Email: Chapter 21, Article 5E
§21-5E-1. Legislative findings and purpose.
(a) The Legislature hereby finds and declares that it is the public policy of this state to provide all citizens equal opportunity for employment without regard to gender and that gender discrimination in hiring and promotion has played a role in maintaining a segregated workforce in this state.
(b) The Legislature hereby further finds and declares that the existence of wage differentials between equivalent jobs segregated by gender depresses wages and living standards, prevents the maximum utilization of the available labor resources and constitutes an unfair method of competition.
(c) It is therefore the purpose of this article to provide state employees equal pay for work of comparable character, regardless of gender, to create a commission to study both the methodology and funding for the implementation of a gender discrimination prohibition and to establish a procedure to remedy complaints of the failure to provide equal pay for work of comparable character to state employees.
§21-5E-2. Definitions.
For the purposes of this article:
(1) "Employer" means the State of West Virginia;
(2) "Employee" means any person hired for permanent employment, either full or part-time, or hired for temporary employment for more than six consecutive months, by any department, agency, commission or board of the state created by an act of the Legislature, except any person employed by the university of West Virginia board of trustees, the board of directors of the state college system or by any state institution of higher education, or a member of the State Police, an employee of any Constitutional officer who is not classified under the provisions of article six, chapter twenty-nine of this code and any employee of the Legislature. The definition of "employee" does not include any patient or inmate employed in a state institution;
(3) "Wages" means all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including the cash value of all compensation paid in any medium other than cash;
(4) "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 those services, or on the number of operations accomplished, or on the quantity produced or handled;
(5) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required to be paid to an employee pursuant to section three of this article;
(6) "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; and
(7) "Wage gap" means the difference between the median annual earnings of men and women.
§21-5E-3. 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 the rate other employees of the opposite sex are paid for work of comparable character, the performance of which requires comparable skills.
(b) Nothing in subsection (a) of this section prohibits the payment of different wages to employees where the 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 to 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 proceeding pursuant to this article.
(e) Except as otherwise provided in subsection (d), section six of this article, the provisions of this section shall not become effective until the Legislature approves for promulgation the rules proposed by the equal pay commission under the provisions of subsection (c) of said section.
§21-5E-4. Employee's right of action against employer.
(a) Any employee whose compensation is at a rate that is in violation of section three of this article has the right to file a grievance pursuant to the provisions of article two, chapter six-c of this code.
(b) No agreement for compensation at a rate of less than the rate to which the employee is entitled under this article is a defense to any action under this article.
(c) The rights and procedures provided under this section are subject to the provisions of the rules promulgated by the Equal Pay Commission in accordance with section six of this article.
(d) Except as otherwise provided in subsection (d), section six of this article, the provisions of this section shall not become effective until the Legislature approves for promulgation the rules proposed by the Equal Pay Commission under the provisions of subsection (c) of said section.
§21-5E-5. Establishment of the Equal Pay Commission; appointment of members.
(a) The Equal Pay Commission is continued. The commission shall be composed of the following thirteen members:
(1) Five members of the House of Delegates, appointed by the Speaker;
(2) Five members of the Senate, appointed by the President; and
(3) Three state employee representatives, including one labor union member representing state employees, as agreed to by the Speaker and President; 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.
(b) The commission shall seek input from and invite the Commissioner of Labor or his or her designee and the Director of the Personnel Division of the Department of Administration or his or her designee to attend meetings of the commission.
(c) One of the members of the Senate and one of the members of the House of Delegates, as designated by the President and the Speaker respectively, shall serve as cochairs of the commission.
(d) The members of the House of Delegates, the members of the Senate and the state employee representative members shall be appointed to serve two-year terms.
(e) Any member whose term has expired shall serve until his or her successor has been duly appointed. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any member is 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.
§21-5E-6. Commission's duties; promulgation of rules.
(a) The equal pay commission shall study both the methodology and funding for the implementation of a gender discrimination prohibition and shall prepare reports for submission to the Legislature which include:
(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 review of similar efforts to eliminate gender-based wage differentials implemented by other governmental entities in this and other states.
(b) The commission shall submit an initial report with recommendations for implementation of a gender discrimination prohibition to the Joint Committee on Government and Finance not later than July 1, 2000, and shall submit status reports annually thereafter.
(c) Based upon the findings and recommendations in its report, the commission may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this article.
(d) The Legislature finds that it has not fully assessed the potential cost to the state if the provisions of sections three and four of this article are implemented and that those provisions should not be implemented until a reasonable estimate of the amount of public funds that may be required for appropriation and expenditure as a result of the implementation can be calculated. Accordingly, notwithstanding any other provisions of this article to the contrary, the provisions of sections three and four of this article shall not become effective until enactment of general law specifically providing an effective date of implementation of those sections. During the interim period between the 2002 regular session of the Legislature and the 2003 regular session of the Legislature, the equal pay commission shall, in the manner prescribed by the Joint Committee on Government and Finance, meet and consult with the joint standing committee on the judiciary, the joint committee on finance and others as may be prescribed for the purposes of conducting a joint assessment of budgetary or other financial impact on the state if the provisions of sections three and four of this article are implemented. Prior to the 2003 regular session of the Legislature, those directed to conduct the joint assessment shall report their findings to the Joint Committee on Government and Finance and, if warranted, report any recommendations for the passage of legislation that would effectively lessen or eliminate the cost of implementation of sections three and four of this article in a manner that is consistent with achieving the purposes for which this article was initially enacted.