The 2017 Regular Session of the West Virginia Legislature has resulted in more pro-employer legislation, following the results of the 2015 and 2016 sessions. How successful this session has been for employers will depend on how many of the pending bills are signed into effect by Governor Jim Justice. This publication will summarize enacted legislation as well as legislation awaiting the Governor's signature.

WV Workplace Freedom Act (Senate Bill 330)

Senate Bill 330 amends the West Virginia Workplace Freedom Act, West Virginia Code §§ 21-5G-1, et seq., commonly referred to as the "Right to Work" law, by making technical corrections to certain definitions and repealing provisions relating to the statutory construction of the Act.

The Right to Work law is currently being challenged by several unions through the court system. The Circuit Court of Kanawha County has entered a preliminary injunction postponing enforcement of the law. Subsequently, the Attorney General has appealed that ruling to the Supreme Court of Appeals of West Virginia, where it is now pending. One issue in the appeal is whether two terms of the Act are so vague that they render the law unenforceable. Those terms are "state" and "Construction." This bill removes those terms from the law.

Senate Bill 330 passed both houses, but was vetoed by Governor Justice. Both houses then voted to override the Governor's veto, and the amendments will take effect on June 15, 2017. It is unclear how the amendments will impact the pending appeal before the West Virginia Supreme Court.

Changing the amounts of pre-judgment and post-judgment interest (House Bill 2678)

House Bill 2678, "Changing the amounts of prejudgment and post-judgment interest to reflect today's economic conditions," changes the rate of interest applicable to pre- and post-judgment interest. The Supreme Court of Appeals of West Virginia must set the interest rate annually and now, the rate set by the Court cannot exceed nine percent (9%) per year or be less than four percent (4%) per year.

This bill has been signed by Governor Justice and will take effect on January 1, 2018.

Second Chance for Employment Act (Senate Bill 76)

Senate Bill 76, referred to as The West Virginia Second Chance for Employment Act, allows persons convicted of certain nonviolent felonies to petition a court for the expungement of such convictions. If a person is granted an expungement then, as a matter of law, the conviction is deemed to have never occurred. Accordingly, a person whose non-violent criminal conviction has been expunged does not have to disclose the conviction on an employment application. However, any person applying for a position in which he or she would be engaging in the prevention, detection, investigation, prosecution or incarceration of persons for violations of the law must disclose any and all prior convictions, even those which have been expunged.

Senate Bill 76 has passed both houses and is awaiting Governor Justice's signature.

Striking employees are disqualified from receiving unemployment compensation benefits (Senate Bill 222)

Under Senate Bill 222, individuals who have left or lost their job due to a strike or other bona fide labor dispute will no longer be eligible to receive unemployment compensation benefits. This disqualification applies even if the employer continues operations with the use of non-striking employees, contractors or other personnel. However, a striking employee whose position has been permanently filled by another worker will be not be disqualified from receiving unemployment benefits. This legislation also clarifies that no individuals may be denied benefits by reason of a lockout.

The bill has been signed by Governor Justice and will take effect 90 days from its April 3, 2017 passage.

Repealing requirement for employer's bond for wages and benefits (Senate Bill 224) Since 1981, every employer engaged in construction work or the severance, production or transportation of minerals has been required to pay a wage bond to the State of West Virginia. Senate Bill 224 repeals the statutory provisions requiring wage bonds.

Senate Bill 224 has passed both houses and is awaiting Governor Justice's signature.

Limiting the use of wages by employers and labor organizations for political activities (Senate Bill 239)

Senate Bill 239 broadens existing limitations on the use of employee wages and agency shop fees for political activities by employers and labor organizations. This legislation prohibits employers from withholding or diverting any portion of an employee's wages or salary for use as contributions to any candidate or political committee, unless the employee requests such deductions on a form to be prescribed by the Secretary of State. Such requests will be valid for up to twelve (12) months.

Senate Bill 239 also makes it an unfair labor practice under West Virginia Code § 21-1A-4 for a labor organization to use any portion of the agency shop fees paid by an employee who is not a union member to make contributions or expenditures to influence an election, or to operate a political committee. A non-union employee may, however, authorize the labor organization to use his agency shop fees for such purposes. The bill defines "agency shop fees" broadly, as "any dues, fees, assessment or other similar charges, however denominated, of any kind or amount to the labor organization."

Finally, Senate Bill 239 also removes the words "union or club dues" as a permissible deduction under the Wage Payment and Collection Act, West Virginia Code §§ 21-5-1, et seq.

Senate Bill 239 has passed both houses and is awaiting Governor Justice's signature.

Covenants not to compete between physicians and hospitals (Senate Bill 402)

Senate Bill 402 addresses covenants not to compete in physician contracts. The title of this legislation suggests that it only applies to contracts between a physician and hospital; however, this legislation is much broader. Senate Bill 402 provides that a covenant not to compete in a contract between a physician and an employer, defined as "any person employing at least one individual in the state or any agent of an employer employing at least one individual in the state," must be limited to not more than one (1) year in duration and not more than thirty (30) road miles from the physician's primary place of practice with the employer. However, if the employer terminates the physician's employment, this legislation provides that the covenant not to compete shall become void and unenforceable.

The limitations set forth in Senate Bill 402 do not apply in two instances: (1) The sale of the physician's practice to the employer, in the form of assets, stock, or membership interests; and (2) contracts between physicians who are shareholders, owners, partners, members, or directors of a health care practice.

Senate Bill 402 applies only to contracts between a physician and his or her employer entered into, modified, renewed, or extended on or after July 1, 2017.

Senate Bill 402 has passed both houses and is awaiting Governor Justice's signature.

Excluding seasonal amusement park workers from the definition of employee (Senate Bill 606)

Senate Bill 606 excludes seasonal amusement park workers from the definition of "employee" under the Minimum Wage and Maximum Hours Standards Act, West Virginia Code §§ 21-5C-1, et seq.

Senate Bill 606 has passed both houses and is awaiting Governor Justice's signature.

The West Virginia Safer Workplace Act (House Bill 2857)

House Bill 2857, known as The West Virginia Safer Workplace Act, allows employers to test employees and prospective employees for drugs and alcohol. Specifically, this Act permits employers to test employees and prospective employees for drugs and alcohol and outlines policies and procedures related to the collection of samples, scheduling of tests and development of disciplinary procedures. Under the Act, employers are vested with the ability to permanently remove an employee from a sensitive position and reassign or terminate the employee's employment.

While the Act provides certain liability protections for employers, it also subjects employers to a potential legal claim for testing. The Act creates a rebuttable presumption that a test result was valid if the employer complied with the provisions of the Act, but it also creates a specific cause of action when an employer takes action against an employee with actual knowledge of a false positive test result, and ignored the true test result because it disregarded the truth and/or had willful intent to deceive or be deceived.

An employee who tests positive can forfeit eligibility for unemployment compensation benefits. Likewise, an employee injured while under the presence of drugs or alcohol will not receive workers' compensation benefits. However, for this to occur, the employer must satisfy certain notification requirements.

House Bill 2857 has passed both houses and is awaiting Governor Justice's signature.