The office of Oklahoma State Labor Commissioner has powers that are vast but not so understood by most of our citizens. There are statutes which carve out vast exceptions in the state code whereby thousands of Oklahomans have little or no recourse for collecting disputed claims.
But at the same time there is powerful discretionary authority invested in the state Labor Commissioner. the most empowering clause is found in §40-197.2.
"It shall be unlawful to employ workers in any industry or occupation within the State of Oklahoma under conditions of labor
These powers are clear in the plain language of the Oklahoma statutes. Most of our recent labor commissioners were wise to utilize that draconian role sparingly, if ever.
The Costello legacy at the Labor Commission must be reviewed for how these government powers were, or were not, utilized.
Likewise we must look at the advocacy of Leslie Osborn for government growth and regulatory power to control the marketplace and family economics in employment.
- Cathy Costello has steadfastly and consistently advocated for limited govt. interference in how economic opportunity develops in the state.
- Leslie Osborn has voted for over $2 billion dollars of tax increases in the past year, alone.
The State Labor Code Includes the Following Portions:
Laws 1965, c. 427, § 1, emerg. eff. July 8, 1965.
§40-197.2. Minimum wages established.It shall be unlawful to employ workers in any industry or occupation within the State of Oklahoma under conditions of labor detrimental to their health or morals and it shall be unlawful to employ workers in any industry within the State of Oklahoma at wages which are not adequate for their maintenance. Except as otherwise provided in the Oklahoma Minimum Wage Act, no employer within the State of Oklahoma shall pay any employee a wage of less than the current federal minimum wage for all hours worked.
Amended by Laws 1983, c. 60, § 1, eff. Nov. 1, 1983.
§40-197.3. Wage and Hour Commission - Membership - Tenure - Compensation - Chairman.A. The Wage and Hour Commission is hereby terminated and all powers and duties of such Commission are transferred to the Commissioner of Labor. All personnel, funds, financial obligations and encumbrances, records, equipment, furniture, fixtures, files and supplies under the control of the Wage and Hour Commission are transferred to the Commissioner of Labor as of the effective date of this act.
B. The Commissioner of Labor shall establish, pursuant to this act, such standards of wages and conditions of labor for employees within the State of Oklahoma as shall be reasonable and not detrimental to health and morals.
Laws 1965, c. 427, § 3, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 1, eff. July 1, 1978.
§40-197.4. Definitions.As used in this act:
(a) "Commissioner" means the Commissioner of Labor;
(b) "Wage" means compensation due to an employee by reason of his employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to such deductions, charges or allowances as may be permitted by law;
(c) "Employ" includes to suffer or to permit to work;
(d) "Employer" means any individual, partnership, association, corporation, business trust, or any person or group of persons, hiring more than ten full-time employees or equivalent at any one location or place of business; provided, however, if an employer has less than ten full-time employees or equivalent at any one location or place of business but does a gross business of more than One Hundred Thousand Dollars ($100,000.00) annually, said employer shall not be exempt under the provisions of this act.
This act shall not apply to employers subject to the Fair Labor Standards Act of 1938, as amended, and who are paying the minimum wage under the provisions of said act, nor to employers whose employees are exempt under paragraph (e) of this section.
(e) "Employee" includes any individual employed by an employer but shall not include:
(1) An individual employed on a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment;
(2) Any individual employed in domestic service in or about a private home;
(3) Any individual employed by the United States government;
(4) Any individual working as a volunteer in a charitable, religious or other nonprofit organization;
(5) Any newspaper vendor or carrier;
(6) Any employee of any carrier subject to regulation by Part I of the Interstate Commerce Act;
(7) Any employee of any employer who is subject to the provisions of any Federal Fair Labor Standards Act or to any Federal Wage and Hour Law now in effect or enacted hereafter; and who is paying the minimum wage under the provisions of this act;
(8) Any employee employed in a bona fide executive, administrative or professional capacity, or in the capacity of outside salesman;
(9) Any person employed as part-time employee not on permanent status. A part-time employee is defined as an employee who is employed less than twenty-five (25) hours a week;
(10) Any person who is less than eighteen (18) years of age and is not a high school graduate or a graduate of a vocational training program, and any person who is less than twenty-two (22) years of age and who is a student regularly enrolled in a high school, college, university or vocational training program;
(11) Any individual employed in a feedstore operated primarily for the benefit and use of farmers and ranchers; or
(12) Any individual working as a reserve force deputy sheriff.
Laws 1965, c. 427, § 4; Laws 1971, c. 87, § 1, eff. July 1, 1971; Laws 1977, c. 266, § 3, eff. Oct. 1, 1977; Laws 1978, c. 47, § 2, eff. July 1, 1978; Laws 1981, c. 72, § 4.
§40-197.5. Employees covered by act.Every employer shall pay to each of his employees who have reached eighteen (18) years of age wages at a rate of not less than Two Dollars ($2.00) per hour. Regardless of other provisions of the Oklahoma Minimum Wage Act, every employee of the State of Oklahoma or any lessee or concessionaire thereof is hereby specifically covered by the Oklahoma Minimum Wage Act.
Amended by Laws 1983, c. 60, § 2, eff. Nov. 1, 1983.
§40-197.6. Posting of notice.On and after August 1, 1965, every employer, subject to this act, shall post a notice or notices of the pertinent provisions of this act in such form as may be prescribed and furnished by the Commissioner of Labor. The notice shall be not less than eight and one-half (8 1/2) inches by eleven (11) inches in size and shall be displayed in such a manner so as to be accessible to all employees in each establishment under the control of the employer. The Commissioner, or his or her duly authorized representative, may, for the purpose of determining whether such notice has been properly posted, enter, during business hours, upon the premises of any employer subject to this act.
Added by Laws 1965, c. 427, § 6, emerg. eff. July 8, 1965. Amended by Laws 1978, c. 47, § 3, eff. July 1, 1978; Laws 2009, c. 164, § 2, eff. Nov. 1, 2009.
§40-197.7. Investigation of complaints.Upon verified complaint by an employee or former employee that an employer has violated the provisions of Section 197.5 of this title by failure to pay the minimum wage thereby established, the Commissioner, or his authorized representative, is hereby empowered to make such investigation as deemed necessary to ascertain the facts concerning such charge. The Commissioner shall have the power to administer oaths and affirmations, require sworn statements, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence memoranda, and other records deemed necessary as evidence in connection with the investigation of any alleged violation of Section 197.5 of this title. All information obtained by the Commissioner, or his duly authorized representatives, shall be confidential and, except for the finding of the need for additional wages, as provided by Section 197.8 of this title, and information which is necessarily disclosed in court proceedings provided by Section 197.9 or 197.10 of this title, such information shall not be disclosed to any person.
Laws 1965, c. 427, § 7, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 4, eff. July 1, 1978.
§40-197.8. Findings - Payment of amount due.The Commissioner, after investigation, shall promptly make his finding in writing as to whether or not additional wages are due the employee. If the Commissioner finds that additional wages are due, ten percent (10%) of such amount due shall be added as penalty for such wage deficiency. The Commissioner shall mail said findings to the employer and to the employee by certified mail. Payment by the employer and acceptance by the employee of the amount so determined by the Commissioner shall absolve the employer of any further liability to the employee with respect to wages claimed by the employee for the period he was employed by the employer.
Laws 1965, c. 427, § 8, emerg. eff. July 8, 1965; Laws 1978, c. 47, § 5, eff. July 1, 1978.
§40-197.9. Findings by court - Double damages - Costs and attorney fees - Defenses.Any employer who is found by a court of competent jurisdiction to have paid an employee wages less than those to which such employee is entitled, under or by virtue of this act, shall be liable to such employee for double the full amount of such wages, less any amount actually paid to such employee by the employer, and for court costs, and such reasonable attorney fees as may be allowed by the court, which in no case shall be less than One Hundred Dollars ($100.00). Any agreement between such employee and the employer to work for less than such wage rate shall be no defense to such action.
Laws 1965, c. 427, § 9, emerg. eff. July 8, 1965.
§40-197.10. Assignment of wage claim.At the request of any employee who has been found by the Commissioner to have been paid wages less than those to which such employee is entitled, under or by virtue of this act, the Commissioner shall take an assignment of such wage claim in trust for the assigning employee and shall bring legal action necessary to collect such claim; and if the Commissioner prevails in such action the employer shall be liable to pay the Department of Labor double the full amount of such wages, and the court costs. The Commissioner shall not be required to pay a filing fee in connection with any such action. The Commissioner in such an action shall be represented by the Attorney General.
Added by Laws 1965, c. 427, § 10, emerg. eff. July 8, 1965. Amended by Laws 1978, c. 47, § 6, eff. July 1, 1978.
§40-197.11. Exceptions.The Commissioner, to the extent necessary in order to prevent curtailment of opportunities for employment, shall by regulations provide for:
(a) the employment of learners, of apprentices, and of messengers employed primarily in delivering letters and messages, under special certificates issued pursuant to regulations of the Commissioner, at such wages lower than the minimum wage applicable and subject to such limitations as to time, number, proportion, and length of service as the Commissioner shall prescribe; and
(b) the employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, under special certificates issued by the Commissioner, at such wages lower than the minimum wage and for such period as shall be fixed in such certificates; and
(c) any individual employed by any state, county, city, town, municipal corporation or quasi-municipal corporation, political subdivision, or any instrumentality thereof; and
(d) students and regular attendants at any institution of higher learning, either public or private.
Added by Laws 1965, c. 427, § 11, emerg. eff. July 8, 1965. Amended by Laws 1978, c. 47, § 7, eff. July 1, 1978.
§40-197.12. Rules, regulations and standards.The Commissioner is hereby authorized and empowered to adopt such rules, regulations and standards as he deems necessary and appropriate to carry out the provisions of this act; provided that the adoption of all such rules, regulations and standards and all administrative proceedings of the Commissioner shall be governed by applicable provisions of Sections 301-325, inclusive, of Title 75 of the Oklahoma Statutes.
Added by Laws 1965, c. 427, § 12, emerg. eff. July 8, 1965. Amended by Laws 1978, c. 47, § 8, eff. July 1, 1978.
§40-197.13. Penalty for failure to pay minimum compensation.Any employer, or the officer or agent of any corporation, who pays or agrees to pay to any employee less than the rate of compensation required by Sections 197.2 and 197.5 of this title, upon conviction, shall be guilty of a misdemeanor and shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
Amended by Laws 1983, c. 60, § 3, eff. Nov. 1, 1983.
§40-197.14. Penalty for failure to post notice.Any employer failing to post the notice required by Section 6 of this act shall be punished by a fine of not to exceed Twenty-five Dollars ($25.00), and each week he fails to post such notice shall constitute a separate offense.
Laws 1965, c. 427, § 14, emerg. eff. July 8, 1965.
§40-197.15. Citation.This act shall be known and may be cited as the "Oklahoma Minimum Wage Act".
Laws 1965, c. 427, § 15, emerg. eff. July 8, 1965.
§40-197.16. Tips, gratuities, meals or lodging - Credit for.To compute the minimum wage of any employee coming within the purview of this act, credit toward the minimum required wage must be given for any tips or gratuities, meals or lodging received by the employee up to but not exceeding fifty percent (50%) of said wage.
Laws 1971, c. 70, § 2, eff. July 1, 1971; Laws 1980, c. 203, § 2, eff. Oct. 1, 1980.
§40-197.17. Uniforms - Credit for.Business establishments that furnish uniforms to their employees may take credit against the minimum wage in an amount equal to the reasonable cost of furnishing the uniforms.
Laws 1971, c. 70, § 3, eff. July 1, 1971.
§40-198.1. Payment of discriminatory wages based on employee's sex prohibited.It shall be unlawful for any employer within the State of Oklahoma to willfully pay wages to women employees at a rate less than the rate at which he pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility, except where such payment is made pursuant to a seniority system; a merit system; a system which measures earnings by quantity or quality of production; or a differential based on any factor other than sex.
Laws 1965, c. 494, § 1, emerg. eff. July 15, 1965.
§40-198.2. Enforcement - Penalties.It shall be the duty of the Commissioner of Labor to enforce the provisions of this act. Whenever the Commissioner is informed of any violations thereof, it shall be his duty to investigate same and, in his discretion, said Commissioner is hereby authorized to institute proceedings for the enforcement of penalties herein provided before any court of competent jurisdiction. Any employer who violates the provisions of this act shall be deemed guilty of a misdemeanor and shall upon conviction thereof, be punished by a fine of not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00).
Laws 1965, c. 494, § 2, emerg. eff. July 15, 1965.