Senate Bill No. 27

(By Senators Hunter, Kessler and Love)


[Introduced January 14, 1998;

referred to the Committee on Small Business; and then to the Committee on Finance.]


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"; defining terms; setting forth legislative findings and policy; setting forth the applicability of the act; requiring employment of West Virginia residents for certain jobs under certain conditions; allowing waiver certificates to employers under certain conditions; setting forth criminal penalties; and establishing an effective date for the employment requirements by grandfathering in certain 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" means any person hired 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" means that labor market area designated by the West Virginia division of highways for Appalachian regional commission projects and includes every county in West Virginia.
(e) The term "public authority" means any officer, board or commission or other agency of the state of West Virginia, or any political subdivision of 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. Legislative findings; statement of policy.
The Legislature finds that the rate of unemployment in this state is significantly higher than that of most other states, and that a majority of West Virginia counties are designated as labor surplus areas by the United States department of labor.
The Legislature further finds that economic development bonds, tax incentives, tax credits and other taxpayer-guaranteed or funded benefits are issued periodically to private persons, corporations, partnerships and other entities to subsidize public improvement construction projects, and that these incentives and benefits are made by the state in an effort to combat unemployment the state and its political subdivisions.
Finally, the Legislature 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 contributes significantly to the rate of unemployment and the low per capita income among qualified state residents who would otherwise be hired for these jobs.
Therefore, the Legislature declares that, as a policy, residents of local labor markets, as defined in section two of this article, should be employed and will be given preference in hiring for 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 state taxpayers are responsible either through taxes or guarantees.
§21-1C-4. Local employee quota on certain construction projects; exceptions; waiver certificate issued in certain instances.
(a) In hiring employees for any and all construction projects as defined in section two of this article, at least ninety percent of each employer's employees shall be individuals who are West Virginia residents and who have resided in the relevant labor market for at least six months preceding their application for employment.
(b) Any employer not able to employ the minimum quota of West Virginia residents 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 refers less qualified job applicants than the number requested, the division shall grant a waiver certificate to the contractor indicating the unavailability of applicants and setting a new quota for the project. The waiver certificate shall be made a part of the contractor's permanent project records. Upon receipt of the waiver certificate, the contractor may employ non-West Virginia residents to fill any positions covered by the waiver certificate.
§21-1C-5. Applicability of article; mandatory requirements to be set forth in contracts.
(a) This article applies to expenditures by any public authority made, in whole or in part, from public funds for a construction project, including, but not limited to:
(1) 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
(2) 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 construction project by any private person, corporation or any other entity.
(b) 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 not subject to the requirements of this article.
This article applies only to contracts let after the effective date of this article.

NOTE: The purpose of this bill is to mandate the hiring of workers from the local labor market in public improvement projects in West Virginia before out-of-state labor is hired.

This article is new; therefore, strike-throughs and underscoring have been omitted.