Senate Bill No. 58
(By Senator Hunter)
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[Introduced January 9, 2008; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §21-5C-1 of the Code of West Virginia,
1931, as amended, relating to removing certain exceptions in
the definitions of "employer" and "employee" covered by the
West Virginia minimum wage law.
Be it enacted by the Legislature of West Virginia:
That §21-5C-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR
EMPLOYEES.
§21-5C-1. Definitions.
As used in this article:
(a) "Commissioner" means the Commissioner of Labor or his
or
her duly authorized representatives.
(b) "Wage and Hour Director" means the Wage and Hour Director
appointed by the Commissioner of Labor as chief of the Wage and Hour Division.
(c) "Wage" means compensation due an employee by reason of his
or her employment.
(d) "Employ" means to hire or permit to work.
(e) "Employer" includes the State of West Virginia, its
agencies, departments and all its political subdivisions, any
individual, partnership, association, public or private
corporation, or any person or group of persons acting directly or
indirectly in the interest of any employer in relation to an
employee; and who employs during any calendar week
six two or more
employees as herein defined in any one separate, distinct and
permanent location or business establishment.
Provided, That the
term "employer" shall not include any individual, partnership,
association, corporation, person or group of persons or similar
unit if eighty percent of the persons employed by him are subject
to any federal act relating to minimum wage, maximum hours and
overtime compensation
(f) "Employee" includes any individual employed by an employer
but
shall does not include: (1) Any individual employed by the
United States; (2) any individual engaged in the activities of an
educational, charitable, religious, fraternal or nonprofit
organization where the employer-employee relationship does not in
fact exist, or where the services rendered to such organizations
are on a voluntary basis; (3) newsboys, shoeshine boys, golf caddies;
pinboys and pin chasers in bowling lanes; (4) traveling
salesmen and outside salesmen; (5) (4) services performed by an
individual in the employ of his
or her parent, son, daughter or
spouse;
(6) (5) any individual employed in a bona fide
professional, executive or administrative capacity;
(7) any person
whose employment is for the purpose of on-the-job training; (6) any
individual receiving a training wage as set forth in subsection
(b), section two of this article; (8) (7) any person having a
physical or mental handicap so severe as to prevent his
or her
employment or employment training in any training or employment
facility other than a nonprofit sheltered workshop;
(9) any
individual employed in a boys or girls summer camp; (10) any person
sixty-two years of age or over who receives old-age or survivors
benefits from the social security administration; (11) (8) any
individual employed in agriculture as the word agriculture is
defined in the Fair Labor Standards Act of 1938, as amended;
(12)
any individual employed as a fire fighter by the state or agency
thereof; (13) ushers in theaters; (14) any individual employed on
a part-time basis who is a student in any recognized school or
college; (15) any individual employed by a local or interurban
motorbus carrier; (16) so far as the maximum hours and overtime
compensation provisions of this article are concerned, any
salesman, parts man or mechanic primarily engaged in selling or
servicing automobiles, trailers, trucks, farm implements, aircraft if employed by a nonmanufacturing establishment primarily engaged
in the business of selling such vehicles to ultimate purchasers;
(17) (9) any employee with respect to whom the United States
Department of Transportation has statutory authority to establish
qualifications and maximum hours of service;
or (18) (10) any
person employed on a per diem basis by the Senate, the House of
Delegates, or the Joint Committee on Government and Finance of the
Legislature of West Virginia, other employees of the Senate or
House of Delegates designated by the presiding officer thereof, and
additional employees of the Joint Committee on Government and
Finance designated by such joint committee.
or (19) any person
employed as a seasonal employee of a commercial whitewater
outfitter where the seasonal employee works less than seven months
in any one calendar year and, in such case, only for the limited
purpose of exempting the seasonal employee from the maximum wage
provisions of section three of this article
(g) "Workweek" means a regularly recurring period of one
hundred sixty-eight hours in the form of seven consecutive
twenty-four hour periods, need not coincide with the calendar week,
and may begin any day of the calendar week and any hour of the day.
(h) "Hours worked", in determining for the purposes of
sections two and three of this article, the hours for which an
employee is employed, there shall be excluded any time spent in
changing clothes or washing at the beginning or end of each workday, time spent in walking, riding or traveling to and from the
actual place of performance of the principal activity or activities
which such employee is employed to perform and activities which are
preliminary to or postliminary to said principal activity or
activities, subject to such exceptions as the commissioner may by
rules
and regulations define.
NOTE: The purpose of this bill is to remove certain exceptions
in the definitions of employer and employee covered by the West
Virginia minimum wage law.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.