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A STUDY OF WAGE THEFT AND STATE WAGE ENFORCEMENT LAWS

A PRACTICUM REPORT by

Robert L. Olson

Submitted in partial fulfillment of the requirement for the degree of

Master of Arts in

Labor and Policy Studies

Empire State College State University of New York

2012

F i r s t r e a d e r :

S e c o n d r e a d e r :

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Contents Abstract 4

Chapter One

What is Progressive States Nework? 6

How my practicum with Progressive States Network came about 6

Chapter Two

My experience at Progressive States Network 9

Chapter Three

What is wage theft? 15

Aspects of wage theft 18

Failure to pay any wages whatsoever 18

Failure to pay for all time worked 19

Paying with checks that “bounce 20

Failure to pay overtime 22

Failure to pay minimum wage 24

Misclassification of private contractors 25

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Paying by the day or the job 26

Making workers pay for a job 27

Taking illegal deductions from worker’s paychecks 26

Stealing workers tips 29

Not being paid final paycheck 30

Not be paid prevailing wage 30

Why is wage theft so prevalent? 32

Chapter Four

Conclusion 34

My views on the potential success of PSN’s unigue strategy 34

Interpreting the data collected from the states which responded to PSN during the time of my practicum 38 Appendix

Results of the Survey 42

States which did not participate in the survey 87

Websites for Labor Standards Enforcement Agencies 89

Bibliography 91

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Abstract This is a report of a practicum with the Progressive States Network (PSN) which occurred

from to January 3, 2011 to March 2, 2011. At the time of this practicum, The Progressive

States Network was located at 101 Avenue of the Americas, New York City, NY. During this

practicum, I requested information from all fifty states regarding wage enforcement law. I then

compiled information from the states which replied during the period of my practicum.

The main things I learned from this practicum was the nature and types of wage theft, the

variety and range of state wage and hours laws by the individual states of the union and that PSN

is extremely active and unique in advocating for legislation to combat wage theft.

Wage theft takes a variety of forms including outright refusal to pay any wages for work

performed, failure to pay any wages whatsoever, failure to pay for all time worked, paying with

checks that “bounce, failure to pay overtime, failure to pay minimum wage, misclassification of

private contractors, paying by the day or the job (instead of cumulatively), making workers pay

for a job, taking illegal deductions from worker’s paychecks, stealing workers tips, not paying

final paycheck and not paying prevailing wage.

State legislation to combat wage theft come in the form of specifically defining employers,

employees and independent contractors, recourse for employees who have been misclassified as

independent contractors, defining liquidated damages and the ability of an aggrieved employee

to collect it, requiring employers to notify the employee at the time of hiring of the wages and

paydays, to notify employees if either wages or paydays change, requiring employers to provide

written statements of employment agreements and policies upon employee request, requiring

employers to keep payroll records, requiring employers to provide workers with a statement of

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hours worked, wages earned, and deductions for each payday, requiring an employer to pay

beyond wages or expenses that were not paid if a wage violation occurs (i.e. liquidated damages,

attorney’s fees, etc), allowing an individual bring a civil action for damages against the employer

if an individual is not properly classified as an employee, providing the state agency responsible

for labor issues the authority to inspect employer property pursuant to an investigation of wage

violations and to protect the anonymity of the employee, protecting employees (or those who

assist them) from retaliation by employers against whom they have taken action, filed a

complaint, or contacted the agency for wage violations, providing for civil penalties for

employers for each violation, the state having a provision holding shareholders liable for debts

owed to the employees of a corporation in case of a bankruptcy and the ability of an employee

to bring a civil action against shareholders and providing an aggrieved employee and/or

independent contractor with the means file a civil action.

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Chapter One

What is Progressive States Network?

The following description of Progressive States Network is taken from “2012 Blueprint for

Economic Security”, one of their many publications:

Progressive States Network is a national, non-partisan, non-profit organization dedicated to supporting the work of progressive state legislators around the country and to the advancement of state policies that deliver on issues that matter to working families: strong wage standards and workplace freedom, balancing work and family responsibilities, health care for all, smart growth and clean energy, tax and budget reform, clean and fair elections, and technology investments to bridge the digital divide.

Founded in 2005, Progressive States Network works to transform the national political landscape at the state level by networking state legislators, advocates, and other groups across the 50 states. By providing online and offline opportunities for legislator-to-legislator conversation, PSN’s dedicated policy specialists — who focus on health care, immigration, tax and budget policy, workers’ rights, broadband, green jobs, and election reform — connect progressive state legislators, advocates, and activists with the latest policy options, messaging resources, and news and analysis in their issue areas and states.1

How my practicum with Progressive States Network came about

I first became interested in wage theft as a Final Project after reading Wage Theft in America,2

a book about the subject by Kimberly Bobo. I happened upon the e-book version in the Empire

State College internet library looking for a topic for my Final Project. Since I am a person who

seems to learn more from practical “hands on” experience, I decided that a practicum was the

best option for me.

The problem seemed to be landing one. Ultimately, what started as an application for a paid

position resulted in an unpaid practicum. I had responded to a job listing for a position with the

                                                                                                                         1  “2012 Blueprint for Economic Security.” Progressive States Network .http://www.progressivestates.org/sync/pdfs/PSN%202012%20Blueprint.pdf (accessed January 01, 2012). 2 Kimberly Bobo, Wage Theft in America. (New York: The New Press, 2009).

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Progressive States Network as Workers’ Rights Outreach Associate. In the cover letter to

Progressive States Network, I mentioned that I was interested in doing an unpaid practicum.

Months later, I received a reply from Tim Judson, Workers Rights Policy Specialist at

Progressive States Network informing me that the paid position was no longer available.

However, Judson informed me that they currently had a project pertaining to determining and

comparing wage enforcement laws of all fifty states. I believe the fact that my proposal for a

practicum entailed no financial remuneration just may have attracted Judson’s attention. Judson

sent me the following e-mail:

Mr. Olson,

Thank you for your application. I apologize for the long delay in responding. We have postponed our search for a Workers’ Rights Outreach Associate, but are still searching for an intern to focus on research projects for our Workers’ Rights Program. The projects would consist of completing a survey of states’ wage-and-hour law enforcement statutes and assisting in the development of a report rating/evaluating states on the status of workers’ rights within their borders. Both of these projects can also involve a significant amount of work with other labor and policy groups around the country. Please let me know if you are still interested.

Best, Tim Tim Judson Workers' Rights Policy Specialist www.progressivestates.org

I agreed to interview for the position. I believe Judson and other representatives of

Progressive States Network did a really great job of containing their amazement when meeting

me in person and realizing that I was not your typical “twenty” something graduate student.

Luckily, I applied during the normal school year when very few students apply for internships

and my specific interest in wage theft happened to perfectly fit the PSN project. Normally,

Progressive States Network has far more applicants for unpaid internships from the most

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prestigious schools in New York City than it can handle. However, the bulk of those internships

occur during the summer.

Judson decided to take a chance with me and I remain eternally grateful to him for that. The

practicum was fun in more ways than one. The other policy specialists at Progress States

Network represent some of the brightest minds in the progressive movement. They are certainly

idealistic and committed. Their political and social philosophies mesh extremely well with a

nonprofit policy “think tank” calling itself the Progressive States Network.

I can honestly say that about the only policy issue that those who make up Progressive States

Network (PSN) and I may have agreed upon entirely was that of wage theft. After all, stealing

is stealing no matter what your religious or ideological views. The admonition against outright

theft is fairly universal in much the same way that no one thinks being convicted for something

one did not do is okay (especially if we are or someone we love are the ones falsely convicted).

While I was able to do a significant portion of the work of PSN’s project, I was unable to

fulfill all of the work for the project by myself. Therefore, I will address the results I personally

obtained in my Final Project. I must advise that the data cited in this report reflects what I

obtained during the time of my practicum. Some states may have developed new legislation

which could be deemed more “progressive” or more “regressive” depending on where one is on

the ideological spectrum.

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Chapter Two

My experience at Progressive States Network

In this age of the internet and sophisticated electronics communications, more and more

organizations are located only in cyberspace which is the modern age version of working “out of

a phone booth.” However, Progressive States Network (PSN) is a real organization and does

have a physical headquarters. At the time of my practicum, PSN was housed on the third floor of

the Service Employees Industrial Union (SEIU) building located at 101 6th Avenue, New York

City, NY. It has recently relocated a new headquarters, quite appropriately, at 82 Wall St., Suite

200, New York, NY 10005. PSN enthusiastically endorses the Occupy Wall Street movement

and has, obviously, taken the occupation of Wall Street literally.

My practicum consisted of over 240 hours of unpaid work on the behalf of Progressive States

Network (see www.progressivestates.org) under the supervision of Tim Judson, Workers' Rights

Policy Specialist. Judson has considerable experience in the field of organized labor and labor

academia. I worked at Progressive States Network from January 3, 2011 to March 2, 2011 for a

total of 246 hours and 15 minutes. I tracked my hours by means of a hard bound Standard

Diary.

Having never worked in New York City, my experience commuting daily from eastern

Suffolk County was quite a novelty. I travelled in by Long Island Railroad Monday through

Friday from the Riverhead train station to Penn Station. I then took the subway system from

Penn Station to the work site. My commute was roughly four to five hours a day which is what

it remains to this day. My intention was to keep a strict daily schedule of eight hour work days

which is what I did until I reached over 240 hours.

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On my first day, I was issued a laptop computer and assigned a desk with a land-line phone. I

was also issued an identification card which kind of made me feel a vital part of the “team.”

This allowed me access past the security guard desk on the entrance floor and into to the locked

office areas. I shared an office with three other PSN policy specialists overlooking the Tribeca

Theatre.

I was treated pretty much like the other policy specialists and attended most of the staff

meetings. I was even allowed to offer my observations regarding policy issues which, quite

frankly, were not always well received due to my somewhat more conservative viewpoints.

Many of the staff meetings revolved around labor issues such as responses to the anti-union

animus that was emerging in states which had elected Tea Party candidates. It was a source or

pride and a cause for celebration anytime one of their policy position papers were signed by

legislators from all fifty states.

Since PSN deals with the legislatures of all fifty states, they must make maximum use of

current technology in lieu of meeting with legislators in person. PSN frequently engages in

Webinars and teleconferences between various stakeholders and organizations with similar

policy goals. State legislators sympathizing with the aims of PSN will often participate. I was

able to listen in on many of these exchanges on policy positions. On a petition voicing support

for workers in the state of Wisconsin, PSN was able to gain supporters from state legislators in

all fifty states.

During this time, I attended several “Cheesehead” rallies for the workers in Wisconsin and

other states outside of Fox News Network in Manhattan which were “pushing back” against anti-

worker legislation introduced by recently elected “Tea Party” reactionaries. Having come of age

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in the turbulent 1960’s, I had a sense that the rallies were “Déjà vu all over again” as Yogi Berra

once observed. I do regret that my practicum was over prior to the commencement of the

“Occupy Wall Street (OWS)” movement. PSN is in full support of OWS and PSN members

still actively participate in many of the demonstrations. There is no doubt in my mind that this

nation is at a serious juncture in its attitude towards the rights of workers.

To commence my practicum, I had left my former employer, East End Disabilities, before

New Year’s Day 2011. Commencing the unpaid practicum on the first work day of the New

Year was a leap of faith, economically and in many other ways. To leave a job that did not pay

well and was quite humbling may not have seemed much of a loss. However, I have had

tremendous difficulty since leaving the state police and I found it difficult to abandon any form

of stability. Ironically, two weeks into the practicum, I was offered a new much higher paying

job as an investigator with Catholic Charities, Diocese of Brooklyn. Luckily, I was able to finish

the practicum because of personnel issues that had to be resolved before starting work.

Judson and I conferred on the most expeditious method for obtaining the raw data for the

research project. We developed a cover letter with an accompanying questionnaire to be

generated via e-mail to individuals in charge of labor standards enforcement in all fifty states and

the District of Columbia. The points of contact and their e-mail addresses were obtained from

the website of the Interstate Labor Standards Association (ILSA). Below is a sample of the letter

and questionnaire which was sent to all fifty states:

Copy of E-mail Request  

Dear: (name of state labor standards representative)

My name is Tim Judson and I am a policy specialist with Progressive States Network, a non-partisan, national non-profit that works to provide policy research and analysis to states across the country. I'm writing to you because the Interstate Labor Standards

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Association (ILSA) has listed you as the individual in charge of labor standards enforcement in (name of state).

We are conducting a 50-state survey of legislative and regulatory practices to enforce state wage laws and would greatly appreciate your help and expertise. We hope you will take the time to complete the brief questionnaire below about wage regulations and enforcement in (name of state).

Progressive States Network will use the information that you and your peers in other states provide to build a comprehensive survey that will describe wage enforcement practices in each state. Your participation would be of great help in compiling this critical information and would be greatly appreciated.

Please complete the questionnaire below and email it to wagesurvey@progressivestates.org. If there is a colleague to whom we should address this questionnaire, please send me their name and contact information so that I may contact them.

Thank you in advance for your participation!

Best regards,

Tim Judson Workers' Rights Policy Specialist

Progressive States Network

Questionnaire

If able, please provide the legislative code or relevant regulations citation.

1. How does New Jersey define employee? Employer? Independent contractor? Liquidated damages (if applicable)?

2. Are there any other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees?

3. Are employers required to notify the employee at the time of hiring of the wages and paydays? If either wages or paydays change, must employers notify employees, and if so, how?

4. Are employers required to provide written statements of employment agreements and policies upon employee request?

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5. Are employers required to keep payroll records? If so then for how long, and what must they contain? If there is such a requirement and the employer fails to comply, is there a rebuttable presumption that the employer did not pay the required minimum wage?

6. Are employers required to provide workers with a statement of hours worked, wages earned, and deductions for each payday?

7. If a wage violation occurs, what is the employer required to pay beyond wages or expenses that were not paid? For example: liquidated damages, attorney’s fees, etc. Is liability based on the intent of the employer?

8. If an individual is not properly classified as an employee, may the individual bring a civil action for damages against the employer? If so, what kinds of damages are available? In what amount?

9. Does the state agency responsible for labor issues have authority to inspect employer property pursuant to an investigation of wage violations? During such an investigation, is the anonymity of the employee protected, and if so how?

10. Does the state have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations?

11. What civil penalties are employers subject to for each violation?

12. Does the state have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy? If so, may an employee bring a civil action against shareholders?

13. How does an aggrieved employee and/or independent contractor file a civil action?

As the data came in via e-mail responses, I collected it in the form of a spreadsheet which is

still being utilized now. I am compiled it in the form I have included in the Appendix of this

paper. Since, many states seemed reluctant to respond to our survey, I called up all of the states

which did not and attempted to speak with their labor standards representatives.

Amazingly, I actually got the chief state labor representatives on the phone. One actually

wanted to talk more about his fond recollections of living in New York City in the 1970’s while

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going to college and meeting his wife. Another told me that he had the “Bible” of wage theft

written by Kim Bobo on his desk as his next “must read” book. Evidently, the issue of wage

theft was on the minds of all state labor standards officials.

Most often, I either talked to subordinates or had to leave multiple voice mails to which I

often never got a response. Quite a few personnel in these positions moaned about how

overworked they were and they did not have the time nor the personnel to research the answers

to all of the questions. Some said that they had been approached by other organizations or

universities doing very similar research.

I am especially grateful for the encouragement and assistance of Marisol Thomer, a PSN staff

member who is now currently working a policy specialist for American Association of Retired

People (AARP) in their Washington DC headquarters. Marisol constantly forwarded to me any

information she came across relating to wage theft. She had taught older students and had

empathy for someone like myself who did not fit the stereotype of the typical college intern.

Overall, my experience at PSN was a rewarding one even if I was unable to finish the entire

proposed project on my own. I left PSN on very good terms and continue to stay in contact with

Tim Judson and Marisol Thomer.

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Chapter Three

During my preparation for and my participation in my practicum, I had the opportunity to

learn many aspects of wage theft. I did extensive reading prior to the commencement of my

practicum in order to be well versed in all aspects of wage theft. All of the articles I have read

are listed in the bibliography even though not all of them have been cited in this paper.

In collecting the data relating to wage theft, I learned how many states view wage theft and

how serious they are in combatting it. The raw data I collected is listed in the Appendix of this

report and the conclusions I drew from the data is discussed in Chapter Four.

Since, PSN is an advocacy group that deals directly with the state legislatures of all fifty

states, the battle against wage theft is a huge part of their agenda. I am not certain whether or not

PSN’s particular strategy is effective but I do admire their sincerity and idealism. My experience

with elected officials, regardless of ideological stripe, is that they are more concerned with

pleasing their electorate than they are advancing legislation that might alienate the voters who

put them and keep them in office. After all, a politician’s elective position is his/her job and a

source of recognition and power. I will provide my personal views on PSN’s strategy in my

conclusion in Chapter Four.

What is wage theft?

"I call it the new slavery," said Rev. Gladys Vidor, pastor at Damascus Christian Church in

the South End.3 Reverend Vidor was speaking specifically about a woman from the Dominican

Republic who had been exploited by a hair dressing salon in New York. However, she could be                                                                                                                          3 Paul Grondahl, “Help Wanted Wage Theft Exploits Workers in What Advocates Call the “New Slavery” of the 21st Century: Long Hours, No Pay,” McClatchy - Tribune Business News (March 05, 2009), /abicomplete/docview/464922053/1322615A80141C6 http://search.proquest.com.library.esc.edu1D37/4?accountid=8067 (accessed October 01, 2011).  

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speaking for everyone who understands the severity of a social injustice system which only

recently has been given attention it deserves. Theft is exactly what the term implies: the act of

stealing.

The issue of wage theft was examined at a Wednesday news conference sponsored by the Labor-Religion Coalition of New York State, led by the group's co-chairmen, Richard Iannuzzi, president of the New York State United Teachers, and Bishop Howard Hubbard, who called wage theft a breach of the 8th Commandment: "Thou shalt not steal."4

As a Catholic catechist, I find it very interesting that so many religious/faith based groups

have spearheaded the fight against wage theft. However, it should hardly be surprising. Most

religious faiths have long traditions of fighting for the oppressed and the poor who happen to be

the most affected by wage theft.

So, how do wages get stolen? I have chosen to use the designations of wage theft based on a

list provided by Bobo5 in her seminal labor classic which should become a standard text in any

labor studies program. Certain categories of wage theft overlap, such as not paying for meal

periods which workers are not allowed to take and illegal deductions.

The problems of wage theft are particularly acute amongst day laborers.

Day Laborers Endure a Significant Level of Wage Theft. Fifty-four percent of day laborers experienced at least one instance in the last year of an employer paying them less money than promised; 48% experienced at least one instance of not being paid at all; 94% of those who on occasion worked over 40 hours per week reported that employers had not paid them overtime as required by state and federal laws.6

Specific instances of wage theft are too pervasive to cite here and has reached crisis

proportions. In New Orleans:

                                                                                                                         4  Ibid. 5Bobo, 23 – 41. 6 Immigrant Workers’ Rights Clinic, Ironbound Underground,Wage Theft & Workplace Violations Among Day Laborers in Newark’s East Ward, (Newark: Seton Hall University School of Law, Center For Social Justice, 2010), 2.

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A recent survey of 300 Hispanic day laborers indicated they had worked 12,000 unpaid days and lost $400,000 in wages, according to the New Orleans Congress of Day Laborers.7

Aspects of wage theft

Failure to pay any wages whatsoever

Probably the most egregious example of wage theft is the outright refusal to pay someone

at all for work done. Many employers completely “rip off” workers by not paying them

anything for work performed. In many ways, massive unemployment has made certain

workers even more vulnerable to wage theft. Day workers are victimized by both the lack of

jobs and by employers who exploit their desperation to work by not paying when they do

work. In Chicago, day workers are not only “stiffed” out of pay for work performed but

employers often leave them dead and maimed.8

In many ways, New York State has taken the lead with combatting wage theft:

Attorney General Spitzer today announced the indictment of a Brooklyn restaurant and its owners for failing to pay more than $16,000 in wages to six employees. Charged today in the five-count felony indictment were owner Chi Yung Lee and the Jade Plaza restaurant. This is the first felony prosecution of an employer for failing to pay required wages. The indictment charges that since May 2001, Jade Plaza and Chi Yung Lee failed to pay six waiters and busboys approximately $16,500 in wages. The indictment further alleges that while the employees were working approximately 54 hours per week at the restaurant in Sunset Park, they were, for some weeks, paid for only 40 hours per weeks and for other weeks, not paid at all. 9

Then New York State Attorney General Elliot Spitzer noted that an employer who fails to

pay wages in New York State was guilty of a misdemeanor and that a second offense would

constitute a felony due to legislation passed in 1998.10 There is no doubt that tough

                                                                                                                         7 Richard A. Webster, "New Orleans City Councilman Arnie Fielkow's proposal would make wage theft a crime", New Orleans City Business (July 20, 2009), http://search.proquest.com.library.esc.edu/docview/209574039?accountid=8067 (accessed October 01, 2011). 8 Stephen Franklin, "Forgotten Corners of the Economy," The American Prospect (October 2009), A16 - A18. 9  Office of the Attorney General, “Brooklyn Restaurant Owners Indicted For Allegedly Failing To Pay Workers” (New York, May 20, 2002), http://www.ag.ny.gov/media_center/2002/may/may20a_02.html ( accessed July 24, 2011). 10 Ibid.

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legislation, as exists in New York State, is certainly a good start in combatting wage theft. In

Denver, Colorado police have finally decided to treat wage theft for the crime of larceny that

wage theft really is:

Now the police can get involved. In an effort to protect largely immigrant day laborers from fraud, Denver has become the third city in the country to make nonpayment of wages a crime. "If someone steals a wallet, the police can come and arrest you," said Councilman Doug Linkhart, who proposed the ordinance that unanimously passed the council last month. "But if you don't pay [a person for work performed], the police can't do anything" to you.11

Failure to pay for all time worked

Failure of employers to keep any and/or accurate payroll records make it easy for employers

to cheat their workers and to make it extremely difficult for advocates for workers to investigate

wage theft claims. In response to the particular problem and wage theft, in general, late last year,

New York State passed the historic New York Wage Theft Protection Act. The below is an

overview which relate to keeping of payroll records with very significant penalties for failure to

comply:

Wage Statement Obligations: The Act also increases the recordkeeping requirements for payroll records from three to six years and requires the employer to provide the following information on employee wage statements: * The dates covered by the pay period (nonexempt employees other than manual workers who must be paid weekly must be paid not less frequently than semimonthly); * The name of the employee and the employer; * The employer's address and telephone number; * Rate(s) of pay and basis thereof whether paid by the hour, shift, day, week, salary, piece rate, commission, or other allowance, if any;

                                                                                                                         11 Nicholas Riccardi, "New Denver Law Aims to Ensure Pay for Immigrant Day Laborers; The measure is the third city ordinance in the U.S. to criminalize nonpayment of wages. It targets employers who shortchange workers," Los Angeles Times, January 3, 2006, A9.  

 

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* Gross wages; * Deductions; * Allowances if claimed as part of the minimum wage; and * Nonexempt employees must also be provided their regular hourly rate and overtime hours and the number of hours worked at each rate. Employers that fail to provide the above information may be subject to damages in the amount of $100 per week up to a maximum of $2,500, plus costs and attorney's fees. Again, the Commissioner may bring an action against an employer and the recovery is not capped.12

Employers may dispute when the work day starts and may deduct meal periods without

affording workers an opportunity to eat. This type of wage theft might be especially

prevalent with undocumented workers who do not keep records of hours worked or are afraid

to confront employers. This case involves Hispanic day workers in the state of New Jersey.

Nearly a quarter of the workers [in our sample] came in early and/or stayed late after their shift during the previous work week. Of these workers, 70 percent did not receive any pay at all for the work they performed outside of their regular shift.13

This case involves Chinese bakery workers in the city of San Francisco:

The City's complaint against Dick Lee Pastry additionally details a pattern of deceptive payroll practices, in which Yu and Chiu provided employees with copies of three-hour work schedules with instructions to inform government inspectors that the document accurately represented the time they had worked. Defendants paid only three hours per day by check at San Francisco's minimum wage, with remaining amounts paid in cash. Apart from paying their employees well below the minimum wage and refusing to pay overtime or double time when required, Yu and Chiu paid employees in a manner that deliberately concealed the true number of hours employees worked, according to the City Attorney's complaint.14

Paying with checks that “bounce”

                                                                                                                         12 Douglas Schwarz and Jessica Boar, "New York Wage Theft Protection Act: Compliance Required As of April 12, 2011," Employee Benefit Plan Revie,. April 2011, 1. 13Annette Bernhardt, Ruth Milkman, Nik Theodore, Douglas Heckathorn, "Broken Laws, Unprotected Workers," (www.unprotectedworkers.org. n.d. http://www.nelp.org/page/-/brokenlaws/BrokenLawsReport2009.pdf?nocdn=1), 3 ( accessed September 4, 2011). 14 San Francisco City Attorney's Office, "Wage theft lawsuit seeks to recover $440k in back pay, interest for cheated workers dick lee pastry paid well below minimum wage, demanded long hours with no overtime, falsified payroll records, retaliated against workers,"States News Service, July 12, 2011.

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The worsening economy has put pressure on businesses to meet payrolls. However, in

this particular case, an elected official in California faces political fallout for allowing his

gambling excesses affect the manner in which he treats employees in his personal business:

The name Frank Lopez Jr. has been synonymous with many good things in Vista. That's changing rapidly as the public learns more about his personal financial troubles, the lavish gambling by him and his wife, misdemeanor criminal charges of not paying workers' compensation for employees at his restaurant, and calls by his colleagues for him to resign. As for the bad, the whispers about his restaurant's shaky finances and tax liens have become a crescendo. We now know of government tax liens by the dozens, bounced checks to employees by the hundreds. A sheriff's investigation has unearthed a pattern of lavish gambling by the couple at the region's casinos, even at a time of financial reversals.15

The following is advice that the Legal Aid Society Employment Law Center in the state of

California gives to workers who questioned what their rights are when paid with a “bounced”

or bad check:

Your employer is required to have enough money in the bank (or a credit arrangement) to cover your paycheck for 30 days after the date it is issued. If your employer’s check bounced, and you attempted to cash or deposit the check within 30 days of receiving it, you can collect a penalty from your employer. If your employer doesn’t pay you the owed wages immediately after the check bounces, it will owe you an extra day of wages for each and every day you remain unpaid (in addition to the amount of the paycheck itself). This penalty begins on the day you present the check to your bank for deposit and accrues until your employer pays you or for 30 days, whichever is shorter. Your employer may be able to avoid paying the penalty by showing that the mistake with your check was unintentional. In order to receive this penalty you must file a claim with the California Division of Labor Standards Enforcement (DLSE).

You may have the right to additional (or different) penalties if you file a claim in civil court rather than filing a claim with the DLSE. You should consult a private attorney about filing a claim in civil court.

                                                                                                                         15 “Calling Frank Lopez | His Personal Life a Mess, Vista Councilman Urged to Quit,” San Diego Union - Tribune, August 12, 2010.

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Finally, if your employer does not have enough money to pay you, it has committed a misdemeanor and may have to pay a criminal penalty.16

Failure to pay overtime

Organized labor worked very hard to win the battle for overtime pay (normally time and a

half for any hours worked over the normal forty hours per week).17 One way is to make jobs

overtime exempt in violation of FLSA standards.18 An employer may deliberately misclassify a

worker as a “supervisor” strictly in order to avoid payment of overtime. While a New York State

Police investigator, I had direct experience with such an FLSA dispute over overtime eligibility.

It took the state police BCI investigators seven years in a protracted, expensive and bitter battle

with the state of New York to finally get paid overtime for hours worked beyond forty hours:

A recent Second Circuit decision illustrates the difficulty in accurately applying the administrative exemption. The court concluded that the New York State Police Bureau of Criminal Investigations ("BCI") investigators were not exempt under the administrative exemption. The inspectors' primary duties were the investigation and prevention of serious crimes, and there was no dispute that the investigators exercised broad discretion in the conduct of their investigations. The court concluded, however, that the investigators were engaged in "production" activities rather than "administrative" activities. The BCI is in the "business" of investigating and preventing crime, and, in effect, the investigators produce units of investigation. Reich v. New York, 3 F.3d 581 (2d Cir. 1993), cert. denied, 510 U.S. 1163 (1994).19

The United States Department of Labor Wage and Hour Division attempt to define which

occupations are overtime exempt although many cases end up in litigation over the interpretation

of these regulations. For example, attorneys representing New York City Police offices filed a

                                                                                                                         16. “Your Legal Rights: Paydays / Late Pay / Bounced Paychecks,” The Legal Aid Society - Employee Law Center, http://www.las- elc.org/factsheets/paydays.html (accessed October 16, 2011). 17 “Overtime Pay,” United States Deparment of Labor, http://www.dol.gov/dol/topic/wages/overtimepay.htm (accessed September 11, 2011). 18 Ibid.  19    Charles N Eberhardt and Perkins Coie, "FLSA Nuts and Bolts: Overtime Overview for Washington Municipal Employers," MRSC - Municipal Resources Service Center of Washington, http://www.mrsc.org/Subjects/legal/flsa/nutsbolt.aspx#top (accessed October 02, 2011).

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violation of FLSA lawsuit against the New York City Police Department and City of New York

disputing overtime calculation for members of the police department.20

In a dispute with independent grocery store chain, Gristedes, the New York Times reports:

A federal judge has ruled that Gristede’s violated federal and state laws by failing to pay overtime to hundreds of lower-level managers at its supermarkets. As a result of the decision by Judge Paul A. Crotty of Federal District Court in Manhattan on Thursday, lawyers for more than 400 current and former Gristede’s managers predicted that the company would be forced to pay the plaintiffs $25 million……. He rejected Gristede’s arguments that they were salaried executive workers who, under federal and state law, are generally exempt from receiving time-and-a-half pay for overtime.21

Vicente Martinez Avila, of Puebla, Mexico was given the patriotic job of tending the grounds

of a national cemetery in Cypress Hills, Brooklyn. The company that had the contract for ground

maintenance asked him to work more and more hours which he thought was a good thing, at

first. However, after examining his paycheck he noticed that he was not paid time and a half for

over forty hours worked. They kept explaining to him that they didn’t have the money to pay

him. When the company no longer needed his services, they let laid him off and ultimately left

town. Even with pressure from a workers right group, the California based company never paid

Avila the many hours of overtime worked.22

Obviously, many low paid immigrant workers do not have financial resources and political

clout of the members of the New York City Police Department to gain redress for overtime

grievances through civil litigation.

                                                                                                                         20 Attorneys for the Plaintiff, “Proposed Settlement Of Flsa Lawsuit Against The City Of New York And NYPD,” www.nypdflsa.com/ProvisionalSettlement.pdf (accessed September 11, 2011). 21 Steven Greenhouse, "Judge Rules That Gristede’s Broke Law on Overtime Pay," New York Times, September 02, 2008, http://www.nytimes.com/2008/09/03/nyregion/03wage.html2008 (accessed September 18, 2011). 22 Tom  Robbins, "Stealing Immigrants Wages in New York - Fleecing the immigrants is a big, safe business in New York,"The Village Voice, December 01, 2010, http://www.villagevoice.com/2010-12-01/columns/stealing-immigrants-wages-in-new-york/ (accessed September 11, 2011).

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Failure to pay minimum wage

The very idea of a minimum wage since its adoption during the New Deal remains a

controversial concept for “free market” fiscal conservatives and even political moderates. The

argument against the minimum wage has been that an artificial wage floor would “disemploy”

many workers and economically helping unemployed workers (such as unemployment

insurance) is a disincentive for working.23 On the other hand, in 1995, David C. Card and Alan

B. Krueger in Myth and Measurement published “The New Economics of the Minimum Wage”

which argued that the minimum wage did not present negative effects on employment.24

Regardless, the minimum wage remains the law of the land. Failure to pay the minimum

wage is wage theft from those less able to sustain such economic loss. In the ground breaking

“Broken Laws, Unprotected Workers," authors of the study for the National Employment Law

Project (NELP) noted the following minimum wage violations:

Fully 26 percent of workers in our sample were paid less than the legally required minimum wage in the previous work week. These minimum wage violations were not trivial in magnitude: 60 percent of workers were underpaid by more than $1 per hour.25

Misclassification of private contractors

One of the most controversial and hotly contested forms of wage theft by labor advocates is

misclassification of private contractors and employees. One of the difficulties with

misclassification of workers is in being able to define and differentiate between an independent

and private contractor and a worker. For the purpose of this project we will use the definitions

provided by the United States Internal Revenue Service:                                                                                                                          23  Thomas C. Leonard, "The Very Idea of Applying Economics: The Modern Minimum-Wage Controversy and Its Antecedents,” in Toward a History of Applied Economics, History of Political Economy, ed. Roger Backhouse and Jeff Biddle (Princeton, New Jersey: Princeton University Press, 2000), 11.  24  David Card and Alan B. Krueger. "Myth and Measurement: The New Economics of the Minimum Wage." Princeton University Press (1995).  25Annette Bernhardt, 2.

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Independent Contractor Defined  

The Internal Revenue Service provides the following definitions of independent contractor and employee:

People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to Self-Employment Tax.

If you are an independent contractor, you are self-employed. To find out what your tax obligations are, visit the Self-Employed Tax Center.

You are not an independent contractor if you perform services that can be controlled by an employer (what will be done and how it will be done). This applies even if you are given freedom of action. What matters is that the employer has the legal right to control the details of how the services are performed.

If an employer-employee relationship exists (regardless of what the relationship is called), you are not an independent contractor and your earnings are generally not subject to Medicare and Social Security Taxes for Self-Employed.

However, your earnings as an employee may be subject to Self-Employment Tax.

For more information on determining whether you are an independent contractor or an employee, refer to the section on Independent Contractors or Employees

Employee (Common-Law Employee)

Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.

Example: Donna Lee is a salesperson employed on a full-time basis by Bob Blue, an auto dealer. She works 6 days a week, and is on duty in Bob's showroom on certain assigned days and times. She appraises trade-ins, but her appraisals are subject to the sales manager's approval. Lists of prospective customers belong to the dealer. She has to develop leads and report results to the sales manager. Because of her experience, she requires only minimal

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assistance in closing and financing sales and in other phases of her work. She is paid a commission and is eligible for prizes and bonuses offered by Bob. Bob also pays the cost of health insurance and group-term life insurance for Donna. Donna is an employee of Bob Blue.26

The main reason why government, at all levels, have become more and more willing to

combat this particularly odious form of wage theft is because not only are misclassified

employees victimized but revenue sources for government are also stolen. In these very bleak

days of government cutbacks on services, massive shortfalls left by unscrupulous employers

have to be made up by taxpayers. The dilemma has reached crisis level and has government

officials concerned. Below is a list of reasons why misclassification of employees is deemed to

be problematic by labor advocates and government officials:

• Employers gain unfair competitive advantage • Workers denied access to:

o Affordable health care and retirement plans o Unemployment benefits – This is a huge issue today o Labor law protections afforded to “employees”

• Independent Contractors pay higher: o FICA o Quarterly estimated payments for federal & state taxes o Health care costs o Workers’ Compensation premiums

• If the Independent Contractor unable to pay: o Forces eligible workers out of the system o Lowers tax revenue o Further degrades Unemployment Insurance coverage27

Paying by the day or the job

When employers pay by the day or by the job, they avoid having to pay workers the

                                                                                                                         26  Employee (Common-Law Employee),United States Internal Revenue Service, http://www.irs.gov/businesses/small/article/0,,id=179112,00.html (accessed September 17, 2011).  27 Thomas Crowley, "Worker Worker Misclassification Issues - A Federal Perspective." NASWA Annual Conference, September 24, 2009, http://www.workforceatm.org/assets/utilities/serve.cfm?path=/ sections/pdf/2009/2009Annual/Crowley%20Worker%20Misclassification.pdf (accessed September 17, 2011).  

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minimum wage or overtime. Additionally, employers will often pay with cash to avoid

withholding the standard payroll taxes, unemployment insurance or workers compensation.28

Day laborers are particularly victimized by this illegal practice since they often are hired a

“shape up” sites by contractors looking to hire them by the day or by the job, are paid in cash (if

actually paid, at all) and records are almost never kept so enforcement of labor laws is nigh

impossible.29

Making workers pay for a job

An opportunity for desperate unemployed workers presented itself in the wake of Hurricane

Katrina. So much so that the Southern Poverty Law Center reports:

Following Hurricane Katrina, a major hotel company in New Orleans, Decatur Hotels LLC, decided to arrange for H-2B guest workers to fill hotel jobs that had been vacated by employees who apparently were driven from the city by the massive destruction. In its request to the Department of Labor for permission to hire up to 290 guest workers, the company claimed to "have offered work to hurricane evacuees" but "no one applied." Agents for the company, however, found plenty of willing workers in Peru, Bolivia and the Dominican Republic. Each recruit paid between $3,500 and $5,000 to come to the United States for hotel jobs — maintenance, housekeeping, guest services, etc. — that were scheduled to last just nine months. According to the terms of the written contract, each would have to work full-time for three to four months just to recoup the recruiting fees, not counting any interest on loans they may have taken out. When they arrived, they found they were not even able to work full-time with the hotels, making their situations even more desperate30.

Making illegal deductions from worker’s paycheck

Employers cannot have it “both ways.” Either an employee is salaried and therefore

overtime exempt or they are not. We have previously seen (section (d) Failure to pay overtime)

                                                                                                                         28   Bobo, 29. 29  All Work and No Pay; Day Laborers, Wage Theft, and Workplace Justice in New Jersey, January, 2011, 1. 30  "Workers pay up to $5,000 for post-Katrina hotel jobs." Southern Poverty Law Center. http://www.splcenter.org/publications/close-to-slavery-guestworker-programs-in-the-united-states/recruitment-exploitation-be-1 (accessed August 07, 2011).  

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where Gristedes, a large independent grocery store chain, was found to have failed to pay

massive amounts of overtime to employees who were found overtime eligible. In the case

below, Gristedes was again “caught” making illegal deductions which invalidated their claim

that employees were paid on a set salary (and therefore overtime ineligible):

Gristede’s maintained that it had been paying weekly salaries to the department heads and co-managers, the No. 3 managers in a store. But Judge Crotty found that they were not salaried because the company often deducted money from their paychecks when they missed part of a day.31

The following pertains to laws of certain states regarding pay stub violations and illegal

deductions:

In California, Illinois and New York, workers are required to receive documentation of their earnings and deductions, regardless of whether they are paid in cash or by check. However, 57 percent of workers in our sample did not receive this mandatory documentation in the previous work week. Employers are generally not permitted to take deductions from a worker’s pay for damage or loss, work-related tools or materials or transportation. But 41 percent of respondents who reported deductions from their pay in the previous work week were subjected to these types of illegal deductions.32 One very interesting twist in regards to illegal payroll deductions is that of a case in Michigan schools which take deductions for teacher’s union dues which, in turn, could be used for political action initiatives. Todd A. Heywood of the Michigan Messenger writes: The Republican-controlled Michigan Supreme Court late Thursday afternoon ruled that schools are breaking the Michigan Campaign Finance Act when they administer payroll deduction programs for unions, when part of that money goes to a political action committee. The case is actually a reversal of a late December ruling by the Court, then controlled by Democrats, that the funding process was legal.33

                                                                                                                         31Greenhouse. 32  Annette Bernhardt, 2. 33Todd A. Heywood, "Court: Payroll deductions for political contributions illegal." The Michigan Messenger, July 1, 2011, http://michiganmessenger.com/50435/court-payroll-deductions-for-political-contributions-illegal (accessed September 18, 2011).  

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Stealing workers tips

State of Maine Representative Diane Russell corresponded via e-mail with my practicum

supervisor, Tim Judson, workers right specialist at Progressive States Network regarding

legislation she was proposing specifically regarding theft of tips by employers.

“I thought the bill below might be of interest to you as either a restaurant owner, current/former waiter or consumer of the culinary arts. As a member of the latter category, I confess I am accustomed to paying tips and take great pride in tipping rather generously in our fine establishments in Portland, knowing in great confidence the reward goes directly to the server(s) who have graced me with their service.”34

The salaries of all professional sports players began to “sky rocket” when Curt Flood sued

major league baseball for players’ rights to become free agents.35 No doubt, many professional

sports team owners believe that players unions have been the cause of sporting events being

“priced out” out of the entertainment market. Therefore, it is ironic that the name of a major

league baseball player would be associated with wage theft of workers making below poverty

wages:

“Carlos Beltran's restaurant's is stealing more than bases, according to a suit filed Friday by workers who say the Latin cuisine hotspot has swiped tips and overtime. Sofrito, a high-end midtown Puerto Rican eatery co-owned by the Mets slugger, owes back pay and penalties to waiters, busboys, bartenders and others, court papers charge. "This lawsuit seeks to recover minimum wages, overtime compensation, misappropriated tips, unlawful deductions" and other pay, says the suit, filed in Manhattan Federal Court.”36

                                                                                                                         34 Diane Russell, State Representative, Portland, Maine in an e-mail to PSN dated Febuary 7, 2011. 35  Paul Lore, "Guest commentary: The real legacy of Curt Flood." St. Louis Today , July 19, 2011, http://www.stltoday.com/news/opinion/article_466fdba5-a5d8-5796-a760-a4777e20a15c.html (accessed September 25, 2011). 36 Scott Shifrel, "Mets star Carlos Beltran's restaurant is stealing our tips and overtime, workers claim in lawsuit." New York Daily News, April 15, 2011, http:// articles.nydailynews.com/2011-04-15/local/29453048_1_workers-claim-carlos-beltran-court-filings (accessed September 18, 2011).

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Not being paid final paycheck

In most states, it is unlawful for an employer to fail to pay an employee their last paycheck,

regardless of the reason for separation from employment. However, states may vary as to when

an employer is obligated to pay a former employee their final paycheck.37

CHARLESTON -- A Kanawha County woman is suing her former employer for not paying her last wages on time. Leah Page worked for Mama Rosa's Pizzeria from July 9, 2008, until July 6, 2009, according to a complaint filed Feb. 2 in Kanawha Circuit Court. The defendant did not issue her final paycheck until July 17, 2009. Page claims because the defendant waited 11 days from the date of her discharge, they violated the West Virginia Wage Payment and Collection Act. Page is seeking all remedies entitled to her under the West Virginia Wage Payment and Collection Act and pre- and post-judgment interest as provided by law. She is being represented by Todd S. Bailess. The case has been assigned to Circuit Judge Paul Zakaib Jr. Kanawha Circuit Court case number: 10-C-20338

Not be paid prevailing wages

The definition of “prevailing wages” is found in several federal laws. For the purpose of this

section, we will use the definition provided in the Davis Bacon Act found on the United States

Department of Labor website under Wage and Hour Division:

Davis-Bacon and Related ActsOverview The Davis-Bacon and Related Acts, apply to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. Davis-Bacon Act and Related Act contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area. The Davis-Bacon Act directs the Department of Labor to determine such locally prevailing wage rates. The Davis-Bacon Act applies to contractors and subcontractors performing work on federal or District of Columbia contracts. The Davis-Bacon Act prevailing wage provisions apply to the “Related Acts,” under which federal agencies assist construction projects through grants, loans, loan guarantees, and insurance. For prime contracts in excess of $100,000, contractors and subcontractors must also, under the provisions of the Contract Work Hours and Safety Standards Act, as amended,

                                                                                                                         37 Wage and Hour Division (WHD). United States Department of Labor. http://www.dol.gov/whd/regs/compliance/fairpay/main.htm (accessed September 11, 2011).  38  Kyla Asbury, "Former employee sues Mama Rosa's Pizzeria for failure to pay wages on time ." The West Virginia Record, Feb 22, 2010, http://www.wvrecord.com/news/224918-former-employee-sues-mama-rosas-pizzeria-for-failure-to-pay-wages-on-time (accessed September 4, 2011).  

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pay laborers and mechanics, including guards and watchmen, at least one and one-half times their regular rate of pay for all hours worked over 40 in a workweek. The overtime provisions of the Fair Labor Standards Act may also apply to DBA-covered contracts.39 Prevailing wages is a term used in a legislative effort to provide organized labor a fair chance to bid for government contracts. Federal law requires all employers engaged in the performance of federal contracts to pay "prevailing" wages to their workers. This ensures that nonunion employers cannot gain an unfair bidding advantage by paying wages far below the union rate and passing the savings on to the government in lower bids. A prevailing wage is a rate of pay determined by the U.S. Department of Labor based upon the particular geographic area for a given class of labor and type of project. The Davis-Bacon Act, the McNamara-O'Hara Service Contract Act, and the Walsh-Healy Act are the primary laws governing federally funded construction projects in the private sector.

The Davis-Bacon Act requires that all contractors and subcontractors performing on federal contracts (and contractors or subcontractors performing on federally assisted contracts under the related Acts) in excess of $2,000 pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits (as determined by the Secretary of Labor) for corresponding classes of laborers and mechanics employed on similar projects in the area.The Wage and Hour Division of the U.S. Department of Labor determines prevailing wage rates to be paid on federally funded or assisted construction projects. It is the responsibility of the federal agency that funds or financially assists Davis-Bacon covered construction projects to ensure that the proper Davis-Bacon wage determination(s) is/are applied to such construction contracts.40

The below is a case in which Massachusetts Attorney General Martha Coakley took action

against the owner of a New Hampshire construction firm doing business in the state of

Massachusetts for failing to pay prevailing wages:

BOSTON – The owner of a New Hampshire waterproofing company is prohibited from doing public construction work in Massachusetts for two years and was ordered to pay full restitution for failing to properly pay dozens of employees, Attorney General Martha Coakley announced today.

Stephen P. Bissonnette, age 45, of Salem, New Hampshire, was sentenced by Suffolk Superior Court Judge Regina Quinlan yesterday to 59 days in jail, with the sentence

                                                                                                                         39 “Overtime Pay,” United States Department of Labor, n.d., http://www.dol.gov/dol/topic/wages/overtimepay.htm (accessed Spetember 11, 2011). 40 "Prevailing Wages Law & Legal Definition," (USLegal.com. n.d.), http://definitions.uslegal.com/p/prevailing-wages (accessed September 18, 2011).  

31    

suspended for a probationary period of four years on the charges of Failure to Pay Prevailing Wages (12 counts) and Failure to Submit True and Accurate Certified Payroll Records (12 counts). Judge Quinlan also ordered Bissonnette to pay full restitution in the amount of $36,392.80 to 24 former employees. In addition, Bissonnette is prohibited from doing any public construction in the Commonwealth for a period of two years. Bissonnette pled guilty to these charges in December 2010.41

Why has wage theft become so prevalent? One of the main reasons is that employers cheat

workers is simply because they can. Danny

Postal and Ted Smukler of Interfaith Worker Justice in "Go Ahead, Try and Make Me Pay You:

Wage Theft and S.B. 1070" write:

“The Arizona Interfaith Alliance for Worker Justice, a worker center in Phoenix, has seen a "huge spike" in wage theft since SB 1070, Arizona's draconian immigration law, passed in April. Trina Zelle, the group's executive director, has seen a "noticeable shift" in the four months since the measure was signed into law. "Employers are even more brazen in their mistreatment of workers," Zelle says. "Increasingly, "Go ahead, try and make me pay you" is the response workers hear when they confront their employers over unpaid wages.”42

What has made employers so confident that they can simply not pay workers and not

suffer any consequences? In the above example, Postal and Smuckler attribute anti-

immigrant animus in this country making low wage immigrant workers especially vulnerable

to wage theft. Elizabeth Fussell, Associate Professor, Sociology Department, Washington

State University in “The Threat of Deportation and Victimization of Latino Migrants: Wage

Theft and Street Robbery” says exactly that: “Unauthorized Latino migrants’ fear of

                                                                                                                         41    Attorney General Martha Coakley, "New Hampshire Contractor Debarred and Ordered to Pay Restitution for Prevailing Wage Law Violations," (Official Website of Attorney General of Massachusetts, March 29, 2011), http://www.mass.gov/?pageID=cagopressrelease&L=1&L0=Home&sid=Cago&b=pressrelease&f=2011_03_29_bissonnette_plea&csid=Cago (accessed September 18, 2011).  42  Danny Postal and Ted Smukler, "Go Ahead, Try and Make Me Pay You: Wage Theft and S.B. 1070,"Thou Shalt Not Steal: A Toolkit On Wage Theft, 34-35 (Chicago: Interfaith Worker Justice, 2010).  

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deportation is widespread and causes many to avoid law enforcement authorities, making

them especially vulnerable to victimization.”43 In her research specifically on foreign born

Latino immigrants’ vulnerability to be wage theft, Fussell adds:

Intensified immigration control policies and infrastructure have made unauthorized immigrants’ illegality in the U.S. more consequential. This is reflected in finding that two-thirds of foreign-born Latinos worry that they or their friends or family members could be deported.44

I believe that part of the problem is that wage theft has not been treated for what it truly is:

larceny or outright theft. For some strange reason, a restaurant owner can have a customer who

failed to pay for their meal arrested for “theft of services.” However, that same restaurant owner

may not consider failure to pay their own workers as a similar criminal act. Slowly, but surely,

that form of shaky logic is being challenged.

Maryland has a “theft of services” provision in its criminal code, which can complement work being done by the Employment Standards Division. Criminal enforcement alone, however, would be insufficient because criminal “theft of services” laws do not provide for monetary remuneration to the worker. Additionally, the standard for proving that an employer has violated a criminal law is much higher than the standard under civil wage and hour laws. Criminal laws are therefore not a stand-alone solution to the widespread problem of employers’ failure to pay workers the wages they are due, but they do provide another important tool to hold employers accountable and to demonstrate to employers the consequences of breaking the law. Since only law enforcement agents can enforce the criminal laws (not the individuals affected), law enforcement agencies under the new administration should make enforcement of the “theft of service” law a priority.45

One of the huge problems in combatting wage theft is the lack of enforcement of wage laws

already in existence. Progressive States Network’s Tim Judson writes:

                                                                                                                         43  Elizabeth Fussell, Associate Professor, Sociology Department, Washington State University, "The Threat of Deportation and Victimization of Latino Migrants: Wage Theft and Street Robbery," (Political Science Deparment, University of Southern California (UCLA). n.d.), http://www.polisci.ucla.edu/new- folder/papers/Fussell %20%20Threat%20of%20deportation%20and%20victimization.pdf, 1, (accessed October 11, 2011).  44  Fussell, 2. 45 "WAGE THEFT: How Maryland Fails to Protect the Rights of Low-Wage Workers," (CASA of Maryland. January 2007), http://www.casademaryland.org/storage/documents/wagetheft.pdf., 13 (accessed October 11, 2011).

33    

A crime wave has been sweeping Illinois, with surveys of low-wage workers in the Chicago area showing an average of 146,300 cases of wage theft each week -- resulting in about $7.3 million each week in unpaid wages, or $380 million stolen from workers each year. In order to crack down on this criminal wage theft, the Illinois General Assembly on May 3 nearly unanimously (56-0 in the Senate and 112-1 in the House) passed SB 3568, which will strengthen the state’s ability to enforce violations of the

Another cause of rampant wage theft may very well be the decline and demise of trade

unionism. Some see the inability of workers to deal collectively with employers gives employers

the ability to steal from workers.

Union-busting gives employers the means to manipulate the labor market in order to squeeze out more profits by paying workers less than what a free and fair market would bear. It's wage theft of another kind – perfectly legal, but just as costly for working people.46

Basically, the individual state survey letter that I assisted Judson with devising has covered

the entire gamut of wage theft: aspects, prevention, investigation and compensation. Hopefully,

as public awareness of wage theft grows protective state legislation will enacted.

                                                                                                                         46 Joshua Holland, "Union-busting gives employers the means to manipulate the labor market in order to squeeze out more profits by paying workers less than what a free and fair market would bear. It's wage theft of another kind – perfectly legal, but just as costly for worki." (Alernet. February 23, 2011), http://www.alternet.org/economy/150029/union-busting_is_theft_--a_weapon_of_class_warfare_from_above, (accessed October 02, 2011).

34    

Chapter Four

Conclusion

My views on the potential success of PSN’s unique strategy

My experience during my unpaid practicum with the Progressive States Network was unique

and rewarding. The proposed PSN project is very ambitious. It is apparent that it will take the

cumulative work of several interns to come up with a finished product. I do regret that I was not

able to make as much progress on their project as I would have liked. However, I am happy that

I was able to contribute significantly.

I certainly felt like an odd duck to the PSN staff both because of my being so much older and

based on my ideological differences. Despite my feelings of being out of place, I am grateful for

their willingness to allow me to work with them. I doubt that either my ideological views or

theirs will change much as a result of our interaction but I have tremendous respect for their

commitment to their progressive causes.

My own personal experience as a former elected labor official47 and as someone who has

engaged in the formal politics certainly has influenced my views on legislative initiatives.

Certainly my experience as a police investigator and observing the worst of human behavior also

has affected my outlook. I believe that the staff at PSN is very sincere in their hopes to improve

the lot of working families through lobbying state legislators throughout the nation.

Many of President Obama’s most ardent supporters have become the most disenchanted with

him. In 2008, many had treated Obama as the next secular coming of Jesus Christ. Slogans of

“Yes we can!”, “Hope” and “Change” captured the imagination of young idealists all over the

                                                                                                                         47  I was the elected Long Island delegate for the New York State Police Investigators Association (NYSPIA) from 2000 – 2002.

35    

world. Obama also had the advantage of a massive economic meltdown during a Republican

administration to propel his campaign.

On the other hand, many feminists had pinned their hopes on Hillary Clinton becoming the

first woman president. However, the Clintons had already been overexposed and considered too

much a part of the old guard. Many were just plain tired of the Clintons and their fabled

shenanigans. Obama was a fresh new face with incredible charisma and there was the added

hope of African Americans that the ultimate color barrier would be broken.

People of color registered to vote in record numbers. Hillary Clinton who had always enjoyed

tremendous popularity with the black community was cast aside when the possibility of election

one of their own appeared to be achievable. People of all political persuasions just wanted a

change for change’s sake.

The energy of the “Occupy Wall Street” movement seems to have coopted much of the pre-

election Obama fervor. The Green Party certainly hopes to harness some of that angst at

corporate greed and hopes to run their own candidate for president. Many in the “Occupy”

movement feel that Obama has not lived up to his promises to the progressives who got him

elected.

The point I am trying to make is that getting elected and governing are two distinct things.

Obama did not really have a record for his opponents to repudiate. It was easy for him to tap

into the national discontent and to find fault with his Republican predecessor. Now, Obama

must run on his own record which many of his remaining supporters say is pretty good.

Doubtless, Obama will be able to raise unprecedented amounts of political contributions to

remind voters what his successes have been. That is somewhat of an irony because many in the

36    

progressive movement bemoan the role of money in political campaigns. I guess hypocrisy is in

the eyes of the beholder.

It is my opinion that Obama has been much more of a centrist and pragmatist than the base of

his supporters had hoped. He has learned that getting things done in Washington is not as easy

as many of his politically naïve supporters realize. He has had to compromise in areas that many

who pinned all of their hopes with him are willing to tolerate.

What I found among the staff workers of PSN was naïveté regarding how the real world of

politics works. Some had been grass roots supporters of Obama and others had worked on the

campaigns of less successful left leaning candidates. I think that many in the progressive

movement are still under the illusion that Obama got elected as president because the country

embraced his pre-election “pie in the sky” progressive promises versus a nation wanting change

just for the sake of change. Luckily for Obama, the current field of inept Republicans is

knocking each other out for the dubious privilege of getting beat badly in the general election.

2016 is going to be quite another story as neither major party has the very powerful advantage of

incumbency.

It was my feeling that the PSN staff thinks that mere proposals to state legislators are what

become law. Elected officials never lack for individuals and groups lobbying them for what

they want. As well-meaning as elected officials may be, the divide between a proposal and an

enacted law is often very wide. Self-interest and self-preservation is often foremost in the minds

of public servants who have made elective office their means of livelihood.

Anyone who has ever been a labor official knows what it is like to please their constituency

who expect them to put their careers on the line and perform miracles for them. Quite frankly, I

37    

did not become a delegate to my union because I was so popular. My predecessor had been

elected in a highly contested election. However, he was driven off the job largely due to his

union activity. I was the only person willing to take the position when he left. I was persuaded

by one member who did not want to expose himself to the dangers of anti-union animus that I

should look out for my fellow investigators. However, none of those who felt that I should

serve them were willing to practice what they preached.

It is very difficult for elected officials not to feel the same way I did when I was abandoned

by those I had served. Many who seek political office have noble goals of service to others

above self. However, the reality of the process soon becomes apparent. Many who hold

political office want to stay in political office; especially if they are not term limited. Legislators

begin to feel that it is only right that if they are able to facilitate legislation beneficial to

interested parties that those same parties should reciprocate in facilitate them to remain in office.

Legislators are also reluctant to sponsor legislation that is not popular with their particular

constituency no matter how sympathetic they might be to the proponents of particular legislation.

Successful politicians are highly attuned to the wishes of their electorate. I find it humorous

when political action groups are frustrated and become outraged when politicians act like

politicians.

Although, PSN claims to be politically nonpartisan, much of the legislation proposed by PSN,

in my opinion, would only be embraced by the extreme left or what could be called the “liberal

base” of the Democratic Party. In fact, the very term “progressive” became an alternate

buzzword for “liberal” which had become a dirty word in politics in much the same way as the

terms socialism and communism.

38    

Interpreting the data collected from the states which responded to PSN during the time of my practicum

An examination of the state wage enforcement laws of the states from which I collected data

closely reflects the political dichotomy of the union. The terms “red” and “blue” states became

a part of the American political lexicon after the 2000 election. “Red” reflects Republican or

conservative states and “blue” reflects Democratic or liberal states as those terms are understood

in present day American politics. 48 I believe that these terms are not hard and fast and can be

fluid. Some “moderate,” “purple” or “battleground” states can fall into either camp and will be

the ones mostly hotly contested this year. According to website www.270towin.com, 49 there

are, as of March 18, 2012, thirteen states which currently fit in that category: Nevada, Colorado,

New Mexico, Iowa, Missouri, Wisconsin, Michigan, Ohio, Pennsylvania, Virginia, North

Carolina and New Hampshire and Florida. Obviously, those numbers will change as it gets closer

to Election Day.

It is my belief that those states currently deemed to be Republican or “red” tend to have the

least stringent worker protection and those states which are presently deemed “blue” have the

greatest protection in terms of wage enforcement laws. For example, Alabama and Mississippi

are both deemed “red” states and neither has state labor standards. Both merely adhere to

minimum federal standards. On the other hand, Florida is “up for grabs” and it does not have a

state labor standards department. This might be an indication of a state evolving towards greater

worker’s rights.

                                                                                                                         48“Origin of Red States, Blue States,” Baruch College – Newman Library 2008. http://newman.baruch.cuny.edu/pres_election_08map/page2.htm, (accessed March 18, 2012). 49 “The Road to 270,” 270 To Win 2012, http://www.270towin.com/, (accessed March 18, 2012).

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Alaska, the land of Sarah Palin, is solidly “red” and has no legal recourse for misclassified

independent contractors. It is the same for Arizona where abuse of immigrant workers has

already been addressed in this paper. Arkansas, currently deemed a “red” state, clearly defines

“employees” and “independent contractors” but does not appear to have legal recourse for those

who claim to be misclassified as “independent contractors.” On the other hand, “blue” state

Minnesota has clearly defined “employees” and “independent contractors.” It also has extensive

labor laws protecting workers from wage theft.

Connecticut is deemed a “blue state” but the state labor standards department does not define

the difference between “employee” and “independent contractor.” However, there are other

sections of state law that does which also has provisions for contesting misclassification. The

“blue” state of Oregon does not specifically define “independent contractor” but it does apply the

federal economic test to determine if an employee has been misclassified as an “independent

contractor.”

While the writer was unable to include results of all fifty states, the results obtained and

reported in this paper are still fairly representative of the extremes in state enforcement of wage

laws throughout the entire country. We will make an attempt to give a detailed comparison of

the laws of those states that can be viewed more friendly to labor with those that are not. It is

fair to say that the results will be deemed fairly predictable to seasoned policy and labor analysts.

It is no mistake that Minnesota, the state that produced many social justice advocates like

former vice-president and presidential candidate Hubert Humphrey and the late Senator Paul

Wellstone, would have the most extensive wage theft legislation. It covers 16 full pages of

detailed laws in the Appendix of this report where the state of Alabama has one line stating

merely that it adheres to federal standards.

40    

It is often said that the “devil is in the details.” The greatest and most important details in

regards to any law start with its definitions. Minnesota goes to great lengths to define what an

employee is and, maybe as importantly, what an employee is not. The list of categories is

seemingly endless with the intent of closing any loopholes were a true employee could be

illegally misclassified as an independent contractor and thus deprive them of rightful employee

entitlements. It bears repeating that misclassification of employees has become of the most

pervasive forms of wage theft. Someone not deemed to be an employee does not have the

protection of employment law which makes it very advantageous for an employer to deliberately

misclassify employees.

Possibly, the only thing worse than being misclassified is for an true employee not to be paid

at all. The state of Minnesota appears to have given its Commissioner of Labor Standards great

and far reaching powers in investigating claims of wage theft. The requirements for keeping

payroll records are quite stringent and penalties for failing to keep proper records appear quite

punitive. For instance, the failure to pay wages promptly makes the employer liable to pay the

employee a full day’s wage up to 15 days for every day after an employee demands his wages.

In solid contrast, the state of Texas has extensive definitions of employees and independent

contractors with all the usual distinctions between them made very clear. However, the problem

lies with the ability of a misclassified employee to seek legal redress. There is very little means

under state of Texas labor law to redress wage disputes. In the event that the Texas Workforce

Commission (TWC) does investigate and find a violation the penalty is rather miniscule and is

payable to the TWC and not the aggrieved employee. That approach hardly appears to be a

deterrent to prospective wage thieves.

41    

Based on my examination of the wage enforcement laws I was able to obtain, I do not believe

that the strategy of dealing with states individually is effective. It appears to me that certain

states would have no wage enforcement regulation at all if it were not for overriding federal

legislation giving them at least a minimum standard in which to adhere as in the case of Alabama

and Mississippi.

I believe that the only remedy for creating effective laws to combat wage theft is through

federal legislation. I believe that the federal government has the ability to hire sufficient wage

theft investigators to enforce the laws that certain individual states do not or simply will not. The

disparity in wage enforcement laws between states throughout the country is far too great. All

truly great social legislation has come as a result of federal intervention and the enforcement of

wage theft laws is no different.

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Appendix

Results of the survey:

ALABAMA

Alabama has no minimum wage laws. They adhere to federal laws on most employment issues.

ALASKA

Definitions: No definitions for "independent contractor", "employer" or "liquidated damages". For minimum wage purposes, Alaska has various categories of employees, defined by statute here: http://www.touchngo.com/lglcntr/akstats/aac/title08/chapter015/section910.htm

Misclassification: Alaska does not define “independent contractor” and as such there are no laws regulating the use of independent contractors. Independent contractors have no apparent statutory basis for contesting misclassification if they believe they are actually employees, and the aggrieved worker may not bring a civil action against the employer for misclassification.

Recordkeeping: Employers in Alaska are required to notify the employee at the time of hiring of paydays and wages (in writing). If either wages or paydays change, employers must notify employees of these changes in writing before they take effect (AS 23.05.160). However they are not required to provide workers with a statement of hours worked, wages earned, and deductions for each payday. Employers also need not provide written statements of employment agreements and policies upon employee request. Records of the name, address, and occupation of each person employed, the daily and weekly hours worked by each person, and of the wages paid each pay period to each person must be kept for three years (AS 23.05.080). Employer must show good faith in order to avoid liquidated damages if there is a recordkeeping violation.

Penalties and general recourse: If a wage violation occurs, employers are possibly liable for liquidated damages and attorney's fees under AS 23.10.110. Liability does not seem to be based on the intent of the employer, although the above statute says a showing of good faith can allow the employer to avoid liquidated damages. Misclassified employees have no recourse in the form of a civil action if they have been misclassified as independent contractors. Regarding penalties for minimum wage violations: “An employer who violates a provision of AS 23.10.050 - 23.10.150, or of any regulation or order of the commissioner issued under it, upon conviction is punishable by a fine of not less than $100 nor more than $2,000, or by imprisonment for not less than 10 nor more than 90 days, or by both. Each day a violation occurs constitutes a separate offense.” (AS 23.10.140). Alaska has no provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. If the employee wishes to file a civil action, presumably the aggrieved individual can hire a private attorney.

Investigations of wrongdoing: The Alaska Department of Labor and Workforce Development has authority to inspect employer property pursuant to an investigation of wage violations (AS

43    

23.05.100). However the anonymity of the employee is not protected. Furthermore Alaska does not have a provision for protecting employees (or those who assist them) from retaliation by employers.

ARIZONA

Definitions: Arizona has various categories of employer (AZ 23-613.01) and employee (AZ 23-350). Independent contractor (AZ 23-216) relies on IRS Code 3508 for definition. No definition for liquidated damages.

Misclassification: Arizona does not define “independent contractor” and as such there are no laws regulating the use of independent contractors. Independent contractors have no apparent statutory basis for contesting misclassification if they believe they are actually employees, and the aggrieved worker may not bring a civil action against the employer for misclassification.

Recordkeeping: Employers are required to designate two or more paydays per month (AZ 23-351), but the time at which this must be done is not specified. Employers are required to provide written statements of employment agreements and policies upon employee request (AZ 23-364 D). Employers are required to maintain payroll records showing the hours worked for each day worked, and the wages paid to all employees for a period of four years. Failure to do so shall raise a rebuttable presumption that the employer did not pay the required minimum wage rate. (AZ 23-364 D.). Employers are not required to provide workers with a statement of hours worked, wages earned, and deductions for each payday although employees have the right to inspect their payroll records maintained by the employer.

Penalties and general recourse: An employer who has been ordered by the department pursuant to section 23-357 or a court to pay wages due an employee and who fails to do so within ten days after the order becomes final is liable to pay the employee an amount which is equal to treble the amount of the unpaid wages and which shall be subject to interest at the legal rate.” (23-360) Under 23-361.01, if an employer does not comply with reporting laws, the employer is liable for treble the amount of all withholdings, or 5,000 dollars, whichever is greater. This is in addition to any other applicable penalties. 23-364 (G) states in part: “The commission and the courts shall have the authority to order payment of such unpaid wages, other amounts, and civil penalties and to order any other appropriate legal or equitable relief for violations of this article. Civil penalties shall be retained by the agency that recovered them and used to finance activities to enforce this article. A prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.” There is no statutory provision for an employee to take civil action for damages against an employer who misclassifies an employee. An employer who has been ordered by the department pursuant to section 23-357 or a court to pay wages due an employee and who fails to do so within ten days after the order becomes final is liable to pay the employee an amount which is equal to treble the amount of the unpaid wages and which shall be subject to interest at the legal rate.” (23-360) (emphasis added). Under 23-361.01, if an employer does not comply with reporting laws, the employer is liable for treble the amount of all withholdings, or 5,000

44    

dollars, whichever is greater. This is in addition to any other applicable penalties. 23-364 (G) states in part: “The commission and the courts shall have the authority to order payment of such unpaid wages, other amounts, and civil penalties and to order any other appropriate legal or equitable relief for violations of this article. Civil penalties shall be retained by the agency that recovered them and used to finance activities to enforce this article. A prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.” An employer who has been ordered by the department pursuant to section 23-357 or a court to pay wages due an employee and who fails to do so within ten days after the order becomes final is liable to pay the employee an amount which is equal to treble the amount of the unpaid wages and which shall be subject to interest at the legal rate.” (23-360) (emphasis added). Under 23-361.01, if an employer does not comply with reporting laws, the employer is liable for treble the amount of all withholdings, or 5,000 dollars, whichever is greater. This is in addition to any other applicable penalties. 23-364 (G) states in part: “The commission and the courts shall have the authority to order payment of such unpaid wages, other amounts, and civil penalties and to order any other appropriate legal or equitable relief for violations of this article. Civil penalties shall be retained by the agency that recovered them and used to finance activities to enforce this article. A prevailing plaintiff shall be entitled to reasonable attorney's fees and costs of suit.” Employers are subject to civil penalties of $250 per violation. (23-364). The state does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. The state does not have a specific provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. However, a civil action to enforce this article may be maintained in a court of competent jurisdiction by a law enforcement officer or by any private party injured by a violation of this article.” (23-364 E). Under 23-355 an employee may recover under a civil action, and may alternately recover by filing a claim with the Industrial Commission against the employer under 23-356 (unless the amount is over $2,500). Under 23-357, if it’s a claim with the Commission, they conduct the investigation, and can direct the unpaid wages to be paid.

Investigation of wrongdoing: The state agency responsible for labor issues has authority to inspect employer property pursuant to an investigation of wage violations. During such an investigation, the anonymity of the employee is protected except as required to prosecute violations of the article (23-364 D). However, there is no specific mention of how anonymity of the employee is protected. “Minimum wage complaints require the aggrieved party to file a complaint with the commission. The name of the individual shall be kept confidential as long as possible and may be disclosed only with the employee’s consent.” (23-364 C). Arizona does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations (23-364 G).

45    

ARKANSAS

Definitions: Arkansas Code section 11-4-203 contains all definitions and exceptions as relates to minimum wage law. No definition for liquidated damages.

“Employee” means any individual employed by an employer but shall not include:” Among many exceptions…”Any bona- fide independent contractor” and an array of various agricultural jobs. “Employer” means any individual, partnership, association, corporation, business trust, the State of Arkansas, any political subdivision of the state, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee unless there are fewer than four employees. “Independent contractor” means any individual who contracts to perform certain work away from the premises of his or her employer, uses his or her own methods to accomplish the work, and is subject to the control of the employer only as to the result of his or her work.

Misclassification: There is significant case law cited in the Arkansas Code (Title 11) on determining distinctions between employees and independent contractors. However there appear to be no regulations giving employees or independent contractors recourse to challenge their classifications. Classifying an individual as an independent contractor when the individual is really an employee might fall under the category of falsification of records, punishable under Arkansas Code section 11-4-206 (see question 11 for more). If an individual is not properly classified as an employee, the individual may not bring a civil action for damages against the employer.

Recordkeeping: Employers are not required to notify the employee at the time of hiring of the wages and paydays nor are they required to notify employees if either wages or paydays change. The only requirement is that payments must be made semi-monthly (11-4-401). Employers are not required to provide written statements of employment agreements and policies upon employee request. (11-2-115 (2) (A)): Every employer shall keep a true and accurate record of the name, address, and occupation of each person employed by the employer, of the daily and weekly hours worked by each person, and of the wages paid each pay period to each person. (B) The records shall be kept on file for at least one (1) year after the date of the record.” (11-4-217): “(a) Every employer subject to any provision of this subchapter or of any regulation issued under this subchapter [minimum wage law, overtime, etc.] shall make and keep for a period of not less than three (3) years in or about the premises wherein any employee is employed a record of the name, address, and occupation of each of his or her employees, the rate of pay, the amount paid each pay period to each employee, and such other information as the Director of the Department of Labor shall prescribe by regulation as necessary or appropriate for the enforcement of the provisions of this subchapter or of the regulations under this subchapter.” There is no specific mention of a rebuttable presumption that the minimum wage

46    

was not paid although it may be implied. Employers are not required to provide workers with a statement of hours worked, wages earned, and deductions for each payday.

Penalties and general recourse: If a wage violation occurs, the employer may be required to pay liquidated damages and attorney’s fees beyond wages or expenses that were not paid; however, there is no reference to employer intent upon which to base liability. Arkansas Code section 11-4-218 states: “(a) (1) Any employer who pays any employee less than the minimum wages, including overtime compensation or compensatory time off as provided by this subchapter, to which the employee is entitled under or by virtue of this subchapter shall: (A) Pay any applicable civil penalties; and (B) Be liable to the employee affected for: (i) The full amount of the wages, less any amount actually paid to the employee by the employer; and (ii) Costs and such reasonable attorney's fees as may be allowed by the court. (2) The employee may be awarded an additional amount up to, but not greater than, the amount under subdivision (a)(1)(B)(i) of this section to be paid as liquidated damages.” If an individual is not properly classified as an employee, the individual may not bring a civil action for damages against the employer. "To the first question, yes, and to the second question, no." The state agency responsible for labor issues does have authority to inspect employer property pursuant to an investigation of wage violations (section 11-4-209(d)(1)). However, during such an investigation, there is no requirement for the employer to protect the anonymity of the employee. section 11-4-209(d)(1). Does Arkansas have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violation? Does Arkansas have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violation? Yes. 11-4-206(b). What civil penalties are employers subject to for each violation? Arkansas Code section 11-4-206 states that anyone who violates recordkeeping, minimum wage, or certain other labor laws “(a)(1)… shall be subject to a civil penalty of not fewer than fifty dollars ($50.00) and not more than one thousand dollars ($1,000) for each violation. (2) For the purposes of this subsection, each violation shall constitute a separate offense.” Does Arkansas have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy? If so, may an employee bring a civil action against shareholders? No. How does an aggrieved employee and/or independent contractor file a civil action? 11-4-218(e)(1-2): (e) (1) An employee may bring an action for equitable and monetary relief against an employer, including the State of Arkansas or a political subdivision of the state, if the employer pays the employee less than the minimum wages, including overtime wages, to which the employee is entitled under or by virtue of this subchapter. (2) If the employee brings an action under this subsection, then any complaint before the director by the employee on the same matter shall be dismissed with respect to that employee.

Investigations of wrongdoing: The state agency responsible for labor issues does have authority to inspect employer property pursuant to an investigation of wage violations. Section 11-4-209(d)(1). During such an investigation, there is no requirement for the employer to

47    

protect the anonymity of the employee. The state does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations.( 11-4-206(b)). CALIFORNIA

Definitions: No answer to question 1 indicated on response.

Misclassification: No answer to question 2 or 8 indicated on response.

Recordkeeping: No answer to question 3 on response. Employers are required to provide written statements of employment agreements and policies upon employee request. Additionally, employers are required to keep accurate payroll records on each employee, and such records must be made readily available for inspection by the employee upon reasonable request. However, there is no mention on the survey response as to how long employers must maintain records and what the records must contain. (CA Labor Code Section 226, and other provisions). Additionally, when a piece rate or incentive plan, such as a commission plan, is in operation, piece rates or an explanation of the incentive plan formula shall be provided to employees. The employer must maintain accurate production records. IWC Orders 1 through 15, Section 7, and IWC Order 16, Section 6.” Are employers required to keep payroll records? If so then for how long, and what must they contain? There is no rebuttable presumption that the employer did not pay the required minimum wage if the employer fails to maintain payroll records. Employers are required to provide workers with a statement of hours worked, wages earned, and deductions for each payday pursuant to Labor Code Section 226(a).

Penalties and general recourse: If a wage violation occurs, what is the employer required to pay beyond wages or expenses that were not paid? For example: liquidated damages, attorney’s fees, etc. Is liability based on the intent of the employer? “The Labor Commissioner, his deputies and agents, shall have free access to all places of labor. Any person, or agent or officer thereof, who refuses admission to the Labor Commissioner or his deputy or agent or who, upon request, willfully neglects or refuses to furnish them any statistics or information, pertaining to their lawful duties, which are in his possession or under his control, is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000).” Yes to the first. See 79-107-90 No answers to question 8, 11, 12 or 13 on survey response. Investigations of wrongdoing: No answer to questions 9 and 10 on survey response.

CONNECTICUT

Definitions : The definition of employee and employer are in Connecticut General Statutes (C.G.S.) sections 31-58 and 31-71a. All our wage and hour statutes are in title 31 Chapters 557 and 558 of C.G.S. We do not define independent contractors.

Misclassification: There are other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification

48    

when they are actually employees. Independent contractors can file a claim for unemployment compensation benefits and a case will be opened under 31-222. They also can file a claim with our Joint Enforcement Commission on Worker misclassification established under section 31-57h of C.G.S. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer; however no mention is made of what kinds of damages are available or in what amount.

Recordkeeping: Employers are required to notify the employee at the time of hiring of the wages and paydays. If either wages or paydays change, employers notify must employees. Employers are required to provide written statements of employment agreements and policies upon employee request pursuant to section 31-71f of C.G.S. Employers required to keep payroll records for three years under Section 31-66 If so, this and various regulations contained in sections 31-60 of our Administrative Regulations as well as various wage orders under 31-62. There is no mention of what records must contain. Allegations are investigated so there is no rebuttable presumption that the employer did not pay the required minimum wage if records are not kept. Employers required to provide workers with a statement of hours worked, wages earned, and deductions for each payday under 31-13a of the C.G.S.

Penalties and general recourse: If a wage violation occurs, the employer is liable for a civil penalty of $300 for each violation per employee according to section 31-69a. There are also criminal sanctions under 31-69 and 31-71g where it could be a felony not to pay wages depending on the amount due. Under CT civil recovery statutes 31-68 and 31-72 the Labor Commissioner can sue for twice the wages court costs and attorney’s fees. An employee may also bring a private action under these statutes. There is no mention whether liability is based on the intent of the employer. If an individual is not properly classified as an employee, the individual bring a civil action for damages against the employer. Damages are available. Employers are subject to civil penalties in the amount of $300 per each violation pursuant to section 31-69a. The state does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. If the is a bankruptcy there is an automatic stay from civil proceedings and a proof of claim must be filed. The labor Department can still seek a criminal arrest warrant though. An aggrieved employee and/or independent contractor may file a civil action under 31-72 or through a small claims civil action.

Investigations of wrongdoing: The Labor department has the ability to inspect all records relating to the proper payment of wages (see sections 31-59 and 31-76a). There is no mention of protecting the anonymity of the employee. CT does not have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations.

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FLORIDA

Florida does not have an enforcement division. Callers about minimum wage issues are told to call the federal labor office. Current Florida director of Florida Department of Business and Professional Regulation, Jerry Wilson, is only responsible for child labor law enforcement.

IOWA

Definitions : Iowa has a default employee rule under Iowa Code 96.19(18)(f) (2009) stating that anyone working for compensation is an employee unless and until enough evidence is provided to convince the Department that the working individual has been and will continue to be free from control or direction. "Employee" means a natural person who is employed in this state for wages by an employer. Employee also includes a commission salesperson who takes orders or performs services on behalf of a principal and who is paid on the basis of commissions but does not include persons who purchase for their own account for resale. For the purposes of this chapter, the following persons engaged in agriculture are not employees: a. The spouse of the employer and relatives of either the employer or spouse residing on the premises of the employer. b. A person engaged in agriculture as an owner-operator or tenant-operator and the spouse or relatives of either who reside on the premises while exchanging labor with the operator or for other mutual benefit of any and all such persons. c. Neighboring persons engaged in agriculture who are exchanging labor or other services. "Employer" means a person, as defined in chapter 4, who in this state employs for wages a natural person. An employer does not include a client, patient, customer, or other person who obtains professional services from a licensed person who provides the services on a fee service basis or as an independent contractor. "Health benefit plan" means a plan or agreement provided by an employer for employees for the provision of or payment for care and treatment of sickness or injury. "Liquidated damages" means the sum of five percent multiplied by the amount of any wages that were not paid or of any authorized expenses that were not reimbursed on a regular payday or on another day pursuant to section 91A.3 multiplied by the total number of days, excluding Sundays, legal holidays, and the first seven days after the regular payday on which wages were not paid or expenses were not reimbursed. However, such sum shall not exceed the amount of the unpaid wages and shall not accumulate when an employer is subject to a petition filed in bankruptcy. There is no statutory definition of independent contractor.

Misclassification: Are there any other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees? Iowa has a misclassification unit where alleged misclassification can be reported. See http://www.iowaworkforce.org/misclassification/ If an individual is not properly classified as an employee, the individual may possibly bring a civil

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action for damages against the employer. There is not a specific statute that addresses what kinds of damages are available and in what amount. However, under general liability civil actions, bringing civil action for damages could occur although there is no cap on damages.

Recordkeeping: Employers are required to notify the employee at the time of hiring of the wages and paydays. If either wages or paydays change, employers must notify employees, pursuant to Iowa Code 91A.6(1)(a) (2009). Employers must notify initially and of any changes pursuant to Iowa Code 91A.6((1)(b) (2009) but there is no mention how notifications are made. Employers are required to provide written statements of employment agreements and policies upon employee request, pursuant to Iowa Code 91A.6(1)(c ) (2009). Employers are required to establish, maintain, and preserve for three calendar years the payroll records showing the hours worked, wages earned, and deductions made for each employee and any employment agreements entered into between an employer and employee , pursuant to Iowa Code 91A.6(1)(d) (2009). There is no rebuttable presumption that the employer did not pay the required minimum wage if the employer fails to keep payroll records as required by statute. Employers are required to provide workers with a statement of hours worked, wages earned, and deductions for each payday as per pay stub law under Iowa Code 91A.6(4) (2009).

Penalties and general recourse: 7. If a wage violation occurs, the employer may be required to pay liquidated damages, attorney fees and court costs pursuant to Iowa Code 91A.8 (2009). Liability for liquidated damages is based upon the intent of the employer. If an individual is not properly classified as an employee, the individual may possibly bring a civil action for damages against the employer. There is no statutory guideline for the kinds of damages available but under general liability civil actions, this could occur. There is no cap on damages. Employer are subject to up to $500 in civil penalties per violation pursuant to Iowa Code 91A.12(1). The state does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. An employee may attempt to bring a civil action against shareholders but it would probably not be successful under Iowa's current case law and federal bankruptcy laws. An employee can file a wage claim with the Division of Labor Services and they can investigate it and proceed to file a civil action on behalf of the employee pursuant to Iowa Code 91A.10(2) (2009). The employee can file his/her own civil action in small claims or district court depending on the amount in controversy ($5000 or less for small claims); and an independent contractor can file a civil action by himself/herself or with the assistance of a private attorney.

Investigations of wrongdoing: The labor commissioner has authority to inspect employer property pursuant to an investigation of wage violations pursuant to Iowa Code 91A.9(2) (2009) but it must be pursuant to written complaint. There is no anonymity protection for the employee. The state does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations pursuant to Iowa Code 91A.10(5).

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KENTUCKY

Definitions: Definitions contained in KRS 337.010 (1): (d) "Employer" is any person, either individual, corporation, partnership, agency, or firm who employs an employee and includes any person, either individual, corporation, partnership, agency, or firm acting directly or indirectly in the interest of an employer in relation to an employee; and (e) "Employee" is any person employed by or suffered or permitted to work for an employer. Independent contractor and liquidated damages are not defined.

Misclassification: There are other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees. The Kentucky Labor Cabinet reviews the circumstances surrounding an employment relationship to determine if the individual in question is in fact an employee. If the employee classified as an independent contractor is determined to be an employee pursuant to KRS 337.010 and 803 KAR 1:005, Kentucky’s wage and hour, child labor and prevailing wage laws would be applicable. If an individual is not properly classified as an employee, there is no provision listed for the individual bring a civil action for damages against the employer If so, what kinds of damages are available.

Recordkeeping: Employers are not required to notify the employee at the time of hiring of the wages and paydays or notify employees if either wages or paydays change. However, Marjorie Arnold of the Kentucky Labor Cabinet says, in practice, employers do tell the employee their rate of pay and pay date at the time of hiring in most cases. Employers are not required to provide written statements of employment agreements and policies upon employee request. Employers are required to keep payroll records for a year. According to KRS 37.320, record to be kept by employer: (1) Every employer shall keep a record of: (a) The amount paid each pay period to each employee; (b) The hours worked each day and each week by each employee; and (c) Such other information as the executive director requires. If there is such a requirement and the employer fails to comply, there is no rebuttable presumption that the employer did not pay the required minimum wage. 803 KAR 1:066 also outlines the specifics on what records an employer must maintain (see comments). Employers who employ 10 or more employees must provide a statement of wage deductions at the time of payment (KRS 337.070). However, there is no mention of a requirement to provide employees with a statement of hours worked or wages earned.

Penalties and general recourse: If a wage violation is discovered, the employer is required to pay a civil money penalty in addition to the back wages. There is no mention of liquidated damages, attorney’s fees, etc. No mention of liability based on the intent of the employer. If an individual is not properly classified as an employee, there is no provision listed for the individual to bring a civil action for damages against the employer. Most statutes call for a civil money penalty of $100 to $1000 for a violation. Some statutes permit a penalty for each occurrence. Kentucky does not have a provision holding shareholders liable for debts owed to the employees of a

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corporation in case of a bankruptcy or for an employee to bring a civil action against shareholders. An aggrieved employee and/or independent contractor would file a civil action through Kentucky’s court system.

Investigations of wrongdoing: Kentucky’s agency responsible for labor issues does have authority to inspect employer property pursuant to an investigation of wage violations. During such an investigation, claimants have the option of remaining anonymous in issues that affect multiple employees; however, if an issue only affects 1 employee (such as a last paycheck) then it is necessary to use the claimants name. There is no mention how anonymity of the employee protected. Kentucky does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations. KRS 337.990(9) assesses a civil money penalty to an employer who discriminates or discharges an employee for filing a complaint.

MAINE

Definitions : Maine’s Wage & Hour Division does not have a clear definition of “employee”, so when complaints alleging unpaid wages or overtime, Maine W&H Division requires assistance from Unemployment Tax Unit in determining employer/employee determination. If violations found and the company was prosecuted, there are liquidated damages for double the amount of back wages under Maine’s minimum wage and overtime sections and triple damages for unpaid final wages. No clear definition of employer or independent contractor.

Misclassification: There are no other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees. However, governor has appointed a task force to investigate these issues. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer. Employer could be order by the court to pay more than just wages. As stated above, unpaid minimum wage or overtime could result in double damages and legal fees. In the case of final wages, the employee could receive triple damages, interest and legal fees. Our office would not prosecute unless employer refused to comply or unless the situation was ongoing.

Recordkeeping: Employers are not required to notify the employee at the time of hiring of the wages and paydays nor must employers notify employees if wages and paydays change. Employers are not required to provide written statements of employment agreements and policies upon employee request. Employers are required to keep payroll records but there is no mention for how long. They are required to keep daily time records and payroll records showing date of the pay period, total hours worked, total wages paid and itemized deductions. If there is such a requirement and the employer fails to comply, there is a rebuttable presumption that the employer did not pay the required minimum wage. If the employer cannot prove payment of minimum wage, the employer could be held liable.

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Employers are required to provide workers with a statement of hours worked, wages earned, and deductions for each payday.

Penalties and general recourse: If a wage violation occurs, the employer must pay only the wages unless ordered by the court to pay more in the case of a legal action being taken. As stated above, unpaid minimum wage or overtime could result in double damages and legal fees. In the case of final wages, the employee could receive triple damages, interest and legal fees. Maine would not prosecute unless employer refused to comply or unless the situation was ongoing. There is no mention of liquidated damages, attorney’s fees, or if liability based on the intent of the employer. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer for more than just lost wages. Unpaid minimum wage or overtime could result in double damages and legal fees. In the case of final wages, the employee could receive triple damages, interest and legal fees. Maine would not prosecute unless employer refused to comply or unless the situation was ongoing. Penalties are not civil money penalties, but court-ordered penalties. For violations of minimum wage or overtime, the court can order $50 to $200 and for unpaid final wages or vacation pay the penalty is $100 to $500 for each violation. Maine does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. An aggrieved employee and/or independent contractor can file a civil action. There are three options for recourse. An employee can file a wage claim with the Division of Labor Services and they can investigate it and proceed to file a civil action on behalf of the employee pursuant to Iowa Code 91A.10(2) (2009). The employee can file his/her own civil action in small claims or district court depending on the amount in controversy ($5000 or less for small claims); and an independent contractor can file a civil action by himself/herself or with the assistance of a private attorney.

Investigations of wrongdoing: The labor commissioner does have authority to inspect employer property pursuant to an investigation of wage violations pursuant to Iowa Code 91A.9(2) (2009) but it must be pursuant to written complaint. Therefore, there is no anonymity protection. The state does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations pursuant to Iowa Code 91A.10(5).

MINNESOTA

Definitions: "Employer" means any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee. "Employee" means any individual employed by an employer but does not include: (1) two or fewer specified individuals employed at any given time in agriculture on a farming unit or operation who are paid a salary;(2) any individual employed in agriculture on a farming unit or operation who is paid a salary greater than the individual would be paid if the individual

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worked 48 hours at the state minimum wage plus 17 hours at 1-1/2 times the state minimum wage per week; (3) an individual under 18 who is employed in agriculture on a farm to perform services other than corn detasseling or hand field work when one or both of that minor hand field worker's parents or physical custodians are also hand field workers; (4) for purposes of section 177.24, an individual under 18 who is employed as a corn detasseler; (5) any staff member employed on a seasonal basis by an organization for work in an organized resident or day camp operating under a permit issued under section 144.72; (6) any individual employed in a bona fide executive, administrative, or professional capacity, or a salesperson who conducts no more than 20 percent of sales on the premises of the employer; (7) any individual who renders service gratuitously for a nonprofit organization; (8) any individual who serves as an elected official for a political subdivision or who serves on any governmental board, commission, committee or other similar body, or who renders service gratuitously for a political subdivision; (9) any individual employed by a political subdivision to provide police or fire protection services or employed by an entity whose principal purpose is to provide police or fire protection services to a political subdivision;(10) any individual employed by a political subdivision who is ineligible for membership in the Public Employees Retirement Association under section 353.01, subdivision 2b, clause (1),(2), (4), or (9); (11) any driver employed by an employer engaged in the business of operating taxicabs; (12) any individual engaged in babysitting as a sole practitioner; (13) for the purpose of section 177.25, any individual employed on a seasonal basis in a carnival, circus, fair, or ski facility; (14) any individual under 18 working less than 20 hours per workweek for a municipality as part of a recreational program; (15) any individual employed by the state as a natural resource manager 1, 2, or 3 (conservation officer); (16) any individual in a position for which the United States Department of Transportation has power to establish qualifications and maximum hours of service under United States Code, title 49, section 31502; (17) any individual employed as a seafarer. The term "seafarer" means a master of a vessel or any person subject to the authority, direction, and control of the master who is exempt from federal overtime standards under United States Code, title 29, section 213(b)(6), including but not limited to pilots, sailors, engineers, radio operators, firefighters, security guards, pursers, surgeons, cooks, and stewards; (18) any individual employed by a county in a single-family residence owned by a county home school as authorized under section 260B.060 if the residence is an extension facility of that county home school, and if the individual as part of the employment duties resides at the residence for the purpose of supervising children as defined by section 260C.007, subdivision 4; or (19) nuns, monks, priests, lay brothers, lay sisters, ministers, deacons, and other members of

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religious orders who serve pursuant to their religious obligations in schools, hospitals, and other nonprofit institutions operated by the church or religious order includes question 1 from the chart. An independent contractor is not an employee. Parts 5224.0330 and 5224.0340 shall be used to determine whether an employment relation exists, except that control of the method and manner of performance is not the most important factor. All factors must be weighed to determine whether the worker is economically dependent upon the business to which the worker provides services. There is no definition for "liquidated damages" under the MN Fair Labor Standards Act.

Misclassification: Is there a way to contest a case of misclassification when they are actually employees? I can only speak to the provisions enforced by our Department. There are laws relating to independent contractors under the unemployment compensation laws and Minnesota revenue laws, however, I am not an expert on these areas.

The definition provided above is what is used to determine if a worker is an employee or an independent contractor of a business. Minnesota also has a specific law relating to independent contractors in the construction trades. This can be found at Minn. Stat. 181.723: https:// www.revisor.mn.gov/statutes/?id=181&view=chapter#stat.181.723

Recordkeeping: Minn. Stat. 181.101 states "Every employer must pay all wages earned by an employee at least once every 31 days on a regular payday designated in advance by the employer regardless of whether the employee requests payment at longer intervals. Unless paid earlier, the wages earned during the first half of the first 31-day pay period become due on the first regular payday following the first day of work. If wages earned are not paid, the commissioner of labor and industry or the commissioner's representative may demand payment on behalf of an employee. If payment is not made within ten days of demand, the commissioner may charge and collect the wages earned and a penalty in the amount of the employee's average daily earnings at the rate agreed upon in the contract of employment, not exceeding 15 days in all, for each day beyond the ten-day limit following the demand. Money collected by the commissioner must be paid to the employee concerned. This section does not prevent an employee from prosecuting a claim for wages. This section does not prevent a school district, other public school entity, or other school, as defined under section 120A.22, from paying any wages earned by its employees during a school year on regular paydays in the manner provided by an applicable contract or collective bargaining agreement, or a personnel policy adopted by the governing board. For purposes of this section, "employee" includes a person who performs agricultural labor as defined in section 181.85, subdivision 2. For purposes of this section, wages are earned on the day an employee works." "181.55 WRITTEN STATEMENT TO EMPLOYEES BY EMPLOYERS. When a contract of employment is consummated between an employer and an employee for work to be performed in this state, or for work to be performed in another state for an employer

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localized in this state, the employer shall give to the employee a written and signed agreement of hire, which shall clearly and plainly state:

1. the date on which the agreement was entered into; 2. the date on which the services of the employee are to begin; 3. the rate of pay per unit of time, or of commission, or by the piece, so that wages due

may be readily computed; 4. the number of hours a day which shall constitute a regular day's work, and whether or

not additional hours the employee is required to work shall constitute overtime and be paid for, and, if so, the rate of pay for overtime work; and

5. a statement of any special responsibility undertaken by the employee, not forbidden by law, which, if not properly performed by the employee, will entitle the employer to make deductions from the wages of the employee, and the terms upon which such deductions may be made."

Note: subdivision (5) can be in conflict with 181.79 and 177.24. In such cases, the law most favorable to the employee will prevail. 181.032 REQUIRED STATEMENT OF EARNINGS BY EMPLOYER. (a) At the end of each pay period, the employer shall provide each employee an earnings statement, either in writing or by electronic means, covering that pay period. An employer who chooses to provide an earnings statement by electronic means must provide employee access to an employer-owned computer during an employee's regular working hours to review and print earnings statements. (b) The earnings statement may be in any form determined by the employer but must include:

(1) the name of the employee; (2) the hourly rate of pay (if applicable); (3) the total number of hours worked by the employee unless exempt from chapter 177; (4) the total amount of gross pay earned by the employee during that period; (5) a list of deductions made from the employee's pay; (6) the net amount of pay after all deductions are made; (7) the date on which the pay period ends; and (8) the legal name of the employer and the operating name of the employer if different from the legal name.

(c) An employer must provide earnings statements to an employee in writing, rather than by electronic means, if the employer has received at least 24 hours notice from an employee that the employee would like to receive earnings statements in written form. Once an employer has received notice from an employee that the employee would like to receive earnings statements in written form, the employer must comply with that request on an ongoing basis.

Penalties and general recourse: The answer to these questions is not addressed directly in our statutes.

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However, here are some statutes that speak to penalties available to employees in certain circumstances: 181.13 PENALTY FOR FAILURE TO PAY WAGES PROMPTLY. (a) When any employer employing labor within this state discharges an employee, the wages or commissions actually earned and unpaid at the time of the discharge are immediately due and payable upon demand of the employee. If the employee's earned wages and commissions are not paid within 24 hours after demand, whether the employment was by the day, hour, week, month, or piece or by commissions, the employer is in default. The discharged employee may charge and collect the amount of the employee's average daily earnings at the rate agreed upon in the contract of employment, for each day up to 15 days, that the employer is in default, until full payment or other settlement, satisfactory to the discharged employee, is made. In the case of a public employer where approval of expenditures by a governing board is required, the 24-hour period for payment does not commence until the date of the first regular or special meeting of the governing board following discharge of the employee. (b) The wages and commissions must be paid at the usual place of payment unless the employee requests that the wages and commissions be sent through the mails. If, in accordance with a request by the employee, the employee's wages and commissions are sent to the employee through the mail, the wages and commissions are paid as of the date of their postmark. Subdivision 1.Prompt payment required. (a) When any such employee quits or resigns employment, the wages or commissions earned and unpaid at the time the employee quits or resigns shall be paid in full not later than the first regularly scheduled payday following the employee's final day of employment, unless an employee is subject to a collective bargaining agreement with a different provision. If the first regularly scheduled payday is less than five calendar days following the employee's final day of employment, full payment may be delayed until the second regularly scheduled payday but shall not exceed a total of 20 calendar days following the employee's final day of employment. (b) Notwithstanding the provisions of paragraph (a), in the case of migrant workers, as defined in section 181.85, the wages or commissions earned and unpaid at the time the employee quits or resigns shall become due and payable within five days thereafter. Subd. 2.Nonprompt payment. Wages or commissions not paid within the required time period shall become immediately payable upon the demand of the employee. If the employee's earned wages or commissions are not paid within 24 hours after the demand, the employer shall be liable to the employee for an

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additional sum equal to the amount of the employee's average daily earnings provided in the contract of employment, for every day, not exceeding 15 days in all, until such payment or other settlement satisfactory to the employee is made. Subd. 3.Settlement of disputes. If the employer disputes the amount of wages or commissions claimed by the employee under the provisions of this section or section 181.13, and the employer makes a legal tender of the amount which the employer in good faith claims to be due, the employer shall not be liable for any sum greater than the amount so tendered and interest thereon at the legal rate, unless, in an action brought in a court having jurisdiction, the employee recovers a greater sum than the amount so tendered with interest thereon; and if, in the suit, the employee fails to recover a greater sum than that so tendered, with interest, the employee shall pay the cost of the suit, otherwise the cost shall be paid by the employer. Subd. 4.Employees entrusted with money or property. In cases where the discharged or quitting employee was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer shall have ten calendar days after the termination of the employment to audit and adjust the accounts of the employee before the employee's wages or commissions shall be paid as provided in this section, and the penalty herein provided shall apply in such case only from the date of demand made after the expiration of the period allowed for payment of the employee's wages or commissions. If, upon such audit and adjustment of the accounts of the employee, it is found that any money or property entrusted to the employee by the employer has not been properly accounted for or paid over to the employer, as provided by the terms of the contract of employment, the employee shall not be entitled to the benefit of sections 181.13 to 181.171, but the claim for unpaid wages or commissions of such employee, if any, shall be disposed of as provided by existing law. Subd. 5.Place of payment. Wages and commissions paid under this section shall be paid at the usual place of payment unless the employee requests that the wages and commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee's wages and commissions are sent to the employee through the mail, the wages and commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section. 181.145 PROMPT PAYMENT OF COMMISSIONS TO COMMISSION SALESPEOPLE. Subdivision 1.Definitions.

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For the purposes of this section, "commission salesperson" means a person who is paid on the basis of commissions for sales and who is not covered by sections 181.13 and 181.14 because the person is an independent contractor. For the purposes of this section, the phrase "commissions earned through the last day of employment" means commissions due for services or merchandise which have actually been delivered to and accepted by the customer by the final day of the salesperson's employment. Subd. 2.Prompt payment required. (a) When any person, firm, company, association, or corporation employing a commission salesperson in this state terminates the salesperson, or when the salesperson resigns that position, the employer shall promptly pay the salesperson, at the usual place of payment, commissions earned through the last day of employment or be liable to the salesperson for the penalty provided under subdivision 3 in addition to any earned commissions unless the employee requests that the commissions be sent to the employee through the mails. If, in accordance with a request by the employee, the employee's commissions are sent to the employee through the mail, the commissions shall be deemed to have been paid as of the date of their postmark for the purposes of this section. (b) If the employer terminates the salesperson or if the salesperson resigns giving at least five days' written notice, the employer shall pay the salesperson's commissions earned through the last day of employment on demand no later than three working days after the salesperson's last day of work. (c) If the salesperson resigns without giving at least five days' written notice, the employer shall pay the salesperson's commissions earned through the last day of employment on demand no later than six working days after the salesperson's last day of work. (d) Notwithstanding the provisions of paragraphs (b) and (c), if the terminated or resigning salesperson was, during employment, entrusted with the collection, disbursement, or handling of money or property, the employer has ten working days after the termination of employment to audit and adjust the accounts of the salesperson before the salesperson can demand commissions earned through the last day of employment. In such cases, the penalty provided in subdivision 3 shall apply only from the date of demand made after the expiration of the ten working day audit period. Subd. 3.Penalty for non-prompt payment. If the employer fails to pay the salesperson commissions earned through the last day of employment on demand within the applicable period as provided under subdivision 2, the employer shall be liable to the salesperson, in addition to earned commissions, for a penalty for

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each day, not exceeding 15 days, which the employer is late in making full payment or satisfactory settlement to the salesperson for the commissions earned through the last day of employment. The daily penalty shall be in an amount equal to 1/15 of the salesperson's commissions earned through the last day of employment which are still unpaid at the time that the penalty will be assessed. Subd. 4.Amount of commission disputed. (a) When there is a dispute concerning the amount of the salesperson's commissions earned through the last day of employment or whether the employer has properly audited and adjusted the salesperson's account, the penalty provided in subdivision 3 shall not apply if the employer pays the amount it in good faith believes is owed the salesperson for commissions earned through the last day of employment within the applicable period as provided under subdivision 2; except that, if the dispute is later adjudicated and it is determined that the salesperson's commissions earned through the last day of employment were greater than the amount paid by the employer, the penalty provided in subdivision 3 shall apply. (b) If a dispute under this subdivision is later adjudicated and it is determined that the salesperson was not promptly paid commissions earned through the last day of employment as provided under subdivision 2, the employer shall pay reasonable attorney's fees incurred by the salesperson. Subd. 5.Commissions earned after last day of employment. Nothing in this section shall be construed to impair a commission salesperson from collecting commissions on merchandise ordered prior to the last day of employment but delivered and accepted after termination of employment. However, the penalties prescribed in subdivision 3 apply only with respect to the payment of commissions earned through the last day of employment. Subd. 8.Court actions; suits brought by private parties. An employee may bring a civil action seeking redress for a violation or violations of sections 177.21 to 177.44 directly to district court. An employer who pays an employee less than the wages and overtime compensation to which the employee is entitled under sections 177.21 to 177.44 is liable to the employee for the full amount of the wages, gratuities, and overtime compensation, less any amount the employer is able to establish was actually paid to the employee and for an additional equal amount as liquidated damages. In addition, in an action under this subdivision the employee may seek damages and other appropriate relief provided by subdivision 7 and otherwise provided by law. An agreement between the employee and the employer to work for less than the applicable wage is not a defense to the action.

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Subd. 9.District court jurisdiction. Any action brought under subdivision 8 may be filed in the district court of the county wherein a violation or violations of sections 177.21 to 177.44 are alleged to have been committed, where the respondent resides or has a principal place of business, or any other court of competent jurisdiction. The action may be brought by one or more employees. 9. Does the state agency responsible for labor issues have authority to inspect employer property pursuant to an investigation of wage violations? During such an investigation, is the anonymity of the employee protected, and if so how? Yes. Such authority is granted to the Commissioner of the Minnesota Department of Labor & Industry under Minn. Stat. 177.27. 177.27 POWERS AND DUTIES OF COMMISSIONER. Subdivision 1.Examination of records. The commissioner may enter during reasonable office hours or upon request and inspect the place of business or employment of any employer of employees working in the state, to examine and inspect books, registers, payrolls, and other records of any employer that in any way relate to wages, hours, and other conditions of employment of any employees. The commissioner may transcribe any or all of the books, registers, payrolls, and other records as the commissioner deems necessary or appropriate and may question the employees to ascertain compliance with sections 177.21 to 177.435. The commissioner may investigate wage claims or complaints by an employee against an employer if the failure to pay a wage may violate Minnesota law or an order or rule of the department. Subd. 2.Submission of records; penalty. The commissioner may require the employer of employees working in the state to submit to the commissioner photocopies, certified copies, or, if necessary, the originals of employment records which the commissioner deems necessary or appropriate. The records which may be required include full and correct statements in writing, including sworn statements by the employer, containing information relating to wages, hours, names, addresses, and any other information pertaining to the employer's employees and the conditions of their employment as the commissioner deems necessary or appropriate. The commissioner may require the records to be submitted by certified mail delivery or, if necessary, by personal delivery by the employer or a representative of the employer, as

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authorized by the employer in writing. The commissioner may fine the employer up to $1,000 for each failure to submit or deliver records as required by this section. This penalty is in addition to any penalties provided under section 177.32, subdivision 1. In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered. Subd. 3.Adequacy of records. If the records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due an employee, the commissioner may make a determination of wages due based on available evidence and mediate a settlement with the employer. Subd. 4.Compliance orders. The commissioner may issue an order requiring an employer to comply with sections 177.21 to 177.435, 181.02, 181.03, 181.031, 181.032, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, 181.15, 181.275, subdivision 2a, and 181.79, or with any rule promulgated under section 177.28. The commissioner shall issue an order requiring an employer to comply with sections 177.41 to 177.435 if the violation is repeated. For purposes of this subdivision only, a violation is repeated if at any time during the two years that preceded the date of violation, the commissioner issued an order to the employer for violation of sections 177.41 to 177.435 and the order is final or the commissioner and the employer have entered into a settlement agreement that required the employer to pay back wages that were required by sections 177.41 to 177.435. The department shall serve the order upon the employer or the employer's authorized representative in person or by certified mail at the employer's place of business. An employer who wishes to contest the order must file written notice of objection to the order with the commissioner within 15 calendar days after being served with the order. A contested case proceeding must then be held in accordance with sections 14.57 to 14.69. If, within 15 calendar days after being served with the order, the employer fails to file a written notice of objection with the commissioner, the order becomes a final order of the commissioner. Subd. 5.Civil actions. The commissioner may bring an action in the district court where an employer resides or where the commissioner maintains an office to enforce or require compliance with orders issued under subdivision 4.Subd. 6. [Repealed, 1996 c 386 s 13]

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Subd. 7.Employer liability. If an employer is found by the commissioner to have violated a section identified in subdivision 4, or any rule adopted under section 177.28, and the commissioner issues an order to comply, the commissioner shall order the employer to cease and desist from engaging in the violative practice and to take such affirmative steps that in the judgment of the commissioner will effectuate the purposes of the section or rule violated. The commissioner shall order the employer to pay to the aggrieved parties back pay, gratuities, and compensatory damages, less any amount actually paid to the employee by the employer, and for an additional equal amount as liquidated damages. Any employer who is found by the commissioner to have repeatedly or willfully violated a section or sections identified in subdivision 4 shall be subject to a civil penalty of up to $1,000 for each violation for each employee. In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered. In addition, the commissioner may order the employer to reimburse the department and the attorney general for all appropriate litigation and hearing costs expended in preparation for and in conducting the contested case proceeding, unless payment of costs would impose extreme financial hardship on the employer. If the employer is able to establish extreme financial hardship, then the commissioner may order the employer to pay a percentage of the total costs that will not cause extreme financial hardship. Costs include but are not limited to the costs of services rendered by the attorney general, private attorneys if engaged by the department, administrative law judges, court reporters, and expert witnesses as well as the cost of transcripts. Interest shall accrue on, and be added to, the unpaid balance of a commissioner's order from the date the order is signed by the commissioner until it is paid, at an annual rate provided in section 549.09, subdivision 1, paragraph (c). The commissioner may establish escrow accounts for purposes of distributing damages. (subd 8-9: see above question) Subd. 10.Attorney fees and costs. In any action brought pursuant to subdivision 8, the court shall order an employer who is found to have committed a violation or violations of sections 177.21 to 177.44 to pay to the employee or employees reasonable costs, disbursements, witness fees, and attorney fees. To my knowledge, there is no specific statute that addresses this. However, under Minn. Stat. § 181.93, 181.93 NOTICE TO EMPLOYEES AND APPLICANTS OF BANKRUPTCY. Subdivision 1.Notice. An employer shall immediately notify all of its employees in writing that it has filed a petition

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for bankruptcy or has had an involuntary bankruptcy petition filed against it. An employer shall, in writing, notify all persons offered jobs with the employer that it has filed a petition for bankruptcy or has had an involuntary bankruptcy petition filed against it. The notice shall be given at the time of the job offer and is required if the case initiated by the petition has not been closed. For purposes of this subdivision, an employer includes a "debtor in possession" and excludes a bankruptcy "trustee" as those terms are used under federal bankruptcy law. Subd. 2.Violation. A violation of subdivision 1 is a misdemeanor. In Minnesota, employees can bring claims for wages of amounts less than $7500 in small claims (conciliation) court. Otherwise, they are required to utilize the District Court in order to bring a civil action. The Commissioner of the Dept of Labor & Industry also has authority to bring civil action under Minn. Stat. § 177.27., Subd. 5.Civil actions. “The commissioner may bring an action in the district court where an employer resides or where the commissioner maintains an office to enforce or require compliance with orders issued under subdivision 4.” Subd. 4 states “Subd. 4.Compliance orders. The commissioner may issue an order requiring an employer to comply with sections 177.21 to 177.435, 181.02, 181.03, 181.031, 181.032, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, 181.15, 181.275, subdivision 2a, and 181.79, or with any rule promulgated under section 177.28. The commissioner shall issue an order requiring an employer to comply with sections 177.41 to 177.435 if the violation is repeated. For purposes of this subdivision only, a violation is repeated if at any time during the two years that preceded the date of violation, the commissioner issued an order to the employer for violation of sections 177.41 to 177.435 and the order is final or the commissioner and the employer have entered into a settlement agreement that required the employer to pay back wages that were required by sections 177.41 to 177.435. The department shall serve the order upon the employer or the employer's authorized representative in person or by certified mail at the employer's place of business. An employer who wishes to contest the order must file written notice of objection to the order with the commissioner within 15 calendar days after being served with the order. A contested case proceeding must then be held in accordance with sections 14.57 to 14.69. If, within 15 calendar days after being served with the order, the employer fails to file a written notice of objection with the commissioner, the order becomes a final order of the commissioner.”

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NOTE: The Minnesota Legislative Auditor issued a report in Nov 2007 on the issue of misclassification. You may find the report useful in your research. It can be found here: http://www.auditor.leg.state.mn.us/ped/pedrep/missclass.pdf Investigations of wrongdoing: 177.27 POWERS AND DUTIES OF COMMISSIONER Subd. 8.Court actions; suits brought by private parties. An employee may bring a civil action seeking redress for a violation or violations of sections 177.21 to 177.44 directly to district court. An employer who pays an employee less than the wages and overtime compensation to which the employee is entitled under sections 177.21 to 177.44 is liable to the employee for the full amount of the wages, gratuities, and overtime compensation, less any amount the employer is able to establish was actually paid to the employee and for an additional equal amount as liquidated damages. In addition, in an action under this subdivision the employee may seek damages and other appropriate relief provided by subdivision 7 and otherwise provided by law. An agreement between the employee and the employer to work for less than the applicable wage is not a defense to the action. Subd. 9.District court jurisdiction. Any action brought under subdivision 8 may be filed in the district court of the county wherein a violation or violations of sections 177.21 to 177.44 are alleged to have been committed, where the respondent resides or has a principal place of business, or any other court of competent jurisdiction. The action may be brought by one or more employees. 9. Does the state agency responsible for labor issues have authority to inspect employer property pursuant to an investigation of wage violations? During such an investigation, is the anonymity of the employee protected, and if so how? Yes. Such authority is granted to the Commissioner of the Minnesota Department of Labor & Industry under Minn. Stat. 177.27. 177.27 POWERS AND DUTIES OF COMMISSIONER. Subdivision 1.Examination of records. The commissioner may enter during reasonable office hours or upon request and inspect the place of business or employment of any employer of employees working in the state, to examine and inspect books, registers, payrolls, and other records of any employer that in any way relate to wages, hours, and other conditions of employment of any employees. The commissioner may transcribe any or all of the books, registers, payrolls, and other records as the commissioner deems necessary or appropriate and may question the employees to ascertain compliance with sections 177.21 to 177.435. The commissioner may investigate wage claims or complaints by an

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employee against an employer if the failure to pay a wage may violate Minnesota law or an order or rule of the department. Subd. 2.Submission of records; penalty. The commissioner may require the employer of employees working in the state to submit to the commissioner photocopies, certified copies, or, if necessary, the originals of employment records which the commissioner deems necessary or appropriate. The records which may be required include full and correct statements in writing, including sworn statements by the employer, containing information relating to wages, hours, names, addresses, and any other information pertaining to the employer's employees and the conditions of their employment as the commissioner deems necessary or appropriate. The commissioner may require the records to be submitted by certified mail delivery or, if necessary, by personal delivery by the employer or a representative of the employer, as authorized by the employer in writing. The commissioner may fine the employer up to $1,000 for each failure to submit or deliver records as required by this section. This penalty is in addition to any penalties provided under section 177.32, subdivision 1. In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered. Subd. 3.Adequacy of records. If the records maintained by the employer do not provide sufficient information to determine the exact amount of back wages due an employee, the commissioner may make a determination of wages due based on available evidence and mediate a settlement with the employer. Subd. 4.Compliance orders. The commissioner may issue an order requiring an employer to comply with sections 177.21 to 177.435, 181.02, 181.03, 181.031, 181.032, 181.101, 181.11, 181.12, 181.13, 181.14, 181.145, 181.15, 181.275, subdivision 2a, and 181.79, or with any rule promulgated under section 177.28. The commissioner shall issue an order requiring an employer to comply with sections 177.41 to 177.435 if the violation is repeated. For purposes of this subdivision only, a violation is repeated if at any time during the two years that preceded the date of violation, the commissioner issued an order to the employer for violation of sections 177.41 to 177.435 and the order is final or the commissioner and the employer have entered into a settlement agreement that required the employer to pay back wages that were required by sections 177.41 to 177.435. The department shall serve the order upon the employer or the employer's authorized representative in person or

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by certified mail at the employer's place of business. An employer who wishes to contest the order must file written notice of objection to the order with the commissioner within 15 calendar days after being served with the order. A contested case proceeding must then be held in accordance with sections 14.57 to 14.69. If, within 15 calendar days after being served with the order, the employer fails to file a written notice of objection with the commissioner, the order becomes a final order of the commissioner. Subd. 5.Civil actions. The commissioner may bring an action in the district court where an employer resides or where the commissioner maintains an office to enforce or require compliance with orders issued under subdivision 4. Subd. 6. [Repealed, 1996 c 386 s 13] Subd. 7.Employer liability. If an employer is found by the commissioner to have violated a section identified in subdivision 4, or any rule adopted under section 177.28, and the commissioner issues an order to comply, the commissioner shall order the employer to cease and desist from engaging in the violative practice and to take such affirmative steps that in the judgment of the commissioner will effectuate the purposes of the section or rule violated. The commissioner shall order the employer to pay to the aggrieved parties back pay, gratuities, and compensatory damages, less any amount actually paid to the employee by the employer, and for an additional equal amount as liquidated damages. Any employer who is found by the commissioner to have repeatedly or willfully violated a section or sections identified in subdivision 4 shall be subject to a civil penalty of up to $1,000 for each violation for each employee. In determining the amount of a civil penalty under this subdivision, the appropriateness of such penalty to the size of the employer's business and the gravity of the violation shall be considered. In addition, the commissioner may order the employer to reimburse the department and the attorney general for all appropriate litigation and hearing costs expended in preparation for and in conducting the contested case proceeding, unless payment of costs would impose extreme financial hardship on the employer. If the employer is able to establish extreme financial hardship, then the commissioner may order the employer to pay a percentage of the total costs that will not cause extreme financial hardship. Costs include but are not limited to the costs of services rendered by the attorney general, private attorneys if engaged by the department, administrative law judges, court reporters, and expert witnesses as well as the cost of transcripts. Interest shall accrue on, and be added to, the unpaid balance of a commissioner's order from the date the order is signed by the commissioner until it is paid, at an annual rate provided in section 549.09, subdivision

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1, paragraph (c). The commissioner may establish escrow accounts for purposes of distributing damages. (subd 8-9: see above question) Subd. 10.Attorney fees and costs. In any action brought pursuant to subdivision 8, the court shall order an employer who is found to have committed a violation or violations of sections 177.21 to 177.44 to pay to the employee or employees reasonable costs, disbursements, witness fees, and attorney fees. Yes. 181.932 DISCLOSURE OF INFORMATION BY EMPLOYEES. Subdivision 1.Prohibited action. An employer shall not discharge, discipline, threaten, otherwise discriminate against, or penalize 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 an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official; (2) the employee is requested by a public body or office to participate in an investigation, hearing, inquiry; (3) the employee refuses an employer's order to perform an action that the employee has an objective basis in fact to believe violates any state or federal law or rule or regulation adopted pursuant to law, and the employee informs the employer that the order is being refused for that reason; (4) the employee, in good faith, reports a situation in which the quality of health care services provided by a health care facility, organization, or health care provider violates a standard established by federal or state law or a professionally recognized national clinical or ethical standard and potentially places the public at risk of harm; or (5) a public employee communicates the findings of a scientific or technical study that the employee, in good faith, believes to be truthful and accurate, including reports to a governmental body or law enforcement official. The disclosures protected pursuant to this section do not authorize the disclosure of data

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otherwise protected by law. Subd. 2.Disclosure of identity. The identity of any employee making a report to a governmental body or law enforcement official under subdivision 1, clause (1) or (4), is private data on individuals as defined in section 13.02. The identity of an employee providing information under subdivision 1, clause (2), is private data on individuals if: (1) the employee would not have provided the information without an assurance that the employee's identity would remain private, because of a concern that the employer would commit an action prohibited under subdivision 1 or that the employee would be subject to some other form of retaliation; or (2) the state agency, statewide system, or political subdivision reasonably believes that the employee would not have provided the data because of that concern. If the disclosure is necessary for prosecution, the identity of the employee may be disclosed but the employee shall be informed prior to the disclosure. Subd. 3.False disclosures. This section does not permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth. Subd. 4.Collective bargaining rights. This section does not diminish or impair the rights of a person under any collective bargaining agreement. Subd. 5.Confidential information. This section does not permit disclosures that would violate federal or state law or diminish or impair the rights of any person to the continued protection of confidentiality of communications provided by common law.

MISSOURI

Definitions : No definitions in relation to an employee, employer, independent contractor or liquidated damages.

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Misclassification: Matters relating to misclassification would be addressed by the Division of Employment Security and the Department of Revenue. The Missouri Attorney General’s office may investigate alleged misclassification violation on Missouri public works projects. See Sections 290.500 to 285.515, 8. These matters would be addresses by the Division of Employment Security and the Department of Revenue. The Missouri Attorney General’s office may investigate alleged misclassification violation on Missouri public works projects.

Recordkeeping: 3: whether the employee requests payment at longer intervals. Unless paid earlier, the wages 4: No, this would be up to the terms and conditions of employment between the employer and employee. 5: No response, 6: No, except for deductions in the case of corporate or railroad employers. See 290.080.

Penalties and general recourse: 7: Missouri does not have a wage collection law. See comments However, an employee has a right to pursue a private right of action. An employee could be found due the full amount of the wage rate and an additional equal amount as liquidated damages, less any amount actually paid to the employee by the employer and for costs and such reasonable attorney fees as may be allowed by the court or jury. See Section 290.527 --KyleAntonelli Tuesday, July 13, 2010 3:19:27 PM 8: These matters would be addresses by the Division of Employment Security and the Department of Revenue. The Missouri Attorney General’s office may investigate alleged misclassification violation on Missouri public works projects. 11: N/A 12: N/A 13: See comments on question 7 for what is recoverable.

Investigations of wrongdoing: includes questions 9 and 10. 9: Yes, The records shall be open for inspection and all records and information obtained by the department of labor and industrial relations are confidential and shall be disclosed only on order of a court of competent jurisdiction. See Section 290.520. --KyleAntonelli Tuesday, July 13, 2010 3:20:37 PM 10: Yes, Discharging or in any other manner discriminating against any employee who has notified the director that he has not been paid wages in accordance with the provisions of sections 290.500 to 290.530, or who has caused to be instituted any proceeding under or related to sections 290.500 to 290.530, or who has testified or is about to testify in any such proceeding could be determined a violation of the law. However, any criminal prosecution under this section would be pursued by the local Prosecuting Attorney and not the State.

NEW HAMPSHIRE

Definitions : RSA 275:42 Definitions. – Whenever used in this subdivision: I. The term "employer'' includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person, except employers of domestic labor in the home of the employer, or farm labor where less than 5 persons are employed. II."Employee'' means and includes every person who may be permitted, required, or directed by

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any employer, in consideration of direct or indirect gain or profit, to engage in any employment, but shall not include any person exempted from the definition of employee as stated in RSA 281-A:2, VI(b)(2), (3), or (4), or RSA 281-A:2, VII(b), or a person providing services as part of a residential placement for individuals with developmental, acquired, or emotional disabilities, or any person who meets all of the following criteria.

III.”Independent Contractor”: (a) The person possesses or has applied for a federal employer identification number or social security number, or in the alternative, has agreed in writing to carry out the responsibilities imposed on employers under this chapter. (b) The person has control and discretion over the means and manner of performance of the work, in that the result of the work, rather than the means or manner by which the work is performed, is the primary element bargained for by the employer. (c) The person has control over the time when the work is performed, and the time of performance is not dictated by the employer. However, this shall not prohibit the employer from reaching an agreement with the person as to completion schedule, range of work hours, and maximum number of work hours to be provided by the person, and in the case of entertainment, the time such entertainment is to be presented. (d) The person hires and pays the person's assistants, if any, and to the extent such assistants are employees, supervises the details of the assistants' work. (e) The person holds himself or herself out to be in business for himself or herself. (f) The person has continuing or recurring business liabilities or obligations. (g) The success or failure of the person's business depends on the relationship of business receipts to expenditures. (h) The person receives compensation for work or services performed and remuneration is not determined unilaterally by the hiring party. (i) The person is responsible in the first instance for the main expenses related to the service or work performed. However, this shall not prohibit the employer or person offering work from providing the supplies or materials necessary to perform the work. (j) The person is responsible for satisfactory completion of work and may be held contractually responsible for failure to complete the work. (k) The person supplies the principal tools and instrumentalities used in the work, except that the employer may furnish tools or instrumentalities that are unique to the employer's special requirements or are located on the employer's premises.

IV. Liquidated Damages: (l) The person is not required to work exclusively for the employer. RSA 275:44 Employees Separated From Payroll Before Pay Days. – IV. If an employer willfully and without good cause fails to pay an employee wages as required under paragraphs I, II or III of this section, such employer shall be additionally liable to the employee for liquidated damages in the amount of 10 percent of the unpaid wages for each day except Sunday and legal holidays upon which such failure continues after the day upon which payment is required or in an amount equal to the unpaid wages, whichever is smaller; except that, for the purpose of such liquidated damages such failure shall not be deemed to continue after the date of filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt upon such petition.

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Misclassification: There any no other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees except in dealing with workers compensation (RSA 281 A). If an individual is not properly classified as an employee, may the individual may not bring a civil action for damages against the employer.

Recordkeeping: It is assumed from response that employers are required to notify the employee at the time of hiring of the wages and paydays and that if either wages or paydays change, must employers notify employees. The following penalties relates to wage disputes in which it is proven that the employer unlawfully withheld employee wages: wages earned and a penalty in the amount of the employee's average daily earnings at the rate agreed upon in the contract of employment, not exceeding 15 days in all, for each day beyond the ten-day limit following the demand. Money collected by the commissioner must be paid to the employee concerned. This section does not prevent an employee from prosecuting a claim for wages. This section does not prevent a school district, other public school entity, or other school, as defined under section 120A.22, from paying any wages earned by its employees during a school year on regular paydays in the manner provided by an applicable contract or collective bargaining agreement, or a personnel policy adopted by the governing board. For purposes of this section, "employee" includes a person who performs agricultural labor as defined in section 181.85, subdivision 2. For purposes of this section, wages are earned on the day an employee works. Employers are required to provide written statements of employment agreements and policies upon employee request ( See sections mentioned in #3). Employers are required to keep payroll records for 4 years. However, there is no rebuttable presumption against employer that he did not pay minimum wage due to failure to maintain payroll records. The following statutes cited apply: (g) Pursuant to RSA 279:27 and RSA 275:49, VI, every employer shall keep a record of hours worked by all of its employees except for employees who are exempt under 29 U.S.C. section 213 (a) of the Fair Labor Standards Act. Said records shall be preserved and stored for a period of no less than 4 years. If an employee feels they did not receive minimum wage, they can make an individual wage claim to that effect, for wages earned within the preceding 36 months. (Lab 803.03 (g)). Employers are not required to provide workers with a statement of hours worked and wages earned. However, employers must document deductions for each payday. There are no requirements for the employer to furnish a statement of hours worked or wages earned for each payday. This information would need to be kept on file, pursuant to LAB 803.03, for 4 years, and must be available upon request.

Penalties and general recourse: 7Q: If a wage violation occurs, the employer is required to pay beyond wages or expenses that were not paid for deductions and the following liquidated damages: If an employer willfully and without good cause fails to pay an employee wages as required under paragraphs I, II or III of this section, such employer shall be additionally liable to the employee for liquidated damages in the amount of 10 percent of the unpaid wages for each day except Sunday and legal holidays upon which such failure continues after the day upon

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which payment is required or in an amount equal to the unpaid wages, whichever is smaller; except that, for the purpose of such liquidated damages such failure shall not be deemed to continue after the date of filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt upon such petition. Whenever an employer discharges an employee, the employer shall pay the employee's wages in full within 72 hours. There is no mention of having to pay for attorney’s fees. Liability is not based on the intent of the employer. If an individual is not properly classified as an employee, the individual may not bring a civil action for damages against the employer. The following relates to civil penalties which employers are subject to for each violation (Several options for civil penalties): RSA 157-A:10-a Civil Penalties. – I. In addition to any criminal penalty provided under RSA 157-A:10, the commissioner may, after hearing, impose a civil penalty not to exceed $500, as determined by the commissioner, for any violation of any of the provisions of this chapter or of any rule adopted pursuant to this chapter. Any person on whom a penalty is imposed under this section may appeal as provided in RSA 273:11-c and 273:11-d. All moneys collected under this section shall be deposited in the general fund. RSA 157-B:13-a Civil Penalties. – I. In addition to any criminal penalty provided under this chapter, the commissioner may, after a written warning and a hearing, impose a civil penalty not to exceed $500, as determined by the commissioner, for any violation of any of the provisions of this chapter or of any rule adopted pursuant to this chapter. Any person on whom a penalty is imposed under this section may appeal as provided in RSA 273:11-c and 273:11-d to the penalty appeal board established in RSA 273:11-b. All moneys collected under this section shall be deposited in the general fund. RSA 273:11-a Civil Penalties. I. In addition to any criminal penalty provided under this title, the commissioner may, after hearing, impose a civil penalty not to exceed $2,500, as determined by the commissioner, for any violation of any of the provisions of this title or of any rule adopted pursuant to this title. Any person on whom a penalty is imposed under this section may appeal as provided in RSA 273:11-c and 273:11-d. All moneys collected under this section shall be deposited in the general fund. 12Q: The state does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. Therefore, an employee may not bring a civil action against shareholders. Bankruptcy law mandates civil penalties are not dischargeable. Claims for unpaid wages would be ceded to the bankruptcy court. An aggrieved employee and/or independent contractor could file a civil action in accordance with RSA 275:53. However the department does not have jurisdiction over independent contractors. Aggrieved employees and/or those misclassified as independent contractors could seek remedies through the court pursuant to RSA 275:53 Employees' Remedies. – I. Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves, or such employee or employees may designate an agent or representative to maintain such action. II. Whenever the commissioner determines that wages have not been paid, and that such unpaid wages constitute an enforceable claim, the commissioner may upon the request of the employee take an assignment in trust for such wages and/or any claim for liquidated damages, without being bound by any of the technical rules respecting the validity of any such assignments and may bring any legal action

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necessary to collect such claim. With the consent of the assigning employee at the time of the assignment the commissioner shall have the power to settle and adjust any such claim to the same extent as might the assigning employee. III. The court in any action brought under this subsection may, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs of the action, and reasonable attorney's fees, to be paid by the defendant. Such attorney's fees in the case of actions brought under this subsection by the commissioner shall be remitted by the commissioner to the state treasurer. The commissioner shall not be required to pay the filing fee or other costs or fees of any nature or to file bond or other security of any nature in connection with such action or proceedings supplementary thereto, or as a condition precedent to the availability to the commissioner of any process in aid of such action or proceedings. The commissioner shall have power to join various claimants in one preferred claim or lien and in case of suit to join them in one cause of action.

Investigations of wrongdoing: The state does have authority to inspect employer property pursuant to an investigation of wage violations pursuant to RSA 273:9, 275:51, 279:3. During such an investigation, (under RSA 275:51 III-a), employee interviews are not subject to disclosure, but no other apparent privacy protections. The state does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations. To wit: If an employee feels the employer has retaliated against them for reporting illegal activities or other activities under RSA 275-E Whistleblowers Protection Act, they may file a claim with this department.

OREGON

Definitions "Employer" and "Employee" are defined in ORS 652.310. See comments. Oregon's wage and hour laws do not define "independent contractor," although it applies the "economic reality" test provided in federal court cases. No provision for liquidated damages. (1) “Employer” means any person who in this state, directly or through an agent, engages personal services of one or more employees and includes any successor to the business of any employer, or any lessee or purchaser of any employer’s business property for the continuance of the same business, so far as such employer has not paid employees in full. “Employer” includes the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter but does not include: (a) The United States. (b) Trustees and assignees in bankruptcy or insolvency, and receivers, whether appointed by federal or state courts, and persons otherwise falling under the definition of employers so far as the times or amounts of their payments to employees are regulated by laws of the United States, or regulations or orders made in pursuance thereof. (2) “Employee” means any individual who otherwise than as copartner of the employer or as an independent contractor renders personal services wholly or partly in this state to an

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employer who pays or agrees to pay such individual at a fixed rate, based on the time spent in the performance of such services or on the number of operations accomplished, or quantity produced or handled. However: (a) Where services are rendered by an independent contractor, an individual shall not be an employee under this section unless the individual is a musician or supporting technical person. (b) Where services are rendered only partly in this state, an individual shall not be an employee under this section unless the contract of employment of the employee has been entered into, or payments thereunder are ordinarily made or to be made, within this state. includes question 1 from the chart

Misclassification: "Misclassification is not a per se violation of Oregon law, but the state as an online FAQ addressing the issue (see comments). If an employee is not paid correctly and the employer asserts they are an ""independent contractor,"" the employee can file a claim with the Wage and Hour Division and we will enforce the provisions of wage and hour laws. Refer to "http://www.oregon.gov/BOLI/TA/T_FAQ_Independent_Contractor_092606.pdf. Recourse: "Employees may pursue unpaid wages either through the Bureau of Labor and Industries or through a private action, and are entitled to penalty wages as described in #7."

Recordkeeping: 3Q: Are employers required to notify the employee at the time of hiring of the wages and paydays? If either wages or paydays change, must employers notify employees, and if so, how? 3A: 4Q: Are employers required to provide written statements of employment agreements and policies upon employee request? 4A: No. 5Q: Are employers required to keep payroll records? If so then for how long, and what must they contain? If there is such a requirement and the employer fails to comply, is there a rebuttable presumption that the employer did not pay the required minimum wage?5A: "Yes; pursuant to ORS 653.045 and OAR 839-020-0080 - 839-020-0085 (see comments) employers subject to Oregon's minimum wage law are required to keep payroll records for a minimum of two years. No ""rebuttable presumption.""" Payroll records must contain: "(a) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records; (b) Home address, including zip code; (c) Date of birth, if under 19; (d) Occupation in which employed; (e) Time of day and day of week on which the employee's workweek begins. If the employee is part of a work force or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole work force or establishment will suffice; (f) Regular hourly rate of pay for any workweek in which overtime compensation is due,

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and an explanation of the basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and the amount and nature of each payment which, pursuant to ORS 653.261(1) is excluded from the "regular rate of pay". (These records may be in the form of vouchers or other payment data.); (g) Hours worked each workday and total hours worked each workweek (for purposes of this section, a "workday" is any fixed period of 24 consecutive hours and a "workweek" is any fixed and regularly recurring period of seven consecutive workdays); (h) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation; (i) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under subsection (h) of this section; (j) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions; (k) Total wages paid each pay period; (l) Date of payment and the pay period covered by payment.

Penalties and general recourse: "Employers who willfully fail wages due upon termination are liable for up to 30 days additional wages as a penalty (ORS 652.150). Civil penalties of up to $1,000 per violation may also be assessed by the Bureau of Labor and Industries. Employees have a private right of action under the law and attorney fees may be awarded by the court. (ORS 652.200) "Employees may pursue unpaid wages either through the Bureau of Labor and Industries or through a private action, and are entitled to penalty wages as described in #7. "Most penalties under wage and hour law are $1,000 per violation per day. Oregon does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. Therefore an employee may not bring a civil action against shareholders. An aggrieved employee and/or independent contractor can file a civil action in court.

Investigations of wrongdoing: In Oregon, the state agency responsible for labor issues does have authority to inspect employer property pursuant to an investigation of wage violations. (See ORS 651.120). However, if a written claim or complaint is received from an employee, the identity of the employee is normally disclosable to the employer pursuant to Oregon's public records law. Oregon does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations See ORS 652.355 in the Wage Collection law, and ORS 653.060 in the Minimum Wage law.

RHODE ISLAND

"Rhode Island's wage and hour unit consists of four (4) employees. One "Chief", one "Examiner", one "Interpreter", and one "Information Aide". We have not accepted anonymous

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complaints for some time due to lack of staff except in the case of a child labor claim." -Helen Gage Definitions : "Employee" includes any individual employed by an employer, but shall not include: (i) Any individual employed in domestic service or in or about a private home; (ii) Any individual employed by the United States; (iii) Any individual engaged in the activities of an educational, charitable, religious, or nonprofit organization where the employer-employee relationship does not, in fact, exist, or where the services rendered to the organizations are on a voluntary basis; (iv) Newspaper deliverers on home delivery, shoe shiners in shoe shine establishments, caddies on golf courses, pin persons in bowling alleys, ushers in theatres; (v) Traveling salespersons or outside salespersons; (vi) Service performed by an individual in the employ of his or her son, daughter, or spouse and service performed by a child under the age of twenty-one (21) in the employ of his or her father or mother; (vii) Any individual employed between May 1 and October 1 in a resort establishment which regularly serves meals to the general public and which is open for business not more than six (6) months a year; (viii) Any individual employed by an organized camp which does not operate for more than seven (7) months in any calendar year. However, this exemption does not apply to individuals employed by the camp on an annual, full-time basis. "Organized camp" means any camp, except a trailer camp, having a structured program including, but not limited to, recreation, education, and religious, or any combination of these. (6) "Employer" includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer, in relation to an employee; Under 28-14-1: (2) "Employee" means any person suffered or permitted to work by an employer, except that independent contractors or subcontractors shall not be considered employees. (3) "Employer" means any individual, firm, partnership, association, joint stock company, trust, corporation, receiver, or other like officer appointed by a court of this state, and any agent or officer of any of the previously mentioned classes, employing any person in this state. No specific definition of independent contractor RIGL 28-12-2 & 28-14-1 and no provision for liquidated damages.

Misclassification: There are no other provisions under state law regulating use of independent contractors and rights independent contractors have to contest a case of misclassification when they are actually employees. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer with damages determined by the court.

Recordkeeping: Employers are not required to notify the employee at the time of hiring of the wages and paydays. If either wages or paydays change, employers are not required notify employees. Employers are not required to provide written statements of employment agreements and policies upon employee request. Pay records must be kept and must contain "name, address, and occupation of each of his or her employees, the rate of pay, and the amount paid each pay period to each employee, the hours worked each day and each work week by the employee, and any other information that the director of labor and training shall prescribe by regulation as

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necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders issued under this chapter." There is no rebuttable presumption. Employers are required to provide workers with a statement of hours worked, wages earned, and deductions for each payday (see RIGL 28-14-2.1).

Penalties and general recourse: "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." 25% to 50% of wages collected paid to RI Wage and Hour Unit. See RIGL 28-14-19. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer with damages determined by the court. Civil penalties for each violation by employers is essentially up to the courts. (RIGL 28-14-18.1.). Rhode Island does not have a specific provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. Employees are referred to the receiver in a bankruptcy. An aggrieved employee and/or independent contractor may file a civil action through small claims court or their own legal counsel.

Investigations of wrongdoing: Rhode Island has the authority to inspect employer property pursuant to an investigation of wage violations ( RIGL 28-14-13). Investigation may be as a "routine" audit to protect anonymity, but RI has no protections beyond that. Rhode Island does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations (RIGL 28-14-18).

SOUTH CAROLINA

Definitions : Employee: A person who is hired to provide services to a company on a regular basis in exchange for compensation. Independent Contractor: A person hired to do work for another but who is not an employee or agent of that person. Control is subjected to the end result and not as to how the work performed as opposed to an employee who receives direction on what, when and, to some degree, how to do the job. No definition of employer or liquidated damages.

Misclassification: If determination made that the person was misclassified as an independent contractor, but is actually an employee, SC DOL will conduct an investigation. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer; however, there is no mention of kinds or amounts of damages available in the response for South Carolina.

Recordkeeping: Every employer shall notify each employee in writing at the time of hiring of the normal hours and wages agreed upon, the time and place of payment, and deductions which

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will be made from the wages, including payments to insurance programs at the time of hiring, but no mention if wages or paydays change. If an employer has a vacation, sick or holiday policy, the policy is required to be in writing and the employee is to receive written notification of the policy. Employer are required to keep records of names and addresses of all employees and of wages paid each payday and deductions made for three years. There is no rebuttable presumption. Every employer shall furnish each employee with an itemized statement showing his gross pay and the deductions made from his wages for each pay period.

Penalties and general recourse: In case of any failure to pay wages due to an employee as required, the employee must file civic action. Employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney’s fees as the court may allow. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer. Employers are subject to civil penalty of $100.00 for each violation. In the event of an employer filing for bankruptcy, employees are referred to bankruptcy court. An aggrieved employee and/or independent contractor can file a civil action in Magistrates court.

Investigations of wrongdoing: South Carolina does not have authority to inspect employer property pursuant to an investigation of wage violations. Does the state have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations? Does the state agency responsible for labor issues have authority to inspect employer property pursuant to an investigation of wage violations? During such an investigation, the anonymity of the employee is not protected.

SOUTH DAKOTA

Definitions : Employee: One who is employed to render personal service to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the employer. Independent contractor: A worker who renders personal service in the pursuit of an independent calling, and is not entirely under the control and direction of the employer. No liquidated damages provision.

Misclassification: Only for purposes of unemployment and workers compensation do independent contractors have to contest a case of misclassification when they are actually employees. Under workers compensation and unemployment compensation law, independent contractors are defined as individuals who have been and will continue to be free from control or direction over the performance of the service, both under the contract of service and in fact; and customarily engaged in an independently established trade, occupation, profession or business. SDCL 61-1-11, 62-1-3. Unemployment and workers compensation claimants can appeal a determination of contractor status to. If an individual is not properly classified as an employee, the individual may bring a civil action for damages against the employer. However, there is no mention of what kinds of damages are available or in what amount they are available.

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Recordkeeping: Employers are not required to notify the employee at the time of hiring of the wages and paydays or if either wages or paydays change. However, it is the opinion of James Marsh, that an employer could be sued for breach of contract if wages are decreased without notice." Employers are not required to provide written statements of employment agreements and policies upon employee request. Employers are not required to keep payroll records except for workers compensation and unemployment. Employers must keep records of workers compensation injuries for four years. SDCL 62-6-1. They must also keep wage records for unemployment compensation purposes for four years. SDCL 61-3-2. Those records must include the following information: (1) Each employee's name and social security account number; (2) The point at which services were performed by the employee;(3) The number of hours employed in each week and the wages paid for the week; (4) The date each employee was hired, rehired, or returned to work after a temporary layoff; (5) Time lost, if any, by each employee due to unavailability for work; (6) The date each employee was separated from employment and the reason for the separation; (7) The hours worked and the remuneration, including gratuities and tips; and services in exempt employment such as agricultural labor; (8) The total wages paid to each employee during each calendar quarter, showing the following: (a) Money wages; (b) The cash value of other remuneration, (c) Deductions from wages for expenses incurred by each employee. ARSD 47:06:02:01. There is no presumption. Employers are not required to provide workers with a statement of hours worked, wages earned, and deductions for each payday.

Penalties and general recourse: If a wage violation occurs, the employer is required to pay double the wages when where an employer has been oppressive, fraudulent, or malicious, in his refusal to pay. No provisions for liquidated damages or attorney’s fees ( SDCL 60-11-7). 8Q: If an individual is not properly classified as an employee, the individual may not bring a civil action for damages against the employer. There are no civil penalties for employers violations. The state does not have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy. An employee may not bring a civil action against shareholders. An aggrieved employee and/or independent contractor can file a civil action in small claims or Circuit Court.

Investigations of wrongdoing: South Dakota has the authority to inspect employer property pursuant to an investigation of wage violations. During such an investigation, the anonymity of the employee is protected but there is no mention how (SDCL 60-11-17). South Dakota does have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations. SDCL 60-11-17.1 provides: No employer shall discharge, discriminate or engage in or threaten to engage in any reprisal, economic or otherwise, against any employee because such employee has made any complaint to his employer, or to the director, that he has not been paid has not been paid wages or because such employee has made any complaint or is about to institute any proceedings, or because such employee has testified or is about to testify in any such proceedings.

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TEXAS

Definitions: EMPLOYMENT STATUS – A COMPARATIVE APPROACH Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown. Depending upon the type of business and the services performed, not all 20 common law factors may apply. In addition, the weight assigned to a specific factor may vary depending on the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as agent, contract laborer, subcontractor, or independent contractor. 1. INSTRUCTIONS: 11. ORAL OR WRITTEN REPORTS: An Employee receives instructions about when, where and how the work is to be performed. An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work. An Employee may be required to submit regular oral or written reports about the work in progress. An Independent Contractor is usually not required to submit regular oral or written reports about th e work in progress. 2. TRAINING: 12. PAYMENT BY THE HOUR, WEEK OR MONTH: Employees are often trained by a more experienced employee or are required to attend meetings or take training courses. An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services. An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week. An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid. 3. INTEGRATION: 13. PAYMENT OF BUSINESS & TRAVEL EXPENSE: Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those employee services. An Independent Contra ctor’s services are usually separate from the client’s business and are not integrated or merged into it. An Employee’s business and travel expenses are either paid directly or reimbursed by the employer. Independent Contractors normally pay all of their own business and travel expenses without reimbursement. 4. SERVICES RENDERED PERSONALLY: 14. FURNISHING TOOLS & EQUIPMENT: An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them. A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally. Employees are furnished all necessary tools, materials and equipment by their employer. An Independent Contractor ordinarily provid es all of the tools and equipment necessary to complete the job. 5. HIRING, SUPERVISING & PAYING HELPERS: 15. SIGNIFICANT INVESTMENT: An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds. Independent Contractors select, hire, pay and supervise any helpers used and are responsible for the results of the helpers’ labor. An Employee generally has little or no

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investment in the business. Instead, an Employee is economically dependent on the employer. True Independent Contractors usually have a substantial financial investment in their independent business. 6. CONTINUING RELATIONSHIP: 16. REALIZE PROFIT OR LOSS: An Employee often continues to work for the same employer month after month or year after year. An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work. An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered. An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues. 7. SET HOURS OF WORK: 17. WORKING FOR MORE THAN ONE FIRM AT A TIME: An Employee may work “on call” or during hours and days as set by the employer. A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses. An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor. An Independent Contractor often works for more than one client or firm at the same time and is not subject to a noncompetition rule.

Misclassification: 2Q: Are there any other provisions under state law regulating use of independent contractors and what rights do independent contractors have to contest a case of misclassification when they are actually employees? 2A: "TWC deals with independent contractors within the context of the Texas Payday Law and the Texas Unemployment Compensation Act; therefore, I could not advise you of other state laws governing independent contractors." In other words, No. 8Q: If an individual is not properly classified as an employee, may the individual bring a civil action for damages against the employer? If so, what kinds of damages are available? In what amount? 8A: The Texas Payday law does not address these requirements. In other words, no.

Recordkeeping: 3Q: Are employers required to notify the employee at the time of hiring of the wages and paydays? If either wages or paydays change, must employers notify employees, and if so, how? 3A: According to §61.012(c) of the Texas Payday law, an employer shall post notices indicating paydays. No, there is no requirement to notify the employee of wages at the time of hiring. An employee should receive notice (verbally or in writing) of a change to the agreed rate of pay prior to the effective date of the change and the change cannot be made retroactively. 4Q: Are employers required to provide written statements of employment agreements and policies upon employee request? 4A: No. 5Q: Are employers required to keep payroll records? If so then for how long, and what must they contain? If there is such a requirement and the employer fails to comply, is there a rebuttable presumption that the employer did not pay the required minimum wage? 5A: The Texas Payday law does not address these requirements. According to the Payday rule §821.6, when the agreed rate of pay cannot be established, TWC shall consider any applicable minimum wage and overtime requirement if wages are due and unpaid . 6Q: Are employers required to provide workers with a statement of

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hours worked, wages earned, and deductions for each payday? 6A: No. According to §62.003 of the Texas Minimum Wage Act (Chapter 62 of the Texas Labor Code) an employer is required to provide earnings statements to employees. However, per §62.151, the requirements of Chapter 62 do not apply to employer’s covered by the Fair Labor Standards Act (FLSA).

Penalties and general recourse: 7Q: If a wage violation occurs, what is the employer required to pay beyond wages or expenses that were not paid? For example: liquidated damages, attorney’s fees, etc. Is liability based on the intent of the employer? 7A: Yes, depending on the type of violation. See comments section for details. According to §61.053 of the Texas Payday law, an employer found in violation of the Act can be assessed an administrative penalty equal to the amount being claimed or $1,000; whichever is the lesser. However, the penalty amount is payable to TWC and not to the employee. According to §62.201 of the Texas Minimum Wage act, an employer who violates certain sections of the Act is liable to an affected employee in the amount of the unpaid wages plus an additional equal amount as liquidated damages . 8Q: If an individual is not properly classified as an employee, may the individual bring a civil action for damages against the employer? If so, what kinds of damages are available? In what amount? 8A: The Texas Payday law does not address these requirements. 11Q: What civil penalties are employers subject to for each violation? 11A: See response to Number 7. 12Q: Does the state have a provision holding shareholders liable for debts owed to the employees of a corporation in case of a bankruptcy? If so, may an employee bring a civil action against shareholders? 12A: Under the Texas Payday Law, liability for the debt can be extended to the officers of a corporation if the corporation has not met its obligations under the Texas Tax Code. The Texas Payday law does not address civil action requirements. 13Q: How does an aggrieved employee and/or independent contractor file a civil action? 13A: File a complaint with DLIR or go to court, see 388-11, HRS.

Investigations of wrongdoing: 9Q: Does the state agency responsible for labor issues have authority to inspect employer property pursuant to an investigation of wage violations? During such an investigation, is the anonymity of the employee protected, and if so how? 9A: Yes. (See 387-6, HRS (e) and 388-9, HRS) Anonymity is protected by doing a company based review. 10Q: Does the state have a provision for protecting employees (or those who assist them) from retaliation by employers against whom they have taken action, filed a complaint, or contacted the agency for wage violations? 10A: Yes. See 388-10, HRS (b) includes questions 9 and 10.

WASHINGTON

Definitions : includes question 1 from the chart No def. of IC or Liq. damages. §387-1 has definitions (see comments) "Employee" includes any individual employed by an employer, but shall not include any individual employed: (1) At a guaranteed compensation totaling $2,000 or more a month, whether paid weekly, biweekly, or monthly; (2) In agriculture for any workweek in which the employer of the individual employs less than twenty employees or in

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agriculture for any workweek in which the individual is engaged in coffee harvesting; (3) In domestic service in or about the home of the individual's employer or as a house parent in or about any home or shelter maintained for child welfare purposes by a charitable organization exempt from income tax under section 501 of the federal Internal Revenue Code; (4) By the individual's brother, sister, brother-in-law, sister-in-law, son, daughter, spouse, parent, or parent-in-law; (5) In a bona fide executive, administrative, supervisory, or professional capacity or in the capacity of outside salesperson or as an outside collector; (6) In the propagating, catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacean, sponge, seaweed, or other aquatic forms of animal or vegetable life, including the going to and returning from work and the loading and unloading of such products prior to first processing; (7) On a ship or vessel and who has a Merchant Mariners Document issued by the United States Coast Guard; (8) As a driver of a vehicle carrying passengers for hire operated solely on call from a fixed stand; (9) As a golf caddy; (10) By a nonprofit school during the time such individual is a student attending such school; (11) In any capacity if by reason of the employee's employment in such capacity and during the term thereof the minimum wage which may be paid the employee or maximum hours which the employee may work during any workweek without the payment of overtime, are prescribed by the federal Fair Labor Standards Act of 1938, as amended, or as the same may be further amended from time to time; provided that if the minimum wage which may be paid the employee under the Fair Labor Standards Act for any workweek is less than the minimum wage prescribed by section 387-2, then section 387-2 shall apply in respect to the employees for such workweek; provided further that if the maximum workweek established for the employee under the Fair Labor Standards Act for the purposes of overtime compensation is higher than the maximum workweek established under section 387-3, then section 387-3 shall apply in respect to such employee for such workweek; except that the employee's regular rate in such an event shall be the employee's regular rate as determined under the Fair Labor Standards Act; (12) As a seasonal youth camp staff member in a resident situation in a youth camp sponsored by charitable, religious, or nonprofit organizations exempt from income tax under section 501 of the federal Internal Revenue Code or in a youth camp accredited by the American Camping Association; or (13) As an automobile salesperson primarily engaged in the selling of automobiles or trucks if employed by an automobile or truck dealer licensed under chapter 437.

"Employer" includes any individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons, acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include the State or any political subdivision thereof or the United States.

Misclassification: includes questions 2 and 8. 2. No, 8. Yes, but only for unpaid wages as a result of misclassification. Damages of the amount of back wages owed plus 6% int. & atty fees, in addition to back wages. See 388-11, HRS and 388-10, HRS

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Recordkeeping: includes questions 3, 4, 5 and 6. 3. Yes, but only for unpaid wages as a result of misclassification. Damages of the amount of back wages owed plus 6% int. & atty fees, in addition to back wages. See 388-11, HRS and 388-10, HRS 4. Yes, see question 3 answer 5. Required to keep for 6 years. See 387-6, HRS and 12-20-8 HAR (in comments).Must provide written notice or electronic access to records. Nothing about any rebuttable presumption against employer, though. There does appear to be a rebuttable presumption.

(a) Every employer shall keep in or about the premises wherein any employee is employed a record of the name, address, and occupation of each such employee, of the amount paid each pay period to each such employee, of the hours worked each day and each workweek by each such employee, and of such other information and for such periods of time as the director of labor and industrial relations may by regulation prescribe. --KyleAntonelli Monday, July 12, 2010 5:19:16 PM

6. Yes. See question 5. Employee must be provided with written statement containing: (1) Total hours worked; (2) Overtime hours; (3) Straight-time compensation; (4) Overtime compensation; (5) Other compensation; (6) Total gross compensation; (7) Amount and purpose of each deduction; (8) Total net compensation; (9) Date of payment; and (10) Pay period covered; --KyleAntonelli Monday, July 12, 2010 5:24:15 PM

Penalties and general recourse: includes questions 7, 8, 11, 12, and 13. 7. Penalities are only invoked when employers contest and AG takes action in court. No criminal penalities have been invoked in the recent history. See 387-7, HRS and 388-10, HRS§387-7 Wilful violations; penalty. Any employer who wilfully hinders or delays the director of labor and industrial relations or the director's authorized representative in the performance of the director's duties in the enforcement of this chapter; or who wilfully refuses to admit the director or the director's authorized representative to any place of employment; or who fails to keep or who falsifies any record required under section 387-6 or who refuses to make such records accessible or to give information required for the proper enforcement of this chapter, upon demand, to the director or the director's authorized representative shall be fined not more than $500 or imprisoned not more than ninety days, or both.(a) Civil. Any employer who fails to pay wages in accordance with this chapter without equitable justification shall be liable to the employee, in addition to the wages legally proven to be due, for a sum equal to the amount of unpaid wages and interest at a rate of six per cent per year from the date that the wages were due. (b) Criminal. Any employer who does not pay the wages of any of the employer's employees in accordance with this chapter, or any officer of any corporation who knowingly permits the corporation to violate this chapter by failing to pay wages of any of its employees in accordance with this chapter, or any employer or the employer's agent or any officer or agent of a corporation who discharges or in any other manner discriminates against any employee because the employee has made a complaint to the employee's employer, or to the director, or to any other person that the employee has not been paid wages in accordance with this chapter, or has instituted or caused to

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be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, or any employer who wilfully fails to comply with any other requirements of this chapter shall be fined not less than $100 nor more than $10,000 or imprisoned for not more than one year, or punished by both fine and imprisonment for each such offense. 8. Yes, but only for unpaid wages as a result of misclassification. Damages of the amount of back wages owed plus 6% int. & attorney fees, in addition to back wages. See 388-11, HRS and 388-10, HRS

11. 387-7, HRS : fined not more than $500 or imprisoned not more than ninety days, or both

12. No. See 388-11, HRS (d) (e) (f) for treatment under bankruptcy

13. File a complaint with DLIR or go to court, see 388-11, HRS

Investigations of wrongdoing: includes questions 9 and 10.

9. Yes. (See 387-6, HRS (e) and 388-9, HRS) Anonymity is protected by doing a company based review.

10. Yes. See 388-10, HRS (b)

WEST VIRGINIA

1. §21-5-1. Definitions. (a) The term "firm" includes any partnership, association, joint-stock company, trust, division of a corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, or officer thereof, employing any person. (b) The term "employee" or "employees" includes any person suffered or permitted to work by a person, firm or corporation. (m) The term "employer" means any person, firm or corporation employing any employee. (n) The term "doing business in this state" means having employees actively engaged in the intended principal activity of the person, firm or corporation in West Virginia. (e) If a person, firm or corporation fails to pay an employee wages as required under this section, such person, firm or corporation shall, in addition to the amount which was unpaid when due, be liable to the employee for three times that unpaid amount as liquidated damages. Every employee shall have such lien and all other rights and remedies for the protection and enforcement of such salary or wages, as he or she would have been entitled to had he or she rendered service therefore in the manner as last employed

Misclassification: includes questions 2 and 8.

2. Our investigators determine whether or not an employer/employee relationship exists based on the rules for “common law employees”. --rolson Tuesday, February 01, 2011 11:08:49 AM

8. Is not addressed by the laws governed by this agency.

87    

Recordkeeping: includes questions 3, 4, 5 and 6.

3. Employers are not required to notifying at hiring of the wage rate but it must be provided before the employee performs any work. There is nothing to require an employer to provide information about the payday at hiring.

4. No.

5. Yes, see details for requirements. No automatic rebuttable presumption of wage violation. Comments: DWD 272.11 Wisconsin Administrative Code provides that employers in the State of Wisconsin must make and keep payroll or other records for three years for each of their employees which contain:

1. Name and address

2. Date of birth

3. Date of entering and leaving employment

4. Time of beginning and ending of work each day

5. Time of beginning and ending of meal periods if employees’ meal periods are required or such meal periods are to be deducted from work time. This requirement shall not apply when work is of such a nature that production or business activity ceases on a regularly scheduled basis

6. Total number of hours per day and per week

7. Rate of pay and wages paid each payroll period

8. The amount of and reason for each deduction from the wages earned

9. Output of employee, if paid on other than a time basis

States not included in the survey results

Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas,

Maryland, Michigan, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina,

North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Vermont, Virginia,

Washington, West Virginia, Wisconsin and Wyoming did not respond to the questionnaire

88    

during the time I was performing my practicum even after several e-mails and follow-up phones

calls.

Mississippi, Louisiana and Florida does not have a state agency in charge of labor standards

enforcement.

Alabama complies with federal standards and therefore does not have specific state labor laws.

                                                           

89    

Websites for Labor Standards Enforcement Agencies http://www.alalabor.state.al.us/

http://www.labor.state.ak.us/

http://www.ica.state.az.us/

http://www.arkansas.gov/labor

http://www.dir.ca.gov/dlse

http://www.coworkforce.com/LAB/

http://www.ct.gov/dol

http://www.delawareworks.com/

http://www.does.dc.gov/

http://www.myfloridalicense.com/dbpr/reg/childlabor/

http://www.dol.state.ga.us/

http://www.hawaii.gov/labor

http://www.cl.idaho.gov/

http://www.state.il.us/agency/idol/

http://www.in.gov/labor

http://www.iowaworkforce.org/labor

http://www.dol.ks.gov/

http://www.labor.ky.gov/

http://www.laworks.net/

http://www.maine.gov/labor

http://www.dllr.state.md.us/

http://www.ago.state.ma.us/

http://www.michigan.gov/wagehour

http://www.doli.state.mn.gov/

http://www.state.ms.us/

http://www.labor.mo.gov/ls

http://dli.mt.gov/

90    

http://www.dol.state.ne.us/

http://laborcommissioner.com/

http://www.labor.state.nh.us/

http://www.state.nj.us/labor

http://www.dol.state.nm.us/

http://www.labor.ny.gov/

http://www.nclabor.com/

http://www.nd.gov/labor/

http://www.ohio.gov/

http://www.labor.ok.gov/

http://www.oregon.gov/BOLI/

http://www.dli.state.pa.us/

http://www.dlt.state.ri.us/

http://www.dlt.state.ri.us/

http://www.llr.state.sc.us/

http://www.state.sd.us/applications/LD01DOL/

http://www.state.tn.us/labor-wfd/

http://www.texasworkforce.org/

http://www.laborcommission.utah.gov/

http://www.labor.vermont.gov/

http://www.doli.state.va.us/

http://www.lni.wa.gov/

http://www.wvlabor.org/

http://www.dwd.state.wi.us/

http://wydoe.state.wy.us/

   

91    

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