ORDERS:
FINAL ORDER
I. Statement of the Case
This matter is a protest by William J. Westerkam (Westerkam), the Respondent, to citation 542-98
dated March 16, 1998. The penalty citation was issued by the South Carolina Department of Labor,
Licensing and Regulation, Division of Labor, (Division), to Westerkam pursuant to S.C. Code Ann.
§ 41-10-80 (Supp. 1997). Westerkam denies any penalties are due. This matter was heard on June
25, 1998 with jurisdiction granted the Administrative Law Judge Division under § 41-10-80(D), 26
S.C. Code Regs 71-6000 (to the extent a contested case hearing is granted), and the contested case
provisions of S.C. Code Ann. § 1-23-600(B) (Supp. 1997).
Having heard the evidence of this case, I conclude no penalty is due. The funds were available for the
employee at the normal time for payment and at the normal place for payment. The employee's
failure to present herself at the designated date and place cannot result in a fine to the employer.
II. Issues
Is Westerkam liable for civil penalties under § 41-10-80(B) for violations of § 41-10-40(D) by failing
to pay wages due at the time and place required by § 41-10-30(A)?
III. Analysis
1. Positions of Parties:
The Division asserts that a payment of wages was due to one of Westerkam's employees and that
Westerkam failed to pay the employee the full amount of pay due her on the payday of December 12,
1997. The Division argues such action violates S.C. Code Ann. §§ 41-10-40(D). Westerkam asserts
that he did not fail to pay the employee since the funds were available for the employee on that date
and at the normal place of payment, i.e., Westerkam's office. In his view, the employee simply failed
to present herself to receive payment. Thus, Westerkam asserts no penalty should be imposed.
2. Findings of Fact
Based upon a preponderance of the evidence, the following facts are determined:
The matter in dispute arises since one employee did not receive from Westerkam her pay on the
normal pay day. Instead, she received her pay almost two months later on February 9, 1998.
For the employee involved in this dispute, the normal pay day was December 12, 1997 for work
performed by that employee on December 1, 1997. Payment was not received by the employee on
the pay day date since the employee left Westerkam's employment before the December 12, 1997 pay
date. The undisputed fact is that she did not show up at Westerkam's office to receive her wages on
the pay date of December 12, 1997. In fact, the employee (now the former employee) has never
returned to the office. Under the facts in this case, Westerkam was ready on December 12, 1997 to
issue a check to the former employee in payment of her wages had she shown up to receive her pay.
The facts here establish that in paying his employees, Westerkam's normal and established practice
is to present payment at his office and to pay his employees every two weeks on a Friday. In fact,
for an employee who is not present at the office on any pay day, the funds are paid at the office when
the employee next presents herself for receipt of the wages. The wages are not mailed.
Further, in this case, the former employee did not request that her wages be mailed. On the contrary,
Westerkam testified that he was never asked by the former employee to mail the wages. Indeed, only
after an officer with the Division suggested that the wages be mailed did Westerkam do so.
Accordingly, at all times the former employee knew that she could pick up her wages by coming to
the office. No change in payment place (such as by allowing payment by mail) was ever made by
Westerkam and the former employee did not request that the wages be paid by mail.
I recognize that some testimony suggests the former employee was afraid to come to Westerkam's
office for fear "security would be called" for her having allegedly unlawfully retained keys to
Westerkam's office. For three reasons, I find such a position is not a valid basis for concluding she
was denied or prohibited from obtaining her wages.
First, the testimony, while not objected to, is, nonetheless, unsubstantiated heresay to which I give
little weight. The former employee did not testify, and testimony of what she may or may not have
said is not persuasive. Second, and in any event, I find she had no legitimate basis for fearing she
would be retained or arrested since Westerkam was not concerned about arresting or retaining the
former employee. Instead, he simply wanted the return of his office keys. Third, Westerkam
contacted the police primarily to alert them that a future unlawful entry to his office could be a
possibility. Such an action is reasonable for a doctor's office.
Thus, I find the former employee's wages were available to her at the normal place of payment
(Westerkam's office) on December 12, 1997. Further, the former employee voluntarily chose not to
receive her wages on that date. Finally, Westerkam was not asked by the former employee to have
her wages mailed to her. Rather, mailing of the wages was performed on February 9, 1998 only after
Westerkam was asked to do so by an official of the Division.
3. Conclusions of Law
Westerkam is obligated to "pay all wages due at the time and place designated." S.C. Code Ann. §
41-10-40(D) (Supp. 1997). Quite simply, the facts show that the time designated was December 12,
1997 and the place designated was Westerkam's office. On that date and at that designated place,
Westerkam had the funds to pay the wages. However, the former employee chose not to present
herself to the office to receive payment. Indeed, the facts show that the wages would have been paid
at whatever date she presented herself at the Westerkam office and that she never presented herself.
Further, no change in the place of payment, such as by mailing, was made by Westerkam. Rather,
he did not mail other employees their checks and had no duty to mail the former employee her check.
Accordingly, no penalty is due under § 41-10-80(B) (Supp. 1997) since Westerkam complied with
§ 41-10-40(D) by meeting his obligation to "pay all wages due at the time and place designated." S.C.
Code Ann. § 41-10-40(D) (Supp. 1997).
IV. ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:
The Division is ordered to withdraw any penalties assessed against Westerkam under S.C. Code Ann.
§ 41-10-80(B) for a violation of S.C. Code Ann. § 41-10-40(D).
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 29th day of June, 1998 |
