The Oklahoma Supreme Court recently decided Hamrick v. Office of the Chief Medical Examiner.  You can find the decision at www.oscn.net. Under “Quick Case,” on the left side of the page, insert:  2011 OK 60. 

            Hamrick involved whether an unclassifed state employee can sue the state under the Protection of Labor Act. Lawsuits filed under that act are often referred to as “Title 40 claims.”

             For most employees, the true benefit of a Title 40 claim is two-fold. First, employees or former employees may bring a Title 40 claim by suing the employer for past due wages in court, or through the Department of Labor, through an administrative proceeding. However, as the Supreme Court noted, the Labor Commissioner’s rules do not allow administrative proceedings to be brought by state employees. The Court stated the Labor Commissioner has discretion to exclude state employees from the administrative process. However, the Court did not examine whether the Labor Commissioner may lawfully decide to exclude some categories of employees from remedies provided by state law, thus this question remains unclear.

             More importantly, an employee who wins a Title 40 claim is entitled to recover costs and attorneys fees, plus liquidated damages in the amount of two percent of the unpaid wages for each day the employer fails to pay wages that were earned and due. The employee is entitled to the liquidated damages of up to 100% of the actual wages due. However, the Supreme Court found this part of Title 40 does not apply to State employees.

             As the court noted, state employees (like other employees) are also entitled to sue for past due wages under general principles of law, called the common law. Although the Supreme Court ruled state unclassified employees can bring a Title 40 claim, since they can not recover liquidated damages, costs and attorney fees under that law, unclassified employees may have fewer rights under Title 40 than under a common law claim, because common law claims allow the employee to recover interest.

             Every case must be examined separately to decide the best course of action. Before deciding how to pursue a claim against the state for unpaid wages, you should consult legal counsel.