H. B. 2386


(By Delegates Michael, Love, Mezzatesta, Thompson,

Evans, Stalnaker and J. Martin)

[Introduced February 7, 1995; referred to the

Committee on Government Organization then Finance.]




A BILL to amend and reenact sections one-a and one-c, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to conservation officers being excluded from coverage of wage and hour laws; regulation; salary increase based on length of service; rank; salary schedule; base pay; and exceptions.

Be it enacted by the Legislature of West Virginia:
That sections one-a and one-c, article seven, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-1a. Conservation officers excluded from coverage under

wage and hour laws; regulation; salary increase based on length of service.


(a) The Legislature finds and declares that the supreme court of appeals of West Virginia has held that conservation officers are covered by the provisions of the state wage and hour law, article five-c, chapter twenty-one of this code. The Legislature further finds and declares that because of the unique duties of conservation officers, it is not appropriate to apply said wage and hour provisions to them. Accordingly, conservation officers are hereby excluded from the provisions of said wage and hour law and department of civil service guidelines, rules or regulations relating thereto. They shall be subject to duty whenever and wherever required by the functions, services and needs of the department.
The minimum workweek for conservation officers shall be five eight hour days and the maximum number of days and hours per day shall be unrestricted. Conservation officers shall not be entitled to compensatory time for days or hours worked in excess of the minimum in a work day or week except a compensatory day shall be granted for any holiday worked. In lieu of any benefits to which they would have been entitled by the coverage from which they are hereby excluded, conservation officers, except those classified by the West Virginia civil service system as conservation officer IV and natural resources administrator, shall receive in addition to their salaries an annual premium payment of two thousand one hundred dollars which sum shall be prorated and included in the payment of their salary checks. The Legislature finds and declares that the supreme court of appeals, the West Virginia department of labor and subsection (e) of section one, article five-c, chapter twenty-one of this code defines "employer" to include 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 therein defined in any one separate, distinct and permanent location or business establishment: Provided, That the term "employer" does not include any individual, partnership, association, corporation, person or groups of persons or similar unit if eighty percent of the persons employed by him or her are subject to any federal act relating to minimum wage, maximum hours and overtime compensation.
(b) The Legislature further finds and declares that the West Virginia division of natural resources law enforcement section is an employer as defined in subsection (a) of this section and therefore falls under the jurisdiction of the fair labor standards act and its associated rules regarding payment of overtime. Accordingly, the director shall promulgate rules regarding overtime pay for conservation officers in accordance with section one, et seq., article one, chapter twenty-nine-a of this code.
(c) Effective the first day of January, one thousand nine hundred ninety, each conservation officer shall receive and be entitled to an increase in salary based on length of service, including that heretofore and hereafter served as a conservation officer as follows: For five years of service with the department, such a conservation officer shall receive a salary increase of three hundred dollars per year payable during his or her next three years of service and a like increase at three-year intervals thereafter, with such these increases to be cumulative: Provided, That for purposes of calculating such a salary increase, a maximum of twenty-five years of service shall be applicable. Such A salary increase shall be based upon years of service as of the first day of July of each year and shall may not be recalculated until the first day of July of the following year.
Conservation officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid such salaries as the same length of service will entitle them to receive under the provisions hereof.
(c) (d) This section shall does not apply to special or emergency conservation officers appointed under the authority of section one of this article.
§20-7-1c. Conservation officers, ranks, salary schedule, base

pay, exceptions.


(a) Notwithstanding any provision of this code to the contrary, the ranks within the law-enforcement section of the division of natural resources shall be colonel, lieutenant colonel, major, captain, lieutenant, sergeant, conservation officer and conservation officer-in-training. Each such officer while in uniform shall wear the insignia of rank as provided by the chief conservation officer.
(b) Conservation officers shall be paid the minimum annual salaries based on the following schedule:
ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Conservation Officer-In-Training $18,617 23,225
(first year)
Conservation Officer (second year)$20,806 25,414
Conservation Officer (third year)$21,078 25,686
Conservation Officer (fourth year)$21,290 25,898
Conservation Officer (after fifth year)$22,868 27,476
Conservation Officer $24,446 29,054
(after tenth year)
Conservation Officer $25,846 30,454
(after fifteenth year)
Sergeant$29,469 34,077
Lieutenant$32,289 36,897
Captain$36,675 39,183
Major$38,958 41,466
Lieutenant Colonel$41,000 43,508
Colonel
Conservation officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid such salaries as the same length of service will entitle them to receive under the provisions hereof.
(c) This section shall does not apply to special or emergency conservation officers appointed under the authority of section one of this article. seven.
(d) Nothing in this section shall prohibit other pay increases as provided for under section two, article five, chapter five of this code.


NOTE: The purpose of this bill is to amend the section regarding the exclusion of conservation officers from state wage and hour guidelines to comply with the supreme court of appeals decision, January 1994 term number 21866, which held that:

"Through the issuance and adoption of a labor department regulation, the legislature has clarified in 42 W.Va. C.S.R. §8-2.9 that all employers falling within the definition of "employer" in West Virginia Code §21-5C-1(e) are entitled to the exemption from state overtime requirements, provided that eighty percent of their employees are subject to federal wage and hour laws. In cases such as this where legislative guidance is available, we look with great deference to the issued regulations. See, Richardson, 757 F.2d at 1451. Recognizing that the legislative regulation found in 42 W.Va. C.S.R. §8-2.9 removes any ambiguity regarding whether a city, as a political subdivision of the state, is entitled to the exemption permitted certain employers by West Virginia Code §21-5C-1(e) and according appropriate deference to the legislature as the body charged with administrating the state's labor laws, we adopt the regulatory definition of employers exempted from state overtime laws. See, 42 W.Va. C.S.R. §8-2.9. Consequently, all entities qualifying as an employer under West Virginia Code §21-5C-1(e) are entitled to the exemption provided that eighty percent of their employees are subject to federal wage and hour laws. Given that the parties have stipulated that eighty percent of the City's employees are subject to federal wage and hour laws, we conclude that a city, as a political subdivision of the state, is entitled to the statutory exemption for qualifying employers in West Virginia Code §21-5C-1(e) and therefore, is not subject to the overtime pay requirements imposed by West Virginia Code §21-5C-3(a)."

This bill further combines the $2,100 supplemental overtime pay which was paid in accordance with the deleted language in §20-7-1a. The salary also reflects the $1,008 across-the-board pay raise passed during the 1994 session of the Legislature. An additional raise of $1,500 per officer is being requested. Rules will be promulgated establishing a 28-day 171-hour work cycle authorized in section 7(k) of the Fair Labor Standards Act. Under these rules, overtime would be paid after working 171 hours in the 28-day cycle.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.