"Highlights of Legislation Affecting WV Employers Enacted During the 2016 Regular Session"
In 2015, the West Virginia Legislature enacted tort reform and specific employment-related legislation significantly benefitting employers who conduct business in West Virginia. During the 2016 Regular Session, which concluded on March 12, the Legislature again passed employment legislation that will impact employers with operations in our state. This legislation will primarily affect employers with unionized workforces and those who are engaged in the construction of public improvements; other proposed employment legislation fell short of receiving legislative approval. This publication will summarize the enacted employment legislation as well as some of the proposed employment legislation that was not passed.
West Virginia Workplace Freedom Act or "Right to Work" (Senate Bill 1)
West Virginia became the 26th right-to-work state on February 12, 2016, when the Legislature overrode Governor Earl Ray Tomblin's veto of the measure. As a result, the West Virginia Workplace Freedom Act (also known as "Right to Work") will become effective on May 4, 2016. However, the Act will only apply to labor agreements that are "entered into, modified, renewed, or extended" after July 1, 2016. The Act will have no bearing on agreements entered into on or before June 30, 2016.
The key provisions of the Act are as follows:
- An employee who is a member of a union may not be compelled to remain a union member as a condition of employment or continuation of employment.
- An employee may not be required to join a union within a certain period of time following his employment as a condition of employment or continuation of employment.
- An employee who is not a union member may not be required to pay a fee to a union, regardless of the label applied to that fee, as a condition of employment or continuation of employment.
- Employers and unions may no longer make contracts that condition employment upon becoming a union member after hire or that require non-union members to pay union fees.
- Violators of this law will be guilty of a criminal misdemeanor and face fines ranging from $500 to $5,000. Each day in which a violation occurs is considered a separate offense. Administrative and civil remedies are also available, including compensatory damages, attorney's fees and costs, punitive damages and injunctive relief.
The fundamental effect of the Act (as with all right-to-work laws) is to prohibit union security agreements, which are agreements between an employer and union that require all employees to join the union and pay union dues in order to work for the employer. Because the Act prohibits union security agreements, employees cannot be forced to join a union or pay union dues as a condition of employment.
Repealing Prevailing Wage Act (House Bill 4005)
Since 1935, the West Virginia Prevailing Wage Act has required public authorities, or those acting on their behalf, to pay employees engaged in the construction of public improvements according to the prevailing, hourly wage for similar work in the local area. On February 4, 2016, the West Virginia Legislature passed House Bill 4005, which repealed the West Virginia Prevailing Wage Act in its entirety. House Bill 4005 takes effect on May 5, 2016, which is 90 days after its passage. Following the effective date of House Bill 4005, there will be no prevailing wage in West Virginia.
Employers involved in the construction, reconstruction, improvement, enlargement, painting, decorating or repair of any kind of public improvement will want to review their bid proposals and contracts to determine the effect of the repeal of the prevailing wage law.
Removing Requirement of Conceal-Carry Permits for Firearms or Other Deadly Weapons (House Bill 4145)
Effective May 25, 2016, individuals over the age of 21, who are not otherwise prohibited from possessing a firearm or other deadly weapon under state or federal law, may carry a deadly weapon, including a handgun, in a concealed manner without obtaining a license to do so from the State of West Virginia.
As a result of this legislation, employers may want to develop or revise their workplace weapons policies, or conduct training on those policies.
Proposed Employment Legislation Not Enacted During the 2016 Regular Session
Several employment-related bills were proposed, but ultimately were not enacted by the Legislature during this session. A brief description of some of these bills, which may be of interest, is provided below. Some of those bills may be re-introduced during next year's legislative session.
- Creating West Virginia Safer Workplaces Act (Senate Bill 287) — This legislation would have provided more flexibility for employers to test prospective and current employees for drugs and alcohol, including the development of workplace drug testing policies.
- Assignment of Wages by Employers and Payment by Payroll Card (Senate Bill 290) — This legislation attempted to amend the West Virginia Wage Payment and Collection Act by simplifying the requirements necessary for employers to pay employees by a "payroll card." It also sought to simplify the requirements for establishing a valid assignment of wages.
- Clarifying That Striking Employees are Disqualified From Receiving Unemployment Benefits (Senate Bill 593) — This legislation attempted to amend West Virginia Code Section 21A-6-3 by clarifying that an individual is disqualified from receiving unemployment compensation benefits for any week, or portion of a week, during which he or she did not work as a result of a strike.
- Amending the Pregnant Workers Fairness Act (Senate Bill 216) — The Pregnant Workers Fairness Act, enacted in 2014, requires employers to provide a reasonable accommodation to employees or applicants who have limitations related to pregnancy or childbirth. This Act authorized the West Virginia Human Rights Commission to propose rules to carry out the Act's purpose. During this legislative session, proposed legislation was introduced to adopt, with some amendments, the rules proposed by the Commission. The proposed amendments included explicitly limiting the protections of the Act to women because the Commission interpreted the Act as applying to all employees, regardless of gender, who might be affected by a pregnancy or birth. Therefore, the rules proposed by the Commission have not been adopted and some ambiguities may exist as to the scope of the Act.