HB2546 S JUD AM #1

Kleeh 7824


The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting section and inserting in lieu thereof the following:


§21-5-1. Definitions.

As used in this article:

(a) The term "firm" includes any partnership, association, joint-stock company, trust, division of a corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee or successor of any of the same, or officer thereof, employing any person.

(b) The term "employee" or "employees" includes any person suffered or permitted to work by a person, firm or corporation.

(c) The term "wages" means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation. As used in sections four, five, eight-a, ten and twelve of this article, the term "wages" shall also include then accrued fringe benefits capable of calculation and payable directly to an employee: Provided, That nothing herein contained shall require fringe benefits to be calculated contrary to any agreement between an employer and his or her employees which does not contradict the provisions of this article.

(d) The term "commissioner" means Commissioner of Labor or his or her designated representative.

(e) The term "railroad company" includes any firm or corporation engaged primarily in the business of transportation by rail.

(f) The term "special agreement" means an arrangement filed with and approved by the commissioner whereby a person, firm or corporation is permitted upon a compelling showing of good cause to establish regular paydays less frequently than once in every two weeks: Provided, That in no event shall the employee be paid in full less frequently than once each calendar month on a regularly established schedule.

(g) The term "deductions" includes only those amounts required by law or Court order to be withheld, and those amounts authorized for union or club dues, pension plans, payroll savings plans, credit unions, charities and hospitalization and medical insurance required by the terms of an employer-sponsored or employer-provided plan or program providing fringe benefits in which the employee is a participant.

(h) The term "officer" shall include officers or agents in the management of a corporation or firm who knowingly permit the corporation or firm to violate the provisions of this article.

(i) The term "wages due" shall include at least all wages earned up to and including the twelfth day immediately preceding the regular payday.

(j) The term "construction" means the furnishing of work in the fulfillment of a contract for the construction, alteration, decoration, painting or improvement of a new or existing building, structure, roadway or pipeline, or any part thereof, or for the alteration, improvement or development of real property: Provided, That construction performed for the owner or lessee of a single family dwelling or a family farming enterprise is excluded.

(k) The term "minerals" means clay, coal, flagstone, gravel, limestone, manganese, sand, sandstone, shale, iron ore and any other metallurgical ore.

(l) The term "fringe benefits" means any benefit provided an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage , but is not limited to, benefits provided pursuant to any welfare plan or pension plan subject to the Employee Retirement Income Security Act of 1974 in which the employee is a participant, benefits for medical, surgical or hospital care, sickness, accident, disability or death, unemployment, vacation, holidays, apprenticeship or training, day care, education, prepaid legal services, severance and retirement or post retirement.

(m) The term "employer" means any person, firm or corporation employing any employee.

(n) The term "doing business in this state" means having employees actively engaged in the intended principal activity of the person, firm or corporation in West Virginia.

(o) The term “employer provided property” means all property provided by an employer to an employee for use in the employer’s business, including but not limited to, equipment, phone, computer, supplies or uniforms.

(p) The term “actual cash value” means the lesser of fair market value of the employer provided property or the cost to replace employer provided property, minus depreciation taken or allowed.

§21‑5‑4. Cash orders; employees separated from payroll before paydays; employer provided property.

(a) In lieu of lawful money of the United States, any person, firm or corporation may compensate employees for services by cash order which may include checks, direct deposits or money orders on banks convenient to the place of employment where suitable arrangements have been made for the cashing of the checks by employees or deposit of funds for employees for the full amount of wages.

(b) Whenever a person, firm or corporation discharges an employee, or whenever an employee quits or resigns from employment, the person, firm or corporation shall pay the employee's wages due for work that the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable: Provided, That fringe benefits, as defined in section one of this article, that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement. For purposes of this section, "business day" means any day other than Saturday, Sunday or any legal holiday as set forth in section one, article two, chapter two of this code.

(c) Payment under this section may be made in person in any manner permissible under section three of this article, through the regular pay channels or, if requested by the employee, by mail. If the employee requests that payment under this section be made by mail, that payment shall be considered to have been made on the date the mailed payment is postmarked.

(d) When work of any employee is suspended as a result of a labor dispute, or when an employee for any reason whatsoever is laid off, the person, firm or corporation shall pay in full to the employee not later than the next regular payday, either through the regular pay channels or by mail if requested by the employee, wages earned at the time of suspension or layoff.

(e) If a person, firm or corporation fails to pay an employee wages as required under this section, the person, firm or corporation, in addition to the amount which was unpaid when due, is liable to the employee for two times that unpaid amount as liquidated damages. This section regulates the timing of wage payments upon separation from employment and not whether overtime pay is due. Liquidated damages that can be awarded under this section are not available to employees claiming they were misclassified as exempt from overtime under state and federal wage and hour laws. Every employee shall have a lien and all other rights and remedies for the protection and enforcement of his or her salary or wages, as he or she would have been entitled to had he or she rendered service therefor in the manner as last employed; except that, for the purpose of liquidated damages, the failure shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he or she is adjudicated bankrupt upon the petition.

(f)(1) Notwithstanding any provision in this article, including but not limited to section three-e of this article, to the contrary, if an employee fails to return employer provided property at the time of discharge, resignation or separation from employment under any circumstances, the employer may withhold, deduct or divert any portion of an employee's final wages up to an amount equal to but not to exceed the actual cash value of employer provided property, subject to the following:

            (A) The employer provided property had been provided to the employee in the course of, and for use in, the employer's business;

            (B) The employee had signed a written agreement with the employer contemporaneous with the obtaining of the employer provided property, or signed and ratified an agreement if property had been provided prior to the effective date of this provision; and such agreement contained, at a minimum, the following information:

            (i) Specific itemization of the employer provided property, including the cost to the employer;

            (ii) Clear statement that such items are to be returned immediately upon discharge, resignation or separation from employment under any circumstances; and

            (iii) Clear statement, coupled with the employee’s acknowledgement and agreement, that should the employee fail to timely return the specified item or items upon separation from employment, the actual cash value of such item or items may be deducted and recovered by the employer from the employee’s final wages;

            (C) The employer shall notify the employee in writing at the time of discharge, resignation or separation from employment under any circumstances by personal service, or as soon thereafter as practicable, by personal service or via certified mail with return receipt requested, as to the actual cash value of the items, make a demand for return of such employer provided property by a certain date, not to exceed ten business days from the notification, and advise the employee of his or her option under subdivision three of this subsection to object to the actual cash value amount to be deducted; and

            (D) The employer shall relinquish any wages withheld, deducted or diverted under this section to the employee if the employee returns the employer’s property, equipment, supplies and uniforms in a condition suitable for the age and usage of the items within the deadline specified in paragraph (C), subdivision (1) of this subsection.

            (2) Nothing herein precludes an employee from voluntarily consenting in writing to an employer’s withholding, deduction or diversion of a certain amount from the employee’s final wages in satisfaction of subdivision (1) of this subsection.

(3) If an employee objects to the actual cash value amount to be deducted by an employer, and provides such written objection within the deadline specified in paragraph (C), subdivision (1) of this subsection, then the employer shall provide the wages owed under this section to the employee less the claimed actual cash value amount, and shall place the controverted amount in an interest bearing escrow account: Provided, That if the employee does not commence a civil action in the appropriate court within three months of the date the written objection is made, the employee shall forfeit the amount in escrow and such money shall revert to the employer.

(4) Nothing in this subsection is intended, nor shall it be construed, to abolish or limit any other remedies available to an employer to recover employer provided property, damages related to employer provided property or any other damages or relief, equitable or otherwise, available under any applicable law.