§ 342a. Investigation of complaints of unpaid wages

(a) An employee or the Department on its own motion may file a complaint that wages have not been paid to an employee, not later than two years from the date the wages were due. The Commissioner shall provide notice and a copy of the complaint to the employer by service, or by certified mail sent to the employer's last known address, together with an order to file a response to the specific allegation in the complaint filed by the employee or the Department with the Department within 10 calendar days of receipt.

(b) The Commissioner shall investigate the complaint, and may examine the employer's records, enter and inspect the employer's business premises, question such employees, subpoena witnesses, and compel the production of books, papers, correspondence, memoranda, and other records necessary and material to investigate the complaint. If a person fails to comply with any lawfully issued subpoena, or a witness refuses to testify to any matter on which he or she may be lawfully interrogated, the Commissioner may seek an order from the Civil Division of the Superior Court compelling testimony or compliance with the subpoena.

(c) If after the investigation wages are found to be due, the Commissioner shall attempt to settle the matter between the employer and employee. If the attempt fails, the Commissioner shall issue a written determination and order for collection, which shall specify the facts and the conclusions upon which the determination is based. The Department shall collect from the employer the amounts due and remit them to the employee. Notice of the determination and the order for collection to the employer shall be provided to all interested parties by certified mail or service.

(d) If the Commissioner determines that the unpaid wages were willfully withheld by the employer, the order for collection may provide that the employer is liable to pay an additional amount not to exceed twice the amount of unpaid wages, one-half of which will be remitted to the employee and one-half of which shall be retained by the Commissioner to offset administrative and collection costs.

(e) Within 30 days after the date of the collection order, the employer or employee may file an appeal from the determination to a departmental administrative law judge. The appeal shall, after notice to the employer and employee, be heard by the administrative law judge within a reasonable time. The administrative law judge shall review the complaint de novo, and after a hearing, the determination and order for collection shall be sustained, modified, or reversed by the administrative law judge. Prompt notice in writing of the decision of the administrative law judge and the reasons for it shall be given to all interested parties.

(f) Notwithstanding any other provision of law, the employer or employee may appeal the decision of the administrative law judge within 30 days by filing a written request with the Employment Security Board. The appeal shall be heard by the Board after notice to the employee and employer. The Board may affirm, modify, or reverse the decision of the administrative law judge solely on the basis of evidence in the record or any additional evidence it may direct to be taken. Prompt notice of the decision of the Board shall be given to the employer and employee in the manner provided by section 1357 of this title. The Board's decision shall be final unless an appeal to the Supreme Court is taken. Testimony given at any hearing upon a complaint of unpaid wages shall be recorded, but the record need not be transcribed unless ordered. The costs of transcription shall be paid by the requesting party.

(g) The Commissioner may enforce a final order for collection under this section within two years of the date of the final order in the Civil Division of the Superior Court.

(h) Information obtained from any employer, employee, or witness in the course of investigating a complaint of unpaid wages shall be confidential and shall not be disclosed or open to public inspection in any manner that reveals the employee's or employer's identity or be admissible in evidence in any action or proceeding other than one arising under this subchapter. However, such information may be released to any public official for the purposes provided in subdivision 1314(e)(1) of this title. (Added 1965, No. 182; amended 1977, No. 244 (Adj. Sess.), § 3, eff. May 1, 1978; 1999, No. 119 (Adj. Sess.), § 19, eff. May 18, 2000; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 15, § 3; 2013, No. 173 (Adj. Sess.), § 1.)