HB2049 S JUD AM #1 3-6
The Committee on the Judiciary moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 5. WAGE PAYMENT AND COLLECTION.
§21-5-4a. Safe Harbor.
(a) An employee, in bringing an action for the underpayment or nonpayment of wages and fringe benefits due upon the employee’s separation of employment as contemplated by §21-5-4 of this code, is not entitled to seek liquidated damages or attorney’s fees from an employer without first making a written demand, as defined in subsection (c) of this section, to the employer seeking the payment of any alleged underpayment or nonpayment as set forth in this section. The written demand shall be mailed or delivered to the employer’s correct address or delivered to the employer’s authorized representative. Upon receiving a written demand, the employer has seven calendar days from receipt to correct the alleged underpayment or nonpayment of the wages and fringe benefits due. If, after the seven calendar days, the employer has not corrected the alleged underpayment or nonpayment, or otherwise disputes the allegation, the employee shall be allowed to seek liquidated damages and attorney’s fees. Nothing in this section prohibits the employee from presenting a claim under this article without making a written demand to the employer.
(b) In a class action lawsuit brought under this article for the underpayment or nonpayment of wages and fringe benefits due upon the employee’s separation of employment, participation in the class shall be limited only to those individual employees who have made a written demand on the employer as required in subsection (a) of this section.
(c) For purposes of this section, a “written demand” means any writing, including email, from or on behalf of an employee stating only that the employer has not paid all of the wages or fringe benefits which the employee is owed.
(d) In order for the employer to be eligible for the protections of this section, the employer shall: (i) Inform its employees through a posted notice maintained in a place accessible to its employees in accordance with §21-5-9 of this code of the employee’s obligation to make a written demand in order to preserve the right to seek liquidated damages, attorney’s fees, or class action relief; and (ii) furnish to the employee with his or her last paycheck or pay stub a written notice of that obligation together with a mailing address and email address to which the notice may be delivered.
§21-5-7. Prime contractor's responsibility for wages and benefits.
(a) Whenever any person, firm, or corporation shall
contract with another for the performance of any work which the prime
contracting person has undertaken to perform for another, the prime contractor
shall become civilly liable to employees engaged in the performance of work
such the contract for the payment of wages and fringe
benefits relating to such work only, exclusive of attorney’s fees,
interest, liquidated damages, or any other damages of any kind, as
provided in §21-5-4(e) of this code, or other applicable law and/or common
law, to the extent that the employer of such the employee
fails to pay such the wages and fringe benefits : for
work performed under the contract with the prime contractor. The employer, and
its shareholders, owners, directors, and officers shall be personally and
civilly liable to the prime contractor for any sums paid under this section,
including attorney’s fees.
(b) Any individual or entity seeking redress pursuant to subsection (a) of this section must:
(1) Notify the prime contractor, by certified mail, only that wages or fringe benefits have not been paid within 100 days of the date the wages or fringe benefits become payable to the employee; and
(2) Commence the action within one year of the date the employee delivered notice to the prime contractor pursuant to subdivision (1) of this subsection.
Provided, That such employees have
exhausted all feasible remedies contained in this article against such
employer, but if the prime contractor has failed to notify the commissioner as
required by section sixteen of this article, then the employee shall not be
required to exhaust any remedies against the employer: Provided,
however, That such employer shall become civilly liable to such prime
contractor for any sum of money paid by him under this section.
(c) The employer of the employee to whom wages and/or fringe benefits are owed, shall whenever feasible provide, immediately upon request by the employee or the prime contractor, complete payroll records relating to work performed under the contract with the prime contractor.
(d) Whenever the employee to whom wages and/or fringe benefits are due is represented by a union, the union shall whenever feasible, immediately upon notice of a claim hereunder, cooperate with the employee and the prime contractor to identify and quantify the wages and fringe benefits owed for work performed under the contract with the prime contractor. Further, if the union or agents thereof, including, but not limited to, third party administrators, trustees, administrators, or employees, become aware that an employer is not timely in the payment of wages and/or fringe benefits, the union shall immediately notify the affected employee and the prime contractor for whom the affected employee provided work.
(e) A prime contractor must notify the owner and the architect prior to the completion of the contract if any subcontractor has not been paid in full.