ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me on the citation issued by the Department of Labor, Licensing and
Regulation, Division of Labor Services (Department) for alleged violations of the payment of
wages statutes contained in Chapter 10, Title 41 of the 1976 Code. After notice to the parties, a
hearing was conducted on June 19, 1996. Based upon the evidence presented, a citation was
properly issued for the violations and a fine of $3480 is imposed.
STIPULATED FACTS
At the hearing, the parties stipulated to the following facts:
1. Chris Logan Career Center (Chris Logan) is an employer in South Carolina.
2. It employed workers at its location on Two Notch Road in Columbia, South Carolina.
3. In the winter of 1995, Chris Logan had difficulty in collecting federal funds for which its
employees were eligible.
4. Pursuant to S.C. Code Ann. § 41-10-30, Chris Logan provided notice of the time and place of
payment. Specifically, employees would be paid at 2:00 p.m. on Friday bi-weekly at the job site.
5. Chris Logan received two prior citations on November 5, 1993 and October 6, 1995 for the
failure to pay wages.
6. Exhibits 1-8 were stipulated into evidence.
FINDINGS OF FACT
Based upon the evidence presented, I make the following findings of fact, taking into
consideration the burden on the parties to establish their respective cases and taking into account
the credibility of the witnesses:
1. On March 4, 1996, the Department received a complaint from an employee of Chris Logan for
non-payment of wages.
2. The claim was made by Deborah Harrison who provided two payroll checks dated February 9,
1996 and February 23, 1996 which had been stamped "NSF".
3. Upon investigation, Chris Logan confirmed that there was a problem with the payroll for those
dates and the March 8, 1996 payroll. There were not sufficient funds in the bank account to
cover the payroll checks.
4. The bank did not contact Chris Logan to notify it of the insufficient funds in the account.
5. The payroll was short because of problems with receipt of federal grant funds for which the
employees were eligible. Chris Logan has never had a problem with payroll over its thirty years
of existence.
6. Chris Logan indicated that none of the employees were paid at the time and place it had
designated. Employees were paid at a later date.
7. On at least one occasion, notice of a change in the time and place of payment was provided to
employees. No evidence was presented on when this notice was provided.
8. On February 9, 1996, Chris Logan failed to pay 20 employees. On February 23, 1996, it failed
to pay 19 employees. And on March 8, 1996, it failed to pay 19 employees.
9. The Department fined Chris Logan $100 for each employee it failed to pay for each pay period
for a total of $5800.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. The Administrative Law Judge Division is vested with the power to hear contested
administrative matters pursuant to S.C. Code Ann. § 1-23-600(E) (Supp. 1995).
2. Chapter 10, Title 41 is applicable to all employers in South Carolina except employers 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 Ann. § 41-10-20 (Supp. 1995).
3. Employers must give written notice at the time of hiring of the time and place for the payment
of wages. S.C. Code Ann. § 41-10-30 (Supp. 1995). Employers may change the time and place
of payment by providing written notice of the new time and place at least seven calendar days in
advance of the originally scheduled time and place. They are also required to pay all wages due at
the time and place designated. S.C. Code Ann. § 41-10-40(D) (Supp. 1995).
4. Section 41-10-80 provides that a civil penalty must be assessed for an employer who fails to
pay wages pursuant to Section 41-10-40. The penalty must not exceed $100 for each violation.
Each failure to pay is a separate offense.
5. 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.
6. The evidence clearly establishes that Respondent failed to pay wages to its employees at the
regularly scheduled time and place. The payment was not made because anticipated federal funds
had not been received which affected the entire payroll for at least three pay periods. Payment
was subsequently made to the employees. There was no evidence that notice of the new time and
place of payment was provided to the employees seven calendar days in advance.
7. Even though Respondent has had other violations in the past, the violations did not affect the
entire payroll for one of the branches of Respondent's business. Respondent should have known,
however, that there would be a problem with the payroll if the federal funds had not been received
and steps should have been taken to arrange payment for the employees without issuing checks
that would not be covered.
8. The mitigating circumstances in this case do not warrant waiver of the $5800 fine, but the fine
should be reduced.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Respondent, Chris Logan Career Center violated the payment of wages
statutes by failing to pay its employees on the date, time and place designated and that the $5800
fine imposed by the Department is reduced to $3480 or $60 per offense. Respondent is ordered
to pay this amount to the Department within thirty (30) days from the date of this Order.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
June _____, 1996
Columbia, South Carolina. |
