4.2 West Virginia Jobs Act & Alcohol/Drug-Free Workplace Act (WV Code §21-1C & §21-1D)
Key Takeaways
- The West Virginia Jobs Act (WV Code §21-1C) applies to all public improvement construction contracts valued at $500,000 or more funded in whole or in part by state or local public authority funds.
- Under the Jobs Act, at least 75% of the construction workforce on a covered public project must be qualified workers residing in the 'local labor market' (defined as all 55 WV counties plus out-of-state counties within 50 miles of the WV border).
- If local qualified workers are unavailable, the contractor must file a job order with WorkForce West Virginia, which has three (3) business days to refer qualified local workers before issuing an official Jobs Act Waiver.
- Non-compliance with the Jobs Act subjects contractors to civil penalties of $250 per day for each employee below the 75% local-residency threshold after receiving a notice of violation, escalating to $500 per day if the violation continues more than 14 calendar days (W.Va. Code §21-1C-6).
- The West Virginia Alcohol and Drug-Free Workplace Act (WV Code §21-1D) requires all public works bidders to submit a sworn affidavit certifying a written drug-free policy that mandates pre-employment, reasonable suspicion, post-accident, and annual random drug testing of at least 10% of the safety-sensitive workforce.
4.2 West Virginia Jobs Act & Alcohol/Drug-Free Workplace Act (WV Code §21-1C & §21-1D)
Publicly funded construction in West Virginia is subject to two critical legislative enactments designed to protect the economic interests of local workers and safeguard public safety on job sites: the West Virginia Jobs Act (WV Code Chapter 21, Article 1C) and the West Virginia Alcohol and Drug-Free Workplace Act (WV Code Chapter 21, Article 1D).
Both statutes establish mandatory conditions precedent for bidding, contracting, and performing construction services on public improvement projects funded by state, county, municipal, or school board authorities.
1. The West Virginia Jobs Act: Scope & Public Policy (WV Code §21-1C)
The West Virginia Jobs Act was enacted to ensure that public funds expended on state and local infrastructure directly benefit local resident workers and the local economy. The Act is enforced by the West Virginia Division of Labor.
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| WEST VIRGINIA JOBS ACT APPLICABILITY THRESHOLD |
| |
| PROJECT MONETARY THRESHOLD Any public improvement contract valued at $500,000 OR MORE. |
| |
| FUNDING SOURCE Funded in whole or in part by public funds from the State of |
| West Virginia, a county commission, municipality, county board |
| of education, or public authority/instrumentality. |
| |
| COVERED CONTRACTORS Applies equally to PRIME GENERAL CONTRACTORS and ALL TIERS |
| of SUBCONTRACTORS performing on-site construction work. |
| |
| FEDERAL EXEMPTION The statutory definition of 'public improvement' EXCLUDES |
| improvements funded, IN WHOLE OR IN PART, by federal funds |
| (W.Va. Code §21-1C-2(8)). |
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2. The 75% Local Labor Market Mandate & Geographic Boundaries
Under WV Code §21-1C-4(a), every covered contractor and subcontractor must hire at least seventy-five percent (75%) of the employees for the project from the local labor market — rounded off, with at least two employees from outside the local labor market permissible for each employer per project.
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| THE 75% LOCAL LABOR MANDATE & GEOGRAPHIC RULE |
| |
| +------------------------------------+ |
| | TOTAL PROJECT WORKFORCE | |
| | (On-Site Workers) | |
| +------------------------------------+ |
| | |
| +------------------------+------------------------+ |
| | (Minimum 75%) | (Maximum 25%) |
| v v |
| +-----------------------------+ +-----------------------------+ |
| | LOCAL LABOR MARKET | | NON-LOCAL WORKERS | |
| | RESIDENTS | | (Out-of-State / Area) | |
| +-----------------------------+ +-----------------------------+ |
| | |
| +-------------+-------------+ |
| | | |
| v v |
| +---------------+ +---------------+ |
| | ALL 55 WV | | BORDERING | |
| | COUNTIES | | COUNTIES | |
| | (Entire State | | (Within 50 | |
| | of WV) | | Miles of WV) | |
| +---------------+ +---------------+ |
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Statutory Definition of "Local Labor Market" (WV Code §21-1C-2)
The "local labor market" is defined as:
- Every resident of the State of West Virginia (all 55 counties).
- Any resident of any county in an adjacent bordering state (Ohio, Pennsylvania, Maryland, Virginia, or Kentucky) where any portion of the county boundary is located within fifty (50) miles of the West Virginia state border.
[!IMPORTANT] The 50-Mile Border Rule: Workers residing in surrounding states (e.g., Belmont County, OH; Greene County, PA; Allegany County, MD; Frederick County, VA; Boyd County, KY) are legally classified as "local labor market" workers under the Jobs Act because their counties lie within 50 miles of West Virginia. However, a worker from North Carolina, Florida, or central Indiana is non-local.
Statutory Rounding Allowance: The 75% figure is rounded off, and at least two employees from outside the local labor market are permissible for each employer per project (§21-1C-4(a)).
3. WorkForce West Virginia Job Service & Statutory Waiver Process
Contractors frequently encounter shortages of specialized craft workers (e.g., structural steel erectors, crane operators, certified pipe welders). The Jobs Act provides a formal statutory mechanism to obtain an official waiver under WV Code §21-1C-4(b)-(c).
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| WORKFORCE WV STATUTORY WAIVER PROCESS TIMELINE |
| |
| STEP 1: IDENTIFY LOCAL SHORTAGE |
| - Contractor determines local labor market cannot provide needed craft workers. |
| | |
| v |
| STEP 2: SUBMIT JOB ORDER TO WORKFORCE WEST VIRGINIA |
| - Contractor files a formal job order with WorkForce West Virginia (Job Service) |
| specifying trade classifications, job qualifications, wage rates, and start date. |
| | |
| v |
| STEP 3: THREE (3) BUSINESS DAY REFERRAL WINDOW |
| - WorkForce West Virginia has EXACTLY THREE (3) BUSINESS DAYS to locate, verify, and |
| refer qualified local workers from its statewide labor exchange. |
| | |
| v |
| STEP 4: ISSUANCE OF WAIVER CERTIFICATE |
| - If WorkForce WV cannot refer qualified local workers within 3 business days, it MUST issue |
| a formal JOBS ACT WAIVER CERTIFICATE. Contractor can now hire non-local workers legally. |
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Rules Regarding Waivers:
- Non-local workers employed pursuant to a valid WorkForce West Virginia waiver certificate are excluded from the penalty calculation and counted as excused.
- A waiver is craft-specific and project-specific; a waiver obtained for a crane operator cannot be applied to general laborers.
4. Jobs Act Certified Payroll, Residency Records & Civil Penalties
Recordkeeping & Certified Payroll Obligations (WV Code §21-1C-5)
To demonstrate ongoing compliance, every prime contractor and subcontractor on a covered $500,000+ public works project must:
- Maintain Certified Weekly Payrolls: Record employee names, addresses, craft classifications, hours worked, and gross/net wages.
- Residency Verification Documents: Collect and retain proof of physical residency for every on-site worker (valid state driver's license, voter registration card, utility bill, or state tax return).
- Filings & Retention: File waiver certificates and certified payrolls with the Division of Labor (§21-1C-5(b)), preserve payroll and residency records for audit, and retain drug-free workplace testing records for at least three (3) years after contract termination (§21-1D-7).
Civil Administrative Penalties for Non-Compliance (WV Code §21-1C-6)
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| JOBS ACT PENALTY & SANCTION STRUCTURE |
| |
| DAILY CIVIL MONETARY PENALTY $250.00 PER DAY FOR EACH EMPLOYEE below the 75% local |
| labor threshold, assessed AFTER a notice of violation; |
| $500.00 PER DAY if the violation continues more than |
| 14 calendar days after the notice (W.Va. Code §21-1C-6). |
| |
| EXAMPLE CALCULATION: If, after receiving a notice of violation, a GC employs 4 |
| unexcused non-local workers for 20 working days: |
| Penalty = 4 workers * $250/day * 20 days = $20,000.00 |
| |
| WITHHOLDING SANCTION The Commissioner directs the public authority to WITHHOLD |
| FINAL PAYMENT until penalties are paid or resolved. |
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5. The West Virginia Alcohol and Drug-Free Workplace Act (WV Code §21-1D)
Under WV Code §21-1D-1 et seq., maintaining an alcohol and drug-free workplace is a mandatory statutory prerequisite for bidding on and performing public improvement contracts in West Virginia.
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| ALCOHOL & DRUG-FREE WORKPLACE ACT STATUTORY FRAMEWORK |
| |
| STATUTORY CONDITION PRECEDENT No public authority may award a public improvement contract |
| to any bidder that has not submitted a SWORN AFFIDAVIT |
| certifying an active, compliant drug-free workplace policy. |
| |
| MANDATORY POLICY DISTRIBUTION A copy of the written drug-free policy must be distributed to |
| all employees and posted conspicuously on every project site. |
| |
| CERTIFIED TESTING PROTOCOL All testing must be conducted by a SAMHSA / HHS certified |
| laboratory and reviewed by a licensed Medical Review Officer. |
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Mandatory Drug and Alcohol Testing Components (WV Code §21-1D-5)
A compliant drug-free workplace program must incorporate all four statutory testing triggers:
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| MANDATORY DRUG-FREE WORKPLACE TESTING TRIGGERS |
| |
| 1. PRE-EMPLOYMENT TESTING Mandatory drug screening for all prospective employees prior |
| to performing any work on a public construction project. |
| |
| 2. REASONABLE SUSPICION Mandatory testing when supervisory personnel observe specific, |
| articulable physical, behavioral, or performance indicators. |
| |
| 3. POST-ACCIDENT TESTING Mandatory testing following any on-site accident resulting in |
| personal injury requiring medical treatment or property damage. |
| |
| 4. ANNUAL RANDOM TESTING Mandatory unannounced random testing of AT LEAST TEN PERCENT |
| (10%) OF EMPLOYEES performing safety-sensitive duties annually. |
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[!CAUTION] The 10% Random Testing Benchmark: Many national contractors maintain pre-employment and post-accident testing but fail to conduct unannounced random drug testing. Under WV Code §21-1D-5(1)(B), the program must randomly test at least 10% of the contractor's employees performing safety-sensitive duties annually. Failure to conduct random testing invalidates the policy and breaches the public contract.
6. Public Bidding Affidavit & Enforcement Penalties (WV Code §21-1D-7 & §21-1D-8)
| Compliance Step / Violation | Statutory Requirement & Legal Consequence | Citation |
|---|---|---|
| Bid Submission Affidavit | Must submit signed, notarized Drug-Free Workplace Affidavit with sealed bid packet. Bids without affidavit are disqualified as non-responsive. | WV Code §21-1D-5 |
| Subcontractor Verification | Prime contractor must verify that all subcontractors have submitted compliant affidavits prior to site mobilization. | WV Code §21-1D-5(b) |
| Contract Cancellation | The public authority may cancel the contract if the contractor fails to implement the policy, fails to provide implementation information on request, or provides false information. | WV Code §21-1D-4(2) |
| Criminal Penalties & Bid Exclusion | Misdemeanor fines: up to $1,000 (first offense); $1,000–$5,000 (second); $5,000–$25,000 plus one-year exclusion from bidding new public improvement projects (third offense within five years). | WV Code §21-1D-8 |
| Criminal False Swearing | Knowingly executing a false drug-free affidavit constitutes criminal false swearing under WV Code §61-5-2. | WV Code §61-5-2 |
7. Public Works Compliance Checklist
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| CONTRACTOR COMPLIANCE CHECKLIST FOR WV PUBLIC IMPROVEMENT WORK |
| |
| [ ] Step 1: Ensure written Alcohol and Drug-Free Workplace Policy meets all 4 testing triggers. |
| [ ] Step 2: Execute and submit sworn Drug-Free Workplace Affidavit with public bid documents. |
| [ ] Step 3: Audit project workforce for the 75% Local Labor Market threshold ($500k+ projects).|
| [ ] Step 4: Verify out-of-state workers reside within 50 miles of the WV border. |
| [ ] Step 5: File job orders with WorkForce WV for unavailable trades 3 days prior to hiring. |
| [ ] Step 6: Secure written Jobs Act Waiver Certificates for all non-local craft specialists. |
| [ ] Step 7: Collect and file driver's licenses / residency proofs for 100% of site workforce. |
| [ ] Step 8: Maintain certified weekly payroll records for 3-year post-completion archive. |
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A general contractor is awarded an $850,000 public library construction contract funded by a West Virginia county commission. Under the West Virginia Jobs Act (WV Code §21-1C), what is the minimum percentage of the on-site construction workforce that must reside in the local labor market?
Under the West Virginia Jobs Act (WV Code §21-1C-2), which of the following individuals qualifies as a resident of the 'local labor market'?
Under the West Virginia Alcohol and Drug-Free Workplace Act (WV Code §21-1D-5), what is the mandatory minimum percentage of safety-sensitive employees that a contractor must subject to unannounced random drug testing on an annual basis?