Debriefing the 2022 WV Regular Legislative Session – Labor
By Brian J. Skinner, Esq.
As with previous years with a Republican majority in both chambers, few bills could in any way be considered pro-labor. Unlike many previous years, however, there was no significant effort to negatively impact employee rights.
Legislation affecting the employer-employee relationship includes Senate Bill 245, which amends the current provisions of the Wage Payment and Collection Act regarding the use of “payroll card accounts.”
Payroll cards function like pre-loaded debit cards. At the end of each pay period, employers transfer an employee’s wage or salary directly to the card so employees can access funds immediately. Like debit cards, payroll cards can be used to withdraw funds from ATMs and to shop, receive cash back, or pay bills automatically.
The bill removes a requirement in current law that payment by means of a payroll card must be agreed upon in writing by both the employer and employee. Instead, if an employer compensates its employees using payroll cards, the employer must ensure that the employee has the ability to make at least one withdrawal or transfer from the payroll card per pay period without cost or fee to the employee for any amount contained on the card.
Additionally, employers using payroll cards, must ensure the employee can make in-network withdrawals or transfers from the payroll card without cost or fee to the employee for any amount contained on the card and provide full written disclosure of any applicable fees associated with the payroll card.
If an employee fails to provide the employer with information necessary to directly deposit the employee’s compensation, the employer may pay the employee with a payroll card.
The bill will become effective June 9, 2022.
House Bill 4242 gave legislative approval to West Virginia Department of Labor Rules implementing the provisions of Senate Bill 435, which was enacted during the 2021 regular legislative session. That bill expanded the class of persons authorized to issue child-labor permits for children 14 and 15 and age certificates for children 16 and 17 under the Child Labor Act. The rule became effective on March 8, 2022.
Other legislation impacting labor includes House Bill 4408, which extends the existing authority of the Director of the Division of Natural Resources to enter into third-party contracts for the financing, construction, and operation of recreational, lodging, and ancillary facilities to all West Virginia state parks, state forests, and state rail trails except Watoga State Park.
A bill the Governor previewed during his State-of-the-State Address, House Bill 4502, enacts the BUILD WV Act to provide incentives to promote the development of residential housing properties in the state. “BUILD” is an acronym for “Better United in Long-term Development.” The goal of the legislation is to assist in the growth of communities across the state and to attract new housing development.
BUILD WV will offer up to three types of tax credits as incentives for housing developers, including a sales-tax exemption for building materials, a 10-year property value adjustment refundable tax credit, and a potential municipal B&O tax exemption.
Cabinet secretaries from the state’s departments of Economic Development, Commerce, and Tourism will designate certified districts where housing needs are not being met. Developers then will apply to the West Virginia Department of Economic Development for residential housing projects to be certified like Tourism Development Act Tax Credit projects.
The Senate passed two bills during the session that would make major changes to the unemployment safety net in West Virginia only to see them die in the House of Delegates.
Senate Bill 2 passed the Senate 20-14. It would have reduced the eligibility for benefits from 26 to 12 weeks if the unemployment rate is below 5.5%. The rate would go up an additional week for each half-percent the unemployment rate goes up, capping at a maximum of 20 weeks.
Senate Bill 3, which passed the Senate 23-11, would have required four specific job-search activities per week for people receiving unemployment benefits. The activities range from registering at job-placement offices, filling out applications for employers with openings, taking a civil-service exam, or attending job fairs, among others. People failing to show proof of those activities could be ruled ineligible for benefits under the bill.
Senate Bill 3 would have allowed part-time work, up to 30 hours a week, while receiving full unemployment. The provision was intended to help people continue looking for full-time work that is comparable to what they had previously.
Supporters of the bills said they would lower costs for businesses, making the state more competitive economically while also providing specific responsibilities for those seeking work. Opponents contended the measures are punitive and do nothing to address what Workforce West Virginia officials testified in committee were the three most common barriers to employment in the state: access to childcare, transportation, and job readiness.
After getting to the House of Delegates, Senate Bill 2 was amended by the Finance Committee, but after reaching the floor it was placed on the inactive House Calendar, where it died when the Legislature adjourned on the 60th day. Senate Bill 3, on the other hand, was referred to the Finance Committee and was not taken up before the session expired.
Other bills that did not have enough support for enactment included Senate Bill 7, which was another attempt by the Senate to amend current law related to damages for medical monitoring. Previous attempts to pass similar legislation failed during the 2021 regular session when Senate Bill 569 was rejected by the House of Delegates and in 2019 when House Bill 2670 died on the final night of the session in a conference committee. Senate Bill 7 was moved to the inactive House calendar two days before the expiration of the regular session and didn’t get a vote before the 60th day.
A bill establishing uniform requirements for restrictive employment agreements, Senate Bill 453, also failed to get a vote before the clock ran out on day 60. Although SB453 received a favorable recommendation from the Senate Judiciary Committee, an attempt by Senator Robert Karnes to amend the bill on the floor resulted in it being referred to the Committee on Rules, where it did not emerge before the session ran out.
Finally, House Bill 4465, would have expanded the application of the apprenticeship training tax credit for tax years beginning on and after Jan. 1, 2023. Currently, the tax credit is applicable to only apprentices in the construction trades. The bill passed the House but was never taken up by the Senate Finance Committee.
Brian J. Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.