Regular Session 2017-2018 Senate Bill 0161 P.N. 0134

PRINTER'S NO. 134

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

161

Session of

2017

INTRODUCED BY TARTAGLIONE, FONTANA, COSTA, FARNESE, YUDICHAK,

HAYWOOD, HUGHES AND STREET, JANUARY 20, 2017

REFERRED TO LABOR AND INDUSTRY, JANUARY 20, 2017

AN ACT

Amending the act of July 14, 1961 (P.L.637, No.329), entitled

"An act relating to the payment of wages or compensation for

labor or services; providing for regular pay days; conferring

powers and duties upon the Department of Labor and Industry,

including powers and duties with respect to the civil

collection of wages; providing civil and criminal penalties

for violations of the act; providing for their collection and

disposition and providing for additional civil damages,"

further providing for definitions; providing for duty of

department to report; further providing for civil remedies

and penalties, for liquidated damages and for criminal

penalties; providing for employer liability; and establishing

the Wage Enforcement Fund.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definition of "employer" in section 2.1 of

the act of July 14, 1961 (P.L.637, No.329), known as the Wage

Payment and Collection Law, is amended and the section is

amended by adding a definition to read:

Section 2.1. Definitions.--The following words and phrases

when used in this act shall have, unless the context clearly

indicates otherwise, the meanings given to them in this section:

* * *

"Employer." Includes the Commonwealth; any of its political

subdivisions; any authority created by the General Assembly and

any instrumentality or agency of the Commonwealth; every person,

firm, partnership, association, corporation, receiver or other

officer of a court of this Commonwealth and any agent or officer

of any of the above-mentioned classes employing any person in

this Commonwealth.

* * *

"High violation industry." An industry that incurs at least

25 violations over a two-year period.

* * *

Section 2. The act is amended by adding a section to read:

Section 8.1. Duty of Department to Report.--(a) The

department shall collect on a quarterly basis the following data

categorized by industry:

(1) number of violations;

(2) amount of fines collected;

(3) nature of violations;

(4) number of individual complaints filed;

(5) number of complaints resolved;

(6) amount of unpaid wages owed;

(7) amount of unpaid wages recovered;

(8) number of pending individual complaints;

(9) number of workplaces investigated from complaints;

(10) number of workplaces investigated proactively;

(11) number of workplaces reinvestigated following

violations; and

(12) number of subsequent violations.

On a semiannual basis, the department shall prepare and submit a

report of this data to the Chairman of the Labor and Industry

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Committee of the Senate and the Chairman of the Labor and

Industry Committee of the House of Representatives and post the

report on the department's publicly accessible Internet website.

(b) The secretary shall investigate high-violation

industries no less than quarterly; train investigators to

recognize basic labor, health and safety violations; and engage

in cross-agency referrals to protect workers' rights.

Section 3. Section 9.1(c) of the act is amended and the

section is amended by adding a subsection to read:

Section 9.1. Civil Remedies and Penalties.--* * *

party to whom any type of wages is payable may, in the

alternative, inform the secretary of the wage claim against an

employer or former employer, and the secretary shall, unless the

claim appears to be frivolous, immediately notify the employer

or former employer of such claim by certified mail. If the

employer or former employer fails to pay the claim or make

satisfactory explanation to the secretary of his failure to do

so within ten days after receipt of such certified notification,

thereafter, the employer or former employer shall be liable for

a penalty of [ten percent (10%) of that portion of the claim

found to be justly due.] one thousand dollars ($1,000) per

violation of this act or the regulations or equal to twice the

underpaid wages in damages to the employe, whichever is greater.

Each week in which an employe is paid less than the applicable

wage under this act and each employe who is paid less than the

prescribed rate shall constitute a separate violation that shall

be subject to a separate penalty. A good faith dispute or

contest as to the amount of wages due or the good faith

assertion of a right of set-off or counter-claim shall be deemed

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a satisfactory explanation for nonpayment of such amount in

dispute or claimed as a set-off or counter-claim. The secretary

[shall have a cause of action against the employer or former

employer for recovery of such penalty and the same] may issue

orders and levy the civil penalty only after affording the

accused party the opportunity for a hearing as provided under 2

Pa.C.S. (relating to administrative law and procedure). The

penalty may be included in any subsequent action by the

secretary on said wage claim or may be exercised separately

after adjustment of such wage claim without court action. At the

request of an employe, the department shall assign that portion

of the money due that constitutes wages, wage supplements,

interest on wages or wage supplements, and liquidated damages

due that employe, to that employe and file an order in that

amount in the name of that employe with the county clerk of the

county where the employer resides or has a place of business.

The filing of the order shall have the full force and effect of

a judgment duly docketed in the office of the clerk.

* * *

(h) The following apply:

(1) It is unlawful for an employer or the employer's agent,

or the officer or agent of a corporation, to discharge or in any

other manner discriminate against any employe who:

(i) files or submits a complaint under this act;

(ii) cooperates with the secretary or the secretary's

representative, submits evidence, testifies or is about to

testify before the secretary or the secretary's representative

in any investigation or proceeding under or related to this act;

(iii) the employer believes may take the actions under this

paragraph or paragraph (2);

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(iv) exercises any right under this act or any regulation

implementing its provisions;

(v) provides assistance or information to another employe

about this act.

An employer shall, upon conviction thereof, be sentenced to pay

a fine of not less than five hundred dollars ($500) nor more

than one thousand dollars ($1,000), and in default of the

payment of the fine and costs, shall be sentenced to

imprisonment for not less than 10 days nor more than 90 days.

(2) A first offense under this subsection shall be graded as

a summary offense. A second or subsequent offense under this

subsection, committed within a five-year period of the prior

offense, shall be graded as a misdemeanor of the third degree

and shall be punishable by a fine of not less than one thousand

dollars ($1,000) nor more than three thousand dollars ($3,000)

or to imprisonment of not less than 10 nor more than 100 days.

Each day of the failure to comply with this subsection or its

regulations and each employe who is discharged or in any other

manner discriminated against shall constitute a separate offense

subject to a separate penalty. An employer and the employer's

agent, or the officer or agent of any corporation, may also be

required to pay the employe an amount set by the court

sufficient to compensate the employe and deter future

violations.

Section 4. Sections 10 and 11.1 of the act are amended to

read:

Section 10. Liquidated Damages.--Where wages remain unpaid

for thirty days beyond the regularly scheduled payday, or, in

the case where no regularly scheduled payday is applicable, for

sixty days beyond the filing by the employe of a proper claim or

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for sixty days beyond the date of the agreement, award or other

act making wages payable, or where shortages in the wage

payments made exceed five percent (5%) of the gross wages

payable on any two regularly scheduled paydays in the same

calendar quarter, and no good faith contest or dispute of any

wage claim including the good faith assertion of a right of set-

off or counter-claim exists accounting for such non-payment, the

employe shall be entitled to claim, in addition, as liquidated

damages an amount equal to [twenty-five percent (25%) of the

total amount of wages due, or five hundred dollars ($500),

whichever is greater.] twice the underpaid wages due or one

thousand dollars ($1,000), whichever is greater. Each week in

which an employe is paid less than the applicable wage under

this act shall constitute a separate violation that shall be

subject to a separate penalty.

Section 11.1. Criminal Penalties.--(a) The secretary or any

employe, group of employes, labor organization or party to whom

any type of wages is payable may institute prosecutions under

this act.

(b) In addition to any other penalty or punishment otherwise

prescribed by law, any employer who violates any provisions of

this act [shall be guilty of a summary offense and, upon

conviction thereof,] shall be punished by a fine of not [more]

less than three hundred dollars ($300) nor more than one

thousand dollars ($1,000), or by imprisonment up to 90 days, or

by both[, for each offense]. Each day of the failure to comply

with this act, and each employe against whom the employer or

officer or agent of any corporation violated any other provision

of this act, shall constitute a separate offense that shall be

subject to a separate penalty. A first offense under this

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subsection shall be graded as a summary offense. A second or

subsequent offense under this subsection, committed within a

five-year period of the prior offense, shall be graded as a

misdemeanor of the third degree and shall be punishable by a

fine of not less than five hundred dollars ($500) nor more than

one thousand dollars ($1,000). The good faith contest or dispute

by any employer of any wage claim or the good faith assertion of

a right of set-off or counter-claim shall not be considered a

violation of this act: Provided, That the employer has paid all

wages due in excess of the amount in dispute or asserted to be

subject to a right of set-off or counter-claim. [Nonpayment of

wages to, on account of, or for the benefit of each individual

employe shall constitute a separate offense.]

secretary, treasurer or officers exercising corresponding

functions shall each be guilty of such summary offense.

(d) [All fines or penalties collected under this act shall

be paid into the State Treasury through the Department of

Revenue to the credit of the General Fund.] All fines and

penalties collected under section 9.1 and this section, as well

as section 12 of the act of January 17, 1968 (P.L.11, No.5),

known as The Minimum Wage Act of 1968, shall be deposited into

the Wage Enforcement Fund established under section 11.2. This

subsection does not apply to penalties and wages paid to

employes for violations of this act or The Minimum Wage Act of

1968.

Section 5. The act is amended by adding sections to read:

Section 11.2. Employer Liability.--An employer similar in

operation and ownership to another employer found in violation

of section 9.1(c) or (h) or 11.1(b) shall be deemed the same

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employer for the purposes of this section if the employes of the

similar employer are engaged in substantially the same work in

substantially the same working conditions under substantially

the same supervisors, or if the similar employer has

substantially the same production process, produces

substantially the same products and has the same body of

customers as the other employer found in violation of section

9.1(c) or (h) or 11.1(b). The similar employer shall continue to

be subject to section 9.1(c) or (h) or 11.1(b) and shall be

liable for the acts of the other employer under section 9.1(c)

or (h) or 11.1(b), as applicable.

Section 11.3. Wage Enforcement Fund.--(a) The Wage

Enforcement Fund is established in the State Treasury. The money

in the Wage Enforcement Fund shall consist of the fines and

penalties collected under sections 9.1 and 11.1 and section 12

of the act of January 17, 1968 (P.L.11, No.5), known as The

Minimum Wage Act of 1968, and deposited into the fund pursuant

to section 12 of The Minimum Wage Act of 1968.

(b) Money in the Wage Enforcement Fund is hereby

appropriated on a continuing basis, upon approval of the

Governor, to the department for periodic inspections, for

investigations of violations and for the enforcement of this act

and The Minimum Wage Act of 1968, including, but not limited to,

staffing for inspection, investigation and enforcement under

this act and The Minimum Wage Act of 1968.

Enforcement Fund to any third party for any other purpose than

investigation, training investigators and enforcement under this

act and The Minimum Wage Act of 1968.

(d) Money in the Wage Enforcement Fund shall not lapse at

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any time or be transferred to any other fund, except as provided

in section 12 of The Minimum Wage Act of 1968.

(e) No later than June 30 of each calendar year the

department shall provide a report to the Governor and the

General Assembly, through the Secretary-Parliamentarian of the

Senate and the Chief Clerk of the House of Representatives,

regarding the Wage Enforcement Fund. The report shall include an

accounting for the fines collected and deposited into the fund,

the expenditures and transfers from the fund during the prior

year, a description of the purposes for which expenditures from

the fund were made in the prior year and a full account of the

data collections required of the department under section 7 of

The Minimum Wage Act of 1968. This report shall be posted on the

department's publicly accessible Internet website no later than

July 1 of each calendar year.

Section 6. This act shall take effect in 60 days.

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