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Introduced Version Senate Bill 511 History

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Key: Green = existing Code. Red = new code to be enacted

Senate Bill No. 511

(By Senators Boso and Stollings)

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[Introduced February 18, 2015; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §21-5A-1, §21-5A-7, §21-5A-8 and §21-5A-9 of the Code of West Virginia, 1931, as amended, all relating to obligations of a contractor or subcontractor with regard to minimum prevailing wage rates for work performed on a public improvement project under a contract awarded by a state agency; clarifying the scope of a worker’s right of action for recovery from a contractor or subcontractor for nonpayment of minimum prevailing wage rates; defining terms; and providing retroactive application.

Be it enacted by the Legislature of West Virginia:

            That §21-5A-1, §21-5A-7, §21-5A-8 and §21-5A-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 5A. WAGES FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS.

§21-5A-1. Definitions.

            (1) The term "public authority," as used in this article, shall mean means any officer, board or commission or other agency of the State of West Virginia, or any political subdivision thereof, 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, and this article shall apply applies to expenditures of such those institutions made, in whole or in part, from such those public funds.

            (2) The term "construction," as used in this article, shall mean means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract. The term "construction" shall not be construed to does not include temporary or emergency repairs.

            (3) The term "locality" means the county where the construction is to be performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workmen and mechanics to perform such the construction efficiently and properly, and may include one or more counties in this state adjacent to the one in which the construction is to be performed and from which such skilled laborers, workmen and mechanics may be obtained in sufficient numbers to perform the construction. With respect to construction of public improvements with the state road commission Division of Highways, "locality" may be construed to include one or more counties in this state adjacent to the one in which the construction or public improvement is to be performed and from which skilled laborers, workmen and mechanics may be accessible for work on such the construction on or public improvements.

            (4) The term "public improvement," as used in this article, shall include includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures upon which construction may be let to contract by the State of West Virginia or any political subdivision thereof.

            (5) The term "construction industry," as used in this article, shall mean means that industry which is composed of employees and employers engaged in construction of buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports, and all other structures or works whether private or public on which construction work as defined in subsection (2) of this section is performed.

            (6) The term "board" shall mean the Minimum Wage Board as constituted in this article.

            (7) (6) The term "employee," for the purposes of this article, shall not be construed to include such persons as are employed or hired by the public authority on a regular or temporary basis or engaged in making temporary or emergency repairs.

            (7) The term "covered contract," as used in this article, means a contract let by a public authority engaged in the construction of public improvements that contains an express provision requiring a fair minimum rate of wages to be paid pursuant to this article.

§21-5A-7. Wage rates to be kept posted.

            A clearly legible statement of all fair minimum wage rates to be paid the several classes of skilled laborers, workmen and mechanics employed on the construction on the public improvement shall be kept posted in a prominent and easily accessible place at the site thereof by each contractor and subcontractor subject to the provisions of this article a covered contract.

§21-5A-8. Wage records to be kept by contractor, subcontractor, etc.; contents; open to inspection.

            The contractor and each subcontractor subject to the provisions of a covered contract, or the officer of the public authority in charge of the construction of a public improvement, as applicable shall keep an accurate record showing the names and occupation of all such the skilled laborers, workmen and mechanics employed by them, in connection with the construction on the public improvement and showing also the actual wages paid to each of the skilled laborers, workmen and mechanics, which record shall be open at all reasonable hours to the inspection of the department Division of Labor and the public authority which let the contract, its officers and agents. It shall is not be necessary to preserve such the record for a period longer than three years after the termination of the contract.

§21-5A-9. Penalties for violation of article.

            (a) Any contractor or subcontractor who wilfully willfully and knowingly violates any provision of this article shall be fined not less than $50 nor more than $250.

            (b) Any skilled laborer, workman or mechanic who is engaged in construction on of a public improvement let to contract, who is paid less than the posted fair minimum rate of wages applicable thereto required by a covered contract, may recover from such the contractor or subcontractor the difference between the same and the posted fair minimum rate of wages required by the covered contract, and in addition thereto, a penalty equal in amount to such the difference, and reasonable attorney fees. The venue of said the action shall be in is the county where the work is performed: Provided, however, That an honest mistake or error shall not be construed as is not a basis for recovery under this subsection. This article does not permit a right of action for recovery by a skilled laborer, workman or mechanic against a contractor or subcontractor for work that is not subject to the provisions of a covered contract.

            (c) Where skilled laborers, workmen and mechanics are employed in construction on a public improvement and their posted rate of wages has been determined as provided by this article, it shall be is unlawful for any person, for himself or herself or another, to request, demand or receive, either before or after such the skilled laborers, workmen and mechanics are employed in construction on a public improvement, that they or any one of them pay over money or other thing of value or pay back, return, donate, contribute or give any part or all of their said wages, or thing of value, to any person, upon the statement, representation or understanding that failure to comply with such the request or demand will prevent them or any one of them from procuring or retaining employment; and any person who directly or indirectly aids, requests or authorizes any other person to violate any of the provisions of this section shall be is guilty of a misdemeanor and, fined not less than $50 and not more than $250.

            (d) It is the intent of the Legislature that the amendments to this article enacted during the regular session of 2015:

            (1) Constitute a clarification that this article, as previously enacted by the Legislature, does not create a right of action against a contractor or subcontractor for failure to pay the fair minimum rate of wages for work on construction of a public improvement where the contract let by the public authority does not contain a provision requiring payment of such wage rates;

            ( 2) Correct a misinterpretation and misapplication of the law that was expressed by the West Virginia Supreme Court of Appeals in the case of Grim v. Eastern Electric, LLC, No. 13-1133 (November 3, 2014); and

            (3) Be given retroactive force and effect.

 


            NOTE: The purpose of this bill is to clarify the obligations of a contractor or subcontractor with regard to minimum prevailing wage rates for work performed on a public improvement project under a contract awarded by a state agency, and to clarify that a worker’s right of action for recovery from a contractor or subcontractor for nonpayment of minimum prevailing wage rates applies only when the contract awarded by a state agency expressly requires payment of minimum prevailing wage rates. The changes are intended to have retroactive application.


            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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