Introduced Version House Bill 4366 History

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H. B. 4366


         (By Delegates Morgan, Stephens, D. Poling,

                   Hatfield and Butcher)

         [Introduced February 1, 2012; referred to the

         Committee on Government Organization then the Judiciary.]




A BILL to repeal §21-3-2, §21-3-3, §21-3-3a, §21-3-4, §21-3-5, §21-3-6, §21-3-8, §21-3-9, §21-3-10, §21-3-11, §21-3-12, §21-3-13, §21-3-16 and §21-3-18 of the Code of West Virginia, 1931, as amended; and to amend, reenact and redesignate §21-3-7, §21-3-10a, §21-3-14, §21-3-15, §21-3-17, §21-3-19, §21-3-20 and §21-3-21, all relating to safety and welfare of employees; relating to the regulation of steam boilers by the Division of Labor; relating to meal breaks; relating to the power of the Commissioner of Labor as to witnesses; relating to the records and reports of the Commissioner of Labor; relating to employers not to require payment of fees for medical examination as condition of employment; providing that discrimination for use of tobacco products is prohibited; prohibiting the use of video and other electronic surveillance devices by employers; and continuing a special revenue fund for the Division of Labor.

Be it enacted by the Legislature of West Virginia:

    That §21-3-2, §21-3-3, §21-3-3a, §21-3-4, §21-3-5, §21-3-6, §21-3-8, §21-3-9, §21-3-10, §21-3-11, §21-3-12, §21-3-13, §21-3-16 and §21-3-18 of the Code of West Virginia, 1931, as amended, be repealed; and that §21-3-7, §21-3-10a, §21-3-14, §21-3-15, §21-3-17, §21-3-19, §21-3-20 and §21-3-21 be amended, reenacted and redesignated, all to read as follows:


§21-3-2. Regulation of operation of steam boilers.

    Any person owning or operating a steam boiler carrying more than fifteen pounds pressure per square inch (except boilers on railroad locomotives subject to inspection under federal laws, portable boilers used for agricultural purposes, boilers on automobiles, boilers of steam fire engines brought into the state for temporary use in times of emergency for the purpose of checking conflagrations, boilers used in private residences which are used solely for residential purposes, any sectional boilers, small portable boilers commonly used in the oil and gas industry about their wells and tool houses, and boilers under the jurisdiction of the United States) in this state shall first obtain a permit to operate a steam boiler from the commissioner of labor, or from an inspector working under his or her jurisdiction.

    Applications for permits to operate a steam boiler must be accompanied by a sworn statement made by the owner or operator of such the boiler, setting forth the condition of the boiler and its appurtenances at which time, if the facts disclosed by such the statement meet the safety requirements established under this article, the commissioner of labor shall issue a temporary permit, which shall be valid until such the boiler has been inspected by a boiler inspector authorized by the State Commissioner of Labor; thereupon, if the boiler meets the safety requirements established under this article, the commissioner of labor shall issue an annual permit to operate such the steam boiler: Provided, That boilers which are insured by an insurance company operating in this state and which are inspected by such the insurance company's boiler inspector shall not be subject to inspection by the state department of labor Division of Labor, during any twelve months' period during which an inspection is made by the insurance company's boiler inspector.

    The commissioner of labor or state boiler inspector shall have the authority to inspect steam boilers in this state. To carry out the provisions of this section, the commissioner of labor shall prescribe rules and regulations under which boilers may be constructed and operated, according to their class. The commissioner of labor shall be authorized to revoke any permit to operate a steam boiler if the rules prescribed by the commissioner of labor, or his or her authorized representative, are violated or if a condition shall prevail which is hazardous to the life and health of persons operating or employed at or around the boiler. Any person or corporation who shall operate a steam boiler for which a permit is necessary under the provisions of this section, without first obtaining such a permit to operate a steam boiler, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500. Every day a steam boiler requiring a permit to operate is operated without such a permit shall be considered a separate offense.

    The commissioner may charge such a fee as he or she determines reasonable for the inspection of boilers by the department of labor Division of Labor boiler inspector, of the commissioner's authorized boiler inspection agency, for the processing of inspection reports from insurance companies, for issuing annual permits to operate boilers and for commissioning insurance company boiler inspectors. Such fees shall be established by a rule promulgated in accordance with the provisions of chapter twenty-nine-a of this code. No fee shall be charged for the inspection of boilers used on mobile equipment or vehicles used for occasional entertainment or display purposes.

§21-3-3. Meal breaks.

    During the course of a workday of six or more hours, all employers shall make available for each of their employees, at least twenty minutes for meal breaks, at times reasonably designated by the employer. This provision shall be is required in all situations where employees are not afforded necessary breaks and/or permitted to eat lunch while working.

§21-3-4. Power of commissioner as to witnesses; prosecution of offenses; penalties; jurisdiction; exemption of coal mining operations; recovery of civil penalties.

    The commissioner of labor or any authorized representative of the department Division of Labor in the performance of any duty or the execution of any power prescribed by law shall have the power to administer oaths, certify to official acts, take and cause to be taken depositions of witnesses.

    It shall be is the duty of the Attorney General and the several prosecuting attorneys, upon request of the commissioner of labor or any of his or her authorized representatives, to prosecute any violation of the law which it is made the duty of the said commissioner of labor to enforce.

    If any employer, employee, owner or other person shall violate any provision of this chapter or shall fail or refuse to perform any duty lawfully required within the time prescribed by the commissioner of labor or his or her authorized representatives, for which no penalty has been specifically provided, or shall fail, neglect, or refuse to obey any lawful order given, made or promulgated by the commissioner of labor or his or her authorized representatives, or shall interfere with, impede, or obstruct in any manner the commissioner of labor or his or her authorized representatives in the performance of his or her or their official duties, he or she shall be guilty of a misdemeanor and, upon conviction thereof shall be fined not less than $10 nor more than $50, or shall be imprisoned for not exceeding six months, or both so fined and imprisoned, for each such offense; and each day such violation, omission, failure, or refusal continues shall be deemed a separate offense.

    A justice of the peace magistrate shall have concurrent jurisdiction with the circuit court and other courts having criminal jurisdiction in his or her county for the trial of offenses under this article. Those portions of all coal mining properties and operations which are under the supervision of the Department of Mines Office of Miners’ Health, Safety and Training are excepted from the operation of provisions of this article.

    In lieu of the penalties heretofore provided in this section, any such penalty may be recovered in a civil action in the name of the State of West Virginia.

§21-3-5. Records and reports of commissioner. inspectors and chief clerk.

    The Commissioner of Labor inspectors and chief clerk and his or her authorized representatives shall make and keep full and proper record of all their expenses, and of inspections and statistics as to conditions, changes and improvements made for the safety and welfare of employees affected by this article and the Commissioner of Labor shall submit a proper report thereof to the Governor, as provided in section four, article one of this chapter.

§21-3-6. Employers not to require payment of fees for medical examination as condition of employment; enforcement.

    (a) The term "employer," as used in this section, shall mean means and includes an individual, a partnership, an association, a corporation, a legal representative, a trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.

    (b) The term "employee" shall mean means and includes every person who may be permitted, required or directed by any employer, as defined in subsection (a), in consideration of direct or indirect gain or profit, to engage in any employment.

    © It shall be unlawful for any employer, as defined in subsection (a) to require any employee or applicant for employment to pay the cost of a medical examination as a condition of employment.

    (d) Any employer who violates the provisions of this section shall be liable to a penalty of not more than $100 for each and every violation. It shall be the duty of the commissioner of labor to enforce this section.

§21-3-7. Discrimination for use of tobacco products prohibited.

    (a) It shall be is unlawful for any employer, whether public or private, or the agent of such employer to refuse to hire any individual or to discharge any employee or otherwise to disadvantage or penalize any employee with respect to compensation, terms, conditions or privileges of employment solely because such the individual uses tobacco products off the premises of the employer during nonworking hours.

    (b) This section shall not apply with respect to an employer which is a nonprofit organization which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public.

    © This section shall not prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy which makes distinctions between employees for type of coverage or price of coverage based upon the employee's use of tobacco products: Provided, That any differential premium rates charged to employees must reflect differential costs to the employer: Provided, however, That the employer must provide employees with a statement delineating the differential rates used by its insurance carriers.

    (d) Nothing in this section shall be construed to prohibit an employer from making available to smokers and other users of tobacco products, programs, free of charge or at reduced rates, which encourage the reduction or cessation of smoking or tobacco use.

§21-3-8. Use of video and other electronic surveillance devices              by employers prohibited.

    (a) It is unlawful for any employer or the agent or representative of an employer, whether public or private, to operate any electronic surveillance device or system, including, but not limited to, the use of a closed circuit television system, a video-recording device, or any combination of those or other electronic devices for the purpose of recording or monitoring the activities of the employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as including, but not limited to rest rooms, shower rooms, locker rooms, dressing rooms and employee lounges.

    (b) Any employer or agent thereof who violates any provision of this section is guilty of a misdemeanor and, if convicted, shall be fined $500 for the first offense. An employer or agent thereof convicted a second time under this provision shall be fined $1,000. For the third and any subsequent offense, the penalty shall be $2,000.

§21-3-9. Special Revenue Fund for the Division of Labor; authorized deposits; disbursements; purpose.

    There is hereby created continued in the State Treasury a special revenue fund to be known as the “Occupational Safety and Health Fund” which shall consist of all gifts, grants, bequests, transfers, appropriations or other donations or payments which may be received by the Division of Labor from any governmental entity or unit or any person, firm, foundation, or corporation for the purposes of this section, and all interest or other return earned from investment of the fund. Expenditures from the fund shall be made by the Commissioner of the Division of Labor to provide matching funds, or to reimburse the Division of Labor for providing matching funds, to obtain federal funds for the administration of an occupational safety and health consultation program under contract with the federal Division of Labor.

    NOTE: The purpose of this bill is to delete code provisions which are either obsolete or related to functions now administered by the U. S. Office of Safety and Health Administration (OSHA). The bill further provides for the redesignation of the remaining sections of the article as follows:

New Code Section

Former Code Section

















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

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