Category Archives: Pending legislation

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

House Bill 2770, which was recently introduced into the West Virginia House of Delegates, would create the “Flexible Leave Act” to allow employees to take already earned paid leave, and to use that leave for paid time off for an illness of the employee or the employee’s “immediate family”. The bill does not give employees any additional paid leave—it only allows them to take their paid leave that they have already earned under their employers’ policies, and allows the flexibility (hence the name, “Flexible Leave Act”) to take leave that may have been intended for another purpose, such as earned vacation time, and apply it for the different purpose of their own or an immediate family member’s illness.

On January 24, 2011, Delegates Caputo, Fragale, Hatfield, Martin, and Moye introduced House Bill 2770, which is being referred to the Committee on Energy, Industry and Labor, Economic Development and Small Business then Finance. You can keep track of the progress of the bill by going to the Bill Status page and entering 2770 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the House Members page and pick the member from a drop-down list. For those of you who are interested in finding out more about the legislative process, the Legislature has a “How a Bill Becomes Law” page.  The Legislature also has a very nice photo gallery of the Capitol Building.

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Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

Pending West Virginia legislation would, if passed, extend the time employers have to issue a terminated employee’s final paycheck, from the current 72 hours after discharge to the next regular pay day.

On January 28, 2011, Senators Palumbo and Klempa introduced Senate Bill 339, which is being referred to the Labor and Finance Committees. You can keep track of the progress of the bill by going to the Bill Status page and entering 339 in the “Enter Bill Number” field. For information on the bill’s sponsors, or on any other members of the Senate, you can go to the Senate Members page and pick the member from a drop-down list.

Senate Bill 339 would amend the WV Wage Payment and Collection Act, which deals in part with the obligation of an employer to issue a final paycheck to an employee within a certain period of time.  The Wage Payment and Collection Act currently sets two different deadlines, depending on whether the employee resigned or was discharged.

  • Section 21-5-4(b): If an employee is discharged, the employer must pay the employee all earned wages within 72 hours after the discharge.
  • Section 21-5-4(c): if the employee resigns, the employer must pat the employee all earned wages by the next regular payday, either through “regular channels” or, if the employee requests, by mail. There is this additional variation where the employee resigns: if the employee provides “at least one pay period’s notice of intention to quit”, then the employer must pay the employee all earned wages “at the time of quitting” (which is the final day worked after giving notice).

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Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

Insurance companies have been urging the West Virginia Legislature to pass legislation to overturn the West Virginia Supreme Court’s decision in Michael v. Appalachian Heating, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Virginia Supreme Court held that the West Virginia Human Rights Act prohibited discrimination by an insurance company in settling claims covered by an insurance policy.

The Michael Decision

Generally, the Human Rights Act prohibits discrimination (1) in the workplace, (2) in places of public accommodation (like hotels, shopping centers), and (3) in connection with transactions involving housing and real estate (like renting apartments and buying houses).

But at issue in Michael was section 5-11-9(7) of the Human Rights Act, which was not limited to those three categories of activity. Here is the relevant language in section 5-11-9(7)(A);

It shall be an unlawful discriminatory practice [based on race, religion, color, national origin, ancestry, sex, age, and disability] . . .

(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:

(A) Engage in [1] any form of threats or reprisal, or to [2] engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or [3] to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section . . . .

In subpart (7)(A) above I have bracketed the three specific causes of action (legal theories) which the Supreme Court said are discernible in subpart (7)(A). I have also bolded the second cause of action, which was the key cause of action at issue in the Michael case.

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Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

USSupremeCourtRightFountain 4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).

This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

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West Virginia Legislature May Force Employers to Give Employees Access to Their Personnel Files

WVLegislature 3/10/09: In the West Virginia Legislature, HB 3032, introduced on March 10, 2009, would give employees the right to review their personnel files.  The legislation has not been passed, and in prior legislative sessions, essentially the same bill was introduced without having been passed.

Many people have the incorrect understanding that, in West Virginia, an employer is legally required to allow an employee to review the employee’s personnel file. There is currently no such legal requirement, but the pending HB 3032 will change that if it is passed.

You can review the full text of the bill, and monitor its status on the Legislature’s site.

Update 8/1/10: As of this date, the West Virginia Legislature has not passed this bill. There is still no general requirement forcing employers to show employees their personnel files.