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, §21-5A-9
and §21-5A-10, all relating to reestablishing prevailing wages for certain
state government contracts; declaring policy; defining terms; requiring regular
determinations of prevailing wage rates; providing for objection, hearing and
judicial review of determinations of prevailing wages; requiring prevailing
wage rates as an element of bid requests and public contracts; providing for
posting of rates and record-keeping; establishing criminal penalties; and
providing for prospective application of this article.
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, §21-5A-9 and §21-5A-10, all to read as follows:
ARTICLE 5A. WAGES FOR
CONSTRUCTION OF PUBLIC IMPROVEMENTS.
§21-5A-1. Legislative
findings.
The Legislature finds
that the repeal of the state prevailing wage law has resulted in no identified
savings but many measurable losses to the State of West Virginia and its
citizens and that while no savings have been realized for the state for costs
in construction projects, the resulting cuts in wages, benefits, and jobs, and
tax revenues to the state and its subdivisions are measurable and have
adversely impacted this state and many of its citizens. Therefore, the
Legislature finds that reenactment of a state prevailing wage law is necessary
to prevent further deterioration of the state’s construction industry and help
preserve living wages for many West Virginians working in the state
construction industry.
§21-5A-2. Definitions.
(1) 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.
(2) 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, as defined in subsection (1)
of this section, is performed.
(3) 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.
(4) 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 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
construction on public improvements.
(5) 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.
(6) 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.
§21-5A-3. Policy declared.
It is hereby declared to
be the policy of the State of West Virginia that a wage of not 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-4. Fair
minimum rate of wages; determination; filing; schedule of wages part of
specifications.
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. The "fair minimum rate of wages," for the purposes of this
article, shall be the rate of wages paid in the locality in this state 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
division 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-5. Prevailing wages established at regular intervals;
how determined; filing; objections to determination; hearing; final
determination; judicial review.
(a) The Division 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 Division 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 division, shall be filed
immediately with the Secretary of State and with the Division 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 Division of Labor, any person who may
be affected thereby may object in writing to the determination or such part
thereof as he or she deems objectionable by filing a written notice with the
Division of Labor stating the specific grounds of the objection.
(d) Within ten
days of the receipt of the objection, the Division 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 Division 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
Division 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
Division 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 division 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 Division of Labor
shall file a certified copy of its final determination with the Secretary of
State and with the Division 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 adversely
affected by the final determination of the Division of Labor, whether or not
such person participated in the proceedings resulting in such final
determination, may petition for judicial review of the determination in 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.
(h) Pending the
decision on appeal, the rates for the preceding year shall remain in effect.
§21-5A-6. Contracts
to contain provisions relative to minimum wages to be paid; exceptions.
In all cases where any
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-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 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-8. 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 Division 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-9. 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 for 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, herself or
another, 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-10. 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 no appeal or judicial review has been sought of the determination
as provided by this article.
NOTE: The purpose of this bill is
to restore the requirements for prevailing wages for certain government contracts
to state law. This law was repealed
during the 2016 Legislative Session, and this bill restores prior law.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.