Tennessee Department of Labor
Helping Employers Abuse Employees
(CFN-Memphis TN July 2008) - When Robert D. went to pick up his last paycheck to buy food for the family, he was told that he had no final paycheck because items had been missing from the employers place of business and the employer accused Robert of the theft, his last paycheck was being held. Robert would leave this job without receiving his final pay.
Robert D., while having signed a statement waiving his rights to receive his last paycheck, gave the employer, according to the Tennessee Department of Labor's Workforce Development Division, Director of Labor Standards Mary Ellen Grace, the right to withold his final paycheck.
Employers often have new or existing employees sign such statements as a condition of employment. These employer employee contracts are binding and allow the employer to disregard the state law concerning payment of final wages under the Tennessee Department of Labor and Workforce Standards.
Our investigation took us directly to the Tennessee Code Annotated, the Labor Department and other sources that we thought could help us shed some light on this subject.
What we found might be surprising!
Apparently, the Tennessee Department of Labor interprets this law as giving the employee the right under Tennessee State Law to waiver the employer from this requirement. Title 50-2-103(g) of the Tennessee Code Annotated clearly states (click to read the complete law; we highlight this section because of it's relevance):
(g) Any employee who leaves or is discharged from employment shall be paid in full all wages or salary earned by such employee no later than the next regular pay day following the date of dismissal or voluntary leaving, or twenty-one (21) days following the date of discharge or voluntary leaving, whichever occurs last. No employer shall, by any means, secure an exemption from this subsection (g).
We take this to mean that the employer has no right to withhold any pay due an employee after they have discontinued their employment either after termination or voluntary quitting, and the employer cannot circumvent this law by asking the employee to sign anything that waivers this right.
We believe that because this section of the law applies to the standards that employers must uphold, that it cannot be waivered by an employere in reference to their employee and can only be waivered by the Tennessee Department of Labor if in fact employers want to get around this law. This is apparently normal operating procedure for the Tennessee Department of Labor.
TCA Title 50-2-103(i) goes on to state the fines the State can impose against employers for violation of this law. At the discretion of the Commissioner for the Tennessee Department of Labor and Workforce Development. Read it for yourself below or click on the link above to read it directly from the TCA.
(i) A violation of this section is a Class B misdemeanor, punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Further, every employer, partnership or corporation willfully violating any provision contained in subsections (a)-(h) is subject to a civil penalty of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) at the discretion of the commissioner, or the commissioner's designated representative. Each and every infraction constitutes a separate and distinct offense. If the commissioner, or the commissioner's designated representative, determines that the violation was unintentional, there shall be a warning, in lieu of a penalty, on the first offense. On second or subsequent violations, the civil penalty is applicable and may be assessed at the discretion of the commissioner, or the commissioner's designated representative. It shall be at the sole discretion of the commissioner to elect to proceed either civilly or criminally upon any violation of this part; however, the employer shall not be charged both civilly and criminally for the same violation.
Section (j) reads:
(j) The department of labor and workforce development shall enforce the provisions of this section. Each employer, during normal business hours, shall make available to inspectors of the department specific wage and payroll records of its employees maintained on the premises that are pertinent to a written complaint. Records that are maintained off the premises or inaccessible shall be made available to the inspectors on a timely basis as agreed upon by the inspector and the employer.
Isn't it clear that the Department of Labor and workforce development has jurisdiction in enforcing these types of wage/work related issues and has the right to access penalties and fines for violation. CFN thinks so and the law says so. And it seems to indicate that the Tennessee DOL should be concerned with the hours worked and compensated for as indicated here.
One of the most stunning things CFN uncovered during our investigation when interviewing the Labor Standards Director for the Tennessee Department of Labor was she did not know the intent of the legislature when writing this law. A good start we think is with the current legislature. How do they interpret it, and does it need revising. Because in it's current form the law allows the employer to be the Judge, Prosecutor and Jury when determining if an employee actually took items from the workplace.
CFN suggests that the Tennessee DOL make an inquiry to the current legislature prior to determining how to enforce and or interpret the laws on the books that clearly are there to protect workers and ensure decency in employer/employee labor relations. If it were of concern, someone from within the Tennessee DOL would have inquired by now instead of enforcing these laws as they deem fit.
What's at stake?
Well, for as long as I can remember employers have always held wages when they have alleged that an employee has committed or is responsible for theft or other damages in the workplace.
Is this the manner in which our lawmakers expect justice to be carried out? Again, CFN thinks not.
Using our current system of justice, CFN thinks the situation would best be handled in a court of law by having the employer prosecute the employee accused of theft, secure a judgment, then garnish wages through a garnishment order. The employer gets their justice and the employee gets the wages they so rightfully worked for IF a judge rules it to be so. However, until such time a judge rules in such a case, the employee is due his wages under state law and the Tennessee Department of Labor has a duty, responsibility, and obligation to the people of Tennessee to enforce this law.
Have employers gotten away with what appears to be a gross miscarriage of justice with support from the Tennessee Department of Labor Workforce Development? If this is how business is carried out as it relates to withholding an employee's wages, we think a major overhaul of this law is needed or, the Tennessee DOL needs to enforce it's laws on the books.
Best-case scenario, employers in Tennessee be held to the same standard as everyone else. Someone takes your property and you did not catch him/her in the act, take them to court and prove your case! There should be no waivers when it comes to justice.
Our conclusion: Clearly the Tennessee Department of Labor assists businesses in circumventing the law that was created to prevent employers from taking advantage of employees by receiving free labor without paying for it.
The Tennessee Department of Labor and Workforce Development needs an overhaul. For a state run agency not to enforce the very laws enacted to protect its people is incomprehensible. However, for those that this comes as no surprise to, then it's easily understood. When the system of government that created the template of operations that put them over us, then one should expect unfairness, unjust treatment and double-crossing.
To contact the Tennessee Department of Labor Workforce Development Division and Labor Standards, send an email to: Susan Cowden, Administrator and tell her what you think about their policies as it relates to employers circumventing the labor law with the assistance of the Tennessee Department of Labor.
Last but not least, we sincerely thank the Tennessee Department of Labor Workforce and Development Labor Standards Director, Mary Ellen Grace in Nashville Tennessee for taking the time out of a busy schedule to speak with CFN regarding this issue.•