The West Virginia Senate is on the cusp of passing its second bill in two weeks that would impact official workplace grievances filed by public employees.
Grievances are an opportunity, provided under current law, for public employees to win disputes against their employers without having to sue in court. The process can be faster and cheaper for workers than suing.
On March 18, the Republican-dominated Senate passed Senate Bill 566, which would end school employees’ chance of winning grievances if the state schools superintendent disagrees with the workers’ position.
Now up for Senate passage, likely Saturday, is Senate Bill 601. It would affect all public workers who can file grievances, including those working for state agencies and colleges — not just school workers.
The also-GOP-dominated House of Delegates has yet to take up either bill.
Senate Bill 601 would ban employees from filing grievances over actions their employers took “in accordance with executive orders issued by the governor related to declared states of preparedness or states of emergency.”
That, for instance, would ban grievances over Gov. Jim Justice’s ongoing COVID-19 state of emergency orders.
It would also require employees to get a notary to sign the grievances they file.
The bill would also newly require that administrative law judges, who rule on grievances in the third and final level of the grievance process, must postpone “all other proceedings” if the employer files a motion to dismiss the grievance. Those could be filed, for instance, to try to get rid of a grievance that allegedly isn’t something an employee can legally file a grievance over.
The judge would have to hold a hearing on that motion and grant or deny it — or rule on it without a hearing — before the grievance could continue.
The bill also says that if either the employer or the employee wins the grievance at its third and final level, then the winning side could ask the administrative law judge to order the loser to pay the winner’s legal costs. That would include the attorney’s fees.
The administrative law judge could only force this possibly hefty payment in cases where, as the bill puts it, the loser “presented a grievance or defense which lacked any basis in fact or law, was not brought in good faith, or was brought with malice or wrongful purpose, including, but not limited to, delay or harassment.”
Current law doesn’t generally allow for that.
Administrative law judge rulings can be appealed to the courts. If an employee wins there, they also have the chance to force their employer to pay their “court costs and reasonable attorney’s fees” for the cost of the court appeal only. But, under current law, it doesn’t work the other way around if the employer wins.
Sen. Mike Romano, D-Harrison, tried to amend the new legal cost payment issue out of the bill Friday. He originally succeeded, but a Republican then backtracked and called for a revote, and his amendment failed the second time.
Republicans had previously approved a couple Democrat-proposed amendments to this bill.
“The grievance procedures are designed to provide an inexpensive and speedy way to resolve disputes between public employees and their employers,” Romano said on the Senate floor.
He said some employees, particularly educators, “make a pittance of money.” He said that whether a grievance “lacked any basis in fact or law” was a matter of the administrative law judge’s opinion, yet such a finding could force the employee to pay the legal costs.
“Hopefully, they [the judges] would always do the right thing,” Romano said. “But, if they don’t — as human beings often are occasioned to do — our employees could be facing costs that could certainly bankrupt them, cost them their house, cost them their car, cost them the ability to put food on their children’s tables. Is that what we want to do?”
“What this is designed to do, is to dissuade anybody from bringing a grievance unless it’s absolutely clear that they’re going to win,” he said. “Because, otherwise, you’ll run this risk.”
Trump responded by noting that current law says: “The administrative law judge may make a determination of bad faith and, in extreme instances, allocate the cost of the hearing to the party found to be acting in bad faith.”
“I’ll concede the point that that doesn’t expressly address attorney’s fees, but it certainly addresses all other costs of the hearing,” Trump said. “Now that’s not in this bill we have before us, it’s already the law of West Virginia, and so the point of putting this language in the bill was to create a procedure for that to happen.”
But Trump never read aloud the line in current state law right after what he read.
That line says: “The allocation of costs shall be based on the relative ability of the party to pay the costs.”
The bill has no similar protection for workers in its legal cost shifting provision.
Trump noted the legal cost shifting provision the bill would add “goes both ways.” He said it would make the employer pay the worker’s fees for, among other things, using delay or harassment to defend against a grievance.
Romano said the stakes still weren’t even.
“Imagine how hard that’s going to be on the state employers, to have to pay a fine, how much that’s going to chill them, from putting up any defense they want to a grievance,” he said. “They don’t care, it’s our tax money, first of all, but secondly, most of these employees don’t have attorneys.”
The Senate has 23 Republicans and just 11 Democrats. Senate Majority Leader Tom Takubo, R-Kanawha, was absent, dropping Republicans to 22.
On the first vote on Romano’s amendment, all 11 Democrats were joined by eight of the Republicans, passing the amendment 19-14. The Republicans voting with the Democrats were Senate President Craig Blair, R-Berkeley, and Sens. Amy Grady, R-Mason; Bill Hamilton, R-Upshur; Mike Maroney, R-Marshall; Patrick Martin, R-Lewis; Patricia Rucker, R-Jefferson; David Stover, R-Wyoming; and Jack Woodrum, R-Summers.
But then Rucker, chairwoman of the Senate Education Committee and also the bill’s sole sponsor, moved to redo the vote.
The vote to reconsider succeeded, and Republicans then killed the amendment, 20-12. Grady and Stover stuck with the Democrats, but none of the other Republicans did and Sen. Robert Plymale, D-Wayne, was absent for the revote.