Penalties

(a)Except for government entities, any employer who fails to pay one

(1)or more employees wages when due or who underpays an employee shall pay punitive damages to the employee of three

(3)times the wages due, unless the employer can establish, as an affirmative defense in equity, by a preponderance of the evidence, that:

(1)In the case of non-payment, the employer did not have the ability to pay the wages due; and

(2)The employer complied with all other provisions of this Chapter; and

(3)There was no fraud committed against any employee by the employer in the computation of wages; and

(4)The employer was in substantial compliance with all territorial and federal laws as to wage and hours matters relating to employees, and that any non-compliance was in good faith; and

(5)In the case of non-payment, managers or officers of the employer were not given priority in the disbursement of wages or allowances; and

(6)In the case of non-payment, the employer complied with the requirements of § 3213 this Code; and

(7)The employer comes before the court with clean hands; and

(8)In the case of an underpayment, the underpayment was a good faith error with no intent to defraud.

(b)Any person participating in any fraud or intentional non-payment or underpayment of wages against any employee or any person knowingly benefiting from any fraud or intentional non-payment or underpayment of wages shall be jointly and severally liable with the employer and others liable for all unpaid wages, penalties, attorney's fees and costs due to any unpaid employee of the employer.