HB0239 - Relating to employment.

 

2001

State of Wyoming

01LSO-0392.E1

ENGROSSED

 

 

 

HOUSE BILL NO.  HB0239

 

 

Relating to employment.

 

Sponsored by:

 

 

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

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 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 

 

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 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

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 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

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 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

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 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

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 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 

 

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 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

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 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 

 

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 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

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 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

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 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

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 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,

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 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

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 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 

 

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 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 

 

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 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 

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 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)

 

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