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