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Introduced Version Senate Bill 117 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 117

(By Senators White, Wooton, Hunter, Ball and Macnaughtan)

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[Introduced February 25, 1997;

referred to the Committee on the Judiciary.]

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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, 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 the state of West Virginia to provide all of its citizens equal opportunity for employment without regard to sex.
(2) Wage differentials exist in West Virginia between equivalent jobs segregated by sex.
(3) The existence of such wage differentials:
(A) Depresses wages and living standards for employees necessary for their health and efficiency;
(B) Prevents the maximum utilization of the available labor resources; and,
(C) Constitutes an unfair method of competition.
(4) Discrimination in hiring and promotion has played a role in maintaining a segregated workforce.
(5) Many women work in occupations dominated by women.
(6) According to the 1990 U. S. Census, women in West Virginia earn fifty-eight cents of 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.
(7) 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, and, the more education a woman has, the less she makes relative to a man at the same age, experience and education level.
(8) Artificial barriers exist to the advancement of women into management and decisionmaking positions in the workplace.
(9) 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.
(10) The state of West Virginia 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 worth, regardless of sex.
(b) It is therefore the purpose of this article to:
(1) Provide state employees equal pay for work of comparable character, regardless of sex; and,
(2) Establish a commission to study the methodology and funding of the implementation of a gender discrimination prohibition.
§21-5B-2. Definitions.
(a) For the purposes of this section, "employer" means the state.
(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, 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.
(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.
(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.
(e) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required under section 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-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-4. Discrimination between sexes in payment of wages for work of comparable character prohibited.

(a) No employer shall: (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 (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.
(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.
(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, one thousand nine hundred ninety-eight.
§21-5B-5. Employee's right of action against employer.

(a) 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: (1) The amount of the unpaid wages to which the employee is entitled for the one-year period preceding the commencement of the action; and (2) an additional amount as liquidated damages equal to the amount referred to in subdivision (1) of this subsection.
(b) 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.
(c) 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.
(d) 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.
(e) This section shall become effective as of the first day of July, one thousand nine hundred ninety-eight.
§21-5B-6. Establishment of the equal pay commission; composition; duties.

(a) There is established a commission, which shall be known as the "Equal Pay Commission", to study the methodology and funding of the implementation of a gender discrimination prohibition and to prepare a report 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 comprehensive wage plan which includes:
(A) A timeline for making wage adjustments designed to ensure the payment of equal wages for work of comparable character; and
(B) A funding plan for implementing such wage adjustments.
(b) The commission shall present its report to the Legislature at least thirty days before the first day of the regular session of the year one thousand nine hundred ninety-eight.
(c) The commission shall be composed of the following persons:
(1) Four members of the house of delegates, appointed by the speaker;
(2) Four members of the senate, appointed by the president;
(3) One member of the business community and one member of the labor community, as agreed to by the speaker and president;
(4) Four representatives of statewide nonprofit women's organizations, as agreed to by the speaker and president; and
(5) The following persons shall serve as ex officio members of the commission: 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; 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) 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.
(e) Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member shall be eligible for reappointment.
(f) 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.
(g) A majority of the commission shall constitute a quorum for the transaction of business.
NOTE: This bill is recommended by the Joint Standing Committee on the Judiciary for introduction and passage this session.

This article has been completely rewritten; therefore, strike- throughs and underscoring have been omitted.
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