2012 -- S 2585

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LC01759

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WAGES

     Introduced By: Senators Nesselbush, P Fogarty, DeVall, Perry, and Miller

     Date Introduced: February 28, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 28-12-2 and 28-12-19 of the General Laws in Chapter 28-12

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entitled "Minimum Wages" are hereby amended to read as follows:

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     28-12-2. Definitions. -- As used in this chapter:

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      (1) "Advisory board" means a board created as provided in section 28-12-6;

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      (2) "Commissioner" means the minimum wage commissioner appointed by the director

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of labor and training as chief of the division of labor standards;

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      (3) "Director" means the director of labor and training or his or her duly authorized

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representative;

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      (4) "Employ" means to suffer or to permit to work;

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      (5) "Employee" includes any individual employed suffered or permitted to work by an

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employer, but shall not include: as defined by the Fair Labor Standards Act of 1938, 29 U.S.C.

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201, et seq.

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     (6) “Employee” shall not include:

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      (i) Any individual employed in domestic service or in or about a private home;

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      (ii) Any individual employed by the United States;

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      (iii) Any individual engaged in the activities of an educational, charitable, religious, or

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nonprofit organization where the employer-employee relationship does not, in fact, exist, or

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where the services rendered to the organizations are on a voluntary basis;

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      (iv) Newspaper deliverers on home delivery, shoe shiners in shoe shine establishments,

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caddies on golf courses, pin persons in bowling alleys, ushers in theatres;

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      (v) Traveling salespersons or outside salespersons;

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      (vi) Service performed by an individual in the employ of his or her son, daughter, or

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spouse and service performed by a child under the age of twenty-one (21) in the employ of his or

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her father or mother;

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      (vii) Any individual employed between May 1 and October 1 in a resort establishment

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which regularly serves meals to the general public and which is open for business not more than

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six (6) months a year;

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      (viii) Any individual employed by an organized camp which does not operate for more

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than seven (7) months in any calendar year. However, this exemption does not apply to

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individuals employed by the camp on an annual, full-time basis. "Organized camp" means any

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camp, except a trailer camp, having a structured program including, but not limited to, recreation,

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education, and religious, or any combination of these.

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      (6) "Employer" includes any individual, partnership, association, corporation, business

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trust, or any person or group of persons acting directly or indirectly in the interest of an employer,

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in relation to an employee;

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      (7) "Occupation" means any occupation, service, trade, business, industry, or branch or

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group of industries or employment or class of employment in which individuals are gainfully

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employed;

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      (8) "Wage" means compensation due to an employee by reason of his or her

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employment.

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     28-12-19. Liability to employee for substandard wages. -- Any employer who pays any

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employee less than the applicable wage rate to which the employee is entitled under or by virtue

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of this chapter shall be liable to the affected employee for the full amount of the wage rate, less

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any amount actually paid to the employee by the employer, and for damages of two (2) times the

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wages owed, costs and the reasonable attorney's fees that may be allowed by the court. Any

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agreement between the employee and the employer to work for less than the wage rate shall be no

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defense to the action.

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     SECTION 2. Sections 28-14-1, 28-14-17, 28-14-19 and 28-14-20 of the General Laws in

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Chapter 28-14 entitled "Payment of Wages" are hereby amended to read as follows:

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     28-14-1. Definitions. -- Whenever used in this chapter:

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      (1) "Director" means the director of the department of labor and training or his or her

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duly authorized representative.

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      (2) "Employee" means any person suffered or permitted to work by an employer, except

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that independent contractors or subcontractors shall not be considered employees as defined by

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the Fair Labor Standards Act of 1938, 20 U.S.C. section 201 et seq.

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      (3) "Employer" means any individual, firm, partnership, association, joint stock

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company, trust, corporation, receiver, or other like officer appointed by a court of this state, and

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any agent or officer of any of the previously mentioned classes, employing any person in this

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state.

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      (4) "Wages" means all amounts at which the labor or service rendered is recompensed,

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whether the amount is fixed or ascertained on a time, task, piece, commission basis, or other

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method of calculating the amount.

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     28-14-17. Penalty for violations. – (a) Any employer who violates or fails to comply

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with any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction

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shall be punished by a fine of not less than four hundred dollars ($400) for each separate offense,

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or by imprisonment for not less than ten (10) nor more than ninety (90) days, or by both fine and

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imprisonment. Each day of failure to pay wages due an employee at the time specified in this

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chapter shall constitute a separate and distinct violation.

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     (b) Any employer found guilty of violations of this chapter who does not pay wages and

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fines within thirty (30) days of a final decision and after notification by the department of labor

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and training, shall have their business license revoked by the state of Rhode Island until they pay

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such wages and fines in full. If it is found that the violating employer in this case is illegally

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unlicensed and/or unregistered to conduct business in the state of Rhode Island, said employer

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shall be charged with larceny for theft of wages and punished accordingly under section 11-41-5.

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     28-14-19. Enforcement powers and duties of director of labor and training. -- (a) It

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shall be the duty of the director to insure compliance with the provisions of this chapter, to

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investigate any violations of this chapter, to institute or cause to be instituted actions for the

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collection of wages and to institute action for penalties provided under this chapter. The director

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or his or her authorized representatives are empowered to hold hearings and he or she shall

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cooperate with any employee in the enforcement of a claim against his or her employer in any

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case whenever, in his or her opinion, the claim is just and valid.

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      (b) The director is authorized to supervise the payment of amounts due to employees,

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and the employer may be required to make these payments to the director to be held in a special

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account in trust for the employees, and paid on order of the director directly to the employee or

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the employees affected. Any employer violating the provisions of this chapter in the payment of

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wages owed to any employee shall pay the employee three (3) times the wages owed to the

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employee. The employer shall also pay the director an administrative fee equal to twenty-five

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percent (25%) of any payment made directly to the employee or employees or made to the

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director pursuant to this section and chapters 5-23, 25-3 and 28-12 for the first offense. An

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additional payment in the amount of fifty percent (50%) shall be assessed for each subsequent

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violation. One-half (1/2) of the administrative fee shall be deposited into a restricted receipt

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account of the department of labor and training to maintain and increase enforcement capacity,

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and the remaining one-half (1/2) of the administrative fee shall be deposited in the general fund.

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The fee shall be deposited in the general fund.

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      (c) The director may institute any action to recover unpaid wages or other compensation

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under this chapter, including the administrative fee contained in subsection (b) of this section,

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with or without the consent of the employee or employees affected.

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     28-14-20. Filing of claims with director Filing of claims. -- (a) All claims for wages

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due must be filed with the director within three (3) years from time of services rendered by an

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employee to his or her employer. All claims for wages may be filed with the director within three

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(3) years from time of services rendered by an employee to his or her employer.

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      (b) A claim may be filed by a person who is required to be paid wages for his or her

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labor; or if a minor, by his or her parent or guardian; or by the lawful collective bargaining

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representative of the person; or a representative authorized in writing by the employee. A person

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who alleges a violation of any provision of this chapter may bring a civil action for appropriate

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injunctive relief or actual damages or both within three (3) years after the occurrence of the

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alleged violation of this chapter.

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     (c) An action commenced pursuant to subsection (b) of this section may be brought in the

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court for the county where the alleged violation occurred, the county where the complainant

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resides, or the county where the person against whom the civil complaint is field resides or has

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his or her principal place of business.

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     (d) As used in subsection (b) of this section damages includes three (3) times the wages

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owed to the employee for the first offense.

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     (e) Attorney’s fees, including litigation expenses, may be granted to the plaintiff if he or

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she prevails.

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     SECTION 3. This act shall take effect upon passage.

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LC01759

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- WAGES

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     This act would give employees several enhanced ways to help them collect their wages

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from nonpaying employers.

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     This act would take effect upon passage.

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LC01759

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