CHAPTER 19

AN ACT TO PROVIDE FOR THE PAYMENT OF WAGES AND TO ENFORCE THEIR COLLECTION.

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 11. WAGE PAYMENT AND COLLECTION

§ 1101. Definition of terms

(a) As used in this chapter:

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

(2) "Wages" means compensation for labor or services rendered by an employee, whether the amount is fixed or determined on a time, task, piece, commission, or other basis of calculation;

(3) "Employer" means 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;

(4) "Employee" means any person suffered or permitted to work by an employer under a contract of employment either made in Delaware or to be performed wholly or partly therein.

(5) "Check" means a draft drawn on a bank and payable on demand.

(b) For the purpose of this chapter the officers of a corporation and any agents having the management thereof who knowingly permit the corporation to violate the provisions of this chapter shall be deemed to be the employers of the employees of the corporation.

§ 1102. Payment of wages on regular paydays

(a) Every employer shall pay all wages clue to his employees on regular paydays designated in advance by the employer, which shall be at least once during each calendar month and in lawful money of the United States or checks on banks convenient to the place of employment where suitable arrangements are made for cashing for the full amount of the wages due.

(b) The end of the pay period for which payment is made on a regular payday shall be no more than seven days before such regular payday, provided that if the regular payday falls on a non-work day, payment shall be made on the preceding workday.

(c) If an employee is for any reason not present on the regular payday, payment shall be made either by mail if requested by the employee or at the next regular workday that the employee is present.

§ 1103. Employees separated from the payroll before regular paydays

(a) Whenever an employee is discharged by an employer, the wages earned by the employee shall become due and payable in full by the employer at the time of discharge.

() Whenever an employee quits or resigns, the employer shall pay the wages earned by the employee no later than the next regular payday under this chapter, either through the usual pay channels or by mail, if requested by the employee, except that if the employee gives to the employer at least one pay period's notice of intention to quit, the employer shall pay all wages earned by the employee at the time of quitting.

(a) When work of any employee is suspended as a result of a labor dispute, or when an employee for any reason whatsoever is laid off, the employer shall pay in full to such employee not later than the next regular payday under this chapter, either

through the usual pay channels or by mail if requested by the employee, the wages earned by the employee at the time of suspension of work or layoff.

(d) If an employer, without any reasonable grounds for dispute, fails to pay an employee wages, as required under this chapter the employer shall, in addition, be liable to the employee for liquidated damages in the amount of 10 per cent 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 to pay shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt thereupon.

§ 1104. Unconditional payment of wages conceded to lye due

(a) In case of a dispute over the amount of wages, the employer shall pay without condition and within the time set by this chapter, all wages or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to, including those provided under this chapter, as to any balance claimed.

(b) The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of his claim and any release required or obtained by an employer as a condition to payment shall be in violation of this chapter and shall be null and void.

§ 1105. Prime contractor's responsibility for wage payments

Whenever any person shall contract with another for the performance of any work which the contracting person has undertaken to perform, he shall become civilly liable to employees engaged in the performance of work under such contract for the payment of wages, exclusive of liquidated damages, as required under this chapter, whenever and to the extent that the employer of such employees fails to pay such wages, and the employer of such employees shall be liable to such person for any wages paid by him under this section.

§ 1106. Deceased employees

(a) In the event of the death of an employee the wages due him by an employer not in excess of poi) may, upon proper demand, be paid in the absence of actual notice of the pendency of probate proceedings, without requiring letters testamentary or of administration in the following order of preference to decedent's:

(1) surviving children under 21 years of age, to the parent, guardian or other person having custody of such child, in equal shares;

(2) surviving spouse;

(3) surviving children 21 years of age and over, in equal shares;

(4) father and mother in equal shares, or survivor.

(b) Payments under this section shall be a release and discharge of the employer to the amount of such payment.

§ 1107. Withholding of wages

No employer may withhold or divert any portion of an employee's wages unless:

(a) the employer is required or empowered to do so by State or Federal law; or

(b) the deductions are for medical, surgical, or hospital care or service, without financial benefit to the employer and openly, clearly, and in due course recorded in the employer's books ; or

(c) the employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee, except that the Department, upon finding that it is acting in the public interest, may, by regulation, prohibit such withholding or diverting for such purpose. If the Department abuses its discretion and acts arbitrarily and without any reasonable ground, any aggrieved person may institute a civil action in the Superior Court to have such regulation declared null and void. The Department, in such action, shall not be liable for costs or fees of any nature.

§ 1108. Duty of employer regarding notification, posting and records

It shall be the duty of every employer of over three employees:

(a) To notify each employee in writing, at the time of hiring, of the rate of pay, and of the day, hour, and place of payment;

(b) To notify each employee in writing, or through a posted notice maintained in a place accessible to the employees and where they normally pass, of any change regarding rate of pay, and day, hour, and place of payment prior to the time of such change;

(c) To make available to each employee in writing, or through a posted notice maintained in a place accessible to the employees and where they normally pass, employment practices and policies with regard to vacation pay, sick leave, and comparable matters;

(d) To furnish to each employee at the time of payment a statement, either on the check or by a separate slip, showing the total number of hours worked for the pay period for which payment is made and the total amount of deductions, separately specified, which have been made from the wages due;

(e) To, post and maintain in a place accessible to the employees and where they normally pass, a summary of this chapter to be supplied by the Department upon request without charge;

(f) To make, keep and preserve for a period of not less than three years, such records, including wage and hour records,

in or about the premises or place of business or employment, and make such reports therefrom to the Department, as it shall deem by regulation to be necessary or appropriate to administer or enforce the provisions of this chapter.

§ 1109. Provisions of law may not be waived by agreement

Except as provided in this chapter, no provision of this chapter may in any way be contravened or set aside by private agreement.

§ 1110. 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, 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 correct 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 matter 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.

§1111. Penalties for violations

(a) Any employer who violates any provision, or fails to comply with any requirement, 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 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 therefor, be fined not more than $1,000.00 for each such violation.

§ 1112. Remedies of employees

(a) A civil action to recover unpaid wages and 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.

(b) Whenever the Department determines that wages, as required under this chapter, have not been paid and that such unpaid wages constitute a valid and enforceable claim, the Department shall, upon the written request of the employee take an assignment in trust for such wages and any claim for liquidated damages, without being bound by any of the technical rules respecting the validity of any such assignment, and may bring any legal action necessary to collect such claim. With the consent of the assigning employee at the time of the assignment, the Department shall have the power to settle and adjust any such claim to the same extent as might the assigning employee.

(c) The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow the costs of the action, the necessary expenses of prosecution, and reasonable attorney's fees, to be paid by the defendant. In the case of actions brought under this section by the Department, expenses and attorney's fees shall be remitted by the Department to the State Treasurer. The Department shall not be required to pay the filing fee or other costs of the action or fees of any nature or to file bond or other security of any nature in connection with such action or with proceedings supplementary thereto, or as a condition precedent to the availability to the Department of any process in aid of such action or proceedings. The Department shall have the power to join various claimants in one preferred claim or lien, and in case of suit to join them in one cause of action.

§ 1113. Regulations

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.

§ 1114. Short title

Collection Act of the State of Delaware."

This chapter shall be known as the "Wage Payment and

Section 2. The provisions of this Act shall become effective 180 days after this Act becomes law.

Approved March. 30, 1965.