2. WAGE PAYMENT ISSUES & LEDBETTER | 5.13.11 M. Malissa Burnette, Esq.

3. Payment of Wages Act - §41-10-10 Employees, not independent contractors Exempts domestic labor & employers with fewer than 5 employees from §41-10-30 requirements only Includes all forms of compensation except pension- type benefits WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

4. Separation from Employment Pay all amounts due within 30 days Failure to pay: treble damages, attorney’s fees and costs (not mandatory) SOL three years WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

5. Recent Cases Under SC PWA Temple v. Tec-Fab (2009) Trial court awarded the “required” treble damages, fees and costs Appeals Court found bona fide dispute; no 3x SC Supreme Court remanded to trial court to determine existence of bona fide dispute WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

6. Recent Cases Under SC PWA Mathis v. Brown & Brown of South Carolina, Inc. (2010) Employer cannot divert wages without 7 days’ written notice Parties had written contract for compensation Cannot reduce pay in breach of contract by giving notice per §41-10-30 WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

7. Recent Cases Under SC PWA Mathis v. Brown & Brown of South Carolina, Inc. (2010) Employer unilaterally reduced wages below amount in contract Trial court awarded treble damages, costs and fees through end of contract Supreme Court: No entitlement to prospective wages under PWA WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

8. Recent Cases Under SC PWA Anderson v. Sara Lee Corp. (2010) NC employees sued under state wage act but not FLSA; removed to federal court Claims found to be FLSA issues. State claims dismissed; remand 4 th Circuit granted employees leave to amend WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

9. Recent Cases Under SC PWA Barron v. Labor Finders of South Carolina (2009) PWA has no non-retaliation component Employee fired after complained about unpaid wages No public policy exception WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

10. Recent Cases Under SC PWA Anselmo v. West Paces Hotel Group, LLC (2011) Lawsuit for PTO and treble damages based upon “inalienable state right” Collective bargaining agreement LMRA preempts / PWA does not create independent right to wages for accrued PTO WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

11. Payment to Sales Representatives Employees and independent contractors Includes only commissions Wholesale – not retail -- business Sale of tangibles – not services WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

12. Termination of Contract or Employment of Sales Rep No deadline in statute for final payment Rely on terms of contract or established practice Penalty: amount due plus 3x amount due Attorneys fees and costs are mandatory WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

13. Recent Cases - Sales Rep Act Williamson v. Middleton (2009) Attorney-friend: no bill or written fee contract No clear obligation to pay fees No attorneys fees “incurred” = no award WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

14. Equal Pay Issues - gender April 12 “Equal Pay Day” Women earn 78 cents per dollar earned by men; African-American women earn only 67 cents Over 40-year period, a woman with a college degree or higher will lose $713,000.00 Ledbetter Fair Pay Act / Paycheck Fairness Act WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

15. Equal Pay Act of 1963 Engaged in interstate commerce / production of goods for interstate commerce Two or more employees Except for hospitals, schools, nursing homes and public agencies, enterprise must have annual gross volume of sales or business of $500,000.00 WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

16. EPA – Plaintiff Must Prove: Different wages paid to opposite sex In an establishment where employees do equal work requiring equal skill, effort and responsibility Similar working conditions WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

17. EPA – Defenses: Seniority system Merit system System which measures earnings by quantity or quality of production Any other factor other than sex WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

18. Title VII – 1964 Civil Rights Act Employer engaged in industry affecting commerce with 15 or more employees Covers hiring, firing, wages, promotions, benefits, terms and conditions of employment Exhaustion of administrative remedies Bennett Amendment adopted EPA defenses WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

19. Lilly Ledbetter Fair Pay Act Nullified Ledbetter v. Goodyear Tire & Rubber Co. Each discriminatory paycheck is actionable wrong under Title VII, ADEA or ADA, regardless of when discrimination began Retroactive to May 28, 2007 WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

20. Cases Citing Ledbetter Act Mikula v. Allegheny County of PA (2009) Court overruled its own prior decision and held that each paycheck was a new violation The SOL was revived upon receipt of each discriminatory paycheck Mikula has been cited in at least 22 cases WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

21. Cases Citing Ledbetter Act Lipscomb v. Mabus (2010) Male federal employee sued for gender discrimination regarding non-promotion Employee alleged Ledbetter Act made his claims timely Court held that failure to promote is not “discriminatory compensation decision” WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

22. Looking Forward: The Paycheck Fairness Act Congress intended the EPA to serve sweeping remedial purpose – grave inequities still exist The “any other factor other than sex” defense is interpreted by some courts to allow payment of unequal wages for literally any factor, legitimate or not E.g., height and weight requirements unrelated to the position WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

23. Paycheck Fairness Act Introduced April 2005 to amend EPA and close judicially-created loophole “Any other factor other than sex” defense would have to be based upon a job-related reason Factor must be consistent with business needs Bill still pending in congress WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.

24. Paycheck Fairness Act “Any other factor other than sex” defense would have to be based upon a bona fide factor such as education, training, or experience “Any other factor other than sex” defense would have to be job-related to the position in question Employers could not retaliate against workers for disclosing their wages WAGE PAYMENT ISSUES | 5.13.11 M. Malissa Burnette, Esq.