Chapter 344

2012 -- S 2422 SUBSTITUTE A

Enacted 06/20/12

 

A N A C T

RELATING TO LABOR AND LABOR RELATIONS - PAYMENT OF WAGES

          

     Introduced By: Senators Miller, Lanzi, and Goodwin

     Date Introduced: February 15, 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 Rhode Island civil practice law and rules. The hearing

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 Rhode Island Whistleblowers’ Protection Act”), provided, that such

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

Island Whistleblowers' Protection Act" is hereby amended to read as follows:

 

     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 United States.

 

     SECTION 6. This act shall take effect upon passage.

     

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LC01278/SUB A/3

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