WEST virginia Legislature
2019 regular session
House Bill 2048
By Delegate Foster
[ Introduced January 9, 2019; Referred
to the Committee on Industry and Labor then the Judiciary.]
A BILL to amend and reenact §21-5C-1 of the Code of West Virginia, 1931, as amended, relating to the definition of an “employee” for purposes of payment of minimum wages, maximum hours, and overtime compensation; and exempting persons employed by seasonal recreational establishments from the definition of an “employee” for those purposes.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR EMPLOYEES.
As used in this article:
(a) “Commissioner” means the Commissioner of Labor or his or her duly authorized representatives.
(b) “Wage and hour director” means the wage and hour director appointed by the Commissioner of Labor as chief of the Wage and Hour Division.
(c) “Wage” means compensation due an employee by reason of his or her employment.
(d) “Employ” means to hire or permit to work.
(e) “Employer” includes 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 herein defined in any one separate, distinct and permanent location or business establishment: Provided, That prior to January 1, 2015, the term “employer” does not include any individual, partnership, association, corporation, person or group of persons or similar unit if 80 percent of the persons employed by him or her are subject to any federal act relating to minimum wage, maximum hours and overtime compensation: Provided, however, That after December 31, 2014, for the purposes of §21-5C-3 of this code, the term “employer” does not include any individual, partnership, association, corporation, person or group of persons or similar unit if 80 percent of the persons employed by him or her are subject to any federal act relating to maximum hours and overtime compensation.
(f) “Employee” includes any individual employed by an
employer but shall not include: (1) Any individual employed by the United
States; (2) any individual engaged in the activities of an educational,
charitable, religious, fraternal or nonprofit organization where the
employer-employee relationship does not in fact exist, or where the services
rendered to such organizations are on a voluntary basis; (3) newsboys,
shoeshine boys, golf caddies, pinboys and pin chasers in bowling lanes; (4)
traveling salesmen and outside salesmen; (5) services performed by an
individual in the employ of his or her parent, son, daughter or spouse; (6) any
individual employed in a bona fide professional, executive or administrative
capacity; (7) any person whose employment is for the purpose of on-the-job
training; (8) any person having a physical or mental handicap so severe as to
prevent his or her employment or employment training in any training or
employment facility other than a nonprofit sheltered workshop; (9) any
individual employed in a boys or girls summer camp; (10) any person 62 years of
age or over who receives old-age or survivors benefits from the Social Security
Administration; (11) any individual employed in agriculture as the word
agriculture is defined in the Fair Labor Standards Act of 1938, as amended;
(12) any individual employed as a firefighter by the state or agency thereof;
(13) ushers in theaters; (14) any individual employed on a part-time basis who
is a student in any recognized school or college; (15) any individual employed by
a local or interurban motorbus carrier; (16) so far as the maximum hours and
overtime compensation provisions of this article are concerned, any salesman,
parts man or mechanic primarily engaged in selling or servicing automobiles,
trailers, trucks, farm implements, aircraft if employed by a nonmanufacturing
establishment primarily engaged in the business of selling such vehicles to
ultimate purchasers; (17) any employee with respect to whom the United States
Department of Transportation has statutory authority to establish
qualifications and maximum hours of service; (18) any person employed on a per
diem basis by the Senate, the House of Delegates, or the Joint Committee on
Government and Finance of the Legislature of West Virginia, other employees of
the Senate or House of Delegates designated by the presiding officer thereof,
and additional employees of the Joint Committee on Government and Finance
designated by such joint committee;
or (19) any person employed as a
seasonal employee of a commercial whitewater outfitter where the seasonal
employee works less than seven months in any one calendar year and, in such
case, only for the limited purpose of exempting the seasonal employee from the
maximum wage provisions of §21-5C-3 of this code; or (20) any person
exempted from the definition of “employee” for the purpose of the Minimum Wages
and Maximum Hours provisions of The Fair Labor Standards Act of 1938, as
amended, by the exemption for employees of seasonal amusement or recreational
establishments under 29 U.S.C. § 213(a)(3).
(g) “Workweek” means a regularly recurring period of 168 hours in the form of seven consecutive 24-hour periods, need not coincide with the calendar week, and may begin any day of the calendar week and any hour of the day.
(h) “Hours worked” means the hours for which an employee
is employed: Provided, That in determining hours worked for the purposes
of §21-5C-2 and §21-5C-3 of this code, there shall be excluded any time spent
in changing clothes or washing at the beginning or end of each workday, time
spent in walking, riding or traveling to and from the actual place of
performance of the principal activity or activities which
employee is employed to perform and activities which are preliminary to or
postliminary to said the principal activity or activities,
subject to such exceptions as the commissioner may by rules and
NOTE: The purpose of this bill is to exclude seasonal amusement park workers from the definition of “employee” for purposes of payment of minimum wages, maximum hours, and overtime compensation.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.