Wage Theft Employee Misclassification Enforcement
The act updates and modifies laws pertaining to the payment of wages and employee misclassification, and the enforcement procedures and remedies for violations of those laws, as follows:
- Changes the penalties for failure to provide requested information to the division of labor standards and statistics in the department of labor and employment (DLSS) or for hindering or obstructing the director of the DLSS or other person authorized by the director in accessing an employer's premises from a misdemeanor criminal offense to a daily penalty of not less than $50 (sections 1 and 2 of the act);
- Directs the DLSS to transmit penalties it imposes to the wage theft enforcement fund (sections 1 through 5 and 10);
- Requires an employer to: Provide notice to an employee, within 10 days after the employment terminates, before deducting from wages or compensation any amount of money or property the employee failed to return or repay upon termination of employment and pay the employee the deducted amount within 14 days after the employee returns or repays the money or property if the employee did so within 14 days after notice is provided (section 6);
- Imposes automatic penalties of the greater of 2 times the amount of the unpaid wages or $1,000 on an employer that fails to pay all past-due wages within 14 days after a written demand or civil or administrative action for the past-due wages is sent to or served on the employer. If an employee shows that the employer's failure or refusal to pay wages was willful, the employer is subject to penalties equal to the greater of 3 times the amount of unpaid wages or $3,000. The act further states that an employer's second or subsequent failure or refusal to pay wages of the same or similar type within the 5 years preceding a claim is considered per se willful (section 7).
- If an employer makes a full legal tender of all amounts demanded in good faith within 14 days after a written demand is sent or an administrative claim or civil action is sent or served, the employee is required to dismiss the action (section 7);
- Eliminates the authority of a court to award an employer reasonable attorney fees and costs in an action in which the employee claimed wages in excess of the greater of $7,500 or the jurisdictional limit for small claims court and the employee does not recover an amount greater than the amount the employer tendered and instead permits a court to award an employer reasonable attorney fees and costs if, within 14 days after a written demand is sent or a civil action is served, the employer makes full legal tender of all amounts demanded in good faith for all employees and the employees ultimately fail to recover a total sum that is greater than the amount tendered (section 8);
- Allows the DLSS to award an employee reasonable costs incurred in an administrative claim when the employee recovers a sum that is greater than the amount the employer tendered, and, if the employee recovers more than $5,000 in unpaid wages, allows the DLSS to also award the employee attorney fees (section 8);
- Allows the director of the DLSS to use existing authority under labor laws to gather information pertinent to wage claims from employers, employees, and other persons or entities (section 9);
- Allows recovery of attorney fees, an additional fine of 50% of the amount of past-due wages, and a penalty of the greater of 50% of past-due wages or $3,000 from an employer that fails to pay an employee past-due wages within 60 days after the determination in favor of the employee (section 9);
- For a citation, notice of assessment, or order issued against an employer on or after January 1, 2023, requires the DLSS, upon request of an employee, to file a certified copy of the citation, notice, or order with the appropriate clerk of court, after which the clerk is required to enter the citation, notice, or order as a judgment of the court, and the judgment is sufficient to support the issuance of writs of garnishment if the judgment is wholly or partially unsatisfied (section 10);
- On or after January 1, 2023, authorizes the DLSS, either on its own initiative or within 60 days after receiving a written request from an employee, to issue a notice of administrative lien and levy, similar to a child support enforcement lien, when an employer fails to pay past-due wages, fines, or penalties, which lien attaches to the employer's real or personal property that is in the possession, custody, or control of another person (section 10);
- Allows an employee who alleges that the employee's employer discriminated or retaliated against the employee for filing or participating in a wage claim to file a civil action to seek relief, including back pay, reinstatement or front pay, payment of unlawfully withheld wages, interest on past-due wages, penalties, liquidated damages, injunctive relief, and attorney fees and costs. The DLSS, after an investigation of a discrimination or retaliation claim, may also order similar relief to an employee, other than attorney fees and costs (section 11).
- Establishes the worker and employee protection unit (unit) in the department of law to investigate and enforce wage theft and unemployment insurance and misclassification of employees claims under specified circumstances and requires the director of the DLSS to share with the unit any orders the director issued in the previous 12 months finding that an employer has misclassified employees (sections 12 through 15).
Section 16 appropriates $345,069 to the department of labor and employment for the 2022-23 state fiscal year to implement the act as follows:
- $314,019 for use by the DLSS for program costs, including an additional 3.4 FTE; and
- $31,050 to purchase legal services, which amount is reappropriated to the department of law to provide legal services to the department of labor and employment.
Section 16 also appropriates $95,200 to the department of law for the 2022-23 state fiscal year for use by consumer protection to implement the act, which amount assumes the department will require an additional 0.8 FTE.
(Note: This summary applies to this bill as enacted.)