Senate Bill No. 396

(By Senators Grubb, Bailey, Bowman, Macnaughtan,

Schoonover, Sharpe, White, Wooton, Manchin, Chafin, Anderson and Blatnik)

[Introduced February 14, 1996; referred to

the Committee on Labor; and then to the Committe on the Judiciary.]

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:
§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 West Virginia and 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 border counties, the term "labor market" also 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 the average income of residents of the State of West Virginia is significantly below the national average income of residents of the United States of America; and that the rate of unemployment in this state is significantly higher than the rate of unemployment in other states in the United States of America.
The Legislature further 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 contract for public improvement projects as defined above and subsidize public improvement 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. The Legislature further finds that the employment of persons from outside the local labor market on public improvement construction projects contracted for and subsidized by the taxpayers of the State of West Virginia contributes significantly to the rate of unemployment and the low per capita income among qualified persons in West Virginia. 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 improvement 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 employee; contracts to contain certain
(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.

NOTE: The purpose of this bill is to encourage the hiring of workers from the local labor market in public improvement projects in West Virginia.

The entire article is new, therefore strike-throughs and underscoring have been omitted.