce this article, including, but not limited to, establishing a system to receive complaints regarding noncompliance with this article, investigating alleged violations in a timely manner, and resolving complaints through mediation. The commissioner may also open an investigation on its own initiative.
(c) Any person alleging a violation of this article shall file a complaint with the commissioner within two years of the date the person knew or should have known of the alleged violation. The commissioner shall maintain confidential the identity of any complainant unless disclosure of the complainant's identity is necessary for resolution of any investigation by the commissioner, or otherwise required by law. The commissioner shall, to the extent practicable, notify the complainant that the commissioner will be disclosing his or her identity prior to the disclosure.
(d) Upon receiving a complaint alleging a violation of this article, the commissioner shall investigate the complaint and, if appropriate, attempt to resolve it through mediation. The commissioner may designate representatives, including representatives of unions or nonprofit organizations, to inspect worksites and access records required to be maintained under §21-17-9 of this code. Within 14 days of receipt of a complaint regarding an alleged violation, the commissioner shall send a demand letter to the covered employer notifying the employer that the commissioner is in receipt of a complaint of noncompliance and instructing the covered employer to provide, within 10 days of receipt of the letter, written confirmation of compliance or an admission of noncompliance and plan for corrective action. The letter shall inform the employer that failure to respond to the demand letter is a basis for further enforcement action that may result in an order to pay back wages, civil fines, an award of attorneys' fees, and other remedies. The letter shall also inform the covered employer that retaliation against an employee for claiming rights under the ordinance is prohibited and subject to additional penalties. The commissioner shall keep complainants reasonably notified regarding the status of their complaint and any resulting investigation and shall notify complainants of any final decision of the commissioner, including any mediation result, with respect to the complaint. Whenever the commissioner finds that a violation of this article has occurred, it shall issue to the offending employer a notice of violation.
(e)(1) The commissioner may impose penalties and fines for violation of this article and to provide or obtain appropriate relief. Remedies may include reinstatement and full restitution to the employee for lost wages and benefits, including predictability pay required by this article.
(2) A covered employer who retaliates against an employee for an activity protected under this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined $2,000.
(3) A person who violates any other provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined $1,000.
(f) The commissioner or any person aggrieved by a violation of this article, or any entity a member of which is aggrieved by a violation of this article may bring a civil action in a court of competent jurisdiction against an employer violating this article,
(g) For violations of this article, the civil fines specified in this section may be recovered through a civil action brought on behalf of the commissioner by any employee allegedly harmed by a violation of this article, whether or not that person has received full or partial relief from the harm or by a representative organization designated by said employee, pursuant to the following procedures:
(1) The employee representative organization shall give written notice to the commissioner of the specific provisions of this article alleged to have been violated, including the facts and theories to support the alleged violation;
(2) The commissioner shall notify the employee or representative organization that it does not intend to investigate the alleged violation within 65 calendar days of the postmark date of the employee's notice. Upon receipt of the commissioner's notice, or if no notice is provided within 65 calendar days of the postmark date of the notice, the aggrieved employee or representative organization may commence a civil action under this subsection.
(3) If the commissioner intends to investigate the alleged violation, it shall notify the employee or representative organization of its decision within 65 calendar days of the postmark date of the notice. Within 60 calendar days of that decision, the commissioner may investigate the alleged violation and issue any appropriate citation. If the commissioner. during the course of its investigation, determines that additional time is necessary to complete the investigation, it may extend the time by not more than 60 additional calendar days and shall issue a notice of the extension. If the commissioner determines that no citation will be issued, it shall notify the employee or representative organization of that decision within five business days. Upon receipt of that notice or if no citation is issued by the commissioner within the time limits prescribed by this subsection, or if the commissioner fails to provide timely or any notification, the employee or representative organization may commence a civil action under this subsection.
(4) No action may be brought under this section if the commissioner, on the same facts and theories, cites a person within the time frames set forth in subsection (d) of this section for a violation of the same section or sections of this article under which the employee or representative organization is attempting to recover a civil penalty, or files a proceeding to assess penalties or enforce other remedies.
(5) Any employee or representative organization who prevails in any action under this subsection is entitled to an award of reasonable attorney's fees and costs.
(6) Civil penalties recovered pursuant to this subsection shall be distributed as follows: 70 percent to the commissioner for enforcement of this article and community-based enforcement partnerships; and 30 percent to the employees or representative organization.
(7) The right to bring an action under this section may not be impaired by a private contract.
(8) No employer or his or her agent or any other person may retaliate in any manner, or threaten to retaliate, against an employee because the employee has, or is believed to have, participated in or cooperated with an action under this section. Any person so retaliated against may bring an action for compensatory and punitive damages or equitable relief, including restraint of prohibited acts, restitution wages or benefits, reinstatement, costs, reasonable attorney’s fees and other appropriate relief. There is a rebuttable presumption that any adverse action taken against an employee within 90 days after the employee has filed an action under this article is retaliatory.
(9) No action brought pursuant to this article is required to meet the requirements of Rule 23(a) of the Rules of Civil Procedure.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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