W. Va. Code R. § 43-1-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 43-1-5 - Prevailing Wage Established At Regular Intervals; How Determined; Hearings On Objections And Judicial Review

(a) The Department of Labor, from time to time, shall investigate and determine the prevailing hourly rate of wages in the localities in this State. Determinations thereof shall be made annually on the first day of January of each year and shall remain in effect during the successive year: Provided, however, That such rates shall not remain in effect for a period longer than fifteen (15) months from the date they are published.

In determining such prevailing wage rates, the Department of Labor may ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and such rates as are paid generally within the locality of this State where the construction of the public work is to be performed.

(b) A copy of the determination so made shall be filed with the Secretary of State under the provisions of this Act and chapter twenty-nine-a, (State Administrative Procedures) of the Code of West Virginia. Copies shall be supplied to all persons requesting same within ten (10) days after such filing or as provided for in chapter twenty-nine-a of the Code of West Virginia.

(c) At any time within fifteen (15) days, after such filing, any affected person may object, in writing, to the determination by filing such written notice with the Commissioner stating specific grounds of the objection.

(d) Within ten (10) days of the receipt of such objection, the Commissioner shall set a date for a hearing and that date shall be within thirty (30) days after receipt of the objection by written notice as to the time and place for said hearing, and such notice shall be at least ten (10) days prior to the date set so as to enable the objector to be present.

(e) Within ten (10) days of the conclusion of such hearing the Commissioner shall rule and make a decision based upon evidence presented. Such decision shall be filed with the Secretary of State and a copy to all parties by personal service or registered mail.

(f) Any person affected may appeal the aforementioned decision to the Minimum Wage Rate Board within ten (10) days after such filing. The Board shall hear the appeal within twenty (20) days in Charleston and shall render its decision within ten (10) days after the conclusion of the hearing.

(g) Any party affected by the proceedings in Subsection (g) may, within thirty (30) days, appeal the Board's decision to the Circuit Court of the county wherever the project is to be performed. The decision of such Circuit Court may be appealed to the Supreme Court of West Virginia by any person affected thereby in the manner provided by law for appeals in civil action.

(h) This subsection will illustrate the proceedings set forth in Subsection (a) through (h) of this section.

(1) The Commissioner files the determined wage rates on January 1. If by January 16 (within fifteen (15) days) an affected party protests or objects, then the Commissioner by January 26 (within ten (10) days) sets a date for the hearing. This hearing cannot be set for a date later than February 5 (ten (10) days prior to hearing date).

(2) If the hearing is concluded on February 15, a decision must be rendered by February 25 (within ten (10) days) and certified as provided.

(3) Any person affected may appeal to the Minimum Wage Board no later than March 7 (within ten (10) days) and the Board shall hear the appeal by March 27 (within twenty (20) days) and the Board shall render a decision by April 6 (within ten (10) days).

(4) Any person affected by the Board's decision may appeal to the Circuit Court of the county wherein the project is contemplated at a date no later than May 6 (within thirty (30) days) and the Circuit Court's decision may be appealed to the Supreme Court of Appeals of West Virginia in the manner provided by Law for appeals in civil actions.

(i) To further simplify this procedure, the following table should be studied:

January 1 - Wage rates are determined

January 16 - Objection (within fifteen (15) days)

January 26 - Commissioner sets hearing date (within ten (10) days)

February 5 - Objector (notified ten (10) days prior to hearing)

February 15 - Hearing (within thirty (30) days after objection)

February 25 - Commissioner's decision (within ten (10) days after hearing)

March 7 - Appeal to Minimum Wage Rate Board (within ten (10) days)

March 27 - Hearing by Board (within twenty (20) days)

April 6 - Decision by Board (within ten (10) days)

May 6 - Objector's appeal to Circuit Court (within thirty (30) days)

Further appeal as provided by law.

Explanation: Maximum periods are used to illustrate and this does not mean that an objection cannot be made on January 1, (the same date on which rates were filed,) and a hearing set on the same day, (if the objectors agree that they can be present,) and the Commissioner can render a decision on the same day.

(j) Pending the decision on appeal, the rates for the preceding year shall remain in effect.

W. Va. Code R. § 43-1-5