HB0239 - Relating to employment.
2001 |
State of Wyoming |
01LSO-0392.E1 ENGROSSED |
HOUSE BILL NO. HB0239
Relating to employment.
Sponsored by: Representative(s) Esquibel and Nicholas
A BILL
for
1 AN ACT relating to labor
and employment; providing for
2
specified conditions of employment; modifying gender
3
specific provisions; providing hearing procedures for
4
violations of employment provisions; specifying civil and
5
criminal penalties; making conforming amendments; and
6
providing for an effective date.
7
8 Be It Enacted by the Legislature of the State of Wyoming:
9
10 Section 1. W.S. 27-1-108, 27-1-109, 27-2-104(a)(i),
11 27-2-109(g), 27-4-101(a), 27-4-103,
27-4-111, 27-4-301(a)
12 and (e), 27-4-302 through 27-4-304,
27-4-501(a)(iv),
13 27-4-502, 27-4-504, 27-4-505, 27-4-506,
27-4-508,
14 27-5-101(b), 27-9-102(d), 27-9-104(a)(intro),
(ii), (iii),
15 (v), (vi) and (b), 27-9-105(a)(i),
(ii) and (d) and
16 27-9-106(a) and by creating new
subsections (k) and (m) are
17 amended to read:
Page 1
1
2 27-1-108. Penalties generally.
3
4 Any
person who violates or omits to comply with any of the
5
provisions of this act, or any of the lawful
orders of the 6
commissioner of labor and statistics final order of the
7 department of employment is
guilty of a misdemeanor and
8
upon conviction shall be punished by a fine of not more
9
than one thousand dollars ($1,000.00), imprisonment in the
10 county jail for not more than one
(1) year, or both.
11
12 27-1-109. Prosecution of violations.
13
14 The district attorney for any county in this
state shall,
15 upon
complaint on oath, of the commissioner of labor, upon
16 receipt of a verified complaint from the director of the
17 department of employment or a final agency decision of the
18 department of employment prosecute to termination
before
19 any court of competent jurisdiction,
in the name of the
20 state of Wyoming, actions or
proceedings against any person
21 or persons charged with violation of
any of the provisions
22 of this act, or any of the laws of
this state enacted for
23 the protection of employees.
24
Page 2
1 27-2-104. Duties of department of employment.
2
3 (a) The department of employment shall:
4
5 (i) Enforce all
laws enacted by the legislature
6
of Wyoming, relating to labor, wages,
hours of labor, and
7
to the health, welfare, life and limb of the workers of
8
this state;
9
10 27-2-109. Examination of witnesses.
11
12 (g) Except as
otherwise provided by law, all orders 13
and decisions of the commissioner of labor and statistics 14 final agency decisions of the department of employment with
15 regard to chapters 4, 5, 6, 7, 8 and 9 of title 27,
shall
16 be issued only after an opportunity
for hearing pursuant to
17 the Wyoming Administrative Procedure
Act. Any party
18 aggrieved by an order or decision of the commissioner of 19
labor and statistics a
final agency decision of the
20 department of employment with regards to chapters 4, 5, 6,
21 7, 8 and 9 of title 27, shall have the right to
appeal to
22 district court pursuant to the
Wyoming Administrative
23 Procedure Act.
24
Page 3
1 27-4-101. Semimonthly payments
required; method of
2 payment;
agricultural operations exempt; payment in case of
3
labor dispute or temporary
layoff.
4
5 (a) Every
person, firm or corporation, engaged in the
6
operation of any railroad, mine, refinery, and work
7
incidental to prospecting for, or the production of, oil
8
and gas, or other factory, mill or workshop, within the
9
state of Wyoming, shall, on or before the first day of each
10 month, pay the their
employees thereof the wages earned by
11 them during the first half of the
preceding month ending
12 with the fifteenth day thereof of the month,
and on or
13 before the fifteenth day of each
month pay the their
14 employees thereof the wages earned by them during the last
15 half of the preceding month;
provided, however, that if at
16 any time of payment any employee
shall be absent from his
17 or her regular place of labor, and
shall not receive his or
18 her wages, at that time due and
owing, through a duly
19 authorized representative, he or she
shall be entitled to
20 said payment
at any time thereafter upon demand on the
21 proper paymaster or at the place
where such wages are
22 usually paid; provided, further,
that if the first or the
23 fifteenth of the month occurs on a
day which is not a
24 working day, that the last preceding
working day shall be
Page 4
1 the
payday, for all personnel who are regularly paid at one
2
(1) location, provided, further, every
employer shall
3
establish and maintain regular paydays as herein provided
4
and shall post and maintain copies of this law printed in
5
plain type in at least two (2) conspicuous places where
6
such thenotices can be seen by the employees. Provided, 7
further, that state employees receive
their pay at a date 8
no later than the eighth of the month
following the month 9
of employment, for which said payment
is made.
10
11 27-4-103. Semimonthly payments required; penalty.
12
13 Every person violating any of the provisions
of this act,
14 shall be guilty of a misdemeanor and
upon conviction
15 thereof, shall be punished by a fine
of not less than 16
twenty-five dollars ($25.00) nor more than one hundred 17
dollars ($100.00) not
more than seven hundred and fifty
18 dollars ($750.00), or by imprisonment in the
county jail
19 for a period of not more than ninety (90) days six
(6)
20 months, or by both such
fine and imprisonment.
21
22 27-4-111. Assignments of wages;
consent of marital
23 spouse required.
24
Page 5
1 No such assignment of or order for, wages to be
earned in
2
the future shall be valid, when made by a married man 3 individual, unless the
written consent of
his wife the
4 spouse to the making of such assignment is attached
5
thereto.
6
7 27-4-301. Definitions.
8
9 (a) "Employee"
means any female individual employed
10 by an employer.
11
12 (e) "Commissioner Director"
means the director of the
13 department of employment or his designee who is authorized
14 to administer W.S. 27-4-301 through 27-4-304. the state 15
labor commissioner.
16
17 27-4-302. Prohibition on paying
employees less for
18 same work.
19
20 (a) No employer
shall pay to any female in any 21
occupation in this state, a salary or hourly wage rate less 22
than that paid to male employees employed by the same 23
employer for the same work. discriminate, within the same
24 establishment in which the employees are employed, between
Page 6
1 employees on the basis of gender by paying wages to
2 employees at a rate less than the rate
at which the
3 employer pays wages to employees of
the opposite gender for
4 equal work on jobs the performance of
which requires equal
5 skill, effort and responsibility and
which are performed
6 under similar working conditions,
except where the payment
7 is made pursuant to:
8
9 (i) A seniority system;
10
11 (ii) A merit system;
12
13 (iii) A system which measures earning by
14 quantity
or quality of production; or
15
16 (iv) A differential based on any other factor
17 other
than gender.
18
19 27-4-303. Liability of employer generally;
liquidated
20 damages; individual and group actions;
assignment of claim.
21
22 (a) An employer
who violates the provisions of W.S.
23 27-4-302 shall be liable to the
employee or employees
24 affected in the amount of their
unpaid wages, and in an
Page 7
1 additional
equal amount as liquidated damages. Action to
2
recover such liability may be
maintained in any court of
3
competent jurisdiction by any one (1) or more employees for
4
and in behalf of herself the employee or themselves
the
5 employees and other
employees similarly situated, and no
6
agreement by any such the employee to work for less than
7
the wage to which such the employee is entitled under this
8
act shall be a defense to any such action. At the request 9
of any employee paid less than the
wage to which she may be 10
entitled under this act, the commissioner may take an 11
assignment of such wage claim in trust for the assigning 12
employee and may bring any legal action necessary to 13
collect such claim, including the liquidated damages 14
provided by this section. The commissioner shall not be 15
required to pay the filing fee, or other costs, in 16
connection with such action. The commissioner shall have 17
power to join various claimants against the employer in one 18
(1) action.
19
20 (b) Upon receipt of a written claim by any employee
21 of
a violation of this act, the director shall process,
22 investigate and determine the validity of the claim. The
23 director shall have power to join various claims against
24 the same employer in one (1) claim. If either the employer
Page 8
1 or employee is aggrieved by the director's determination,
2 the aggrieved party may request a fair
hearing. The
3 aggrieved party must file a written
request for hearing
4 within fifteen (15) calendar days of
receipt of the
5 director's determination. Upon receipt
of a timely
6 submitted request for hearing, the
director shall appoint
7 an independent hearing officer to
conduct the fair hearing
8 between the employer and employee. The
fair hearing shall
9 be conducted pursuant to the Wyoming
Administrative
10 Procedure Act. The hearing officer's determination shall
11 constitute the director's final agency action. Upon a
12 finding by the hearing officer that the claim is valid, the
13 director shall order the employer to pay the amount of
14 wages due plus an additional equal amount as liquidated
15 damages. Where the employer failed to appeal an adverse
16 determination to the district court and failed to comply
17 with the director's order, the director shall refer the
18 matter to the appropriate county attorney for enforcement
19 of the director's order.
20
21 27-4-304. Penalty for violations.
22
23 Any employer who willfully violates any
provision of this
24 act, or who discharges or in any
other manner discriminates
Page 9
1 against
any employee because such the employee has made any
2
complaint to his employer, the commissioner,
director or
3
any other person, or instituted, or caused to be instituted
4
any proceeding under or related to this act, or has
5
testified or is about to testify in any such
the
6
proceedings, shall, upon conviction,
thereof, be punished
7
by a fine of not less than twenty-five dollars ($25.00),
8
nor more than two hundred dollars ($200.00), or by
9
imprisonment for not less than ten (10) days nor more than
10 one hundred eighty (180) days, or by
both such the
fine and
11 imprisonment. Each day such a violation continues shall
12 constitute a separate offense.
13
14 27-4-501. Definitions.
15
16 (a) Whenever used in this act:
17
18 (iv) "Commissioner Department"
means the
19 commissioner
of labor and statistics department of
20 employment;
21
22 27-4-502. Claims for unpaid wages.
23
Page 10
1 The
commissioner department
is hereby empowered to take
2
assignment of claims for unpaid wages due and owing an 3
employee under the
provisions of W.S. 27-4-101 and
4
27-4-104. The commissioner department in taking assignment
5
of a
claim for unpaid wages as provided for in this act is
6
not to exceed the sum of five hundred dollars ($500.00) or
7
two (2) months wages, whichever is the greater, per
8
employee per wage assignment claim.
9
10 27-4-504. Investigation
and determination of unpaid
11 wage claims; hearing; orders; collection
of unpaid wages.
12
13 (a) Upon receipt
of a written claim for unpaid wages,
14 the commissioner
department shall process,
investigate and
15 determine the validity of the claim.
If the employer 16
disputes or refuses to pay the claim, the commissioner 17
shall hold a hearing pursuant to the Wyoming Administrative 18
Procedure Act. As provided by W.S. 16-3-112, an impartial 19
hearing officer shall be appointed to preside at the 20
hearing.
21
22 (b) If either the employer or employee is aggrieved
23 by
the department's determination, the aggrieved party may
24 request a fair hearing. The aggrieved party must file a
Page 11
1 written request for hearing within fifteen (15) calendar
2 days of receipt of the department's
determination. Upon
3 receipt of a timely submitted request
for hearing, the
4 director shall appoint an independent
hearing officer to
5 conduct the fair hearing between the
employer and employee.
6 The fair hearing shall be conducted
pursuant to the Wyoming
7 Administrative Procedure Act. The
hearing officer's
8 determination shall constitute the
director's final agency
9 action.
10
11 (c) Upon a
finding by the hearing examiner officer
12 that the unpaid
wage claim is valid and enforceable and
13 either the time for judicial review has passed or the
14 decision has been affirmed by final judicial review,
the
15 commissioner
department shall order the
employer to pay the
16 amount of unpaid wages due. The department's
order is not
17 appealable or subject to judicial review. The commissioner 18 department shall,
prosecute promptly, with the assistance
19 of the county attorney, whatever initiate
legal proceedings
20 are
necessary to insure collection of collect the unpaid
21 wages.
With the written consent of the employee the 22
commissioner may settle or adjust any wage claim.
23
Page 12
1 (d) Unless the order is on appeal to a district 2
court, An employer's failure to comply with a
3
commissioner's department's order is punishable by a civil
4
fine not to exceed two hundred dollars ($200.00) for each
5
day the employer fails to comply with the order.
6
7 27-4-505. County attorney to assist in
collection of
8 unpaid
wages.
9
10 In pursuing the
collection of any assigned wage claim, the 11
commissioner shall be assisted by the county attorney or 12
his representative. In suits commenced under this
act no 13
court costs or any fees for necessary writs, process and 14
proceedings shall be payable in advance. If judgment is 15
rendered against the defendant the court shall assess as 16
part of the judgment reasonable attorneys fees if the case 17
was prosecuted by a private attorney and the costs of the 18
proceedings. If judgment is rendered for the defendant 19
employer, the office of the commissioner of labor and 20
statistics shall be liable to the defendant employer for 21
his court costs and reasonable attorney fees. An action 22
brought under authority of and in compliance with this 23
article is not subject to challenge or dismissal for 24
failure to exhaust administrative remedies where the
Page 13
1 employer failed to comply with the department's order to
2 pay the unpaid wages due, the
department shall refer the
3 matter to the appropriate county
attorney for enforcement
4 of the department's order.
5
6 27-4-506. Limitation on attempts to
make payment of
7 wages
collected; unclaimed wages.
8
9 The
commissioner department
shall attempt for a period of
10 not less than two (2) years, four
(4) months from the date
11 of the collection, to make payments
of wages collected
12 under this act to the persons
entitled thereto to the
13 wages. Wages collected by commissioner the
department which
14 remain unclaimed for a period of
more than two (2) years 15 four (4) months from the date of collection, shall
revert 16
to the general fund of the state of Wyoming be unclaimed
17 property for purposes of W.S. 34-24-101 through 34-24-140.
18
19 27-4-508. Agreements for reciprocal
enforcement; of
20 claim to another state.
21
22 (a) The commissioner department
is hereby empowered
23 to enter into agreements with
agencies of other states or
24 the federal government for the
reciprocal enforcement and
Page 14
1 collection
of wage claims if such those states have a
2
statute authorizing the same.
3
4 (b) In the
event the commissioner department has been 5
assigned taken a wage claim for collection and the employer
6
against which said the claim has been filed has moved to
7
another state, the commissioner department may reassign
8 refer the claim with the
written approval of the employee
9
to the proper agency of the other state for collection,
10 provided that there is in existence
at the time a
11 reciprocal agreement with such the
state for the collection
12 of claims. The commissioner department
is also authorized
13 to accept claims from other states
for collection of wages
14 from employers who have removed to
Wyoming.
15
16 27-5-101. State and county employees;
overtime
17 compensation.
18
19 (b) Except for
employees whose maximum salary is
20 remitted by statute, any state or
county employee may be
21 compensated at a rate one and one-half
(1 1/2) times their
22 regular compensation for each hour
of service required to
23 be performed because of emergency situations in excess of
24 eight (8) hours per day and forty
(40) hours per week. If
Page 15
1 overtime
compensation is paid pursuant to this section, no
2
additional benefits, such as including compensatory time
3
off, shall be allowed to the employee receiving the
4
overtime compensation.
5
6 27-9-102. Definitions.
7
8 (d) As used in
W.S. 27-9-101 through 27-9-108,
9
"commission department" means the department of
employment
10 which is
the successor agency to the Wyoming fair 11
employment commission and the term "commissioner director"
12 means the director of the department
or his designee who is
13 authorized to administer W.S. 27-9-101
through 27-9-108.
14
15 27-9-104. Powers and duties of
department of
16 employment.
17
18 (a) The Wyoming fair employment commission department
19 shall have the following powers and
duties:
20
21 (ii) To adopt,
publish, amend, and rescind
22 regulations consistent with and for
the enforcement of this
23 article;. Prior to the adoption of any regulation 24
authorized by law, or the amendment or rescission thereof,
Page 16
1 the commission shall as far as practicable, publish or 2
otherwise circulate notices of its
intended action and 3
afford interested persons opportunity
to submit data or 4
views orally or in writing. The
commission shall file 5
forthwith in the office of the
secretary of state a 6
certified copy of each regulation
adopted by it. The 7
secretary of state shall keep a
permanent register of such 8
regulations open to public
inspection, which rules shall be 9
made available to officials of this
state free of charge, 10
and to other persons at a price fixed by the secretary of 11
state to cover publication and mailing costs;
12
13 (iii) To receive,
investigate, and pass upon 14 determine the validity of complaints alleging
15 discrimination in employment or the
existence of a
16 discriminatory or unfair employment
practice; by
a person, 17
an employer, an employment agency, a labor organization, or 18
the employees or members thereof;
19
20 (v) For the
purposes of all investigation and 21
for the purposes of the hearing or any proceeding before 22
the commission, investigations
the commission department
23 shall have the power to issue
subpoenas requiring the
24 attendance and testimony of
witnesses and the production of
Page 17
1 any
books, papers, documents or records which the
2
commission department deems relevant or material to the
3
inquiry;
4
5 (vi) In case of
disobedience to a subpoena the
6
commission department may invoke the aid of any district
7
court in the state in requiring the attendance and
8
testimony of witnesses and the production of documentary
9
evidence. Any failure to obey such the
order of the court
10 may be punished by such the
court as a contempt thereof of
11 court;
12
13 (b) The
department of employment, the successor 14
agency to the fair employment practices commission, may 15 shall contract with an independent hearing officer
selected 16
by the attorney general to conduct any hearing
under W.S.
17 27-9-101 through 27-9-108. and exercise all
authority of 18
the department. The hearing officer's decision in
a case
19 shall constitute the final agency
action.
20
21 27-9-105. Discriminatory and unfair
employment
22 practices enumerated; limitations.
23
Page 18
1 (a) It is a
discriminatory or unfair employment
2
practice:
3
4 (i) For an
employer to refuse to hire, to
5
discharge, to promote or demote, or to discriminate in
6
matters of compensation or the terms, conditions or
7
privileges of employment against, a qualified handicapped 8 disabled person or any
person otherwise qualified, because
9
of age, sex, race, creed, color, national origin or
10 ancestry;
11
12 (ii) For a
person, an employment agency, a labor
13 organization, or the its
employees or members, thereof, to
14 discriminate in matters of
employment or membership against
15 any person, otherwise qualified,
because of age, sex, race,
16 creed, color, national origin or
ancestry, or a qualified
17 handicapped
disabled person;
18
19 (d) As used in
this section "qualified handicapped 20 disabled person" means a
handicapped disabled
person who is
21 capable of performing a particular
job, or who would be
22 capable of performing a particular
job with reasonable
23 accommodation to his handicap disability.
24
Page 19
1 27-9-106. Filing of complaint;
determination; appeal
2 for
hearing.
3
4 (a) Filing complaint. - Any person claiming to be
5
aggrieved by a discriminatory or unfair employment practice
6
may, by himself personally or through
his attorney-at-law 7 attorney, make, sign and
file with the
commission 8 department within ninety
(90) days of the alleged violation
9
a verified, written complaint in duplicate which shall
10 state the name and address of the
person, employer,
11 employment agency or labor
organization alleged to have
12 committed the discriminatory or
unfair employment practice, 13
complained of, and which shall set forth the
particulars
14 thereof of the claim and contain such other information as
15 shall be required by the commission department. The 16
commission or a commissioner may in like manner make, sign 17
and file the complaint.
18
19 (k) If either the employer or employee is aggrieved
20 by
the department's determination, the aggrieved party may
21 request a fair hearing. The fair hearing shall be conducted
22 pursuant to the Wyoming Administrative Procedure Act.
23
Page 20
1 (m) Where an employer
does not timely appeal or
2 comply with the hearing officer's
adverse decision, the
3 department may petition the
appropriate district court for
4 the enforcement of the hearing
officer's decision.
5
6 Section 2. W.S. 27-2-104(a)(ii), 27-4-102, 27-4-503,
7
27-9-104(a)(iv), 27-9-106(b) through (j), 27-9-107 and
8
27-9-108 are repealed.
9
10 Section 3. This act is effective July 1, 2001.
11
12 (END)
Page 21