Senate File 80 - Introduced SENATE FILE 80 BY BOLKCOM , TAYLOR , PETERSEN , HART , BOULTON , BISIGNANO , DOTZLER , DVORSKY , BOWMAN , KINNEY , JOCHUM , LYKAM , HOGG , and McCOY A BILL FOR An Act relating to wage payment collection issues arising 1 between employers and individuals who provide services to 2 employers, providing penalties and remedies, and including 3 effective date provisions. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 1409XS (2) 87 je/rj

S.F. 80 Section 1. Section 91A.5, subsection 1, unnumbered 1 paragraph 1, Code 2017, is amended to read as follows: 2 An employer shall have the burden to establish that a 3 deduction from employee wages is lawful. An employer shall not 4 withhold or divert any portion of an employee’s wages unless: 5 Sec. 2. Section 91A.5, subsection 1, paragraph b, Code 2017, 6 is amended to read as follows: 7 b. The employer has obtains advance written authorization 8 from the employee to so deduct for any lawful purpose accruing 9 to the benefit of the employee. 10 Sec. 3. Section 91A.6, subsection 1, Code 2017, is amended 11 to read as follows: 12 1. An employer shall after being notified by the 13 commissioner pursuant to subsection 2 do the following : 14 a. Notify its employees in writing at the time of hiring 15 what wages and regular paydays are designated by the employer. 16 b. Notify its employees in writing whose wages are 17 determined based on a task, piece, mile, or load basis about 18 the method used to calculate wages and when the wages are 19 earned by the employees. 20 b. c. Notify, at least one pay period prior to the 21 initiation of any changes, its employees of any changes in 22 the arrangements specified in this subsection 1 that reduce 23 wages or alter the regular paydays. The notice shall either 24 be in writing or posted at a place where employee notices are 25 routinely posted. 26 c. d. Make available to its employees upon written request, 27 a written statement enumerating employment agreements and 28 policies with regard to vacation pay, sick leave, reimbursement 29 for expenses, retirement benefits, severance pay, or other 30 comparable matters with respect to wages. Notice of such 31 availability shall be given to each employee in writing or by a 32 notice posted at a place where employee notices are routinely 33 posted. 34 d. e. Establish, maintain, and preserve for three 35 -1- LSB 1409XS (2) 87 je/rj 1/ 8

S.F. 80 calendar years the payroll records showing the hours worked, 1 wages earned, and deductions made for each employee and 2 any employment agreements entered into between an employer 3 and employee. Failure to do so shall raise a rebuttable 4 presumption that the employer did not pay the required minimum 5 wage under section 91D.1. 6 Sec. 4. Section 91A.6, subsection 2, Code 2017, is amended 7 by striking the subsection. 8 Sec. 5. Section 91A.6, subsection 4, Code 2017, is amended 9 by striking the subsection and inserting in lieu thereof the 10 following: 11 4. a. On each regular payday, the employer shall send to 12 each employee by mail or shall provide at the employee’s normal 13 place of employment during normal employment hours a statement 14 showing the wages earned by the employee, the deductions made 15 for the employee, and the following information, as applicable: 16 (1) For each employee paid in whole or in part on an hourly 17 basis, the statement shall show the hours the employee worked. 18 (2) For each employee paid based on a percentage of sales or 19 based on a percentage of revenue generated for the employer, 20 the statement shall include a list of the amount of each sale 21 or the amount of revenue during the pay period. 22 (3) For each employee whose pay is based on the number 23 of miles or loads performed, the statement shall include the 24 applicable number performed during the pay period. 25 b. An employer who provides each employee access to view an 26 electronic statement of the employee’s earnings and provides 27 the employee free and unrestricted access to a printer to print 28 the employee’s statement of earnings, if the employee chooses, 29 is in compliance with this subsection. 30 Sec. 6. Section 91A.8, Code 2017, is amended to read as 31 follows: 32 91A.8 Damages recoverable by an employee. 33 When it has been shown that an employer has intentionally 34 failed to pay an employee wages or reimburse expenses pursuant 35 -2- LSB 1409XS (2) 87 je/rj 2/ 8

S.F. 80 to section 91A.3 , whether as the result of a wage dispute or 1 otherwise, the employer shall be liable to the employee for 2 any the unpaid wages or unreimbursed expenses that are so 3 intentionally failed to be paid or reimbursed , plus liquidated 4 damages, court costs , and any attorney’s attorney fees incurred 5 in recovering the unpaid wages or unreimbursed expenses 6 and determined to have been usual and necessary. In other 7 instances the employer shall be liable only for unpaid wages or 8 expenses, court costs and usual and necessary attorney’s fees 9 incurred in recovering the unpaid wages or expenses. 10 Sec. 7. Section 91A.9, subsection 3, Code 2017, is amended 11 to read as follows: 12 3. The commissioner may employ such qualified personnel 13 as are necessary for the enforcement of this chapter . Such 14 personnel shall be employed pursuant to chapter 8A, subchapter 15 IV . The commissioner shall employ wage investigators for the 16 enforcement of this chapter. 17 Sec. 8. Section 91A.9, Code 2017, is amended by adding the 18 following new subsection: 19 NEW SUBSECTION . 4A. The commissioner shall establish a 20 statewide, toll-free telephone hotline for the purpose of 21 receiving reports of violations of this chapter. 22 Sec. 9. Section 91A.10, subsection 5, Code 2017, is amended 23 to read as follows: 24 5. An employer shall not discharge or in any other manner 25 discriminate against any employee because the employee has 26 filed a complaint, assigned a claim, or brought an action under 27 this section or has cooperated in bringing any action against 28 an employer. 29 5. a. An employer or other person shall not discharge or 30 in any other manner discriminate or retaliate against any of 31 the following: 32 (1) An employee or other person for exercising any right 33 provided under this chapter or any rules adopted pursuant to 34 this chapter. 35 -3- LSB 1409XS (2) 87 je/rj 3/ 8

S.F. 80 (2) Another employee or person for providing assistance to 1 an employee or providing information regarding the employee or 2 person. 3 (3) Another employee or person for testifying or planning 4 to testify in any investigation or proceeding regarding the 5 employee or person. 6 b. Taking adverse action against an employee or other person 7 within ninety days of an employee’s or other person’s engaging 8 in any of the activities in paragraph “a” raises a presumption 9 that such action was retaliation, which may be rebutted by 10 evidence that such action was taken for other permissible 11 reasons. 12 c. Any employee may file a complaint with the commissioner 13 alleging discharge , or discrimination , or retaliation within 14 thirty days after such violation occurs. Upon receipt of the 15 complaint, the commissioner shall cause an investigation to be 16 made to the extent deemed appropriate. If the commissioner 17 determines from the investigation that the provisions of this 18 subsection have been violated, the commissioner shall bring 19 an action in the appropriate district court against such 20 person. The district court shall have jurisdiction, for cause 21 shown, to restrain violations of this subsection and order all 22 appropriate relief including rehiring or reinstatement of the 23 employee to the former position with back pay. 24 Sec. 10. Section 91A.10, Code 2017, is amended by adding the 25 following new subsection: 26 NEW SUBSECTION . 6. A civil action to enforce subsection 5 27 may also be maintained in any court of competent jurisdiction 28 by the commissioner or by any party injured by a violation 29 of subsection 5. An employer or other person who retaliates 30 against an employee or other person in violation of subsection 31 5 shall be required to pay the employee or other person 32 an amount set by the commissioner or a court sufficient to 33 compensate the employee or other person and to deter future 34 violations, but not less than one hundred fifty dollars for 35 -4- LSB 1409XS (2) 87 je/rj 4/ 8

S.F. 80 each day that the violation occurred. 1 Sec. 11. NEW SECTION . 91A.12A Erroneous violations. 2 If an employer erroneously violates the provisions of this 3 chapter or the rules adopted pursuant to this chapter, the 4 employer shall not be subject to liability to an employee 5 pursuant to section 91A.8, the violation shall not constitute 6 an enforceable claim as provided in section 91A.10, and the 7 employer shall not be subject to a civil money penalty pursuant 8 to section 91A.12, if all of the following conditions are met: 9 a. The commissioner determines that the violation was 10 erroneous and that the employer attempted in good faith to 11 comply with the provisions of this chapter and the rules 12 adopted pursuant to this chapter. 13 b. The commissioner, after considering any history of 14 violations of this chapter or the rules adopted pursuant to 15 this chapter by the employer, determines that the violation was 16 isolated in nature. 17 c. The employer corrects the violation to the satisfaction 18 of the labor commissioner within fourteen days of the 19 occurrence of the violation. 20 Sec. 12. NEW SECTION . 91A.15 Commissions earned date. 21 An employer shall not require that a person be a current 22 employee to be paid a commission that the person otherwise 23 earned. 24 Sec. 13. NEW SECTION . 91A.16 Inconsistency with federal 25 law. 26 A provision of this chapter shall not apply to any employer 27 or employee if such provision would conflict with federal law 28 or regulation. 29 Sec. 14. NOTIFICATION REQUIREMENTS. The labor commissioner 30 shall provide for the notification of each employer in this 31 state of the requirements for employers provided in this Act by 32 September 1, 2017. Such notification shall include suggested 33 forms and procedures that employers may use for purposes of 34 compliance with the notice and recordkeeping requirements of 35 -5- LSB 1409XS (2) 87 je/rj 5/ 8

S.F. 80 section 91A.6, as amended by this Act. 1 Sec. 15. EFFECTIVE DATE. This Act takes effect January 1, 2 2018. 3 EXPLANATION 4 The inclusion of this explanation does not constitute agreement with 5 the explanation’s substance by the members of the general assembly. 6 This bill relates to employers and individuals who perform 7 labor and wage payment collection. 8 Code section 91A.5 is amended to provide that the employer 9 has the burden to establish that a deduction from employees’ 10 wages is lawful and that the employer must obtain written 11 authorization for the deduction from the employee in advance. 12 Code section 91A.6(1) is amended to remove the requirement 13 that an employer be notified by the division of labor services 14 of the department of workforce development before the employer 15 is required to fulfill the requirements in subsection 1 16 relating to employee wage and benefit information. In new 17 Code section 91A.6(1)(b), the employer is required to notify 18 employees in writing whose wages are determined based on a 19 task, piece, mile, or load basis about the method used to 20 calculate wages and when wages are earned. Code section 21 91A.6(1)(e) is amended to establish a rebuttable presumption 22 that an employer did not pay the minimum wage if the employer 23 does not maintain proper payroll records. 24 Current Code section 91A.6(2), setting out certain employer 25 compliance procedures, is stricken. 26 Code section 91A.6(4) is amended so that the employer 27 must send to each employee by mail, or at the place of 28 business during the employee’s working hours a statement of 29 the employee’s earnings, deductions made, and as applicable 30 the following: for an employee paid hourly, the number of 31 hours worked during the pay period; for an employee paid on a 32 percentage of sales or revenue generated, a list of sales or 33 amount of revenue during the pay period; and for an employee 34 paid based on the number of miles or loads performed, the 35 -6- LSB 1409XS (2) 87 je/rj 6/ 8

S.F. 80 applicable number performed during the pay period. An employer 1 who provides an electronic statement and gives employees free 2 and unrestricted access to print out the statement is in 3 compliance with the Code section. 4 In amended Code section 91A.8, when any specified violation 5 of Code chapter 91A occurs, even if unintentional, an employer 6 shall be liable for unpaid wages or expenses plus liquidated 7 damages, court costs, and attorney fees incurred in recovering 8 wages. 9 The bill amends Code section 91A.9 to require the labor 10 commissioner to employ wage investigators for the enforcement 11 of Code chapter 91A, and to establish a statewide, toll-free 12 telephone hotline for the purpose of receiving reports of 13 violations of Code chapter 91A. 14 Code section 91A.10(5), which covers retaliatory actions 15 by employers or others, is expanded to cover persons other 16 than employees who act under Code chapter 91A with respect 17 to an employee. A 90-day period is established during which 18 any action against an employee or other person is rebuttably 19 presumed to be retaliatory. New subsection 6 is created in 20 Code section 91A.10 to allow the labor commissioner or any 21 injured party to maintain a civil action in any court of proper 22 jurisdiction. An employer who retaliates against an employee 23 or other person shall compensate the injured party an amount 24 set by the labor commissioner or the court, but not less than 25 $150 for each day of the violation. 26 The bill creates new Code section 91A.12A to provide that 27 if an employer erroneously violates the provisions of Code 28 chapter 91A or the rules adopted pursuant to Code chapter 29 91A, the employer shall not be subject to certain penalty 30 provisions provided in Code chapter 91A if certain conditions 31 are met. The first condition is that the labor commissioner 32 determines that the violation was erroneous and that the 33 employer attempted in good faith to comply with the provisions 34 of Code chapter 91A and the rules adopted pursuant to Code 35 -7- LSB 1409XS (2) 87 je/rj 7/ 8

S.F. 80 chapter 91A. The second condition is that the commissioner, 1 after considering any history of violations by the employer, 2 determines that the violation was isolated in nature. The 3 third condition is that the employer corrects the violation 4 to the satisfaction of the commissioner within 14 days of the 5 occurrence of the violation. 6 In new Code section 91A.15, an employer shall not require 7 that an individual be a current employee to be paid an earned 8 commission. 9 The bill creates new Code section 91A.16 to stipulate that a 10 provision of Code chapter 91A shall not apply to any employer 11 or employee if such provision would conflict with federal law 12 or regulation. 13 The bill requires the labor commissioner to provide for the 14 notification of each employer in Iowa of the requirements for 15 employers provided in the bill by September 1, 2017. Such 16 notification shall include suggested forms and procedures 17 that employers may use for purposes of compliance with the 18 notice and recordkeeping requirements of Code section 91A.6, 19 as amended by the bill. 20 An employer who violates Code chapter 91A is subject to a 21 civil penalty of not more than $500 per pay period for each 22 violation. 23 The bill takes effect January 1, 2018. 24 -8- LSB 1409XS (2) 87 je/rj 8/ 8