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February 11, 2008
The WV Legislature sets certain deadlines during the 60-day legislative
session. The 41st day, February 18, is the last day to introduce
bills in the House and Senate. There are still a number of bills
waiting introduction so there will be a push to get bills out
of bill drafting by Monday. The 47th day, February 24, is when
bills are due out of committees in their house of origin. The
50th day, February 27, is the last day to consider a bill on third
reading in its house of origin. Committees will be working overtime
this week and next to review and pass bills out to the full House
or Senate for full debate. Bills the CAWV has been working on
this week appear below.
PUBLIC PRIVATE BILL IN ROADS SUBCOMMITTEE
A subcommittee of the House Roads and Transportation Committee
met Friday and again today to review the H.B. 4476, the Public
Private Transportation Facilities Act. The CAWV and WVDOH have
been working to craft legislation that allows the WVDOH to pursue
PPP projects. The CAWV has opposed previous public private bills
that allowed State Road Funds to be transferred to a PPP project,
thus reducing the amount of available dollars for the state's
core construction and maintenance programs. This bill specifically
states that no State Road Funds can be used in a PPP venture.
Any public assistance would have to come from a transfer from
the state's General Fund or from federal funds specifically earmarked
in a federal authorization and/or appropriation bill for a transportation
facility to be acquired as a PPP project. Transportation Secretary
Paul Mattox has told the CAWV and subcommittee members that if
Congress makes a special appropriation, the WVDOH may want to
provide the state match if the match would help facilitate making
the project feasible. The bill does not require the WVDOH to match
rather than give them the option if the local match would help
make a project feasible. Under this scenario, if Congress earmarked
$50 million for Route 9, the WVDOH could provide the 20 percent
state match, or $10 million.
The WVDOH notes that if there is not a special allocation the
WVDOH would be spending $50 million on Route 9-$50 million for
one project that would result in $50 million less for paving,
small bridges, guardrail and other highway projects. The WVDOH
believes getting PPP funding from either a state general fund
transfer or special Congressional allocation will free up much
more dollars for other state and federal construction projects.
The bill provides that state prevailing wages be paid and that
competitive bids be solicited for each construction contract in
excess of $25,000.
Subcommittee members had a number of questions and another meeting
is scheduled for Wednesday.
SENATE EDUCATION COMMITTEE TO DISCUSS SCHOOL
BOND PROPOSAL
The Senate Education Committee Tuesday is expected to review
S.B. 297, Gov. Joe Manchin's bill to authorize the School Building
Authority to issue revenue bonds from the State Excess Lottery
Fund. The bill would take the $19 million the SBA gets annually
on a pay-as-you-go basis for school construction project and use
it for debt service on bonds. The SBA would sell about $200 million
in bonds in two years and would issue another $200 million when
the current bonds are retired in 2014. This would provide between
$60 million and $75 million through 2025. The benefit of the governor's
proposal is that it will eliminate the boom/bust cycle of school
construction. In the past, the state or local boards of education
issue bonds and the projects are completed within three years,
with little or no projects for the next five to seven years. S.B.
297, will provide a consistent funding level so contractors will
know exactly how much school construction will be performed; allowing
contractors to better plan their workload, personnel and equipment.
There appears to be support for the proposal in both the House
and Senate but there is always skepticism when considering future
state bond debt. The bill, if passed out of the Education Committee,
goes to Senate Finance.
MEMBERS RECEIVE LEGISLATIVE ALERT ON MANDATORY
HEALTH INSURANCE BILL
CAWV members have been calling their senators this week to voice
objections to S.B. 549, the bill requiring contractors and subcontractors
working on public works projects to provide mandatory health insurance
for at least 80 percent of their employees on the project. The
bill has been the subject of numerous meetings this week to determine
whether it will move in the Senate. The CAWV is opposed to the
bill for a number of reasons. These include:
– The Employee Retirement Income Security Act of 1974 ("ERISA")
supersedes any and all
state laws that relate to any employee benefit plan covered by
ERISA. Any state statute which requires an employer to establish
a health plan would be superseded by ERISA and the effect would
be that employers would not be required to establish health plans
in order to comply with school construction will be performed,
allowing contractors to better plan their workload, personnel
and equipment.
– Many, if not most, employees on public works construction
projects do not work those projects exclusively. For them, the
prevailing wage health care component isn't nearly enough money
to cover monthly health care premiums.
– To fully fund monthly premiums, legislation would have
to provide for some combination of the following to:
• Requiring employees to pay the portion not covered by
prevailing wage benefits from their own pocket,
• Providing a state subsidy to make up the difference
• Assessing employers an additional payroll tax
• Providing some other funding source
• A mandatory health care plan containing multiple funding
sources, covering employees working for multiple employers on
covered and non-covered projects, with varying rates of prevailing
wage benefit depending on location, would require tracking all
of this on an individual-by-individual basis and massive record-keeping.
Any legislation should provide funding for this.
One of the most important reasons is that smaller contractors
and subcontractors would be denied access to bid and subcontractor
on local, county or state public works construction projects.
A contractor would have to meet the 80 percent requirement based
on the number of people on the job. If the general contractor
had to use his subs to help meet the quota, he could only hire
subs that provide health insurance. This would exclude a number
of contractors and subcontractors available for subcontracting
work.
All members should have received the Legislative Alert. If not,
please contact the CAWV office at 304-342-1166 or email Mike Clowser
at mclowser@cawv.org
BUSINESSES AFFECTED BY MANDATORY SICK LEAVE
BILL
H.B. 4447 has been introduced in the House of Delegate that would
require employers to provide paid sick leave days. For employers
who have more than 15 workers, the bill would mandate that they
provide up to seven sick days a year, depending on whether the
worker is part-time, seasonal or full-time. The state Commissioner
of Labor will have inspection and enforcement powers. Specifically,
the bill includes these provisions:
(d) The commissioner is authorized and empowered to file criminal
complaints against persons whom the commissioner has reasonable
cause to believe have committed any offense created or defined
by the provisions of this article.
(e) The commissioner is authorized and empowered to institute
civil actions seeking appropriate injunctive relief to compel
an employer subject to this article to comply with the provisions
of this article. The bill also has other onerous provisions, including
provisions to provide an aggrieved employee with monetary penalties
and "treble damages."
The legislation is being pushed by representatives of the service
workers union organization, which broke off from the national
AFL-CIO last year.
"This bill, if enacted, will just put a big negative mark
over our state and likely will put our state out of bounds for
business investment and continued small business expansion,"
said Steve Roberts, Chamber President in the Chamber's February
8, legislative report. Compliance with the bill's provisions will
create a logistical and paperwork nightmare for all employers,
will increase their costs and probably will drive some employers
out of the state, he added. "This mandate runs contrary to
ongoing efforts to make our state open for business. I am hopeful
our lawmakers will realize the intent of this proposal and will
focus on other more important issues that are needed in order
to improve our business climate and provide more job opportunities
for more West Virginiana," Roberts added.
WORKERS' COMPENSATION BILLS
A number of legislative proposals have been introduced in the
2008 session, and many of these are related to the ongoing privatization
of Workers' Compensation. Some of the bills, if enacted, would
provide the Legislature with reporting authority, and, thereby,
might complicate efforts to entice private carriers to offer Workers'
Compensation coverage. The state's workers' compensation market
is scheduled to be open for full private-sector competition on
July 1, 2008. The Chamber is currently reviewing the pending proposals
and will carefully monitor and report on developments. One of
these is (S.B. 472/H.B. 4381), which would provide for development
of a plan by the Insurance Commissioner to provide workers' compensation
coverage to employers who are unable to procure coverage in the
voluntary market and to include workers' compensation insurance
under the Guaranty Association Act in order to provide a means
of paying claims when a workers' compensation insurer becomes
insolvent.
DELIBERATE INTENT STATUTE
(S.B. 587) has been introduced to stem the growing number deliberate
intent lawsuits, which not only are exposing businesses to significant
legal costs and risks but also are threatening to undermine the
state's "no-fault" Workers' Compensation program. Increases
in these lawsuits has taken place because of West Virginia Supreme
Court interpretation that says "deliberate intent" may
be considered as an "alleged" factor in workplace injuries.
This theory, which exposes employers to massive liability claims,
means that workplace injury claims will move out of the Workers'
Comp system and back into the courts of litigation. The West Virginia
Legislature need to correct this matter by limiting deliberate
intent civil actions to traumatic injuries only, eliminating the
five-part test and excluding exposures to hazardous substances
for deliberate intent civil actions. The State Chamber supports
S.B. 587 and is working with a broad coalition of diverse groups
on this issue.
House and Senate bills can be accessed from the CAWV's home page
at www.cawv.org. Members can view each day's proceedings to see
what legislation is introduced that affects the construction industry.
A summary of each week's activities will be uploaded on Monday
morning.
Below is a list of bills that have been introduced this week
that have an impact on the construction industry or some CAWV
members. Anyone needing further information can contact Mike Clowser
at (304) 342-1166 or email mclowser@cawv.org.
HOUSE BILLS
H. B. 4409 Del. Stephens, Reynolds, Rodighiero, Eldridge, Ellis
and Hrutkay-Requiring rest periods for employees during each four
hours of work-To Industry and Labor, Economic Development and
Small Business then Judiciary
H. B. 4444 Del. Miller, C., Lane, Ashley, Hamilton, Andes, Porter,
Sumner, Carmichael, Cowles and Sobonya-Reducing the corporate
net income tax rate to five point nine percent effective the first
day of July, two thousand eight (FN)-To Finance
H. B. 4455 Del. Fleischauer, Marshall, Beach and Shook-Relating
to fees and expenditure for county development-To Political Subdivisions
then Finance
H. B. 4457 Del. Pethel, Williams, Ennis, Perry, Kominar, Evans,
Azinger, Stephens and Varner-Including roads used by multiple
families in the state road system-To Roads and Transportation
then Finance
H. B. 4458 Del. Evans {By Request}-Removing the section of code
that limits the use of certain types of vehicles on highways between
sunset and sunrise-To Roads and Transportation then Judiciary
H. B. 4476 Del. Hrutkay, Tucker, Martin, Swartzmiller, Poling,
D., Stalnaker and Craig-Public-Private Transportation Facilities
Act-To Roads and Transportation then Judiciary
H. B. 4482 Del. White, Kominar, Barker, Perdue and Browning-Allowing
payments from the Parkways Authority to the Hatfield-McCoy Regional
Recreation Authority to continue past nine-year limitation-To
Agriculture and Natural Resources then Finance.
H. B. 4497 Del. Proudfoot, Varner, Kominar and Stalnaker-Requiring
certification of correctness as to design, construction and performance
of domestic and commercial liquified petroleum gas-consuming equipment
and appliances-To Industry and Labor, Economic Development and
Small Business then Judiciary.
H. B. 4501 Del. Manchin, Perdue, Hrutkay, Shook and Schadler-Relating
to the Water Resources Protection and Management Act-To Judiciary-{Interim
Bill}
H. B. 4511 Del. Wysong, Tabb, Blair, Miller, J., Cowles, Michael,
Duke, Williams, Barker, Shaver and Long-Relating to zoning ordinance
adoption by election or otherwise-To Judiciary
SENATE BILLS
S. B. 568 Sen. Hunter, McCabe, Unger, Foster, Helmick, White,
Edgell, Bailey, Kessler, Wells and Love-Establishing Green Buildings
Act-To Government Organization then Finance
S. B. 584 Sen. Oliverio-expanding membership of boards of zoning
appeals-To Government Organization then Finance
S. B. 588 Sen. Hunter-preventing excess spoil or overburden near
certain streams-To Energy, Industry and Mining then Natural Resources
S. B. 641 Sen. Tomblin (Mr. President), Unger, Fanning, Green,
Helmick and Hall-Creating Water Resources Protection and Management
Act-To Natural Resources then Judiciary
S. B. 643 Sen. McCabe, Plymale, Foster, Oliverio, Facemyer and
Barnes-Creating Public-Private Transportation Facilities Act of
2008-To Transportation and Infrastructure then Finance
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