FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to the Committee on Industry and Labor then the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§21-5A- 1, §21-5A-2, §21-5A-3, §21-5A-4, §21-5A-5, §21-5A-6, §21-5A-7, §21-5A-8
and §21-5A-9, all relating to reestablishing prevailing wages for certain state
government contracts; declaring policy; defining terms; requiring contractors
to ascertain rates and to include rates in contract specifications; requiring
annual determinations of prevailing wage rates; establishing procedures to file
objections to prevailing wage rate determinations; providing for hearings,
judicial review and appeal; requiring mandatory provisions in contracts and
sub-contracts; providing for posting of rates and record-keeping; establishing
criminal penalties for violations of the act; and limiting the scope of the law
to post-enactment contracts.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §21-5A-1, §21-5A-2, §21-5A-3, §21-5A-4, §21-5A-5, §21-5A-6, §21-5A-7,
§21-5A- 8 and §21-5A-9, 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 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 to expenditures of such institutions made, in whole or in part, from such
public funds.
(2) The term "construction," as used in this
article, shall mean any construction, reconstruction, improvement, enlargement,
painting, decorating, or repair of any public improvement let to contract. The
term "construction" shall not be construed to 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 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,
"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 construction on public improvements.
(4) The term "public improvement," as used in this
article, shall include 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 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) The term "employee" for the
purposes of this article, shall not be construed to conclude 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.
§21-5A-2. Policy declared.
It is hereby declared to be the policy of the
State of West Virginia that a wage of no less than the prevailing hourly rate
of wages for work of a similar character in the locality in this state in which
the construction is performed, shall be paid to all workmen employed by or on
behalf of any public authority engaged in the construction of public
improvements.
§21-5A-3. Fair minimum rate of wages;
determination; filing; schedule of wages part of specifications.
(a) Any public authority authorized to let
to contract the construction of a public improvement, shall, before advertising
for bids for the construction thereof, ascertain from the State Commissioner of
Labor, the fair minimum rate of wages, including fair minimum overtime and
holiday pay, to be paid by the successful bidder to the laborers, workmen or
mechanics in the various branches or classes of the construction to be
performed; and such schedule of wages shall be made a part of the
specifications for the construction and shall be published in an electronic or
other medium and incorporated in the bidding blanks by reference when approved
by the Commissioner of Labor where the construction is to be performed by
contract.
(b) The "fair minimum rate of
wages," for the intents and purposes of this article, shall be the rate of
wages paid in the locality in this state as hereinbefore defined to the
majority of workmen, laborers or mechanics in the same trade or occupation in
the construction industry. The Commissioner of Labor or a member of his or her
department designated by him or her shall assemble the data as to fair minimum
wage rates and shall file wage rates. Rates shall be established and filed as
hereinafter provided on January 1 of each year. These rates shall prevail as
the minimum wage rate on all public improvements on which bids are asked during
the year beginning with the date when such new rates are filed and until the
new rates are filed, the rates for the preceding year shall remain in effect: Provided, That such rates shall not
remain in effect for a period longer than fifteen months from the date they are
published, but, this provision shall not affect construction of a public
improvement then underway.
§21-5A-4.
Prevailing wages established at regular intervals; how determined;
filing; objections to determination; hearing; final determination; judicial
review.
(a) The Department of Labor, from time to time, shall investigate
and determine the prevailing hourly rate of wages in the localities in this
state. Determinations thereof shall be made annually on January 1 of each year
and shall remain in effect during the successive year: Provided, That such rates shall not remain in effect for a period
longer than fifteen months from the date they are published.
In determining such prevailing rates, the
Department of Labor may ascertain and consider the applicable wage rates
established by collective bargaining agreements, if any, and such rates as are
paid generally within the locality in this state where the construction of the
public improvement is to be performed.
(b) A copy of the determination so made, certified by the
secretary of the board, shall be filed immediately with the Secretary of State
and with the Department of Labor. Copies shall be supplied to all persons
requesting same within ten days after such filing.
(c) At any time within fifteen days after the certified copies of
the determination have been filed with the Secretary of State and the
Department of Labor, any person who may be affected thereby may object in
writing to the determination or such part thereof as he deems objectionable by
filing a written notice with the Department of Labor stating the specific
grounds of the objection.
(d) Within ten days of the receipt of the objection, the
Department of Labor shall set a date for a hearing on the objection. The date
for the hearing shall be within thirty days after the receipt of the objection.
Written notice of the time and place of the hearing shall be given to the
objectors at least ten days prior to the date set for the hearing and at a time
so as to enable the objectors to be present.
(e) The Department of Labor at its discretion may hear such
written objection separately or consolidate for hearing any two or more written
objections. At the hearing the Department of Labor shall introduce into
evidence the results of the investigation it instituted and such other facts
which were considered at the time of the original determination of the fair
minimum prevailing hourly rate including the sources which formed the basis for
its determination. The Department of Labor or any objectors thereafter may
introduce such further evidence as may be material to the issues.
(f) Within ten days of the conclusion of the hearing, the
department must rule on the written objections and make such final
determination as shall be established by a preponderance of the evidence.
Immediately upon such final determination, the Department of Labor shall file a
certified copy of its final determination with the Secretary of State and with
the Department of Labor and shall serve a copy of the final determination on
all parties to the proceedings by personal service or by registered mail.
(g) Any person affected by the final determination of the
Department of Labor, whether or not such person participated in the proceedings
resulting in such final determination, may appeal to the board from the final
determination of the Department of Labor within ten days from the filing of the
copy of the final determination with the Secretary of State. The board shall
hear the appeal within twenty days from the receipt of notice of appeal. The
hearing by the board shall be held in Charleston. The hearing by the board
shall be upon the record compiled in the hearing before the Department of Labor
and the board shall have the authority to affirm, reverse, amend, or remand for
further evidence, the final determination of the Department of Labor. The board
shall render its decision within ten days after the conclusion of its hearing.
(h) Any party to the proceeding before the board or any person
affected thereby may within thirty days after receipt of the notice of its
decision, appeal the board's decision to the circuit court of the county
wherever the construction of a public improvement is to be performed, which
shall consider the case on the record made before the Commissioner of Labor and
before the board. The decision of such circuit court may be appealed to the
Supreme Court of Appeals of West Virginia by any party to the proceedings or by
any person affected thereby in the manner provided by law for appeals in civil
actions.
(i) Pending the decision on appeal, the rates for the
preceding year shall remain in effect.
§21-5A-5. Contracts to contain provisions
relative to minimum wages to be paid; exceptions.
In all cases where any public authority has
ascertained a fair minimum rate or rates of wages as herein provided, and
construction of a public improvement is let to contract, the contract executed
between the public authority and the successful bidder shall contain a
provision requiring the successful bidder and all his or her subcontractors to
pay a rate or rates of wages which shall not be less than the fair minimum rate
or rates of wages as provided by this article.
§21-5A-6. 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 of 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.
§21-5A-7. Wage records to be kept by
contractor, subcontractor, etc.; contents; open to inspection.
The contractor and each subcontractor or
the officer of the public authority in charge of the construction of a public
improvement shall keep an accurate record showing the names and occupation of
all such 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 of Labor and the public authority which let the contract, its
officers and agents. It shall not be necessary to preserve such record for a
period longer than three years after the termination of the contract.
§21-5A-8. Penalties for violation of
article.
(a) Any contractor or subcontractor who 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 a public improvement let to contract, who is paid less than
the posted fair minimum rate of wages applicable thereto, may recover from such
contractor or subcontractor the difference between the same and the posted fair
minimum rate of wages, and in addition thereto, a penalty equal in amount to
such difference, and reasonable attorney fees. The venue of said action shall
be in the county where the work is performed: Provided, That an honest mistake or error shall not be construed as
a basis for recovery under this subsection.
(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 unlawful for any
person, for himself or any one of them, to request, demand or receive, either
before or after such 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
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 guilty of a misdemeanor and, fined not less than $50 and not more than
$250.
§21-5A-9. Existing contracts.
This article shall apply only to contracts
for construction on public improvements let after the effective date of this
article, and to construction on public improvements for which there has been
determined the fair minimum wage rates as provided in this article, and such
determination has not been appealed from as may be provided by this article.
NOTE: The purpose of this bill is
to restore prevailing wages for certain government contracts to state law. This bill reinstates the Prevailing Wage Law
that was in effect until its repeal in 2016.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.