ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on a citation issued by the
Department of Labor, Licensing and Regulations (Department) for alleged violations of the
payment of wage statute contained in Chapter 10, Title 41. A hearing was conducted on
August 31, 1994. Based upon the testimony and evidence presented, I make the following:
FINDINGS OF FACT
1. Lisa Vigotty was employed by Rite Aid Corporation, Store #3211, located in Summerville,
South Carolina beginning August 25, 1993.
2. At the time of her employment, she was given a handbook containing the terms and conditions
of her employment including provisions on payment of wages.
3. Payday for Rite Aid employees is Saturday, one week after the two week pay period ends.
4. Ms. Vigotty was hired at an hourly wage of $4.25 and on October 13, 1993 was promoted to
an hourly wage of $4.50. The central office did not receive any personnel status forms reflecting
the change. She continued to work until late in December 1993 when she voluntarily left
employment.
5. It takes six (6) weeks or three (3) pay periods from the effective date of the increase to process
the change. The first pay check which should have reflected an increase in salary for Ms. Vigotty
was November 6, 1993. That check would also include any increase due for lapse in time for
processing.
6. In December 1993, Ms. Vigotty complained to Rite Aid that she had not received the
twenty-five (25) cents per hour raise.
7. As a result of Ms. Vigotty's complaint, Rite Aid processed the personnel status form reflecting
the increase in hourly wage on December 15, 1993. A check was issued to Ms. Vigotty in
January 1994.
8. In December 1993, Ms. Vigotty contacted the Department to complain about the failure to
receive wages. After an investigation, a citation was issued by the Department to Rite Aid on
February 17, 1994 for violating Section 41-10-40(D) by failing to pay all wages due to Lisa
Vigotty. The violation covers five (5) pay periods beginning November 6, 1993 and ending
January 1, 1994.
CONCLUSION OF LAW
1. The Administrative Law Judge Division is vested with power to hear protested administrative
matters pursuant to S.C. Code Ann. Section 1-23-600(E) (Supp. 1993).
2. Chapter 10, Title 41 is applicable to all employees in South Carolina except employees of
domestic labor in private homes and employers employing less than five (5) employees at all times
during the preceding twelve (12) months. S.C. Code of Laws 1976, § 41-10-20.
3. Employers must give written notice at the time of hiring of the normal hours and wages agreed
upon. This notice includes the time and place of payment and any deductions from wages. Any
increase in wages are exempt from the notice provisions. S.C. Code of Laws, 1976,
§41-10-30(A).
4. Employers are required to pay all wages due at the time and place designed. Section
41-10-40(D), S.C. Code of Laws, 1976.
5. Section 41-10-80 provides that a civil penalty must be assessed for an employer who fails to
pay wages pursuant to § 41-10-40. The penalty imposed must not exceed $100 for each
violation. Each failure to pay is a separate offense.
6. The statute does not provide for dismissal of a violation based upon mitigating circumstances.
At best, the only discretion available to the department is in the imposition of the civil penalty.
7. The evidence clearly establishes that upon notification to the central office that Ms. Vigotty had
not received her raise, Rite Aid took steps to complete the appropriate forms and process her
raise. Rite Aid cooperated in resolving the matter.
8. Safeguards should be utilized by an employer to ensure that all appropriate paperwork is
forwarded to the business office for processing. No system is foolproof, but steps must be taken
to provide for accuracy in processing information and in a timely manner. No evidence was
presented about the existence or application of any safeguards or procedures on documentation
by Rite Aid.
9. In the present case, there are mitigating circumstances to consider in determining the
appropriate civil penalty. The Department did not consider these circumstances and did not
deviate from its standard procedure on imposition of penalties. Because this was first offense, it is
imposed a fine of $75.00 for each pay period totalling $375.00. However, based upon the
mitigating circumstances, a lesser penalty should be imposed.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the petitioner, Rite Aid failed
to pay wages as required violating Section 41-20-40(D). The civil penalty of $375.00 imposed
by the Department is reduced and Rite Aid is ordered to pay $250.00 to the Department within
thirty (30) days from the date of this order.
IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
September , 1994
Columbia, South Carolina |
