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Labor & Employment Legislation Passed by the West Virginia Legislature in 2018
It was another active year in the West Virginia Legislature on the labor and employment front, as several notable pieces of pro-employer legislation completed action.
Perhaps just as notable, however, was the passage of legislation that would allow employees to lawfully store firearms securely in their vehicles while parked on employer property, as well as a significant number of labor and employment reform measures that did not complete legislative action.
All eyes now turn to Governor Justice, who must determine whether he will approve or veto much of the enacted legislation discussed below.
Key Legal Measures Enacted in 2018
New Law Allows Employers to Recover Costs of Unreturned Property (HB 2546)
The West Virginia Legislature has attempted to make it easier for employers to get their property back – or at least recoup the cost – by amending West Virginia's Wage Payment and Collection Act.
Signed by the governor on February 23, 2018, and effective May 15, 2018, House Bill 2546 now allows employers to recoup replacement costs associated with unreturned property in certain situations.
Under the new legislation, an employer is permitted to deduct the replacement cost of unreturned property under the following circumstances: (1) the property was provided while performing the employer's business; (2) the value of the employer-provided property is more than $100; and (3) the employee signed a written agreement at the time the employer-owned property was provided to him or her.
Read the Bill
Parking Lot Gun Bill Sparks Calls for Veto (HB 4187)
Coined the "Business Liability Protection Act," HB 4187 significantly revises state law with respect to the rights of owners and lessees to limit the possession of firearms on their premises.
Specifically, the Act would prohibit the owner, lessee or any other person charged with the care, custody and control of real property from prohibiting any customer, employee, or invitee from legally possessing a firearm on the property when the firearm is: (1) lawfully possessed; (2) out of view; (3) locked inside or to a motor vehicle in a parking lot, and (4) when the customer, employee or invitee is lawfully allowed to be present in the area.
The legislation also places significant restrictions on employers with respect to the actions that may be taken with employees exercising their rights under the new law. In particular, employers would be prohibited from asking employees as to whether they are storing a firearm in a vehicle on employer property pursuant to the Act. Nor could an employer condition employment on the fact that an employee or prospective employee has or does not have a concealed carry license, or upon the signature of an agreement prohibiting the employee or prospective employee from keeping a legal firearm locked inside their vehicle pursuant to the statute.
While HB 4187 also includes limitations on the duty of care for employers, as well as immunity for civil liability, there has been considerable opposition to the legislation from employers and employer organizations, such as the West Virginia Chamber of Commerce and the West Virginia Manufacturers Association.
Because HB 4187 passed with overwhelming bi-partisan support, many will be watching closely to see where Governor Justice falls on this issue, and whether he ultimately will approve or veto the legislation.
Read the Bill
Significant Changes to State Venue Requirements (HB 2028 & HB 4013)
Through the passage of two pieces of legislation, the Legislature has made notable change to the venue requirements for lawsuits brought within the state.
First, the Legislature has changed the requirement that any lawsuit brought against the state, Governor or any other state officer or agency be filed in the circuit court of Kanawha Court through its passage of HB 2028. The law now allows such lawsuits to be brought and prosecuted in either the circuit court of Kanawha County, the circuit court of any county where the plaintiff or petitioner resides, or in the circuit court where the cause of action arose.
Second, and perhaps more importantly, HB 4013 provides that nonresidents of the state may not file a civil action in a court of this state unless "all or a substantial part" of the actions or omissions giving rise to the civil action occurred in West Virginia. The law applies for all civil actions filed on or after July 1, 2018, and provides limited relief to nonresident plaintiffs who are time barred from bringing their claims in the state where the cause of the civil action actually arose.
If signed by the Governor, this legislation would significantly limit forum-shopping by out‑of‑state plaintiffs' lawyers looking for more plaintiff-friendly venues in which to file suit.
Read HB 2028 and HB 4013
Wage Bond Legislative Rule Approved (SB 230)
With the authorization of the Department of Commerce rules bundle (SB 230), the Legislature has conformed the Division of Labor wage bond rule for employers performing mineral extraction or construction in the state to the existing wage bond statute, which was revised last year to exempt any employer that has been in business in another state for at least five years, has at least $100,000 in assets, or is the subsidiary of a parent company that has been in business for at least five years. Importantly, the legislative rule sets forth the process by which an employer may seek a waiver of the wage bond requirements from the Division of Labor.
Read the Bill
Self-insured Workers' Compensation Surcharge to Finally Terminate (HB 4628)
With the passage of HB 4628, the percentage surcharge applied by the Insurance Commissioner on a quarterly-basis to self-insured employers will finally terminate on December 31, 2018, and no surcharges may be assessed by the Insurance Commissioner after that date pursuant to W.Va. Code § 23-2C-3(f)(3).
Read the Bill
New Posting Requirements for Certain Employers (HB 4169)
As part of an ongoing effort to assist the victims of human trafficking in West Virginia, the Legislature enacted HB 4169 to impose new posting requirements for the following businesses and establishments: ABC-licensed locations providing for the consumption of alcoholic beverages; primary airports, passenger rail stations, bus stations; locations where gasoline is sold; emergency departments within hospitals; urgent care centers; locations where farm labor contractors and day haulers work; privately operated job recruitment centers; hotels; exotic entertainment facilities; and, any other business or establishments that the Director of the Division of Justice and Community Services determines, by legislative rule, to be an effective location to provide notice to victims of human trafficking.
Read the Bill
Filing Deadline for Personal Income Tax Withholding Statements Changed (SB 338)
Through its enactment of SB 338, the Legislature has moved the deadlines set forth in W.Va. Code § 11-21-74 for filing annual reconciliation and withholding statements for West Virginia personal income tax from December 31 to January 31 of every year.
Read the Bill
Civil Immunity for Qualified Directors of Volunteer Organizations (SB 555)
SB 555 provides that qualified directors of volunteer organizations are not personally liable for the torts of the entity, or the torts of the entity's agents or employees, unless the director "approved of, ratified, directed, sanctioned, or participated in the wrongful acts" complained of.
Read the Bill
Key Measures Failing to Cross the Finish Line
Several measures affecting employers in West Virginia failed to complete legislative action. Highlights included the following:
- The teachers' strike effectively derailed several significant legislative measures this year, and legislation creating an intermediate court of appeals was certainly one of them. SB 341 would have created a six-judge intermediate appellate court to handle the appeals of most civil and administrative matters. While the measure moved through the Senate with relative ease, the cited costs of such legislation ultimately were too much to bear as the House of Delegates looked for ways to supplement pay raises for teachers and other state employees.
- SB 7 would have provided a "right to cure" for employers for failure to pay fringe benefits in a timely manner under the Wage Payment and Collection Act. However, the legislation was rejected by the House of Delegates on a 56-43 vote.
- SB 474 would have prohibited government entities from disclosing certified payroll records of employers contracting with the state under the WV Jobs Act. The legislation passed the Senate, but ultimately was not considered by the House of Delegates.
- The State Senate once again sought to address paycheck withholdings in SB 335, which would have prohibited an employer from withholding any portion of an employee's wages or salary for political contributions or purposes in the absence of a written assignment. The legislation was parked in the wake of the teachers' strike, as education association representatives had objected that the changes would have unfairly targeted teachers' dues.
- The Legislature also sought to provide greater uniformity in labor and employment law through SB 458, which would have prevented local governments from enacting wage mandates above the state and federal minimums, or other local ordinances regulating the employer-employee relationship with respect to things such as scheduling, overtime and required paid leave. Unfortunately, end-of-session committee deadlines precluded full consideration of SB 458.
Over the last four years, the Legislature has shown it is extremely focused on eliminating outdated or unduly burdensome laws and regulations affecting employers in West Virginia. Based on the legislation that passed, and did not pass, it is clear the Legislature's pro-employer focus will continue into the near future. With the legislative session complete, it will now be Governor Justice's actions which determine just how positive the session was for West Virginia employers.