Bill Text: DE SB324 | 2023-2024 | 152nd General Assembly | Draft
Bill Title: An Act To Amend Title 19 And Title 29 Of The Delaware Code Relating To Administrative Procedures And Wage And Hour Enforcement.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-06-11 - Introduced and Assigned to Labor Committee in Senate [SB324 Detail]
Download: Delaware-2023-SB324-Draft.html
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SPONSOR: |
Sen. Walsh & Rep. Osienski |
DELAWARE STATE SENATE
152nd GENERAL ASSEMBLY
SENATE BILL NO. 324
AN ACT TO AMEND TITLE 19 AND TITLE 29 OF THE DELAWARE CODE RELATING TO ADMINISTRATIVE PROCEDURES AND WAGE AND HOUR ENFORCEMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 1, Title 19 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 107. Inspection of records ; duty to furnish information.
(a) The members of the Department and its authorized representatives may enter at reasonable times, so as not to
unduly hinder the conduct of the business, any place of employment for the purpose of inspecting records and collecting to inspect or copy records; question any employer, employee, or other person on the premises; collect facts and statistics relating to the employment of workers and of making workers; and make inspections for the proper enforcement of all labor laws of the State. State, including investigations into whether this title or any regulation published thereunder has been violated. No employer or owner shall refuse to admit the members of the Department, or its authorized representatives, to the employer’s or owner’s place of employment, provided the admission requested is not at an unreasonable time. If entry to the place of employment is refused, or if the Department otherwise deems it appropriate under the circumstances, the Department may apply ex parte to the Superior Court for a warrant to enter the premises for one or more of the purposes stated in this paragraph. The warrant application must be in writing, signed by a member of the Department, and verified by oath or affirmation. The application and ensuing warrant must describe, with reasonable particularity to the best available knowledge of the affiant, the area, premises, or building to be searched, the purpose of the inspection, and the objects of the inspection. A judge of the Superior Court shall issue the warrant if the application presents specific evidence of a violation of this title or shows that reasonable legislative or administrative standards for conducting the inspection are satisfied with respect to the particular area, premises, or building to be searched. The warrant must be directed to a member of the Department, served during normal business hours, and returned within 10 days of its issuance, accompanied by an inventory of any records copied or taken to be copied. Nothing in this statute is intended to create a right of privacy beyond that otherwise provided by law or to require the issuance of a warrant in a situation where a warrant is not otherwise necessary under existing statutory or common law.
(b) Any person who A person violates this section when that person:
(1) hinders Hinders or delays the members of the Department, or its authorized representatives in the performance of their duties, in the enforcement of this chapter or any law which it is the power or duty of the Department to enforce; or who refuses to admit, at reasonable times, the members of the Department, or its authorized representatives to any place of employment; or who execution of a warrant .
(2) In response to a subpoena, unless that person is pursuing a legal remedy such as a motion to quash, fails to give information lawfully required for the proper enforcement of any law, upon demand of the members of the Department, or its authorized representatives; and any employer who law or fails or refuses to make records relating to the employment of workers accessible, accessible. or who
(3) falsifies Falsifies records or who refuses to furnish a sworn statement thereof, upon demand of the Department or its authorized representatives, shall be deemed to have violated this section. relating to the employment of workers.
§ 108. Power as to witnesses; seal; evidence; procedure.
(a) The Department, and any officer of the Department designated by the Department, in the performance of any
duty or the execution of any power prescribed by law, may may:
(1) administer oaths, Administer oaths.
(2) certify Certify to official acts, acts.
(3) take and cause to be taken depositions of witnesses, Interview or depose witnesses.
(5) Send interrogatories or other written requests for information to employers.
(6) issue subpoenas, Issue subpoenas to compel the attendance appearance and testimony of witnesses and or the production of papers, books, accounts, payrolls, documents, records and testimony. and other records.
(b) 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 the witness may be lawfully interrogated, the Department may request the Attorney General of this State to prosecute such person before the Superior Court of this State. If such person shall be found guilty that person shall be deemed to have been in contempt of that Court and shall be punished by that Court in the same fashion as that Court punishes any contempt thereof.
Any person who violates or fails or refuses to comply with §§ 101-115, inclusive, of this title, or any lawful order
of the Department or any judgment or decree made by any court in connection with this chapter for which no penalty has been otherwise provided, shall be assessed a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each such violation; and each day such violation, omission, failure or refusal continues after notification or entry of the decree of a court shall be deemed a separate violation. A civil penalty claim may be filed in any court of competent jurisdiction.
§ 118. Administrative procedures and judicial review.
(a) The Department may adopt regulations to establish procedures for administrative enforcement actions
authorized under this title. The procedures must provide an opportunity for a hearing, with sufficient notice of its time and purpose; require the Secretary to issue a final order, in writing, whenever the Secretary imposes a penalty; and require the Secretary to provide prompt notice of the final order.
(b) A party aggrieved by a final order from the Secretary may appeal the order to the Superior Court within
30 days from the date notice was sent. The appeal shall be on the record without a trial de novo. If the Superior Court determines that the record is insufficient for its review, it shall remand the case to the Department for further proceedings on the record. When factual determinations are at issue, the Superior Court shall take due account of the Department’s experience and specialized competence and of the purposes of the basic law under which the Department has acted. In the absence of actual fraud, the Superior Court’s review shall be limited to a determination of whether the Department’s decision was supported by substantial evidence on the record before it.
(c) After an appeal to the Superior Court or the time for appeal has expired, if penalties are unpaid, the Department may file an action in the Superior Court for execution upon the Secretary’s final order as if the order was a judgment of the court.
(d) This section shall not apply to Chapters 7, 13, or 16 or Parts II, III, or V of this title.
Section 2. Amend Chapter 11, Title 19 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1102A. Wage theft.
(a) An employer may not do any of the following:
(1) Employ an individual without reporting the individual’s employment to all appropriate government agencies and paying all applicable taxes and fees for the individual.
(2) Fail to properly withhold state and federal taxes from an employee.
(3) Fail to forward money withheld from an employee’s wages to the appropriate state or federal agency within 7 days of the applicable pay period.
(4) Pay an employee wages that are less than the minimum wage established under state and federal law for the work performed.
(5) Misclassify a worker as an independent contractor for purposes of avoiding wage, tax, or workers’ compensation obligations under this title.
(6) Knowingly conspire to assist, advise, or facilitate a violation of this section.
(b) Following an investigation in which the Department makes an initial determination that an employer has
violated 1 or more provisions of subsection (a) of this section, the Department may make a decision to impose a civil penalty.
(c) The Department shall notify the employer, in writing, of a decision to impose a civil penalty under subsection
(b) of this section which must comply with § 10122 of Title 29 and include all of the following:
(2) The grounds upon which the determination was made to take the action.
(3) Instructions to request a hearing.
(d)(1) A request for a hearing must be made in writing, addressed to the Director of Industrial Affairs or the
Secretary, and made within 10 business days from the date of receipt of the notice under subsection (c) of this section.
(2) If a hearing is not requested under paragraph (d)(1) of this section, the determination made by the Department under subsection (b) of this section is final.
(e) The Director of Industrial Affairs shall review a request for a hearing under paragraph (d)(1) of this section and
may schedule an informal settlement conference. The Director of Industrial Affairs shall forward the hearing request to the Secretary to schedule a hearing if no settlement is reached at the informal settlement conference or an informal settlement conference is not held.
(f) The Secretary shall issue a final case decision at the conclusion of a hearing held under this section as required
under Chapter 101 of Title 29.
(g) An employer may seek judicial review of the Secretary’s final case decision by commencing an action in
Superior Court, within 30 days of the date of the final decision under subsection (f) of this section.
(h) Any final decision by a court or administrative agency that contains a finding of fact or conclusion of law that a violation of this section occurred, is conclusive on all parties to an action under this section. For purposes of this subsection, a decision is final if it has been fully determined on appeal to the appropriate court, if all time for filing an appeal of the decision has expired, or if the decision is not subject to judicial review.
(i) (b) An employer who violates subsection (a) of this section shall do all of the following within 30 days of a final decision under subsection (h) of this section:
(1) Pay restitution to or on behalf of the employee.
(2) Come into compliance with all applicable labor laws, including laws governing income tax withholding, unemployment insurance, wage laws, and workers’ compensation.
(j) The following penalties apply in addition to restitution required under paragraph (i)(1) of this section:
(1) a. An employer who violates subsection (a) of this section is subject to a civil penalty of not less than $2,000 and
not more than $20,000 for each violation.
b. (c) Each instance of a violation an act prohibited by subsection (a) of this section per employee is a separate violation.
(2) An employer is subject to a civil penalty of not less than $20,000 and not more than $50,000 for each violation if the employer discharges or in any manner retaliates or discriminates against an individual because that individual does any of the following under this section:
a. Made a complaint or provided information to the Department.
b. Caused, or is going to cause, an investigation to be instituted.
c. Testified, or is going to testify, in a hearing.
(k) All civil penalties collected under this section are payable to the Department of Labor and must be used for the
administration and enforcement of this chapter, which may include expenses incurred by the Department of Justice in connection with activities under this chapter, including prosecutions under § 841D of Title 11.
( l ) (d) In addition to pursuing penalties under this section, the Department may provide findings, and supporting
evidence, from a completed investigation under this section to the Department of Justice for consideration of prosecution under § 841D of Title 11.
(m) (e) Nothing in this section precludes any of the following:
(1) A state or federal agency from pursuing a remedy against an employer for a violation of a different law.
(2) An employee or the Department from pursuing a remedy against an employer under § 1113 of this title.
§ 1111. Powers of the Department.
(a) The Department shall administer and enforce this chapter. The Secretary shall have jurisdiction over all cases arising under 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 to:
(1) Enter and inspect, after 1 day’s 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) Question any employer, employee or other person in the premises or place of business or employment;
(3) 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) Investigate such facts, conditions or matters as the Department may deem necessary or appropriate to determine whether this chapter or any regulation published thereunder has been or is being violated;
(5) 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 the witness 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 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 this chapter.
§ 1112. Penalties.
(a) Any employer who violates 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 be subject to a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each such violation.
(b) Any employer who discharges or in any manner retaliates or discriminates against an employee individual
because that employee individual has made a complaint or has given provided information to the Department pursuant to this chapter, or because the employee has Department, caused or is going to cause an investigation to be instituted or is about to cause to be instituted any proceedings under this chapter, instituted, or has testified or is about going to testify in any such proceedings proceeding under this chapter shall be subject to a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each such violation.
(c) Any employer who falsely makes, utters, draws or delivers any receipt or statement that credit to a bank
account of any employee has been made in payment of wages due shall be subject to a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each such violation.
(d) A civil penalty claim may be filed in any court of competent jurisdiction. All civil penalties collected under this chapter are payable to the Department of Labor and must be used for the administration and enforcement of this chapter, which may include expenses incurred by the Department of Justice in connection with activities under this chapter, including prosecutions under § 841D of Title 11.
Section 3. Amend Chapter 69, Title 29 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 6960. Prevailing wage requirements.
(e) Any employer who knowingly fails or refuses to pay the prevailing wage rates provided for under this section, or who fails to submit payroll reports or post notice of the wage rates which apply to the project shall, for each such violation, be subject to a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each violation. No public construction contract in this State shall be bid on, awarded to or received by any contractor or subcontractor or any person, firm, partnership or corporation in which such employer has an interest who, within 2 years after entry of a judgment pursuant to this chapter, is adjudicated in violation of this chapter in a subsequent proceeding until 3 years have elapsed from the date of the subsequent penalty judgment. A civil penalty claim may be filed in any court of competent jurisdiction.
(k) Any employer who discharges or in any manner discriminates against an employee individual because that employee individual has made a complaint or has given information to the Department pursuant to this chapter, or because that employee individual has caused to be instituted or is about to cause to be instituted any proceedings under this chapter, or has testified or is about to testify in any such proceedings, shall be deemed in violation of this chapter and shall be subject to a civil penalty of not less than $1,000 $2,000 nor more than $5,000 $20,000 for each violation.
Section 4. This Act is effective immediately, but Section 2 of this Act is to be implemented upon the earlier of the
(1) Notice by the Secretary of Labor published in the Register of Regulations that final regulations to
implement this Act have been promulgated.
(2) One year from the date of the Act’s enactment.
SYNOPSIS
This Act amends provisions in Title 19 and Title 29 of the Delaware Code relating to the Department of Labor’s enforcement procedures and wage and hour enforcement.
First, the Act amends Chapter 1 to modernize provisions relating to the Department’s inspections and handling of witnesses and evidence. The changes intend to align the Code with relevant case law and commonly accepted inspection practices.
Second, the Act requires the Department to promulgate regulations to establish administrative procedures for civil enforcement actions under several Chapters, including Chapter 5 (Child Labor), Chapter 9 (Minimum Wage), Chapter 11 (Wage Payment and Collection Act), Chapter 35 (Workplace Fraud), and Chapter 36 (Contractor Registration), to have consistency throughout Department proceedings.
Third, the Act corrects an issue identified within Chapter 11 when SS 1 for SB 35 of the 151st General Assembly was enacted, which inadvertently created a conflict between civil enforcement procedures and fines for violations within the same Chapter.
Fourth, the Act increases certain civil penalties in Title 19 and Title 29.
Finally, the Act removes a loophole in which employers who retaliated against employees by terminating an employee avoided penalty because the individual was no longer employed as a result of the retaliation and thus not an employee. It also updates the penalties to bring them in line with other similar statutes.
Author: Senator Walsh
