Senate Bill No. 444
(By Senators Hunter, Foster, White, Kessler, Green and McKenzie)
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[Introduced February 2, 2007; referred to the Committee on Labor;
and then to the Committee on Finance.]
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A BILL to amend and reenact §21-5C-1 of the Code of West Virginia,
1931, as amended, relating to removing certain exceptions in
the definitions of "employer" and "employee" covered by the
West Virginia minimum wage law.
Be it enacted by the Legislature of West Virginia:
That §21-5C-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR
EMPLOYEES.
§21-5C-1. Definitions.
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.
(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 two or more
employees as herein defined in any one separate, distinct and
permanent location or business establishment. Provided, That the
term "employer" shall not include any individual, partnership,
association, corporation, person or group of persons or similar
unit if eighty percent of the persons employed by him are subject
to any federal act relating to minimum wage, maximum hours and
overtime compensation.
(f) "Employee" includes any individual employed by an employer
but shall does 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) (3) services performed by an
individual in the employ of his or her parent, son, daughter or
spouse; (6) (4) 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; (5) any
individual receiving a training wage as set forth in subsection
(b), section two of this article; (8) any person having a physical
or mental handicap so severe as to prevent his 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 sixty-two years of age
or over who receives old-age or survivors benefits from the social
security administration; (11) (6) any individual employed in
agriculture as the word agriculture is defined in the Fair Labor
Standards Act of 1938, as amended; or (12) any individual employed
as a fire fighter 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, aircraft if employed by a nonmanufacturing establishment primarily engaged in the business of selling such
vehicles to ultimate purchasers; (17) (7) 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; or (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 wage provisions of section three of this article.
(g) "Workweek" means a regularly recurring period of one
hundred sixty-eight hours in the form of seven consecutive
twenty-four 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", in determining for the purposes of
sections two and three of this article, the hours for which an
employee is employed, 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 such employee is employed to perform and activities which are
preliminary to or postliminary to said principal activity or
activities, subject to such exceptions as the commissioner may by
rules and regulations define.
NOTE: The purpose of this bill is to remove certain
exceptions in the definitions of employer and employee covered by
the West Virginia minimum wage law. This would extend the recent
minimum wage increase to more workers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.