Decision Date25 October 1999
Docket NumberNo. 3061.,3061.
Citation337 S.C. 476,523 S.E.2d 795
CourtSouth Carolina Court of Appeals
PartiesCAROLINA ALLIANCE FOR FAIR EMPLOYMENT and Rachel Stern, Appellants, v. SOUTH CAROLINA DEPARTMENT OF LABOR, LICENSING, AND REGULATION and Adecco Temporary Services, of whom South Carolina Department of Labor, Licensing and Regulation is, Respondent.

Stephen John Henry, of Greenville, for appellants.

V. Clark Price, of Love, Thornton, Arnold & Thomason, of Greenville, for respondent.


Carolina Alliance for Fair Employment (CAFE) and Rachel Stern brought this declaratory judgment action against South Carolina Department of Labor, Licensing, and Regulation (the Department) and Adecco Temporary Services (Adecco, f/k/a Adia Temporary Services) (Adecco) seeking an order clarifying whether the notice requirements of S.C.Code Ann § 41-10-30A (Supp.1998)1 are met by a minimum wage notification. The Circuit Court found a minimum wage notification sufficient, and therefore, granted the Department's summary judgment motion. CAFE and Stern appeal. We affirm.2


CAFE is a statewide group of thirteen chapters consisting of over 1,000 dues paying families. In November 1994, CAFE sponsored a "Temp School." CAFE hired nineteen people for one week to obtain information from them about their experiences with temporary employment. Despite their complaints, none of the participants filed an official grievance.

A "temp testing project" was conducted in the Greenville area in 1995-1996 to further investigate and document temporary agency practices. Individuals, referred to as "testers," were hired by CAFE on a contract basis to register at "targeted temp agencies," go out on assignments, work at least one day, and submit written reports to CAFE. A second "temp testing project" was later conducted state-wide. Stern was one of the testers.

In January 1997, CAFE assisted its "testers" in filing complaints with the Department alleging the temporary agencies failed to provide the written wage notice required by S.C.Code Ann. § 41-10-30(A) (Supp.1998). Stern was registered with Adecco, and agreed to work for $6.00 per hour. She wrote the Department on January 23, 1997:

I registered at Adia for temporary employment on around November 22, 1996. I received a call from Adia on around November 27 and was assigned to work at Holset. I worked at Holset as assigned on around December 2, 1996 (one day only).
Adia has never provided written notice to me of the specific wages for this assignment, in violation of Section 41-10-30(A). I request an investigation of this complaint, and upon confirmation of a violation, that Adia be issued a warning letter as provided in Section 41-10-80(A).
Please note that I hereby designate Mr. Charles Taylor3 of the Carolina Alliance for Fair Employment as my representative for the purpose of this complaint investigation. Mr. Taylor can be reached at the CAFE office ... Mr. Taylor is familiar with my case, and he can help answer questions and relay messages to me as needed. I also request that Mr. Taylor be provided with access to and copies of all correspondence and other documentation in the course of this complaint investigation.

She followed up with a phone call on February 10, 1997. On February 20, 1997, the Department investigated Adecco. Adecco posted the following notice:

To be determined by assignment to client/agencies, and will typically conform to client's normal working hours.
Each employee is guaranteed a minimum of $4.25 per hour. Some assignments will pay higher rates. For each assignment you accept, your pay rate will be explained.

This verbiage is virtually identical to that suggested by the Department for temporary agencies. The Department found that Adecco had complied with the statute. Accordingly, it did not issue Adecco a warning letter.

Thereafter, Charles Taylor, CAFE's executive director, had a "series of communications" with the Department concerning the interpretation that the minimum wage poster satisfied the wage notification requirement. This suit requested:

[A] declaration of the meaning of Section 41-10-30(a)'s notice provisions, in particular Whether or not this section applies to Adecco and similarly situated temporary employment services agencies (sic), whether the notification required to be provided under that statute is met by a general minimum wage notification or if more is required. The Plaintiff Stern submits that her rights as a temporary employee have been impacted by Defendant Adecco's failure to provide the notice required by law as well as by the Department's incorrect statutory interpretation. Additionally, both Plaintiffs assert that the rights of other temporary employees throughout South Carolina who seek protection through Section 41-10-30(A) of the South Carolina Code of Laws are potentially impacted by this action.4

Adecco answered admitting Stern was an employee.5 Adecco later filed a motion to dismiss. The Trial Court denied that motion finding a justiciable controversy between Adecco and Stern. A portion of that order addressed the standing of CAFE and Stern to bring this action. The Trial Court explained:

Defendants argue, however, that because CAFE does not allege an employer/employee relationship with [Adia], CAFE is not entitled to notice, and thus it has no rights to assert; therefore, the Court should dismiss CAFE from this lawsuit. I disagree. CAFE's standing is more appropriately an issue for the trial judge. If the elements of a justiciable controversy are present, then this action will survive the defendant's 12(b)(6) motion. Even though CAFE may not have standing, because the plaintiffs have alleged that Stern is an "employee", this Court may determine whether a justiciable controversy exits.

(Emphasis added). At some point, however, Adecco was dismissed from this suit.

The remaining parties filed cross-motions for summary judgment. The Trial Court, granting the Department's motion, stated:

[I]nterpreting the statute to require notification of the specific hours of employment and rates of pay for each assignment would be impracticable .... If, as Plaintiffs appear to contend, the temporary employment agency is required to state more specifically the wages and hours of each temporary assignment, then it would be, as argued by the Department, practically impossible for a temporary employment agency to comply with the requirements of the statute.... If possible, Courts should construe a statute so as to escape an absurd interpretation and to carry the intention of the legislature into effect .... The Department's interpretation of the statute is reasonable and is consistent with the language utilized by the legislature. As argued by the Department, the notice provision requires that the employer give enough information as to wages and hours to a potential employee to put that employee in an educated position to decide whether or not to accept employment. The Adia notice accomplishes this purpose and is consistent with the language of the statute as interpreted by the Department. In light of the record, this Court finds no cogent reason to disagree with the Department in its interpretation of the statute.

The Trial Court did not address either CAFE's or Stern's standing to maintain this suit. Following CAFE and Stern's motion to reconsider, the Trial Court added: "[T]his Court concludes as a matter of law that the minimum wage notification approved by the Department of Labor satisfies § 41-10-30(A)."

I. Did the trial judge err in granting summary judgment for the Department and finding no genuine issue of material fact existed concerning the appropriate notification required under S.C.Code Ann. § 41-10-30(A)?
II. Did the trial judge err in denying summary judgment for CAFE and Stern?

"Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). "Summary judgment is proper where plain, palpable, and indisputable facts exist on which reasonable minds cannot differ." Rothrock v. Copeland, 305 S.C. 402, 405, 409 S.E.2d 366, 368 (1991). It is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper, supra. Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Gilliland v. Elmwood Properties, 301 S.C. 295, 391 S.E.2d 577 (1990). Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Etheredge v. Richland Sch. Dist. I, 330 S.C. 447, 499 S.E.2d 238 (Ct.App.1998).

The party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once the party moving for summary judgment meets this initial burden, the non-moving party cannot simply rest on the mere allegations or denials contained in the pleadings. Rule 56(e), SCRCP. Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Rule 56(e), SCRCP.

The plain language of Rule 56(c), SCRCP, mandates the entry of summary judgment, after adequate time for discovery against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Baughman, supra.


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