BP BHEAD INT S

AN ACT Relating to penalties for violation of industrial welfare laws; amending RCW 49.46.100, 49.48.040, and 49.48.060; adding new sections to chapter 49.12 RCW; creating a new section; repealing RCW 49.12.161 and 49.12.170; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) If, after an inspection under RCW 49.12.041, the director, or the director's authorized representative, finds that an employer has violated a rule or order adopted under this chapter, a citation stating the violations shall immediately be issued to the employer. The citation shall be in writing, describing the nature of the violation including reference to the standards, rules, or orders alleged to have been violated, and shall fix a specific time for abatement of the violation. The citation, notice, and proposed penalty assessment shall be given to the highest management official available at the workplace or be mailed to the employer. Citations issued under this section shall be posted at or near the place where the violation occurred, and shall contain an abatement date by which the employer must correct the violation.

(2) The director shall give the employer the opportunity to resolve the citation. If, after the date stated in the citation for abatement of the violation, the employer has not corrected the violation, he or she shall be assessed a civil penalty of not more than five hundred dollars. An employer who receives a citation under this section shall pay the amount assessed within thirty days of receipt of the assessment or notify the director of his or her intent to appeal the citation or assessment penalty as provided in section 2 of this act.

(3) An employer who repeatedly violates the same provision of the requirements of this chapter, a rule adopted under this chapter, or an order granting a variance under this chapter, may be assessed a civil penalty of not more than one thousand dollars for each day the violation continues.

(4) An employer who violates any of the posting requirements of this chapter or rules adopted under this chapter shall be assessed a civil penalty of not more than one hundred dollars for each violation.

(5) A person who gives advance notice of an inspection to be conducted under this chapter without the authority of the director shall be assessed a civil penalty of not more than one thousand dollars.

(6) Penalties assessed under this section shall be paid to the director and deposited into the general fund.

(7) This section shall not apply to violations of RCW 49.12.270 through 49.12.295.

NEW SECTION. Sec. 2. A person, firm, or corporation aggrieved by an action taken or decision made by the department under section 1 of this act may appeal the action or decision to the director by filing notice of the appeal with the director within thirty days of the department's action or decision. Upon receipt of an appeal, a hearing shall be held in accordance with chapter 34.05 RCW. The director shall issue all final orders after the hearing. The final orders are subject to appeal in accordance with chapter 34.05 RCW. Orders not appealed within the time period specified in chapter 34.05 RCW are final and binding.

NEW SECTION. Sec. 3. Sections 1 and 2 of this act are each added to chapter 49.12 RCW.

NEW SECTION. Sec. 4. For the purposes of RCW 49.46.100, 49.48.040, and 49.48.060:

(1) The legislature finds that over twenty-five thousand state residents per year file cases and complaints with the department of labor and industries alleging they have been denied payment for work they performed. Each month an average of over one million dollars in back wages is sought by workers; and

(2) The legislature further finds that the Washington state minimum wage law and wage claim laws do not require payment of interest on back wages owed and do not authorize adequate penalties against violators. To improve compliance, the department of labor and industries should be allowed to assess interest on back wages and impose civil penalties against employers who are found to be not in compliance with chapters 49.46 and 49.48 RCW.

Sec. 5. RCW 49.46.100 and 1959 c 294 s 10 are each amended to read as follows:

(1) Any employer who hinders or delays the director or ((~~his~~)) the director's authorized representatives in the performance of ((~~his~~)) the director's duties in the enforcement of this chapter, or refuses to admit the director or ((~~his~~)) the director's authorized representatives to any place of employment, or fails to make, keep, and preserve any records as required under the provisions of this chapter, or falsifies any such record, or refuses to make any record accessible to the director or ((~~his~~)) the director's authorized representatives upon demand, or refuses to furnish a sworn statement of such record or any other information required for the proper enforcement of this chapter to the director or ((~~his~~)) the director's authorized representatives upon demand((~~, or pays or agrees to pay wages at a rate less than the rate applicable under this chapter, or otherwise violates any provision of this chapter or of any regulation issued under this chapter~~)) shall be deemed in violation of this chapter and shall((~~, upon conviction therefor, be guilty of a gross misdemeanor~~)) be assessed a civil penalty of not more than one thousand dollars depending on the size of the business and the gravity of the violation.

(2) ((~~Any~~)) (a) An employer who pays or agrees to pay wages at a rate less than the rate applicable under this chapter or any rule or order adopted under this chapter may be assessed civil penalties of an amount equal to twenty percent of the wage violation.

(b) An employer who willfully or repeatedly pays or agrees to pay wages at a rate less than the rate applicable under this chapter or a rule or order adopted under this chapter is in violation of this chapter, and shall, upon conviction, be guilty of a gross misdemeanor.

(3) Upon a finding by the director that an employer who discharges or in any other manner discriminates against any employee because such employee has made any complaint to his or her employer, to the director, or his or her authorized representatives that he or she has not been paid wages in accordance with the provisions of this chapter, or that the employer has violated any provision of this chapter, or because such employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this chapter, or because such employee has testified or is about to testify in any such proceeding ((~~shall be deemed in violation of this chapter and shall, upon conviction therefor, be guilty of a gross misdemeanor~~)), the director may require an employer who has discharged or discriminated against an employee in violation of this chapter to reinstate the employee to the same position with back pay and interest up to one percent per month.

(4) Civil penalties imposed under this chapter shall be paid to the director for deposit in the general fund. Civil penalties may be recovered and other civil remedies authorized by this chapter may be enforced in a civil action in the name of the department brought in the superior court of the county where the violation is alleged to have occurred, or the department may use the procedures for collection of wages set forth in chapter 49.48 RCW.

Sec. 6. RCW 49.48.040 and 1987 c 172 s 1 are each amended to read as follows:

(1) The department of labor and industries may:

(a) Conduct investigations to ensure compliance with chapters 39.12, 49.46, and 49.48 RCW, upon obtaining information indicating an employer may be committing a violation under chapters 39.12, 49.46, and 49.48 RCW((~~, conduct investigations to ensure compliance with chapters 39.12, 49.46, and 49.48 RCW~~));

(b) Order the payment of all wages owed the workers, including interest of up to one percent per month on back wages owed, and institute actions necessary for the collection of the sums determined owed; and

(c) Take assignments of wage claims and prosecute actions for the collection of wages and interest of up to one percent per month on back wages owed of persons who are financially unable to employ counsel when in the judgment of the director of the department the claims are valid and enforceable in the courts.

(2) Upon being informed of a wage claim against an employer or former employer, the director shall, if such claim appears to be just, immediately notify the employer or former employer, of such claim by mail. If the employer or former employer fails to pay the claim or make satisfactory explanation to the director of the failure to do so, within thirty days thereafter, the employer or former employer shall be liable to a penalty of twenty percent of that portion of the claim found to be justly due. The director shall have a cause of action against the employer or former employer for the recovery of such penalty, and the same may be included in any subsequent action by the director on said wage claim, or may be exercised separately after adjustment of such wage claim without court action.

(3) The director of the department or any authorized representative may, for the purpose of carrying out RCW 49.48.040 through 49.48.080: (a) Issue subpoenas to compel the attendance of witnesses or parties and the production of books, papers, or records; (b) administer oaths and examine witnesses under oath; (c) take the verification of proof of instruments of writing; and (d) take depositions and affidavits. If assignments for wage claims are taken, court costs shall not be payable by the department for prosecuting such suits.

((~~(3)~~)) (4) The director shall have a seal inscribed "Department of Labor and Industries‑-State of Washington" and all courts shall take judicial notice of such seal. Obedience to subpoenas issued by the director or authorized representative shall be enforced by the courts in any county.

((~~(4)~~)) (5) The director or authorized representative shall have free access to all places and works of labor. Any employer or any agent or employee of such employer who refuses the director or authorized representative admission therein, or who, when requested by the director or authorized representative, willfully neglects or refuses to furnish the director or authorized representative any statistics or information pertaining to his or her lawful duties, which statistics or information may be in his or her possession or under the control of the employer or agent, shall be guilty of a misdemeanor.

(6) An action for relief under this section shall be commenced within three years after the cause of action accrues, unless a longer period of time applies under law.

Sec. 7. RCW 49.48.060 and 1971 ex.s. c 55 s 4 are each amended to read as follows:

(1) If upon investigation by the director, after taking assignments of any wage claim under RCW 49.48.040, it appears to the director that the employer is representing to ((~~his~~)) employees that ((he)) the employer is able to pay wages for their services and that the employees are not being paid for their services or if the director determines an employer has repeatedly violated the provisions of chapter 39.12, 49.46, or 49.48 RCW requiring payment of wages, the director may require the employer to give a bond in such sum as the director deems reasonable and adequate in the circumstances, with sufficient surety, conditioned that the employer will for a definite future period not exceeding six months conduct ((~~his~~)) business and pay ((~~his~~)) employees in accordance with the laws of the state of Washington.

(2) If within ten days after demand for such bond the employer fails to provide the same, the director may commence a suit against the employer in the superior court of appropriate jurisdiction to compel ((~~him~~)) the employer to furnish such bond or cease doing business until ((he)) the employer has done so. The employer shall have the burden of proving the amount thereof to be excessive.

(3) If the court finds that there is just cause for requiring such bond and that the same is reasonable, necessary or appropriate to secure the prompt payment of the wages of the employees of such employer and his compliance with RCW 49.48.010 through 49.48.080, the court shall enjoin such employer from doing business in this state until the requirement is met, or shall make other, and may make further, orders appropriate to compel compliance with the requirement.

((Upon being informed of a wage claim against an employer or former employer, the director shall, if such claim appears to be just, immediately notify the employer or former employer, of such claim by mail. If the employer or former employer fails to pay the claim or make satisfactory explanation to the director of his failure to do so, within thirty days thereafter, the employer or former employer shall be liable to a penalty of ten percent of that portion of the claim found to be justly due. The director shall have a cause of action against the employer or former employer for the recovery of such penalty, and the same may be included in any subsequent action by the director on said wage claim, or may be exercised separately after adjustment of such wage claim without court action.))

NEW SECTION. Sec. 8. The following acts or parts of acts are each repealed:

(1) RCW 49.12.161 and 1973 2nd ex.s. c 16 s 9; and

(2) RCW 49.12.170 and 1991 c 303 s 6, 1973 2nd ex.s. c 16 s 16, & 1913 c 174 s 17.

NEW SECTION. Sec. 9. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.