Senate Bill No. 332
(By Senators Dittmar, Wooton, Bailey, Wiedebusch, Buckalew,
Miller, White, Oliverio, Wagner, Schoonover, Anderson, Love and
Manchin)
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[Introduced February 13, 1995; referred to the Committee
on Natural Resources; and then to the Committee on
Finance.]
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A BILL to amend and reenact sections one-a and one-c, article
seven, chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
conservation officers being excluded from coverage of wage
and hour laws; regulation; salary increase based on length
of service; rank; salary schedule; base pay; and exceptions.
Be it enacted by the Legislature of West Virginia:
That sections one-a and one-c, article seven, chapter twenty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-1a. Conservation officers excluded from coverage under
wage and hour laws; regulation; salary increase based on
length of service.
(a)
The Legislature finds and declares that the supreme
court of appeals of West Virginia has held that conservation
officers are covered by the provisions of the state wage and hour
law, article five-c, chapter twenty-one of this code. The
Legislature further finds and declares that because of the unique
duties of conservation officers, it is not appropriate to apply
said wage and hour provisions to them. Accordingly, conservation
officers are hereby excluded from the provisions of said wage and
hour law and department of civil service guidelines, rules or
regulations relating thereto. They shall be subject to duty
whenever and wherever required by the functions, services and
needs of the department.
The minimum workweek for conservation officers shall be five
eight hour days and the maximum number of days and hours per day
shall be unrestricted. Conservation officers shall not be
entitled to compensatory time for days or hours worked in excess
of the minimum in a work day or week except a compensatory day
shall be granted for any holiday worked. In lieu of any benefits to which they would have been entitled by the coverage from which
they are hereby excluded, conservation officers, except those
classified by the West Virginia civil service system as
conservation officer IV and natural resources administrator,
shall receive in addition to their salaries an annual premium
payment of two thousand one hundred dollars which sum shall be
prorated and included in the payment of their salary checks.
The
Legislature finds and declares that the supreme court of appeals,
the West Virginia department of labor and subsection (e) of
section one, article five-c, chapter twenty-one of this code
defines "employer" to include the state of West Virginia, its
agencies, departments and all its political subdivisions, any
individual, partnership, association, public or private
corporation, or any person or group of persons acting directly or
indirectly in the interest of any employer in relation to an
employee; and who employs during any calendar week six or more
employees as therein defined in any one separate, distinct and
permanent location or business establishment: Provided, That the
term "employer" does not include any individual, partnership,
association, corporation, person or groups of persons or similar
unit if eighty percent of the persons employed by him or her are subject to any federal act relating to minimum wage, maximum
hours and overtime compensation.
(b)
The Legislature further finds and declares that the West
Virginia division of natural resources law enforcement section is
an employer as defined in subsection (a) of this section and
therefore falls under the jurisdiction of the fair labor
standards act and its associated rules regarding payment of
overtime. Accordingly, the director shall promulgate rules
regarding overtime pay for conservation officers in accordance
with section one, et seq., article one, chapter twenty-nine-a of
this code.
(c) Effective the first day of January, one thousand nine
hundred ninety, each conservation officer shall receive and be
entitled to an increase in salary based on length of service,
including that heretofore and hereafter served as a conservation
officer as follows: For five years of service with the
department,
such a conservation officer shall receive a salary
increase of three hundred dollars per year payable during his
or
her next three years of service and a like increase at three-year
intervals thereafter, with
such these increases to be cumulative:
Provided, That for purposes of calculating
such a salary increase, a maximum of twenty-five years of service shall be
applicable.
Such A salary increase shall be based upon years of
service as of the first day of July of each year and
shall may
not be recalculated until the first day of July of the following
year.
Conservation officers in service at the time the amendment
to this section becomes effective shall be given credit for prior
service and shall be paid such salaries as the same length of
service will entitle them to receive under the provisions hereof.
(c) (d) This section
shall does not apply to special or
emergency conservation officers appointed under the authority of
section one of this article.
§20-7-1c. Conservation officers, ranks, salary schedule, base
pay, exceptions.
(a) Notwithstanding any provision of this code to the
contrary, the ranks within the law-enforcement section of the
division of natural resources shall be colonel, lieutenant
colonel, major, captain, lieutenant, sergeant, conservation
officer and conservation officer-in-training. Each such officer
while in uniform shall wear the insignia of rank as provided by
the chief conservation officer.
(b) Conservation officers shall be paid the minimum annual
salaries based on the following schedule:
ANNUAL SALARY SCHEDULE (BASE PAY)
SUPERVISORY AND NONSUPERVISORY RANKS
Conservation Officer-In-Training $
18,617 23,225
(first year)
Conservation Officer (second year)$
20,806 25,414
Conservation Officer (third year)$
21,078 25,686
Conservation Officer (fourth year)$
21,290 25,898
Conservation Officer (after fifth year)$
22,868 27,476
Conservation Officer $
24,446 29,054
(after tenth year)
Conservation Officer $
25,846 30,454
(after fifteenth year)
Sergeant$
29,469 34,077
Lieutenant$
32,289 36,897
Captain$
36,675 39,183
Major$
38,958 41,466
Lieutenant Colonel$
41,000 43,508
Colonel
Conservation officers in service at the time the amendment to this section becomes effective shall be given credit for prior
service and shall be paid such salaries as the same length of
service will entitle them to receive under the provisions hereof.
(c) This section
shall does not apply to special or
emergency conservation officers appointed under the authority of
section one of this article.
seven.
(d) Nothing in this section shall prohibit other pay
increases as provided for under section two, article five,
chapter five of this code.
NOTE: The purpose of this bill is to amend the section
regarding the exclusion of conservation officers from state wage
and hour guidelines to comply with the supreme court of appeals
decision, January 1994 term number 21866, which held that:
"Through the issuance and adoption of a labor department
regulation, the legislature has clarified in 42 W.Va. C.S.R.
§8-2.9 that
all employers falling within the definition of
"employer" in West Virginia Code §21-5C-1(e) are entitled to the
exemption from state overtime requirements, provided that eighty
percent of their employees are subject to federal wage and hour
laws. In cases such as this where legislative guidance is
available, we look with great deference to the issued
regulations.
See, Richardson, 757 F.2d at 1451. Recognizing
that the legislative regulation found in 42 W.Va. C.S.R. §8-2.9
removes any ambiguity regarding whether a city, as a political
subdivision of the state, is entitled to the exemption permitted
certain employers by West Virginia Code §21-5C-1(e) and according
appropriate deference to the legislature as the body charged with
administrating the state's labor laws, we adopt the regulatory definition of employers exempted from state overtime laws.
See,
42 W.Va. C.S.R. §8-2.9. Consequently, all entities qualifying as
an employer under West Virginia Code §21-5C-1(e) are entitled to
the exemption provided that eighty percent of their employees are
subject to federal wage and hour laws. Given that the parties
have stipulated that eighty percent of the City's employees are
subject to federal wage and hour laws, we conclude that a city,
as a political subdivision of the state, is entitled to the
statutory exemption for qualifying employers in West Virginia
Code §21-5C-1(e) and therefore, is not subject to the overtime
pay requirements imposed by West Virginia Code §21-5C-3(a)."
This bill further combines the $2,100 supplemental overtime
pay which was paid in accordance with the deleted language in
§20-7-1a. The salary also reflects the $1,008 across-the-board
pay raise passed during the 1994 session of the Legislature. An
additional raise of $1,500 per officer is being requested. Rules
will be promulgated establishing a 28-day 171-hour work cycle
authorized in section 7(k) of the Fair Labor Standards Act.
Under these rules, overtime would be paid after working 171 hours
in the 28-day cycle.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.