Printable Format44-315. Separation prior to payday; damages for willful non-payment. (a) Whenever an employer discharges an employee or whenever an employee quits or resigns, the employer shall pay the employee's earned wages not later than the next regular payday upon which he or she would have been paid if still employed as provided under K.S.A. 44-314 either through the regular pay channels or by mail postmarked within the deadlines herein specified if requested by the employee.
(b) If an employer willfully fails to pay an employee wages as required by K.S.A. 44-314, and amendments thereto, or as required under subsection (a) of this section, such employer shall be liable to the employee for the wages due and also shall be liable to the employee for a penalty in the fixed amount of 1% of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the eighth day after the day upon which payment is required or in an amount equal to 100% of the unpaid wages, whichever is less. For the purpose of such additional damages, the failure to pay shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he or she is adjudicated bankrupt upon such petition nor shall it be deemed to continue after an appeal is filed under K.S.A. 44-322a, and amendments thereto, until the decision on appeal becomes final.
History: L. 1973, ch. 204, § 3; L. 1977, ch. 173, § 1; L. 1999, ch. 69, § 1; July 1.
Source or prior law:
44-307, 44-308.
Law Review and Bar Journal References:
"See Dick and Jane Work: A Kansas Wage Payment Act Primer," Boyd A. Byers and Carolyn L. Rumfelt, 72 J.K.B.A. No. 9, 14 (2003).
"Liquidated Damages - When is the Claimant Entitled to Prejudgment Interest?" Mary E. Christopher and Michelle M. Watson, 74 J.K.B.A. No. 5, 14 (2004).
Kansas Employment Law Survey, Elinor P. Schroeder, Pamela V. Keller, 55 K.L.R. 887 (2007).
Attorney General's Opinions:
Mentioned in discussion of county paid time-off leave and cash-basis law. 2007-25.
CASE ANNOTATIONS
1. Maximum penalty hereunder assessed; section not applied retrospectively; punitive damages not recoverable. Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 582 P.2d 244.
2. Cited in action to obtain satisfaction of previous judgment. Wells v. Davis, 226 Kan. 586, 587, 603 P.2d 180.
3. Willful refusal to pay vacation wages upon demand, in lieu of time off pursuant to contract, subjects employer to penalty hereunder. Benjamin v. Manpower, Inc., of Wichita, 3 Kan. App. 2d 657, 658, 660, 661, 600 P.2d 148.
4. Sole officer of corporation who knowingly permits violation of wage payment laws is personally liable for unpaid wages and damages. State ex rel. McCain v. Erdman, 4 Kan. App. 2d 375, 376, 377, 607 P.2d 78.
5. Phrase "earned time" in employment contract does not constitute "wages" as defined in K.S.A. 44-313(c). Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 240, 627 P.2d 1143.
6. Employer cannot circumvent statute by including condition subsequent forfeiture clause in employment contract. Lindstrom v. St. Francis Hosp. & Med. Center, Inc., 6 Kan. App. 2d 948, 951, 636 P.2d 231 (1981).
7. Earned wages do not include vacation pay if contractual condition precedent of timely termination notice not performed. Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 606, 607, 612, 647 P.2d 1274 (1982).
8. Absent express statutory authority, administrative agency cannot award compensatory or punitive damages. Woods v. Midwest Conveyor Co., 231 Kan. 763, 775, 648 P.2d 234 (1982).
9. In absence of willful violation, no penalty where employer fails to pay disputed wages. Weinzirl v. The Wells Group, Inc., 234 Kan. 1016, 1021, 1023, 677 P.2d 1004 (1984).
10. Sums withheld from amounts due as bonuses actually wages under particular circumstances. Yuille v. Pester Marketing Co., 9 Kan. App. 2d 464, 466, 682 P.2d 676 (1984).
11. Firing of claimant not itself enough to entitle claimant to statutory penalties. Mid America Aerospace, Inc. v. Department of Human Resources, 10 Kan. App. 2d 144, 148, 694 P.2d 1321 (1985).
12. Claimants not entitled to profit-sharing benefits unless employed on distribution date of employment contract. Morton Bldgs., Inc. v. Department of Human Resources, 10 Kan. App. 2d 197, 198, 202, 695 P.2d 450 (1985).
13. Combination of commission/hourly wage plan consistent with employment agreement between parties not violative of statute. Dangerfield v. Montgomery Ward Co., 236 Kan. 594, 597, 694 P.2d 439 (1985).
14. Back and unpaid wages; tip pooling system and effect of federal law discussed in detail. Elkins v. Showcase, Inc., 237 Kan. 720, 721, 704 P.2d 977 (1985).
15. Cited; benefits under stock option and savings fund plans subject to conditions precedent are not wages. Weir v. Anaconda Co., 773 F.2d 1073, 1084 (1985).
16. Mere inclusion of unenforceable provision in contract does not evince fraud. Smith v. MCI Telecommunications Corp., 678 F. Supp. 823, 831 (1987).
17. Once an employee's right to earn wages becomes absolute, a condition subsequent cannot impose a forfeiture. Smith v. MCI Telecommunications Corp., 755 F. Supp. 354, 358 (1990).
18. Whether respondent violated KWPA (K.S.A. 44-301 et seq.) by failing to pay salesperson commissions earned during employment examined. Herr v. McCormick Grain-The Heiman Company, Inc., 841 F. Supp. 1500, 1514 (1993).
19. "Employer" determined; effect of employer's filing for bankruptcy. Alkire v. Fissel, 23 Kan. App. 2d 487, 495, 932 P.2d 1034 (1997).
20. Former police officer's claims for pension amount were less than jurisdictional amount required under diversity statute. Fitzgerald v. City of Ottawa, Kan., 975 F. Supp. 1402, 1405 (1997).
21. Issue concerning whether employer's refusal to pay overtime was willful precluded summary judgment. Clements v. Emery Worldwide Airlines, Inc., 44 F. Supp. 2d 1141, 1148 (1999).
22. Accrued vacation was earned wages which employer is required to pay to terminated employee. Dillard Dept. Stores, Inc. v. Kansas Dept. of Human Resources, 28 Kan. App. 2d 229, 13 P.3d 358 (2000).
23. Material fact issue concerning whether plaintiffs were eligible for bonus program precluded summary judgment. Kephart v. Data Systems Intern, Inc., 243 F. Supp. 2d 1205, 1226, 1231 (2003).
24. Oral agreement to withhold, deduct or divert any portion of employee's wages is illegal; 100% penalty plus interest approved. Beckman v. Kansas Dept. of Human Resources, 30 Kan. App. 2d 606, 43 P.3d 891 (2002).
25. Fact issue concerning whether employer owed employees wages relating to work precluded summary judgment. Kephart v. Data Systems Intern., Inc., 243 F. Supp. 2d 1205, 1208 (2003).
26. Employer's policy requiring employee to provide notice of intent to quit placed condition precedent on receipt of wages. Robinson v. Food Service of Belton, Inc., 415 F. Supp. 2d 1227, 1230 (2005).
27. Employees were "discharged" for purposes of liability assessment under KWPA despite identical employment by a successor employer. A.O. Smith Corp. v. Kansas Dept. of Human Services, 36 Kan. App. 2d 530, 539, 144 P.3d 760 (2005).
28. Employer properly penalized under subsection (b) for willfully failing to pay illegal alien wages under K.S.A. 44-314. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 647, 154 P.3d 1080 (2007).