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Committee Substitute House Bill 2211 History

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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.
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