Chapter 03 - Wages and Hours

Chapter 03 - Wages and Hours

32.0301 Short title.

This chapter may be cited as the “Minimum Waste and Hour Act of American Samoa”.

32.0302 Policy.

It is the policy of this chapter to:

(1) establish minimum wages and maximum hour standards at levels consistent with the public health, efficiency and general well-being of workers;

(2) safeguard existing minimum wage and maximum hour standards which are adequate to the health, efficiency and general well-being of workers from the effects of the serious and unfair competition resulting from wage and hour standards detrimental to the health, efficiency and general well-being of workers; and

(3) increase employment opportunities.

32.0303 Definitions.

As used in this chapter, the following definitions apply:

(a) “Agriculture” means a culture as defined in 29 U.S.C. § 203 (f), or as the same may be amended from time to time.

(b) “Board” means the Wage and Hour Board.

(c) “Employ” includes to permit or suffer to work.

(d) "Employee” includes any individual employed by an employer, but shall not include any individual employed:

(1) in agriculture for any workweek in which the employer of the individual employs fewer than 5 persons;

(2) in domestic employment in or about a private home;

(3) by his brother, sister, brother-in-law, sister-in-law, son, daughter, spouse, parent or parent-in-law;

(4) by a nonprofit school during the time such individual is a student attending such school;

(5) as a newspaper boy in the delivery of newspapers to the consumer: or

(6) in any capacity if by reason of his employment in such capacity and during the terms thereof, the minimum wage which may be paid such employee or the maximum hours which such employee may work during any workweek without the payment of overtime is prescribed by the Federal Fair Labor Standards Act of 1938, or as the same may be amended from time to time:

(7) as a salaried employee of the government under a written contract at an annual salary of $5,000 or more:

(8) as a supervisory, professional or technical employee of the government at an hourly wage of $2 or more.

(e) “Employer” includes any individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons acting directly or indirectly in the interest of an employer in relation to an employee, and it includes the government, but does not include the United States Government.

(f) “Industry” means a trade, business, industry or branch thereof, or group of industries. in which individuals are employed.

(g) “Wage” means legal tender of the United States, or checks on banks convertible into cash on demand at full face value thereof, and in addition thereto, the reasonable cost, as determined by the Board, to the employer of furnishing an employee with board, lodging or other facilities if such board, lodging, or other facilities are customarily furnished by such employer to his employees, but does not include tips or gratuities of any kind.

(h) “Week” means any period of 7 consecutive days.

32.0304 Wage and Hour Board-Composition-Terms.

(a) This chapter shall be enforced and administered by the Wage and Hour Board, which shall consist of 5 members to be selected as follows:

(1) The chairman shall be the personnel officer of the government and shall be chairman for as long as he is the personnel officer.

(2) The House of Representatives of the Legislature of American Samoa, by its Speaker, shall appoint 1 member of the Board.

(3) The Senate of the Legislature of American Samoa, by its President shall appoint 1 member of the Board.

(4) The Governor of American Samoa shall appoint 2 members of the Board.

(b) With the exception of the chairman, all members of the Board shall hold office for the period of 1 year.

(c) Members may be reappointed to the Board.

32.0305 Wage and Hour Board-Powers and duties.

(a) The Board:

(1) may prepare and promulgate such rules as it deems necessary for the enforcement of this chapter:

(2) shall prepare and promulgate, after a public hearing, such wage and hour orders as it deems necessary for the operation and enforcement of this chapter. Wage and hour orders requiring the payment of minimum wages shall require the approval of the Governor of American Samoa before they become effective.

(b) For any occupation, the Board shall make and revise, subject to the approval of the Governor, such rules, including definitions of terms, as it may deem appropriate to carry out the purposes of, or necessary to prevent the circumvention or evasion of this chapter and to safeguard minimum wage rates. Such regulations may include, but are not limited to:

(1) regulations defining and governing outside salesmen;

(2) learners and apprentices, and their number and pay;

(3) special pay for special or extra work;

(4) charges to employees for allowances for board, lodging, apparel or other facilities or services customarily furnished by employers to employees;

(5) allowances for gratuities;

(6) allowances for such special conditions or circumstances as may be usual in a particular employment relationship.

(c) Regulations or revisions thereof pursuant to this section may be made only after a public hearing held subsequent to publication of notice of the hearing, at which any person may be heard.

(d) Regulations or revisions, except as otherwise provided, take effect upon promulgation after approval by the Governor.

32.0306 Oaths and subpoenas-Failure to comply.

(a) The Board or its authorized representative may administer oaths, take or cause to be taken the depositions of witnesses, and require by subpoena the attendance and testimony of witnesses and the production of all books, records, and other evidence relative to any matter under investigation.

(b) Subpoenas must be signed and issued by the Board or its authorized representative.

(c) In case of failure of any person to comply with any subpoena lawfully issued under this section, or refusal of any witness to produce evidence or to testify to any matter regarding which he may be lawfully interrogated, the Chief Justice or an Associate Justice of the High Court of American Samoa, upon the application or the Board or its authorized representative, shall compel obedience by a proceeding for contempt, as in the case of disobedience of the requirements of a subpoena issued by such court or a refusal to testify therein.

(d) No person may be excused from attending and testifying or from producing books, papers, correspondence, memoranda, contracts, agreements, or other records and documents before the Board or its authorized representative, or in obedience to the subpoena of the board or its authorized representative, or in any cause or proceeding instituted under this chapter, on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture, but no individual may be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled to testify or produce evidence, documentary or otherwise, after having claimed his privilege against self-incrimination, except that such individual so testifying may not be exempt from prosecution and punishment for perjury committed in so testifying.

(e) The Board may certify to official acts.

32.0307 Employer records.

(a) Every employer shall keep, in or about the premises wherein any employee is employed, and for such period of time as the board may by regulation prescribe, a record of:

(1) the name, address and occupation of each employee;

(2) the amount paid each pay period to each employee;

(3) the hours worked each day and each workweek by each employee;

(4) such other information as the Board may by regulation prescribe.

(b) The Board or its authorized representative shall, for the purpose of examination, have access to and the right to copy from such records.

(c) The Board or its authorized representative shall have the right to inspect and use as evidence all reports and/or statements of any kind or nature submitted to any department of the government for the purpose of enforcing the provisions of this chapter.

(d) Every employer shall furnish to the Board or its authorized representative such information relating to the employment of workers and in such manner as the board may prescribe.

32.0308 Confidentiality of information.

Any information secured from inspection of employers’ records, or from transcriptions, or from the taking of transcriptions, or from inspection of the employers’ premises by the Board or its authorized representative, which may be used in connection with their official duties or within the scope and course of their employment but not otherwise, may not be divulged to other than officials concerned with, and solely for the purposes of, the administration of the laws of this territory relating to matters under the jurisdiction of the Board.

32.0309 Distribution of copies of chapter and of orders, rules and regulations,

(a) The Board shall cause this chapter to be printed and copies furnished to interested persons upon request without charge.

(b) Copies of orders of the Board and of rules and regulations of the Board shall also be furnished to employers affected thereby without charge.

32.0310 Collective bargaining not impaired.

Nothing in this chapter may be deemed to interfere with, impede or in any way diminish the right of employees to bargain collectively through representatives of their own choosing in order to establish wages in excess of the applicable minimum under this chapter or to establish hours of work shorter than the applicable maximum under this chapter.

32.0311 Cooperation with federal government.

In the administration of this chapter, the Board shall cooperate, to the fullest extent consistent with the provisions of this chapter with the Administrator of the Wage and Hour Division, United States Department of Labor.

32.0320 Minimum wage.

Every employer shall, except as the Board may provide pursuant to 32.0321 and 32.0322, pay to each employee employed by him wages at the rate of not less than 70 cents per hour. This section applies only to those employees not now covered by the present Merit System Law and Federal Minimum Wage Schedule established by the U.S. Department of Labor on 5 June 1967.

32.0321 Wage rates for handicapped employees.

(a) The Board may provide by regulations, after public hearing at which any person may be heard, for the employment in any, occupation at individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, at such wages lower than the minimum wage rate provided in 32.0320 as the Board may find appropriate to prevent curtailment of opportunities for employment, avoid undue hardship and safeguard the minimum wage rate.

(b) No employee may be employed at wages fixed pursuant to this section except under a special license issued under applicable regulations.

32.0322 Wage rates for apprentices.

(a) The Board may provide by regulation, after a public hearing at which any person may be heard, for the employment in any occupation, of learners and apprentices at such wages lower than the minimum wage rate provided in 32.0320 as the Board may find appropriate to prevent curtailment of opportunities for employment and to safeguard the minimum wage rate

(b) No employee may be employed at wages fixed pursuant to this section except, under special license issued under applicable regulations.

32.0323 Maximum hours.

(a) No employer may employ an employee in excess of 40 hours a week unless such employee receives compensation for employment in excess of such weekly hours, at a rate not less than 1 ½ times the regular rate at which he is employed.

(b) No employer may employ an employee over 14 hours in any one 24-hour period, except in case of extraordinary emergency.

32.0330 Termination of employment-Time for payment.

The earned wages of all employees discharge by an employer, either with or without cause, are immediately due and payable upon discharge. If an employee leaves his employment voluntarily, his earned wages are due and payable on the next regular payday.

32.0331 Termination of employment-Payment when amount is disputed.

(a) In case of a dispute over wages resulting in, or existing at the time of termination at employment, the employer shall give notice to the employees of the amount of wages which he concedes to be due and the same is payable without any conditions whatsoever at the time fixed by 32.0330.

(b) The acceptance by the employees of such payment may not constitute a release or accord and satisfaction with respect to the disputed amount.

32.0332 Fines not to be deducted from compensation.

No fines may be collected, deducted or retained by any person out of any compensation earned by any employee.

32.0333 Deductions from wages.

It is unlawful for any person to deduct and return any part or portion of any compensation earned by any employee except where required by a Federal or Territorial statute or by court process or when such deductions are authorized in writing by the employee, provided that deductions for fines may not be so authorized.

32.0340 Liability of employers for unpaid minimum wages or overtime.

Any employer who violates any provision of 32.0320 and 32.0323 shall be liable to the employee or employees affected in the amount of their unpaid minimum wages or unpaid overtime compensation; and in case of willful violation, is liable for an additional equal amount of liquidated damages.

32.0341 Actions before the Administrative Law Judge.

(a) Actions under 32.0340 may be in the Office of the Administrative Law Judge by any one or more employees for and in behalf of himself or themselves and other employees similarly situated, or such employee or employees may designate an agent or representative to maintain such action for and in behalf of all employees similarly situated.

(b) The Administrative Law Judge, in addition to any judgment awarded the plaintiff or plaintiffs, shall, in the event the plaintiff or plantiffs prevail, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.

(c) At the request of any person paid less wages or compensation than the amount to which he or she is entitled under the provisions of this chapter, the Board may take an assignment in trust for the assigning employee of the full amount to which he is entitled under this section and may bring any legal action necessary to collect such claim; and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the judge in the event the board prevails. The Board shall not be required to pay the filing fee or other costs in connection with such action. The Board may join various claimants against the same employer in one cause of action if the claims arise at different times.

32.0342 Restitution of illegally deducted wages.

Whenever, in the course of an inspection made for the purposes of 32.0330 through 32.0333, it is determined that there has been an illegal deduction of wages under 32.0332 or 32.0333, the Board or its authorized representative may secure restitution of such deductions. If such restitution is made, no prosecution under 32.0349 may be instituted or maintained.

32.0343 Preference of claim for wages when business is suspended for financial reasons.

(a) When the business of any person, corporation, company or firm is suspended as a result of a writ of execution or attachment or is placed in the hands of a receiver, trustee or assignee or creditors, then all cases of claims for wages at not more than $300 for each claimant, earned within 6 months of the date such business is suspended or placed in the hands at a receiver, trustee or assignee for creditors, must be paid in full prior to the payment of taxes or any other debts except a debt secured by a mortgage duly recorded before the wages were earned.

(b) Any employee desiring to enforce his claim for wages shall present a statement under oath showing the amount due, the kind of work for which such wages are due, and when such work was performed, to the officer or person charged with such property, within 20 days after seizure of the property under any execution or writ of attachment or within 60 days after such property has been placed in the hands of a receiver, trustee, or assignee for creditors.

(c) Any interested party may contest any claim or part thereof by filing sworn exceptions thereto with the officer, or person to whom the claim was presented, within 10 days after the period for filing claims, and thereupon, the claimant is required to reduce his claim to judgment before any part thereof shall be paid.

(d) No claim may be paid until after the expiration of the time for filing and contesting claims.

(e) If the funds realized from the sale of the property are insufficient to pay the total claims for wages presented, then such funds must be prorated between such claims.

32.0344 Injunction against violation of chapter or rule.

Whenever it appears to the board that any employer is engaged in any act or practice prohibited by this chapter or any provision of any rule, it may, in its discretion, bring an action before the Administrative Law Judge, charging the act or practice, and to enforce compliance with this chapter or such regulation. Upon a proper showing, a permanent or temporary injunction, decree or restraining order shall be granted without bond.

32.0345 Enforcement of unpaid judgment.

If any judgment obtained by the Board against an employer for nonpayment of wanes remains unsatisfied 30 days after the time to appeal therefrom has expired, and no appeal s pending, or after such judgment has been affirmed on appeal, the board may institute proceedings in the name of the board before the Administrative Judge to compel such employer to cease doing any business until such judgment has been satisfied. An order of the judge suspending the operation of a business shall not be subject to appeal except on a question of due process regarding notice and opportunity to show that the defendant has in fact satisfied the judgment in question. The Board shall be entitled to reasonable attorney’s fees and costs for an action under this section.

32.0346 Violation of confidential records provisions.

(a) Any person who divulges information in violation of section 32.0308 is guilty of a class B misdemeanor, and upon conviction, shall be sentenced accordingly.

(b) Each day a violation continues shall constitute a separate offense.

32.0347 Discrimination against employee taking action under this chapter.

(a) Any employer who discharges or in any manner discriminates against an employee who has made a complaint to the employer, or to the board or any other person, or has instituted or caused to be instituted, any proceeding under or related to this chapter, or has testified or is about to testify in such a proceeding, is guilty of a class B misdemeanor.

(b) Each day a violation continues shall constitute a separate offense.

32.0348 Violation-Penalty.

(a) Any employer who knowingly violates any provision of this chapter or any rule or order issued under authority of this chapter is guilty of a class B misdemeanor.

(b) Each day a violation continues shall constitute a separate offense.

32.0349 Violation of 32.0330 through 32.0333-Penalty.

Any person who, having the ability to pay, knowingly refuses to pay wages due and payable when demanded or who violates any provisions of 32.0330 through 32.0333 is guilty of a class B misdemeanor.

32.0350 Hindering Board-Violation of required records provisions.

Any employer who knowingly hinders or delays the Board or its authorized representative in the performance of his duties in the enforcement of this title, or who knowingly refuses to admit the Board or its authorized representative to any place of employment, or who fails to keep or falsifies any record required under 2.0307, or who refuses to make such records accessible or to give information required for the proper enforcement of this title, upon demand, to the Board or its authorized representative, is guilty of a class B misdemeanor.

32.0351 Prima facie evidence.

Failure of an employer to pay an employee any minimum wage or overtime compensation required by 32.0320 or 32.0323 shall constitute prima facie evidence of a violation of such sect ions.