SB497 SUB1/CFB
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 497
(By Senator Grubb)
____________
[Originating in the Committee on Labor;
reported February 22, 1995.]
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"; providing
definitions; application; legislative findings and policy;
hiring of employees; job orders; certificates of
availability; contracts; criminal penalties; and 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:
(a) 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;
(b) The term "employee" includes any person engaged or
permitted to perform hourly work for wages by a person, firm or
corporation in the construction industry. The term "employee"
does not include: (1) Bona fide employees of a public authority
or individuals engaged in making temporary or emergency repairs;
(2) bona fide independent contractors; or (3) salaried
supervisory personnel necessary to assure efficient execution of
the employee's work;
(c) The term "employer" means any person, firm or
corporation employing one or more employees on any public
improvement;
(d) The term "labor market" includes all counties in the
labor area wherein the construction project is situated as
designated by the United States department of labor or in the
metropolitan statistical area, including those from other states, as maintained and revised from time to time by the United States
bureau of census. For counties which do not fall within a
metropolitan statistical area, the term "labor market" includes
all counties within a labor market area, as maintained and
revised from time to time by the West Virginia bureau of
employment programs. For border counties which are not part of
a metropolitan statistical area, the term "labor market" includes
the county in question and any additional counties contiguous
thereto in adjacent states;
(e) The term "public authority" means any officer, board or
commission or other agency of the state of West Virginia, or any
political subdivision 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
(f) 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 (1) any public authority; (2) any private person,
corporation, partnership or any other business entity receiving
the benefit of state tax incentives or credits; or (3) 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. Application of article.
This article applies to:
(a) expenditures by any public authority made, in whole or
in part, from public funds for a construction project;
(b) 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
(c) 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 such
construction project by any private person, corporation or any
other entity.
§21-1C-4. Policy.
The Legislature hereby finds that unemployment is a chronic
and serious problem in this state; that unemployment adversely
impacts the health, and welfare of the populace, and the state's
tax base and tax revenues; and that all necessary and lawful
measures must be employed to guard against the menace to the
state resulting from unemployment; and that from time to time, in
an effort to combat unemployment the state and its political
subdivisions subsidize construction projects through the issuance
of economic development bonds, tax incentives, tax credits and
other taxpayer guaranteed or funded benefits to private persons,
corporations, partnerships and other entities. It hereby is
declared to be the policy of the state of West Virginia that
residents of local labor markets, as defined in section two of
this article, should be employed in the construction of all
public improvements and private construction projects which
depend, in whole or in part, on taxpayer funding, economic
development bonds, or other incentives for which West Virginia
taxpayers are responsible either through taxes or guarantees.
§21-1C-5. Hiring of employees; contracts to contain
certain
provisions.
(a) On all public improvements, a minimum of ninety percent
of every employer's employees shall be individuals who have
resided in the relevant labor market for at least six months preceding their application for employment: Provided, That an
employer may employ nonresidents of the relevant labor market on
public improvements when labor market residents are not available
or are not qualified to perform the work involved.
(b) Any employer not otherwise able to employ a minimum of
ninety percent labor market residents as employees on a public
improvement must inform the nearest office of the West Virginia
division of employment security of his or her 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 less than the number requested, the division will
award a certificate to the contractor indicating the
unavailability of applicants. The certificate shall be made a
part of the contractor's permanent project records. Upon receipt
of the certificate, the contractor may employ nonresidents of the
labor market to fill any positions covered by the certificate.
(c) 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 applied 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 shall also be
liable, as a penalty, for an additional amount equal to the
individual's lost wages and benefits.
§21-1C-7. Existing contracts.
This article applies only to contracts let after the
effective date of this article.