COMMITTEE SUBSTITUTE
FOR
H. B. 2211
(By Delegates Fleischauer, Douglas, Jenkins and Thomas)
(Originating in the Committee on the Judiciary)
[March 3, 1997]
A BILL to amend and reenact article five-b, chapter twenty-one of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, all relating to improving the economic
condition of women; prohibiting the state from discriminating
on the basis of gender in payment of wages for work of
comparable character; and establishing the equal pay
commission to study and report on the implementation of a
gender discrimination prohibition.
Be it enacted by the Legislature of the West Virginia:
That article five-b, chapter twenty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 5B. EQUAL PAY FOR EQUAL WORK.
§21-5B-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that:
(1) It is the public policy of this state to provide all of
its citizens equal opportunity for employment without regard to
gender.
(2) According to the 1990 U. S. Census, women in West Virginia
earn fifty-eight cents for every dollar earned by men, and when
part-time work is included, women earn forty-five cents for every
dollar earned by men, which places West Virginia in the rank of
fifty-first out of fifty-one of the states and the District of
Columbia in wage gap based on gender.
(3) Between one third and one half of the wage difference
between men and women cannot be explained by differences in
experience, education or other legitimate qualifications; the more
education a woman has, the less she makes relative to a man at the
same age, experience and education level.
(4) Discrimination in hiring and promotion has played a role
in maintaining a segregated workforce.
(5) The existence of wage differentials between equivalent
jobs segregated by gender:
(A) Depresses wages and living standards;
(B) Prevents the maximum utilization of the available labor
resources; and
(C) Constitutes an unfair method of competition.
(6) Artificial barriers exist to the advancement of women into
management and decision making positions in the workplace and into
occupations traditionally dominated by men.
(7) The elimination of artificial barriers to the advancement
of women in the workplace would have positive effects, including:
(A) Providing a solution to problems in the economy created by
discriminatory wage differentials;
(B) Substantially reducing the number of working women earning
low wages, thereby reducing dependence on public assistance; and
(C) Promoting stable families by enabling working family
members to earn a fair rate of pay.
(8) The state can assist in the elimination of artificial
barriers to the advancement of women in the workplace by ensuring
that its employees are compensated with equal pay for work of
comparable character, regardless of gender.
(b) It is therefore the purpose of this article to:
(1) Provide state employees equal pay for work of comparable
character, regardless of gender; and
(2) Establish a commission to study the methodology and
funding of the implementation of a gender discrimination
prohibition.
§21-5B-1. §21-5B-2. Definitions.
(1) "Employer" means any person, partnership, firm or corporation employing one or more employees, but does not include
the state, or any municipal corporation or political subdivision of
the state having in force a civil service system based on merit:
Provided, That the term employer shall not include any individual,
corporation, business trust, or similar unit whose operations are
subject to any federal act relating to equal wages for equal work,
regardless of sex.
(a) For the purposes of this section, "employer" means the
state.
(2)(b) "Employee" means any individual who, otherwise than as
a co-partner of the employer or as an independent contractor,
renders personal services wholly or partly in this State to an
employer who pays or agrees to pay such individual at a fixed rate:
Provided, however, That where services are rendered only partly in
this State, an individual is not an employee unless his or her
contract of employment has been entered into, or payments
thereunder are ordinarily made or are to be made, within this
State.
(3)(c) "Wages" means all compensation for performance of
service by an employee for an employer whether paid by the employer
or another person, including cash value of all compensation paid in
any medium other than cash.
(4)(d) "Rate" with reference to wages means the basis of compensation for services by an employee for an employer and
includes compensation based on the time spent in the performance of
such services, or on the number of operations accomplished, or on
the quantity produced or handled.
(5)(e) "Unpaid wages" means the difference between the wages
actually paid to an employee and the wages required under section
three four of this article, to be paid to such employee.
(f) "Work of comparable character" means work that may be
dissimilar, but whose requirements are comparable or equivalent
when viewed as a composite of levels of skill, effort,
responsibility and working conditions.
(g) "Wage gap" means the difference between the median annual
earnings of men and women.
§21-5B-2.
§21-5B-3. State commissioner of labor to enforce
article.
The state commissioner of labor shall have the power and it
shall be his or her duty to carry out and enforce the provisions of
this article.
§21-5B-3. §21-5B-4. Discrimination between sexes in payment of
wages for work of comparable character prohibited.
(1)(a) No employer shall: (a)(1) In any manner discriminate
between the sexes in the payment of wages for work of comparable
character, the performance of which requires comparable skills; or (b)(2) pay wages to any employee at a rate less than that at which
he pays wages to his employees of the opposite sex for work of
comparable character, the performance of which requires comparable
skills.
(2) Subsection (1) of this section does not apply where:(a)
Payment is made pursuant to a seniority or merit system which does
not discriminate on the basis of sex, (b) a differential in wages
between employees is based in good faith on factors other than sex.
No employee shall be reduced in wages in order to eliminate an
existing, past or future wage discrimination or to effectuate wage
equalization.
(b) Nothing in subsection (a) of this section shall prohibit
the payment of different wages to employees where such payment is
made pursuant to:
(1) A bona fide seniority system;
(2) A merit system; or
(3) A system that measures earnings by quantity or quality of
production.
(c) No employee shall be reduced in wages in order to
eliminate an existing, past or future wage discrimination or to
effectuate wage equalization.
(3)(d) No employer shall in any manner discriminate in the
payment of wages against any employee because the employee has filed a complaint in a proceeding under this article, or has
testified, or is about to testify, or because the employer believes
that the employee may testify, in any investigation or proceedings
pursuant to this article or in a criminal action pursuant to this
article.
(e) This section shall become effective the first day of
July, two thousand.
§21-5B-5. Offenses; penalties.
In addition to the civil damages recoverable under section
four of this article, any employer who violates any of the
provisions of this article shall, upon conviction thereof, be
guilty of a misdemeanor and shall be fined not less than twenty-
five dollars nor more than one hundred dollars.
§21-5B-4. §21-5B-5. Employee's right of action against employer.
(1) Any employee whose compensation is at a rate that is in
violation of section four of this article shall have a right of
action against his or her employer for the recovery of: (a) The
amount of the unpaid wages to which the employee is entitled for
the one-year period preceding the commencement of the action; and
(b) an additional amount as liquidated damages equal to the amount
referred to in paragraph(a) of this subsection.
(2) In addition to any judgment awarded to the plaintiff, the
court shall allow reasonable attorney's fees and costs, including expert witness fees, to be taxed as costs in any judgment
recovered.
(3) The action for the unpaid wages and liquidated damages may
be maintained by one or more employees on behalf of themselves or
other employees similarly situated.
(4) No agreement for compensation at a rate of less than the
rate to which such employee is entitled under this article is a
defense to any action under this article.
(a) Any employee whose compensation is at a rate that is in
violation of section four of this article shall have the same right
to file a grievance as under the provisions of article six-A of
chapter twenty-nine.
(b) No agreement for compensation at a rate of less than the
rate to which such employee is entitled under this article is a
defense to any action under this article.
(c) This section shall become effective as of the first day of
July, two thousand.
§21-5B-6. Provisions of article severable.
If any provision of this article or the application thereof to
any person or circumstances shall be held invalid, such invalidity
shall not affect the provisions or application of this article
which can be given effect without the invalid provisions or
application, and to this end the provisions of this article are declared to be severable.
§21-5B-6. Establishment of the equal pay commission; composition;
duties, expiration.
(a) There is established a commission, which shall be known as
the "Equal Pay Commission". The mission of the Equal Pay
Commission shall be to study both methodology and funding for the
implementation of a gender discrimination prohibition and to
prepare a report for submission to the legislature which includes:
(1) An analysis of state job descriptions which measures the
inherent skill, effort, responsibility and working conditions of
various jobs and classifications; and
(2) A review of similar efforts to eliminate gender-based wage
differentials implemented by other governmental entities in this
and other states.
(b) The commission shall submit its report and recommendations
to the president of the Senate and the speaker of the House of
Delegates not later than thirty days before the first day of the
regular session of the year one thousand nine hundred ninety-nine.
(c) The commission shall be composed of seven people, each to
serve for a term of two years, as follows:
(1) Two members of the House of Delegates, appointed by the
speaker;
(2) Two members of the Senate, appointed by the president;
(3) Three state employee representatives; one labor union
member representing state employees, as agreed to by the speaker
and president; the director of the women's commission, or his or
her designee; and the director of the office of equal employment
opportunity, or his or her designee.
(d) The commission shall seek input, and attendance at
meetings will be requested, from the following persons: The
commissioner of labor or his or her designee; the director of the
personnel division of the department of administration, or his or
her designee.
(e) One of the appointed members of the House of Delegates and
one of the appointed members of the Senate, as designated by the
speaker and the president respectively, shall serve as co-chairs of
the commission.
(f) Any member whose term has expired shall serve until his or
her successor has been duly appointed. Any person appointed to fill
a vacancy shall serve only for the unexpired term. Any member
shall be eligible for reappointment.
(g) Any vacancies occurring in the membership of the
commission shall be filled in the same manner as the original
appointment for the position being vacated. The vacancy shall not
affect the power of the remaining members to execute the duties of
the commission.
(h) The commission shall expire on the first day of July, two
thousand and two.
NOTE: This bill, which constitutes a revision of the "Equal
Pay for Equal Work" law passed in 1965, is recommended by the Joint
Standing Committee on the Judiciary for introduction and passage
this session.
This article has been rewritten; strike-throughs indicate
language that would be stricken from the present law, and
underscoring indicates new language.