H 5037 General Bill, By Cato
 A BILL TO AMEND SECTION 41-10-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
 1976, RELATING TO DEFINITIONS REGARDING PAYMENT OF WAGES, SO AS TO INCLUDE
 BONUSES AND EXPENSE REIMBURSEMENTS IN THE DEFINITION OF WAGES; TO AMEND
 SECTION 41-10-40, RELATING TO PAYMENT OF WAGES, SO AS TO DELETE CERTAIN
 REFERENCES; TO AMEND SECTION 41-10-50, AS AMENDED, RELATING TO PAYMENT OF
 WAGES DUE TO DISCHARGED EMPLOYEES, SO AS TO PROVIDE THAT UNDER CERTAIN
 CIRCUMSTANCES, WAGES DUE MUST BE PAID WITHIN THIRTY DAYS OF SEPARATION OF
 EMPLOYMENT; TO AMEND SECTION 41-10-60, RELATING TO THE UNCONDITIONAL PAYMENT
 OF WAGES AN EMPLOYER CONCEDES ARE DUE, SO AS TO PROVIDE THAT AN EMPLOYER DOES
 NOT HAVE TO PAY THE AMOUNT OF THE WAGES THAT ARE IN DISPUTE; TO AMEND SECTION
 41-10-80, AS AMENDED, RELATING TO CIVIL ACTIONS BY EMPLOYEES FOR FAILURE TO
 PAY WAGES, SO AS TO PROVIDE THAT IF A SUCCESSFUL CIVIL ACTION IS BROUGHT FOR
 DISPUTED WAGES, TREBLE DAMAGES AND ATTORNEYS' FEES CANNOT BE RECOVERED IF THE
 COURT FINDS A GOOD FAITH DISPUTE CONCERNING THE AMOUNT OF WAGES DUE AND
 PROVIDE FOR AN APPEAL TO THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND
 SECTION 41-10-90, AS AMENDED, RELATING TO ACTIONS FOR COLLECTION OF PENALTIES,
 SO AS TO CLARIFY THAT THE DIRECTOR OF THE DEPARTMENT OF LABOR, LICENSING AND
 REGULATION OR HIS DESIGNEE SHALL TAKE APPROPRIATE ACTION, WHETHER LEGAL OR
 ADMINISTRATIVE, AGAINST THE ASSESSED EMPLOYER FOR COLLECTION OF THE PENALTY;
 AND TO AMEND SECTION 41-10-110, AS AMENDED, RELATING TO THE RIGHT OF THE
 COMMISSIONER OF LABOR TO ENTER AND TO CONDUCT AN INVESTIGATION, SO AS TO
 INCLUDE A DOCUMENT RELEVANT TO THE TOTAL COMPENSATION PACKAGE IN THE ITEMS
 THAT MAY BE INSPECTED.

   03/25/04  House  Introduced and read first time HJ-25
   03/25/04  House  Referred to Committee on Labor, Commerce and
                     Industry HJ-25

TO AMEND SECTION 41-10-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS REGARDING PAYMENT OF WAGES, SO AS TO INCLUDE BONUSES AND EXPENSE REIMBURSEMENTS IN THE DEFINITION OF WAGES; TO AMEND SECTION 41-10-40, RELATING TO PAYMENT OF WAGES, SO AS TO DELETE CERTAIN REFERENCES; TO AMEND SECTION 41-10-50, AS AMENDED, RELATING TO PAYMENT OF WAGES DUE TO DISCHARGED EMPLOYEES, SO AS TO PROVIDE THAT UNDER CERTAIN CIRCUMSTANCES, WAGES DUE MUST BE PAID WITHIN THIRTY DAYS OF SEPARATION OF EMPLOYMENT; TO AMEND SECTION 41-10-60, RELATING TO THE UNCONDITIONAL PAYMENT OF WAGES AN EMPLOYER CONCEDES ARE DUE, SO AS TO PROVIDE THAT AN EMPLOYER DOES NOT HAVE TO PAY THE AMOUNT OF THE WAGES THAT ARE IN DISPUTE; TO AMEND SECTION 41-10-80, AS AMENDED, RELATING TO CIVIL ACTIONS BY EMPLOYEES FOR FAILURE TO PAY WAGES, SO AS TO PROVIDE THAT IF A SUCCESSFUL CIVIL ACTION IS BROUGHT FOR DISPUTED WAGES, TREBLE DAMAGES AND ATTORNEYS' FEES CANNOT BE RECOVERED IF THE COURT FINDS A GOOD FAITH DISPUTE CONCERNING THE AMOUNT OF WAGES DUE AND PROVIDE FOR AN APPEAL TO THE ADMINISTRATIVE LAW JUDGE DIVISION; TO AMEND SECTION 41-10-90, AS AMENDED, RELATING TO ACTIONS FOR COLLECTION OF PENALTIES, SO AS TO CLARIFY THAT THE DIRECTOR OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION OR HIS DESIGNEE SHALL TAKE APPROPRIATE ACTION, WHETHER LEGAL OR ADMINISTRATIVE, AGAINST THE ASSESSED EMPLOYER FOR COLLECTION OF THE PENALTY; AND TO AMEND SECTION 41-10-110, AS AMENDED, RELATING TO THE RIGHT OF THE COMMISSIONER OF LABOR TO ENTER AND TO CONDUCT AN INVESTIGATION, SO AS TO INCLUDE A DOCUMENT RELEVANT TO THE TOTAL COMPENSATION PACKAGE IN THE ITEMS THAT MAY BE INSPECTED.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 41-10-10 of the 1976 Code, as last amended by Act 463 of 1990, is further amended to read:

"Section 41-10-10.    As used in this chapter:

(1)    'Employer' means every person, firm, partnership, association, corporation, receiver, or other officer of a court of this State, the State or any a political subdivision thereof of the State, and any an agent or officer of the above classes employing any a person in this State.

(2)    'Wages' means all the amounts at which labor rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the amount and includes vacation, holiday, bonuses, expense reimbursements, and sick leave payments which that are due to an employee under any an employer policy or employment contract. Funds placed in pension plans or profit sharing plans are not wages subject to this chapter."

SECTION 2.    Section 41-10-40 (C) and (D) of the 1976 Code is amended to read:

"(C)    An employer shall not withhold or divert any a portion of an employee's wages unless the employer is required or permitted to do so by state or federal law or the employer has given written notification to the employee of the amount and terms of the deductions as required by subsection (A) of Section 41-10-30.

(D)    Every employer in the State shall pay all wages due at the time and place designated as required by subsection (A) of Section 41-10-30."

SECTION 3.    Section 41-10-50 of the 1976 Code, as last amended by Act 463 of 1990, is further amended to read:

"Section 41-10-50.    When an employer separates an employee from the payroll for any reason, the employer shall pay all wages due to the employee on the next regular payday. within forty-eight hours of the time of separation or the next regular payday which may not exceed thirty days If the next regular payday is more than thirty days from the date of separation or there is no established regular payday, wages due must be paid within thirty days of separation. Wages that, according to written notice pursuant to Section 41-10-30, are not due before that date must be paid within thirty days after the date that they are due."

SECTION 4. Section 41-10-60 of the 1976 Code is amended to read:

"Section 41-10-60.    In case of a dispute over wages, the employer shall give written notice to the employee of the amount of wages which he concedes to be due or the amount of the wages that are in dispute and shall pay the undisputed amount without condition within the time set by this chapter. Acceptance by the employee of the payment does not constitute a release as to the balance of his claim."

SECTION 5.    Section 41-10-80 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 41-10-80.    (A)    Any An employer who violates the provisions of Section 41-10-30 must be given a written warning by the Director of the Department of Labor, Licensing, and Regulation or his designee for the first offense and must be assessed a civil penalty of not more than one two hundred fifty dollars for each subsequent offense.

(B)    Any An employer who violates the provisions of Section 41-10-40 must be assessed a civil penalty of not more than one two hundred fifty dollars for each violation. Each failure to pay constitutes a separate offense.

(C)    In case of any a failure to pay wages due to an employee as required by Section 41-10-40 or 41-10-50 the employee may recover in a civil action an amount equal to three times the full amount of the unpaid wages, plus costs and reasonable attorney's attorneys' fees as the court may allow. If a successful civil action is brought for disputed wages, treble damages and attorneys' fees cannot be recovered if the court finds a good faith dispute concerning the amount of wages due. Any civil action for the recovery of wages must be commenced within three years after the wages become due.

(D)    The Director of the Department of Labor, Licensing, and Regulation or his designee shall promulgate regulations to establish a procedure for administrative review of any A civil penalty assessed by the commissioner department pursuant to this chapter may be appealed to the Administrative Law Judge Division."

SECTION 6.    Section 41-10-90 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 41-10-90.    In each case where a civil penalty assessed under pursuant to subsection (A) or (B) of Section 41-10-80 is not paid within sixty days, the Director of the Department of Labor, Licensing, and Regulation or his the director's designee shall bring an action take appropriate action, whether legal or administrative, against the assessed employer for collection of the penalty. Any Amounts collected must be turned over to the State Treasurer for deposit in the general fund of the State."

SECTION 7.    Section 41-10-110 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 41-10-110.    The Director of the Department of Labor, Licensing, and Regulation or his designee, his inspectors, agents, or designees, upon proper presentation of credentials to the owner, manager, or agent of the employer, may enter at reasonable times and have the right to question either publicly or privately any employer, owner, manager, or agent and the employees of the employer and inspect, investigate, reproduce, or photograph time records or payroll records a document relevant to the total compensation package for the purpose of determining that the provisions of this chapter are complied with."

SECTION    8.    This act takes effect upon approval by the Governor.