For South Carolina employees facing an employer over the issue of unpaid wages (also known as wage theft), the prospect of a court awarding treble damages and attorney’s fees can help an employee find justice. Treble damages, as we’ll discuss below, just means triple the amount owed in wages. This legal option provides the South Carolina employee with additional leverage to recover any wages stolen by an employer.
What Does the South Carolina Wage Payment Act Require?
Under the South Carolina Payment of Wages Act, a company must pay all wages owed to an employee in accordance with regular payroll procedures. That means, if you earn money in a single pay period, it must be paid by the next regular payroll date (normally weekly or biweekly).
Further, if an employee is discharged for any reason, the company must pay all final wages owed to the employee within 48 hours OR by the next regular payroll date, but such payment must be made within 30 days at the latest.
What Legal Options Do South Carolina Employees Have to Fight Wage Theft?
Luckily, the SC Payment of Wages Act provides legal remedies for employees whose wages have been stolen by an employer.
First, the employee has the right to file a lawsuit in state or federal court seeking payment of the wages owed. Normally, when I filed wage payment claims, I’ll also add claims for a breach of contract, since payment of wages also fall under that legal claim, as well as what’s called an equitable claim (a claim based in the fairness powers of the court) for unjust enrichment, based on the amount of money wrongfully kept by the company.
In that lawsuit, the employee has the right to claim the amount owed (the amount of unpaid wages) and also seek that amount to be trebled (tripled) by the court. So if you can prove that your employer stole $50,000 from you, the court has the power to turn that $50,000 verdict into a $150,000 verdict.
In addition, the court can award attorney’s fees, meaning that if you’re paying your lawyer by the hour (not the most unusual arrangement, as most plaintiff’s lawyers will take the case on a contingency fee if the case has merit), then you can get that amount paid back by the other side. Or, if you’re in a contingency fee arrangement, then your attorney can petition the court for attorney’s fees based on how many hours the lawyer has worked on the case multiplied by a reasonable hourly rate. Two hundred hours of lawyer work times $400/hour, for example, yields an attorney’s fee award of $80,000 that the company would have to pay.
Can the Employee Report the Wage Theft to Any Government Agency?
Besides the wage payment lawsuit option, the South Carolina employee also has the right to contact the South Carolina Department of Labor, Licensing, and Regulation (LLR) to file a wage complaint. LLR can investigate, and for each individual violation, issue up to a $100/per incident fine to the company for violations of the Wage Payment Statute.
LLR cannot recover the amounts owed to you via a lawsuit. You have to file your own lawsuit. So why bother filing with LLR? Well, first, internal complaints to the company about unpaid wages are not considered a “protected complaint.” A protected complaint means that if the company retaliates against you for making a protected complaint, such as through firing you, then you would have a separate legal claim for retaliation/wrongful termination. (I see retaliation claims quite a bit in the discrimination context, when an employee reports discrimination or harassment to HR and then is promptly fired for false reasons.) But if you only complain to your employer about unpaid wages directly and then you get fired, you’re out of luck. You won’t be able to seek lost wages from the termination, only the unpaid wages owed before the termination.
However, filing a wage complaint with LLR is a protected complaint. Once the company learns of your protected complaint, the company cannot fire you for making that complaint. Now, practically speaking, the company may still fire you. But if that happens, then you can sue the company for that termination and seek lost wages and benefits while you seek to find new employment. So, in addition to the company facing a LLR investigation for violations of the Wage Payment Act, the company also has to be extra careful in how you are treated, lest the company be confronted with a retaliation claim.
When I’m advising South Carolina employees on how to handle a case of unpaid wages—especially if they are still currently employed—often filing with SC LLR and waiting until the company is contacted by the investigator turns out to the be the best course of action.
Other types of wages claims do allow for protection for purely internal complaints. The Fair Labor Standards Act (FLSA), for instance, protects an employee who complains about minimum wage violations and overtime violations to HR or management. Under the FLSA—and in contrast to the SC Payment of Wages Act—a purely internal complaint to HR is protected against retaliation.
Are Treble Damages Automatic Under the SC Payment of Wages Act?
One thing to keep in mind, though, is that treble damages are NOT automatic under the SC Payment of Wages Act. The appellate courts in South Carolina have ruled that treble damages and attorney’s fees are up to the discretion of the judge. The company can seek to avoid treble damages by showing that there was a good faith dispute between the parties about the amounts owed in wages.
If the court believes that argument, then the judge can decline to award treble damages and attorney’s fees. The employee would still be entitled to the receive the amounts owed in wages.
Takeaways for South Carolina Employees
For South Carolina employees, the prospect of treble damages provides leverage in forcing an employer to comply with the law regarding payment of wages and payment of commissions.
Further, make sure you are aware of your rights to report violations of the Wage Payment Act to SC LLR.
If you have any questions about who you should report wage theft issues to, please feel free to reach out to our firm for a consultation to determine what your best legal options. And always remember that legal claims have a ticking time clock on how long you have to file a lawsuit, so don’t sit on your rights. Speak to a South Carolina unpaid wages lawyer as soon as you can.
