HF 73 (LSB 1278YH (6) 86)

HOUSE FILE 73

BY  HUNTER, KELLEY, STAED, McCONKEY, HANSON, GASKILL, KEARNS, T. TAYLOR, BENNETT, ANDERSON, ABDUL-SAMAD, MASCHER, WESSEL-KROESCHELL, OLDSON, and STECKMAN

A BILL FOR

An Act relating to wage payment collection issues arising between employers and individuals who provide services to employers, providing penalties and remedies, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 91A.5, subsection 1, unnumbered paragraph 1, Code 2015, is amended to read as follows:

   An employer shall have the burden to establish that a deduction from employee wages is lawful. An employer shall not withhold or divert any portion of an employee’s wages unless:
    Sec. 2.  Section 91A.5, subsection 1, paragraph b, Code 2015, is amended to read as follows:
   b.  The employer has obtains advance written authorization from the employee to so deduct for any lawful purpose accruing to the benefit of the employee.
    Sec. 3.  Section 91A.6, subsection 1, Code 2015, is amended to read as follows:
   1.  An employer shall after being notified by the commissioner pursuant to subsection 2 do the following:
   a.  Notify its employees in writing at the time of hiring what wages and regular paydays are designated by the employer.
   b.  Notify its employees in writing whose wages are determined based on a task, piece, mile, or load basis about the method used to calculate wages and when the wages are earned by the employees.
   b.  c.  Notify, at least one pay period prior to the initiation of any changes, its employees of any changes in the arrangements specified in this subsection 1 that reduce wages or alter the regular paydays. The notice shall either be in writing or posted at a place where employee notices are routinely posted.
   c.  d.  Make available to its employees upon written request, a written statement enumerating employment agreements and policies with regard to vacation pay, sick leave, reimbursement for expenses, retirement benefits, severance pay, or other comparable matters with respect to wages. Notice of such availability shall be given to each employee in writing or by a notice posted at a place where employee notices are routinely posted.
   d.  e.  Establish, maintain, and preserve for three calendar years the payroll records showing the hours worked, wages earned, and deductions made for each employee and any employment agreements entered into between an employer and employee.  Failure to do so shall raise a rebuttable presumption that the employer did not pay the required minimum wage under section 91D.1.
    Sec. 4.  Section 91A.6, subsection 2, Code 2015, is amended by striking the subsection.
    Sec. 5.  Section 91A.6, subsection 4, Code 2015, is amended by striking the subsection and inserting in lieu thereof the following:
   4.  a.  On each regular payday, the employer shall send to each employee by mail or shall provide at the employee’s normal place of employment during normal employment hours a statement showing the wages earned by the employee, the deductions made for the employee, and the following information, as applicable:
   (1)  For each employee paid in whole or in part on an hourly basis, the statement shall show the hours the employee worked.
   (2)  For each employee paid based on a percentage of sales or based on a percentage of revenue generated for the employer, the statement shall include a list of the amount of each sale or the amount of revenue during the pay period.
   (3)  For each employee whose pay is based on the number of miles or loads performed, the statement shall include the applicable number performed during the pay period.
   b.  An employer who provides each employee access to view an electronic statement of the employee’s earnings and provides the employee free and unrestricted access to a printer to print the employee’s statement of earnings, if the employee chooses, is in compliance with this subsection.
    Sec. 6.  Section 91A.8, Code 2015, is amended to read as follows:
   91A.8  Damages recoverable by an employee.

   When it has been shown that an employer has intentionally failed to pay an employee wages or reimburse expenses pursuant to section 91A.3, whether as the result of a wage dispute or otherwise, the employer shall be liable to the employee for any the unpaid wages or unreimbursed expenses that are so intentionally failed to be paid or reimbursed, plus liquidated damages, court costs, and any attorney’s attorney fees incurred in recovering the unpaid wages or unreimbursed expenses and determined to have been usual and necessary. In other instances the employer shall be liable only for unpaid wages or expenses, court costs and usual and necessary attorney’s fees incurred in recovering the unpaid wages or expenses.
    Sec. 7.  Section 91A.10, subsection 5, Code 2015, is amended to read as follows:
   5.  An employer shall not discharge or in any other manner discriminate against any employee because the employee has filed a complaint, assigned a claim, or brought an action under this section or has cooperated in bringing any action against an employer.
   5.  a.  An employer or other person shall not discharge or in any other manner discriminate or retaliate against any of the following:
   (1)  An employee or other person for exercising any right provided under this chapter or any rules adopted pursuant to this chapter.
   (2)  Another employee or person for providing assistance to an employee or providing information regarding the employee or person.
   (3)  Another employee or person for testifying or planning to testify in any investigation or proceeding regarding the employee or person.
   b.  Taking adverse action against an employee or other person within ninety days of an employee’s or other person’s engaging in any of the activities in paragraph “a” raises a presumption that such action was retaliation, which may be rebutted by evidence that such action was taken for other permissible reasons.
   c.  Any employee may file a complaint with the commissioner alleging discharge, or discrimination, or retaliation within thirty days after such violation occurs. Upon receipt of the complaint, the commissioner shall cause an investigation to be made to the extent deemed appropriate. If the commissioner determines from the investigation that the provisions of this subsection have been violated, the commissioner shall bring an action in the appropriate district court against such person. The district court shall have jurisdiction, for cause shown, to restrain violations of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to the former position with back pay.
    Sec. 8.  Section 91A.10, Code 2015, is amended by adding the following new subsection:
   NEW SUBSECTION.  6.  A civil action to enforce subsection 5 may also be maintained in any court of competent jurisdiction by the commissioner or by any party injured by a violation of subsection 5. An employer or other person who retaliates against an employee or other person in violation of subsection 5 shall be required to pay the employee or other person an amount set by the commissioner or a court sufficient to compensate the employee or other person and to deter future violations, but not less than one hundred fifty dollars for each day that the violation occurred.
    Sec. 9.  NEW SECTION.  91A.15  Commissions earned date.

   An employer shall not require that a person be a current employee to be paid a commission that the person otherwise earned.
    Sec. 10.  EFFECTIVE DATE.  This Act takes effect January 1, 2016.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to employers and individuals who perform labor and wage payment collection.
   Code section 91A.5 is amended to provide that the employer has the burden to establish that a deduction from employees’ wages is lawful and that the employer must obtain written authorization for the deduction from the employee in advance.
   Code section 91A.6(1) is amended to remove the requirement that an employer be notified by the division of labor services of the department of workforce development before the employer is required to fulfill the requirements in subsection 1 relating to employee wage and benefit information. In new Code section 91A.6(1)(b), the employer is required to notify employees in writing whose wages are determined based on a task, piece, mile, or load basis about the method used to calculate wages and when wages are earned. Code section 91A.6(1)(e) is amended to establish a rebuttable presumption that an employer did not pay the minimum wage if the employer does not maintain proper payroll records.
   Current Code section 91A.6(2), setting out certain employer compliance procedures, is stricken.
   Code section 91A.6(4) is amended so that the employer must send to each employee by mail, or at the place of business during the employee’s working hours a statement of the employee’s earnings, deductions made, and as applicable the following: for an employee paid hourly, the number of hours worked during the pay period; for an employee paid on a percentage of sales or revenue generated, a list of sales or amount of revenue during the pay period; and for an employee paid based on the number of miles or loads performed, the applicable number performed during the pay period. An employer who provides an electronic statement and gives employees free and unrestricted access to print out the statement is in compliance with the Code section.
   In amended Code section 91A.8, when any specified violation of Code chapter 91A occurs, even if unintentional, an employer shall be liable for unpaid wages or expenses plus liquidated damages, court costs, and attorney fees incurred in recovering wages.
   Code section 91A.10(5), which covers retaliatory actions by employers or others, is expanded to cover persons other than employees who act under Code chapter 91A with respect to an employee. A 90-day period is established during which any action against an employee or other person is rebuttably presumed to be retaliatory. New subsection 6 is created in Code section 91A.10 to allow the labor commissioner or any injured party to maintain a civil action in any court of proper jurisdiction. An employer who retaliates against an employee or other person shall compensate the injured party an amount set by the labor commissioner or the court, but not less than $150 for each day of the violation.
   In new Code section 91A.15, an employer shall not require that an individual be a current employee to be paid an earned commission.
   An employer who violates Code chapter 91A is subject to a civil penalty of not more than $500 per pay period for each violation.
   The bill takes effect January 1, 2016.