§ 40.580 — Enforcement

40.580. - Enforcement.

(a) In general. The implementation, administration, and enforcement of this article shall be made pursuant to chapter 40, article II, which is incorporated herein by reference, except for subsections 40.120(a) and (d). (b) Report of violations. An employee or other person may report to the department any suspected violation of this article. A report of a suspected violation may be filed only if the matter complained of occurred after the effective date of this Article and within two (2) years prior to the filing of the report or, if the violation was willful and not the result of mistake or inadvertence, within three (3) years prior to the filing of the report. (c) Providing notice of determination of violation. When a report of violation is finally resolved either through settlement, or through a determination of violation which has become final and unappealable, the department: (1) If other employees are affected by the settlement or the final, unappealable determination of violation, shall provide a summary of the determination of violation to the employer. Upon being provided with the summary of the determination of violation, the employer shall post it for thirty (30) days in the same location(s) as the notices required by section 40.570. (2) May as appropriate provide the determination of violation to any department of the city with licensing authority over the employer. (d) Relief and administrative fines. If an employer is found to have violated this article, the director shall order the employer to cease and desist from engaging in the violative practice and may order any appropriate relief, including but not limited to: (1) Reinstatement; (2) Compensatory damages to the employee(s) in the amount of wages owed by reason of employment, less any amount that the employer can establish was actually paid to the employee(s). If the records maintained by the employer do not provide sufficient information to determine the exact amount of wages owed to an employee, the director may make a determination of the wages due based upon the available evidence; (3) Liquidated damages to the employee(s) in an amount equal to the compensatory damages, or two hundred fifty dollars ($250.00), whichever is greater. For a second violation of section 40.530 by the employer within a three (3) year period from the date on which the first violation occurred, the liquidated damages may be increased to up to double the compensatory damages, or five hundred dollars ($500.00), whichever is greater. For a third violation of Section 40.530 within three (3) years from the date on which the first violation occurred, the liquidated damages may be increased to up to triple the compensatory damages, or one thousand dollars ($1,000.00), whichever is greater. Liquidated damages may be awarded to an employee as provided in this section in compensation for payment of wages more than seventy-two (72) hours after the regularly scheduled payday even if all wages earned by the employee are paid before the director makes a finding that the employer has violated this article. In determining the amount of the liquidated damages, the size of the employer and the gravity of the violation shall be considered; (4) For a second or subsequent violation of section 40.530 by the employer within a three (3) year period from the date on which the first violation occurred, payment to the department of a civil fine of up to one thousand dollars ($1,000.00) per violation per affected employee. For the purposes of this provision, an affected employee is an employee who was not paid all wages owed as required by section 40.530, regardless of whether the employee filed a report of violation. In determining the amount of the penalty, the size of the employer and the gravity of the violation shall be considered; (5) Reimbursement of the department for reasonable costs of investigation expended in enforcing this article, unless the payment of costs would impose an extreme financial hardship on the employer, in which case the director may order the payment of a percentage of costs expended which will not cause extreme financial hardship on the employer; (6) Payment to the department of a civil fine of up to one thousand dollars ($1,000.00) for each failure to comply with section 40.560. For a second violation within three (3) years from the date on which the first violation occurred, the fine may be increased to up to one thousand five hundred dollars ($1,500.00). For a third violation within three (3) years from the date on which the first violation occurred, the fine may be increased to up to two thousand dollars ($2,000.00). In determining the amount of the fine, the size of the employer, the gravity of the violation, the employer's good faith efforts to comply with this article, and whether the violation was intentional or inadvertent shall be considered; (7) Payment to the department of a civil fine of up to two hundred dollars ($200.00) for each failure to comply with section 40.540, section 40.550, or section 40.570. For a second violation of the same section within three (3) years from the date on which the first violation occurred, the fine may be increased to up to four hundred dollars ($400.00). For a third violation of the same section within three (3) years from the date on which the first violation occurred, the fine may be increased to up to six hundred dollars ($600.00). In determining the amount of the fine, the size of the employer, the gravity of the violation, the employer's good faith efforts to comply with this article, and whether the violation was intentional or inadvertent shall be considered; (8) Payment to the department of a civil fine of up to two thousand dollars ($2,000.00) for failure to cooperate with the department's investigation into a report of violation of this ordinance; (9) Payment to the department of a civil fine of not less than seven hundred dollars ($700.00) nor more than three thousand dollars ($3,000.00) for each violation of section 40.590. This fine shall be in addition to payment to the employee of compensatory damages for the retaliatory conduct in the amount of wages due but unpaid, up to one thousand dollars ($1,000.00). (e) List of outstanding violations. The department may periodically publish a list of employers who have been determined to be in violation of this article and which have unpaid relief due to employees or unpaid fines or costs due to the department, along with the amounts of such unpaid relief or fines. No employer shall be placed on this list unless the determination is final and all rights of appeal have been exhausted, and at least thirty (30) days have passed since such determination became final. Any employer who has fully paid all relief, fines and costs ordered to be paid, and has provided satisfactory proof of such payment to the department, shall be removed from the list. An employer who appears on this list shall be deemed financially non-responsible and ineligible to be awarded new city contracts as otherwise provided by Chapter 18 of this Code. An employer who has a business license issued by the City and has been placed on this list may be subject to adverse license action as otherwise provided by the licensing provisions of this Code. (f) If, during the pendency of a department investigation, an employee who has reported a violation brings a private action in any court seeking unpaid wages based upon the same facts and allegations contained in the report to the department, that employee's report of violation shall be deemed withdrawn and the investigation shall be closed. This section shall be interpreted narrowly to leave unaffected any rights not asserted in the private action and any rights of other employees. (g) Fines not cumulative. The director shall not impose the civil fines authorized by this section if a state or federal administrative agency charged with the enforcement of labor standards laws has previously imposed fines upon the employer for violation of state or federal labor standards law based upon the same acts or omissions that constituted a violation of this article. (Ord. No. 2019-031, § 3, 8-8-19, eff. 1-1-2020)