CHAPTER 18

AN ACT TO PRESCRIBE MINIMUM WAGES FOR EMPLOYEES AND TO PROVIDE FOR THE ADMINISTRATION AND ENFORCEMENT THEREOF.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 19, Delaware Code, is amended by adding a new chapter to read:

CHAPTER 9. MINIMUM WAGE

§ 901. Definition of terms

As used in this chapter:

(a) "Department" means the Department of Labor and Industrial Relations or its authorized representatives;

(b) "Wage" means compensation due to an employee by reason of his employment, payable in legal tender of the United States or check or bank convertible into cash on demand at full face value, subject to such deductions, charges, or allowances as may be permitted by the regulations of the Department under this chapter;

(c) "Employ" means to suffer or permit to work;

(d) "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;

(e) "Employee" includes any individual employed by an employer but shall not include:

(1) Any individual employed in agriculture;

(2) Any individual employed in domestic service in or about a private home;

(3) Any individual employed in a bona fide, executive, administrative, or professional capacity; or as an outside commission paid salesman, not route driver, who customarily performs his services away from his employer's premises taking orders for goods or services;

(4) Any individual employed by the United States;

(5) Any individual engaged in the activities of an educational, charitable, religious, or non-profit organization where the employment relationship does not in fact exist or where the services are rendered to such organization gratuitously;

(6) Any individual employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee;

(f) "Occupation" means any occupation, service, trade, business, industry, or branch or group of industries or employment or class of employment in which employees are gainfully employed;

(g) "Gratuities" means voluntary monetary contributions received by an employee from a guest, patron, or customer for services rendered.

§ 902. Minimum wage rate

(a) Every employer shall pay wages at the rate of not less than $1.00 an hour to every employee in any occupation except as may be otherwise provided under this chapter.

(b) Every employer of an employee engaged in any occupation in which gratuities have customarily and usually constituted and have been recognized. as part of the remuneration for hiring purposes shall be entitled on application to the Department to an allowance therefore in an amount that the Department shall determine by regulation to be necessary or appropriate to preserve or safeguard this minimum wage rate under this chapter.

§ 903. Powers of the Department

(a) The Department shall administer and enforce the provisions of this chapter.

(b) Upon ex parte application of the Department showing reasonable ground to believe that any provision of this chapter, or any regulation published thereunder, has been or is being violated, the Superior Court shall enter an order permitting the Department:

(1) To enter and inspect, after one day notice to the employer, the premises or place of business or employment and upon demand examine and copy wholly or partly any or all books, registers, payrolls, and other records that in any way relate to or have a bearing upon the question of wages, hours, and other conditions of employment of any employee, including those required to be made, kept and preserved under this chapter, or any regulation published thereunder;

(2) To question any employer, employee or other person in the premises or place of business or employment ;

(3) To require from any employer full and vrPnt statements in writing, including sworn statements, upon forms prescribed or approved by the Department, with respect to the payment of wages, hours, names, addresses, and such other information pertaining to employees as the Department may deem necessary or appropriate ;

(4) To investigate such facts, conditions, or matters as the Department may deem necessary or appropriate to determine whether any provision of this chapter, or any regulation published thereunder, has been or is being violated;

(5) To hold hearings, administer oaths and examine witnesses under oath, issue subpoenas, compel the attendance of witnesses, and the production of papers, books, accounts, records, payrolls, documents, and testimony, and to take depositions and affidavits in any proceeding before it, and in case of failure of any person to comply with any subpoena lawfully issued, or on the refusal of any witness to testify to any matters regarding which he may be lawfully interrogated, the Superior Court, on application by the Department, shall compel obedience as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

(c) The Department may institute actions in the Superior Court for penalties for any violation of any provision of this chapter, or any regulation published thereunder.

(d) Nothing contained in this chapter shall be deemed a limitation on any power or authority of the Department under any other law of this State which may be otherwise applicable to administer or enforce the provisions of this chapter.

§ 904. Regulations

(a) The Department for any occupation shall have the power to make and revise or rescind such regulations, including the definition of terms, as it may deem necessary or appropriate to preserve or safeguard the minimum wage rate under this chapter, except that prior thereto the Department shall hold public hearing upon reasonable notice at which any person may be heard, and shall consult with the members of an advisory board representing the interests of employers, employees, and the public in equal numbers totaling not more than 9 in all. The members of the board shall serve at the pleasure of the Department and may be paid by it as compensation for their services a reasonable per diem, in accordance with such regulations as it may prescribe, for each day on which they attend a meeting of the board or for each day they spend in the work of the board, and may in addition be reimbursed for their necessary and reasonable traveling expenses. Such regulations may include, but are not limited to: regulations defining and governing outside salesmen, learners and apprentices, their number, proportion, and length of service; part-time pay; bonuses ; overtime pay ; special pay for special or extra work; permitted

charges to employees or allowances for board, lodging, apparel, or other facilities or services customarily furnished by employers to employees; allowances for gratuities; or allowances for such other special conditions or circumstances which may be usual in a particular employment relationship. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.

(b) The Department shall have the power to make and revise or rescind such regulations as it may deem necessary or appropriate to administer or enforce the provisions of this chapter, and such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.

§ 905. Wage rate for handicapped workers

For any occupation, the Department may provide by regulations, after public hearing upon reasonable notice at which any person may be heard, for the employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury at such wages lower than the minimum wage rate under this chapter as the Department may deem necessary or appropriate to avoid such hardship or prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under special license issued under the applicable regulations of the Department. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.

§ 906. Wage rate for learners and apprentices

For any occupation, the Department may provide by regulations, after public hearing upon reasonable notice at which any person may be heard, for the employment of learners and apprentices at such wages lower than the minimum rate under this chapter as the Department may deem necessary or appropriate to prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under applicable regulations of the Department. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.

§ 907. Records of employers

Every employer shall make, keep and preserve for a period of not less than three years in or about the premises or place of business or employment, a record of the name, address, and occupation of each employee, the rate of pay, and the amount paid each pay period to each employee, the hours worked each day and each work week by each employee, and such other information or records as the Department shall deem by regulation to be necessary or appropriate to administer or enforce the provisions of this chapter.

§ 908. Posting of laws and regulations

Every employer shall keep a summary of this chapter, approved by the Department, and of any applicable regulations published thereunder, or a summary thereof, approved by the Department, posted in a conspicuous and accessible location in or about the premises or place of employment and where employees normally pass. Employers shall be furnished copies thereof by the Department on request without charge.

§ 909. Judicial review

(a) Any interested person in any occupation for which any regulation has been published under the provisions of this chapter who has been or may be aggrieved thereby, may obtain a review thereof in the Superior Court by filing in such court within 20 days after notice that such regulation will affect his business operations or employment conditions or compensation a petition against the Department as defendant praying that the regulation be modified or revoked. Two copies of the petition shall be served upon the Department by registered mail. Facts determined by the Department, if supported by evidence, shall be conclusive upon the court. The court shall determine whether the person has been or may be aggrieved and whether the regulation is in accordance with law. If the court determines that the person has been or may be aggrieved and that the regulation is not in accordance with law, it shall remand the case to the Department with directions to modify or revoke the regulation.

(b) Proceedings in the Superior Court upon review taken under this section shall be privileged and take precedence over all matters, except matters of the same character. The jurisdiction of the court shall be exclusive and its judgment and decree shall be final except that the same shall be subject to review by the Supreme Court at the instance of either party.

(c) The commencement of proceedings under this section shall not, unless specifically ordered by the Superior Court, operate as a stay of any regulation published under this chapter. The court shall not grant any stay of any regulation unless the person aggrieved shall file in the court an undertaking with a surety or sureties satisfactory to the court for the payment to the employees affected by the regulation, in the event it is affirmed, of the amount by which the compensation the employees are entitled to receive under the regulation exceeds the compensation they actually receive while the stay is in effect.

§ 910. Penalties for violation

(a) Any employer who, under this chapter, hinders or delays the Department in the performance of its duties, or refuses to admit the Department to the premises or place of business or employment in violation of any court order; or fails to make, keep and preserve any books, registers, payrolls, or other records, or falsifies the same, or refuses to make the same accessible to the Department, or refuses to furnish a sworn statement of the same or any other information, or fails to post a summary of this chapter or of any applicable regulations published thereunder or summary thereof, or pays or agrees to pay wages at a rate less than the rate applicable, or otherwise violates any provision of this chapter, or any regulation published thereunder, shall be deemed in violation of this chapter and shall, upon conviction therefor, be fined not more than $200.00 for each such violation.

(b) Any employer who discharges or in any other manner discriminates against any employee because he has made a complaint or given information to the Department relating to the provisions of this chapter; or because he has caused to be instituted or is about to be caused to be instituted any proceeding under this chapter; or because he has testified or is about to testify in any such proceeding, shall be deemed in violation of this chapter and shall, upon conviction thereof, be fined not more than $1,000.00, for each violation.

§ 911. Remedies of employees

(a) Any employer who pays any employee less than the full amount of the wages to which he is entitled under this chapter, shall be liable to such employee in a civil action for the full amount of such wages less any amount actually paid to such employee by the employer, and for the costs of the action, necessary expenses of prosecution, and reasonable attorney's fees. Any agreement between such employee and the employer to work for less than the minimum wage rate under this chapter shall be no defense to such action.

(b) At the written request of any employee who is paid less than the full amount of the wages to which he is entitled under this chapter, the Department, if it determines that the claim is valid and enforceable, may take an assignment of the claim in trust for the assigning employee and may prosecute any legal action necessary for the full amount of such wages less any amount actually paid to such employee by the employer. The employer shall also be liable to pay the costs of the action, necessary expenses of prosecution, and reasonable attorney's fees. Expenses and attorney's fees shall be remitted by the Department to the State Treasurer.

§ 912. Relation to other laws

Any standards relating to minimum wages, maximum hours, overtime compensation or other working conditions in effect under any other law of this State on the effective date of this chapter, which are more favorable to employees than those applicable to such employees under this chapter, or regulations published thereunder, shall not be deemed to be amended, rescinded, or otherwise affected by this chapter but shall continue in full force and effect and may be enforced as provided by law ; otherwise any such standards in effect under any other law of this State on the effective date of this chapter are specifically superseded by standards established under this chapter, or regulations published thereunder, which are more favorable to such employees.

§ 913. Right of collective bargaining

Nothing in this chapter shall be deemed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the minimum wage rate under this chapter.

§ 914. Short title

This chapter shall be known as the "Minimum Wage Act of the State of Delaware".

Section 2. § 701, Title 19, Delaware Code, is repealed.

Section 3. The provisions of this act shall become effective 180 days after this act becomes law.

Approved March 30, 1965.