HB2499 H GO AM 2-8

Thompson 3192

    The Committee on Government Organization moves to amend the bill on page one, after the enacting clause, by striking out everything after the enacting clause and inserting in lieu thereof the following:

    “That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4, §5-30-5, §5-30-6 and §5-30-7, all to read as follows:

ARTICLE 30. WEST VIRGINIA EQUAL EMPLOYMENT OPPORTUNITY OFFICE.

§5-30-1. Legislative findings; discrimination prohibited.

    (a) The Legislature finds that:

    (1) It is in the best interest of the State of West Virginia to ensure that historic and emerging patterns of discrimination are eliminated; and

    (2) Each state agency should pursue a course of action in all areas of its operation to ensure that all citizens are provided with fair and equal opportunities for employment and advancement with the State of West Virginia.

    (b) Discrimination on the basis of race, color, religion, national origin, age, sex, marital status, veteran status, physical or mental disability or any other ground prohibited pursuant to the provisions of article eleven, chapter five of this code, as pertaining to state employees, is prohibited.

    (c) The prohibition against discrimination applies to:

    (1) Hiring, placement, upgrading, transfer, or demotion of state employees;

    (2) Recruitment, advertising, or solicitation for employment;

    (3) Treatment during employment;

    (4) Wages, rates of pay or other forms of compensation;

    (5) Selection for training;

    (6) Layoff, termination, or reinstatement; and

    (7) Any other terms or conditions of employment.

§5-30-2. Definitions.

    As used in this article, unless the context otherwise requires:

    (1) “Affirmative action” means a deliberate and sustained effort to identify and eliminate barriers to employment and advancement which may unlawfully discriminate on a ground prohibited pursuant to the provisions of this article and article five, chapter eleven;

    (2) “Agency” means any administrative unit of state government or any political subdivision thereof, including any authority, board, bureau, commission, committee, council, division, section or office;

    (3) “Appointing authority” means a person or group of persons authorized by state law or within an agency to make appointments to positions in the classified or classified-exempt service;

    (4) “Director” means the Director of the Equal Employment Opportunity Office;

    (5) “Discrimination” means any direct or indirect act or practice of exclusion, distinction, restriction, limitation, refusal, denial or any other act or practice of differentiation or preference in the treatment of a person or persons resulting from their being members of a protected class based upon race, color, religion, national origin, age, sex, marital status, veteran status, physical or mental disability, or any other ground prohibited pursuant to the provisions of article eleven, chapter five of this code;

    (6) “Equal employment opportunity” means the right of all persons to work, to be compensated, and to advance on the basis of merit and ability without regard to race, color, religion, national origin, age, sex, gender, marital status, veteran status, physical or mental disability;

    (7) “Office” means the Equal Employment Opportunity Office;

    (8) “Plan” means the affirmative action plan prepared by each state agency; and

    (9) “Program” means the equal employment opportunity program adopted by each state agency;

    (10) “State” means the State of West Virginia or any political subdivision thereof.

§5-30-3. Equal Employment Opportunity Office created; duties; applicability of law.

    (a) The Equal Employment Opportunity Office is created within the Office of the Governor.

    (b) The Equal Employment Opportunity Office shall:

    (1) Assure compliance with the requirements of all state and federal requirements for affirmative action and equal employment opportunity; and

    (2) Provide training, counseling and technical assistance as may be requested by state agencies in order to comply with the intent of this article.

    (c) The Equal Employment Opportunity Office may:

    (1) Issue guidelines, directives or instructions that are necessary to effectuate the provisions of this article; and

    (2) In its own discretion or upon receipt of a complaint, investigate allegations of prohibited discrimination, harassment or retaliation and direct corrective action to any such substantiated action.

    (d) Nothing in this article affects the jurisdiction or authority of the West Virginia Human Rights Commission.

§5-30-4. Equal Employment Opportunity Office Director; selection; duties; rulemaking authority; salary.

    (a) The Governor shall appoint a Director of the Equal Employment Opportunity Office, with advice and consent of the Senate, who shall serve at the will and pleasure of the Governor.

    (b) The director shall be a qualified administrator as reasonably determined by the Governor, and shall be a member in good standing of the West Virginia State Bar.

    (c) All agencies shall cooperate with the director to ensure that state agency equal employment opportunity programs comply with the provisions of this article and any rules promulgated pursuant to this article.

    (d) The director shall:

    (1) Coordinate, direct, and implement the agencies’ equal employment opportunity programs;

    (2) Provide training, counseling and technical assistance to the agencies on equal employment opportunity matters and in the development of their affirmative action plans;

    (3) Review agency programs and plans and direct modifications necessary to ensure the effectiveness of the programs and the plans;

    (4) Establish reporting forms to facilitate the monitoring of agency programs and plans;

    (5) Establish and review the annual affirmative action reports of the agencies;

    (6) Monitor the progress of the agency programs and include such progress in an annual report to the Governor;

    (7) Serve as liaison between the state and federal compliance agencies;

    (8) Plan, coordinate, and conduct training in equal employment opportunity topics, including, but not limited to, workplace discrimination, harassment and retaliation for all segments of the state government workforce;

    (9) Coordinate the activities of the designated affirmative action and equal employment opportunity representative or representatives in each agency;

    (10) In his or her discretion, or when requested by an employee or an agency, investigate any complaints involving unfair treatment, terms and conditions of employment, or perceived acts or policies involving discrimination, harassment or retaliation;

    (11) Conduct contract compliance reviews on all vendors, grantees, and contractors doing business with the state who have programs or projects which are funded ,in whole or in part, by state or federal funds;

    (12) Coordinate duties and responsibilities with the State Americans with Disabilities Coordinator, the Women's Commission and the Equal Pay Commission;

    (13) Act as a repository for all agency equal employment opportunity discrimination, harassment or retaliation claims, investigations and reports;

    (14) Ensure agency compliance with the provisions of article five-e, chapter twenty-one of this code regarding equal pay and prohibited sex discrimination;

    (15) Recommend legislation, when necessary, in order to make changes in the program;

    (16) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to effectuate the provisions of this article;

    (17) Perform any other statutory duties expressly set forth by the Legislature;

    (18) Submit an annual report to the Governor, the Joint Committee on Government and Finance and the Equal Pay Commission; and

    (19) Have such other authority and perform such duties as may be required or necessary to effectuate this article.

    (e) The director shall receive an annual salary, as provided by the Governor, and shall be provided with resources commensurate with the duties of the office.

§5-30-5. Agency duties; submission and updating of affirmative     action plans.

    Each agency with more than ten employees shall:

    (a) Designate a representative to direct and coordinate equal employment opportunity and affirmative action plans;

    (b) Submit an affirmative action plan to the office for review;

    (c) Work with the director to ensure the effectiveness of the plan; and

    (d) Update its plan annually based on guidelines developed by the director.

§5-30-6. Authorization by director to initiate investigations against noncompliant agencies; report of such action to the Governor; establishment of timelines for compliance; notice of employee rights.

    (a) The director may initiate investigations against any agencies, directors, or employees of any department or division within state government, excluding the legislative branch, who or which fail to comply with the requirements of this article or who or which fail to meet the standards of good faith effort, reasonable basis, or reasonable action, as defined in guidelines promulgated by the Equal Employment Opportunity Commission as set forth in 29 C.F.R. §1607.

    (b) Whenever the director initiates an investigation, he or she shall cause to be issued and served in the name of the Equal Employment Opportunity Office, a written notice, together with a copy of the alleged noncompliance, requiring that the agency, director, agent, or employee respond to the director and to the Governor, and setting forth the time frames for correction of the failure to comply.

    (c) The director must give notice to all state employees of their rights pursuant to applicable sections of this code.

§5-30-7. Employment policies for state employees.

    (a) Each appointing authority shall review the recruitment, appointment, assignment, upgrading, and promotion policies and activities for state employees without regard to race, color, religion, sex, age, national origin, marital status, veteran status, physical or mental disability, or any other ground prohibited pursuant to the provisions of article eleven, chapter five of this code.

    (b) Each appointing authority shall give special attention to the parity of classes of employees doing similar work and the training of supervisory personnel with regard to equal employment opportunity and affirmative action principles and procedures.

    (c) Annually, each appointing authority shall include in its expenditure schedules any necessary programs, goals and objectives to improve the equal employment opportunity and affirmative action aspects of the agency’s employment policies.

    (d) Each appointing authority shall make an annual report to the Equal Employment Opportunity Office on persons in the protected classes enumerated herein hired, disciplined, terminated, promoted, transferred, and vacancies occurring within the agency.”