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other states; see, e.g., N.Y. Labor Law, Sec. 196 (repealed 1966, now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