Chapter 306
2012 -- H 7509 SUBSTITUTE A
Enacted 06/20/12
A N A C T
RELATING TO
LABOR AND LABOR RELATIONS - PAYMENT OF WAGES
Introduced By: Representatives Ucci, Williams, Walsh, Tanzi, and Lally
Date Introduced: February 09, 2012
It is enacted by the
General Assembly as follows:
SECTION
1. Section 28-12-19 of the General Laws in Chapter 28-12 entitled "Minimum
Wages" is hereby
amended to read as follows:
28-12-19. Liability
to employee for substandard wages. Actions for relief. -- Any
employer who pays any employee less than the
applicable wage rate to which the employee is
entitled under or by virtue of this chapter shall be
liable to the affected employee for the full
amount of the wage rate, less any amount actually paid
to the employee by the employer, and for
costs and the reasonable attorney's fees that may be
allowed by the court. Any agreement between
the employee and the employer to work for less than
the wage rate shall be no defense to the
action. Any
person aggrieved by a violation of this chapter shall be entitled to relief as
provided
in chapter 28-14 (“Payment of Wages”).
SECTION
2. Section 28-14-19 of the General Laws in Chapter 28-14 entitled "Payment
of Wages" is hereby
amended to read as follows:
28-14-19.
Enforcement powers and duties of director of labor and training. -- (a)
It
shall be the duty of the director to insure compliance
with the provisions of this chapter 28-14 and
28-12.,
to The director or his or her
designee may investigate any
violations of this chapter,
thereof, to
institute or cause to be instituted actions for the collection of wages,
and to institute
action for penalties provided under this chapter.
or other relief as provided for within and
pursuant to those chapters. The director or his or her authorized
representatives are empowered to
hold hearings and he or she shall cooperate with any
employee in the enforcement of a claim
against his or her employer in any case whenever, in
his or her opinion, the claim is just and
valid.
(b) The director is
authorized to supervise the payment of amounts due to employees,
and the employer may be required to make these
payments to the director to be held in a special
account in trust for the employees, and paid on order
of the director directly to the employee or
the employees affected. The employer shall also pay
the director an administrative fee equal to
twenty-five percent (25%) of any payment made directly
to the employee or employees or made
to the director pursuant to this section and chapters
5-23, 25-3 and 28-12 for the first offense. An
additional payment in the amount of fifty percent
(50%) shall be assessed for each subsequent
violation. The fee shall be deposited in the general
fund. Upon receipt of a complaint
or
conducting an inspection under applicable law, the
director or his or her appropriate departmental
designee is authorized to investigate to determine
compliance with the chapters 28-12 and/or 28-
14.
(c) The director may
institute any action to recover unpaid wages or other compensation
under this chapter, including the administrative fee
contained in subsection (b) of this section,
with or without the consent of the employee or
employees affected. With respect
to all complaints
deemed just and valid, the director or his or her
designee shall order a hearing thereon at a time
and place to be specified, and shall give notice
thereof, together with a copy of the complaint or
the purpose thereof, or a statement of the facts
disclosed upon investigation, which notice shall be
served personally or by mail on any person, business,
corporation, or entity of any kind affected
thereby. The hearing shall be scheduled within thirty
(30) days of service of a formal complaint
as provided herein. The person, business, corporation,
or entity shall have an opportunity to be
heard in respect to the matters complained of at the
time and place specified in the notice. The
hearing shall be conducted by the director or his or
her designee. The hearing officer in the
hearing shall be deemed to be acting in a judicial
capacity, and shall have the right to issue
subpoenas, administer oaths, and examine witnesses.
The enforcement of a subpoena issued
under this section shall be regulated by
shall be expeditiously conducted and upon such hearing
the hearing officer shall determine the
issues raised thereon and shall make a determination
and enter an order within thirty (30) days of
the close of the hearing, and forthwith serve a copy
of the order, with a notice of the filing
thereof, upon the parties to the proceeding,
personally or by mail. The order shall dismiss the
complaint or direct payment of any wages and/or
benefits found to be due and/or award such
other appropriate relief or penalties authorized under
chapter 28-12 and/or 28-14, and the order
may direct payment of reasonable attorneys’ fees and
costs to the complaining party. Interest at
the rate of twelve percent (12%) per annum shall be
awarded in the order from the date of the
nonpayment to the date of payment.
(d) The order shall
also require payment of a further sum as a civil penalty in an amount
up to two (2) times the total wages and/or benefits
found to be due, exclusive of interest, which
shall be shared equally between the department and the
aggrieved party. In determining the
amount of any penalty to impose, the director or his
or her designee shall consider the size of the
employer’s business, the good faith of the employer,
the gravity of the violation, the previous
violations and whether or not the violation was an
innocent mistake or willful.
(e) The director may
institute any action to recover unpaid wages or other compensation
or obtain relief as provided under this section with
or without the consent of the employee or
employees affected.
(f) No agreement
between the employee and employer to work for less than the
applicable wage and/or benefit rate or to otherwise
work under and/or conditions in violation of
applicable law is a defense to an action brought
pursuant to this section.
(g) The director
shall notify the contractors’ registration board of any order issued or any
determination hereunder that an employer has violated
chapters 28-12, 28-14 and/or 37-13. The
director shall notify the tax administrator of any
determination hereunder that may affect liability
for an employer’s payment of wages and/or payroll
taxes.
SECTION
3. Sections 28-14-18, 28-14-18.1 and 28-14-18.2 of the General Laws in
Chapter 28-14 entitled
"Payment of Wages" are hereby repealed.
28-14-18.
Protection. -- An employer shall not discharge, threaten, or
otherwise
discriminate against an employee regarding the
employee's compensation, terms, conditions,
location or privileges of employment because:
(1) The employee, or
a person acting on behalf of the employee, reports or is about to
report to the department verbally or in writing, a
violation which the employee knows or
reasonably believes has occurred or is about to occur
of a law or regulation or rule promulgated
by the department unless the employee knows or has
reason to know that the report is false; or
(2) An employee is
requested by the department to participate in an investigation,
hearing, or inquiry held by the department or a court
action.
28-14-18.1.
Relief and damages. -- (a) A person who alleges a violation of
this chapter
may bring a civil action for appropriate injunctive
relief or actual damages or both within one
year after the occurrence of the alleged violation of
this chapter.
(b) An action
commenced pursuant to subsection (a) of this section may be brought in
the superior court for the county where the alleged
violation occurred, the county where the
complainant resides, or the county where the person
against who the civil complaint is filed
resides or has his or her principal place of business.
(c) As used in
subsection (a) of this section, "damages" means damages for injury or
loss
caused by each violation of this chapter.
(d) An employee
shall show by clear and convincing evidence that he or she or a person
acting on his or her behalf was about to report to the
department verbally or in writing a violation
which the employee knew or reasonably believed had
occurred or was about to occur of a law or
regulation of the department.
28-14-18.2.
Reinstatement. -- A court, in rendering a judgment in an action
brought
under this chapter, shall order, as the court
considers appropriate, reinstatement of the employee,
the payment of back wages, full reinstatement of
fringe benefits and seniority rights, actual
damages, or any combination of these remedies. A court
may also award the complainant all or a
portion of the costs of litigation, if the court
determines that the award is appropriate.
SECTION
4. Chapter 28-14 of the General Laws entitled "Payment of Wages" is
hereby
amended by adding thereto
the following sections:
28-14-19.1.
Misclassification of employees. – (a) The misclassification of a
worker
whether performing work as a natural person, business,
corporation or entity of any kind, as an
independent contractor when the worker should be
considered and paid as an employee shall be
considered a violation of this chapter.
(b) In addition to
any other relief to which any department or an aggrieved party may be
entitled for such a violation, the employer shall be
liable for a civil penalty in an amount not less
than five hundred dollars ($500) and not greater than
three thousand ($3,000) dollars for each
misclassified employee for a first offense and up to
five thousand dollars ($5,000) for each
misclassified employee for any subsequent offense, which
shall be shared equally between the
department and the aggrieved party.
(c) In determining
the amount of any penalty imposed under this section, the director or
his or her designee shall consider the size of the
employer’s business, the good faith of the
employer, the gravity of the violation, the history of
previous violations, and whether or not the
violation was an innocent mistake or willful.
(d) A violation of
this section may be adjudicated under section 28-14-19 and
consolidated with any labor standards violation or
under sections 37-13-14.1 and 15 and
consolidated with any prevailing wage violation.
(e) A violation of
this section may be brought or adjudicated by any division of the
department of labor and training.
(f) The department
shall notify the contractor’s registration board and the tax
administrator of any violation of this section.
28-14-19.2.
Private right of action to collect wages or benefits and for equitable
relief. –
(a) Any employee or former employee, or any organization representing such
an
employee or former employee aggrieved by the failure
to pay wages and/or benefits or
misclassification in violation of chapters 28-12
and/or 28-14 may file a civil action in any court of
competent jurisdiction to obtain relief. An aggrieved
party shall be entitled to recover any unpaid
wages and/or benefits, compensatory damages, and
liquidated damages in an amount up to two
(2) times the amount of unpaid wages and/or benefits
owed, as well as an award of appropriate
equitable relief, including reinstatement of
employment, fringe benefits and seniority rights, and
reasonable attorneys’ fees and costs, and/or such
other appropriate relief or penalties authorized
under chapters 28-12 and/or 28-14. In determining the
amount of any penalty imposed under this
section, consideration shall be given to the size of
the employer’s business, the good faith of the
employer, the gravity of the violation, the history of
previous violations, and whether or not the
violation was an innocent mistake or willful. Any
unpaid fringe benefit contributions owed
pursuant to this section in any form shall be paid to
the appropriate benefit fund: however, in the
absence of an appropriate fund, the benefit shall be
paid directly to the aggrieved employee.
(b) An action
instituted pursuant to this section may be brought by one or more
employees or former employees individually and/or on
behalf of other employees similarly
situated.
(c) No agreement
between the employee and employer to work for less than the
applicable wage and/or benefit rate or to otherwise
work under terms and/or conditions in
violation of applicable law is a defense to an action
brought pursuant to this section.
(d) An employer’s
responsibility and liability hereunder is solely to the employer’s own
employees.
(e) A civil action
filed under this section may be instituted instead of, but not in addition
to, the director of labor and training enforcement procedures
authorized by the above referenced
chapters, provided the civil action is filed prior to
the date the director of labor and training issues
notice of an administrative hearing.
(f) The filing of a
civil action under this section shall not preclude the director of labor
and training from investigating the matter and/or
referring the matter to the attorney general,
contractors’ registration board and/or the tax
administrator.
(g) Any claim
hereunder shall be forever barred unless commenced within three (3) years
after the cause of action accrued.
28-14-19.3.
Protection from retaliation. – No employer, or any person acting on
behalf
of the employer, shall discharge, threaten, or
otherwise discriminate or retaliate against an
employee or any other person for asserting,
supporting, reporting, or participating in or being
asked to participate in the investigation or
determination of claim violation or actionable under
chapters 28-12 and/or 28-14.
Any person aggrieved
by a violation of this section shall be entitled to relief as provided
under chapter 28-50 (“The
action must be commenced within one year after the
cause of action accrued or shall be thereafter
barred.
SECTION
5. Section 28-50-4 of the General Laws in Chapter 28-50 entitled "The
Rhode
28-50-4. Relief
and damages. -- (a) A person who alleges a violation of this act may
bring a civil action for appropriate injunctive
relief, or actual damages, or both within three (3)
years after the occurrence of the alleged violation of
this chapter.
(b) An action commenced
pursuant to subsection (a) of this section may be brought in
the superior court for the county where the alleged
violation occurred, the county where the
complainant resides, or the county where the person
against whom the civil complaint is filed
resides or has their principal place of business.
(c) As used in
subsection (a) of this section, "damages" means damages for injury or
loss
caused by each violation of this chapter.
(d) An employee
shall show by clear and convincing evidence that he or she or a person
acting on his or her behalf was about to report to a
public body, verbally or in writing, a violation,
which the employee knew or reasonably believed had
occurred or was about to occur, of a law of
this state, a political subdivision of this state, or
the
SECTION
6. This act shall take effect upon passage.
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LC01356/SUB A/4
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