Untitled Texas Attorney General Opinion

I THE ATI-ORNEY GENERAL OF TEXAS Aua-. wExAI3 787ll sonx I.. alI& A-- a-A& Auguet 30, 1974 The Honorable Jackie St. Clair Opinion No. H- 388 Commirsioner, Texas Dept. of Labor and Standards Re: Required time of payment Sam Houston Building of wagee under Art. 5155, Auetin, Texae V. T. C. S. .&or Commieeioner St. Clair: You have requested. our opinion on the meaning of Article 5155, V. T. C. S., which provides in pertinent part: Each person. . . employing one (1) or more persons. . . mhall pay each of itr employeee the wage! earned by him or her ae often a# semimonthly, and pay to a day not more than sixteen daya prior to the day of payment. The 6peciSc rituation giting rice to your inquiry involves a corporation which propocles to adopt a new pay schedule. The proposed pay schedule would.include a two week pay period beginning and ending on Sunday evening. Payday would be the Friday following the end of the pay period. Asruming for clarity of illustration that a pay period begins on a Sunday which is the Arat day of the month, the last day of the pay period would be Sunday the flft~enth. Pay&y would be Friday the twentieth. ,’ An we.underetand it this plan meets the law’s requirement that payment be made .at least rremi-monthly. Your question is whether the requirement that the employer “pay to a day not more than sixteen days prior to the day of payment” mandatea that payment be made within sixteen days of the day wageo are earned or merely within sixteen days of the end of a pay period. If the former is correct, the proposed~.payment schedule is improper; if the latter represents the correct interpretation of the law, the payment schedule ia perm~saible. p. 1820 The Honorable Jackie St. Clair, page 2 (H-388) Statutes prescribing tbe time for payment of wages are found in most of our fifty states. However, judicial decisions construing the Texas statutory language or similar provisions in our sirter states are rare or non-existent. We have examined the operation of similar statutes in other states; see, e.g., N.Y. Labor Law, Sec. 196 (repealed 1966, now &nrndin substance. at Sec. 191): Ran. Rev.%&, Sec. 337.020; Mass. Gen. Laws, c. 149, Sec. 148; American Mutual Liability Insurance Co. v. Commissioner of Labor, 163 N. E. 2d 19 (Mass. 1959); U.S. Reduction Co. v. Nussbaum, 6 CCH Labor Cases, P. 61,202 (Ind. App. Ct. 1942): and we have examined the legislative history of Texas law; see generally, Dal&Morning News, Jan. through Feb., 19ll, Jan. through Feb., 1915: Texas Senate Journal, 32nd Leg., p. 210 (1911). These are helptizlin construing the language but do not provide clears or direct authority for any interpretation. They do suggest that Article 5155 requires pay- ment from the first day of the pay period “to a day not more than sixteen days prior to the day of payment, I’thus permitting an employer to withhold wages~ for as long as sixteen days after the end of a pay period. If they were the only aids to construction we would be inclined to adopt that interpretation However, we have been informed that your department has utilized and enforced a consistent and long standing interpretation that the statute require8 wages to be paid witbin sixteen dsys afterthey are earned. Where a statute is ambiguous or uncertain a court will ordinarily uphold a long standing interpretation given the statute by the agency charged with its. administration. ‘Calvert v. Kadane, 427 S. W. 2d 605 (Tex. 1968): Shaw v. Strong, 96 S. W. 2d 276 (Tex. 1936) (Critz, J., concurring); Franklin Fire Ins. Co..v. Hall, 247 S. W. 822 (Tex. 1923); State v. Houston.: Gil Co. of Texas, 194 6. W. 422 (Tex. Civ.App. --Austin 1917, writ ref’d. ). Since the statute is’unclear and since there has been no direct judicial construction of the statutory language, we believe the departmental con- atiuction would.be approved. Therefore, the payment plan about which you have inquired would be invalid. I \ p. 1821 , The Honorable Jackie St. Clair, page 3 (H-388) SUMMARY Wages must be paid at least as often as semi-monthly and within sixteen days of the day they are earned. Very truly yours, Attorney General of Texas DAVID M. KENDALL,, Chairman Opinion CWee p. 1822