Bill 2426

                    Current Status

Bill Number:               2426
Ratification Number:       412
Act Number:                380
Introducing Body:          House
Subject:                   To provide for the method and manner of
                           the payment of wages and exempt domestic labor
                           in private homes and employers employing fewer
                           than five employees during the preceding
                           twelve months

(A380, R412, H2426)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 41-10-10 THROUGH 41-10-110 SO AS TO PROVIDE FOR THE METHOD AND MANNER OF THE PAYMENT OF WAGES AND EXEMPT DOMESTIC LABOR IN PRIVATE HOMES AND EMPLOYERS EMPLOYING FEWER THAN FIVE EMPLOYEES DURING THE PRECEDING TWELVE MONTHS; AND TO REPEAL SECTIONS 41-11-10 THROUGH 41-11-50, 41-11-110 THROUGH 41-11-140, 41-11-170, 41-11-180, AND 41-11-200 THROUGH 41-11-240 RELATING TO PAYMENT OF WAGES.

Be it enacted by the General Assembly of the State of South Carolina:

Definitions, applicability of chapter,

employer to pay wages, etc.

SECTION 1. The 1976 Code is amended by adding:

"Section 41-10-10. As used in this chapter:

(1) 'Employer' means every person, firm, partnership, association, corporation, receiver, or other officer of a court of this State, the State or any political subdivision thereof, and any agent or officer of the above classes employing any person in this State.

(2) 'Wages' means all amounts at which labor rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the amount and includes vacation, holiday, sick leave, and severance payments which are due to an employee under any employer policy or employment contract. Funds placed in pension plans or profit sharing plans are not wages subject to this chapter.

Section 41-10-20. This chapter applies to all employers in South Carolina except that Section 41-10-30 does not apply to:

(1) Employers of domestic labor in private homes.

(2) Employers employing fewer than five employees at all times during the preceding twelve months.

Section 41-10-30. (A) Every employer shall notify each employee in writing at the time of hiring of the hours and wages agreed upon, the time and place of payment, and the deductions which will be made from the wages, including payments to insurance programs. The employer has the option of giving written notification by posting the terms conspicuously at or near the place of work. Any changes in these terms must be made in writing at least seven calendar days before they become effective.

(B) Every employer shall keep records of names and addresses of all employees and of wages paid each payday and deductions made.

(C) 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.

Section 41-10-40. (A) Every employer in the State shall pay all wages due in lawful United States money or by negotiable warrant or check bearing even date with the payday.

(B) An employer may deposit all wages due to the employee's credit at a financial institution which is doing business in the State and is insured by an agency of the federal government. When an employee's wages are paid by deposit at a financial institution, he must be furnished a statement of earnings and withholdings. Any wage deposit plan adopted by an employer shall entitle each employee to at least one withdrawal for each deposit, free of any service charge.

(C) An employer shall not withhold or divert any portion of an employee's wages unless the employer is required or permitted to do so by state or federal law or the employer has given written notification to the employee of the amount and terms of the deductions as required by subsection (A) of Section 41-10-30.

(D) Every employer in the State shall pay all wages due at the time and place designated as required by subsection (A) of Section 41-10-30.

Section 41-10-50. Whenever an employer separates an employee from the payroll for any reason, the employer shall pay all wages due to the employee within forty-eight hours of the time of separation or the next regular payday which may not exceed thirty days after written notice is given.

Section 41-10-60. In case of a dispute over wages, the employer shall give written notice to the employee of the amount of wages which he concedes to be due and shall pay the amount without condition within the time set by this chapter. Acceptance by the employee of the payment does not constitute a release as to the balance of his claim.

Section 41-10-70. (A) Upon written complaint of any employee alleging a violation of this chapter, the Commissioner of Labor may institute an investigation of the alleged violation. If the Commissioner of Labor determines that a violation exists, he shall endeavor to resolve all issues by informal methods of mediation and conciliation.

(B) Upon application of either employer or employee, the Commissioner of Labor may inquire into, hear, and decide disputes arising from wages earned and allow or reject any deduction from wages. The amount of the award of the Commissioner of Labor is presumed to be the amount of wages, if any, due and unpaid to the employee. If either employer or employee fails or refuses to accept the findings of the Commissioner of Labor then either has the right to proceed at law.

Section 41-10-80. (A) Any employer who violates the provisions of Section 41-10-30 must be given a written warning by the Commissioner of Labor for the first offense and must be assessed a civil penalty of not more than one hundred dollars for each subsequent offense.

(B) Any employer who violates the provisions of Section 41-10-40 must be assessed a civil penalty of not more than one hundred dollars for each violation. Each failure to pay constitutes a separate offense.

(C) In case of any failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the 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.

(D) The Commissioner of Labor shall promulgate regulations to establish a procedure for administrative review of any civil penalty assessed by the commissioner.

(E) Any employer who, having the financial ability over and above any lawful exemption to pay wages due, wilfully fails or refuses to pay the wages within ten days after written demand is guilty of a misdemeanor and upon conviction must be fined not more than five hundred dollars or imprisoned for not more than ninety days. Each failure or refusal to pay constitutes a separate offense.

Section 41-10-90. In each case where a civil penalty assessed under subsection (A) or (B) of Section 41-10-80 is not paid within sixty days the Commissioner of Labor shall bring an action against the assessed employer for collection of the penalty. Any amounts collected must be turned over to the State Treasurer for deposit in the general fund of the State.

Section 41-10-100. No provision of this chapter may be contravened or set aside by a private agreement.

Section 41-10-110. The Commissioner of Labor, his inspectors, agents, or designees, upon proper presentation of credentials to the owner, manager, or agent of the employer, may enter at reasonable times and have the right to question either publicly or privately any employer, owner, manager, or agent and the employees of the employer and inspect, investigate, reproduce, or photograph time records or payroll

records for the purpose of determining that the provisions of this chapter are complied with."

Repeal

SECTION 2. Sections 41-11-10 through 41-11-50, 41-11-110 through 41-11-140, 41-11-170, 41-11-180, and 41-11-200 through 41-11-240 of the 1976 Code are repealed.

Time effective

SECTION 3. This act shall take effect upon approval by the Governor.